About The Cancellation Of A Number Of Options. Ust. Sen. Act. Insurance And Social Security

Original Language Title: o zrušení někt. ust. zákona o důch. pojištění a soc. zabezpečení

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=62975&nr=405~2F2006~20Sb.&ft=txt

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.