In The Matter Of The Application For Revocation. § 33 Para. 11 Of The Act. No. 76/1959 Coll.

Original Language Title: ve věci návrhu na zrušení ust. § 33 odst. 11 zák. č. 76/1959 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=45355&nr=126~2F1997~20Sb.&ft=txt

126/1997.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 30 November. April 1997 in plenary on

Ing design. J. v., United with constitutional complaints, for annulment of the provisions of the

§ 33 para. 11 of the Act No. 76/1959 Coll., on certain service conditions

soldiers, as amended by Act No. 160/1995 Coll.



as follows:



The proposal is rejected.



Justification



(I).



Ing. J. v. filed on 1 May 2004. April 1996 to the Constitutional Court to begin

constitutional complaint against the decision of the Ministry of Defence No.

34/21-1495-44/2 of 9 June. February 1996, which adversely affected by its appeal

against the decision of the military social security of 10 March.

January 1996 to stop payment výsluhového allowance. At the same time with this

the appellant filed a constitutional complaint for annulment the provisions of § 33

paragraph. 11 of the Act No. 76/1959 Coll., on certain service conditions of soldiers,

as amended by Act No. 160/1995 Coll. in the grounds of the complaint the applicant

He stated that on 31 December 2007. in March 1994, he was released from service

a soldier of the occupation and the following day he was transferred to the advances on the basis of the

order of Minister of Defense of 17 May. February 1994. He was released pursuant to section 26

paragraph. 1 (b). (g)) of Act No. 76/1959 Coll., as amended, i.e.. According to the

the provisions that "for leaving a soldier by profession shall be released

the soldiers, for which there is no reduction of the armed forces or their

the reorganization of other status ". On the day of the release of service performed

in the armed forces in the duration of 22 years and 7 months, and in the backup was

released in the rank of Lieutenant Colonel. Given the above, meets the

conditions for výsluhový a contribution of 32% of the salary pursuant to § 33 para. 1

(a). c). the law. Military social security Office had

the basis of admitted výsluhový allowance of £ 4500 from 1. April

1994. At the same time he was in accordance with § 33 para. 4. the law, in the then

as amended, informed that if after having been granted výsluhového

contribution to the adoption to another employment than of a soldier by profession,

awarded the post belongs to continue and when overlapping with other revenue from

employment, do not truncate.



On 1 May 2004. July 1994 the applicant on the basis of their request and after

meet the statutory conditions admitted to leaving Member

Police of the Czech Republic in the rank of Lieutenant and was appointed

on the function of criminal service of the District Police Inspector of the Department

Police of the Czech Republic, Plzeň-sever. When you accept he was advised that the

due to the differences of the officers from leaving the service

a soldier of the occupation is not in accordance with Act No. 186/1992 Coll., on the staff

the proportion of members of the police of the Czech Republic, be granted to him reached

the rank of Lieutenant Colonel, and it is not possible to be counted performed

the service in the service of a soldier by profession. He was therefore appointed to

the basic rank of Lieutenant for personal assessment in 7. the grade

without experience in the 1. with the salary level upon completion of basic national

military service.



On 11 July. the appellant was notified that the 1995 Military authority

social security Amendment Act No. 76/1959 Coll. of

In addition of the provisions of § 33 para. 11. the law so that when the

admission to employment under any other laws the payout výsluhového

the contribution does not belong. NATO on 10. January 1996 received the decision about

stop payment of výsluhového contribution from the Military Office of the social

Security. Against this in the statutory period appealed, but appeal

It was dismissed and the contested decision confirmed.



The appellant later in the preamble stated that the výsluhový contribution as

certain compensation to the State for that without his fault was deprived of its

the profession, which has pursued for many years a most-productive age. To

The police of the Czech Republic because he was closest to his original

profession and the conditions were acceptable for him being provided

they will continue to receive the allowance, which he výsluhový as a salary

the difference. The claimant States that he is married, has three children and the only thanks

výsluhovému contribution was in the amount of salary for the police of the Czech Republic

able to financially secure your family's needs.



The complainant argues that he has chosen the new staff of the police of the Czech

for the validity of the statutory provisions, according to which výsluhový him

post still belonged. A new provision in section 33 para. 11 of law No.

76/1959 Coll. occurs-in the opinion of the complainant-in violation of the principle of

legal certainty and to unauthorized interference with his family and private

of life, as well as to its right to free choice of profession, according to the article. 26

paragraph. 1 of the Charter of fundamental rights and freedoms. This intervention sees in particular in

the fact that by stopping the payment of the contribution is getting výsluhového

family in a difficult economic situation, which forces the search for another,

financially more favourable to employment.



In the opinion of the applicant direct application of § 33 para. 11 of law No.

76/1959 Coll., as amended, was to issue a final

the decision, which is in conflict with the aforementioned constitutional rights, and

Therefore, the proposed repeal of the provision.



The Constitutional Court first examined whether the formal requirements are met

a constitutional complaint.



The appellant filed a constitutional complaint after his appeal against a

the decision of the military social security was not the Ministry of

Defense satisfied and this decision has been confirmed. Due to the fact that

It was the final decision of the supreme body of the State administration on

defence, the petitioner has not exhausted all resources to this process,

which the law to protect the rights it provides, how it stores the provisions of § 75

paragraph. 1 Act No. 182/1993 Coll., on the Constitutional Court, as it did on the

the ordinary court with a proposal for the review of the legality of the decision of the authority

the State administration under the provisions of section 244 of the civil procedure.



The Constitutional Court, however, after examining the proposal, concluded that in the

If this is a question that its significance substantially exceeds the

the complainant's own interests, since it is the wide range of people that

the amendment in question were Act No. 76/1959 Coll. prejudice ex lege, thus

directly from the law, and so has been completely stopped payment of výsluhového

the contribution, which have lost some of their income. In addition, the Constitutional Court took in

account of the fact that the Constitutional Court is gradually turning and

the future would probably be turned more citizens concerned with the maintenance of the

the amendment to withdraw the výsluhového contribution.



Under the provisions of section 75 para. 2 Act No. 182/1993 Coll., Constitutional Court

to reject the adoption of a constitutional complaint, even if the condition is not met by the

paragraph 1 of the cited provision, if a complaint with regard to the

substantially exceeds the own interests of the complainant and was made into a single

year from the date on which the fact that is the subject of a constitutional complaint,

has occurred. This condition is fulfilled, for the complainant to stop payment

výsluhového 1 contribution February 1996 and the constitutional complaint 1.

April 1996. In this case, the Constitutional Court ruled that both have been met

the above conditions the provisions of section 75 para. 2 Act No. 182/1993 Coll., and

Therefore, the constitutional complaint, even if the applicant did not dismiss all process

resources prior to its filing requirements.



The Constitutional Court found the decisions granting výsluhového

the contribution of the military social security, that the applicant was

with effect from 1 January. April 1994 granted výsluhový contribution of 4500

Per month until the age of 60 years, since it was an order of the Minister of

the Defense dismissed from the service of a soldier by profession according to § 26 para.

1 (b). (g)). the Act because of the reduction of the armed forces.



Furthermore, it was found that the applicant was the decision of the military Office

social security stopped the payment of výsluhového post

on the grounds that it is in accordance with the amendment of the Act No. 76/1959 Coll. effective

from the 1. January 1996, with effect from 1 January. February 1996.



By decision of the Ministry of defence on appeal from the complainant was stopping

payment of the allowance in full výsluhového confirmed on the grounds

pursuant to the amendment to Act No. 76/1959 Coll. (No. 160/1955 Coll., article. (XII)), which

supplement the provisions of § 33 paragraph 11, when admission to the

According to other laws, leaving the payment výsluhového post

does not belong. From the amendment, it is obvious that applies with effect from 1. January

1996 the recipient's contributions to all of the výsluhových in the staff ratio without

regardless of the previous length of service or on the date from which it was

contribution granted. It is therefore not decisive when the beneficiary výsluhového

contribution to this other service, whether before

effect of this Act, or of its effectiveness. Decisive is here

only the effective date of the Amendment No. 160/1995 Coll., on which the payment of the

the contribution does not belong, and qualify for this benefit, however, remains.



Furthermore, in the decision of the Ministry of defence States that the provisions of section

33 para. 11 was to the law added to the provisions of law No.

76/1959 Coll. on výsluhového contribution was brought in line with


similar provisions of other laws on business ratios (eg.

Police of the Czech Republic and the security information service). It would be

unfounded, that the former soldier still in his twenties, výsluhový

post, when the law on another prison service, according to which the

He accepted a similar dose of employment are entitled to continue to

preserves and to be eligible for this benefit and the amount counted and

the period of service of a soldier in active service. If the applicant has met the

the conditions for entitlement to the allowance for the service pursuant to Act No. 186/1992

Coll., as amended, the applicant after the termination of service

a police officer for the service allowance under this Act and the time

military service he will be entitled to receive for the service

offset.



The President of the Chamber of deputies of the Parliament of the United Kingdom in its

observations that the provisions of articles of the law is based on the principle

the legal relations of the substantive and procedural law which were based

the existing legislation (i.e., in the present case before the adoption of law No.

160/1995 Coll.), are managed in principle that law and until the

the effectiveness of the new law, its effectiveness is, however, subject to the law.

CIT law, therefore, does not interfere with the legal relationships and claims arising from them

1. in January 1996, but only in accordance with the constitutional order of the Czech

States shall lay down the conditions for the future for the granting and payment of

výsluhového post. In this context, it pointed to the findings of the constitutional

the Court published in the collection of laws under no. 169/1994 Coll. and no 107//1996

Coll., in which the Constitutional Court, inter alia, dealt with the question of retroactive and

legislation.



According to the communication of the President of the Chamber of Deputies was Act No. 160/1995 Sb.

approved by the necessary majority of 30 March 2004. June 1995, was signed by the

respective constitutional factors and properly declared. Legislature

He acted in the belief that the law is adopted in accordance with the Constitution, the constitutional

policy and the legal order of the Czech Republic.



II.



The issue of výsluhového post already dealt with constitutional

Court SP. zn. PL. ÚS 9/95 in connection with the proposal to repeal of the law No.

34/1995 Coll. novelizujícího Act No. 76/1959 Coll. Even if it were a

different provisions, in this case can be assessed allowance výsluhový

in accordance with the explanatory memorandum to the subject matter of the law. Výsluhový post

It is conceived in our legal system as a sort of compensation for the work

carried out in difficult conditions and the compensation for certain personal

the limits resulting from the nature of the work in the armed forces of the State.

It belongs to all who fulfil the conditions laid down by law, and are part of the

the system of benefits and social nature associated with the termination of

of service. Entitled to all of these benefits are maintained.



Výsluhový post should not be understood as a part of the remuneration, but

in the opinion of the Minister of labour and Social Affairs, the constitutional

the Court identified as a separate income that was not part of the so-called.

service income and is not even part of the salary of members of the armed

forces. This is a special category of cash income to some reasoned

extent social grounds.



The Constitutional Court considered the objection first retroactive and found that the view

the complainant on the retroactive effect of the law is one-sided. In the already cited

Constitutional Court, essentially the same finding SP. zn. PL. ÚS 3/94

No 164/1994 Coll., explains the difference between right and wrong

retroaktivitou. With reference to the findings of the Constitutional Court referred to in the

the case of the amendment of the Act No. 76/1959 Coll. on the right is not the retroactive effect,

but the wrong, that our legal system admits, and when the legal

relationships that have arisen for the validity of the old law, manage principle

This right up to the time of effectiveness of the new law.



As regards the assessment of whether the contested provisions of § 33 para. 11 of the Act

No 76/1995 Coll., referred to by the applicant have been infringed the fundamental rights and

freedom, the Constitutional Court has considered that it is not.



The Constitutional Court dealt with the first objection to violation of the principle of legal

certainty that the complainant relies on the fact that he entered the service of

Police of the Czech Republic, in good faith, that the State, which at the time

provide výsluhový contribution will not be sudden changes threaten

stability and reliability of its social policy, as citizens have the right

to the behavior of the State is for them calculable. The Constitutional Court is

the opinion that too frequent changes in the legislation on issues of particular

economic, labour and social policy--weakening legal certainty

citizens and the credibility of the State itself. On the other hand, however, cannot be

the lawmakers deny the right to readjust social relations wherever

It considers it necessary and appropriate to the public interest and if the

they are not threatened by the fundamental rights and freedoms of citizens in its essence.



Such a threat to the Constitutional Court in this case did not find and claim that the

new adjustment výsluhového contribution in violation of the rights of the complainant

to free choice of profession according to article 26, paragraph 2. 1 of the Charter of fundamental

rights and freedoms, couldn't refuse. Ing. J. v. military authority

the amendment to the Social Security Act and the associated withdrawal

výsluhového post beforehand and could then consider whether changes

current employment as such, which does not lie on the prison service and

where would výsluhový post continue to be received, for example. for employment in the

one of the scopes of its technical education. If so, the complainant

to do so, put it, that, despite the loss of the $ 4500 in a monthly budget

my family prefers to continue to work for the police of the Czech Republic. His

Thus, the situation was such that it was deprived of any alternatives, and

that would be forced to undergo the new measures of the law. It is true that

payment výsluhového allowance for his leaving the rest

--and the Constitutional Court understands that this is perceived as detrimental to the complainant--but

claim and other business years are counted in the above

výsluhového post that will be after the termination of service

paid. The purpose of the výsluhového contribution is financial compensation when

leaving the service at all, not just by giving

one service to another service.



The provisions of § 33 para. 11 of the Act No. 76/1959 Coll., as amended, is not

the right to free choice of profession or the right to do business or carry on

other economic activities should be restricted. Difficulties in finding a new job

relieves výsluhový just post to which the complainant had permanent

the claim in any other job, with the exception of service.



The Constitutional Court also considered that the legislature has defined entirely in General and without

the exceptions range of agencies subject to the same conditions remains

výsluhový post, and just in General and those on circuit

his paycheck, and only after a period of further service, they lose

claim. By maintaining the principle of equality in the assessment of personnel

extent of the law, because it is defined, without inside these groups of people

or put the favored ones or those bodies. If the cancellation

výsluhového contribution should apply only to business ratios that

only arise in the future, as suggested by the complainant, there would be just

the violation of the principle of equality by favouring those who

the effectiveness of this measure in the prison service has already been compared to those

which the service of the newly emerged. Even the claim that there was an

unauthorized interference with the private and personal life, does not hold water. To

prevent direct exposure to the contested legal standards. If

then as to the granting or refusal of rank of Lieutenant Colonel in the new

service to the complainant, it is a question that is beyond consideration in

under this procedure, because the continuity or discontinuity of the rank

výsluhovým is not related to the post.



In view of the above, the Constitutional Court had, than

the proposal to repeal the provisions of § 33 para. 1 of Act No. 76/1959 Coll., on

amended by Act No. 160/1995 Coll., reject.



The President of the Constitutional Court of the Czech Republic:



in the z.. Haboob in r.



Vice Chairman