A Proposal For The Cancellation Of Options. Ust. The Act On State Social Support

Original Language Title: Návrh na zrušení někt. ust. zákona o státní sociální podpoře

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=46850&nr=223~2F1998~20Sb.&ft=txt

223/1998 Coll.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled the day 2. September 1998 in the plenary on the proposal of the group members

The Chamber of deputies of the Parliament of the Czech Republic on the abolition of certain

the provisions of sections 17 and 18 of the Act No. 117/1995 Coll., on State social support,

as amended by Act No. 242/1997 Coll.,



as follows:



The proposal is rejected.



Justification



(I).



On 7 December 2004. November 1997 filed a group of 72 members of the Chamber of Deputies

Parliament of the Czech Republic, a proposal to repeal the provisions of the article. I, point 16

Act No. 242/1997 Coll. in the part, amending the provisions of sections 17 and 18

Act No. 117/1995 Coll., on State social support, and day 1. October

1997. the amendment was Made, inter alia, the newly modified for child benefit

in sections 17 to 19 of the Act No. 117/1995 Coll. and the provisions of the amendment pursuant to

its article. (VIII) took effect on 1 January 2005. October 1997. The new provisions of section

19 touches only the payment of allowances for the child and does not affect the material

the provisions of sections 17 and 18; the proposal therefore does not apply to them.



Group members in its proposal, stating that the new legislation added

the child is in conflict with the provisions of article in particular. paragraph 32. 1 in conjunction with the

article. 1 and article. 4 (4). 3 of the Charter of fundamental rights and freedoms, which guarantee the

the equality of all children and their rights in the same special protection without

any difference, including securities and other status. In addition, the

It is also in breach of article. 3 (3). 1, article. 26 to 28 and article. 41 Convention on the rights of

of the child (No. 104/1991 Coll.), as well as with the provisions of the article. 5 (3). 2, article. 10

and the article. 11. 1 of the International Covenant on economic, social and

cultural rights (No. 120/1976 Coll.). A group of members at the same time

notes that this modification is in accordance neither with the European social

the Charter, which, however, the Czech Republic has not ratified yet.



For a more detailed argument devoted to the group members, in particular, article. 41 of the Convention

on the rights of the child, where it is enshrined the principle of acquired rights, so Contracting

a party may not withdraw or restrict the rights, which recognized, on the basis

national law or international treaty, if this law more

than the Convention on the rights of the child help the realisation of the rights of the child. According to the

of this policy are the Contracting States are obliged to adopt measures for the gradual

the raising of the standard of living of children and to help parents and other persons who

take care of the children; There are, however, entitled to achieved the social and financial

help reduce (articles 26 to 28 of the Convention on the rights of the child). The Constitutional Court in the

the award announced in the collection of laws under no. 103/1997 Coll. said

the legal opinion that the legislature is also obliged to directly use

the provisions of the article. 3 (3). 1 of the Convention on the rights of the child, under which the interest

the child must be a primary consideration in any activity relating to the

of the children. As regards the International Covenant on economic, social and

cultural rights, the Czech Republic is bound to adopt measures for the

protection and assistance to all children, constantly improve the living conditions of families and

to maintain acquired rights.



Day 6. February 1998, a group of members of the Constitutional Court challenge to clarify the

the proposal as follows: "day of the 1. October 1997 are repealed these provisions of law No.

117/1995 Coll., on State social assistance, as amended by Act No. 242/1997

Coll., amending and supplementing Act No. 117/1995 Coll., as amended by

amended, and amending and supplementing certain other laws:



and the provisions of § 17 paragraph). 1, part of the provisions of § 17 paragraph. 2 sounding "after

31 December 1998 ", and paragraph 2,



(b) the provisions of § 18 paragraph). 1, part of the provisions of § 18 paragraph. 2 sounding "according to

§ 17 paragraph. 2 "and paragraph 2."



II.



Proposal to repeal those provisions of section 17 and 18 of the Act No. 117/1995 Coll.,

as amended by Act No. 242/1997, submitted in accordance with article. paragraph 87. 1 (a). and)

The Constitution of the Czech Republic and § 64 paragraph. 1 (a). (b)) of the Act No. 182/1993 Coll.,

the Constitutional Court, a group of sedmdesátidvou members of the Chamber of Deputies

The Parliament of the Czech Republic, who from their ranks had representation in the

proceedings before the Constitutional Court doc RSDr. Jaroslava Štraita., CSc.,

also verify the accuracy of their signatures.



After finding out that there are no grounds for the rejection of the draft or according to § 43

Act No. 182/1993 Coll., as amended, or to stop the

proceedings under section 67 of the same law, the proposal was in accordance with the provisions of section 69

the cited law sent to the Chamber of deputies of the Parliament of the Czech Republic

and the Senate of the Parliament of the Czech Republic with a call for comment. The Constitutional Court

also requested the opinion of the Minister of labour and Social Affairs.



Under section 68, paragraph. 2 Act No. 182/1993 Coll., the Constitutional Court found that the

Act No. 242/1997 Coll., which, as regards the unconstitutionality of the change

the provisions of sections 17 and 18 of the Act No. 117/1995 Coll., the plaintiffs argue, was

adopted and published within the limits of the Constitution of the Czech Republic set out competences and

constitutionally prescribed way. Found out that Act No. 242/1997.

approved by the necessary majority of members of Parliament

The Czech Republic on 5. September 1997, as well as the necessary majority of Senators

The Senate of the Czech Republic on 17. September 1997, was signed by the

respective constitutional actors and was duly announced.



As regards the legal adjustment to the 1. January 1993, the allowance for children

be accorded to all children uniformly, regardless of ownership and other ratios

According to the Act No. 88/1968 Coll., on the extension of maternity leave, the benefits

maternity and children allowances from sickness insurance, as amended by

amended, and Decree No 95/1968 Coll., on the provision of allowances

the children in the sickness insurance, as amended, as

form of social care for families with dependent children.



Referred to the adjustment was amended by Act No. 117/1995 Coll., on State social

the promotion. In it was a child conceived as a legal claim

an individual of a dependent child and family allowances shall be provided

differentiated in the elevated area [section 18 (a))] or in the base area

[to section 18 (b))] or in the reduced acreage [section 18 (b), (c))], depending on the

the personal need of the child and on the amount of the applicable income in the family. The decisive

income in the family and personal needs of the child, established under section 4 and 8

Act No. 117/1995 Coll. and by the Act No. 463/1991 Coll., on the

a minimum, as amended. Then, Act No. 242/1997.

It was, as regards claims for child benefit until 31 December 2006. December 1998,

categories of allowances cancelled in the reduced acreage and a change was made

the conditions for the payment of allowances in increased acreage and in the base area.

For the period after 31 December 1999. December 1998 was enhanced differentiation of allowances in

Plus, the base and the reduced acreage.



In the opinion of a group of MPs of the new provisions of section 17 and 18 of law No.

117/1995 Coll., as amended by Act No. 242/1997 Coll., on the one hand lifted the acquired rights

a significant number of children in the social area in violation of the principle of equality

all the children in the rights referred to in article. 1 of the Charter of fundamental rights and freedoms,

as well as the principle of their equality before the law without any

discrimination (including securities) pursuant to article. 26 International

Covenant on Civil and political rights and the equality of rights without

discrimination (including property and the status of their parents or

legal representatives) according to the article. 2 (2). 1 of the Convention on the rights of the child.



As regards the proposal to have the Constitutional Court annul the contested provisions on 1 January 2005.

October 1997, the members of the Group considered that such repeal is not in breach of

the prohibition on retroactive laws, because this is not a retroactive cancellations,

but their restitution, with the cancellation of another later date would

It was legalizováním neústavního condition and be in breach of article. 1

The Constitution of the Czech Republic. In this context, the group members relied on

the finding of the Constitutional Court of the CSFR on 18 July 2005. October 1992, SP. zn. PL. ÚS 22/92,

the statement was published in the amount of 96 year 1992 collection of laws and in

his reasoning has issued a legal opinion that "it is certainly a thing of State

in order to ensure their functions, decided that a certain group will provide

less benefits than others. Even here, however, must not proceed completely arbitrarily.

There must demonstrate that they do so in the public interest and for the public good.

The criteria according to which such justification, must be

objective, and that's just for the area. "no such criteria

resortním by the Ministry, the Government or the Chamber of Deputies was not

justified or proven.



III.



When it comes to opinions on the proposal submitted by the Group of members that

the Constitutional Court was requested, it should be noted that the Chamber

the Chamber of deputies of the Parliament of the Czech Republic, as a party to the proceedings in his

observations of 27 June. April 1998, signed by the Chairman of the

House of Ing. Milos Zeman was based on the fact that Act No. 117/1995

Coll., on State social support is one of the fundamental laws for the

the implementation of social reforms in the Czech Republic.



Families and individuals secure the widest possible range of needs of own

forces and its support and use only intervenes where from

subjective or objective reasons not enough citizen or family

secure your own needs on socially acceptable

level, and where the State has the man and the family to stimulate. protect.
The basic long-term dose for families with dependent children, which

helps cover the costs associated with the education and nutrition of the dependants,

is child benefit. This is a universal benefit, which is paid in

the same amount, and in three levels, depending on the family income and

a combination of times the subsistence minimum for personal needs of the child.

The payment of this benefit is discontinued, the claim does not arise at all or at higher

the income level of the family. In the interest of the acceptance of this system a wide

public income limits have been laid down so that the claim on this

the dose was excluded only a small part of families with significantly higher than average

revenue.



Act No. 242/1997 Coll., which reduces the amount of the child, reduces the

the number of eligible children, and deepens the differentiation of allowances, is a reflection of the

the decline in the overall performance of the economy. In the opinion of group members

These measures in the area of child are in contradiction with the Charter

fundamental rights and freedoms and adopted international conventions, as

children should be guaranteed equality in rights and should be guaranteed their same

special protection without any distinction, including securities and other

position.



It is to be noted that the Convention on the rights of the child in article. 4 States:

"In terms of economic, social and cultural rights, States are

Contracting Party to the Convention, to undertake such measures to the maximum

the extent of their resources. " This Convention therefore explicitly recognises that the State

in the application of its measures is limited by their economic situations.

Act No. 242/1997 Coll. just reflects this situation alone, however, the differentiation in the

allowances to children does not introduce, it is based in the law of legislation

No 117/1995 Sb.



In conclusion, the representation of the President of the Chamber of deputies of the Parliament advocates

The Czech Republic, that the legislature acted in the belief

that law is adopted in accordance with the Constitution of the Czech Republic and constitutional

policy of the Czech Republic and its legal order. In his opinion, is the

The Constitutional Court, in the context of the examination of the proposal to assess the constitutionality of

the contested provisions and issued the appropriate decision.



The Senate of the Parliament of the Czech Republic, as a party to the proceedings in his expression of

of 17 December. April 1998, signed by the Chairman of the Senate doc. JUDr. Peter

Pithartem noted that the Senate as the second Chamber of Parliament, the Czech

Republic when discussing the draft law approved by the Chamber

Deputies of the Parliament of the Czech Republic did not find the reasons for which

with the contested law could not consent.



The determination of the conditions of entitlement to child benefit, which is the dependence on

the amount of income in a family, can hardly be considered a contradiction in equality in the

rights or for "discrimination by property". If so, should

be, it would be necessary to conclude that the legislation also added to

the child before the amendment made by Act No. 242/1997 Coll., which restore

the plaintiffs are demanding is inconsistent with the provisions of the Charter of

fundamental rights and freedoms, and the international treaties to which the appellants

They point out. Already the original edit in the Act No. 117/1995 Coll., as also

Proponents say the provision established the child in

Depending on the amount of the applicable income in the family, unlike the previous

the arrangements laid down in Act No. 88/1968 Coll. and Decree No 95/1968 Coll.,

According to which child allowances have been provided "without regard to the material and

other ratios ". If, in addition to the child in terms of differentiation

the vesting in the family income was not permissible, this levy could not be

transformed from an earlier system of health insurance (care)

or from the pension scheme (educational to income) to the

the State social support system benefits dependent on level of income. Similarly,

It was also in terms of the editing of other State social support benefits

granted, depending on the amount of the family income; This address system

State social benefits would then not be possible at all.



As regards the Convention on the rights of the child in connection with the right of the child to

"social security benefits", the Senate concluded the Convention on the

rights of the child, these advantages in no way fails by setting their

the range or the principles for their destination and refers to national law.

On the issue of the security of the living conditions necessary for the development of the child

The Convention on the rights of the child is based on the fact that the primary responsibility here

borne by parents or other persons for the child care, and States that

are party to the Convention on the rights of the child, "in accordance with the conditions

of the State and within its capabilities "to make arrangements for the provision of

to help parents and other persons who take care of children. The change in the treatment

child was not given in connection with this, she

followed the cancellation or limitation of rights, which helps the implementation of rights

the child more than the Convention on the rights of the child, that it was

considered to be a contradiction with the provisions of the article. 41 of the Convention on the rights of the child, to which

the appellants point out, in the context of the principle by the acquired

rights. In this sense, the text of the said article of the Convention on the rights of the child in the

the submitted proposal Parallels shifted. That provision expresses the

the internationally accepted principle that ratification of the Convention on the rights of the child

are without prejudice to more favourable rights under national legislation

Contracting State. From the amendments to the law on State social support

made by Act No. 242/1997 Coll. does not imply a contradiction with that article

The Convention on the rights of the child, if appropriate, with similar provisions of the article. 5 (3). 2

The International Covenant on economic, social and cultural rights,

that is, in the draft in a given context.



In the conclusion of his observations to the President of the Senate of the Parliament of the Czech Republic

Therefore, he said, that is on the Constitutional Court to assess the constitutionality of

the contested provisions of the law and ruled on them. The Ministry of labour and

Social Affairs on the basis of the Constitutional Court challenge filed on 11 July. may

1998 its observations on the proposal of the group members.



Based on the fact that the calculation of cash benefits of State social support are

granted, depending on the level of income in the family, in accordance with the principle of

the streamlining of these benefits to those groups of people that need them with

regard to the degree of their desirability. As for the social

Caution: 1. the principle of a fair and enabling a certain way to compensate

social differences in the level of the individual groups and other persons. As to the

a valid principle in the area of State social benefits, and the

applied equally in relation to all persons and is valid without distinction for

all the cases are fulfilled the conditions laid down.



The plaintiffs claim that criticises the amendment of the Act on State social

support carried out by Act No. 242/1997 Coll., is in contradiction with article. 3 (3). 1,

article. 26 to 28 and article. 41 of the Convention on the rights of the child, because the appellants

appropriated for the purposes of this Convention, of its claims, only some of the

provisions or parts and no knowledge of interrelations of its

individual provisions. Do not take into account article. 4 this Convention, according to which

"In terms of economic, social and cultural rights, States are effected

such measures to the maximum extent of its means... "and therefore have

the possibility of even these rights limit. Similarly, the pass in the article. 26 of this Convention, that

the benefits therein shall be provided with regard to the resources and capabilities of the child

and the people who care about them.



The plaintiffs incorrectly interpret the article as well. 41 of the Convention on the rights of the child,

that has significance primarily in the eye-blink of the ratification of the International Convention.

If, however, state that the purpose of the article is the prohibition on withdrawal or restriction

acquired rights, the prohibition of reduction of formal social and financial assistance, and

the obligation to adopt measures for the gradual improvement of living standards,

such an interpretation is far behind the original sense of this article. The Convention does not provide for

no clear criteria for the provision of various social

benefits and leaves it to the Governments and parliaments of the Contracting Parties to

set the level of social benefits.



Similarly, vytýkán promoters of their access to the International Covenant on

economic, social and cultural rights in the article. 5 (3). 2, article. 10

and the article. 11. 1. As regards article. 5 (3). 2, and he is going to

in connection with the ratification of the Pact not to restrict any of the rights

secured national provision. Article. 11. 1 concerns the rights of

of individuals to an adequate standard of living and the improvement of living

conditions; in this article and in the article. 10 this is a general provision, according to

which assesses the level of welfare in a broader socio-economic

the context, and on the general principle of protection.



As with the Convention on the rights of the child, as well as in the International Covenant

pass the appellants article. 4, according to which the State may, subject to the rights of

the limitations that are prescribed by law and which are compatible with the nature of these

rights, and where they are taken in order to promote the general welfare in a democratic

the company. As regards article. 28 of the Convention on the rights of the child and article. 26

The International Covenant on Civil and political rights, without prejudice to

the law on the social and economic assistance to children and is not specified in the
what direction should the infringement of such rights. At the end of your

out the Ministry of labour and Social Affairs still comments on the

the comments of plaintiffs to the European Social Charter, which the United

the Republic is not yet bound, and expresses its strong disagreement with the

the proposal that it should occur to the proposed repeal of the law retroactively to 1.

October 1997.



IV.



The Constitutional Court after the analysis of the proposal of the Group of members of the House of

The Parliament of the Czech Republic, the opinions requested from the parties to the proceedings,

i.e.. The Chamber of deputies of the Czech Parliament and the Senate of the Parliament

The Czech Republic, as well as of the observations of the Ministry of labour and

Social Affairs, taking into account the těsnopiseckým reports on the hearing

Act No. 242/1997 Coll. in both chambers of Parliament of the Czech Republic

He came to the conclusion that the application for annulment of the contested provisions of Act No.

117/1995 Coll., as amended by Act No. 242/1997 Coll., is not reasonable.



The adoption of Act No. 117/1995 Coll., has been in the field of social security

a system of social assistance benefits, which distinguishes two

the batch group. The first group of State social aid benefits are

granted, depending on the amount of income in the family, IE. direct benefits; to

This group includes child benefit, social contribution, surcharge on

housing and transport allowance. The second group are the other benefits

State social support granted, regardless of the level of income in the family;

This group includes parental allowance, provident, post

benefits of foster care, childbirth allowances and death grants.



The change in the adjustment of the child relating to the restriction of the circuit

authorised persons and in the amount of the child was in the explanatory memorandum to the

a Government draft law justified the need to restrict state spending in

1997 and 1998 in connection with the current economic situation as

part of a series of Government austerity measures to reduce the expenditure of the State

the budget and this edit was against limiting the Government's intention that

He did not foresee its limitation in time-taken for the period from 1. October 1997

until 31 December 2006. December 1998. Was taken into account that one of the benefits

State social support, when its withdrawal or reduction, which would

due to the amount of income the family has led to a more significant worsening of the social

the situation of the family, may be compensated by another dose within the system

State social support, where appropriate, the broader social system

Security. The consequences of the changes to the editing of allowances for children were reflected in

claims to other benefits of State social support due to the fact that

child benefit is part of the decisive family income to be eligible for

the social supplement or housing allowance, etc. [§ 5, paragraph 1 (b) (g))

Act No. 117/1995 Coll., as amended by Act No. 242/1997]. For the assessment of

the plaintiffs ' request, it should be noted that the fact that the

Act No. 242/1997 Coll. has reduced the amount of the child, reduce the number of

legitimate children, and deepened the differentiation of the allowances, and that as a result of

the decline in the overall performance of the economy. It showed in the course of the

consideration of the draft law in the Parliament of the Czech Republic, when it was

stated that it proposes, in particular, the conditions of entitlement to the allowance adjustment

on the child and the amount so that the claim will be bound on the amount of income

not exceeding in family 2, 2 times the subsistence level of the family, and on the

Apart from in the meantime valid edits, when entitlement to the benefit in

If the decisive income in the family does not exceed three times the life

the minimum family. The amount added should be 27% of the amount on the personal

needs of the child, if the decisive income in the family is not higher than

1 the family subsistence level occuring, or 14% of the amount for personal needs

the child in the other cases.



Act No. 242/1997 Coll. therefore reflects the situation of the estimated article. 4 the Convention on

rights of the child that States carry out such measures in

to the maximum extent of its means; This act alone, however, differentiation

in the welfare of the children does not introduce the legislation have already been established in

Act No 117/1995 Sb.



The Constitutional Court after the previous evaluation of the proposal submitted by the Group of

members dealt with the questions of ústavněprávními, particularly those that have indicated

the plaintiffs in its proposal, and that, secondly, according to the Charter of fundamental rights

and freedoms and under international treaties. In the opinion of the plaintiffs

the new legislation added to the child in conflict with the article in particular. 32

paragraph. 1 in conjunction with article. 1 and article. 4 (4). 3 of the Charter of fundamental rights and

freedoms, which guarantee the equality of all children and their rights in the same

special protection without any distinction, including securities and other

position. As already pointed out several times, the Constitutional Court (Constitutional findings

Court SP. zn. PL. ÚS 4/95, Pl. TC 5/95 announced by under no 168/1995 Coll. and

No. 6/1996.) the principle of equality is not in principle protected by itself, but

only in connection with the violation of other fundamental rights, which guarantees the

the constitutional law or international agreement under article. 10 of the Constitution. Inequality in

social relations, has a touch of fundamental human rights, must

to reach the intensity of the call, at least in a certain direction is already very

the essence of equality. If it was the determination of the different social conditions

benefits depending on the justified needs of the specific groups of persons

considered for breach of the fundamental rights and equality in the rights

It would mean that social benefits would actually any condition for

the claim or its amount of eg. in the age of the individual at the time or

the assessment of the social and economic situation or could not be established.



The appellants thus argue the contradiction of the contested provisions of the law with

General interpretative provisions and principles applied in

the legal State by the head of the first Charter of fundamental rights and freedoms. Further

based on the article. paragraph 32. 1 of the Charter of fundamental rights and freedoms regarding

in general the protection of parenthood and family and special protection of children and

minors. This generally worded law presume

instantiating the law, as stated in article. paragraph 32. 6 i explicitly article. paragraph 41.

1 of the Charter of fundamental rights and freedoms. In this specification have been detected

conflicts with the default ústavněprávními standards.



The plaintiffs claimed the new legislation still lack child with

the provisions of the article. 3 (3). 1, article. 26 to 28 and article. 41 Convention on the rights of

of the child and with the provisions of article. 5 (3). 2, article. 10 and article. 11. 1

The International Covenant on economic, social and cultural rights,

but the reasons, how they came to your opinion, not in its submission. Only

for the article. 41 of the Convention on the rights of the child have come to the conclusion that there is embedded

the principle of acquired rights and the Contracting Party may not withdraw or restrict the rights,

which recognized under national law or international

the Treaty, if such rights more than the Convention on the rights of the child help

the implementation of the rights of the child. According to this principle are the Contracting States supposedly

required to adopt measures for the gradual raising of the standard of living of children and

to help parents and other persons who take care of children; There are, however,

entitled to a social and financial assistance reached decrease according to the article. 26 to

28 of the Convention on the rights of the child. This interpretation does not have support in the Convention on the rights of the

the child and the Constitutional Court could not join him in this particular case, not

be taken into account. On the contrary, could use the provisions of article. 26 to show

that is not the reason of the challenged provisions of the Act No. 117/1995 Coll., as amended by

amended, to question. Paragraph 1 of the article

provides that the States which are parties to the Convention recognize the right of

each child on the benefits of social security, including social

insurance and makes the necessary measures to achieve the full implementation of

This law, in accordance with national law. Paragraph 2 of the same article

then provides that these benefits are granted according to the situation with regard to the

the resources and capabilities of the child and the persons who take care of them, as well as with the

regard to all the other aspects, which are linked to applications for

the provision of these benefits brought by the child, or for the benefit of the child.



The Constitutional Court therefore did not find that the provisions of the contested amendment

Act No. 117/1995 Coll. has been infringed the fundamental rights and freedoms contained

in the Charter of fundamental rights and freedoms or in the international conventions referred to in

article. 10 of the Constitution, particularly when the previous concept of the law of

like the system solution and the amount of benefits provided for in the specific amount of the

is not itself a constitutionally protected right.



For these reasons, the Constitutional Court rejected the proposal from a group of MPs.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice-Chairman of the