112/1996 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided to day 3. April 1996 in plenary in the matter
the design of r. k., administered along with constitutional complaints, for annulment of the provisions of the
Annex A of Act No 99/1963 Coll., the code of civil procedure, as amended by
amended, exclusionary option to claim that a decision
the Rector (for high schools that do not break down on the faculty, academic
the Senate) high school on the appeal to the decision of the Dean on matters of adoption
or not to study at high school according to § 18 para. 2 of law No.
172/1990 Coll., on universities,
as follows:
The proposal is rejected.
Justification:
(I).
On 14 June 2005. September 1995 the Constitutional Court of the Czech Republic received a proposal to repeal
provisions of Annex A of Act No 99/1963 Coll., the code of civil procedure, in
as amended, exclusionary option to seek to
the decision of the Rector of the high school on the appeal to the decision of the Dean
issues of acceptance or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll., on universities, it was examined whether
by the Court. The petition was filed under section 74 of law No. 182/1993 Coll., on the constitutional
the Court, the plaintiff R. K., together with a constitutional complaint, together with the filing of
of 9 June. October 1995, on the abolition of the resolutions of the regional court in Brno, dated
September 5, 1995, no. 29 Ca 320/95-13, terminating the proceeding on
review the decision of the Rector of the Technical University of Brno
14 August 1995 No. 1537/9120/95 in the matter of an appeal to the decision of the Dean
of non-acceptance to the College.
In a constitutional complaint the applicant pleads infringement of fundamental rights and
freedoms arising from article. 1, art. 2 (2). 2, article. 3 (2). 1, art. 33
paragraph. 1 of the Charter of fundamental rights and freedoms ("the Charter"), art. 13
paragraph. 2 (a). (c)) of the International Covenant on economic, social and
cultural rights (declared under no. 120/1976 Coll.) and article. 2
The additional protocol to the Convention on the protection of human rights and fundamental
freedoms (declared under no. 209/1992 Coll.).
Whereas, together with the constitutional complaint has been filed by the applicant
accordance with section 74 of law No. 182/1993 Coll. and the proposal for the repeal of certain
the provisions of the law, the Constitutional Court of 18 March 2004. October 1995
the resolution, adopted pursuant to § 78 para. 1 of the Act, the procedure for
a constitutional complaint.
According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll. posted by Constitutional Court
the design of the Chamber of Deputies. In its observations of 8 June.
November 1995, the President of the Chamber of deputies of the Parliament of the United Kingdom
PhDr. Milan Uhde has confirmed, in accordance with the requirements contained in the
the provisions of § 68 para. 2 Act No. 182/1993 Coll., Act No. 519/1991
Coll. the civil procedure code was amended and that contains
the annex and the code of civil procedure, was approved by the required majority
members of the Federal Assembly of the Czech and Slovak Federal
Republic Day 5. November 1991, signed by the respective constitutional
agents and properly declared. In the Chamber of Deputies President
Parliament of the Czech Republic is spoken beliefs about compliance
the provisions of the annex and the code of civil procedure, which excludes the possibility of
claim that the decision of the Rector of the College of appeal to
Dean's decision in matters of adoption or not to study at high
the school has been reviewed by the Court, with the constitutional laws and with international
the contracts referred to in article. 10 of the Constitution. It refers to the General pass sentence
contained in the article. paragraph 36. 2 of the Charter enabling the statutory exceptions to the
the general rule of judicial review of administrative decisions. A sense of
negative enumeration to, contained in the annex and the code of civil procedure, it is
in the observations seen in the dynamic development of the administrative law and its
legislative amendments and points it at the same time on the comparative
the argument that no legal order is executed, the Court does not
review of administrative decisions, and if in any legal system, such
review of anchored as principle, is always accompanied by a negative enumerací
administrative decisions that are not subject to judicial review.
In accordance with the provisions of § 42 para. 2 Act No. 182/1993 Coll., Constitutional
the Court has asked for a written statement to the subject of the proposal also Ing. Ivana
Pilipa, Minister of education, youth and sports, and Prof. Ing.
Stanislav Hanzl, CSc., the Chairman of the Czech rectors Conference.
In its observations of 9 October. February 1996 submitted by Prof. Ing. Emanuel
Ondráček, PhD., Deputy Minister of education, youth and sports, and
it on behalf of the Minister of education, youth and sports of Ing. Ivana
Pilipa, analyzes in the first place, the nature of the constitutional right to education
contained in article 81(1). 33 para. 1 of the Charter. It is noted that this right can be
the only way to understand it is the right of every person to apply for education,
and the conditions under which it is possible to realize the right to education
University studies, are laid down in § 18 para. 1 of law No.
172/1990 Coll., as amended. In the opinion, expressed in
the opinion of the Deputy Minister of education for admission to study
Dean of the faculty does not interfere with rights of every person to education, but it assesses
the competence of a candidate who is applying for higher education
education, this study. At the same time, it recalls that the conditions under
which it is possible to apply for a college education may not be in the
contrary to the Charter, and therefore considers it possible in case of actions
objecting to College their discriminatory character. On the basis of
referred to in the comments he's finding, according to which the
deciding to take is left to the discretion of the (administrative discretion); Court
would or could objectively determine whether the expertise of all grantees
were objectively assessed, and therefore the review function of the Court should therefore
was only formal. In conclusion, the opinion of Prof. Ing. E. Ondráček, Phd.,
It is, therefore, reject the application for annulment of the provisions of the annex and law No.
99/1963 Coll., as amended, exclusionary possibility
that the decision of the Rector of the University on the appeal to the decision of the Dean
in matters of adoption or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll. was examined by the Court. Rejection
opinion delivered on that proposal in its observations of 12 May. February
1996 and Prof. Ing. Stanislav Hanzl, CSc., the Chairman of the United Conference
rectors. The same opinion at its meeting of 9 March 2005. February 1966 took the whole
Czech rectors Conference.
Similarly as in the comments of the Deputy Minister of education, Prof. Ing. With.
SIMA, CSc., analyzes the nature of the introduction of constitutional law on education.
Notes that unlike education in primary and secondary
schools, which is a specific subjective right of every citizen, the right to
on higher education should be understood as equal
access to apply for admission to College and formally of the same
the conditions of study on it, but not as a right to be accepted at any
the school, of which the interested citizen. From the base of freedom schools determine the
reception conditions to study the opinion acknowledges only the restrictions of
the respect of fundamental rights and freedoms (e.g.. lists
the unacceptability of the exclusion of the possibility to apply for study reasons
membership of a particular ethnic group, race, or gender). Since the
expression of the opportunity to study at universities is not considered basic
right in the sense that anyone could study at any high
the school, which selects, this reasoning leads to the conclusion that the
the legislature did not err, if ruled out the possibility of judicial review
the decision of the Rector of the high school on the appeal to the decision of the Dean
issues of acceptance or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll.
II.
The appellant sees the unconstitutionality of the provisions of the annex and law No.
99/1963 Coll., as amended, exclusionary possibility
that the decision of the Rector of the University on the appeal to the decision of the Dean
in matters of adoption or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll. was examined by the Court in its breach
with the article. paragraph 36. 1, 2 and 4(1). 33 para. 1 of the Charter.
The right of everyone to education contained in the article. 33 para. 1 of the Charter, in accordance with
the opinion of the applicant, also apply to study at universities. Since the
According to the article. paragraph 36. 2 of the Charter of the jurisdiction of the Court should not be excluded
review of decisions concerning fundamental rights and freedoms referred to in
Of the Charter, is the opinion of the appellant, given the discrepancy of the annex, and
Code of civil procedure excluded the possibility of judicial review
deciding to study at University with the cited provisions of the Charter.
III.
The resolution of the Constitutional Court of 20 October. November 1995 SP. zn. II. THE TC
229/95 has been denied pursuant to § 43 para. 1 (b). (f)), and § 35 para. 2 of the Act
No. 182/1993 Coll. proposal g. k. on cancellation of provisions of the annex and law No.
99/1963 Coll., as amended, exclusionary possibility
that the decision of the Rector of the University on the appeal to the decision of the Dean
in matters of adoption or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll. was examined by the Court. According to the
of the cited provisions of the law on the Constitutional Court, the appellant has the right to
to participate in the negotiations in the case conducted under the SP. zn. PL. ÚS 32/95 as
the intervener. Submission of 23 July. November 1995 to the side
participation in that case.
IV.
As has already been stated in the Constitutional Court in case SP. zn. PL.
TC 4/95, the Charter contains some basic human rights which, by their
the nature of the social values are konstituujícími the value of procedure
the company. In the social process of fulfilling these values function rather
Ideally typical categories that express a target vision and under which
You can include in particular freedom. Economic, social and cultural rights
referred to in title of the fourth Instrument to which they belong under art. 33 and the right to
education, the above values containing ideally typical dimensions cannot be
in the opinion of the Constitutional Court assign. This conclusion seems to indicate
and the diversity of individual fundamental rights directly on the Edit itself
By the Charter. While for freedom is here conceived as
fundamental human right "without any further", a concept is expressed
the fact that any form of restriction is to be conditioned by the law (article 7
paragraph. 1, art. 8, 9, 10, etc. Of the Charter), economic, social and cultural
rights are either explicitly specified in the Charter (e.g. Article 33
paragraph. 2: "citizens have the right to free education in elementary and
secondary schools, ... "), or their concretization is přenechávána
the law. In this context, it is for the above argument an important
just the article. paragraph 41. 1 of the Charter, which provides that the rights referred to in
article. 26, art. 27 para. 4, art. 28 to 31, art. 32 para. 1 and 3, article. 33 and 35
The Charter is meant to seek only within the limits of the laws, that this
the provisions are carried out. In such a law. the law, which provides for the
what conditions citizens have when studying the right to assistance from the State (article 33
paragraph. 4 of the Charter).
The concept of the "right to education" (article 33, paragraph 1, of the Charter) is itself
vague, since this only generally worded law is associated
countless social aspects and purposes, and it's often different social
quality and social impact. The tendency to move any of these
aspects and purposes in a plane be eligible for violation of this law should, according to the
the opinion of the Constitutional Court, was eligible, as well as in a number of
similar cases, invoke a variety of socio-disfunkčních and
side effects. The right to education at the high school could not therefore, according
the opinion of the Constitutional Court, understood as a fundamental right in the sense that the
everyone was entitled to study at University, as his choice, and that
the State would be required to ensure such education to anyone what he wishes.
According to the provisions of § 18 para. 1 Act No. 172/1990 Coll. a citizen the right to
study at University in their chosen field, where the
the necessary capacity for this study; point of view to determine the required
eligibility and the way it approves the authentication, however, on a proposal from the Dean
(or Rector) of the academic Senate. The criteria for admission to study at
high school are not provided for by law, but are things of the autonomous
the scope of the universities. It then, in the opinion of the Constitutional Court
You cannot draw any other conclusion than the one that the exclusion of judicial review
the decision on the appeal against the rejection of the candidate to the study on
the high school is not a violation of the article. paragraph 36. 2 of the Charter. In spite of this
their autonomy cannot, however, high school to provide for such candidates
conditions that would in fact violate their basic human
law, for example, that it is discriminated against for their jurisdiction to
any national or ethnic minority, for their religious
religion, etc. Such a violation of basic human rights should then
no doubt could become the subject of a constitutional complaint lodged by
the provisions of § 72 et seq.. Act No. 182/1993 Coll.
The sentence that "the authority of the Court, however, may not be excluded review
the decision, relating to the fundamental rights and freedoms under the Charter "(article.
paragraph 36. 2 of the Charter), it is, therefore, in the opinion of the Constitutional Court, should be
interpreted so that when it comes to the rights referred to in the title of the fourth of the Charter,
must go always to the rights of the instantiated, nerozhodno, whether this has happened already
directly by the Charter or law referred to in article 14(2). paragraph 41. 1 of the Charter. Therefore,
also among the cases in which the possibility to seek a review of the
decision of the administrative authority by a court according to the annex and to the civil
the court order, would hardly classify the decision fixing
remuneration for the elementary and secondary education, which is bezúplatnost
expressly provided for in article. 33 para. 2 of the Charter.
This fundamental opinion can be further added that the prerequisites for study
you are authenticated on the campus, and therefore relations emerging here are
probably other than vrchnostenského. To eliminate these and
similar decisions from the review jurisdiction of the courts has led the legislature
undoubtedly, the fact that in addition to the decision, which clearly cannot be
be considered a decision on public subjective right, there are such
such is the nature of that partially or can have, but whose
review by a court is not appropriate, either to the nature of the institution which is
It has issued, or for the nature of the decision itself (e.g. when the terms
expert predominate over the law). It is these later mentioned reasons
apparently led to putting the Rector's decision or in the academic Senate
appeal to the decision not to take to study at a University in
Annex A to the Civil Court of law.
In the opinion of the Constitutional Court of provisions of the annex and to the civil court
order exclusive opportunity to claim that the decision of the Rector
the decision on the appeal to the school Dean in questions of acceptance or non-acceptance of
to study at high school according to § 18 para. 2 Act No. 172/1990 Coll.
It was examined by the Court, is not in breach of article. paragraph 36. 1, 2, or article. 33
paragraph. 1 of the Charter, and therefore, the Constitutional Court ruled that the proposal by the
the provisions of § 70 para. 2 Act No. 182/1993 Coll. rejected.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
Different views
1.
Different opinion of judge JUDr. Paul Holländera
Different opinion, filed to the operative part of the award, which rejected a proposal to
repeal of provisions of the annex and of Act No 99/1963 Coll., the code of civil
of procedure, as amended, exclusionary option to seek to
the decision of the Rector of the high school on the appeal to the decision of the Dean
issues of acceptance or not to study at high school according to § 18
paragraph. 2 Act No. 172/1990 Coll. was examined by the Court, brought pursuant to section
74 of law No. 182/1993 Coll., the proponent of the r. k. along with constitutional complaints
on the abolition of the resolutions of the regional court in Brno from day 5. September 1995, no. 29
CA 320/95-13, terminating the proceedings to review a decision
the Rector of the Technical University in Brno, of 14 July. August 1995 No.
1537/9120/95, shall be based on the following reasons:
1. pursuant to section 244 paragraph. 2 CCP in the administrative judiciary review
the courts of the legality of decisions of the institutions also interest local government and other
legal persons, if they Act entrusts decisions about rights and
obligations of natural and legal persons in the field of public administration.
If it is the right of the base, is the judicial review of such
decision under article 9(1). 4 of the Constitution of the United States, and according to the article. paragraph 36. 2
The Charter of fundamental rights and freedoms mandatory.
In the present case must therefore first of all answer the question of whether
in the case of making a decision for admission to study at the high school this is a
deciding on the right of natural persons in the field of public administration. Positive
the answer to this question can be derived from the applicable legislation,
of case law, and finally teoretickoprávně.
In terms of the law, it is, in particular, the contested provisions of the annex, and
CCP, which would not have a reasonable sense in the case of the conclusion, according to which
in the case under consideration does not constitute a decision on the right of natural persons in
the field of public administration. Furthermore, section 18 para. 2 Act No. 172/1990 Coll., on
universities, as amended, establishes a process
decisions on admission to study at high school. In connection with the
the decision on admission has cited provisions and enumeration
elements that characterize the decisions on the definition of the public
Management (requires his justification, enshrines the exam
mechanism).
In terms of case law, you can mention the resolution of the Constitutional Court of the Czech and
Slovak Federal Republic of 19 November 2002. March 1992, SP. zn. II. THE TC
18/92, in which it was dealt with the question of whether University, Faculty of law
Charles in the decision-making about the management acted as rigorozním
the public authority. The positive response to this question the Constitutional Court
CZECHOSLOVAKIA reached the adoption, under which a different legal entity, than
the State authority does not act as a public authority on fundamental rights
and freedoms is a part of this decision making powers laid down
by law, and participation in it a necessary condition for the realization of such a
rights or freedoms and could not be when the right or freedom to assert otherwise.
In the view of theory of "you cannot have without further considered that any
the decision on the rights and obligations of natural or legal persons,
issued by the authority of the representative authorities or other legal persons, is already out of
for this reason, given in the field of public administration. Here, the Court must, and just
He, to differentiate whether the rights and obligations are concerned, the nature of the
public or private; is applicable
the criterion is not here not only because of the administrative science had for many years
the possibility to freely develop and not only for the almost non-existent
theory, but even so, that the boundaries between the public administration and management
a private in the modern world are quite moving, and in favour of the
public management. " (J. Bures, l. Drápal, code of civil procedure. Comment.
Prague 1994, p. 491). The argument in favour of the conclusion that the decisions of the
admission to study at high school has the nature of decision-making on the rights
individuals in the field of public administration, is the fact that the law on the
universities assumed the existence of State universities exclusively,
on the part of the carried out a decision directly related administrative code (§
34), for the additional part of the edits the special procedure (e.g., section 18 (2)).
Law study at the College of law attaches to public-law nature.
That finding stems from the provisions of § 34, according to which the
expulsion decisions by the administrative code, and therefore
Consequently, the possibility of judicial review.
2. A positive response to the question of compliance with the conditions required by
the provisions of § 244 paragraph. 2 CCP for the judicial review of decisions of the institutions
extracurricular authority or other legal entities, leading to buying
examine the fulfillment of article. 4 of the Constitution of the Czech Republic and article. paragraph 36. 2 of the Charter of
fundamental rights and freedoms.
According to the article. 33 para. 1 of the Charter of fundamental rights and freedoms, everyone has the right to
education, which the second paragraph of the cited provision specifies in the
meaning that in addition to the right to free education in elementary and secondary
schools have the citizens in accordance with their capabilities and in accordance with the company's options
the right to free education at universities.
The question is whether it can be stated in terms of the constitutional existence of the
the fundamental right to study at a University, or is a constitutional
standard, which has a different normative content. Only after the answer can be
to conclude on the need for judicial protection under article 5(1). 4 of the Constitution and article. 36
paragraph. 2 of the Charter of fundamental rights and freedoms.
The constitutional position of the adjustment of the individual in society provides protection
individual rights and freedoms, as well as the protection of public goods (public
goods, kolektive Gütter).
The difference between them lies in their distributivnosti. For public goods
It is typical that the benefit of them is indivisible, and people cannot be
excluded from its consumption. Examples of public goods are national
safety, public policy, healthy environment. Public good
therefore a particular aspect of human existence becomes a condition when it is not
Conceptually, it can be factually and legally break down into parts and assign
individuals such as shares. (The concept of public goods in economics
literature see for example. P. Samuelson-W. Nordhaus, Economics, Prague
1991, p. 770-771, 982; in the legal literature eg. J. Raz, Right-
Based in: Moralities, Theories of Rights, (ed. j. Waldron), Oxford
1984, 1987; R. Alexy, Recht, Vernunft, Discourse. Studien zur
Rechtsphilosophie, Frankfurt a. m. 1995, pp. 239 et seq.).
For fundamental rights and freedoms is, in contrast to public goods, typical
their distributivnost. Aspects of human existence, such as.
personal freedom, freedom of expression, participation in the political process and the related
the right to vote, the right to hold public office, the right to associate in
political parties, etc., can be conceptually, factually and legally break down into parts
and those assigned to individuals.
From the point of view of the internal breakdown of the fundamental rights and freedoms should be noted
If the basic freedom connected with the protection of human autonomy, in particular
prior to the intrusion by the State, the basic law is the ability to
active negotiations entity to whom corresponds the obligation of execution of the
in particular, the State party again.
The difference between the fundamental rights and freedoms and the rights and freedoms,
enshrined in laws or other legislation, consists
in a higher level of legal force and in their characterisation as a
principles.
The standards contained in laws and secondary legislation, they can
only be met or not met. In contrast to these principles
represent a specific type of standards, (a) to implement a certain kind of
the negotiations to the extent possible, depending on the legal and factual
options (e.g. in cases of conflict with other fundamental rights and
freedoms-see pl. ÚS 4/94).
The condition of the existence of a fundamental right or freedom is the ability of its
instantiating and individualization. In the case of College the following
characters can be defined, as follows:
The basic content of the right to education is not only
the right to seek a college education, but also the right to be admitted to the
the study and the right to study in College, and on the basis of the fulfilment of the school
(or the State) predetermined conditions, equality of opportunity and the rights
on the use of objektivizovatelných high school options. Terms and conditions
admission to the high school from the viewpoint of a constitutional must therefore be designed
in advance and must be based on the principle of equality of opportunity. Similarly,
the determination of the company's options, and therefore the University capacity and range
the study, the question is not free of arbitrariness, but the things that require
objektivizovatelná point of view, whose definition is a matter for the legislature,
the Executive Branch and the universities.
3. If I conclude that it is in the provision of article. 33 para.
1, 2, of the Charter of fundamental rights and freedoms contained the fundamental right to
education at the universities, the consequence of this conclusion is
the finding of the constitutional requirement of judicial protection. 4
Of the Constitution and article. paragraph 36. 2 of the Charter of fundamental rights and freedoms. Since the
the provisions, contained in the annex and the CCP, such a review excludes,
I find them to be unconstitutional.
2.
Different opinion of judge JUDr. Vladimir Paula to justify the award.
Preamble to the Constitutional Court in this case is based on the correct
the conclusion to the article. 33 of the Charter of fundamental rights and freedoms, which is part of the
the constitutional order of the Czech Republic. According to him, everyone has the right to
education, which in the first place shows that anyone must not be a priori
denying the possibility of education. Unlike participation in education at the
primary and secondary schools, which is referred to in paragraph 1. 2 specific
the subjective right of every citizen, the right to higher education
It is not guaranteed to everyone, since it automatically provisions of this paragraph
provides that a citizen can realize this right in relation to its
the capabilities and possibilities of the company. The content of this law of a particular
therefore not be admitted to a particular school in a particular
over time. The claim that the notion of "right to education" itself is vague, it is
However, it should be regarded as unacceptable.
In its introductory part preamble the characteristics of some
basic human rights, from which one can infer the possibility to interpret human
the law not as a dynamic complex of rights, such as a comprehensive homogeneous
behavior standards set for human society, contained in contractual or
legislative acts in international law or national, but as the
individual rights without social context, giving rise to the need for the
differentiate on the base and the "nezákladní", on the more important and less
important to a particular or identified globally, the binding or declaratory.
Therefore, also does not have justification for the claim that oppose each other
economic, social and cultural rights on the one hand, and what
preamble as fundamental human rights, which by their nature are
social values, the order of the society on konstituujícími value
the other side. Similar categorization has no legal basis.
The International Covenant on Civil and political rights, nor to the international
Covenant on economic, social and cultural rights, which the United
Republic is bound and which are referred to in article. 10 of the Constitution of the Czech Republic
directly binding and have precedence over the law, they do not know of any
the graduation of the importance and the firmness of the rights which are the subject of
and content. On the contrary, by emphasizing that these rights derive
from the inherent dignity of the human person and are committed to support the States
universal respect for human rights and freedoms, express the intent of the
not to disparities between them. This finding is not in breach of or
our Charter of fundamental rights and freedoms No. 2/1993 Coll. of the meaning of the word
"basic", however, cannot be understood as an expression of a certain categorization between the
the severity of each in it to rights and freedoms, but as
emphasize that this Charter contains only the most important institutes
of human rights. Czech (formerly Czechoslovak) legislation is to indicate
for the base, as opposed to General, wider adjustments contained in both of the above
cited by the international covenants, which in addition to the Charter of fundamental rights and
freedoms are also part of the Czech legal order and not just
proklamativní character, but the provisions under art. 10 of the Constitution of the CZECH REPUBLIC
take precedence over the law.