In The Matter Of The Application For Revocation Article. I, Section 8 Of Act No. 137/1995 Sb.

Original Language Title: ve věci návrhu na zrušení čl. I bodu 8 zákona č. 138/1995 Sb.

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13/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 19 December. December 1995 in plenary in

draft groups 42 members of Parliament of the United

Republic for annulment of article 1(2). I, section 8 of Act No. 137/1995 Coll., which

amending and supplementing Act No. 29/1984 Coll. on the system of elementary and secondary

schools (Education Act), as amended by Act No 188//1988 Coll., Act No.

171/1990 Coll., Act No. 527/1990 Coll., Act No. 133/1993 Coll., Act No.

190/1993 Coll., Act No. 333/1993 Coll. of the Czech Constitutional Court

No. 49/1994 Coll. and Act No. 256/1994 Coll., and the law of the United

the National Council No. 76/1978 Coll. on school facilities, as amended by law

The Czech National Council No. 29/1984 Coll., Act of the Czech National Council.

390/1991 Coll. and Act No. 190/1993 Coll., with the participation of the Chamber of Deputies

The Parliament of the United Kingdom as follows:



The proposal is rejected.



Justification



A group of 42 members of the Chamber of deputies of the Parliament of the United Kingdom

filed a motion to repeal the provisions of the article. I, section 8 of Act No. 137/1995 Coll.

amending and supplementing Act No. 29/1984 Coll. on the system of basic and

secondary education (the Education Act), as amended by Act No. 187/1988 Coll., Act

No 171/1990 Coll., Act No. 527/1990 Coll., Act No. 133/1993 Coll., Act

No 190/1993 Coll., Act No. 333/1993 Coll. of the Czech Constitutional Court

No. 49/1994 Coll. and Act No. 256/1994 Coll., and the law of the United

the National Council No. 76/1978 Coll. on school facilities, as amended by law

The Czech National Council No. 29/1984 Coll., Act of the Czech National Council.

390/1991 Coll. and Act No. 190/1993 Coll., and in this proposal stated that the newly

inserted in paragraph 2 of section 4 of the Education Act, particularly in the case of higher

professional schools established by the State, is in conflict with the constitutional order

The United States, in particular with article. 33 para. the Charter of fundamental rights and

freedoms ("the Charter"), according to which citizens have the right to

free education in primary and secondary schools, according to the abilities

the citizen and the ability of the company to the universities. The contested

the provisions of the amendment to the Education Act provides that education in the

higher vocational schools established by the State may be granted in return for payment

Since the amount and the method of payment provides for government regulation; in

These schools run by the municipalities, since the amount and method of payment

provides for community generally binding Decree. Remuneration cannot be greater than the

half of the calculated cost of a student of the school. This will therefore

determination of the time at which you will need to provide remuneration, as well as the amount and

In addition, shifting payment methods on the legislation and the source of law is less

legal force than the common law. Such a procedure is in gross breach of

the constitutional order of the Czech Republic and also with ratified and

embodied in the treaties on human rights and fundamental freedoms,

According to the article. 10 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") are

directly binding and have precedence over the law. For example, in the article.

in article 13(3). 1 of the International Covenant on economic, social and cultural

rights, declared under no. 120/1976 Coll., is recognized the right of everyone to the

education and at the same time stipulated that in order to achieve the full implementation of this

the law is needed to make basic education was compulsory and free

accessible to all, and to allow for and made available to

secondary school of higher education, and also the gradual introduction of a free

Education [article 13, paragraph 2 (a)), b), c)]. In addition, according to the article. 5 (3). 2

the same Pact does not allow any restriction or cancellation of any of

the fundamental human rights recognized or existing in any country

on the basis of law, conventions, regulations or custom on the pretext that the Covenant

does not recognize such rights or that it recognizes them to a lesser extent. Also in the

The Convention on the rights of the child, proclaimed under no. 104/1991, is recognized

right of the child to education, saying that for the purposes of the progressive implementation of

This law and on the basis of equal opportunities, in particular, is implemented for

all children free and compulsory basic education and encouraged the development of

different forms of secondary education, including such measures as

free education [article 28, paragraph 1 (a)), (b))]. Yet in the article. 41 (c).

a), b) of this Convention States that nothing in this Convention shall not affect the

the provision, which more fully help the realisation of the rights of the child and

that may be contained in the legal order of a State which is a Contracting

party, or in international law, which is binding for that State.

All of these vital arguments stated expressly the Constitutional Court of the Czech

the Republic in support of its finding, published under no. 49/1994 Coll.

A group of members of the Chamber of deputies signed the Czech Parliament

States therefore proposes that the Constitutional Court held findings so that

the provisions of article. I, section 8 of Act No. 137/1995 Coll., which was inserted a new

paragraph 2 of section 4 of the Education Act, as amended,

repealed on the date of publication of the finding in the journal of laws.



The Chamber of deputies of the Parliament of the United Kingdom in the letter of its President

PhDr. Milan Uhdeho of 12 October. 10.1995 pointed to the explanatory memorandum to the

Act No. 137/1995 Coll., which States that the original law (16)

only a system of primary and secondary schools. Because of the higher vocational

school, the adoption of the amendment only experimental, have proved their worth, were from

for this reason included in the system of schools as one of its essential

folders. It is, however, a study of more than secondary school, with

extensive practical component of the study, in which graduate reaches

higher vocational education. So online dating designed for

graduates of secondary schools, which aims to increase the skills, or

specialization. Due to the nature of this study and the tendencies of his

the expected development is not the sole financing from the State budget

appropriate. In primary and secondary schools is guaranteed by the Charter

the royalty-free education, however, due to the fact that education in the higher

vocational schools provides additional qualifications for students who already have done the

school-leaving exam in high school, you can provide this education for

consideration. Introduction of education on higher vocational schools in return for payment is not

Thus, contrary to the constitutional order of the Czech Republic or with international

treaties by which the Czech Republic is bound. The law was approved by the

required majority of members of Parliament of the United

the Republic of 22 July 2003. 6. in 1995, was signed by the respective constitutional factors

and was properly declared. The legislature therefore acted in the belief that

the adopted law is in accordance with the Constitution and our laws and is on the

The Constitutional Court, in the context of the examination of the proposal to repeal section 4 of the

paragraph. 2 of Act No. 137/1995 Coll., to assess the constitutionality of this law and issued the

the relevant decision.



Of the 32 reports těsnopisecké. a meeting of the Chamber of deputies of the Czech Parliament

Republic on 20. --30. June 1995 the Constitutional Court found that the

Act No. 137/1995 Coll., was passed on 22 November. June 1995 required

the majority of members pursuant to the provisions of § 95 39 paragraph 2. 1 and 2 of the Constitution. This

the law was promulgated in the amount of 37 of the laws of the United States, sent out by

27 June 2002. 7.1995. For discussion and adoption of the law was based on the

the Government's proposal of 7 November. 12.1994 (print No 1430) and joint

reports of committees of the House to amend the draft of the law of 16 June.

6.1995 (print # 1632). It can therefore be assumed that the law was

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll., on the constitutional

of the Court).



The term "College", which is by law No 137/1995 Coll. (article. (I)

points 1, 2) became part of the educational system (section 1 (1)

the Education Act), is defined in detail in the article. I, point 28 (§ 27a of the school

of the Act), and that, in paragraph 1 of the cited provision states that

the College prepares for qualified performance-intensive

professional activities or educational background for the performance deepens

specific intensive activities. Under paragraph 2, the provisions of higher emotion.

vocational school provides individual fields of study in higher vocational

education, which includes the General, specific vocational training,

the arduous practical training and terminating the final examination; daily study

It takes at least two and a maximum of three years, it takes at least three distance learning and

the most in four years. If it is part of the full-time practical preparation

held in the form of professional practice with a length of more than three months, the daily

the study of the last three and a half years. Pupil who succeeded

discharge, has the right to use your name for the designation of graduate in higher

the vocational school. In paragraph 3, the provisions of articles will eventually provide that to

study on higher vocational schools shall be taken by the students and other applicants,

who receive full secondary education or vocational

education. As is apparent from the explanatory memorandum to the Act No 137/1995 Coll.

the reason for the inclusion of higher vocational schools in the educational system


was the fact that, so far, these experimental schools, have proved their worth.

As for the online dating designed for graduates of secondary schools and

seeking to increase their skills or specialization.



From what has been stated, it is therefore obvious that community colleges are

While on the one hand part of the educational system, on the side of the

the second type, however, are different from secondary schools, for the study of the

them to obtain secondary education already assumed. This your

nature are beyond higher vocational schools from the scope of article 87(1). 33 para. 2

The Charter of zakotvujícího citizens ' right to free education in elementary and

secondary schools. However, this article talks about the right to

free education in high schools, it's not here already about the right

unconditional in nature, since it is next to the podmiňováváno ability

the citizen also vacation company. The provisions of § 4 para. 2 the school

However, the law is not, in the opinion of the Constitutional Court, in conflict with the

ratified and promulgated international treaties on human rights

and fundamental freedoms, which the Czech Republic is bound are

directly binding and have precedence over the law (article 10 of the Constitution). So

particularly in the article. in article 13(3). 2 (a). (c)) of the International Covenant on

economic, social and cultural rights, the declared below. No.

120/1976 Coll., while States that higher education will be made available

for all, based on the ability of all appropriate means, however

only the gradual introduction of free education. Also the adoption of the Convention on the

rights of the child, proclaimed under. No. 104/1991 Coll., the States which are

Contracting Parties to this Convention recognise the right of the child to education with the aim of

the gradual implementation of the law and on the basis of equal opportunities,

in particular, the introduction of free and compulsory basic education for

all the children [article 28, paragraph 1 (a))] and the stimulation of development of the various

forms of secondary education, including General and vocational education,

as well as making it an acceptable and affordable for every child and receiving

other appropriate measures such as the introduction of free education and

If necessary, the provision of financial support [article 28, paragraph 1, point (a).

(b))]. it is apparent from those international treaties, thus excluding any

doubt that in terms of higher than secondary education, its

the provision has been associated with a specific process, whose characteristic feature

is the sequence of the individual measures. The introduction of free education at the

It represents the higher vocational schools under the current legislation, and

in the existing social circumstances only the target to which the individual

the Contracting Parties shall seek in accordance with their capabilities. Neither of these

international standards therefore do not have when editing more than secondary

education and only suggest the unconditional subtext implied tendency

development. Also a link to the article. 5 (3). 2 of the International Covenant on

economic, social and cultural rights, providing for the inadmissibility

restriction or derogation from any of the fundamental human rights

recognized or existing in any country on the basis of the law,

conventions, regulations or custom on the pretext that the Covenant such a right

does not recognize or recognizes them to a lesser extent, lacks, in the opinion of

The Constitutional Court, justification, as also the Charter enshrines in article. 33

paragraph. 2 the unconditional right to free education in the primary and only

secondary schools. Finally, you cannot, in the opinion of the Constitutional Court

agree with the view of the appellants, or that the unconstitutionality of the challenged standard

can be drawn from the fact that the introduction of payment for time in the higher education

vocational schools established by the State, as well as the amount and method of payment

are left to the Government. The provisions of section 78 of the Constitution implies that

the Government is authorised to issue regulations for the implementation of the law and its limits.

Therefore, if it is already in the contested provisions of § 4 para. 2 Education Act

States that the consideration for the education provided in specialist colleges

schools cannot be more than half of the calculated costs of one

a school pupil, then, that the Government leaves only the determination of the period, from

When the remuneration is to be provided, as well as the determination of the amount and the method of

the remuneration is entirely along the lines of article. 78 of the Constitution.



The objection of unconstitutionality of section 4, paragraph 4. 2 of the Education Act, as amended by law

No 138/1995 Coll., lies in the voucher on the commitment by the State to gradually introduce

free higher than secondary education [article 13, paragraph 2 (b), (c))

The International Covenant on economic, social and cultural rights].

The question here is whether the said obligation arises for the legislature to ban

changes to the gratuity higher education to education for consideration, even if

for example, even partial. The opinion contained in this objection, however,

The Constitutional Court does not share. Terms such as "education", "free of charge free of charge

medical care "," Parliament "," choice ", as well as many others, have

in a totalitarian and a democratic system in principle, different meaning. In

the political and economic system, the totality of these concepts make up a mere

a semblance of legitimacy, power, as well as a fiction of the welfare State,

by contrast, in democratic political and economic system to indicate

mechanism of formation, or the functioning of the legitimate authority and peace activities

State in relation to the citizens, financed by tax revenues. Principled

difference in the meaning of these terms in those different systems

in the opinion of the Constitutional Court represents the reason why these concepts here

cannot, due to their divergence, endorse the content.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



The rights to bring the different opinions in the minutes of the hearing and on its

the connection to the decision with the transcription of his name, according to article 14 of law No.

182/1993 Coll., on the Constitutional Court, judge of the Constitutional Court of the Czech

Republic of JUDr. Vladimir Paul.



Different views



Different opinion of judge JUDr. Vladimir Paula



The design of a group of MPs on the repeal of the provisions of article I, section 8 of Act No.

138/1995 Coll., amending and supplementing Act No. 29/1984 Coll., on

the system of primary and secondary education (the Education Act), as amended by

amended, should be granted, since the introduction of the education in

higher vocational schools established by the State in return for payment, or partial

remuneration, is not in accordance with the obligations of the United States, resulting from the

The International Covenant on economic, social and cultural rights

(No. 120/1976 Coll.), by which the Czech Republic is bound. The Pact, in its

article. in article 13(3). 2 recognizes three levels of education, which the Member States will be

provide:



and basic education as compulsory) and freely accessible to all,



b) secondary education in different forms, including technical and

vocational secondary education, which will generally be allowed to and

available to all appropriate means, and in particular the gradual

the introduction of free education-the latter a condition for Czech

Australia meets its international obligation and has provided in the article. 33 para.

2 of the Charter of fundamental rights and freedoms in that direction, that citizens have the right to

free education in primary and secondary schools,



c) higher education accessible for all, according to the capabilities,

by all appropriate means, and in particular, the gradual introduction of a free

education.



This category includes those forms of education that exceed the level of

secondary education; Here the Czech Republic took over the commitment

the gradual introduction of free education. It follows from this that the imposition of

where payments in the Czech Republic so far, such education

provided free of charge, is directed against the commitment the United States gradually

to introduce free education and is not in accordance with the cited provisions of the

The International Covenant on economic, social and cultural rights.

If the State commitment from an international treaty adopted, this commitment

has met or fulfilled, then return to the original or similar conditions

International Treaty should be overcome, cannot be considered compliant with the

clearance by the State upon acceptance of a commitment demonstrated and for the actions that

corresponds to the meaning of the provisions of the Treaty.

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