6/2009 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


Constitutional Court decided on 14 October 2008 at the Plenum, composed of Stanislav
Balik, Frantisek Duchon, Vojen Güttler, Pavel Holländer, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým ,
Miloslav Vyborny, Elizabeth Wagner and Michael Židlická on the proposal
group of senators of the Senate of the Parliament of the Czech Republic, represented by JUDr.
Milan Vasicek, a lawyer based in Brno, Lidická 57, the annulment of § 3 para. 1
Act no. 220/1991 Coll., On the Czech Medical Chamber, the Czech Dental
Chamber and the Czech Pharmacists' Chamber,

Follows:

The petition is denied.
Reason


I.
Recap draft


First A document lodged at the Constitutional Court on 25. 5. 2006
proposed by a group of senators of the Senate of the Parliament of the Czech Republic, relying on Article. 87.
1 point. a) the Constitution of the Czech Republic (hereinafter "Constitution") and § 64 paragraph
. 1 point. b) Act no. 182/1993 Coll., on the Constitutional Court, as amended
amended (hereinafter "the Constitutional Court Act"), the Constitutional Court
conflict with the constitutional order, namely Art. 4, paragraph . 4, Art. 20
paragraph. 1, Art. 26 paragraph. 1 and Art. 27 paragraph. 1 of the Charter of Fundamental Rights and Freedoms
(hereinafter "Charter") annulled § 3 para. 1 of Act no. 220/1991 Coll., On
Czech medical chamber, the Czech dental chamber and the Czech Pharmacists' chamber
, as amended (the "Act no. 220/1991 Coll
."), which requires each doctor who performs in the Czech
Republic of the medical profession in curative and preventive care
obligation to be a member of the Czech medical chamber.

Second The petitioners primarily expressed confidence that "
under the right to freely associate is also necessary to relate the law to the contrary nesdružovat,
if and to the body in question is not interested", respectively. the right to freely "to associate
" within the meaning of Article. 20 paragraph. 1 of the Charter also includes the right "to
nesdružit" closely associated with the same constitutional protection.

Third According to the petitioners, the principle of compulsory membership of the Czech Medical Chamber
"public corporation uniting all doctors'
puts everyone before choosing between two constitutionally guaranteed rights;
right to the free exercise of the profession (Art. 26 paragraph. 1 of the Charter) and the right to freely associate
respectively. the nesdružovat (Art. 20 paragraph. 1 of the Charter); If a doctor wants
"draw" their right to free exercise of the profession must be compulsorily associate
"in the organization with which (eg.) does not want to be identified", and vice versa, says
take advantage of the law nesdružit freely, we have no choice but to surrender
right to exercise their profession.

Fourth The petitioners proclaim that the restriction of fundamental rights and freedoms
is needed to save their purpose and meaning, and therefore "it is necessary to resort to restrictions
smallest, which still leads to achieve the desired objective, and it is necessary to choose
limitations proportionate to the significance of the objective pursued "with
" the whole system of restrictions is then controlled by the principle of subsidiarity, it is not possible to carry
limit where it would be possible to achieve the desired purpose without any restriction
".

Fifth With regard to Art. 26 Sec. 2 of the Charter (Art. 4 par. 4) is the necessity
above pre-marking "elections" by the petitioners acceptable only if it
necessary to achieve the constitutionally legitimate goals and je- If proportional "to
importance of the aim pursued."

6th The petitioners this purpose constitutionally certificated
identify with the obvious need to create an appropriate regulatory framework for occupational
doctors, as it requires extraordinary professionalism and thoroughness and his performance
directly affects the elementary interests of individual persons
to preserve their lives and health. Recognize that "
is certainly legitimate and constitutionally acceptable goal of the state to seek adequate
regulate the provision of medical care and supervise the quality of services provided
" as "interference in the physical integrity of individuals, which doctors perform
represent often professionally and ethically extremely difficult
while irreversible or difficult reparovatelné procedures ". Supervision of the state that is
according to the petitioners' legitimate interest capable of justifying restrictions
fundamental rights and freedoms, and therefore "the legislature chose the path"
that "legitimate purpose"; Then petitioners nor deny that
professional chamber (Czech Medical Chamber) is eligible to it by law

Entrusted the supervision attain this purpose.

7th Forced association in the Czech Medical Chamber, however, according to the petitioners
is not the only way to manage "things in public health,"
especially to oversee the performance of the medical profession and guarantee their professional qualifications
. Its usefulness is not given if available
alternative "equally effective control", that means "direct
of state administration", under which the state provided training and further
performance requirements of the medical profession and controlled directly
its executive authorities compliance without forcing individual physicians
identify a "professional organization" (ie. without interfering with the constitutionally guaranteed right to
association, respectively. "nesdružování").

8th To support "model with voluntary membership in the Medical Chamber"
petitioners stated that "it is widespread in Europe," shows no
specific disadvantages against the system existing in the Czech Republic and by
that affect constitutionally guaranteed the right of association is "
terms of the constitutional order of the Czech Republic more acceptable."

9th If, for example, in the case advocacy 'association in the corporate
body type professional associations clearly necessary "since her performance" very
often directed against the state, its institutions and interests, whether it is a defense in criminal
proceedings, actions against the State for damages, administrative proceedings, etc.
. ", if the medical profession given special reason
engineer supervising the exercise of the professional government, not because
according to the petitioners," there is no sufficiently ambivalent
doctors relationship to the state, which would justify the necessary insulation from the state
administration - and thus also enforce their mandatory association in the chamber. "

10th The petitioners then consider it important that the public's
occur projection positions adopted by the Czech Medical Chamber
against individual members; It is perceived excesses mainly because
Czech Medical Chamber is a "corporation, a legal entity with its own
conduct our own will, our own attitude, reputation, goals and values," and
"operates actual activities, communicates with its surroundings and participates
events which are perceived by the public in some way, "" appears
politically comments on economic and political issues, occupies
political views, supporting one or another governmental or nongovernmental
concept of health, prefers procedures with which many doctors agree and disagree series
etc., "and" personnel is closely linked with the Ministry of health
that her exercise direct influence. " "This awareness, this
reputation and tone CLK", according to the petitioners, inevitably more or less
transferred to Chamber members and those who are identified with it can carry
"resentful" that are associated with public activities with whom
"fundamentally" disagrees or is deemed to be an attack on their own
interests.

11th According to the petitioners that the legislature disregarded the criterion
necessity if the constitutionally guaranteed rights of individuals, ie.
Freedom of association, although restricted for legitimate purposes, "however
totally unnecessary and therefore inadmissible"; "Unless such associations must - and
comparison with other countries shows that it is - we can only identify that
forced pooling requirement unconstitutional."

12th Finally, the petitioners expressed the view that the Constitutional Court should
"or" postpone the enforceability of the judgment Cancellation "at the appropriate time,"
for the legislature to adapt the concept of managing health
membership of the Czech Medical Chamber, which should not be longer mandatory .

II.

Expression, opinion and replica

13th The Constitutional Court, in accordance with § 69 of the Law on the Constitutional Court
instituting the proceedings conveyed to the parties -
Chamber of Deputies and the Senate of the Parliament of the Czech Republic, and beyond the statutory framework and substantively addressed
institutions concerned, namely the Ministry
health, Czech medical chamber and the Union of health and social care
Czech Republic; their observations were submitted by the appellants
intimována and they brought them eventually replica.

Chamber of Deputies of the Parliament of the Czech Republic

14th Deputies in the statement of 1. 2. 2007 signed
Chairman Ing. Miloslav Vlcek firstly stated that the legislature

(Former Czech National Council) acted in the discussion of the draft law no. 220/1991 Coll
. in accordance with the prescribed procedure and at the same time
belief that the law is not inconsistent with the Charter of Fundamental Rights and Freedoms
. Promoters of the bill they were by the Chairman of the Chamber of Deputies
aware that defies the concept of a series of chambers that are usually built
"as a prestigious association," while medical mission
chambers is turned outwards to civil public, which wants to protect
quality control expert medical care, and act as a basic check
article that will ensure the best interests of the patient.
Selected organizing principle was, in practical terms by
promoters only possible, based on the possibility of limiting the right to freedom of association
arising from Art. 20 Sec. 3 of the Charter, takes into account the right to health protection incorporated
in Art. 31 of the Charter, and given the
professional aspects of the estate does not constitute a disproportionate restriction.
Deputies noted that the abolition of § 3 para. 1 of Law no.
220/1991 Coll., Without prejudice to the similar provisions of § 3 para. 2 and § 3
paragraph. 3 of the Act governing mandatory membership
Czech Dental Chamber and the Czech Pharmacists' Chamber, would necessarily
unsystematic and resulted in "a certain discrimination".

Czech Senate

15th Czech Senate in the legislative process (
in relation to the contested provision) was not involved, but later participated
legislative changes to the Act no. 220/1991 Coll., Namely carried
Act no. 285/2002 Coll ., on donation, drafts and transplantation of tissues and organs
and amending certain acts (transplantation Act), and Act no. 111/2007 Coll
. amending Act no. 20/1966 Coll., on care
about the health of the people, as amended, and certain other laws, and due to the fact
is authorized to comment on the petition, took [and contr.
Constitutional Court dated 27. 6. 2000 sp. Nos. Pl. US 12/99 (N 98/18
SbNU 355, 232/2000 Coll.) ^ 1].

16th In a statement dated 2 2. 2007, authorized the Chairman of the Senate
MD. Premysl Sobotka, recalled that "in the world there are many
medical professional chambers with mandatory membership doctors [various
range], eg. Austria, Germany, Belgium, France or Ireland,
Canada, United Britain have mandatory registration ", and that a similar issue
(mandatory membership in the medical chamber) dealt
European court of human rights decision in the" Le Compte, Van Leuven and De Meyer
v. Belgium of 23 . 6th 1981, and Albert and Le Compte v. Belgium
of 10. 2. 1983 ', which concluded that the professional chamber (considered
case of the Belgian Medical association) can not be regarded as an association of
under Art. 11 European Convention on human rights (hereinafter
"the Convention"), therefore "the duty of physicians to enroll in its list and
subject to the authority of its institutions have the effect of restricting and even less
the suppression of the rights guaranteed under Article. 11 paragraph. 1 of the Convention ". It is worth considering, says
in a statement that the duty of every physician who performs the territory of the Czech Republic
medical profession, be a member of the Czech Medical Chamber,
not then consider "analogy ... and in relation to Charter ".
In the statement, the President of the Senate also commented on the fact that the petitioners
invading unconstitutionality also compulsory membership of the Czech Dental Chamber
and the Czech Chamber of Pharmacists.
The Ministry of Health


17th In an opinion dated 29. 3. 2007 Ministry of Health (
"Ministry"), represented by Minister MD. Tomas Julínek
"however recognizes" the specific nature of self
public corporations, and their difference from both clubs in the true sense
(voluntary associations) and the associations that are solely to defend the interests of their socioeconomic
members, as fully sufficient condition for
"non-application of Art. 20 and 27 CFRF in their full extent" these circumstances
perceive. The ministry is also necessary when considering the constitutional conformity
challenged legislation based not only on Art. 20 and Art. 27
but also from Art. 26 of the Charter in conjunction with Art. 4, paragraph. 4 and explore | || whether the law imposed compulsory membership of a professional body does not interfere
very essence of the right to free choice of profession.

18th The Ministry reminded the three components of the proportionality test, and

's Criteria of suitability, necessity and weighing of conflicting values ​​
by their "seriousness".

19th It considers that the criterion of suitability "is filled at best only partially
" because undoubtedly a legitimate public interest can be "significantly
appropriately" to ensure the performance of the method of direct government without
there were conflicts of interest among members, which
these public corporations defend the interests of society. Autonomous corporation with mandatory membership
According to the ministry, "clearly gravitating to a form
cartels, which in comparison with the provision of health services for
industry standard, albeit controlled conditions, resulting in lower efficiency
handling financial resources as well as the deterioration
quality health care. " The Ministry also highlighted that "the breadth
independence CLK" no "in Europe, compared with chambers gifted
exercise of public power period".

20th From the viewpoint of necessity principle of compulsory membership of the Czech Medical Chamber
The ministry will not stand "clearly" as it pursued
goal can be achieved again (for example) "direct exercise of state administration
". And although there will be a restriction of the right to free choice of employment
because "every doctor will have to reckon with the fact that his
activity will oversee an institution," but this system means
ministry, characterized more "implied" independence
state authority carrying out direct state administration in comparison with
Czech medical chamber, whose elected officials are apparently motivated by their electors
defend their interests rather than the interests of their potential competitors
( candidates for membership), or the public interest, such as "
for a thorough examination of specific failures of individual members of the chambers."

21st Regarding the criterion of "seriousness", while according to the ministry, the
due to the unquestionable public interest, who works here, "
no action or imposed duty, which may lead to ensure maximum
quality of care for human health can not be considered inadmissible
with reference to intervention in certain constitutionally guaranteed rights ", this does not prejudice
argument for greater efficiency and impartiality of supervision over the exercise of the medical profession
state authority over the" completely independent
autonomous corporations. " On the other hand, the ministry recognizes that
conditions with which it is associated with the establishment and existence of the membership (§ 4 and § 9.
2 of the Act no. 220/1991 Coll.), But do not constitute a disproportionate burden, and | || legitimate and the obligation to pay the "chamber" contributions, of course
provided "the adequacy of the above."

22nd The "European" conditions, according to the Department adhere to the "two fundamental
models"; The first suggests "very independent chamber
voluntary membership and significantly reduced power by public authorities", the second
is a "mandatory chamber membership and extensive
publicly-privileges of power, but to a large extent subject to control power
efficiently". Czech Medical Chamber presents under the Ministry
hybrid that not only their legal privileges, "but also practical
functioning" beyond the role of independent, yet self-governing entity
executing public power and "a tendency to interfere
areas covered by Article. 27 CFRBF in pursuit of enjoying the benefits as corporations
ex lege, and quasi-union organization defending
economic and social interests of its members. " Experience shows, the ministry said that those
roles are not always fully compatible, especially when a conflict of interest
its members and the public interest, especially when valid regulation lacks
"insurance" similar "significant supervisory powers of the Ministry | || justice "over the Czech Bar Association.

Czech Medical Chamber

23rd Czech Medical Chamber, acting president of MD. Milan Kubek,
in the opinion of 6. 2. 2007 first - the issue of the status and competence
'chambers in a democratic legal state "- recalled
" self-governing traditions of our nations ", announced in the preamble || | Charter as a basis for further reflection stressed that professional chambers,
as a public corporation established by law and include certain
range of public powers, in a decisive sense apart from

'Associations, companies, civic associations and other legal
association ", which are contrary nature of private entities. For
unsystematic, "apparently politically targeted" and "remarkable"
then identified the fact that the proposal is directed only against the Czech Medical Chamber.

24th The alleged compulsory membership of the Chamber stated that "the fact that someone is mandatory
a professional body, does no membership within the meaning of the league, even
Act no. 220/1991 Coll. this term is used, but the granting of rights
therefore not an obligation, to participate in this government, "which is why Art. 20 and Article
. 27 of the Charter of the professional associations may not apply, because
fall only to private corporations. The term "member"
Czech Medical Chamber assimilates the term "citizen of the state" or "
member of the community", and the inappropriateness of using the category of "membership" can, in its view, demonstrate
on Law no. 85/1996 ., on advocacy, which she
deliberately avoided in favor of the concept of "compulsory registration". Any
powers atrahování Czech Medical Chamber, the state is not in accordance with the Chamber
"question at the level of constitutional law, but at the level of political decision",
and would necessarily have to lead to the annulment of Act no. 220/1991 Coll. whole.
Consequently, it requires an "office," which would be the agenda of the Czech Medical Chamber
assumed, which would mean not only the state's obligation to "pay it", but
particular problems with establishing a "team officials" that would at
specificity professional practice of medicine was able to present powers
chambers "deal". On the issue of benchmarking constitutionally "protected
values ​​and their alleged collision" The Chamber expressed so that "
doctor in the Medical Chamber in fact mandatory not sit, but his writing (in
Currently membership), it is only evidence of his fitness to
practice of medicine and that simultaneously subject to the supervision of professional
chambers "; Therefore, in this respect it is the argument of the proposal
completely misleading, as subject to supervision by the professional body established by law
does not mean denial of the right to nesdružovat.

25th Eligibility rules complained to fulfill "the intended purpose" is
according to the statement given by the Chamber functions of professional supervision and disciplinary functions
while if it were vice versa membership in the Chamber selective
respectively. optional, "would be the disciplinary authority and the entire professional supervision
chamber over the proper performance of the medical profession impossible because
eventual exclusion from the chamber doctor would not be prevented
continue to exercise the medical profession."

26th Not suitable or between doctors 'private' and doctors
"staff", and on particular individual cases Chamber
reasons why it has to be professional supervision is maintained even in the second category
doctors (for example, because not everyone case ethical or professional misconduct
doctor's case, that would be cause for termination of employment
).

27th In relation to the "international context" the Chamber said that "
Council of Europe encourages its member states to replace the position of the authorities
government action autonomous professional" and recalled that in
number of Member States of the European Union pays principle
mandatory membership in relevant medical chamber, elsewhere it applies the "principle of mandatory registration
not call the membership, but ultimately it comes to the same thing
", respectively. the difference is rather in the plane 'and Semantic its way
psychological. "

28th The chamber rejected the objection that "acting politically," and
pointed out that in some cases (as in the legal profession) "must defend and
citizens' interests against the interests of the state", as is the case for example the area
assessment activities of doctors.

Union of Health and Social Care of the Czech Republic

29th In the opinion of 5. 2. 2007 Union of Health and Social Care
Czech Republic (hereinafter "union") on behalf
chairman RNDr. Jiri Schlanger especially emphasizes the significance of the distinction between doctor
- employee and the doctor performing the medical profession
separately on their own account and own responsibility (typically about
private practitioners, private outpatient specialists, etc.).
As in the case of doctors - called employee performance is subject to the direct control
employer and one against third parties for them lies (fundamentally)

Responsibility is with them "legally justified only voluntary membership
chamber", respectively. compulsory membership here would be maintained exclusively by
executives of healthcare facilities (
deputy for Medical Care and Primary). According to the union is therefore
alternative normative measures, less restrictive concerned
constitutional values, compulsory membership in the chamber for "private doctors"
and "doctor - senior executives of healthcare facilities", and direct power
government in relation to others. Regarding the benchmarking of collision
standing constitutional values ​​of the union, referring to
previous conclusions expressed so that the solution "conflict of fundamental rights" in the case
"for doctors - regular employees of health care facilities'
proportional, and therefore not acceptable.
Petitioners


30th The petitioners, in its reply dated 18. 5. 2007 first outlined
treatment for supervising the medical profession in some European
countries (Germany, Austria, Belgium, Norway,
Netherlands, Ireland, the UK and Slovak) and concluded that
"the current system in the Czech Republic, which confers limitless powers of the Czech medical chamber
without any state supervision is quite different from other European
systems that adversely interfere with the constitutionally guaranteed
rights. "

31st Further expressed the conviction that "the right to a medical professional
government" is not constitutionally guaranteed right highlights the views expressed in
legal theory under which the constitutional concept of the exercise of public authority
in the Czech Republic, in the broad sense "is flawed and expressly
counts only with local government, while not know the existence of other forms of government
such as professional autonomy, economic, scientific,
social, educational or academic "(" Constitutional law CR 1, MU, Brno | || 2003 '), and his "poor institutional support" can only be found in the introductory statement
Charter of fundamental rights and freedoms, which recognizes the constitutional framers
"self-governing traditions of our nations."

32nd The petitioners oppose the Assembly of Deputies again
stressing that compulsory membership in a professional organization is not the only conceivable solution
as the control and surveillance of individuals
exercising certain professions is based on mandatory membership
such control authority but the powers that are delegated such authority
. The required proficiency checks, repeat petitioners can provide
itself become their "doctors-specialists." Question zátěžlivosti
conditions of membership of the Czech Medical Chamber, according to the petitioners'
completely irrelevant "because anyway (even if the conditions laid down" completely
minimal, as currently ") is a" membership
forced and compulsory ". Cancellation similar provisions of the Act no. 220/1991 Coll.
relating to compulsory membership of the Czech Dental Chamber and the Czech Pharmacists' Chamber
been suggested, because "it is necessary to intervene in the legal system in
as little as possible" and "the chamber fulfills its function somewhat better than the CLK and | || without undue excesses ", which is why it is necessary to" amendment "provisions that
may be unconstitutional as well, leaving it to lawmakers.

33rd In connection with the opinion of the Senate petitioners questioned the aptness
voucher judgments of the European Court of Human Rights of
23rd 6th 1981 in Le Compte, Van Leuven and De Meyer v. Belgium,
application no. 6878/75; 7238/75 and dated 10. 2. 1983, in the case of Albert and Le Compte
, application no. 7299/75; 7496/76. The former
judgment was based on a situation where members of the Belgian Chamber of Physicians and their interests were and still are
very strong way, directly controlled by the state, which significantly
speaks both to the establishment of the board members of the chamber and into || | amended important provisions chambers or in disciplinary proceedings, and therefore
according to the petitioners is not applicable to the different situations in the Czech Republic, where
"CLK reminds currently rather unions or associations
private law", does not protect minority opinions' doctors
- Freeholders, "politically engaged, and its members are" forced to
extra pay such a chamber. " As to the second judgment of the European Court of Human Rights
appellants submit that the relevant parts of the
"only reliant" on previous decisions.


34th In contrast, the appellants rely on "recent case
European Court of Human Rights" that "
law deals primarily with nesdružovat" and that it explicitly does not exclude
public corporations, as well as case law, which concerns
formal creation or legal status on the one hand and the effective operation of the association and
corporations on the other side ( "§100 Chassagnou and others v. France, the
29 April 1999"), or case law that
, the negative component of freedom of association - albeit in the context of "forced entry into the union
organization" - confirms ( "judgment Sorensen and Rasmussen v. Denmark, the
on 11. 1. 2006" in "§ 54 ").

35th The petitioners expressed the same suspicion that earmarking
association of public law from the concept of an association within the meaning of Art. 11 of the Convention is fully
purpose, especially since the association established by law may be violated
freedom to nesdružovat and not be forced to associate, as
private association can hardly have the means to secure and enforce
mandatory membership in them; to add that "
from the wording of Article 20 of the Charter of Fundamental Rights and Freedoms also does not follow
difference for application to the association of private or public law."

36th The statement of the Ministry of Health petitioners contrary
identify themselves. They also see no reason, especially given the powers entrusted
Czech Medical Chamber and its de facto "functioning", for which it would
can be removed from the scope of Article. 20 and 27 of the Charter.
Also highlighted the ministry's argument that the exercise of this management of public affairs directly
state authority, the institution in comparison with the CLK independent because
its elected officials are logically motivated their voters to "defend their particular
interests such as doctors, rather than the interest of patients, the public interest
". The petitioners indicate that they are in agreement with the Ministry and the
judgment that the statutory definition of the Czech Medical Chamber "significantly" deviates from
"European chambers of medical treatments." Also pointed out that Article. 11 paragraph.
2 of the Convention is enshrined criterion of "necessity", while "the word


Necessary not as flexible as expressions


Useful or


Appropriate ", and suggested that the case for the statutory regulation
Czech Medical Chamber confused the concepts of" necessity "and" suitability "occurred.

37th The expression of the Czech Medical Chamber petitioners'
fundamentally disagrees "if it is claimed that the current membership of medical
chamber is" only the nature of writing "; albeit not under any circumstances is obligatory
membership in the Medical Chamber itself unconstitutional, the unconstitutionality of the
based "only in connection with the adjustment of medical associations, which in the case
CLK begins to close in some respects to the association private law ".
According to the petitioners is not correct that, in the case of the optional
membership would have oversight from the chamber became impossible because it is possible
consider a system "similar to the English", "... where oversight of the chamber || | subject to all registered medical practitioners, while the chamber even
sets its own code of ethics. " Council of Europe Convention on which
Chamber recalls do not affect the right of professional autonomy, but only
territorial governments, and the recommendations of the Committee of Ministers are not Member States of the Council of Europe
legally binding. As far as the Chamber dovozovaného relationship
doctors and state petitioners argue that under the assessment activities is
doctor rather in the position of a kind of "kvaziorgánu" state and its activity is
directed against the patient, and not against the state as claimed.
Expression Comoros - as a whole - at the end of petitioners evaluated by
served with him, "her natural desire to remain in its current position
self-governing professional organization that has all conceivable
permission without and anyone responsible in any way
controlled ".

38th The petitioners finally agreed trade union health and social care
Czech Republic to the extent that it is necessary to take into account the differences between the two types
exercise of the medical profession (ie. Private doctors and doctors
- employees), but also stressed the if "
guaranteed freedom to associate freely for the protection of economic and social interests
everyone must both for the physician staff and doctors privately
pay well."


39th On 6. 6. 2007 Constitutional Court was "Amendment of Statement dated 18
fifth 2007 Magazine CLK ", enclosing a copy of the 15 Czech
Medical Association published journal Tempus medicorum, Vol. 2007, no.
Fifth The petitioners explained that they did so because to this
"showcase" Czech Medical Chamber, the Constitutional Court could on this organization
"make an immediate image".

40th Finally, on 30. 6. 2008, the petitioners submitted another "Adding
expression," which reported the controversy with "proponents of mandatory membership" and
referring to earlier arguments raised her in detail and further develop
. They reject comparisons government and state authorities, as well
argument that puts flush citizenship and nationality
a municipality or region with mandatory membership in a professional organization. "From this perspective
" he is said to have a sense of territorial autonomy, but she focuses on
local issues, and "unlike CLK generally does not issue politically
clear-cut prints" and "does not endorse the views of a particular political party."
Citizens if they disagree with manifestations of their community, it may be changed, allowing the doctor
may not be the outward manifestation of the Chamber reach the level of "not unlike the pre-November
Red Law" and recall "rather basic || | organization of a political party, "which documented the petitioners
connecting the next issue of the magazine Tempus medicorum.
The petitioners acknowledge that the establishment of self-governing professional association is "only a political decision
", which in itself is not a breach of the constitutionally guaranteed fundamental rights
, and it does not always have to be unconstitutional mandatory membership, reminiscent
However, as noted earlier, it is unconstitutional to become "in connection with the adjustment
medical association", when approaching an association of private
law. Repeatedly "as absurd," considered view that the mandatory membership is not linked
obligation, but a right to participate in government, because
doctors said they now "only the right to choose whether to exercise their profession or not
". Then again contradict the view that Art. 20 and Art. 27
Charter "on the professional chamber" does not apply because, as previously
also said, "legislator using the concept of membership and the regulation of its activity approached
CLK private associations, "which is so in its factual activities
truly reflected. While it is always necessary to "keep
list of doctors from which it will be possible to verify their eligibility to exercise their profession
", however according to the petitioners, compulsory membership in the CLK
justify, because they can be entrusted to a competent state authority. Finally
petitioners consider to be inappropriate, the argument that the Chamber
acts against the state to protect citizens' health (which approximates chamber
lawyers) because - among other things - until now, as shown by the "historical experience
"operates not for the protection of patients, but the interests of their own
respectively. themselves and their doctors' usual financial "
requirements. The petitioners summarize that compulsory membership is not justified by either
need to maintain a list of doctors or protecting patients because
first task can be ensured without the need and the second chamber "not and will not
inherently can not fulfill." Claiming that the state take over tasks of the Chamber
would be inappropriate "given the specificities of the medical profession", then
their opinion "mere speculation" that refute the adjustments that
"work" abroad.

III.
Hearings


41st During the hearing, representatives of the procedural parties (petitioners representative
a person authorized to act on behalf of the Chamber of Deputies)
summarize the arguments contained in the previously outlined by written submissions.
Petitioners' representative stressed above all the specifics of the legal regulation
Czech Medical Chamber, consisting of her extraordinary autonomy in
lack of oversight by the state, including slurred
judicial oversight. A representative of the Chamber of Deputies opposed this and made it clear that the government considers
generally considered "correct" mode
organizing the exercise of the medical profession over the management of the state.

IV.

The petitioner

42nd Locus standi to bring the present petition the petitioners conclude
Article. 87 paragraph. 1 point. a) of the Constitution, according to which the Constitutional Court decides
repeal of laws or individual provisions, if

Inconsistent with the constitutional order, in connection with § 64 para. 1 point. b)
Law on the Constitutional Court, according to which the proposal to repeal a law or its individual provisions
within the meaning of Article. 87 paragraph. 1 point. a)
Constitution is entitled to make a group of at least 17 senators. This condition is the
case.

V.

Constitutionality of the legislative process

43rd According to § 68 para. 2 of the Constitutional Court's decision in the proceedings
repealing laws and other legislation under its Title Two, section
first assesses whether the Constitutional Court whether the contested act was adopted and issued
the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
. However, this requirement can be effectively utilized only in the case
it is an effective institutional arrangement under which was under review
legal provisions are adopted; it follows that with legal regulations issued before the entry into force
Constitutional Act no. 1/1993 Coll., Constitution of the Czech Republic
Constitutional Court is authorized to review only their consistency
compliance with the existing constitutional order, but However constitutionality of the procedure
their creation and observance of norm (cf.
Constitutional court of 6 10. 1999, Ref. Nos. Pl. ÚS 9/99, N 135/16 SbNU 9
289/1999 Coll.). Indicated in its entirety falls on the assessed thing
if the law no. 220/1991 Coll., The former Czech National Council
approved on 8. 5. 1991 and came into force already on 1 6th 1991, that .
before the entry into force of the Constitution of the Czech Republic; however, the contested provisions of §
paragraph 3. 1 had no change in this law, implemented in the period
longer relevant (ie. Act no. 285/2002 Coll., and Act no. 111/2007 Coll.)
prejudice . Adequate procedural deficiency Moreover, the petitioner pleaded not
.

44th Following this finding, the Constitutional Court to assess the content
contested provisions of the Act in terms of its compliance with the constitutional order of the Czech Republic
[Art. 87. 1 point. a) of the Constitution].

VI.

Text of the contested provisions of § 3 para. 1 of Act no. 220/1991 Coll.

45th § 3 par. 1 of Act no. 220/1991 Coll., Which the petitioners
attacked, reads: Every doctor who performs in the Czech Republic
medical profession in curative and preventive care must be a member of the Czech || | medical Association.

VII.

Local government and constitutional order of the Czech Republic

46th Issues of professional autonomy to constitutional review opens with
lower frequency than that of the territorial government, which is why even infrequent
their substantive consideration in the jurisprudence of the Constitutional Court. The doctrine
can highlight the term (next to the territorial government), "other forms of public
government," where an open list ranks the professional autonomy,
academic, economic, and educational pojištěnecká (Filip, J .: Constitutional
law of the Czech Republic. 1, Basic concepts and institutes. Constitutional foundations
Czech Republic. Brno: Masaryk University, Ed. Supplement, 2003, p. 501).
Local government


47th The Constitutional Court dated 19. 11. 1996 sp. Nos. Pl. US 1/96 (N
120/6 SbNU 369, 375, 294/1996 Coll.), Stated that "
considers local government as an irreplaceable component of the development of democracy.
Local self-government denotes the right and ability of local authorities, within the limits set by law
, under their own responsibility and in the interest of the local population
regulate and manage a share of public affairs. "In the judgment of
on 9. 7. 2003, sp. Nos. Pl. US 03/05 (N 109/30 SbNU 499, 211/2003 Coll.)
Added that according to the initial thesis, to which the concept of autonomy built,
is the foundation of a free state free municipality, then (the As regards the importance of regional
) at a higher level spatial hierarchy
self-governing community of citizens, which is the county.
Professional autonomy


48th The actual professional autonomy, the Constitutional Court spoke -
in relation to the profession of veterinary surgeon - in the judgment of 16. 4. 2003, file no. zn.
I. US 181/01 (N 58/30 SbNU 97) and that it is "on issues concerning
so. self interest, namely professional chambers with mandatory membership
associating self-employed individuals in certain occupations
, which is due to strong public interest in the proper administration.
These chambers are legal entities of public law, established
law, with authority to issue various internal regulations
chamber and its members that they have with regard to compulsory membership subordinate.

Chamber and of those members - members of a particular profession -
carries certain privileges of power, typically including -
disciplinary powers. " As an obiter dictum, the Constitutional Court to issue "whether or not
membership in the Chamber of Veterinary Surgeons of the Czech Republic obligatory," he added
that due to mandatory membership in the Chamber and said the public interest
to the exercise of the profession " (similar to the regular activities of lawyers,
notaries, doctors, pharmacists, patent attorneys, etc.). "
chambers are entrusted to" certain seigniorial privileges that this requirement could
guarantee. The very existence of any government on the principle of limiting
state bureaucracy, allowing people to immediately take care of the things that
concern them directly and thereby contribute to greater freedom and independence
individuals. Therefore, even professional autonomy is a democratic constitutional state
supported ". "Also in its activities, however, must insist
unconditional respect for fundamental rights and freedoms that are protected under
independent judiciary, and in its framework as" ultima ratio "
under the protection of the Constitutional Court as a judicial body protection of constitutionality. "

49th Under the constitutional basis of professional autonomy can be Art. 21 paragraph. 1
Charter, which guarantees citizens the right to participate in the administration of public affairs
(Filip, J .: Constitutional Law Czech Republic. 1, Basic concepts and
institutes. The constitutional foundations of the Czech Republic. Brno: Masaryk University,
exp. Supplement, 2003, p. 502). It is useful to refer also to the Preamble of the Charter
which "Federal Assembly based on the proposals of the Czech National
Council and the Slovak National Council, ... Proceeding from the ...
democratic and self-governing traditions of our nations ... Has enacted this Charter
fundamental rights and freedoms ".

50th Otherwise, the constitutional order does not express support for the creation of this type
government and the requirement to establish a so-called. Professional chambers from here to
legislator does.

51st Legal theory formulated conclusion that the Constitution does not expressly
other public forms of territorial autonomy than government does not, however
which certainly does not indicate that it excludes (Filip, J .: Constitutional Law
Czech Republic. 1, Basic Concepts and institutes. Constitutional foundations of the Czech Republic. Brno:
Masaryk University, Ed. Supplement, 2003, p. 503); Moreover, there is
"principle of a democratic state under Art. 1. 1 of the Constitution of the Czech Republic and
unwritten principle of the social state, to which should also apply
principle of participation in public affairs, and the more the administration
things direct concern to citizens and to be one way or another
organized patrimonial "(p. 506 ibid).

52nd Even if it were possible to agree with the petitioner that the constitutional
direct support for professional self-government "is weak", said of the
given that the government in this context is entirely neutral, and
favorable evaluation tendencies particularly in relation to them confronted
administration "state" are evident.

VIII. Protection of public health

53rd Determining factor for the organization of supervision over the exercise of the medical profession is so
- a situation which can not be conclusively inferred the existence
special constitutional guarantees of the right to professional self-government -
protection of public health. Within these limits, the constitutional order provides
lawmakers relatively wide discretion in how to specifically ensure
; security (organizations) the proper exercise of professional medical care
(exercise of the medical profession) is undoubtedly one (and important)
requirement that the constitutionally enshrined this goal was achieved.
According to Art. 6 Sec. 1 of the Charter everyone has the right to life and Art. 31 provides
that everyone has the right to health protection.

54th In line with the Constitutional Court of 27. 9. 2006, sp. Nos. Pl.
US 51/06 (no. 483/2006 Coll.), To include noted that "the right to life and health
, as regulated in Article. 6, paragraph. 1 and Art. 31 of the Charter || | fundamental rights and freedoms are absolute fundamental rights and values ​​
".

55th Similarly, can the meaning of life and health in the context of constitutional
inferred from Art. 2 European Convention on Human Rights
(published in the Collection of Laws under no. 209/1992 Coll.), Art. 12 of the International
Covenant on economic, social and cultural rights (
announced in the Collection of laws under no. 12/1976 Coll.), Art. 24 of the Convention on the rights of the child
(published in the Collection of laws under no. 104/1991 Coll.) , Art. 11 and Art. 13

European Social Charter (promulgated under no. 14/2000 Collection of International Treaties
) or of Art. 2 and Art. 3 of the Convention on the protection of human rights and human dignity
regard to the Application of Biology and Medicine
amended by the Additional Protocol of 12. 1. 1998 (promulgated under no.
96/2001 and no. 97/2001 Collection of international Treaties).

56th Worth noting that according to the Council conclusions on common values ​​and principles in
European Union Health Systems (2006 / C 146/01)
published in the Official Journal of the European Union on 22. 6. 2006
health systems an integral part of Europe's social infrastructure.
In discussing future strategy should be a common concern
protect the values ​​and principles that underpin the health systems of the European Union
. The EU Council also took note of the intention of the European Commission
develop a Community framework for safe, high quality and efficient
health care, and strengthening cooperation between Member States and
providing clarity and certainty over the application of Community law || | health services and medical care. According to the Statement
common values ​​and principles of health ministers of the European Union,
underpin Europe's health systems, and which is annexed to the conclusions outlined
Council of the European Union, are core values ​​as indicated


Universality, access to good quality care, equity and solidarity
which various European Union institutions in their work is widely recognized.
All health systems in the European Union is trying to focus primarily on
patient and responsive to individual need, but
different Member States have different approaches to applying these values ​​in practice.
Health Ministers took note of the growing interest in the question of the role
market mechanisms (including competitive pressure) in the management of health systems
, yet stated that it is up to the Member States
to determine their own approach with specific interventions tailored
health system.

IX. Systems for supervising the medical profession

57th Detailed information on conditions for access to the medical profession, as well as
oversight of its performance, the study submitted to the World Health Organization
Regulation and Licensing of Physicians in the WHO European Region
, published in 2005, and is available from | || http: //www.euro.who.int/document/e87789.pdf.

'58. Professional association of doctors in France, the National Medical Association
(presented at http://www.conseil-national.medecin.fr/)
character has a "public service" (public service); Act stipulates as a condition of exercising the profession of physician
membership in the Chamber ( "obligatory combines all
doctor performing a medical practice") and the Chamber decides to write
list of doctors. Chamber watch on compliance with ethics and professional quality
medical care and be responsible for disciplinary action against its members
. It operates in Austria Medical Association and individual countries
Medical Chamber Austria (http://www.aerztekammer.at/), which includes as full members
all physicians who are authorized to exercise the medical profession.
Chamber keeps a list of all doctors in Austria legitimate provincial
Comoros for the job, whether they are regular or associate members, and is also
authorized to conduct disciplinary proceedings. The chambers are also called to
protection and promotion of employment, social and economic interests of physicians.
Central organizations in the medical self-government in the Federal Republic of Germany
a
Federal Medical Association (http://www.bundesaerztekammer.de/). Status of medical chambers in
Federal Republic of Germany is governed by the laws of individual countries. Eg.
Exist in Bavaria district and county medical societies and medical
chamber, and every doctor practicing there profession (or live here)
a reporting obligation for the county medical association, where after paying the contribution becomes
member. Also, professional associations in Belgium, which is called
Medical Chamber (http://www.ordomedic.be/)
has the status of a public corporation with legal personality, in which membership is mandatory
, and medical practice they can perform only those physicians who are
registered with the Chamber. The Chamber decides on entry into the list of doctors
ensure compliance with the rules of medical ethics and practice of medicine, and
pursue disciplinary proceedings.


59th In contrast, in the UK should "protect, promote and maintain
public health and safety"
The General Medical Council (http://www.gmc-uk.org/), which is characterized by the nature of the corporation (points || | corporate); all physicians must be mandatorily registered with the Council.
The Council consists of elected members (all registered doctors)
appoint additional members designated institutions (universities with medical faculties, Royal Colleges
) and nominates the Privy Council. (Davies, M .: Medical
Self-regulation. Crisis and Change. Medical Law and Ethics, Ashgate,
2007, p. 15 et seq .; the Parliament of the Czech Republic, Office of the Chamber of Deputies
, Parliamentary Institute : the role of medical chambers abroad
background information no. 5033, January 1994).

60th Ratios of practicing medicine in the first Czechoslovak Republic
been governed by Act no. 113/1929 Coll. a. and n., a medical chambers
(as amended by Act no. 176/1934 Coll.,. and n.) and (§ 3 para. 1) that
"all physicians who permanently reside in perimeter medical chamber
perform medical practices ... they are members of the medical Association. " That
true of doctors' provided for in the civil service (civilian and military
) "who were members of the Chamber," only so far as regards their
mimoslužební practice. " The Chamber had the character of a public self
corporation and its hestná Board exercised disciplinary authority (
§ 27 par. 1).

X. Freedom of association

61st Due to the petitioner within the established constitutional
assessment under the provisions of § 3 para. 1 of Act no. 220/1991 Coll. the key question becomes
its conformity with freedom of association, respectively.
its anchoring in the constitutional order.

62nd Art. 20 paragraph. 1 of the Charter, to which the petitioners pointed out, provides
that the right to freedom of association is guaranteed and everyone has the right
along with other associate in clubs, societies and other associations.
Under Article. 20 paragraph. 3 of the Charter can exercise these rights be limited only in cases specified by law
if it is in a democratic society
necessary for national security, protection of public safety and public order
, prevention offenses or for the protection of the rights and freedoms of others
.

63rd Art. 11 paragraph. 1 of the Convention implies that everyone has the right to freedom
peaceful assembly and to freedom of association with others, including the right to form
to defend their interests or unions to join them.
Under Article. 11 paragraph. 2 of the Convention on the exercise of these rights can not be imposed
no restrictions other than those prescribed by law and are necessary in a democratic society
in the interests of national security, public
safety, prevention disorder or crime, for the protection of health or morals or the protection
rights and freedoms of others. This article
not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, police and
government.

64th The negative component of freedom of association (ie. A "negative right to freedom of association
") is generally understood then free to decide



Not be a member of an association and a corresponding ban anyone to coerce
association (cf. Constitutional Court dated 11. 6. 2003
sp. Nos. Pl. US 40/02, N 88/30 SbNU 327, no. 199/2003 Coll.).

65th It is not doubtful that the meaning and scope of the term "association" enshrined in Art.
11 paragraph. 1 of the Convention and Article. 20 paragraph. 1 of the Charter, ie. The "general norm
right of association" (Klima, K. : Commentary on the Constitution and the Charter. Plzeň:
Publishing Ales Cenek, 2005, p. 757)
are identical. The existence of relevant differences, or the reasons for her
neither claims nor the petitioners.

66th The petitioners are turning, as mentioned above, here to claim that
"earmarking an association of public law from the concept of an association within the meaning of Art. 11
Convention is entirely purposeful" and that "the wording of Article 20 of the Charter of Fundamental || | rights and freedoms also no way apparent difference for application to the association
private or public law ', respectively. invoke - namely -
differences Czech Doctors' Chamber of the Belgian Medical Association, examined
European Court of Human Rights in its judgment of 23 6th 1981 in
Le Compte, Van Leuven and De Meyer v. Belgium , application no. 6878/75;
7238/75, and also the "recent jurisprudence of the European Court of Human Rights
".

67th It is therefore necessary to examine whether the Art. 11 of the Convention and Art. 20
paragraph. 1 of the Charter ratione materiae applicable in relation to the Czech Medical

Chamber.

XI.

The practice of the Convention organs

68th Interpretative is decisive to the practice of the Convention organs
viewpoint that the term "association" normatively preliminary obstacle in Article. 11 paragraph. 1
Convention to be given an autonomous meaning.
Classification in national law has only relative value and constitutes only a starting point.

69th The question whether the Medical Chamber is within easy reach Art. 11 of the Convention, dealing with
European Court of Human Rights in its judgment dated 23. 6. 1981
in the case of Le Compte, Van Leuven and De Meyer v. Belgium, complaints no.
6878/75; 7238/75, and in decisions on the acceptability of 6. 11. 2003
things Popov and others Vakarelova, Markov and Bankov v. Bulgaria,
application no. 48047/99, 48961/99, 50786 / 99 and 50792/99, and
European Commission of human rights in its decision on admissibility of 8 7, 1992 in the case
Simon v. Spain, Application no. 16685/90. In these cases, the authorities
Convention found that the assessed institutions are not associations within the meaning
that article, which is why an intervention into negative component of freedom of association
mandatory membership in them could occur.

70th European Court of Human Rights in its judgment dated 23. 6. 1981
things Le Compte, Van Leuven and De Meyer v. Belgium, application no. 6878/75;
7238/75, dealt with the Belgian Medical Association. He noted that the
institutions under public law, was established not by individuals, but by
law is integrated into the state structures and judges appointed by the king
are appointed to most of its organs. The Chamber pursues the objective
in the public interest, namely the protection of health, by ensuring that relevant laws by
form of public control over the practice of medicine;
in the framework of competencies for her especially required to keep a list of members of the Chamber
. The performance of the tasks entrusted by the State enjoys some of the administrative,
well as regulatory and disciplinary prerogatives outside the realm of ordinary
Act, and thus uses legal means of public power.

71st European Court of Human Rights in decisions on the acceptability of
6th 11th 2003 in the case of Popov and others Vakarelova, Markov and Bankov in.
Bulgaria, application no. 48047/99, 48961/99, 50786/99 and 50792/99,
assessed Bulgaria union of doctors and dentists Union doctors in Bulgaria
(hereinafter referred to as "Union"). He recalled that the Convention institutions to regulators
professions consistently looks as though it is an association within the meaning of Article
. 11 of the Convention; usually the aim of these bodies established by law
regulation and support professions, which perform important public functions
aimed to protect the public. They can not therefore be likened
to private associations or trade unions, and remain
integrated into state structures. The court is not (yet) have to deal with in
specifically that - in this case, both the Union and characterized by its
functions, structure and membership - are associations falling under Article.
11 of the Convention, or whether they are rather public institutions,
where to freedom of association opposing the compulsory membership in them can not intervene.
In this context it noted that the EU - like the Belgian
Medical Association - pursue objectives in the public interest, namely the protection
health, the fact that under the relevant legislation
exercise public control over the practice of medicine ; above all, keep a register
doctors and dentists, are responsible for creating rules and fitted
disciplinary powers, propose codes of professional ethics for doctors and dentists
, adopting the rules of good practice together with the National Health Security Fund
by Act on
professional organizations of doctors and dentists and awarded penalties for malpractice.
The Court therefore concluded that EU procedures are public authorities. He must also deal with specific
complainant's objection that the Union
private associations as they are delegated to the negotiation and conclusion of National
framework contract with the National Health Fund
security, which according to them is comparable to the collective agreement ,
which lays down the conditions under which physicians and dentists work and are rewarded
(which is the task of the trade unions, which is why trade union have characters
organizations falling under the scope of Art. 11 of the Convention). However, the court here
stated that the National Framework Agreement does not regulate such issues as
wages and working conditions; the contract relates to payments to providers

Health care may require the National Health Fund
security services for the insured as well as the quality, quantity and method
providing these services. The contract is therefore by the Court akin
control the price mechanism than the collective agreement; if for example
selected hospitals concluding an individual contract with the National Health Fund
security under the National Framework Contract can
hardly argue that it is a relationship similar to the relationship between employee and employer
. Although it is true that individual contracts negotiated
(private) physicians and dentists extensively affect the way you work and
prices that can be charged to policyholders, but do not resemble
labor contracts as merely establish the conditions under which they will
services provided to patients, and the amount that can physicians and dentists
require the Fund for provided health services. The Court recalled that
reimbursement for medical services provided to patients with another type
health insurance or no health insurance contracts are not regulated
. He also referred to "recent"
decision of the Bulgarian Supreme Administrative Court, which found that the contract is připodobitelná
to secondary legislation and subject to judicial review.
The court therefore concluded that the negotiations on the Treaty and its closure
not be inferred that the Union fulfills the role of trade unions; Union structure is described in detail
law on professional organizations of doctors and dentists, including
structure and function of the central and regional authorities in both the EU and
membership in these bodies (the statutes Union addresses only minor issues such as accurate
the number of board members and the technical details of procedures constitution
authorities). The court also noted that membership in unions
based on the decision of an individual to pursue a profession that requires special
legal regulation and not by other factors such as.
Land ownership (and conversely Commission report dated 30 10 . 1997 in case Chassagnou
and others v. France, application no. 25088/94, para. 89).

72nd The European Commission of Human Rights in its judgment of 8. 7. 1992
things Vialas Simón v. Spain, Application no. 16685/90, noted that
Medical Association in Spain are public institutions established by law
and pursuing the public interest - the protection of (public) health - by
that provide some public control over the practice of medicine and medical ethics
compliance. In the context of the competences conferred by the state medical
chambers enjoy certain administrative, as well as disciplinary
privilege; Medical Association is also involved in the formation
regulatory and implementing standards, respectively. issue opinions on proposals from
areas of health, presenting public authorities. According
Commission - with regard to these competences granted by the Medical Chamber - is
Court concluded that an association within the meaning of Art. 11 of the Convention are not.
Doing so in this case, the complainant alleged that the doctors working in the public sector are not
chamber associations than foreseen by this article, as
in relation to those performing the traditional functions of monitoring the performance
medical practice and adherence to medical ethics administrations, which employs.
The Commission, however, referring to the judgment of the Spanish Constitutional Tribunal
of 17. 7. 1989 concluded that neither the fact that the state
ensures compliance with legal and contractual obligations of doctors employed by him, can not stand on an equal footing
- as requested by the complainant - the elimination of medical competence
chambers in relation to doctors employed in the public sector, to conduct inspections
practice of medicine and medical ethics compliance.

73rd Convention authorities have concluded that Article. 11 of the Convention is not applicable ratione materiae
even in the case of other professional associations.

74th It is also possible to refer to the partial decision of the European Commission
Human Rights on the admissibility of 12. 3. 1981 in Barthold v.
Federal Republic of Germany, application no. 8734/79, which concerns the mandatory
membership in the Council veterinarians.

75th The decision on the acceptability of the 8th, 9th 1989 in Case Revert and
Legallais v. France, application no. 14331/88 and 14332/88, Commission
relation to a compulsory membership in the French Chamber of Architects came to | || conclude that the statutory duty to join the Chamber of architects
intended to protect the public interest (interest unspecified but

Identifiable from the context of the case also with the protection of recipients
services, respectively. public).

76th The decision on the acceptability of 2. 7. 1990 in Case A. and others in
. Spain, Application no. 13750/88, Commission made it clear that
Bar Association in Spain are institutions of public law regulated by law and
pursuing an objective of general interest, namely the promotion of free and
adequate legal assistance and, therefore, the promotion of justice. The Commission noted that the registration
the list maintained by the Chamber, which represents a necessary pre-condition
exercise of the legal profession is open to anyone who meets the statutory
conditions. Then reminded that professional bodies are not settled by
decisions of the Convention organs associations within the meaning of Article. 11 of the Convention.

77th The court in its decision on admissibility of 3. 4. 2001 in Case R OV
. v. Russia, application no. 44319/98, on the question of membership
Arkhangelsk Notary Chamber again noted that the chamber
liberal professions are not associations within the meaning of Art. 11 of the Convention. The aim of these bodies
established by law is to regulate and promote the profession while
perform public duties to protect the public.
Therefore can not be likened to trade unions but remain integrated into the structures of the state
.

78th In the decision on admissibility dated 12. 10. 2004 in the case of Bota.
Romania, Application no. 24057/03, the Court also referred to its settled
law according to which the chamber professions are public institutions
rights, regulated by law and pursuing objectives in the public interest, therefore
Art. 11 of the Convention upon them. The court again emphasized that there
rated lawyers Union of Romania was established by law and pursues an objective
public interest, namely the support of adequate legal assistance and implicit support
justice.

79th Among other decisions, where the bodies of the Convention concluded that
assessed organizations beyond the reach of Art. 11 of the Convention, can the decision
activities of the European Commission of Human Rights to appoint
decision on admissibility of 6, 7. 1977 concerning the association X. v. Sweden,
complaint no. 6094/73 (assessed the association was "A. Studentkar")
decision on the acceptability of 12. 4. 1991 concerning Halfon in. | || United Kingdom, Application no. 16501/90 (Association of students of the University of Exeter
) decision on the acceptability of 10. 7. 1991 in Weiss v.
Austria, application no. 14596/89 (Carinthian Business chamber)
decision on the acceptability of 14. 1. 1998 in case MA v. Sweden, complaint No.
. 32721/96 (Stockholm University Student Union), and the case
European Court of Human Rights, a decision on the admissibility of
14th 9. 1999, regarding Karakurt v. Austria, application no. 32441/96 (
council employees), and the decision on admissibility of 4 7th 2002 in the case
Köll v. Austria, application no. 43311 / 98 (tourist office).

80th For completeness is fitting to note that contrary to the negative interference
aspect of freedom of association in conflict with Art. 11 of the Convention stated
European Court of Human Rights (in terms of membership of trade organizations
) eg. in the judgment of 13. 8. 1981 in Young, James
and Webster v. United Kingdom, application no. 7601/76, 7806/77, judgment of
20. 4. 1993 in the case of Sibson . United Kingdom
complaint no. 14327/88, judgment of 25. 4. 1996 in respect of Gustafsson v.
Sweden, application no. 15573/89, judgment of 11. 1. 2006 in case | || Sorensen v. Denmark, application no. 52562/99 and 52620/99, then the
judgment of 30. 6. 1993 in the case Sigurdur A. Sigurjónsson v. Iceland,
complaint no. 16130 / 90 (Association of car drivers FRAM), or
judgment of 29. 4. 1999 concerning Chassagnou and others v. France,
application no. 25088/94, 28331/95 and 28443/95 (approved by council
hunting associations).

XII.

The case law of the Constitutional Court

81st The characters of a professional chambers, the Constitutional Court expressed in the above-cited judgment
of 16. 4. 2003, file no. . I. ÚS 181/01, N 58/30 SbNU
97 (see paragraph 48) The definition of doctrinaire then also concurred in the judgment of
25. 6. 2002 sp. Nos. Pl. US 36/01, N 80/26 SbNU 317
403/2002 Coll., Starting from the aspects of defining the concept of public
authority; Factors behind them had a public purpose, the manner of its establishment and he
conferral.

XIII.

Legal characters Czech Medical Chamber

82nd With regard to the Constitutional Court consistently argued for views on the importance of their own
prejudikatury, as well as the decisions of the organs of the Convention, particularly

European Court of Human Rights, and their implications for the assessment
particular case, it suffices to note that the Constitutional Court here of both
(what was mentioned in the previous sections .. X and XII.) Is based.

83rd Attention has therefore focused on whether these sources
previously expressed views on the so-called. Professional autonomy, respectively. called.
professional bodies, in relation to Art. 11 of the Convention and Article. 20 paragraph. 1 of the Charter,
are applicable even in the case of the Czech Medical Chamber. At the same time pass away, that
presented interpretation defining aspects are significant
especially in its overall tone.

Establishment of the Czech Medical Chamber

84th Czech Medical Chamber was established by law (§ 1 para. 1
Act no. 220/1991 Coll.) And defined as an autonomous non-partisan professional organization
endowed with legal personality and
uniting all doctors registered in her list management (§ 1 para. 2 and 3 of Law no. 220/1991
Sb.).

85th Therefore possesses the same form as the establishment of additional professional
chamber, which according to the practice of the Convention organs are outside the scope of Article.
11 of the Convention. The Act in the Czech legal system and set up another
professional chambers, namely the Czech Dental Chamber, Czech Pharmaceutical Chamber
(§ 1 para. 1 of Act no. 220/1991 Coll.), The Chamber of Patent Attorneys Czech
Republic (§ 22 of Act no. 237/1991 Coll., on
patent agents, respectively. Act no. 417/2004 Coll., on patent
on Amendments to the Act on the protection of industrial property), Chamber
veterinarians Czech Republic (§ 1 of the Act no. 381/1991 Coll., on
chamber of veterinary surgeons of the Czech Republic), the chamber of notaries heská
Republic and the chamber of notaries in the seats of regional courts (§ 35, respectively. § 29 | || and Act no. 358/1992 Coll., on notaries and their activities)
Czech chamber of architects and the Czech chamber of Certified engineers and technicians in construction
(§ 23 of Act no. 360/1992 Coll. about the profession of authorized
architects and the profession of authorized engineers and technicians active in construction
) Chamber of tax advisers of the Czech Republic (§ 9
Act no. 523/1992 Coll., on tax advisory and the Chamber of tax advisers
Czech Republic), the Chamber of auditors of the Czech Republic (§ 24 par. 2 of Act No.
. 524/1992 Coll., On auditors and the Chamber of Auditors of the Czech Republic, respectively.
Act no. 254/2000 Coll., On auditors), Czech Bar Association (
§ 40 paragraph. 3 of Law no. 85/1996 Coll., On Advocacy), and finally
Executors of the Czech Chamber of Commerce [§ 6 and § 109 para. 1 of Act no. 120/2001 Coll., on
Executors and execution (Enforcement procedure) and amending other laws
].

86th Already form of the establishment of the Czech Medical Chamber affirm the opinion that
institutions, which identifies those which have been discussed authorities
Convention as a public corporation (see paragraphs 69th to 79th
above), and at the same time it differs from associations
European court of human rights evaluated the claimant referenced judgment of 29 fourth
1999 in case Chassagnou and others v. France, application no. 25088/94, 28331
/ 95 and 28443/95. There assessed approved municipal associations Hunt
remained "private institutions", while Law no. 64-696 of
on 10 7th, 1964, known as the "Loi Verdeille" then represented "a challenge to membership
association formed under Act of 1901 ", which turns
(para. 32 paragraph. 99 cit. above) to private association [(
thus does not challenge the judgment of the relative predictive value
meet that criterion, as serves, for example, in relation to the formation of "private"
joint-stock companies on the basis of Law no. 77/2002 Coll., on
stock of Czech Railways, state organization railway Infrastructure Administration
road and amending Law no. 266 / 1994 Coll., on Railways, as amended
regulations, and Act no. 77/1997 Coll., on state enterprise, as amended
; cf. sp. Ref. III. ÚS 63/06 (ed., ed .:
unpublished order)].



Mandatory membership 87th Likewise, the "forced" membership under § 3 para. 1 of Law no. 220/1991 || | Coll., the Czech medical chamber approaches to public corporations by
judikatorního summary in section XI. and XII., and then just platonic
objection that it is the "earmarking association of public law from the concept of an association
within the meaning of Article. 11 of the Convention" completely "purposeful". The reasoning of the petitioners that

"Private association can hardly have the means to secure and enforce
mandatory membership in them," and then stands in conflict with the ambition
konciliovat mandatory membership "private institutions", respectively.
Associations within the meaning of Art. 11 of the Convention, already documented things considered
European Court of Human Rights and listed in paragraph 80 above.

Supervision over the exercise of the medical profession

88th If the Czech Medical Chamber in accordance with § 2 para. 1 point. a) and b)
Act no. 220/1991 Coll. ensures that its members carry out their profession
professionally, in accordance with its ethics and manner prescribed by the laws and regulations
chambers, respectively. guarantees the expertise of its members and confirms compliance
conditions for the exercise of the medical profession under special regulations, then
purpose of its establishment is to ensure the proper exercise of the medical profession
general, and with regard to its nature (see Section VIII. 'Protection
public health ") - beyond any doubt - and" fulfilling public tasks
to protect the public. "
Regulatory power


89th The provisions of § 2 para. 1 point. a) Act no. 220/1991 Coll. anticipates that
Czech Medical Chamber issued "orders chambers," and the provisions of § 15 para. 2
it confers the power to "approve, modify and cancel the organization, rules,
election and Disciplinary Rules". This - normative - the power is exercised
congress delegates, which has been assigned the authorization to issue ( "approval")
and other regulations of the Chamber, which is deduced from the illustrative list
scope of authority. Regulatory power is also characteristic
for other professional chambers, and one of the most complete treatment can be
embodied in the Act no. 85/1996 Coll., On Advocacy (§§ 49-53).

90th Autonomous regulatory powers, binding on members of the chamber and
represents "a constitutive element of public power entrusted
public corporation" (Aries, K .: Legal entities of public law. Praha: Linde,
2006, p. 63) .

91st For this conclusion, decisive in terms of the reporting issue is no longer relevant
tackling any review of this rulemaking
( "professional rules"). But undoubtedly true that
would not be subject to judicial review decisions of the organs of the Chamber, which was hit in
legal status of its members, or that would totally outside the court
protection could be sited obligations imposed by rules of professional ethics for || | individual members follow (cf. above-mentioned Constitutional court
of 16. 4. 2003, file no.. I. ÚS 181/01).
Other objections of the petitioners that there is lack of relevant judicial supervision, directed
quite clearly elsewhere than to institute compulsory membership of that here - exclusively
- goes.

Personnel and disciplinary powers

92nd Czech Medical Chamber keeps a list of members [§ 2 para. 1 point. e)
Act no. 220/1991 Coll.] and a list of guest speakers [§ 6a sect. 1
Law no. 220/1991 Coll.]. The public nature of the entries in the lists kept by
Czech Medical Chamber is maintained at a minimum of space for
discretion provided in § 4 and § 6 par. 2 Act no. 220/1991 Coll .;
candidate for entry on the list of chamber members who did not
chamber included in the list of members, or if a registration has been timely, the
right to seek protection in court (§ 6a sect. 11 and § 7 of the Act no. | || 220/1991 Sb.).

93rd Even after the effective date of the Act no. 95/2004 Coll., On medical
professions of doctor, dentist and pharmacist, remains the responsibility
Czech Medical Chamber to impose conditions for the performance of their private practice
members and the performance of professional functions representatives by a special regulation and
leaders and chiefs of doctors in private medical facilities and
issue a certificate of compliance with these conditions [§ 2 para. 2 point. c) and d)
Act no. 220/1991 Coll., professional regulation no. 11 - Licensing Regulations].
There is also retained the possibility of judicial review (§ 2 para. 3 and 4 of the Act no.
220/1991 Sb.).

94th The "personal" connections are tight
also point to the possibility of the Czech Medical Chamber to participate in tenders in
filling leading positions in health care, require their members
documents related to the exercise of the profession, to comment on the conditions and manner
continuing education of physicians, dentists and pharmacists participate
implementation of specialized examinations and issue for members of chambers
binding opinion on the technical issues of providing health care and

Medical research [§ 2 para. 2 point. b), g), h) and i) of the Act no. 220/1991 Coll
.].

95th Czech Medical Chamber is entrusted with disciplinary power [§ 2 para. 2
point. f) of the Act no. 220/1991 Coll.], already carries Honorary Board of the District Association
respectively Honorary Council of the Czech Medical Chamber (§ 13 para. 1 and
§ 18 paragraph. 1 of Act no. 220/1991 Coll .). The proposal to initiate disciplinary proceedings
according to § 14 para. 2 point. c) Act no. 220/1991 Coll.
served Auditing Commission of the District Association [see. also § 2 para. 2 point. e)
Act no. 220/1991 Coll.] and the decision of the Honorary Board of the District
association, which had been imposed disciplinary measures shall be filed
appeal decided by the honorary council chamber.
Honorary Board decisions imposing disciplinary measures pursuant to § L8 paragraph. 5
Act no. 220/1991 Coll. reviewable by a court.

96th Summarized the nature of character personnel and disciplinary -
as indicative of public corporation -
captured the Supreme Administrative Court in its judgment of 6 1, 2005, ref. No. 6 As 36 / 2003-115, whereby
disciplinary authority (here in relation to lawyers) represents "part
public administration because it has not been entrusted by the Chamber, being part of the
general government". There is no reason not to identify with this conclusion, and what
into "staff and disciplinary 'adaptation of competencies of the Czech Medical Chamber
hence there is an obvious similarity with the"
public corporations, "which were judged Convention organs Section XI. above.

97th If the petitioners point to "more recent case"
European Court of Human Rights, which according to them "deals primarily with the
nesdružovat and that it explicitly does not exclude
public corporation" and the case "concerning the formal establishment
moorings and on the other hand, actual operation of the association and corporations (§ 100
Chassagnou and others v. France, dated April 29, 1999) "belongs to
added that the plane is conferred powers Set
significant difference between the Czech medical chamber and approved "by local hunting associations," according
that the Court did not have the "privilege outside the realm of common law,
whether administrative, disciplinary or standard-setting," and do the
or "practices of public authority '(para. 101 marked the judgment).

Participation in proceedings under the law on public health insurance

98th Under the provisions of § 2 para. 2 point. a) Act no. 220/1991 Coll.
chambers are entitled to participate in the negotiations in the formation of tariffs medical
performance, pricing of drugs, medicines and other tariffs
services provided by pharmacies. Along with the regulation contained in § 17 para.
3, § 17 para. 6 and § 48 para. 1 point. b) Law no. 48/1997 Coll., on
public health insurance, as amended,
constitutes a basis for individual types of procedures with the participation of the Czech Medical Chamber
concerning public health insurance, respectively.
extent and conditions under which health care is health insurance
provided.

99th From the provisions of § 17 para. 1 of Law no. 48/1997. serves that, in order to ensure
substantive performance in providing health care to insured
General Health Insurance Company and other health insurance companies
set up under a special Act (Act no.
280/1992 Coll. ministries, professional, corporate, and other
health insurance, as amended)
contracts with healthcare facilities for the provision and payment of healthcare
( "individual contracts"). Before the conclusion of these individual contracts
according to § 46 para. 2 of Law no. 48/1997. must hold a tender
whose course is governed by § 46 to § 52;
member of the commission established by the Promoter (Regional Authority, respectively.
the City of Prague) for each tender is representative
relevant professional organizations, ie. also the Czech Medical Chamber. Health insurance
results of the tender is not bound; similarly to the opinion of the Promoter
them "taken into account" when concluding individual contracts (§ 52
par. 2 Act no. 48/1997 Coll.), which is governed by the. framework contract, which according
§ 17 par. 3 of Law no. 48/1997.
result of conciliation between the representatives of associations of health insurance

(Representatives of the General Health Insurance Company and employee
insurance), and representatives of the relevant group
contracted healthcare facilities represented by their interest groups (also
Czech Medical Chamber).

100th Framework agreement is to contain provisions which relate to the period
efficiency, and reason for termination "individual contracts" has
modify the way reimbursement of healthcare provided
rights and obligations of participants in individual contracts, unless specified | || law, the general conditions of quality and efficiency of providing health care
, the conditions necessary for the performance of individual contracts, the control mechanism
care quality and accuracy of the amounts charged,
and the obligation of mutual communication of the relevant control needed || | data (§ 17 par. 3 of Law no. 48/1997 Coll.). Framework Agreement agreed
in various segments of the healthcare provided, after acceptance
submitted to the Ministry of Health to assess their compliance with
law and the public interest, and subsequently issued a decree (currently in
effective Decree no. 618/2006 Coll., which issued
framework agreement). If before the expiration of the contract will not
new contract, the contract will be extended until
before he signed a new framework agreement. If the participants
conciliation failure to reach agreement on the content of the framework agreement within six months, or if
presented a framework agreement contravenes legislation
or public interest, is called a corresponding adjustment
Ministry of Health.

One hundred and first In § 17 para. 6 of the Act no. 48/1997 Coll. It is then defined
proceedings leading to the determination of the point, the amount of payment for health care covered by health insurance
and regulatory constraints for the following calendar year
. Conciliation participating representatives of VZP, other
health insurance companies and the relevant professional associations of
as representatives of the medical device.

102nd If an agreement on the value of the point level of healthcare payments
covered by health insurance and regulatory restrictions, assess its content
Ministry of Health in terms of compliance with the law and the public interest
. If the result of an agreement in accordance with the law and the public interest
, issued by the Ministry of Health as a decree.
Barring conciliation to the result within 90 days before the end of the calendar year
or if it finds the
Ministry of Health, the outcome of the conciliation is not in accordance with
law or the public interest, provides these parameters
following calendar year Decree (currently effective
Decree no. 383/2007 Coll., on the determination of point values, the level of reimbursement of health care
covered by health insurance and regulatory restrictions on the volume
provided health care covered by public health insurance
2008). List of medical performances with point values ​​issued
Ministry of Health decree (§ 17 para. 5 of Law no. 48/1997
Coll.); before Act no. 267/2007 Coll., on stabilization of public budgets
is also applied here conciliation.

103rd Evaluation summarized as follows powers of participation in competitions and
conciliation is then entirely appropriate to conclude that - in the context of the above-mentioned
(paragraph 71) the European Court of Human Rights on admissibility of
6. 11 . 2003 in the case of Popov and others Vakarelova,
Markov and Bankov v. Bulgaria, application no. 48047/99, 48961/99, 50786/99 and 50792/99
- or do not apply here, that this would Czech medical chamber
"closer" union (Art. 11 paragraph. 1 of the Convention, Art. 27 paragraph.
1 of the Charter). From the recorded particulars framework (and subsequently
"individual") contracts administered obvious conclusion that news
relationships between health insurance companies and health institutions with an analogy
collective agreements (defining the crucial relationship between employers and
employees respectively. their rights and obligations in labor relations
) content can not be identified. The same is true regarding the treatment
position of the Czech Medical Chamber, the system of fixing the value of a point above
payments for health care covered by health insurance and regulatory constraints
where, in the words of the European Court of Human Rights (ibid) goes on

"Control price mechanism," which are inherently its own characteristics
not private, but - well - "public".

XIV.

Review the petition to annul § 3 para. 1 of Act no. 220/1991 Coll.

104th One can seamlessly identify with that, "Unearthed" public corporation
professional self-reported (as well as local government)
following features: 1 / are established by statute 2 /
are entrusted with the exercise of public power against a population group, 3 /
have legal personality, 4 / have a personal base (a special reason membership), 5 /
are economically and fiscally independent from the State, 6 /
bear responsibility for their actions, 7 / act not only in their own interests but also the interests of the public or general
8 / stand over them and their activities are supervised, 9 /
possible to defend against their authoritative decision before the courts (see
Filip, J .: constitutional law of the Czech Republic. 1
Basic concepts and institutes. constitutional foundations of the Czech Republic. Brno: Masaryk University, Ed.
Supplement, 2003, p. 500-501).

105th Similarly, it is acceptable judgment that legal definition Czech
Medical Association, as presented in the previous section (XIII.)
Adequately reflects these characters. Czech Medical Chamber signs 1 / -5 /
fills completely (AD 5 / quote belongs to § 20 Act no. 220/1991 Coll
., According to which the Chamber independently administer their property and which operate according to the annual
budget. income chamber consists of membership fees, grants, donations and other
revenue. the proceeds from fines is allocated to the social fund of the chamber.)
and is also seen in the plane of the chamber responsibility of civil and administrative.
Acts of the Czech Medical Chamber worth, as noted above,
beyond the reach of judicial review (albeit problematic - as with other chambers
, with some exceptions, such as in the Czech Bar Association or Chamber
patent Attorneys of the Czech Republic - appears finish
regulatory powers and its judicial review). Negotiations in the public
respectively. general interest is the undisputed correlate of protection of public health
.

106th The said statement is also characteristic of a judicature, has already filed
Constitutional Court has several times mentioned in the judgment of 16. 4. 2003, file no. zn.
I. US 181/01 (paragraph 48), concerning the Chamber of Veterinary Surgeons
Czech Republic, established by Act no. 381/1991 Coll .; and to the Czech Medical Chamber
it is necessary to relate the judgment that it is one of the professional associations'
with compulsory membership, associating self-employed individuals in certain occupations
, which is due to strong public interest in the proper | || performance. These chambers are legal entities of public law, established
law, with authority to issue various internal regulations
chamber and its members that they have with regard to compulsory membership subordinate.
Chamber and of those members - members of a particular profession -
carries certain privileges of power, typically including -
disciplinary powers. "

107th Already in Section XIII. was in the particulars, for there summarized
"legal characteristics" Czech Medical Chamber, stressed that these characters
provenance as "public", Czech Medical Chamber differ from those
association "private", which enjoyed granted
protection under Art. 11 of the Convention, respectively. Article. 20 paragraph. 1, if necessary. Article. 27 paragraph. 1, 2 of the Charter.

108th It is essential that these legal characteristics while allowing the Czech Medical Chamber
identify those institutions that assess
Convention organs (especially the European Court of Human Rights) in the decisions
enumerated in Section XI. It is obvious that it is not really relevant
difference between the Czech Medical Chamber and - for example -
Belgian Chamber of Medicine, evaluated by the European Court of Human Rights in the case
Le Compte, Van Leuven and De Meyer v. Belgium as "
institution of public law ', which was established not by individuals, but by law,
is integrated into the state structure, pursues an objective in the public interest, namely
health, by ensuring that under relevant laws
form public control over the practice of medicine, to perform the tasks entrusted
- State enjoys some administrative as well as regulatory and disciplinary
privileges outside the realm of common law, "and therefore
uses legal means public authorities" (see paragraph 69 ., 70).
Contrast, the argument of the petitioners that the Belgian chamber is "very strong

Way directly controlled by the state ", then the need for decisive differentiation
(in relation to the Czech Medical Chamber) imply quite clearly, and the same is true for
claim that his Czech Medical Chamber


Actual action "reminds currently rather trade union", ie.
"Private association", as the decisive characteristics contrary
'bodies governed by public law ", the Chamber retains anyway, and || | lack of "private" elements were documented (see paragraph 103)
also in relation to its participation in the selection and conciliation, respectively.
regime in determining the point value, the amount of payment for health care covered by health insurance
and regulatory constraints. The petitioners considerations about
"assigned" earmarking "association of public law from the concept of an association of
under Art. 11 of the Convention" is sufficient to refer to paragraph 87. above, where the
given that in the case of Section XI. and XII. so concerned.
professional chambers ( "body governed by public law ') in terms of distinguishing objective
on legitimate (legal) basis, which testifies -
due to its similar legal definition - and the Czech Medical Chamber.
Claimant emphasized the degree of autonomy in relation to such State
"differentiate" itself does not interfere.

109s. The key then is that they have concluded if in relation to (these)
institutions assessed Convention organs that are not associations within the meaning of Article 11 of the Convention
, therefore, "not to intervene in the negative component of freedom of association
compulsory membership in they could not be "justified this conclusion is
relate also to the institution comparable with which - as has been inferred -
just the Czech medical chamber. If any conclusion in terms
expressed in paragraph 65. There is no doubt that the meaning and scope of the term "association"
enshrined in Art. 11 Sec. 1 of the Convention and Article. 20 paragraph. 1 of the Charter, are
equal, then logically, the conclusion about the exclusion
interference with the freedom of association applies in relation to that of its negative component (law "is
nesdružovat"), which is based on Art. 20 paragraph. 1 (if necessary. Article . 27 paragraph. 1, 2)
Charter, to which the petitioners appealed.

110th If he can not be freedom of association (the negative side)
mandatory membership in the Czech Medical Chamber objectively affected at all, does not open
is not space to continue the evaluation of the proposal petitioners
proportionality test to verify that it is not constitutionally impermissible manner
limited, respectively. whether (or not) the means to this
freedom "friendly."

111th But it is not the thing to note here that - first -
institute compulsory membership under § 3 para. 1 of Act no. 220/1991 Coll. not comparable
(European) ratios uncommon (see Section IX. above), and -
secondly - it is "logical" that the organically ensures the competence of the Czech Medical Chamber
decisively against addressees (physicians) just because they are
members. The severity of norms, acts and other measures
chamber could be achieved otherwise than exclusively through compulsory membership
(see, for example, paragraph 59.) There is substantial that its installation
in the relevant proportions can not be any associated with arbitrariness or
arbitrariness of the legislature.

112th Mandatory membership in the Czech Medical Chamber under § 3 para. 1 of Act No.
. 220/1991 Coll. thus in conflict with Article. 20 paragraph. 1 (Art. 27 paragraph. 1, 2)
Charter does not.

XV.

The other objections petitioners

113th Only has the theoretical level (without the necessary projection of the outcome of the proceedings
) therefore remains controversy about the "appropriateness" of use of the "member"
respectively. "Membership" in the Act no. 220/1991 Coll., Led by comparison
Act no. 85/1996 Coll., On Advocacy, which operates with the term "
entry in the list of lawyers maintained by the Czech Bar Association ( § 4). It is not clear
as real (and contr. Symbolic, formal, semantic, psychological
etc.). Amendment would amend the Act no. 220/1991 Coll
. she brought; the need for constitutional review (if not mandatory
"membership" in the professional association of expression of restrictions on freedom of association) can be
merely stated that a comparison of the two legal provisions does not mean that lawyers
position against the Czech Bar Association the content (in the plane
rights and duties) different from the positions of doctors in relation to the Czech medical chamber
. This judgment can not shake or voucher proponents

"The actual functioning of the" Czech Medical Chamber, respectively objection that
"Each member organization is it necessarily identified as such
resent that is associated with the activities with which it disagrees fundamentally
" because apparently no constitutional reflection.

114 respectively. Therefore, the petitioners that same (and appropriately) can be used instead
Czech Medical Chamber to ensure the direct exercise of state administration are due to
inferred absence of interference with the constitutionally guaranteed freedom of association
insignificant because then reflect only political question (
elections this or that management concepts), whose assessment of the Constitutional court, by definition, is not
. It is noted only that in paragraph 52, in line with
petitioner admits that direct support for constitutional
professional autonomy, while "the poor", but that her "favorable evaluation tendencies
particularly in relation to they confronted the administration of the state "are not
overlooked.

115th The petitioner also alleged need for distinction between physicians
"private" and "physician-employees" (in the form agrees with
Trade Union of Health and Social Care of the Czech Republic) are
expressed by the European Commission of Human Rights decision of 8. 7.
1992 in the case of Vialas Simón v. Spain (paragraph 72 above), and there is no reason
expressed her opinion (that observed in the context of difference can not decide
) oppose it.

116th Vouchers petitioners to "more recent case," the European Court of Human Rights
already - what to judgment in Chassagnou and Others v.
France, dated April 29, 1999 - reflected in paragraphs 86 and 97 above with
that effective support for their views from here can not be inferred.
In a judgment dated 13. 8. 1981 in Young, James and Webster, complaints
no. 7601/76, 7806/77, para. 57, although the court stated that the protection of personal conviction
provided by Art. 9 and 10 of the Convention form (guaranteed)
freedom of thought, conscience and religion and freedom of expression || | one of the purposes of freedom of association under Article. 11 of the Convention and forcing
someone against his conviction for membership in the association thus attacking the very essence
Art. 11 of the Convention, but there was a union membership
organizations, ie . in associations within the meaning of Art. 11 of the Convention. Similarly
European Court of Human Rights in its judgment of 30 6th 1993 in the case
Sigurdur A. Sigurjónsson v. Iceland, application no. 16130/90, thus
reviewed the opinions presented by representatives of the association Frame (paragraph . 37), but also he
after declared that the association in question falls under Art. 11
Convention (para. 32). Criticized amendment to Act no. 220/1991 Coll.
possibility of establishing "real" association within the meaning of Article. 20 paragraph. 1, Art. 27 paragraph. 1, 2
Charter in no way limited.

117th Odd is also considering that compulsory membership of the Czech Medical Chamber
also constitutes an interference in the rights enshrined in Art. 26 Sec. 1 of the Charter,
according to which everyone has the right to free choice of profession.
If it was inferred that the freedom of association within the meaning of Art. 20 of the Charter (
its "negative aspect") is not affected by compulsory membership, then
logically untenable assertion, which is contrary to the "concern" that freedom is based.
Not So as the appellants that the right to free exercise of the profession of doctor
is affected by those who want to pursue this profession
must give up the freedom of association, since there is such a right is not
. Constitutional conformity of other legal requirements
exercise of the medical profession (§ 4 Act no. 220/1991 Coll.) Called in question
Art. 26 of the Charter clearly can not, and so the petitioners or not.

118th In cases where it is not considered membership in an association within the meaning of Article
. 11 of the Convention, a space for reflection on intervention in the negative component
freedom of association does not open, which documents the practice of organ
Convention, for example, in the decision on admissibility of 8. 9. 1989
things Revert and Legallais, complaints no. 14331/88 and 14332/88, which
European Commission on human rights expressed that complainants may
free to express their personal opinions "by another way". In a decision
of 12. 4. 1991 concerning Halfon v. United Kingdom, Application no. 16501/90
then not recognized as a relevant objection concerning the political activities of the Association
Exeter University students affiliated to the National Union
students.

119th Similar applies in relation to the apparently decisive motive that leads
petitioner to disagree with compulsory membership, which

Identify with strong public resistance, respectively.
political behavior of the Czech Medical Chamber, which described in detail (see paragraphs 10 and
40th above), and documenting among other things, the submitted copies of magazine Tempus
medicorum. Even here that the petitioners should be noted that
unless freedom of association within the meaning of Art. 20 of the Charter "in play", thus missing
for a favorable assessment of their critique of effective constitutional framework. Of
activities of professional associations as the holder of public authority may well emerge
objectively interference in the fundamental rights and freedoms that are protected springs
constitutional order, but responses can not be anything other than
create adequate legal (judicial) framework necessary protection
not remove persons threatened by interference from its scope.
Petitioners moreover - outside unusable reference to Article. 20 of the Charter -
infringement of fundamental rights and freedoms or asserted; claim that (some)
Chamber members "resent" that are associated with activities with which
"fundamentally" disagrees, and consider it "an attack on their own interests," such interference
course imply. The petitioners also overlook the fact that
presented outwardly "will" (including "political opinion")
Czech Medical Chamber, against whom the protest is an expression
established institutional mechanisms (especially organ chamber and its representatives
) whose constitutionality of (democratic) challenge that, and
whose functioning and socio outputs therefore objectively
everyone involved "statutory" members (doctors);
necessarily even those with a public manifestation of the Chamber now disagree.
Can therefore assume that


Current public image of the Czech Medical Chamber reflects at any given moment dominant
will of its members, respectively. (All) physicians, which can be expressed so that
doctors have such a chamber, which they want to have, or what rise
"allowed". That situation against which petitioners protest, it is not


Direct expression of the legal regulation of the Czech Medical Chamber (including adjustments
compulsory membership), it is obvious, as the petitioners themselves and demonstrate that
equally obligatory membership of the Czech Dental Chamber and the Czech
chamber of Pharmacists (adjusted in the same § 3 of Act no. 220/1991 Coll
.) to cancel proposed. The constitutionally relevant arguments
There can be no question.

XVI.
Conclusion


120th On this basis, the Constitutional Court concluded that the proposal to repeal
contested provisions of § 3 para. 1 of Act no. 220/1991 Coll. It is not justified, and therefore
under § 70 para. 2 of the Constitutional Court.

Chairman of the Constitutional Court:

Pp. JUDr. Holländer, vr
Vice


Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, commented on the decision of the plenum
Judge Elizabeth Wagner.

1 note. ed .: Collection of Decisions of the Constitutional Court, volume 18,
judgment no. 98, pp. 355, promulgated under no. 232/2000 Coll.