In The Matter Of The Application For Revocation Article. (Ii) Act No. 216/1993.

Original Language Title: ve věci návrhu na zrušení čl. II zákona č. 216/1993 Sb.

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132/1994 Coll.


The Constitutional Court of the Czech Republic

On behalf of the United States

The Constitutional Court of the Czech Republic decided on 17. May 1994 in plenary in

the case of the applicant-a group of members of Parliament of the Czech Republic and

party to the proceedings-the Chamber of deputies of the Parliament of the Czech Republic

application for annulment of article 1(2). (II) Act No. 216/1993 Coll., amending and

supplementing Act No. 172/1990 Coll., on universities, and to repeal section 27 of the

paragraph. 8 of Act No. 172/1990 Coll., on universities, as amended by Act No.

216/1993 Coll.

as follows:

The proposal is rejected.

Justification: (a substantial part)

A group of 43 members of Parliament filed the proposal to repeal section 27 para. 8 of law No.

172/1990 Coll., on universities, as amended by law No 216/1993 Coll., on the

annulment of article II of the Act No. 216/1993 Coll., which amends and supplements the

Act No. 172/1990 Coll., on universities, noting that they are in


-with article. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),

-with article. 1, 3 (2). 1, 4 (4). 3 and article. paragraph 36. 1 of the Charter of fundamental

rights and freedoms ("the Charter"),

-with article. 3 (2). 2 and 26 of the International Covenant on Civil and political


-Convention on discrimination (employment and occupation) (No. 111), the No.

465/1990 Coll.

-with article. 3 the Convention on employment policy (No. 122), no. 489/1990 Coll.

For an overall picture of the present problems of the Constitutional Court requested the

the report of the Ministry of education, youth and sports. This report from the

on 11 July. 1. the 1994 found that 31. 10.1989, at universities

(hereinafter referred to as "the UNIVERSITY") employs 11 906 teachers, professors, 1031 2989

are associate professors and assistants 7886. In the period from 1. 1. the 1990 ended up working

the ratio of the initiative of the UNIVERSITY staff (of which 806 56 professors and 106

are associate professors), 1089 and went into retirement at his own request to another site

1764 workers, of which 81 professors and docents of the 230. 31. 10.1993

the UNIVERSITY employs a total of 12 648, teachers, professors, 1130 3307

are associate professors, and 8211 professional assistants. Advisory rank,

the appointment in the period 1969-1989, 393 professors and docents of 1645. 1.

1. the 1990 moved to UNIVERSITY staff, 5941 292 professors and 637

are associate professors. Of workplaces of the Academy of Sciences came to the UNIVERSITY in 1993, a total of 233

Scientific and professional workers.

The report also cited reports that the State on 1 January 1993. 1. the 1990 is mainly based on

the legislation, which applied from the effectiveness of Act No. 39/1980 Coll.

universities, and from the efficiency of the Ministry of Education Decree No.

111/1980 Coll., on the procedure for the appointment of professors and docents of and when

the filling of vacancies of teachers colleges. Under this legislation,

has ceased to be a condition for obtaining the title of "Associate Professor" Habilitation and

the title could get (as well as the title of "Professor") the tenderer,

coming out of a scientific belief, has demonstrated a pedagogical

competence, the ability to work creatively, artistically or scientifically, or

demonstrate the scientific or artistic ability by creating a socially

major works and had the necessary practice. The provisions of section 3 of the Ordinance.

The Ministry of education of the CSR to the Minister of education to appoint in addition allow

associate professors, professors and propose the appointment without meeting

the conditions laid down for the appointment. A similar adjustment, however, apply before

1980 [cf. section 55a paragraph 1 point e) of Act No. 163/1969 Coll.

are changing and supplementing Act No. 20/1966 Coll., on universities].

With regard to the appointment of professors and docents of the, at the time before the

November 1989 proposals and communicated to the Minister of education transactions are processed in the

two parts, training and staff. Both parts have been assessed

separately, the Department of the universities and the Department cadre and their opinions

uniting Gremium Deputy Minister for universities.

The conclusions of the meeting have been consulted on the Gremium of Department of education and science

Of the COMMUNIST PARTY and only in the case of a positive outcome of the consultations, Minister

associate professors, or forward the proposals for the appointment of professors of

CSR, which is after discussion posted by President of the Republic.

The Constitutional Court primarily dealt with by the contested article. II. law, according to

which teachers and UNIVERSITY researchers, who on the date of entry into force of

This law have agreed the employment relationship for an indefinite period, shall be amended in

employment for a definite period to 30. September 1994. He came to the following


The work of a university lecturer has specific characters, which stems

of the meaning and purpose of its activities specifically in the education of young

College-educated generation. Therefore, teachers are responsible for

in order to obtain high expertise freeing when the

terms of philosophical objectivity. These requirements are expressed

democratic State in the article. 33 para. 1 of the Charter, which States that everyone has the right

on education. In this respect, the Constitutional Court assessed and the purpose and the meaning of

the contested article. (II) Act No. 216/1993 Coll., in particular, that in the

area high schools deleted residues of the past when filling

the jobs of teachers and the UNIVERSITY and scientific staff to ensure

the real objectivity of teaching. To achieve this objective, the legislature

once tried, and in the provisions of § 37 para. 1 Act No. 172/1990

Coll., on universities. The law authorizing the Rector of the UNIVERSITY on a proposal from

the academic Senate of the faculty list an audition and the occupied space, if

This procedure is justified by the need to secure appropriate technical and

moral level high school. Teachers or scientific personnel, which in

bankruptcy does not withstand or bankrupt declined to participate, can give UNIVERSITY

notice of termination. Those provisions, however, remained in practice obsolete and

not worked. This is from the cit. Ministry of education, youth and

Sports clearly perceptible.

One of the fundamental principles of any democratic society is the

the creation of equal opportunities for all. Therefore, it is necessary to secure and

for teachers and researchers of the same UNIVERSITY "starting area",

as for existing workers, and for those, who are interested in

vědeckopedagogickou work and to whom the regime at the time before November 1989

did not allow such an activity. This reasoning is based and the sense of the message.

The Ministry of education, youth and sports, from which it follows that the

personnel changes at a University in 1989 in a fundamental extent. After all, the

as is apparent from this report were assistants who left

UNIVERSITY professors and lecturers, and not who, due to his importance of education

and education of the young generation affect the most. At the same time it should be

pointed out that the appointment of professors and docents of the covered by resource

right of the COMMUNIST PARTY and was therefore mostly preferred political reliability

compared with the level of support.

According to the beliefs of the Constitutional Court is a derogation of the employment relationship

teachers and UNIVERSITY researchers carried out in the contested article. (II) to the fullest

accordance with the provisions of section 5 of the labour code, according to which the employment law

the relationships of teachers UNIVERSITIES (and other workers laid down therein) shall be governed by

the labour code, unless the law provides otherwise. Here it should be stressed,

the provisions of § 5 of the articles outlined in the General provisions of the code

work, and because of this, he admits the difference in employment adjustment

UNIVERSITY teachers in all areas of labor relations. This is the case

Therefore, the work of a university lecturer has a variety of special characters,

whose common denominator is the incompatibility with petrifikováním

formal scientific level of University students and their teachers. Article. (II) the amendment to the law is

Thus the tendency to delete existing discrimination carried by other

University teachers (who have not yet had a chance to get fixed

occupied vědeckopedagogických functions) and create for all teachers

UNIVERSITY level playing field in the insolvency proceedings. It was, moreover, already expressed at the

another place.

The existing law No. 172/1990 Coll., on universities, significant and that

will be under the current complement UNIVERSITY students on the right

high-quality instruction and ensure the interest of Czech science and practice on growth

new experts. In this situation, the company remains the other way, that

would be filled with feeling article. 33 of the Charter, than to do so the next Act. If

the company would not take advantage of this option, the match would be a further lasting

violation of the constitutional right to an education. The fact that employment relationships

teachers and UNIVERSITY researchers concluded the effective date of the amendment to the

for an indefinite period will end on 30 April 2005 ex lege. September 1994, naturally does not exclude

the possibility of the current teachers and UNIVERSITY scientists have undergone

konkurzům, in which they have demonstrated their professional and moral level. On

the other side is only in this way can also

professionally and morally qualified citizens secured equal possibilities in the

advisory activities, so that they will give the right to prove in

bankruptcy proceedings of its capabilities. At the same time is the secured easier

the ability to transition from skilled professionals work stations, Academy of Sciences of the

Universities. It is not therefore a violation of the principle of equality, as the appellants argue,

but instead of allowing equal access to the activities of the Advisory

all eligible professionals on the basis of the same conditions by removing the

unfair privileges of past time.

According to the article. 6 of the International Covenant on economic, social and

cultural rights, the right to work includes the right of everyone to the opportunity to

earn a living in his work, which he freely chooses or

It accepts. The State is obliged to take the necessary steps to protect this right,

Therefore, to create equal opportunities for all, professionally and morally

qualified educators. Last mode this right in the long term roughly

violates and from cit. Ministry of education, youth and sports

It is obvious that the State of infringement of the principle of equality in access to employment

and violations of the principle of equal opportunities at the University takes to a large extent

continue to. It follows from the aforementioned fact that teachers and scientific

UNIVERSITY staff (especially with professors and docents of the) was established at the time of

the normalization of the situation, it is often to get people

conformable with the former regime, have already received advisory ranks

even without Habilitation, UNIVERSITY space "blocked" and now make it impossible to

higher education work to other teachers and researchers and the UNIVERSITY

Likewise, a new nezkompromitovaným citizens who so far had no chance at a University

to work with. This is the zeslabena option to the competition of different concepts and ideas,

which is contrary to the sense and purpose of article. 33 para. 1 of the Charter, in accordance with

that everyone has the right to education. This means the right to education,

that corresponds to the concept of a democratic Constitution and the Charter, which punishes

freedom of expression, the right to information and freedom of scientific research and

artistic creation (article 17, paragraph 1, article 15, paragraph 2, of the Charter).

If the appellant argued infringements of the principle of equality with reference to the article. 1

Of the Charter, it is necessary to emphasize that the equality of citizens should not be understood as

an abstract category, but as a relative equality, as have the

the mind of all the modern Constitution. If the State grants in order to ensure

its functions, a group less benefits than others, can only do so

in the public interest and for the public good. (cf. R 11/1992 Collection resolution

and the findings of the Constitutional Court of Czechoslovakia, with the conclusions of the Constitutional Court

identifies). Referred to the situation according to the beliefs of the Constitutional Court,

as the right to education (articles secured in article 33, paragraph 1, of the Charter) is in

the present case law, more significant and worthy of a stronger protection than

right, the violation of which is claimed. The contested article of the Act seeks to

ensure the proper upbringing of new generations of college students, which should be

to ensure objective and not unilateral mediation by the scientific

knowledge, which the existing composition of the universities does not guarantee adequately. From

This point of view it is necessary to evaluate the alleged infringement of article 81(1). 4 (4). 3

Of the Charter, if it is claimed that the contested article. (II) the amendment to the created rather than the

While inequality between teachers and UNIVERSITY researchers to each other, but

the inequality of the so-called. the outside between teachers and scientific researchers at a UNIVERSITY on the side

one and the other workers on the other. The claim has been

previous considerations sufficiently rebutted.

For these reasons, the Constitutional Court came to the conclusion that equality in the rights (article.

1 of the Charter), the prohibition of discrimination in the area of fundamental rights and freedoms (article.

3 (2). 1 of the Charter) and the principle that legal restrictions of fundamental rights and

freedoms must apply equally to all cases that meet the specified

conditions (article 4, paragraph 3, of the Charter), not article. (II) Act No. 216/1993.

violated. For the same reasons, the Constitutional Court or did not find a violation of article. 1

Of the Constitution.

The Constitutional Court is due to the content of the proposal and further alleged

the violation of the article. paragraph 36. 1 of the Charter, according to which each can claim

manner their rights before an independent and impartial court.

Applicant cit. provisions as also incorrectly interprets this

the basic law can only be applied following the other rights

guaranteed by the Charter. The contested article. (II) the amendment is in relation to the labour code

Special provisions; The Constitutional Court considers it, as has already been

States under Conformal to the above constitutional laws and emphasises in particular the

the protection of the values enshrined in the cit. article. 33 of the Charter, this provision

provides. Voucher No. 36 of the Charter in this case is not on point, because

The Charter provides the Court (procedural) protection only to the law of that

rule of law party (substantive law) guarantees. Otherwise-consistently taken-

any narrowing or limiting subjective rights, which is not in the

the legal order of a completely unusual (e.g. determination of different age for

entitlement to old-age pension for men and women, etc.), meant deprivation of rights

on the judicial protection; so, the right enshrined in article. paragraph 36. 1 of the Charter

cannot be interpreted. The purpose of this provision is to provide the right to

judicial protection to exercise their rights, or rights, that the legislature

participant as a subjective right. Participant has naturally

the possibility of recourse to a court within the limits of its competence, always; article. paragraph 36.

1 of the Charter, however, cannot be interpreted as a right to success in court proceedings.

This provision merely means that the Court must examine, and does not have

the right to reject him, subject to the procedural conditions under which

may act (terms and conditions).

Therefore, the Constitutional Court concludes that neither article. paragraph 36. 1 of the Charter is not

the contested article. (II) Act No. 216/1993.

From the perspective of the appellants claimed lack of mezinárodněprávního

article. (II) with the article. 3 (2). 2 and article. 26 of the International Covenant on Civil and

political rights. For the article. 3 (2). 2 this is a mistake, since paragraph 2

This article does not exist. This member of JUDr. In round 2, which was commissioned by the

Act on behalf of the appellant before the Constitutional Court, at a hearing

expressly acknowledged and stated that the appellant had in mind article. 2 (2). 3

(a). (b)) of the Covenant. That provision essentially corresponds with the article.

paragraph 36. 1 of the Charter, which the Constitutional Court already dealt with. Therefore, you can afford

-and for the same reasons as in the article. paragraph 36. 1 of the Charter-that the

article. (II) is not in conflict with article. 2, point 3 (a). (b)) of the International Covenant

on Civil and political rights.

As regards article. 26 of this Pact (which enshrines the equality of all, in particular,

before the law and entitled to equal protection of the law without any

discrimination), then the reasons for which the Constitutional Court did not find

the unconstitutionality of article. (II) the contested act in the area of national law,

fully apply also to the assessment of the question whether this provision is in accordance with the

^ Article of the Covenant. Therefore, the Constitutional Court in this regard and considered that article.

26 of the International Covenant on Civil and political rights is not the article. (II)

Act No. 216/1993 Coll. violated.

The Constitutional Court further criticised the nature of the article. II. the law with

article. 3 the Convention on employment policy (No. 122). The provisions of this

in particular, it follows that, in the implementation of this Convention will be the representatives of the people,

which affect the measures to be taken, in particular, with the representatives of

employers and workers concerned, discussed in the employment policy. This

the Convention, however, cannot be based on belief in the Constitutional Court considered

the international treaty on human rights and fundamental freedoms within the meaning of

article. 10 of the Constitution and strictly speaking, there would be no need to examine whether it is

the contested article. (II) of the Act have been violated. In this way you can argue whether or not

the fourth head of the Charter ("economic, social and cultural rights"), where

in the article. 26 paragraph 2. 3 sets out as a basic right of a person merely the right to

obtain resources for their living needs work. The provisions of this

It can therefore be inferred merely the right to employment that is instantiated

Act No. 1/1991 Coll., on employment. Under this law is the law of the

on the employment rights of citizens who want to and can work and working with

actually applying,

and the mediation of employment) in suitable employment,

(b)) to retrain as necessary to work the application,

(c)) on the physical security before taking up employment and in case of loss


Under this legal situation, it is obvious that the content of the article. 3. Convention No. 122

(whose spirit has a purely programmatic rather than regulatory nature) is

only the technickoorganizačním rule, which is related to the constitutional

According to the law. article. 26 paragraph 2. 3, but you cannot qualify as a

a fundamental right and freedom within the meaning of the Charter. Also Convention No 122 cannot be

as a whole, be regarded as an international agreement within the meaning of article 87(1). 10 of the Constitution.

Moreover, the report of the Ministry of labour and Social Affairs of 16 November. 2.

1994 shows that even according to the internal classification of the international organization

the work of this Convention is not considered to be a Convention of human rights and

fundamental freedoms. The Constitutional Court found the same thing in an official bulletin

(Official Bulletin) The International Labour Organisation, vol. LXX, 1987,

series A, appendix II, where under the motto "Basic human rights" is not a Convention

The International Labour Organisation No. 122 listed and is included under the password

"Employment policy and human resources development."

Although the constitutional court deduced that Convention No. 122 is not an international agreement

within the meaning of article 87(1). 10 of the Constitution, however, for the completeness of the article has been verified. 3

the contested article of this Convention. (II) of the Act. In this way found

the message of the Ministry of education, youth and sports, received on 24. 3.

1994, the draft amendment to the law on universities (No. 214/1993 Coll.) was in

February 1993 sent to the shortness of the interdepartmental disagrees,

in the framework of which was sent to the University and a Trade Union. The representative of the

This Union of Ing. P. k. attended a consultation meeting to design and

spoke to her on behalf of trade union opposition to the change of the working

the ratio stipulated for an indefinite period in the contract of employment for a specified period,

in terms of teachers and researchers. Negative opinion of this

the Trade Union mentioned in the evaluation of the question when

submission of the draft amendment to the Act Government. It is thus clear that the amendment to the Act

high schools (No 216/1993 Coll.) was with the representatives of workers without

regardless of the result of properly discussed. The provisions of the articles of the amendment can be

considered the measures taken in order to promote active policies

employment, and it must therefore be concluded that article. 3 Convention No. 122 was not

article. II. the law.

The Constitutional Court finally examined and criticised the nature of the article. II. the law

with the Convention on discrimination (employment and occupation) (No. 111), in particular, of the

the perspective of cit article. 1 (1). 1 (b). and), art. 2 and article. 3 (b). (b)), and (c)). Neither

in this regard, with the applicant agreed. Further reasons are the

We discuss elsewhere on this finding. The Constitutional Court stressed in particular

and stresses the priority the need to ensure the right to education within the meaning of

article. 33 para. 1 of the Charter, whose free development in an environment of competition

capable, morally and professionally qualified teachers and scientific

workers is the value of a significant and strong enough, it is necessary to put her in

particular situation shall take precedence over the requirement of "ignore" (in question

termination of employment within the meaning of article 87(1). (II) of the Act) between teachers and

UNIVERSITY researchers on the one hand, and among workers in other on

the other side.

For these reasons, the Constitutional Court came to the conclusion that neither Convention No. 111 is not

the contested article. (II) Act No. 216/1933 Coll. violated.

Therefore, the Constitutional Court a group of MPs at the Cancel article. (II) Law No.

216/1993 Coll. rejected.

The Constitutional Court is further dealt with in the contested provisions of section 27 para. 8.

the law, according to which the employment of teachers and researchers

universities is arranged for a definite period of a duration of two to five years; on

shorter period of time, it can be arranged, if the worker so requests in writing.

The provisions of section 13 of Act No. 182/1993 Coll., on the Constitutional Court, it follows that

comply with the proposal for a decision pursuant to article 6(1). 87 para. 1 (b). and) of the Constitution

(repeal of laws or their individual provisions) in the first place

assumes that it is said for him at least 9 judges present. This

the condition was not fulfilled, since the qualified majority present judges

even for a proposal from a group of MPs on the repeal of section 27 para. 8 of law No.

172/1990 Coll., as amended by law No 216/1993 Coll., nor to reject this

the proposal has not ruled. Therefore, the Constitutional Court and members of the group design

the abolition of the provision dismiss without once material page

dealt with the question of whether the provisions of section 27 para. 8. the Act is or is not in

accordance with the constitutional law or international agreement under article. 10

Of the Constitution.

The President of the Constitutional Court of the Czech Republic:

JUDr. Kessler v. r.

The right to a different opinion with your connections on behalf of the decision

under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, have taken advantage of these

judges: JUDr. Pavel Holländer, JUDr. Vlastimil Ševčík, JUDr. Vladimir

Chen and JUDr. Pavel Param V.