In The Matter Of The Application For Revocation Provisions Of The Annex And The Ccp

Original Language Title: ve věci návrhu na zrušení ustanovení přílohy A o.s.ř.

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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.

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