On The Proposal To Repeal Part Of. No. 258/2000 Coll. And 561/2004 Coll.

Original Language Title: ve věci návrhu na zrušení částí z. č. 258/2000 Sb. a 561/2004 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=83990&nr=99~2F2015~20Sb.&ft=txt

99/2015 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 16/14 of 27 January 2015
plenary Court composed of the Chairman Pavel Rychetsky and judges
Louis David, Jaroslav FENYK (Judge-Rapporteur), John Philip Vlasta
Formánková, Vladimir crust Thomas Lichovník, Jan Musil, Vladimir
Sládečka, Radovan Suchanek, Catherine Šimáčková, Adalbert Šimíček, Milady
Tomková, David Uhlir and Jiri Zemanek on the proposal for a minor P.
R., represented by a legal representative BZ, legally represented by Mgr.
David Zahumenským, a lawyer based in Brno, Burešova 6 to cancel
§ 50 of the Act no. 258/2000 Coll., On protection of public health and amending
some related laws, as amended by Law no. 375 / 2011 Sb., and § 34 paragraph
. 5 of the Act no. 561/2004 Coll., On preschool, primary, secondary,
vocational and other education (Education Act), with the participation
Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Czech Republic as
participants proceedings, the Czech Government and public
protector of rights as interveners

Follows:

I. The proposal to annul § 50 of Act no. 258/2000 Coll., On protection
public health and amending certain related acts, in the words
"pre-school can only accept a child who has undergone
established regular vaccination , a document that is immune against infection
or unable to undergo vaccination permanent contraindication "is rejected.

II. The remainder of the proposal is rejected.
Reason


I.

Recap constitutional complaint, the petitioner and the proceedings before the Constitutional Court


First The petitioner in a timely filed constitutional complaint of 25. 6. 2013
supplemented by the submission delivered to the Constitutional Court on 11. 10. 2013
seeks annulment of the judgment of the Supreme Administrative Court of 29 3. 2013 ref. No. 8
As 20 / 2012-42 and the judgment of the Regional court in Brno dated 20. 10. 2011 no.
j. 29 A 69 / 2010-36. Proceedings on constitutional complaint under file. Ref. I.
US from 1987 to 1913. The proposal to repeal those judgments
petitioner seeks repeal of § 50 Act no. 258/2000 Coll., On protection of public health
and amending certain related acts as amended by Act no. 375/2011 Coll
., (hereinafter the "law on the protection of public health") and § 34 paragraph
. 5 of the Act no. 561/2004 Coll., On preschool, primary, secondary,
vocational and other education (Education Act), and in particular from
following reasons.

Second The Supreme Administrative Court a constitutional complaint contested judgment of
29th 3. 2013 ref. No. 8 As 20 / 2012-42 decided to reject the cassation complaint
appellant against the judgment of the Regional Court in Brno dated 20. 10. 2011
no. j. 29 A 69 / 2010-36 dismissing its action against
decision of the Regional Authority of 20. 5. 2010 ref. no. 38442/2010
Kuji, sp. Ref. Odv DAMS 283/2010 establishing Regional Office dismissed the petitioner
appeal against the decision of the Director of Kindergartens
Namest nad Oslavou Třebíčská of 22. 4. 2010 and the decision of the Director of Nursery School
Enduring Freedom Hus of 30. 4. 2010, and both decisions
on which the petitioner was admitted to kindergarten for
failure to meet the conditions of § 50 of the Act on public health protection because it was not submitted
set regular vaccinations, regional Office confirmed.

Third The petitioner in his petition argues that the aforementioned
decisions of the general courts, a violation of his right to preschool education
as a component of the right to education under Art. 33 paragraph. 1
Charter of Fundamental Rights and Freedoms ( "Charter") as its
exclusion of pre-school education was disproportionate. A complete ban on access
healthy incompletely vaccinated children in kindergartens, according to the petitioner
disproportionate and neither is the test of rationality. Since
vaccination is given condition for access to early childhood education
disproportionate, it is also a disproportionate interference with the right to personal integrity
. For public health protection against the spread of infectious diseases
in kindergartens by the petitioner should be examined
whether there are less restrictive measures than a total exclusion from education that
can be described as a sanction against those who are unwilling to undergo ordered | || range vaccination.


Fourth Moreover, in case of denial of the right to education by the petitioner was not
his condition enshrined in Art. 4 of the Charter, under which limits
fundamental rights and freedoms can be regulated only by law, because the scope
vaccination obligation, which is a prerequisite for admission to kindergarten,
is determined by mere decree. In this regard, the petitioner refers
to the Constitutional Court decision. Nos. Pl. US 35/95 of 10. 7. 1996 (N
64/5 SbNU 487; 206/1996 Sb.). The petitioner states that the scope for vaccination
access to education is designed without any legal limits
mere decree. That the regulation respecting the constitutional requirements, it would be
law defined a minimum, diseases against which the child should be vaccinated
that it be given access to education. In this regard, the petitioner
also refers to the findings of the Constitutional Court. Nos. Pl. US 36/11 of 20
6th 2013 (N 111/69 SbNU 765; 238/2013 Coll.), Sp. Nos. Pl. US 23/02 of
30th 6. 2004 (N 89/33 SbNU 353; 476/2004 Coll.) And sp. Nos. Pl. US
45/2000 dated 14. 2. 2001 (N 30/21 SbNU 261; 96/2001 Coll.).

Fifth Vaccination conditions for access to early childhood education strikes by
petitioner also to the child's right to free and informed consent
protected by the Convention on Human Rights and Biomedicine, published under no. 96/2001 Coll
. ms (the "Convention"). His parents are in fact forced
child undergoing surgery based on indirect sanctions, since the exclusion of pre-school education
hit not only the child but the whole family - especially
job opportunities mother of the child, which excludes "freedom for" such
consent. According to the petitioner condition vaccinations against nine diseases for
access to early childhood education in the Czech Republic is not in conformity with
requirement of necessity in a democratic society, which is one of
conditions under which according to Art. 26 of the Convention to restrict the fundamental
right not to be subjected to any intervention in the health field
without the consent of their guardians.

6th Parents of the petitioner's son decided to vaccinate only later in life
against certain diseases which they considered important and where
considered the benefits of vaccination outweighing the risks
according to their beliefs about child's best interest and belief in the sense of freedom || | thought and conscience under Art. 15 of the Charter and Art. 9 of the Convention for the protection
human rights and fundamental freedoms ( "ECHR").
The petitioner points out that the state is failing dramatically in politics
vaccination, which is not transparent, while for any damage
health of a child after vaccination assumed by the State of any responsibility. In this situation
inadvertent vaccination (without the free consent of the parents)
as a condition for preschool education in violation of the "right to health"
petitioner.

7th In connection with the fact that the petitioner was not allowed to attend
kindergarten, and participate in the pre-school education, she
family also face social exclusion, not only the child but also his
mother who was forced to be the next few years home with the child, which is
inevitably linked to an overall reduction in family income and her life
level, whereby the petitioner finds a violation of the right to respect for private life
and family life and discrimination on grounds of belief
family.

8th The petitioner further alleges that, having regard to the fact that the Supreme Administrative Court
nor the Regional Court in Brno could not handle all of the arguments and evidence-based
denied allegations about the adequacy of pre-school education
incompletely vaccinated children, a violation of rights
to a fair trial as denegationis iustitiae (
denial of justice), and infringement of the decision.

9th Administrative courts, the appellant also
not handle the fact that for vaccination called. Childhood diseases (measles, rubella
, mumps) is not in Decree no. 537/2006 Coll., On vaccination against infectious diseases
, as amended, no time limit, because you can not meet
vaccination to early childhood education from a legal point of view
require. Nowhere in the current legislation is not
determined that the child has to undergo this vaccination before entering kindergarten
. Omission to deal with this fact was also
violation of the right to a fair trial and the right to a reasoned decision.

10th In light of the above, the petitioner in his petition

Constitutional Court to render an award
judgment of the Supreme Administrative Court dated 29 3. 2013 ref. No. 8 As 20 / 2012-42
and the judgment of the Regional Court in Brno of 20. 10. 2011 ref. no. 29 a 69 / 2010-36
repealed, and also proposes within the meaning of § 64 para. 1 point. e), respectively.
§ 74 Act no. 182/1993 Coll., On the Constitutional Court, as amended,
(hereinafter "the Constitutional Court Act"), to accept the judgment annulling
provisions of § 50 the protection of public health and § 34 para. 5
Education Act.

11th Resolution of 18. 6. 2014 ref. No. I. US 1987 / 13-1 came
I. senate of the Constitutional Court concluded that the application of § 34 para. 5
Education Act in connection with § 50 of the Act the protection of public health led to the fact
which is the subject of the constitutional complaint, which is why the petitioner's petition to annul the contested provisions
advanced to the full court
constitutional court under Article. 87 paragraph. 1 point. a) the Constitution of the Czech Republic.

II.
Observations of the parties


12th Constitutional Court to assess the matter, requested the parties to
comment on the petition to annul the contested provisions.

13th Czech Senate (the "Senate")
as a party to proceedings in its statement said that although the Education Act
since its adoption in September 2004 has been amended many times, did not see the wording
contested provision of § 34 . 5 not only changes and not during
nearly ten years, no major subject of criticism in the plenary or in
Senate bodies when examining the draft Education Act nor its
several dozen short stories. At this point it may be noted that
obligation to uphold the admission of children to pre-school education
statutory requirements (ie., Not only the law on public health protection
) apply generally and undoubtedly would apply in | || absence of provisions.

14th The proposal itself Senate Education Act states that it was delivered on 21
7. 2004 and in the Senate records of the fourth term of office, he was given a number, press
403. The statutory curriculum committee discussed
Education, Science , culture, human rights and Petitions, who advised the Senate
return the bill to the Chamber of Deputies with amendments
listed in Annex committee resolution no. 227 of 4. 8. 2004.
Neither of these amendments are not related to preschool education, ie
. Part Two of the draft. On 5 8. 2004 the Senate at the 17th meeting of the fourth term of office
held the recommendations of the committee and the bill returned
Deputies with amendments (Resolution no. 517).
In the decisive vote (no. 101) from the present 55 senators in favor of
49, was one against. This may be by the Senate to conclude that what to discuss procedures
Education Act "upper" chamber Senate acted within
constitutionally provided jurisdiction and in a constitutionally prescribed manner.

15th The Senate, in its statement further states that the contested provision also §
50 of the Act on public health protection is part of the law since its beginning
, with the only difference being that with effect from 1 4. 2012 took place [in | || connection with the Act no. 372/2011 Coll., on health services and their provision
conditions (health services Act)]
to replace the term "nursery" by "facility providing care for the child until 3 | || age in a daily regime. " The draft law on public health protection has been forwarded to the Senate
On 7. 6. 2000 and was given the number 276 in the print
second term. Subsequently, the bill was discussed
Committee for Health and Social Policy, the Committee for European Integration and
Committee on Petitions, Human Rights, Science, Education and Culture.
The negotiations resulted in the recommendation of the committees before the full Senate to draft the law
returned Deputies with proposed amendments.
None of these amendments did not relate to the contested § 50.

16th The full Senate dealt with the draft of 30. 6. 2000 at its 20th session in the
second term. The bill was returned to the Chamber of Deputies
with amendments, though for the resolutions
no. 420 in voting no. 117 in favor with 39 out of 46 senators present,
none against. The Senate concluded, that even during the procedure
discussing the law on public health protection
acted within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner.


17th Chamber of Deputies of the Parliament of the Czech Republic as a party
in its response to the petition merely recapitulated the legislative process,
by which it stated that the proposals voiced contested laws constitutionally prescribed procedure
approval by both chambers of Parliament, laws were
signed by the appropriate constitutional officials, and duly promulgated. Specifically
Deputies noted that the draft law on public health protection
was submitted to the Government of the Chamber of Deputies on 10. 2. 2000 (
circulated to Members as Parliamentary print 538/0). The bill
Deputies discussed in the first reading on 23. 2. 2000 and to discuss it ordered
Committee for Social Policy and Health.
Committee on Social Policy and Health discussed the bill on 3. 5. 2000
recommended Deputies approve it, as amended Committee
proposed amendments. Deputies discussed the proposal at second reading on
18. 5. 2000 and the third reading of 25. 5. 2000
its 25th meeting approved the bill in the version adopted by
amendments, of which none applied to the contested provision. In
vote no. 258 out of 165 deputies present, 164 deputies voted in favor
for the bill and none against. The bill was referred to the Senate
On 7. 6. 2000. The Senate returned the proposal Deputies with amendments
proposals to the provisions of § 50 did not concern. The bill returned
Senate Chamber of Deputies discussed on 14. 7. 2000 on his 26th
meeting and adopted it in the version approved by the Senate. In voting no. 699
vote of 155 deputies present in the 128 deputies, 13 deputies voted against
. Following the adoption of the Act and after the law was signed by the competent constitutional officials
Act was promulgated on 11. 8. 2000
Collection of Laws under no. 258/2000 Coll.

18th Draft Schools Act was submitted to the Government of the Czech Chamber of Deputies on 11
3rd 2004 which was discussed under the number of parliamentary
print 602/0. In the first reading on 1st 4th 2004 at the 30th meeting was a proposal
them for consideration of the Committee on Science, Education, Culture, Youth and Sport of
. The Committee on Science, Education, Culture, Youth and Sport
debated the bill on 3. 6. 2004 at the 31st session and recommended him
Chamber of Deputies approved the text of the proposed amendments committee
proposals. The second reading of the bill took place on 22. 6. 2004 to 33.
meeting of the Chamber of Deputies. Summary submitted proposed amendments were
worked as Parliamentary print 602/2, none of the amendments are not related
contested provision. In the third reading of the bill was discussed on
30. 6. 2004 at the 33rd meeting of the Chamber of Deputies, where he was
approved in voting no. 418. Of the 182 deputies present voted for the bill
92 deputies and against There were 82 deputies.
Deputies transmitted the bill on 21 7. 2004 Senate, which discussed it the fifth
8th 2004 17th meeting and returned it to the Chamber of Deputies with amending proposals
. The amendments did not concern the contested provision.
Draft Act returned by the Senate Chamber of Deputies discussed on 24 9. 2004
at its 35th session and adopted it in the text of the amendments of the Senate.
In voting no. 98 voted for the Law of the 191 deputies present
96 deputies, 91 deputies voted against. The Act was delivered to the President of the Republic of 8
10. 2004, which rejected it on 22. 10. 2004 it signed.
Approved Act was delivered to the Prime Minister for signature on 3
11th, 2004. The Act was published in the Collection of Laws in part 190 under no. 561/2004 Coll.

III.

Attitude of the government and the public protector of rights to draft

19th In accordance with § 69 para. 2 and 3 of the Constitutional Court pointed
memoranda of 3. 7. 2014, the Constitutional Court the government and public
protector of the rights of the ongoing proceedings, taking out, in what period
may intervene in the proceedings as interveners, and possibly also to
comment on the proposal.

20th Government memorandum dated 30. 7. 2014 announced that it will enter
as an intervener in the proceedings. At the beginning of his statement on the issue
stated that it does not endorse the conclusions drawn from the decision of the Constitutional Court dated
18. 6. 2014 ref. No. I. US 1987 / 13-1 on the need to re || | addressed a petition to annul § 34 para. 5 of the Education Act and § 50
public health protection. Government recalls in this context that
Constitutional Court the issue of the constitutionality of the statutory obligation to undergo

Determined kind of vaccination and the related assessment of the alleged
violation of the right to education, interference with rights guaranteed by the Convention or
alleged unconstitutionality of Decree no. 537/2006 Coll., On vaccination against infectious diseases
repeatedly donated . The Constitutional Court also dealt
general question of the degree of autonomy of parents in decisions about medical interventions
to their children. The government, in its observations to the given
proposal envisaged that does not consider it necessary to repeat the conclusions from previous
relevant case law and focuses on
factual justification legitimacy and rationality of the contested provisions of the Act on
protection of public health and Education Act, respectively. legitimacy targets
legislation that mandatory vaccination against infectious diseases monitors
- the protection of public health, ie. the health of the population, including its
specific groups, among which undoubtedly include children of preschool age.

21st The Law on Protection of Public Health shall require the person to undergo
with regular vaccinations that under § 108 paragraph. 4
this law in the treatment of regular vaccination based
Ministry of Health of the World Health Organization.
Interest of developed countries in line with the recommendations of the World Health Organization
maintain high vaccination coverage against diphtheria, tetanus, whooping cough
, invasive disease due Haemofilem
influenzae b, polio and hepatitis B and further against measles, mumps and rubella
at a level of about 90% of the population. Only when
insufficient vaccination coverage, it is possible to induce called.
Collective immunity, a form of immunity that occurs when the
significant amount of the population or group (eg. Nursery school) vaccinated against
specific infectious diseases. In inducing collective immunity
given pathogen in a population does not circulate and therefore are not protected then
a vaccinated individual, but also those individuals who are not vaccinated because
permanent contraindications (about 5% of the population) or the for which
establish sufficient immunity after vaccination. So if not vaccinated
individual - eg. A person, which has been found to permanent contraindications to vaccination
, then there is no threat to herd immunity, but this person is
through herd immunity protected. If, however, the decline
overall coverage of the population under the surface, then
herd immunity is compromised. Circulation agent in the population may
increase and may rise in the number of new cases of the disease.
Maintaining herd immunity is therefore essential to prevent the spread of infectious diseases
population.

22nd So, while herd immunity can affect pathogenicity originator
but can reduce its circulation in the population, eventually lead to the elimination
agent in the population, and through indirect effects lead to a decrease in the incidence of the disease
also in unvaccinated population (eg. persons with impaired immunity
with a permanent contraindication for vaccination). The indirect effect is then
measurable decrease in the incidence of the disease in unvaccinated individuals. The existence of collective
immunity depends on two factors: the rate of vaccination coverage and effectiveness of vaccination
respectively. the effectiveness of the vaccine. To bring it about
always occurs only when a certain (ie. Sufficient)
rate of vaccination coverage. If conversely the population to decline in vaccination rates below
a sufficient level, then maintaining herd immunity compromised
respectively. You can lose a collective immunity to the disease.
Circulation of pathogens in a population in which case the increase and there is a
rise of new cases - confirms this example.
Increased incidence of measles in the UK at the loss of herd immunity due
declining vaccination coverage, or eg. an epidemic of whooping cough (about 225,000
disease) due to the refusal of vaccination against this disease by
certain religious groups in the UK between 1976 and 1982.
coverage rate may vary in individual diseases and not always
is fixed. However, for all interhuman communicable diseases
we can talk about collective immunity only for achieving it is necessary
different coverage rate.

23rd Regarding efficacy of the vaccine, due to the high efficiency
currently used vaccines for surface vaccination may
stated that the key to achieve collective immunity and reduction

Circulation of zoonotic infectious diseases in the population coverage rate.
Herd immunity, failure at 100% vaccination coverage of the population would
only possible with very little effective vaccines. Thus, low efficiency
not prove any of the approved and authorized vaccines for surface
vaccination. The decrease in serum antibody at time (fastest
drop is within 1 year after vaccination with relatively slow
decreasing concentration - stage "plateau") does not mean a loss
immunity. To the loss of immunity occurs when to drop below the limit
protective layer. In one vaccination even when there is no decrease in antibody
loss of immunity due to the presence of memory cells (e.g. in case
vaccination against hepatitis B). In diseases where there is a risk
illness throughout childhood and into adulthood, is performed booster,
responding to the decline in antibody concentrations. Maintaining collective
immunity is therefore essential to prevent the spread of disease in the population and
clearly outweighs the individual fundamental rights of individuals.

24th Model statutory tasks of the person to undergo
vaccination yet for vaccination against pertussis (whooping cough), diphtheria and tetanus
applied in 12 countries (including Italy and France) from 28 countries
pooled in the European Union and polio in 13 of these countries (plus Belgium
) of the above 28. It is in the interest of all countries to
vaccination coverage against basic infectious diseases was maintained at a high level.
Addition introduced in some countries limit access
unvaccinated children in collective institutions, for example.
In the United States of America, where in state preschools may not occur
unvaccinated children. With regular vaccination, control and
high vaccination coverage and good quality vaccines in the Czech Republic
succeeded in eliminating polio, diphtheria and eliminate
significantly reduce the incidence of a wide range of infections against which we vaccinate, which is
body of material graphs to analyze trends vaccination compiled
National Institute of health as a medical device designed to perform tasks in the scope
Ministry of health and the Government for its observations a
. The government, in its statement on further illustrates
selected infectious diseases link between vaccinations carried
a permanent decline or disappearance of the disease.

25th The purpose of the rules contained in the petitioner contested provisions of § 50
law on public health protection by the Government is to protect the health of individuals
enjoying special legal protection - children. Specifically
then children attending the facility providing care for a child under 3 years of age
in daily routines or preschool facility - the only children
using the public service of allowing
preschool education through the attending kindergarten established under the Education
Act.

26th The petitioner's objection that the decision on its acceptance into the nursery school is
sanctions, the Government refers to the explanatory memorandum to the given
law, as well as the aforementioned technical arguments and recalls that
only sanction that legal order It allows in the case of the petitioner
respectively. its legal representatives, impose a fine for committing an offense
in the healthcare sector under the provisions of § 29 para. 1 point. f) of the Act no.
200/1990 Coll., on misdemeanors, as amended.

27th In connection with the above, the government points out the falsity
petitioner's claim that the State does not, whether they were vaccinated and the other
children in kindergarten. The obligation under § 50 of the Act on the Protection
public health as well as fulfilling other obligations
this Act, subject to supervision by the state health control
regional health plans.

28th The petitioner's objection that the scope of the obligation vaccine, which is
condition for admission to kindergarten, is determined "mere decree"
Government notes that the Constitutional Court of the objections in the past
dealt with, taking identified conclusions extended
Chamber of the Supreme administrative court, which in its decision of 3 4. 2012 ref. no. 8 As
6 / 2011-120 concluded that: "guidelines obligations of individuals
people undergo vaccination provided for in § 46 of the Act on the protection of the public

Health and its refinement in Decree no. 537/2006 Coll.
comply with constitutional requirements ... "[see. eg. resolution file. Ref. II. US
2873/12 dated 13. 12. 2012 (available on http://nalus.usoud.cz) or
Decision Ref. No.. III. ÚS 449/06 dated 3 2. 2011 (N 10/60 SbNU 97)].

29th to the above, the government merely adds that vaccination calendar ,
embodied in the above-mentioned decree, based on the recommendations of the World health organization
and aim to optimize the schemes and
spacing between vaccinations. However, the government emphasizes that
vaccination calendar is not an unchangeable dogma, which follows
from gradual changes in the Decree on vaccination against infectious diseases.
while changes are based on recommendations of the World health organization
based on the results of epidemiological vigilance (surveillance), assessing the impact of age
persons vaccinated and the number of doses to current the ability of the formation of protective antibodies
taking into account the fact that different types of vaccines require different
schemes, some of the vaccine can be administered concomitantly, among other is
necessary distance. For this reason, it seems necessary to retain the possibility
flexibly respond to changes, a law issued in the form of a decree allows
.

30th The objections of the petitioner that the decree in some cases even down
vaccine, which is to be fixed, regular vaccinations
done, then the government points out that the proposer in its proposal
states that it has not been vaccinated against measles, rubella and mumps and
been vaccinated against hepatitis B. the fact that the petitioner was not
vaccinated against hepatitis B, it is clear that not undergo routine immunization
hexavalent vaccine, as foreseen in § 4
Decree no. 537/2006 Coll., but its regular vaccination took place
meaning of § 47 para. 1 second sentence of the Act on public health protection.
This provision allows that a regular vaccination has been changed
registered vaccine than for which, the Ministry of Health
antigenic composition procedure according to § 80 paragraph. 1 point. e)
same Act. Thus, this procedure law provides for a procedure
petitioner, respectively. his legal representatives would not with him conflicting
if the applicant would be subjected to an individual vaccination plan and
vaccination against hepatitis B, as set out in § 4 of Decree no. 537/2006 Coll
.

31st In connection with the above, the Government also notes that
petitioner alleged lack of obligations for workers
nursery schools demonstrating their vaccination status considers unnecessary, since these workers either
infections that are preventable by vaccination, already
They experienced and are immune against them or been vaccinated against them.
Comment on other than legal conclusions of the applicant to address
Ministry of Health and the National Immunization Committee, then the government considers
unfounded, since, as stated above, vaccination (not only) children are governed
specialized scientific knowledge.

32nd Government considers that the petitioner, respectively. his guardians completely disproportionate
place the interests of your child's own interest above other
children and seek to provide public services (admission to nursery schools
), without being willing to legitimate conditions of providing such services
subdue. The state, however in this case can not allow individuals
interest outweighs the interests of other children. All the children
accepted into kindergarten are applying the same requirements set out in §
50 of the Act on public health protection and for this reason would be totally absurd
requirement for the applicant to directors when taking children to kindergarten
individually assess what kinds of vaccinations or
will not require admission. Besides, it is then necessary to point out that
Parents may choose an alternative route and take care of the child
other ways than using the services kindergarten established under the Education Act
.

33rd At the conclusion of its statement, the government is convinced that
petitioner contested legislation is constitutional and that the eventual abolition
petitioner contested provisions of the legislation would lead to a significant negative
breakthrough in legislation to protect public health, and
at a time when, thanks to the activities of opponents of vaccination decreases not only in the Czech Republic
, but also in the world of immunization coverage and increasing prevalence of previously effectively

Vaccination controlled infectious diseases, such as pertussis or
measles. If broken herd immunity, children of
law predicted the reasons were not vaccinated, or who have not developed
sufficient immunity after vaccination, are not protected, which may gradually
a negative impact not only in the spread of infectious diseases in population but
and treatment costs of persons to safeguard prevention.
The Government also recalls that when assessing the issue of compulsory vaccination and
its legal consequences must be taken into account individual rights and freedoms of others
- all while does not neglect the fact that there is a group of people
which vaccination can undergo permanent contraindication,
as well as the fact that neither the vaccine does not provide 100% immunity to infection, and
therefore can not assume that the vaccinated children do not pose any unvaccinated children
risk. In light of the foregoing, the Government considers that
Constitutional Court should petition under file. Nos. Pl. US 16/14 refuse
or completely rejected.

34th Ombudsman memorandum dated 11. 7. 2014
Constitutional Court announced that it will exercise its right to intervene.
In its statement dated 19. 8. 2014 stated that the purpose of kindergarten is not just
babysitting and taking care of them, but also their education.
It is a component of the right to education, not (only) a social service, it follows
directly from the fact that education in kindergartens speaks
Education Act, a law that, within the meaning of Article. 41 (para. 1) of the Charter
right to education is carried out. A public authority, respectively.
Decision which is the subject of a formal constitutional complaint and that
based on the contested provisions of the Act is therefore affected the fundamental right to education
complainant pursuant to Art. 33 Sec. 1 of the Charter, in combination with the basic
freedom from discrimination, within the meaning of Article. 3. 1 of the Charter without distinction
another position here, specifically resting in health
state. Under such circumstances, the constitutional order does not
definition of law enforcement (restriction of rights) Act and any interference with this
rights must be subject to a rigorous assessment of reasonableness.

35th According to the Education Act, education is based inter alia on the principle
equal access without discrimination because of race, color,
sex, language, faith and religion, nationality, ethnic or
social origin, property, birth or health condition or other
position.

36th For access to education and the provision would not be ruled out
child that their health status can not be subjected
regular vaccinations. Such a situation in a way, just remember
§ 50 of the Act on public health protection. A child who can not undergo vaccination
permanent contraindication, would be an educational establishment
should come with certainty that it will not endanger his health.
The contested provisions therefore a child with a permanent contraindication virtually
ensure equal access to education (in the opposite case could be
access to education excluded). It seems, however, that the legislation would
ensure the protection of these children also because it would impose mandatory vaccination
well as staff training facilities.

37th The provisions of § 50 of the Law on protection of public health but at the same time
prevent access to education and provide children with temporary
contraindications, because without exception does not permit their admission to pre-primary education
. The provisions in effect extends to the entire spectrum
fundamental rights of the child. In addition, the rights to which the complainant
also creates unequal status of children with permanent contraindications and children, who
temporary contraindications (such summary contraindications) also
impossible "due time" to undergo mandatory vaccination. The provisions of § 50
in connection with § 46 of the Act on public health protection therefore can not stand so.
Proportionality test, namely the test of necessity.
Considers to become the obligation to undergo vaccination actually be so
important to protect public health, should fulfill its
enforced by designated funds, ie primarily (in the worst case
- after a fruitless negotiation) imposition of penalties for the offense.

38th Instead of actually enforcing obligations (the exceptions mentioned
) However, the state practically abusing optically legitimate objective,

Because it is actually trying to achieve through other "sanctions"
chasing parents is unsuited to (partially)
unvaccinated child to school facilities. The child then takes hostage as a result
punishes a child by denying them access to education, without assessing the actual
risk to other children in particular
preschool facilities and most importantly without exception - regardless other reasons preventing
child complete vaccinations before entering preschool facility
(including a combination of temporary contraindications). In this context
highlight the unequal status of children with permanent contraindications and children, who
temporary contraindications (such summary contraindications) also
impossible "due time" to undergo mandatory vaccination. An example of a public protector of rights
lists the cases of autistic children, where the
after vaccination against mumps, measles and rubella experienced serious complications.
In practice, there may be various contraindications which materially responsible
permanent contraindications, but not so marked, therefore
not constitute an exemption from mandatory vaccinations.

39th Hardened target for the protection of other children in particular
preschool facility will not stand in the event that all other children
vaccinated (if unvaccinated child is in principle not to compromise, even if
perhaps infected itself). The alleged targets can lead even
vaccination against a disease whose transmission among children in preschool facilities in the Czech Republic
out of the question (eg. Tetanus, hepatitis B, polio
). The idea that it is in fact another penalty (complication)
for parents, also supports that the strict conditions required for
admission to pre-school education no longer exist once the child is covered
compulsory education.

40th Means to achieve the declared objective, the public protector of rights
manifestly excessive (disproportionate and unnecessary) and because
that vaccination is a means of purely preventive protection virtually exclusive
already very existence of a (real) danger to others
( unvaccinated) children in preschool facilities. Exorbitancy means
(total exclusion of fully vaccinated children) stand out in comparison with
preventive measures taken by neighboring countries. They temporarily restrict access
sick and unvaccinated children in educational establishments until
time of occurrence of the disease, after the usual incubation period
disease. Fulfilling the first objective (public health
high coverage of vaccination) then these states support voluntary vaccination
printed in the form of reimbursement for vaccinations from the health insurance system.

41st Test results to minimize interference with fundamental rights as
investigation of the nature and the limited fundamental rights (command
optimization) arise by Ombudsman largely from
considerations made for the purposes of the test of necessity. While rated
provision affects the very essence of the right to education (bezvýjimečným
exclusion from education), it is not met virtually unable to
directly affecting the rights of other health. To the extent
so. Weighing formula Ombudsman emphasized that the application of the provisions under review
not lead to an interference with the right to education.
Any preference for the right to health can affect other
also to other fundamental rights of children (especially his right to
personal integrity, health and respect for private and family life
).

42nd In line with the Complainant then Ombudsman considers that
contested provisions nor the provisions of § 46 of the Law on Protection of Public Health
fail to request the legal basis for possible restrictions
fundamental right under Art. 4 paragraph. 2 of the Charter.
Legislature had failed to identify either the essential parameters of mandatory vaccinations (not set limits
mandate), and apparently so on executive power delegated store
primary duties. Subordinate then finish alone, without any basis in law, identified
defining features of compulsory vaccination.

43rd Finally, his expression Ombudsman with regard to the above-mentioned
stated that § 50 (in conjunction with § 46) of the Act on the Protection
public health affecting the right to education under Art. 33 paragraph. 1
Charter in conjunction with interference in the freedom from discrimination, within the meaning

Art. 3. 1 of the Charter can not stand the test of proportionality nor the requirement
legal basis for a possible restriction on a fundamental right under Art. 4 paragraph.
2 of the Charter, and proposed that the Constitutional Court annul § 50 of the Act on the Protection of the public
health.

44th Constitutional Court was also delivered on 28. 8. 2014 submission of amicus curiae brief from
MD. Jana Vavrečka, Ph.D., as chairman of the civic association
Unicampus Association, which is dedicated to the protection of the collective interests and rights of consumers
. In this statement was mainly addressed to
(Constitutional Court Not sent him) the above statement of government. In
statement it indicated that the actual physical separation and segregation
unvaccinated children from children's teams brings no benefit to anyone
. Own separation effects can not be justified by any medical or health
need for such a condition. It stands completely against the protection of public health and
against the theory of herd immunity to create physical separation
unvaccinated children their numerous unprotected groups or communities
population.

45th Physical separation of unvaccinated children from children's teams, according to the statement
protect children vaccinated, since those such protection at all
need, and even children not vaccinated, since those before proočkovanými
teams need to protect. Although it is true that the more the population
protected individuals, the stronger collective immunity, increasing
herd immunity, however, serves to benefit the ever-shrinking number of individuals
. It is therefore irrational want to achieve antibody protection
all individuals in order to maximize the collective immunity. If
herd immunity of the population has served entirely negligible number
individuals itself is quite negligible, although it is very strong.
Rational objective of protecting public health is the "optimum
collective immunity '.

46th Another amicus curiae brief was delivered to Judge Rapporteur on 1
6th 2014 by prof. MD. Jan Janda, PhD., President of the Section vaccination
Czech Pediatric Society, which states that a child
vaccinated against measles, rubella and mumps, which gets some of these diseases
outside the collective kindergarten, can infect children in group
kindergarten. Disease unvaccinated child entered into the collective
kindergarten may rezultovat in transmission of infection to children who
vaccination was of serious medical indication is delayed, or if
where the child was vaccinated, but a different, albeit rare reasons, none
anticipated immunity. Threats to staff of kindergarten when it comes to
adults, it is theoretically possible, but highly unlikely.
Staff was in the past, in most cases, vaccinated, respectively.
Re-vaccinated in childhood, the risk is minimal, but exclude
not. It would be done in a laboratory for testing the level
protective antibodies against that disease. This is commonly performed.

47th Unvaccinated child included in the collective kindergarten are exposed
risk of infection, measles, rubella and mumps. This infection can get
either from another unvaccinated child that inclusion in the team
kindergarten or the child gets vaccinated, but where none
predicted immunity and infection gets out of nursery school and keep them there || | clogged. Regarding the risk of disease hepatitis B, pediatricians are
repeatedly encounter cases where public spaces outside the buildings
are found discarded used hypodermic needles used before
individuals addicted to drugs (eg. In sandpits where children play).
A needle injury is associated with a clear risk of contracting hepatitis B. In general
It may be added that the recommendation to vaccinate children in infancy
is supported by the fact that infection with hepatitis B in infancy
it is associated with a significantly higher risk of serious illness in the course
compared with infections acquired later in life.

48th Parents vaccinate their decision may endanger the health and lives of not only
on their own, but the other children. So here we go on the principle of solidarity
. In the interest of public health should outweigh
belief that the risk of side effects of vaccination are absolutely incomparable with
risk, which falls in the population called. Vaccination coverage.

IV.
Petitioners


49th The petitioner, in its reply to the observations of the parties and

Interveners in particular that, in almost all
coincides with the opinion of the public protector of rights in this case. On the contrary
arguments and allegations of government is not the same, and it states that the blanket
State and paid to recommended vaccinations, although in line with the recommendations
World Health Organization, however, recommended that mandatory vaccination
. It also states that adequate immunization coverage, and therefore collective
immunity is ensured in the system of compulsory vaccination scheme and the state paid
voluntary vaccination. Although in countries with
voluntary individual vaccination approach of coverage
slightly lower, is still very high. The government is not able
According to the petitioner provide the basic assumptions that at least ordering mandatory vaccinations
was legitimate, therefore, to substantiate the medical necessity
credible studies and the authority, which vaccination policy forms, was
credible, balanced no conflicts of interest and acted in the interest of children.

50th Arguments government, according to the petitioner
sided and manipulative as it brings only benefits and risks of vaccination
completely conceals. For each mandatory vaccination illness and to each disease against which the state
vaccination is recommended and paid for, should be prepared
comprehensive analysis to evaluate both the benefits and risks as well as possible models
vaccines and their effectiveness and frugality, and from which it emerges that the
mandatory vaccinations medically necessary.

51st In the case of 100% coverage with other children in the kindergarten lacking
According to the petitioner only reason to exclude unvaccinated child, because it does not
who become infected and threaten. The State also does not examine whether it is well inoculated
nursery staff, even if it was in the past, so each vaccine has only limited time
efficiency. On the Government's assertion that the legal representatives of a minor
totally disproportionate place the interests of your child's interest
other children, the petitioner states that each parent is a priority
interest of his own child and even those parents who have a child completely || | inoculated in accordance with the official vaccination calendar, and certainly does not
because it superior to the public interest above the interest of their child, but
because they are convinced that vaccination is the extent of
interest of the child itself.

52nd At the end of its reply, the petitioner reiterates that asks the Constitutional Court to rule on
annulment of § 50 of the Act on Public Health Protection and
§ 34 para. 5 of the Education Act.

V.

Waiving hearing

53rd After the above sums up the proceedings, the Constitutional Court
conclusion that it is not necessary in the matter, hold hearings, as it would bring more
respectively. better and clearer clarification of the case than met her
of written tasks petitioner, parties and interveners
management. With regard to the wording of § 44 of the Law on the Constitutional Court, the Constitutional Court
without holding a hearing.

VI.
Wording of the contested provisions


54th The contested provision of § 34 para. 5 of the Education Act reads:

"When taking children to pre-school education is necessary to comply with the conditions laid down
special legislation."

55th The contested § 50 of the Act on public health protection follows:

"Care facilities for children under 3 years of age in day mode or
preschool facility can only accept a child who has undergone
established regular vaccination, a document that is immune against infection or
vaccination can undergo permanent contraindication. "

VII.

Assessment of the locus standi of the petitioner to submit a proposal

56th As mentioned above, the petitioner filed a petition to cancel
cited provisions together with a constitutional complaint under § 72
following the Constitutional Court Act. Its locus is thus
relies on § 64 para. 1 point. e), respectively. § 74 of the Law on the Constitutional Court
. In accordance with these provisions, the Constitutional Court had initially
examine whether the conditions for the submission of such a proposal if
complainants (the petitioner) are met.

57th The basic prerequisite for filing a proposal under § 74 of the Law on the Constitutional Court is
"application" under the legislation. This means that only
up based on the application of the rule (actually ensuing
) is a decision, measure or another intervention by

Public authority, which is the subject of a constitutional complaint, which was reflected in
individual legal sphere complainant negatively, ie.
Violation of his constitutionally guaranteed fundamental rights and freedoms.
Between the constitutional complaint by the contested decision or another intervention of a public authority
provisions and legislation designed to abolish
there must be a close relationship in the sense that, without the contested provision
legal regulation would not be issued nor contested a decision made or other
public authority intervention.

'58. In the particular case, with respect to the subject matter of the dispute - in which
petitioner seeks annulment of the Director of the kindergarten, on the basis of which
been admitted to kindergarten for non-compliance §
50 of the Act on the Protection of public health - yet leads to the application of § 50
law on the protection of public health only partially.

59th In line with these conclusions, the Constitutional Court
undergo substantive examination only part of the contested provisions of § 50 of the Act on the Protection
Public Health, which states that: "The pre-school facilities can accept
only child who has undergone established regular vaccination has
document that is immune against infection or vaccination can not be subjected to permanent contraindication
". Only in this part of the proposal is the fact
by the Constitutional Court in § 74 of the Constitutional Court
active standing of the petitioner can be derived.

60th Conversely, in part, the petitioner, at least formally, in his statement of claim
design militates against the rest of the contested § 50 of the Act on Public Health Protection
providing cited condition for admission
child into the "device that provides child care under 3 years of age in a daily regime
"rejects the proposal, as it is filed by the
manifestly unfair.

61st Under the proposal for repeal of the provisions of § 34 para. 5 of the Education Act
then no locus standi of the petitioner to its submission
filled or partially. The contested provision of § 34 para. 5 of the Education Act imposes
cases for admission of children to pre-school education
obligation to comply with the conditions laid down by special legislation, and
determined only the general principle that there is a special law precedence
before the general law (lex specialis derogat legi generali). From this
principle that if fulfilled the conditions for the use of special
legislation must apply to this arrangement and can not use the editing
general. It can therefore agree with the contention of the Senate, contained in his statement
that the interpretative rule contained in § 34 para. 5
Education Act applied even in the absence of this provision.
Contested decision not to admit the petitioner to kindergarten would therefore
was released and not to § 34 para. 5 of the Education Act.

62nd Therefore, the Constitutional Court concluded that the petitioner in relation to
contested provisions of § 34 para. 5 of the Education Act is not authorized
petitioner, and not so in this part of the draft conditions
his locus standi in the proceedings control standards.

VIII.

Constitutionality of the legislative process

63rd According to § 68 para. 2 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
Act no. 48/2002 Coll., The Constitutional Court - in addition to assessing compliance
content of the contested law with constitutional acts - whether
law was adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
.

64th Given that the petitioner did not defect
legislative process exceeded its constitutionally provided competence of the legislature, not
with the principles of procedural economy required this issue in detail and
sufficient, besides taking into account the statements submitted by the Chamber
Deputies and the Senate, formal verification during the legislative process
of publicly available information on http://www.psp.cz.

65th The bill no. 258/2000 Coll., On protection of public health and amending certain related laws
containing the contested § 50
Deputies duly approved at its meeting on 25. 5.
2000 (Resolution no. 1020). The Senate returned the proposal with amendments
Deputies, which it adopted at its meeting on 14. 7.
2000 (Resolution no. 1160). President of the Republic adopted Act signed on
26th 7th, 2000. Following the signature of the Prime Minister of the Act was promulgated in the Collection of Laws in part
74 under No. 258/2000 Coll.


66th The contested § 50 of the Act on public health protection
was therefore adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
.

IX.

Legal assessment of the Constitutional Court

67th The contested § 50 of the Act on public health protection
down as a condition for admission of a child to a preschool facility submission
established regular vaccination, unless the child has proof that it is immune against infection
or unable to undergo vaccination for permanent
contraindication.

68th Regular vaccinations, to which the contested provisions of § 50 of
protection of public health as described above refers
is regulated in § 46 para. 1 of the Act on public health protection so that this provision
designated individuals are obliged to undergo in the implementing regulation
treated cases and deadlines set
kind of routine vaccinations.
Implementing the present regulation is in accordance with § 108 paragraph. 1 of the Act on Public Health Protection
Decree of the Ministry of Health.

69th Petitioner to its claim of unconstitutionality of § 50 of the Act on Public Health Protection
states in its proposal that it restrict its
fundamental right to education, but also the right to informed consent
respectively. inviolability of the person and his or her physical integrity and privacy rights
freely manifest his religion or belief and parental rights
not the law, but defining the scope of the obligation to be vaccinated
is left to the decree, which is the sphere of protection of fundamental rights and freedoms
under the authority of the executive power, which for such powers is not authorized.
A similar objection unfulfilled demands a legal basis for a possible limitation of fundamental rights
states in its statement it also
public protector of rights.

70th The Constitutional Court considers it essential that the provisions of § 50 of
protect public health, the condition of subjection to set
regular vaccination without introducing the specific content of this condition
Limited or further adjust what form to be determined.
Above is regulated in § 46 of the Act on public health protection, which
§ 50 of the Act on public health protection in this direction continues.

71st The Constitutional Court in its settled case underlines allegiance verdict
design, not its reasoning, ie. The arguments that the petitioner
states. Therefore, while assessing the proposal from other angles
constitutionality of protection than those listed in the preamble of the proposal, but can not decide
repeal of other provisions that are in
judgment in the petition stated. The exception to that is a situation where as a result of the abolition of certain statutory provisions
derogative judgment of the Constitutional Court
provisions other content on the previous dependent, losing
rational sense, ie. Losing the merits of its normative existence, thereby | || was given no reason for annulling this statutory provision, without
was a step ultra petita. The validity of that provision expires
is based on the principle cessante ratione legis CESS lex ipsa,
repeal by the Constitutional Court has therefore only registration,
technical nature [cf.. eg. Finding sp. Nos. Pl. US 59/2000 of 20
6th 2001 (N 90/22 SbNU 249; 278/2001 Coll.)].

72nd The proposal under consideration, however, with regard to the above such case
not. The provisions of § 46 of the Act on public health protection - against whom objections
nature of the petitioner, although associated with the contested provision,
in fact directed, and that without its abolition was a proposal
required - it is not a provision that would only
legislatively-engineered for the provision whose annulment is sought,
followed up. The situation is somewhat reversed, because it's just
contested § 50 of the Act on Public Health Protection, respectively. it
foreseeable conditions of submission provided vaccinations for admission to
preschool facilities, the implementation of which would be without the existence of § 46 of the
protection of public health can not in practice be required. But if
Constitutional Court examined in light of the objections the petitioner in connection with
contested provision also § 46 of the law on public health protection
would be a step ultra petita.

73rd In light of the above, therefore, that under § 50 of the Act on the Protection
Public Health regulates the conditions laid down by regular submission

Vaccine without itself regulate, how to be a regular vaccination
established Constitutional Court can objection concerns a breach of the law
in connection with this provision affirmed.

74th Referring to constitutional interpretation, which has priority over
repeal the law or parts of it, the Constitutional Court, therefore, concludes that § 50
Act on Public Health Protection Act does not infringe reservation,
as it means that not even nor ruled that the obligation
submission regular vaccination was determined solely by law.
Adjusts itself having to undergo vaccination, which
contested provision refers only its content, is § 46 of the Act on the Protection
public health, in conjunction with § 108 paragraph. 1 of the Act on the Protection of the public
health authorizes the Ministry of health to issue a relevant decree
. The objection concerns a breach of the law may therefore have
constitutional relevance to the context of the latter cited
provisions of the Act.

75th The petitioner in his prayer for relief proposal, which the Constitutional Court is bound, however
next to § 34 para. 5 of the Education Act, whose repeal is not actively legitimized
, only militates against § 50 of the Act on public health protection.
Why the Constitutional Court on the basis of the above proposal found in the part
which concerns alleged violations of the Act to the provisions of § 50 of
protection of public health, as manifestly unfounded.

76th Above and beyond that, the Constitutional Court adds that the issue
meet the requirement of a legal basis in connection with § 46 of the Act on the protection of public health
already addressed, in the case file. Nos. Pl. US 19/14,
and concluded that: "The text of § 46 of the Act on the Protection
public health is sufficiently clear and comprehensible and derive from it
reliable basic attributes and limitations of compulsory vaccination law | || against infectious diseases. the authorization, which is the statutory framework provided
implementing decree to regulate the details associated with the implementation of mandatory vaccination
uses bylaws within limits without hitting
to the elements contained in essential aspects in the law.
There was therefore legislative intervention in the guarantees provided by the holders
fundamental rights and freedoms in Art. 4, paragraph. 1 and 2 of the Charter "(judgment of 27
1st 2015 sp. No. . Pl. US 19/14).

77th Regarding the objections of the applicant and the public protector of rights
pointing to the fact that vaccination conditions for access to early childhood education
contained in § 50 of the Act on public health protection interferes
right to an education, the right not to be discriminated against
and that will not stand the test of proportionality, the Constitutional court notes that according
with what is above (the judgment in the petition), the Constitutional court did not examine the constitutionality
contents statutory obligation to undergo specified kind
routine vaccinations, in the cases and terms modified
implementing legislation, both at the level of law (the provisions of § 46 of the
protection of public health) and even at the level of secondary legislation (Decree
Ministry of health no. 537 / 2006 Coll., on vaccination against infectious diseases
).

78th In keeping with such a defined review process which is the subject of the above-mentioned reasons, only
actual wording of the provisions of § 50 of
protection of public health setting condition for admission of a child to preschool
device, it is necessary to answer the question whether care
in preschool facility falls under the Charter protected right to basic education
, the violation of the complainant and the Ombudsman object.

79th Article. 33 of the Charter, namely the right to education guaranteed
does not, what is the extent of "education" that especially in the first sentence of the first paragraph of his
covers. The Education Act, which is one of
laws implementing this provision, in Section 1 defines its subject
adjustments so that: "This Act governs the preschool, elementary, middle
, postsecondary education and some other in schools and school facilities
lays down the conditions under which education and training (hereinafter referred
education ') takes place, define the rights and obligations of natural and legal persons
in education and determines the responsibilities of bodies
state administration and self-government in education. "

80th According to the explanatory memorandum to § 1 of the Education Act for purposes of this

Act, the term "education" in Article. 33 of the Charter
understood as 'education' within the meaning of the process and the "education" within the meaning of the result, ie.
Successful completion of this process usually topped by reaching grade education
.

81st The provisions of § 2 para. 2 of the Education Act then defines the general objectives
education, respectively. education under the cited § 1
Education Act, as when one of these goals, for example. under a)
stated "the development of the human personality, which will be equipped with cognitive and social competencies
, moral and spiritual values ​​for personal and
civic life, profession or work, getting
information and learning throughout life. "

82nd The provisions of § 33 of the Education Act sets out the objectives of preschool education
that: "Pre-school education promotes personal development
preschool child participates in the healthy emotional, intellectual and physical development
and on mastering basic rules of conduct,
basic values ​​and interpersonal relationships.
Pre-school education creates the basic prerequisites for continuing education.
Early childhood education helps to remove inequalities
development of children before entering primary education and provides special educational care for children
with special educational needs. "

83rd In light of the above, and with regard to the case
European Court of Human Rights ( "ECHR"), which
expressed that Article. 2 of the Additional Protocol to the European Convention
guaranteeing that no one shall be denied the right to education
applies to all types and levels of education provided within a Contracting State
(cf. judgment of the European court of human rights in the case of Leyla Zahin
against Turkey on 10 11 . 2005 no. 44774/98, § 134), the Constitutional court
concluded that there is no reason to pre-school education as a process leading to the acquisition
set of skills, attitudes and knowledge, and not merely as
care children and babysitting excluded from the scope of the right to education
under Article. 33 of the Charter (cf. Katz, P. education Act:
comment. Praha: Wolters Kluwer, 2009).

84th The right to education contained in chapter four of the Charter, belongs to the so-called.
Social rights. Article. 41 paragraph. 1 of the Charter and the very nature of social
law precludes review of their methodology was identical
with the methodology used in relation to the "classic" fundamental rights
(mainly contained in Chapter Two of the Charter) as "strict" test
proportionality, the application of which in turn significantly reduces
discretion of the legislature in adopting the law intended to regulate
under examination area of ​​social relations. With regard to the provisions of Article.
4 par. 4, however, the legislator is not (resp.
From a constitutional point of view can not be) nor in the regulation of social and economic rights
completely unrestricted and may be subject to review by the Constitutional Court .

85th On the basis of concocted Constitutional Court in its judgment dated
24th 4. 2012 sp. Nos. Pl. US 54/10 (N 84/65 SbNU 121; 186/2012 Coll.)
As a methodological tool to examine interference by the legislature in
constitutionally guaranteed social rights called. Reasonableness test.
This test reflects both the need to respect the relatively extensive discretion
legislator, and the need to avoid its possible excesses and consists of four
following steps: 1. Defining the meaning and essence of social
law, so its essential content . 2. Evaluation whether the statute
affect the very existence of social rights or the actual implementation
its essential content. 3. Assessment of whether the statutory framework
pursues a legitimate aim; So that is not arbitrary substantial reduction in the overall
basic rights. Fourth, the question of legal
means used to achieve it is rational (rational), though not necessarily
best, the best, most efficient and wisest.

86th The first step in the review of this test is to define the meaning and essence
social justice in the case at hand the right to education in
under Art. 33 of the Charter.

87th As mentioned above, with the right to education is possible under Art. 41
paragraph. 1 of the Charter assert this right only within the law.
Provisions of Article. Charter 33 is thus primarily issued legislators to
is filled with specific content. From basic rights contained in particular

Second head of the Charter right to education differs in that it does not exist as a priori unlimited
fundamental right that could possibly legislature
restricted for reasons foreseen in the Charter, but it is the contrary, the legislature itself
that gives relevant content and scope. Although the legislature has relatively wide
available for a specific definition of the content and method
implementation of this article is bound by constitutional maxims, the main
in this sense Art. 4 par. 4 [see. Finding sp. Nos. Pl.
US 38/04 dated 20. 6. 2006 (N 125/41 SbNU 551; 409/2006 Coll.)
Related to Art. 26 of the Charter, or finding sp. Nos. Pl. US 35/93 of
15th 2nd, 1994 (N 7/1 SbNU 51; 49/1994 Coll.), Relating to Article. 33 paragraph.
2 of the Charter].

88th However, neither mentioned the relative freedom of the legislature under Article.
41 paragraph. 1 of the Charter can lead to a statute violated
essence and meaning of Art. 33 of the Charter. The nature of the right to education, however
Constitutional Court in its previous jurisprudence noted that "
its conceptual character itself is vague, because this just generally formulated
law is linked to numerous social aspects and purposes, and it often
different social quality and social impact.
tendency to move any of these aspects and purposes in planes eligible for breach
this right, in the opinion of the Constitutional court was competent, well
as in many similar cases, trigger a variety
socially dysfunctional and undesirable effects "[judgment file. Nos. Pl. US 32/95 of
third 4th 1996 (N 26/5 SbNU 215; 112/1996 Coll.)].

89th Intervention into the very core of the right to education is something so exceptional
and it may occur only in cases of obvious excesses. That this could happen
eg. In a situation when you should by regulation generally
unacceptable (eg. A discriminatory) consequences or would not meet the requirements
legal residents are generally placed on the legislation (Resolution of 5th
1st 2011 sp. Ref. II. ÚS 2446/10).

90th In the second step of the test, the Constitutional Court assesses whether the challenged statutory regulation
deny the very existence, essence or meaning
constitutionally guaranteed social rights. As mentioned above, the provisions of Article
. 41 paragraph. 1 of the Charter is considering. Article 4, paragraph. 4
Charter can not itself be interpreted as allowing through statutory regulation
constitutional guarantee of completely negating; otherwise,
constitutional regulation of social rights devoid of any practical meaning. To
unconstitutional act consisting in violation of the nature and meaning of the right to education
But in this case occurred.

91st The contested § 50 of the Act on Public Health Protection
provides for the adoption of a child in a preschool facility condition, namely the obligation
submission established regular vaccination.
Exception when adopting a child for preschool facility does not meet those conditions
required under the contested provision are cases where the child has
document that is immune against infection or unable to undergo vaccination
permanent contraindication.

92nd Cited legislation represents the view of the case law of the European Court of Human
rights necessary preventive measures to ensure that, in connection with the subject
condition for admission of a child to a preschool facility will not
medical intervention in the form of vaccination to the detriment of the child in || | extent which would disturb the balance between his physical integrity and
public interest in protecting the health of the population (see ECtHR
Solomachin things against Ukraine on 15 3. 2012, no. 24429/03 complaints
, § 36, available on the internet database HUDOC -
http: //hudoc.echr.coe.int).

93rd Ombudsman in its statement argues that the contested provisions in that
exemption from the condition creates an unequal position
children with permanent contraindications and children who have temporary contraindications
also unable to undergo mandatory vaccination, with reference to
cases contraindications which materially responsible
permanent contraindications, but are not labeled as such, and therefore do not
exemption from compulsory vaccination, which is ultimately discriminatory.

94th The provisions of § 46 para. 2 of the Act on Protection of Public Health states that
"before performing regular and special vaccination
is a natural person shall be obliged to undergo in the cases covered by the implementing legal

Examination regulations state immunity (resistance). Regular and special
vaccination is not carried out upon detection of immunity to infection or determine
medical condition that prevents the administration of the vaccine (permanent
contraindications). These facts
medical service provider issues the natural person and confirm the reason for abandoning vaccination
entered in the medical documentation. "From the cited provision thus follows that use
legislative shortcut" permanent contraindications' in the contested provision || | meant when it is detected such a child's health condition, which prevents
administration of the vaccine.

95th the Constitutional court refers to the previously cited judgment of
27th 1st 2015 sp . Nos. Pl. US 19/14, which requires the Institute
vaccine obligations, such as limitation of fundamental rights, accompanied by the
legal safeguards that would minimize the abuse and prevent
medical procedure if it there are no conditions for its implementation.
Constitutional court in relation to that cited in the judgment, stated that without
intends to intervene in the technical aspects of implementing the vaccination
deemed such a guarantee precisely the legal framework contained in § 46 paragraph .
2 and 3 of the Law on protection of public health.

96th The Constitutional Court here again points out that the basic
argumentative methods of procedure of the Constitutional Court in proceedings to review norms
priorities include the principle of constitutional interpretation over derogation,
according to which in a situation where a legislative provision allows
two different interpretations, one is in accordance with the constitutional
and the other is inconsistent with it, there is no reason to repeal this provision.
When applying the legislation in question is then the responsibility of all the executors
public authorities to interpret it in a constitutional manner.
This method is based on the principle of separation of powers and the related principle of restraint, ie
. the principle according to which, if it can be achieved to ensure the constitutionality
alternative means, the Constitutional Court elects one who
legislative power to the smallest extent [eg. Finding sp. Nos. Pl. US 5/96 of 8
10th, 1996 (N 98/6 SbNU 203; 286/1996 Coll.), Sp. Nos. Pl. US 19/98 of 3. 2.
1999 (N 19/13 SbNU 131; 38/1999 Coll.), Sp. Nos. Pl. US 15/98 of 31
third 1999 (N 48/13 SbNU 341; 83/1999 Coll.), Finding sp. Nos. Pl. US 4/99 on the
16. 6. 1999 (N 93/14 SbNU 263; 192/1999 Coll.), Sp. Nos. Pl. US 10/99
dated 27. 10. 1999 (N 150/16 SbNU 115; 290/1999 Coll.), Sp. Nos. Pl. US
41/02 of 28. 1. 2004 (N 10/32 SbNU 61; 98/2004 Coll.) Resolution file.
Brand. Pl. US 92/06 of 3. 4. 2007].

97th The Constitutional Court therefore finds that the interpretation under § 50
law on public health protection, respectively. when assessing the fulfillment of the conditions
permanent contraindications for exemption of submission
mandatory vaccinations for admission to pre-school, care must be taken
to make here avoid creating inequalities among children, which in the long term prevent
their health administration of the respective vaccines
(the material aspect), regardless of whether a term
"permanent contraindications" specifically (formally) in the relevant
confirmation healthcare providers. Said constitutionally consistent interpretation
while the wording of the contested provision would not exclude.

98th The contested provision, introducing vaccination as a condition for admission
child to preschool facility undoubtedly constitutes
considering the above, certain restrictions on the right to education, but not (even
regard to the law on public health protection for specified exemptions
from the obligation to meet this condition) on such intervention, which could all
unvaccinated children, without exception, prevented admission to preschool
device.

99th In the Constitutional Court also contested provision clearly
pursues a legitimate aim of protecting public health.
This follows the reasoning of the judgment of 3. 2. 2011 sp. Ref. III. US 449/06 (
see above), in which it is stated that "the compulsory vaccination in general
fully justified also in relation to other fundamental rights
complainant. The Constitutional Court recalls the opinion of the Committee
human rights and Biomedicine of the Council of the Czech Government human rights, according to which
vaccination is one of the most effective methods of health prevention
all, it is widely considered, along with the use of antibiotics for an extraordinary cause
decrease morbidity and mortality from infectious

Diseases and for the greatest benefit and the basis of modern medicine.
Essential part of preventive action is vaccination because of its widespread deployment
and a high level of vaccination coverage, which is a vaccination rate of about 90%
. Mandatory vaccination is thus in relation to the fundamental right of the complainant
freely manifest his religion or belief
permissible restrictions of this fundamental right, because it is obviously a measure in a democratic society
necessary to protect public safety, health and rights | || freedoms of others (art. 16 par. 4). "In the judgment of 27. 1. 2015
sp. Nos. Pl. US 19/14, the Constitutional court stated that" one of the recognized || | legitimate aims of protecting the health, with a mandatory vaccination not only
o principle blanket vaccination of persons ex lege, but also indirectly by
protect those individuals from infection transmitted diseases, which, for various reasons
been vaccinated " .

100th also, according to the jurisprudence of the ECHR monitors mandatory vaccination
legitimate aim of protecting public health (see ECtHR
Solomachin against Ukraine on 15 3. 2012, no. complaints 24429/03, §
35).

one hundred and first It remains to answer the question whether the contested provisions
to achieve this goal by rational means.
The limitation in the right to education is the Constitutional Court's eligible to go through the fourth
step reasonableness test.

102nd According to the Constitutional Court presents vaccination in general, as a means
immunization against selected diseases, social benefit
shared responsibility requiring members of society, that is an act of social solidarity
from those who are at risk, the current majority partner is acceptable
scientific knowledge, however minimal labeling that
protect the health of the entire society. Vaccination sufficient majority population
namely preventing the spread of infection selected diseases, thereby providing protection
not only those who were vaccinated. The higher the proportion of unvaccinated
vaccinated against the population, the higher the risk of a recurrence
contagion, not only among those who voluntarily refused
vaccination, but also among those who can not be vaccinated for serious ,
mainly health reasons. Finally, the distribution of the disease
threatened as the proportion of people who were vaccinated while, but vaccination
failed to reach their desired effect. In the present case, where the
vaccination requirement for admission of a child in kindergarten, are
those persons exposed to the risk of infection, especially children, who may
case of the disease face especially serious consequences.

103rd For these reasons, the submission may be considered vaccinating a child before his
admission to kindergarten as an act of social solidarity that
acquires its importance with the growing number of children vaccinated in these collectives
preschools. Conversely, as
social injustice could be seen on the cases, if certain
group of children admitted to pre-school refused without serious reasons
vaccination, and drew the advantages resulting from the success
vaccination, respectively. the willingness of other children attending preschool
equipment to wear it minimal risk of vaccination follows
(cf. RUBIN, B., Daniel; KASIMOW, Sophie. The problem of noncompliance vaccination
: public health goals and the limitations of tort law.
Michigan Law Review, vol. 107, no. 114, 2009).

104th Likewise also the opinion contained in the decision of the European Commission
Human Rights in the case Acmanne and others against Belgium, under which
human solidarity obliges individuals to be bowing to public
interest and endangering the health of their neighbors, even though his life is not in danger
(see the decision of the European Commission of human rights in the case
Acmanne and others against Belgium dated 10. 12. 1984, DR 40, p. 253).

105th It concluded that the determination of the conditions specified submission
vaccinations for admission to preschool facilities is not irrational or perhaps arbitrary
moreover leads and the fact that this kind of restriction on the right to education
can be found for example in France, where, according to the Act on public health
for a child's admission to any child devices (ie. i
preschool equipment) required to submit medical journal
or other documents describing the health situation of children with regard to

Mandatory vaccinations. In their absence are mandatory inoculations
made within three months of the child's admission to school (Art.
R-3111-17 of the Public Health).

106th Such an approach also corresponds to the content of the recommendations of the Parliamentary Assembly of the Council of Europe
1317 (1997) on vaccination in Europe, adopted on
19th 3, 1997, which calls on Member States, inter alia, to introduce
comprehensive public vaccination programs as the most effective means of prevention
against infectious diseases, thus ensuring a high degree
population immunization (available from http: // www.coe.int).

107th The Constitutional Court therefore concludes that the legal conditions for anchoring
undergo vaccination is provided in order to be accepted into the preschool child
device is an unconstitutional restriction on the right to education guaranteed
provisions of Article. 33 of the Charter. Rules contested passes the test of reasonableness,
because it does not interfere with the core of the right to education,
pursues a legitimate aim to achieve this chosen rational and not arbitrary
resources.

108th Based on the reasons stated above, the Constitutional Court for the annulment of §
50 of the Act on public health protection in the words "
preschool facility can only accept a child who has undergone set
regular vaccinations, evidence that is against infection immune or unable to undergo vaccination
permanent contraindication "and dismissed the remainder rejected it due to lack of
sue the petitioner [§ 43 para. 1
point. c) in conjunction with the provisions of § 43 para. 2 point. b)
Law on the Constitutional Court]. In demanding the repeal of the provisions of § 34 para. 5
Education Act proposal was also rejected due to lack of active
sue the petitioner.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, commented on the decision of the plenum
Judge Catherine Šimáčková.