225/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 13 June. September 1995 in plenary on the draft

submitted along with a constitutional complaint. J. l., dwelling, l., k. 8/444,

represented by JUDr. P. r., a lawyer based in l., b. n. 1502/1, on

repeal of provisions in section 3 (2). 1 (b). (b)) and in section 30 (a). (b))

the Czech National Council Act No. 128/1990 Coll. on advocacy, expressed in words

"the Faculty of law", with the participation of the Chamber of deputies of the Czech Parliament

of the Republic of



as follows:



The proposal is rejected.



Justification



(I).



Day 10. September 1994 the applicant lodged a constitutional complaint to the Constitutional Court

against the judgment of the District Court for Prague 1 of 19 June. January

1994, SP. zn. the 12 C-519/93, in connection with the judgment of the City Court,

Prague of 9 June. June 1994, SP. zn. 22 What 223/94. These judgments was

rejected his action against the Czech Bar Association, based in Prague 1,

The national open class. 16, which pushed for the inclusion in the list of law firms

Associates the Czech Bar Association in Prague. The judgments in both courts rejected

his action was recognised by the law and the opinion of the Czech Bar Association, that according to § 3

paragraph. 1 (b). (b)), and according to section 30 (a). (b)) of the Act of the Czech National Council.

128/1990 Coll., on the legal profession, can be written to a list of lawyers, respectively.

trainee lawyers only persons who have not received higher education

education elsewhere than at the Law Faculty of a university based in the United

and Slovak Federal Republic (now in the Czech Republic, respectively.

The Slovak Republic).



Because the applicant is a graduate of a high school Choir, the national

security, which also passed the rigorous exam to the Faculty of law and

has the title JUDr., considers that the discrimination which has its basis

in the above formulation, section 3, and 30 of the law of the Czech National Council.

128/1990 Coll., requiring a college education "at the Faculty of law".

The appellant applied the opinion that cited the provisions of the Act expressed

the words "at the Faculty of law" are unconstitutional, already on appeal.

However, if the District Court concluded that the law, which is to be

used is in conflict with the constitutional law, and, therefore, did not apply the provisions of

article. 95 para. 2 of the Constitution, to the matter before the Constitutional Court for a decision.



Therefore, the plaintiff contacted his constitutional complaint pursuant to section 74 of the Act No.

182/1993 Coll., on the Constitutional Court, with a proposal for the repeal of this provision

conflict with the article. 3 and 4 of the Constitution and article. 1, art. 3 (2). 1 and 3, of the Charter of

fundamental rights and freedoms. As for the provisions which they proclaim the Charter

fundamental rights and freedoms as part of the constitutional order, provides that

the fundamental rights and freedoms are under the protection of the judicial power, governing

the principle of equality in rights and the prohibition of discrimination. The unconstitutionality

in particular, the appellant also sees in violation of the principle of equality in the sense of

article. 4 (4). 3 of the Charter of fundamental rights and freedoms, according to which the legal

restrictions on fundamental rights and freedoms must apply equally to all

cases that meet the specified conditions. Shows the case of a person who is

the same education as he could become a lawyer.



Your opinion then the complainant to the application for annulment of the words "on the

the Faculty of law ", and in section 3 and in section 30 of the Act of the Czech national

Council No. 128/1990 Coll.



II.



Whereas the Senate interrupted the Constitutional Court on the basis of § 78 para. 1

Act No. 182/1993 Coll., constitutional complaints, and annulment

legislation advanced to a decision under article plenary session. 87 para. 1

(a). a) of the Constitution.



On the challenge of the judge-rapporteur, the President on the proposal of the House

PhDr. Milan Uhde representation of the Parliament of the Czech Republic. In this communication, the

It is stated that the law of the Czech National Council No. 126/1990 Coll. was proper

manner approved and promulgated, and the content is also fully in line with the

The Constitution and the Charter of fundamental rights and freedoms. The provisions of the law on

the legal profession requiring a college education at the Faculty of law for

entry on the list of legal executives is unambiguous and is reasonable,

that to a list of legal executives can only be written by graduates

law schools, rather than other universities, even though its focus

in part, as was the case at the High School of the Corps of national security,

provide training similar to the Faculty of law. The President of the

The Chamber of Deputies while pointing out the opinion of the Supreme Court

The Czech Republic of 18. January 1995 (Plsn 1/95), which neshledalo in the

the decisions of both courts of any misconduct.



III.



The Constitutional Court found that the requirement of the education on the legal

the Faculty for the activities in the legal profession is in the Act of the Czech National Council No.

128/1990 Coll. unique and unassailable formálněprávně, considered whether the

education at the Faculty of Public Security Corps national high school

safety is also factually or not (i.e. materiálněprávně) to conform to the

education at the Faculty of law and whether it is not about the unequal evaluation of equal,

as that would be contrary to the idea of material law.



In terms of the complainant alleged legal education on Parallels

faculties of law and at the high school of the Corps of national security is

need to clarify its genesis.



1. Already over 60. years strengthened the tendency to increase the education of workers

at the Ministry of Interior. Request higher qualification was

at first, implemented various training courses for the staff of law schools

the resort, in the second half of the 1960s. years, however, even within the framework of distance learning

Faculty of law, its scope and its requirements is already close

the demands on the listener study.



2. The process leading to the rovnohodnotnému legal education

However, at the time of the Russian invasion of the so-called. "normalization" centrally-bureaucratic

the model of management of the company he apparently claims that

power Headquarters on the qualifications of the Executive apparatus. Legal measures

The Federal Assembly no. 107/1973 Coll., on the establishment of a High School Choir

national security has become an expression of the other, or other value

and content entitlements to workers at the Interior Ministry before

those that can be implemented in a proper global and universal

legal studies. High School of the Corps of national security has become

compared to the legal faculties of a kind of resort College.



3. Its establishment was not yet seen as a replacement for the Faculty of law,

because in addition to the college graduates of the Corps of national security and those

who of these or those reasons at the Ministry of Interior

they did not need a higher education or no education,

came to this resort continues to also graduates of legal

the faculties. Graduated from the law faculty remained necessary prerequisite

for such jobs at the resort, which by their nature require more

universal legal education (e.g. in the civilian-administrative section).



4. the newly established High School of the Corps of national security, by contrast,

become a means to enhance the qualification not universally legal, but

departmental administration-specific. Were raised by staff to tasks arising from the

the Mission of the Ministry of the Interior. Czech Bar Association in the examination

technical assumptions the complainant found out that his diploma, he

Faculty of public security qualifications in the field of legal-security. From

a report card on State final exam then showed that this test

was directed in addition to general theory of State and law of the

Marxism-Leninism, criminal law and the criminal and the civil

riot operation of public safety, but not on the other legal

the scopes from which he had to execute tests (especially law student

also the scopes of the civil and economic law).



Whereas that taught disciplines coincided with training on the legal

faculties only in part and that the orientation and dimensions of teaching and learning

the requirements were the target, which is also different from the

profiling universal lawyers, Constitutional Court can reach a

the conclusion that the appellant as a graduate of the Faculty of public security

High School of the Corps of national security not only formally, but neither

the material does not meet the demands of the legally laid down in § 3 (1). 1 (b). (b))

and in section 30 (a). (b)) of the Act of the Czech National Council No. 126/1990 Coll.



The Constitutional Court is based on the content of the findings expressed in the

opinion of the Supreme Court under the Plsn 1/95, which States in particular that the

Since the creation of the National Security Corps College until its cancellation

have been set up at this school different faculties: Faculty of public security

Faculty of State security, the protection of State borders and the faculty, Faculty of

the investigation. None of them has not been faculty providing

universal legal education in all fields of law. Of the specified

fields in College Choir of national security and of the lesson plans in this

the school is obvious, although it also provided some training in some

sectors of the right, but its focus was different from law schools and

reflect the specific requirements on the teaching of the members

the former Choir of national security.



5. The fact that the appellant later passed the rigorous exam and

He received the title of doctor of rights cannot replace legal education on the


Faculty of law, and that's because the rigorous test is carried out only in the

a selected scope and does not have a universally-legal nature. It could be

one could argue that even at the faculties of law was a precondition for the

the title JUDr. the composition of the additional examination of all

legal disciplines, so when for example. in 1971 he graduated student

law school final exam, justice was not the direction for example.

tested from the right economic, etc. Unlike the graduate High

the School Choir of national security, however, had already had to go through

legal studies in all of its branches and take all the prescribed

the test, which can be understood as a prerequisite for it to ever

proceed to tests commence. However, this assumption was just

College graduates of the Corps of national security in a comparable degree

is not met.



6. Of all the above reasons, the Constitutional Court did not find a violation of article 6(1). 3 and 4

The Constitution, which provides that the Charter of fundamental rights and freedoms is part of the

the constitutional order of the Czech Republic and that the fundamental rights and freedoms are

under the protection of the judiciary. The argument of discrimination cannot be accepted, because

materiálněprávně cannot be inferred or commonality of objectives, contents and teaching methods,

as well as the requirements placed on a students high school Choir, the national

Security and law school students. It does not change or

the individual cases that the appellant stated during the negotiations. The subject of the

This decision of the Constitutional Court is to determine whether the General words

"the Faculty of law" in the law on legal profession are, or are not in accordance with the

constitutional laws.



The legislator in section 43 of the Act of the Czech National Council No. 126/1990 Coll. stated

the lawyers, who on the date of entry into force of this Act, were members of the

regional associations of lawyers and the Municipal Association of lawyers in Prague,

be entered in the list of lawyers without request. However, it has not been tampered with

the principle of equality (article 1 and article 4, paragraph 3, of the Charter and

freedoms), since it is a measure acceptable in the interests of legal certainty and the

the stability of the existing legal relations, which corresponds to the principles of

the rule of law.



Application for annulment of the words "at the Faculty of law" in section 3, paragraph 3. 1 (b). (b)) and in the

section 30 (a). (b)) of the Act of the Czech National Council No. 126/1990 Coll., in addition,

created by the State that would be admitted as a prerequisite for the exercise of advocacy

generally, only the "higher education", without ever specifying

legal nature of this education.



On the basis of the above considerations the Constitutional Court could not, than to conclude

proposal to repeal that part of the provisions of § 3 para. 1 (b). (b)) and section 30 (a).

(b)) of the Act of the Czech National Council No. 126/1990 Coll., on the legal profession, which is

expressed by the words "at the Faculty of law" to be rejected.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.