405/2006 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 6. June 2006 in plenary in the composition of Stanislav
Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel
Holländer, Vladimir Crust, Dagmar Lastovecká, Jan Musil, Jiří Mucha,
Jiří Nykodým, Miloslav Výborný, Pavel Rychetský, Elisabeth Wagner, and
Michael April about the design of the Supreme Administrative Court to cancel
the provisions of § 5 para. 3 the second sentence and the third Act No 155/1995 Coll., on
Pension Insurance Act, as amended, and the provisions of § 6
paragraph. 4 (b). section 11 of the Act) No 582/1991 Coll., on the organisation and
the implementation of social security, as subsequently amended,
parts express words "man on child care at the age of four years, taking care of
a child under the age of 18 years, if in the long term the seriously disabled
requiring special care, and "and the words" these children and "
as follows:
The provisions of § 5 para. 3 the second sentence and the third Act No 155/1995 Coll., on
Pension Insurance Act, as amended, and the provisions of § 6
paragraph. 4 (b). section 11 of the Act) No 582/1991 Coll., on the organisation and
the implementation of social security, as subsequently amended,
parts express words "man on child care at the age of four years, taking care of
a child under the age of 18 years, if in the long term the seriously disabled
requiring special care, and "and the words" these children and "shall be deleted on 1 January 2000.
July 2007.
Justification
(I).
1. the applicant, in accordance with article 7(2). 95 para. 2 of the Constitution of the Czech Republic
(hereinafter "the Constitution") of his proposal sought the annulment of the provisions of § 5 para. 3
the second and third sentences of the Act No 155/1995 Coll., on pension insurance, in
as amended ("Act No 155/1995 Coll.", respectively.
"the law on pension insurance") and the provisions of § 6 (1). 4 (b). and)
11 of law No 582/1991 Coll., on the Organization and implementation of social
security, as amended (the "law on the organisation of
and the implementation of social security ") in parts of the expressed words" care
a man of a child under the age of four years, custody of the child under the age of 18 years, if the
suffers a disability requiring special care, "and
the words "these children and".
2. in the application initiating proceedings the claimant stated that in the legal stuff
Prosecutor m. h. against the defendant the Czech social security administration was
by decision of the District Social Security Administration in Děčín of 28 June.
6.2001, no. 20/2001/DZ/, decided that the applicant could not, at the time of the
1.4. 1996 to 8. 2. the 1998 can be considered as the person taking care of a child within the meaning of section
5 (3). 1 (b). r) Act No. 155/1995 Coll., as amended. The decision of the
It was justified by the fact that the claimant submitted the application to participate in the insurance and
at the same time instituting the proceedings on the time and extent of the care of the child in the man
four years after the expiry of the two-year period prescribed by law, and therefore, it
cannot be considered a person referred to in § 5 para. 1 (b). r) Law No.
155/1995 Coll., the appeal of the plaintiff, the defendant by decision of 14 July 1999. 8.2001
No. DP/2220/01 and appeal the contested decision rejected the district administration
social security in Děčín of 28 June. 6.2001 has confirmed. Defendant (s)
justify its decision according to § 5 para. 3 of Act No. 155/1995
Coll., the man considered a person referred to in paragraph 1 (b). r) only if
submitted the application to participate in the insurance no later than two years from the
the end of child care. Proceedings filed by the applicant
the District Social Security Administration on 21 February 2006. 6.2001
After the expiry of the statutory period. In the preamble to the decision the defendant
also said to the Board of appeal the applicant's objection-that interrupted a business
due to child care-that carried out a proof of the žalobcovou folder
self-employed persons, and based on administrative
body of first instance, and found that the claimant his or her business
activity was ending without giving any reason continuously since 1994. Against the
the defendant's decision to the regional court complaint in Ústí nad Labem
the appeal, in which, inter alia, that the contest was not the staff of the district
the social security administration, whose expertise he had confidence, duly
instructed how to proceed in the matter, and for the lack of such lessons learned
submitted the application to participate in the insurance scheme. The regional court in Ústí nad
However, the judgment of the Elbe 18. 10.2001, SP. zn. Ca 15 338/01
the defendant's decision upheld. The need to meet the specified
the Administrative Court did not consider it discriminatory conditions; According to the Court
It was essential that the plaintiff's condition of their inclusion in the circuit
the insured has not complied with, and could not, for what reasons this has happened.
Against the judgment of the regional court in Ústí nad Labem, the applicant filed a notice of appeal,
but the High Court in Prague by judgment of 6 December 2001. 2.2002 the contested decision
confirmed. The Court among others. the Court held that the provisions of the Act, which referred to
the obligation for the Prosecutor's Office is based, is completely unambiguous, and the law of the
does not allow for any exception.
3. Against that judgment before the plaintiff filed an appeal, arguing that the judgment of the
is based on an incorrect legal assessment of the case. Same as in the appeal and the
the resource and the appeal argued that the provisions of section 5 of Act No. 155/1995
Coll. is discriminating against men because women no timelimit limited
they are not. This provision is considered to be contrary to article. 1 of the Charter of fundamental
of rights and freedoms ("the Charter"); in his opinion, even if such
conflict did not exist, there would be inequality in rights between men and women,
because the competent authorities do not have an explicit advise him on this issue
obligation, and men who are still in the care of the child, is the exception rather
they say they cannot learn about the imperative time-limit.
4. the Supreme Court-with regard to the amendment of the legislation-advanced
the appeal under section 129 para. 4 Act No. 150/2002 Coll., the civil procedure
the Board, the Supreme Administrative Court (the claimant) to complete the procedure,
According to the provisions of part three of the third part of the first of this
the law, therefore, to complete the proceedings pursuant to the provisions governing the procedure for
the cassation complaint.
5. The Supreme Administrative Court in any proceedings took the view that the
the provisions of § 5 para. 3 the second sentence and the third Act No 155/1995 Coll., on
Pension Insurance Act, as amended, and section 6 (1). 4
(a). section 11 of the Act) No 582/1991 Coll., on the Organization and implementation of
social security, as amended by later regulations, which must be in the
things are in conflict with the constitutional order of the Czech Republic, if the
provides that the man considered a person caring for a child under the age of four
years or about a child under the age of 18 years, if it is seriously in the long term
with disabilities requiring special care, only if submitted the application to the
membership no later than two years from the end of the custody of the child, "and
the period of custody the man proves the decision of the district administration of social
Security on the time and extent of this care issued in the administrative procedure
instituted on its proposal ". According to § 5 para. 1 (b). r) Act No. 155/1995
Coll. on pension insurance, as amended, they are to
the categories of persons that are subject to conditions laid down in this Act
the pension insurance scheme, included persons looking after a child aged
within four years, or about a child under the age of 18 years, if the long hard
disabled people requiring special care. According to § 5 para. 3
of the Act, a person referred to in paragraph 1 (b). r) means the parent
the child, the person to whom the child has been entrusted into foster care decision
Court or to whom it was awarded custody of the decision of the competent
authority, and the husband (wife) parents of a child, if the child was entrusted to the other
husband in the custody of the Court decision or if the other parent has died or
If it is not known. Under the second sentence of the same paragraph, a man considered a person
referred to in § 5 para. 1 (b). r) submitted the application to participate in the
insurance no later than two years from the end of the custody of the child; If he has not submitted
This period of this application, it cannot be regarded as a person referred to in
paragraph 1 (b). r). the third sentence of this paragraph the provisions of sentence
the second applies also for the person who takes care of a child under the age of 18
years, if in the long term the seriously disabled, requiring an extraordinary
care. Act No. 582/1991 Coll., on the Organization and implementation of social
security, as amended, section 6 (1). 4 (b). and)
11 confers on mj. the District Social Security Administration to decide on the time of
and extent of the care of a man, of a child under the age of four years and child care under the age
18 years of age, if it is seriously disabled, requiring long term
exceptional care, with respect to the period of caring for these children after 31 December 2006. December 1995.
According to § 85 para. 2 of the same law, the period of custody set out in section 6 (1). 4
(a). and point 11 of the decision) demonstrates the district administration of social
Security on the time and extent of this care. Proceedings are
served on the prescribed form, and this proposal can be submitted at the earliest after
the end of the indicated care or at the time of its duration in connection with the administration of
the application for a pension, but not before the application has been made to the
participation in the pension insurance pursuant to § 5 para. 3 the second sentence and paragraph. 4
Act on pension insurance, but not later than within two years from the end of the
This care.
6. From the above, in the opinion of the applicant, it follows that the law of
Pension Insurance Act distinguishes between different policies and provides for parents or
additional person (in § 5, paragraph 3, first sentence to assimilated) to the participation of
the Pension Insurance Act, evolving from the care of a child under four years of age
or care for a child until the age of 18 years in the long term the seriously disabled
requiring special care, depending on whether it is a man or woman.
The woman (the mother of the child or the other woman-to the person referred to in § 5, paragraph 3, sentence
the first) itself baby care (does not cover with a different, more advantageous for it
in the form of insurance) is sufficient to keep the period of custody of her
as the replacement period of insurance was included in the total periods of insurance
for entitlement to a pension and the amount of the percentage amount of the pension. The men of law
on pension insurance stores for participation in extra pension insurance
a condition that must apply to participate in the pension insurance in the
the time limit laid down by law and in statutory deadline must submit an
proceedings, in which the administrative authority shall decide on the time and
the scale of its child care. If the law misses a deadline, then
Although the child cared for his child care participation in insurance and shall not confer
the period of such care is not taken into account the total time for the emergence of
entitlement to a pension and the amount of the percentage amount. Law, without it
they were given substantive reasons related to differences in gender, only
Depending on the gender of the person caring for the child, is based in a different way
the right to participation by such persons on pension insurance and provides for men
and women unequal conditions for participation in the pension insurance in the context of
with the care of minor children. The Supreme Administrative Court for these reasons
considers that the making of the participation of the men on the pension insurance administration
application to participate in the pension insurance within the statutory time limit and
filing of the application instituting proceedings, in which the administrative authority shall decide on the time of
and the extent of its care for the child, is in conflict with the constitutional order, namely
with the article. 1, art. 3 (2). 1 and article. 30 paragraph 2. 1 of the Charter of fundamental rights and
freedoms, as determined by depending on the gender of the person taking care of a child
the inequality of men and women in their right to adequate material security in
old age, respectively. incapacity to work.
II.
7. the Constitutional Court, in accordance with the provisions of § 42 para. 3 and 4 and § 69
Act No. 182/1993 Coll., on the Constitutional Court, as amended,
the present proposal to the representation of the Chamber of Deputies and the Senate of the
The United States and also a written opinion on the Ministry of labour and
Social Affairs (article 48, paragraphs 1 and 2 of the Act).
8. in the representation of the Chamber of deputies of the Parliament of the Czech Republic is
stated that the law on the Pension Insurance Act binds the emergence of participation in
pension insurance of persons caring for children or helpless persons to
the condition that these people (women and men) they make a written application to the
participation in the Pension Insurance Act no later than two years from the end of this
care, as it can apply to participate in the insurance of the person
over 18 years of age (women and men) and their participation in insurance to cover
their lead in the records of the employment office as a job seeker,
If they are for nenáležela of unemployment benefit
or support in retraining, or the period of systematic preparation for the future
the profession of studying at the middle or high school in the Czech Republic, with
during the first six years of this study after the age of 18 years.
The exception to this rule is that a woman to participate in the pension application
insurance when caring for a child. The reason for this exception is her
practicality. In recognition of the replacement period of insurance is investigating whether
actually filled with the conditions for its recognition, not automatically.
Only for child care based on the vyvinuvšího model in our
environment, where they are primarily women who have children at a young age
take care. Applications to participate in the pension insurance for women-
When caring for young children-would be in the number of cases when women small
children are catered for, they give the characters the formalities and therefore prevailed, to
women do not have small children in the care of an application should be given. Legislature
He acted in the belief that adopted laws are in accordance with the Constitution, and is
on the Constitutional Court to assess the constitutionality of these laws.
9. the Senate of the Parliament of the Czech Republic in its observations first stated,
that Act No. 155/1995 Coll., on pension insurance, was approved by the
The Chamber of Deputies on 30. June 1995, with effect from 1 January. January 1996,
even at the time before the establishment of the Senate. It was subsequently referred to the law,
After the establishment of the Senate, amended several times, with only
the amendment made by Act No. 138/1997 Coll. touched the contested
the provisions of § 5 para. 3. Also noted-especially-that if
the appellant alleges that Act No. 155/1995 Coll., on pension
insurance, as amended, and in the case of child care in the
age of 18 years, if it is seriously disabled, requiring long term
exceptional care, provides for different conditions for participation in retirement
insurance, depending on whether it is a man or a woman, it's about
a view that finds no support in the legislation. In this case, of the valid
legislation [§ 5 para. 1 (b) r) and § 5 para. 3 third sentence of the law on
Pension Insurance Act] it follows that the set scheme applies to a person
caring for such a child, regardless of whether it is a man or a woman. In
connection with the care of a child under 18 years of age, which is severely disabled
with disabilities requiring special care, to the credit of this period care
requires that the caregiver (ignoring whether it is a man or a
wife) filed an application to participate in the Pension Insurance Act no later than
two years after the end of the custody of the child. To offset this time occurs on the
the basis of the decision of the district social security administration according to § 6
paragraph. 4 (b). section 11 of the Act) No 582/1991 Coll., on the organisation and
the implementation of social security, as amended. The proposed cancellation of the
the provisions of § 5 para. 3 third sentence Act No. 155/1995 Coll., on pension
insurance, so you can hardly rely on the erosion of his conflict with the constitutional
policy, in particular with article. 3 (2). 1 and article. 30 paragraph 2. 1 of the Charter of fundamental
rights and freedoms, as stated in the submitted proposal. By contrast, adjusting
concerning the care of a child under four years old, where the law provides for different
conditions for the deduction of the period of that care, if it is a caring person, a woman or a
the man, according to the observations of the Senate in General can seem like edit
establishing an unequal conditions for participation in the pension insurance in the
links to care for such a child, depending on whether it is a man or a woman.
In this case should, however, be substantial assessment of the arrangements of the
aspects, for example, which was expressed in the Constitutional Court
published under Act No. 40/2003 Coll. in the matter of the application for revocation of section 78 of the Act No.
155/1995 Coll., on pension insurance. This means assessing whether it is
different edit expression of arbitrary power, or whether it is based on objective
and mental reasons (a legitimate objective of the legislature) and that between this
aim and the means to achieve it (the legal benefits) there is a State of
of proportionality. The appellant alleges that the law provides for different
conditions for men and women, "without the for it have been made substantive reasons,
associated with different gender ". From his administration, however, does not indicate whether you
in it kept control of supporting documents relating to, procured, from which
reasons, in the Act on pension insurance in its adoption in
1995 established the special arrangements concerning the men caring for children in
the age of four years, and how such reasons, has evaluated in terms of their
objectivity, reasonableness and proportionality. It was, therefore, in the opinion
The Senate in this sense, the contested provisions to assess, in particular, with the
taking into account the possible observations of the relevant administrative authorities
active in the field of pension insurance. In the matter under
observations the Senate also take into account that any judgment preclusive
the time limits laid down for the filing of the application to participate in the pension insurance is
possible in justified cases addressed in the removal of hardness in
the meaning of section 4, paragraph 4. 3 of Act No. 582/1991 Coll., on the Organization and implementation of
social security, as subsequently amended.
10. in the opinion of the Ministry, along with labour and Social Affairs, which
the Constitutional Court with regard to the specific incident also
requested, the general law in force, in particular, recap
stated that earlier (before the 1. 1.1996), take care when you meet the same
the conditions of the child was not under the said man, the rules on replacement time
započítávanou in the period of employment; This time the men for his retirement
claims ever did. Reckoning of time men of the child care allow up to
the law on pension insurance with effect from 1. January 1996. In addition, the
This Act also extended the length of the replacement period due to child care
without qualified because of three to four years. The condition of man
was thought to be from the person referred to in § 5 para. 1 (b). r) Act
pension insurance, the § 5 para. 3 the second sentence of this Act. The
It is a condition of filing the application to participate in the pension insurance
no later than two years from the end of the custody of the child; He has not a man in this
period of this application, it cannot be regarded as a person, as referred to in § 5 para.
1 (b). r). "we are exploring whether to act on pension insurance provides for
similar or other special condition for the emergence of participation in the pension
insurance due care specifically to a woman, then we can find it. " The provisions of the
§ 5 para. 3 third sentence, of the Act on pension insurance, however, provides that the
the second sentence of paragraph 3 of the same provision applies, mutatis mutandis, also to the person
that takes care of a child under the age of 18 years, if it is seriously in the long term
with disabilities requiring special care. In this case, therefore, meet the
These conditions also apply to a woman. It follows that, for the participation of
the women of the pension insurance act because of caring for a child up to four years of age
unless otherwise provided in the Act on pension insurance no administrative condition
[cf. § 5 para. 1 (b)), which States "a person", that is, man and woman
taking care of a child under four years of age, and § 5 para. 3 the second sentence, where the
lays down a condition of filing of the application to participate in the insurance expressly only
man, not woman], but when it comes to the care of a child under the age of 18 years,
If the child meets the qualifying conditions, the Act does not distinguish between
Pension Insurance Act the sex of caregivers-the man and the woman must for the emergence of
insurance to meet the same condition (i.e. to submit, within a specified
the application deadline to participate in the pension insurance). The law on pension
insurance shall, for the evaluation referred to as compensatory
insurance for entitlement to a pension, so for the amount of the percentage amount
the pension of the same condition for both men and woman-getting at least one
year of insurance. At the same time, however, the law on pension insurance prevents
duplicate reviews of the same period, more than one person, and that in paragraph 14 of the
paragraph. 2, according to which the period of custody according to § 5, para. 1 (b).
You cannot set off at the same time r) more than one person; fostering a child at the same time
more people care conventions, such as the replacement period of insurance of the person,
that looked possible. In preparing the draft amendment to the law on
Pension Insurance Act was said to be the key in search of this requirement
appropriate tools to prevent the evaluation of one and the same time more
insurance policy holders, and in particular on grounds of public interest, as referred to in
the opinion of the Ministry of labour and Social Affairs is in the public interest should be
be considered as effective management of funds intended for
payment of pensions in an amount prescribed by the regulations. These resources
are obtained from the premiums paid by natural and legal persons,
and because they are (albeit sui generis) part of the State budget, the
public properties of material values. The fact that the
the time is evaluated for entitlement to a pension and the amount of the percentage amount of fully
without any reduction, without anyone to the pension scheme
at that time, he paid his premiums, according to the Ministry of warrants
efforts to find a solution that effectively prevents the abuse of public
resources.
11. When you search for that solution is, in the opinion of the Ministry was based on
from years of experience of the bearer of the pension insurance, and that when
the application of the right to a pension is very difficult to prove
the fact that occurred several decades ago. After 20, 30 and
more years is just hard to find which of the parents of a child under the age of
four years, cared for, or which one of them he tended to a greater extent.
For this reason, thought it necessary to propose design processors
such an adjustment, which allows at the current time to discover the real state
things. It is, however, not possible without cooperation of the person whose participation in the
insurance goes. Offered the option to choose for the development of the participation of all people
caring for a child aged up to four years on the Pension Insurance Act the same
the administrative terms and conditions, which were designed for the emergence of the participation in the
pension insurance of persons caring for a child under the age of 18 years, if the
suffers a disability requiring extraordinary care, and people
caring personally about or predominantly helpless person or part of the
helpless person older than 80 years. From the determination of the conditions for signing in to
participation in the pension insurance act because of caring for a child up to four years for
all caregivers (both men and women) and the subsequent filing
about the time of the initiation of proceedings and the extent of this care, however, was eventually abandoned.
According to the Ministry of design processors went from reality-on
which, even after 9 years, the effectiveness of the Act on pension insurance
too much has changed, and that stem from the traditional model of the Czech family and
yet persistent difference in pay for men and women-that they are
above all, women, who care for a child aged up to four years. In men it is
for the time being about altogether exceptional cases compared with the number of caring women.
Statistics since the effectiveness of the Act on pension insurance, i.e..
from 1996 to 2003, only confirmed the correctness of these considerations. When
considering whether it should be a condition for the emergence of administrative participation in
pension insurance due to care for a child up to four years of age to encumber
all persons in the same situation or just men who care for a child in
that age compared with women-only in rare cases,
He won by the Ministry of an approach based on objective and
reasonable grounds. In the case of women if they were measures that would
to the women of "adverse" effects and could be said to imply a large
the administrative burden on the social security authorities (including the increase in the
costs) as a result of the new accounting and decision-making activities. The determination of the
administrative conditions just for men appeared to be in a given situation
"the lesser evil", as it only requires compliance with certain synergies from
a tiny number of a set of people (less than one part per thousand),
are in the same situation, and to meet the administrative conditions of man
proven to fulfill its purpose, i.e.. excludes reviews one and the same time
more insurance policy holders.
12. According to the Ministry, it is further to be noted that on the other side
men more beneficial in demonstrating the procedural status of the time when you
the application of the right to benefit than women, as they are required to make
only two simple tasks for the decision on the time and extent of the child care
within four years (i.e., file an application to participate in the insurance and give rise to
initiation of the time and extent of the care of a child under four years of age),
While it is sufficient if the two acts will make at the same time, that is, the same day when
a single visit to the District Social Security Administration, if they do so
in the period between the end of child care and the expiry of two years from the end of the
This care. In this current time, shortly after the end of care, it is not for men
problem to prove the relationship to the child's birth certificate, where appropriate, by decision of the
the competent authority or court. By contrast, women (and even biological
mother) must submit to demonstrate care for the child under four years of age
his birth certificate or extract from the register of births, relating to the
of the child, respectively-in particular in the case of legitimate doubt of
the parties of the administrative body-the other evidence for such care
to demonstrate, for example. forty years after the end of care may be
the problem (the document is not available, lost him, etc.), so must
some cases, put more effort and often financial
resources to the relationship to the child. If a credible
evidence, then it is sufficient to evaluate the time taking care of her child
affidavit, since administrative condition laid down for men
taking care of a child under four years of reliably rule out reviews
the same time care for one child more than one person. However, if the
following the abolition of the administrative conditions to the emergence of participation
the man on the pension insurance due to the care of a child under four years of age,
then the man and woman who, in the exercise of the right to a pension requested
evaluation of the period of custody of a child under the age of four years old, had to demonstrate not only
they are in relation to a child by a person as defined in § 5 para. 3 the first sentence
Act on pension insurance, but also that the child really attend to and
to what extent (i.e., the period of custody cannot be considered a third person, and
even in the case that this other person will apply his or her claim on the number of years
later); According to the Ministry, this would be very difficult, especially with
taking into account the significant lapse (usually several
the Decade), taking into account-in many cases-to the collapse of the original
family ties (the child's parents broke up, both of you will ask for the appreciation of the
the same time child care, that they do not have insurance, or tiled
is about who should be evaluated, to agree). There would be deterioration
procedural status of both men and women. It reportedly to prevent
přeplatkům on pensions arising by reason of the evaluation of child care that
the person who would be entitled to a pension has applied previously (and due to the
differences in retirement age, you can infer that most of it was a woman),
If another person then called for set-off of the same period. In such a
the case would have to be done necessary the taking of evidence, including
any quantification of the overpayment to the acknowledged dose. In this situation, the
In addition unjustifiably found themselves and the persons taking care of a child under the age of 18 years,
If in the long term the seriously disabled, requiring special care,
Although the law provides for them the same conditions of participation
insurance due care referred to a child regardless of gender, as
the Senate is proposing to repeal the Supreme Administrative Court, the administrative
the condition for them. An extreme solution, which would be more unwieldy as caring
people (both men and women without distinction), as well as the bearer of the pension insurance,
would be to lay down a condition of filing the application to participate in the pension
insurance within two years from the end of the care of a child under four years of age and for the
women. The Ministry then in this context highlighted the number of live
babies born in the Czech Republic, which exceeds 90 000 per year.
At the end of its opinion, the Ministry acknowledged that the provisions of section 5 of the
paragraph. 3 the second sentence of the law on pension insurance "contains
a certain degree of inequality between man and woman ", but this inequality
does not reach the intensity that would cause a violation of the principle of equality
for no reason, without justification, in particular, the public interest and the protection of public
the values in the efficient management of seeking public financial
resources.
III.
13. the provisions of the Act on pension insurance, respectively. the law on the Organization of the
and the implementation of social security, which the applicant is challenging and requires
Cancel, reads as follows (in bold indicate the contested):
14. the provisions of § 5 para. 3 of the Act on pension insurance-Person
referred to in paragraph 1 (b). r) means the parent of the child, the person to whom it was
child has been entrusted into foster care by a court decision or to whom the child has been
custody by decision of the competent authority, and the husband (wife)
the parents of the child, if the child was entrusted to the other spouse to education
by a court decision or if the other parent has died, or if it is not known;
the parent is here also means the adoptive parent of the child.
The man considered a person referred to in paragraph 1 (b). r) only if
submitted the application to participate in the insurance no later than two years from the
the end of child care; If he has not submitted within that time limit, the application shall not be
considered a person referred to in paragraph 1 (b). r). the provisions of sentence
the second applies also for the person who takes care of a child under the age of 18
years, if in the long term the seriously disabled, requiring an extraordinary
care.
[Note: the provisions of § 5 para. 1 (b) r) of the Act reads as follows: Insurance when you are
compliance with the conditions laid down in this Act participate ... caregivers
for a child aged up to four years, or about a child under the age of 18 years, if the
the insured suffers a disability requiring extraordinary care.]
15. the provisions of section 6 (1). 4 (b). and 11 of the law) about the Organization and
the implementation of the District Administration, social security-social
security decisions about the time and extent of the
care of a man of a child under four years of age, care for a child under the age of 18 years,
If in the long term the seriously disabled, requiring special care,
and
care for carers personally predominantly or totally helpless person or
a partially incapacitated person older than 80 years of age, if the period of custody of
These children
and helpless persons after March 31. December 1995.
IV.
16. The Constitutional Court soon as possible in accordance with § 68 para. 2 of the Act on the constitutional
the Court examined whether the Act for which the appellant argues the unconstitutionality
its provisions, was accepted and published within the limits of the Constitution laid down
competency and constitutionally prescribed way.
17. From the observations of the Chamber of Deputies and the Senate of the Czech
States, as well as from the relevant Council publications and data on the progress of
the vote, the Constitutional Court found that the Chamber of Deputies approved the proposal
Act on pension insurance on its 32. meeting on 30 November. 6. the 1995 so
even before the creation of the Senate. The law was constitutional actors signed and date
4.8. 1995 has been declared in the collection of laws, in the amount of 41 under the number 155/1995
Coll. Act on pension insurance was accepted by the constitutionally prescribed
the manner and within the limits of the Constitution provided for competencies in compliance with the rules
laid down in article 4(1). paragraph 39. 1 and 2 of the Constitution. Act No. 138/1997.
the provision amending the Act on pension insurance in the contested provisions
(third sentence inserted) was also duly adopted, since the proposal of this Act
It was approved in the Chamber of Deputies on 23 December 2005. 5. in 1997, and in the Senate on 11 July.
6.1997. The law was signed, and the respective constitutional actors on 26 April. 6.
1997 has been declared in the collection of laws, 48, of an amount under the number 133/1997.
(Law on the Pension Insurance Act No 155/1995 Coll. was amended
yet a number of other laws, but those amendments to the contested
provisions not affecting.)
18. as regards the contested provisions of the law on the Organization and implementation of
Social Security No 582/1991 Coll., the Constitutional Court notes that what
with regard to laws issued before the Constitution came into force the United
the Republic, the Constitutional Court is empowered to review only their content
compliance with the contemporary constitutional order, but not the constitutionality of the procedure
their creation and compliance with regulatory powers. In terms of the so-called.
formal control of constitutionality, therefore, the Constitutional Court reviewed only partial
the amendment to this Act that affected the contested provisions; It is in the
first and foremost, of Act No. 160/1995 Coll., amending and supplementing certain
laws in connection with the adoption of the Act on pension insurance. In this
the direction has detected that this Act has been duly approved by 30 April. 6. the 1995 to 32.
a meeting of the Chamber of Deputies, has been signed by the competent constitutional factors
and 8 June. 8. the 1995 to its publication in the collection of laws, in the amount of 42
under the number 160/95 Coll. This law was adopted by the constitutionally prescribed
the manner and within the limits of the Constitution laid down the competence.
19. Another amendment, which added the contested provisions of Act No. 582/1991
Coll. on the Organization and implementation of social security, was made
Act No. 424/2003 Coll., amending Act No. 582/1991 Coll., on the
Organization and implementation of social security, as amended
regulations, and some other laws. The Constitutional Court has verified that the cited
the law was duly approved on 26 April. 9.2003 at 20. the meeting of the
the Chamber of Deputies and 6 December 2002. 11.2003 at 11. a meeting of the Senate of the Czech
of the Republic. Constitutional actors and was signed on 12 June 2006. 12.2003
its publication in the collection of laws, in the amount of 139 under the number 424/2003 Coll.
The Constitutional Court therefore notes that this law was adopted by the constitutional
in the prescribed manner and within the limits of the Constitution laid down the competence.
In the.
20. after that the findings of the Constitutional Court went to assess the content of the
contested statutory provisions with regard to their compliance with the constitutional
policy in the United States.
21. The essence of the matter is the question of whether the above-quoted provisions of the
Pension Insurance Act and related provisions of the law on the organisation and
the implementation of social security are capable of infringing the principle of equality
in the rights, generally expressed in the article. 1 of the Charter of fundamental rights and freedoms,
According to which the people are free and equal in dignity and in rights and
particularized in the article. 3 of the Charter (the first paragraph), according to which
fundamental rights and freedoms guarantees all, mj. without distinction of sex or
other status. It should be taken into account and the article. 14 of the Convention on the protection of
human rights and fundamental freedoms, according to which the use of rights and freedoms
conferred by this Convention shall be secured without discrimination based
on any ground, such as mj. even gender. Also article. 26 International
Covenant on Civil and political rights provides that all are
equal before the law and are entitled to equal protection of the law without any
discrimination; the law is to prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any
reasons, for example. based on race, colour, sex, language, religion,
political or other conviction, national or social
origin, property and family.
22. The Constitutional Court after a review of the case concluded that the proposal should be
met and challenged statutory provisions repealed.
23. To lead the Constitutional Court for the following reasons.
24.1) the Equality of all human beings as subjects of fundamental rights and
freedoms is, in principle, all documents containing that protect human rights. It comes
MJ. and the practical knowledge and recognition of the value of each person as a
like that, regardless of his abilities, knowledge and "usefulness", or
the benefits for all; legal philosophical point of view speech
the ancient truth-though countless times in history, punctuated by the man-
must never be arbitrarily treated only as a means of serving the
the interests of the other. It can be said, that the equality of individuals in
dignity and rights is the cornerstone of our constitutional
of law and fact, and is projected to the whole of the Charter of fundamental rights and freedoms.
25. the Constitutional Court has already in many of their decisions (cf. the summary
for example. in finding SP. zn. PL. ÚS 33/96, collection of findings and resolutions of the constitutional
the Court of the CZECH REPUBLIC, volume 8, no. 67, pp. 163, 170 et seq.; promulgated under no.
185/1997.) interpreted the content closer to the constitutional principle of equality. Should be
Thus, in particular, to repeat, that is identified with the understanding of equality, as it
the Constitutional Court of the CSFR already expressed in its award of 8. 10.1992, SP. zn.
PL. ÚS 22/92 (published under no. 11 Collections and finds the constitutional resolution
the Court of the CSFR), according to which "it is for the State to provide security
their functions, decided that a certain group will provide fewer benefits than others.
Even here, however, must not proceed completely arbitrarily. If the law specifies the
benefit of one group and at the same time lays down the obligations of the other, a disproportionate
can happen only with reference to public value. ". The Constitutional Court
CZECHOSLOVAKIA refuses an absolute understanding of the principle of equality and equality
as the relative category, which requires, in particular, the removal of
unjustified differences and eliminating arbitrariness. The content of the principle of equality
This scrolled into the field of constitutional law, the concept of aspects
distinguish between the subjects and the rights. The legal distinction in the approach to certain
rights, therefore, must not be a manifestation of arbitrariness, however, it does not follow from the categorical
the conclusion that each would have to be granted any right. The provisions of article.
1 of the Charter of fundamental rights and freedoms, moreover, cannot be interpreted in isolation from
other general article. 2 to 4, of the Charter, but on the contrary should be hold
as a single whole. Of the modifications to these general provisions, it is clear that the
Basic protected values listed in the article. 3 of the Charter (14)
ústavodárce as an absolute. In the matter of SP. zn. PL. ÚS 4/95 (collection of findings
and the resolution of the Constitutional Court of the CZECH REPUBLIC, volume 3, finding no 29, p. 209 et seq.;
promulgated under no. 169/1995 Sb.) The Constitutional Court. the Court held that
inequality in social relations, in order to offend fundamental human
rights must reach the intensity, casting doubt, at least in a certain direction,
already the very essence of equality. This is usually done when there is
the violation of equality and violations of other fundamental rights.
26. as stated in the report, the Constitutional Court SP. zn. PL. ÚS 15/02 (collection
the findings and resolutions of the Constitutional Court of the CZECH REPUBLIC, volume 29, no. 11, pp. 79,
87 et seq.; promulgated under Act No. 40/2003 Coll.), the constitutional principle of equality in the
the rights belong to those basic human rights, which constituted
value of procedure of modern democratic societies. The principle of equality is
legal philosophical postulátem, which is in the plane of positive law
guaranteed by the prohibition of discrimination. Equality is not a constant, because categories
development, which passes through its contents especially in the area of political rights
and social notes significantly. Likewise, international documents on the
human rights and the many decisions of international control organs
based on the fact that not every difference in treatment with different actors can be
to qualify as a violation of the principle of equality, such as unlawful
discrimination of some subjects in comparison with other bodies. In order to
There has been a violation of this principle, several conditions must be met:
different entities that are in the same or comparable
the situation is treated differently, without an objective and
reasonable grounds to put forward a different approach. Here you can add that
The European Court of human rights in its established case-law, by analogy,
notes that the difference in treatment between persons located in the
analogous or comparable situations is discriminatory if it has no
any objective and reasonable justification, that is,. If it does not pursue a legitimate
the target or if they are not the means used are proportionate to the aim pursued.
Also the UN Committee for human rights in the application of article 4(1). 26 International
Covenant on Civil and political rights has repeatedly expressed the view that
the exclusion of arbitrary power lies in the fact that it does not apply to discrimination outside
reasonable and objective criteria (reasonable and objective criterions).
International documents and case law often distinguishes between formal
equality (i.e. equal treatment of operators in the formally formally equal
the same cases) and substantive equality (i.e. formally unequal
de facto unequal treatment of operators, to compensate for this
de facto inequalities and help establish real equality between
them). The latter case is known. positive
discrimination, if it establishes preferential treatment operators,
that are in fact significantly disadvantaged compared with other
(preferential treatment). Means of preferential treatment are therefore not
fundamentally contrary to the legal principles of equality and non-discrimination,
If their application is directed to the Elimination of de facto discrimination between
These bodies. The legislature has some leeway to consider whether such
preferential treatment in the legal order will mandate. Must ensure
to be favouring access based on objective and reasonable
the reasons for (a legitimate objective of the legislature) and that between this objective and
the means to achieve the (legal) relationship existed
of proportionality. In the area of civil and political rights and freedoms already
imanentně is characterized by the obligation of the State to refrain from intervention in them,
exists for the preferential treatment with some bodies generally only
the minimum space. By contrast, in the field of economic rights,
social, cultural and minority, in which the State is contrary to the active
interference due to delete-as blatant aspects of inequality
between different groups of complex socially, culturally, professionally or otherwise
stratified society-the legislature has much more logically
a validation of their ideas about the acceptable limits of the factual
inequality within it (cf. judgment SP. zn. PL. ÚS 15/02).
27. Under the viewing angle from above expressed the fundamental principles and previously
adopted the conclusions of the Constitutional Court, therefore, it was necessary in the present case
to examine whether the legislation, consisting in the contested provisions
Act on pension insurance and the law on the Organization and implementation of
social security is not a manifestation of arbitrariness, and also whether it is an
legitimate efforts to-in a way justified-preferential access, and
not unconstitutional distinction between stakeholders (men and
Women), which is not based on objective and reasonable grounds and
aspects. One of the essential characters of the democratic rule of law
It is the principle of proportionality, which implies in particular that
measures restricting fundamental rights and freedoms must not be its negative
the consequences extend beyond the pros, which represents the public interest in these
measures.
28. In view of all things lies-as above in detail in summary-in the legal
modify, according to which, for the purposes of pension insurance man considered
the person taking care of a child under the age of four years only if submitted the application to the
membership no later than two years from the end of the custody of the child. Is
in fact to be noted-according to the expression of the Senate
The Czech Republic and with the opinion of the Ministry of labour and Social Affairs-
with respect to the person who takes care of a child under the age of 18 years, if the
suffers a disability requiring special care,
subject to compliance with the conditions mentioned above and the wife (§ 5, paragraph 3, sentence
the third), and in this respect, therefore no inequality between the sexes (see
However, section 36) cannot occur. For the participation of women on retirement
insurance because of child care within four years, however, the law on pension
no insurance administrative condition-unlike men-
does not provide, and therefore undoubtedly to the establishment of clear inequality occurs.
The Constitutional Court therefore focused in particular on the review of the constitutionality of
legislation of the provisions of the second sentence of § 5 para. 3 of the law
No. 155/1995 Coll., on pension insurance.
29. a) according to the observations of the Ministry of labour and Social Affairs
preparing a draft amendment to the Act on pension insurance was
request (the condition for men) the key in finding suitable
tools to prevent the evaluation of one and the same time more of the insured; It
in particular, for the protection of the public interest, because in the public interest is
should be understood as effective management of funds intended for
pension in the amount prescribed by the regulations. The Constitutional Court's
therefore wondered whether that objective can be considered as sufficiently
legitimate, and, in particular, that it is conducted in a manner that this objective
reasonable. Although it is clear that effective management of public
funding is certainly in the public interest and that the legislature
adopted solution can even admit-especially in terms of practice-
a certain relevance, not to be overlooked, that it happened at the cost of establishing the
significant inequality between the sexes and for price discrimination against men
caring for a child aged up to four years. Arguments of statistical data
(contained in the opinion of the Ministry of labour and Social Affairs),
showing that for men this is a completely exceptional cases compared with
the number of caring women, and that the determination of the administrative terms and conditions
just for men (supposedly) requires compliance with "certain synergies" from a tiny
the number of a set of people (less than one part per thousand), of the Constitution
point of view. On the contrary-purely logically, here's to the Ministry-
a certain extent, because if this is so negligible number of men, then
Surely even the potential abuse of public resources below
such a measure, so that ever could be referred to the legislature's procedure
true, despite the fact that there is already somewhat in advance of this fraction of the
the circuit of insured persons podsouvána the possibility of unfair negotiations, in principle.
In contrast, however, that even if the consequences of the action,
touched or may touch even if only a small group of people, it would be of
constitutionally unacceptable. As regards the objection contained in
representation of the Chamber of Deputies, the woman is exempted from the obligations of the
because of the "practicality", since such exceptions from the "model vyvinuvšího is
in our environment "by submitting applications to participate in the pension
insurance woman in these cases, the character has become mere formalities, to be
noted that, in the rule of law cannot be a significant interference with the fundamental rights or
freedoms and a violation of the principle of equality between the sexes, in principle, justify the
only their practicality in terms of interests and simpler procedures
the State authorities. To restrict fundamental rights or freedoms may completely
exceptionally occur even if their collision with any of the public goods
(public interest); the material is, however, in this context, maxima, according to
that a fundamental right or freedom can be restricted only in the case of extremely
a strong and reasoned public interest, with careful investigation
the essence and the meaning of omezovaného of the basic law. The first condition is the
measurement of mutual conflicts standing fundamental right and public
interest (called a false conflict-in contrast to the clash of two fundamental
the rights), the other is already highlighted by the investigation, the nature and the meaning of requirement
omezovaného the fundamental right or freedom (article 4, paragraph 4, of the Charter).
Mutual measurement then as usual, lies in the following
criteria: the first is the criterion of suitability, therefore the answer to the question whether
Institute, limiting certain basic law, allows you to reach the reference
target; Another is the criterion of the need of comparison
legislative resource, restricting the fundamental right or freedom with
other measures that allow you to achieve the same goal, but
nedotýkajícími the fundamental rights and freedoms. (Note: other
the criteria is this finding does not mention in detail, because it would be
redundant.) From the perspective of compliance with the conditions cited the principle of
of proportionality then examined the statutory provisions, significantly violators
basic right arising from the constitutional principle of equality, cannot be upheld; (I)
When the tracks as the main objective of effective public financial management
means, in particular, the condition does not meet the need of
in comparison, the legislative instrument, restricting the fundamental right to
in other measures, the participation rate into account that allow you to achieve the same
objectives without interference with constitutionally protected principle of equality between the sexes.
Exclusion is the arbitrariness, as reiterated above,
in particular, in that it does not apply any privilege or discrimination
outside of reasonable and objective criteria. In this case, however, for the reasons already
provided it is not.
30. when assessing, in particular, the need for criteria (under test
of proportionality) also considered the Constitutional Court so that the State and its
the authorities appear to have other options, how to detect or to obtain for
the issue-with the use of existing databases-relevant
information (competent authorities, State or public, must know who for example
paid parental allowance or who take parental leave),
without the substance of the case above the level of a reasonable had to request your cooperation
the authorized body (men), touching the space of his freedom and so on
as a result it discriminate or violate in this respect, the constitutional
the principle of equality. In the broader sense it is associated with efforts to
delete unnecessary red tape, thus effectively and
link information that different authorities (national and public) in the
the context of its activities, for example. previously discovered or could
Figure.
31. At this stage in connection with the article. 1 and article. 3 (2). 1 of the Charter
fundamental rights and freedoms-in effect it is a discrimination
in particular, in relation to the right to adequate material security in old age
According to the article. 30 paragraph 2. 1 of the Charter. The contested provisions of the articles clearly
violates, since the selected entities are without sufficient reasons
discriminated against in comparison with other entities that are located in the
absolutely identical legal status. The Constitutional Court therefore considers that the
the contested provision-consistently taken-raises an unjustified inequality
between the bodies involved in the pension insurance, which was founded
the adoption Institute mandatory filing of the application to participate in the insurance
the man within a period of two years from the end of the custody of the child. In this respect, therefore,
The Constitutional Court did not find any reason that would be capable of reasonably
explain inequality in access to entities located in the same
the situation as described above.
32. Just for completeness, it may be noted also that the line of argument of the alleged
the consequences of the annulment of the contested regulation and the possible practical
complications, as is contained in the abovementioned opinion, in particular,
The Ministry of labour and Social Affairs, does not hold water. Here, the Constitutional Court
It is concluded that-in his opinion-is not the only alternative
legislative resolution of the questions (in relation to the cancelled edit) encumber
in the future, both men and women by establishing the obligation to lodge an objection
application to participate in the insurance scheme. But it is not the task of the Constitutional Court as a
of authority to protect the constitutionality of giving lawmakers a step-by-step guide
How to level a simple address all rights into account
attributable to the situation; his only obligation is to assess whether the contested
the provisions of the legislation stands in terms of constitutionality or not.
33. For this reason, it is also irrelevant views expressed in
expression of the Czech Senate, that judgment does
the time limit is possible in some cases to deal with in the context of troubleshooting
the hardness of the Act; This should, where appropriate, could perhaps have its place in the
a constitutional complaint, but not in accordance with the legislation
the constitutional order. This is particularly true if the Constitutional Court finds
the unconstitutionality of the contested provisions, which cannot be constitutionally conformally
to interpret. The fact that it is in the legal order or contained
a mechanism that allows you to perhaps unconstitutional consequences
provisions reduce or delete, of course, does not change anything on the
the unconstitutionality of the Statute itself; the obligations
The Constitutional Court as a guarantor of the constitutionality of the rule of law then it is
Accordingly-thus derogations-responding.
34. Therefore cannot conclude that the legislature before adopting the contested
the provisions of the 1926 obligation equal access to rights and subjects
created by different groups, one of which from the constitutional point of view nedůvodně
discriminated against. There was, therefore, in particular, a breach of the principle of proportionality between the
the objective of the Act and managed resources. From the postulátu equality, although-as is
already stated above-it does not request the general equality of all the
all, however, it follows from the requirement that the law does not specifically favour for no reason
nor neznevýhodňovalo one before others. In that case, it is common ground that the
the requirement to provide the same rights under the same conditions, to the exclusion of
unjustified differences-the contested provisions, since it is not respected
the legislature without a constitutionally acceptable reasons, put the
the bodies which, though de facto foster child, can easily
find themselves in a situation where-although otherwise they will not meet the legal requirements
Unlike the pension insurance entities residing in the same
situation. The contested provision thus established in the opinion of the Constitutional Court
the differences, which constitutionally qualified manner justified
they cannot be.
35. It remains merely a supplement, that due to the categorical formulation
the provisions of the second sentence of § 5 para. 3 of the Act on pension insurance here
in this regard was not any room for interpretation of the contested provisions,
that would be constitutionally conformal, so that would allow the affected prescription
has not been cancelled.
36. (b) the provisions) with regard to § 5 para. 3 the third sentence of the law on pension
insurance, although the Constitutional Court-another place (paragraph 28) notes that,
for persons looking after a child under the age of 18 years, if the long hard
disabled people requiring special care, to satisfy the condition
the second sentence refers to a woman, so here to inequalities between the sexes
does not occur. However, you cannot overlook that the cancellation, only the second sentence
the provisions of § 5 para. 3 of Act No. 155/1995 Coll., on pension insurance,
would lose sense of the third sentence, containing a reference to the second sentence. Therefore,
The Constitutional Court upheld the proposal in that direction that set aside as the second sentence,
So whether or not the contested sentence the third of the provision.
37.2) as regards the contested provisions of § 6 (1). 4 (b). and) point 11
Law No. 582/1991 Coll., on the Organization and implementation of social
security, as amended, in parts, expressed in words
"man on child care at the age of four years, taking care of a child under 18 years of age,
If in the long term the seriously disabled, requiring special care,
and "and the words" these children and "the Constitutional Court has come to the conclusion that the proposal on the
their cancellation must be upheld because of the like, which has been ratified in
the preceding paragraph above. This is clearly about a provision that
so is related to the zrušovanými provisions of the Act on pension
insurance (because of this, moreover, was also a plaintiff to cancel
proposed) that is from the repealed provisions of the Act on pension
insurance logically inseparable and closely associated with them. The Constitutional Court
However, in this respect, it recalls that the situation requires a system
access the legislature and comprehensive solution of the above issues, in the context of the
which may change or deletion of the other in a broader sense in the
eligible provisions of laws, which explored subject matter
govern.
38. For the reasons given above, the Constitutional Court came up to a reasonable
the postponement of the enforceability of this finding, since the only way lawmakers
will allow for a new constitutionally Conformal editing this issue.
39. The Constitutional Court, with the consent of the participants dropped from an oral hearing,
Since this meeting further clarification of the matter cannot be expected.
The President of the Constitutional Court:
JUDr. Rychetský v.r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, a decision of the plenary, the judges adopted a
Stanislav, Vladimir Package Crust, Dagmar Lastovecká and Jan Musil.
