On The Proposal To Repeal Part Of The Act No. 361/2003 Coll.

Original Language Title: ve věci návrhu na zrušení části zákona č. 361/2003 Sb.

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36/2012 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 20/09 of 15 November 2011
Plenum, composed of the Chairman Pavel Rychetsky court, judge Stanislav Balik
(Rapporteur), Frantisek Duchon, Vlasta Formánková, Vojen
Güttler, Pavel Holländer, Ivana Janu , Vladimir crust Dagmar
Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Miloslav Vyborny
Eliška Wagnerová and Michaela Židlická on the proposal
group of deputies of the Parliament of the Czech Republic to annul §
112, paragraph . 2, first sentence and paragraph. 4 of the Act no. 361/2003 Coll., on the service
members of the security forces, as amended,
with the participation of the Chamber of Deputies of the Czech Parliament and the Senate of the Parliament of the Czech Republic
as parties

Follows:

The petition is denied.
Reason


I.
Recap draft


First Constitutional Court on 7 July 2009 received a petition from a group of 45
Deputies of the Parliament of the Czech Republic (hereinafter
"petitioner") to annul § 112. 2 of the first sentence to read "in the range of 150
hours a year "Law no. 361/2003 Coll., on
service of members of security forces, as amended by Act no. 530/2005 Coll
., and § 112. 4 of the Act no. 361/2003 Coll.

Second The petitioner later document lodged at the Constitutional Court on 2 October 2009
modified proposal so that it requires "cancel the whole of the first sentence of the provisions of §
112 par. 2 Act no. 361/2003 Coll., On the service of members || | security corps, as amended, "which reads:
" member of the service income determined with regard to any service
overtime of 150 hours per calendar year. '.

Third Regarding the proposal to repeal the provisions of § 112. 2, first sentence
Act no. 361/2003 Coll., As amended by Act no. 530/2005 Coll., Featured
petitioner initially, when considering the Law no. 361/2003 Coll.
in the Chamber of Deputies, "the amendment to the Law of Google
remuneration members received treatment, which caused a rift
wording of the Act with the constitutional order". The provisions of § 112 par. 2 Act no.
361/2003 Coll., As amended by Act no. 530/2005 Coll., According to the petitioner
"shows contradiction with the wording of the first sentence of paragraph 1 of the same provisions
the general principle that "a member is entitled to service income for
duty.". it is a member of the possibility to order the service
overtime to 150 hours without him for it was granted compensatory time off
or the corresponding reward. the very nature of this adjustment,
as a way of anchoring leads to consequences that may
described as unfair. it creates an imbalance between the members
but also among other employees, who are
covered by other rules governing entitlement to wages or salary with extra pay for overtime work in
150 hours (Act no. 262/2006 Coll., the Labour Code, as amended
). ". The petitioner pointed out that, unlike the situation in
2000, when the Ministry of Labour and Social Affairs submitted a report to the fulfillment
European Social Charter, now, after the annulment of § 10 paragraph.
2 of Law no. 143/1992 Coll., on salary and remuneration for work readiness in
budgetary and some other organizations and bodies, in the former
amended (hereinafter the "Act on salaries") can not be inferred that members of a possible surcharge
for overtime work 150 hours in a calendar year
withdraw.

Fourth The petitioner points out that, under the contested legislation is
taken into account "any" service overtime and that compared to the previous legal
not modify restrictions premium for overtime work put into the context
reference to the rank surcharge. Concludes that the method of remuneration
contested provision inconsistent with the right to fair remuneration, which enshrines
Art. 28 of the Charter of Fundamental Rights and Freedoms (
"Charter"), because the amount of service revenue is determined identically this
member who service 150 hours overtime in a calendar year
performance, as well as the one who this service does not take place at all. The petitioner has
considers that the contested provision is in conflict with Art. 3 of the Charter and relies
while the Constitutional Court judgment. . I. ÚS 2007/08 (sic correctly:
resolution of 3. 2. 2009). Claimant in accordance with it states that

Alone service allowance and severance but not in general
considered a reward for a job, this is only the use of "compensation"
significantly weakened the position of employees in service compared
status of a staff member without modification Labour Code.
Infers that the 150 hours service overtime is equal to the amount
almost the entire fund basic services for one calendar month, and
points out that while the service is introduced overtime without compensation, for
emergency service is always remunerated.
Finally, the petitioner stated that, "notes if that business income is established
with regard to any service overtime, should also be provided
how the service is taken into account overtime, or what component || | Staff receiving such compensation is determined. However, that is not even
compared to the original regulation (see above, § 10 of the salary). ".

Fifth The draft supplementary changed petit petitioner to a request for revocation
entire first sentence of § 112 par. 2 Act no. 361/2003 Coll., As amended
Act no. 530/2005 Coll., Points out, that the repeal
merely limit of 150 hours per year, with no premium for overtime work should not
prevented from making "could be set even more hours of overtime
free over the existing limit.".

6th The proposal to annul § 112 par. 4 Act no. 361/2003 Coll.
Justifies the petitioner inconsistent with Art. 2 of the European Social Charter.
Points to conflict with previous legislation and takes issue with
view that "compensation for the performance of services on holidays and feast
not score in the fund of working hours (and therefore should be 7.5 hours per Feast || | to work another day in cases where a public holiday worked) at
members who are unevenly scheduled time service is already
replaced by the 10% increase in the tariff ". It notes that those
members of security forces, which falls on the feast day services,
derive from such services reported no additional cost or time off in lieu for working on holidays
, and argues that the increase of ten percent || | tariff in accordance with § 114 of the Act no. 361/2003 Coll., as amended by Act no. 530/2005 Coll
., is not an adequate substitute with regard to the twelve holidays, at
which should be granted paid leave. The petitioner argues that the discrepancy was resolved
European Social Charter, an international treaty
published under no. 14/2000 Coll. ms contested law within the meaning of Article.
10 of the Constitution of the Czech Republic (hereinafter "Constitution"), stating that members of security forces
Czech Republic felt such fact as
discriminatory, since not create among all members fair
working conditions. The petitioner also points to the diversity of legislation
for members of the security forces of the Czech Republic and
for employees working in continuous mode with
unevenly scheduled working hours. The petitioner maintains that the distinction can not be justified
no substantive nature of the work or other reasons, referring to the Art. 2
European Social Charter, Art. 28, Art. 41 Sec. 1, Art. 4, paragraph. 3 Art. 3
paragraph. 1 of the Charter. It refers to the Constitutional Court decision. Nos. Pl. US
37/93 dated 22. 3. 1994 (N 9/1 SbNU 61; 86/1994 Coll.), Referring to the Constitutional Court
Czech and Slovak Federal Republic sp. Ref.
Pl. US 22/92 dated 8. 10. 1992 (judgment no. 11 Collections resolutions and findings
Constitutional Court of Czechoslovakia, Prague: Linde Praha, as, 2011, p. 49), and
adds that in the things can not be proven that providing fewer benefits
members of the security forces than any other group
done in the public interest and for the public good. Finally, the petitioner states that
"discrimination, such as the Public Service Act in this case raised,
strengthens social and economic inequality undermines the coherence between
members. Discrimination at work is a violation of human rights, whose
resulting in a waste of human talent, with harmful consequences for
productivity and economic growth. Discrimination causes social and economic inequality
that undermine social cohesion and solidarity
and acts as a brake in an effort to reduce poverty. ".

II.

The proceedings and the recapitulation of the observations of the parties

7th In accordance with § 69 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter the "Law on the Constitutional Court") asked the Constitutional

Court Chamber of Deputies of the Parliament of the Czech Republic (hereinafter
"Deputies") and the Senate of the Czech Republic (hereinafter
"Senate") to comment on the proposal.

8th Deputies through the Chamber of Deputies chairwoman Miroslava Nemcova
said that the Government submitted to the Chamber of Deputies
draft law on the service of members of security forces on
18th March 2003 and the proposal was circulated to Members as print 256/0
on 20 March 2003. In the explanatory memorandum the government expressly stated that the present
bill is in line with the Constitution and laws of the Czech Republic and
it is not in conflict with international treaties to which the Czech Republic is bound
. The bill was submitted to the Committee for European Integration
to prior consultation. The first reading of the bill took place on
16th April 2003 at the 14th meeting of the Chamber of Deputies. The bill was
them for consideration of the Committee for European Integration and Committee for Defence and Security
. European Integration Committee discussed the draft
Act and released on June 18, 2003 resolution recommending the bill
approve delivered deputies as print 256/1. Committee for Defence and Security
considered the bill and issued on 11 June 2003 resolution
delivered deputies as print 256/2 with amendments, although
not concern the contested provisions. At the 18th session of the Chamber of Deputies
On June 24, 2003 and June 25, 2003 was held the second reading.
The bill passed the general and detailed debate, amendments filed
proposals were processed as print 256/3. Do
amendments was also included an amendment to § 112. 2 of the bill, which passed
deputy Petr Ibl. The third reading took place on July 2, 2003 at the 18th meeting of the Chamber of Deputies
. The bill was approved as amended
approved amendments. Deputies also adopted
proposed amendment to § 112. 2 of the Act.
In voting no. 260 was for the proposal of 178 deputies present, 130 and 7
deputies were against the amendment.
The bill was submitted on 17 July 2003 the Senate. The Senate at its 10th meeting on 10 September 2003
bill returned to the Chamber of Deputies with amendments
proposals that did not relate to the contested provisions (order no. 197).
The bill returned by the Senate was to vote on 23 September 2003
20th meeting of the Chamber of Deputies. Chamber of Deputies maintained
original bill in vote no. 21 was the design of the 183 deputies present
108 and 41 against the proposal. The president signed the law on 13
October 2003 and the Act was promulgated on 31 October 2003 in the Official Gazette in the amount of 121
under No. 361/2003 Coll.

9th Deputies also noted that an amendment to the contested provisions of §
112, paragraph. 2 contains further publication no. 1002 - Government bill, which
amends Act no. 361/2003 Coll., On the service of members
security forces, as amended, Act no. 362/2003
Coll., on amendment to laws related to adoption of the Act on the service relationship
members of security forces, as amended, Act No.
. 586/1992 Coll., On income taxes, as amended, and
Act no. 153/1994 Coll., On intelligence services of the Czech Republic,
amended. In the explanatory memorandum the government explicitly stated that
proposed amendment bill is in line with Czech law,
its constitutional order, as well as international treaties by which the Czech Republic is bound
. The Government further stated that the amendment
is also fully compatible with European Community law.
Government submitted to the Chamber of Deputies a bill June 1, 2005. The bill was sent to deputies as
print 1002/0 June 1, 2005. The first reading
took place on 1 July 2005 at the 45th meeting of the Parliamentary House of Commons.
Draft bill was assigned to the committee for defense and security, which
considered the bill and issued on 21 September 2005 resolution, delivered
deputies as print 1002/1 with the amendments that did not relate || | contested provision. At the 48th meeting of the Chamber of Deputies took place
13 October 2005 a second reading, the bill passed the general and detailed debate
filed amendments (not related to the contested provisions
) were processed as print 1002/3. The third reading took place on

26th October 2005 at the 48th meeting of the Chamber of Deputies. The bill was amended
approved amendments to the Chamber of Deputies, in
vote no. 498 was for the design of the 177 deputies present, 128 against and 5
proposal. Deputies passed the amendment bill to the Senate on
third November 2005 as print 169/0. The Senate debated the bill at its 8th
meeting of 30 November 2005 and issued Resolution no. 251, where the Senate
expressed willingness to discuss the bill. The Act was delivered
president for signature on December 2, 2005, the President signed the Act
on 13 December 2005. The Act was promulgated on 29 December 2005
Collection of Laws in part 180 under the number 530/2005 Coll.
Laws containing the contested provisions were published in the Official Gazette under numbers
361/2003 Coll. and 530/2005 Coll. Both laws were approved by the required majority of deputies
Deputies, were signed by the respective
constitutional authorities and were duly promulgated. Under this state of affairs can not be
according to the Chamber of Deputies, but to express the opinion that the legislature
acted in the belief that the adopted laws are in accordance with the Constitution and our legal order
. The Constitutional Court, in connection with the submitted proposal
group of MPs review the constitutionality of the contested provisions and
issued an opinion.

10th The Senate, through its Chairman, MD. Premysl Sobotka told
that a draft law on the service of members of security forces
advanced Deputies Senate on 13 August 2003. The Senate
the bill (Senate Document no. 135) in the prescribed manner
discussed. Senate Committee on Foreign Affairs, Defence and Security, which
bill was assigned as a guarantee, recommended that the Senate
returning to this amendment the Chamber of Deputies with proposed amendments. Committee
they questioned one of the reasons for dismissal member and demanded
several interventions to high restriction on service entitlements after
service member. Committee on National Economy, Agriculture and Transport
which has further commanded proposal, the committee agreed to guarantee
on returning the act for reasons similar. The Senate at its 10th meeting
fourth term of office on 10 September 2003 complied with the recommendations of the Committee and decided
resolution no. 197 of 10 September 2003 to return the Law on Service
members of the security forces Deputies
with amendments. The resolution was adopted in a vote no. 27
significant majority of the 73 senators present voted for the proposal
51 senators were against, 5 and 17 senators abstained.
From this it follows that the Senate has a quorum and the resolution was adopted
necessary number of votes. The Senate passed a bill in the Constitution
specified period. Senate adopted amendments do not touch
present petition to annul § 112 paragraph. 2 and 4 of the
service of members of security forces (ie. Staff
income for overtime and for service on holidays), but
Senate debate itself was the subject of overtime still open and detailed debate
was submitted the amendment in that draft direction. The debate
was expressed that the limit of 300 hours of overtime for members in exchange
operation in comparison with other members of the discriminatory and was
proposal for an amendment, which should be a limit to all united
150 hours, with the exception of the service to which it is a member of
called emergency service, which is specifically paid. The debate was
also expressed the opinion that double "burden"
overtime hours without extra charge, introduced for the exchange members, it is not customary in Europe
even in the US and can not be compared with the situation of professional soldiers.
Representative government rejected that proposal to change the fact that in the preparation of the present
solutions in the Chamber of Deputies was general support for monitored
maintain a balance between greatly increased basic fare (Staff
revenue) for the corresponding category ( service types)
members and between their duty to serve without specific rewards
certain number of overtime hours. Deputy Minister (petitioner) and in general
advocated a concept in which a person who wants to serve in the security
corps gets very solid assessment, but added (sacrifice)
quite a few of their rights and of their private life. Above-mentioned

Amendment was then rejected (with a quorum was 38 for
amendment proposal, only 28 votes). The second of the contested provision of § 112. 4
stayed at the hearing, without further interest. Senate majority trusted
that setting the average salary level of members of security forces
to one times the average salary levels in the public sector and
number of other benefits for members of security forces
creates extra pay to compensate for a number of hard
requirements and austerities imposed by law on members. This system was also
government presented it as a very simple and flexible.
Law was generally introduced as a revolution in personal
stabilization and performance of security forces, especially the Police of the Czech Republic.

11th The amendment to the Act on the service of members of security forces
(Act no. 530/2005 Coll., Amending Act no. 361/2003 Coll., On
service of members of security forces, as amended
regulations Act no. 362/2003 Coll., on amendment to laws related to
enactment of service of members of security forces,
amended, Act no. 586/1992 Coll., on income Tax,
amended, and Act no. 153/1994 Coll., on intelligence services
Czech Republic, as amended)
corrected the provision in § 112. 2nd amendment was Deputies
forwarded to the Senate on November 3, 2005. The Senate bill be
(Senate Document no. 169) in the prescribed manner discussed.
Guarantee Committee on Foreign Affairs, Defence and Security recommended that the Senate proposal
Act to pursue. The Senate at its 8th session of the 5th term on 30 November 2005
this recommendation of the committee upheld and decided
Resolution no. 251 of 30 November 2005 to discuss the bill.
The resolution was adopted in a vote no. 25 by the closest possible result
when the 66 senators present voted for Amendment 34 senators were against
2 and 30 senators abstained. It follows that
Senate has a quorum and the resolution was adopted
required number of votes. The Senate bill passed by the constitutionally prescribed period.
In the opening speech presented by a representative of the submitter of the amendment of the Act
service relationship, its sole objective - to reduce the costs of remuneration
members of security forces, even before the new,
excessively "generous" and budget precarious salary adjustments happen within
law on service contracts of members of security forces effective, ie
. time very urgently. With a total reduction of service revenues in the logic
petitioner also partly changed overtime treatment services.
Nationals can enjoy regardless of their classification order
150 hours of overtime in a calendar year (see § 54 par. 1 of Act no. 361/2003 Coll.
Amended by Act no. 530/2005 Coll.) and to the same extent possible
overtime hours should be taken into account in determining the income
Staff member (the overtime So we are still remunerated on the basis of specific quantification
; see § 112 par. 2 Act no. 361/2003 ., as amended
Act no. 530/2005 Coll.) the second of the contested provision § 112
paragraph. 4 has not been amended Act on the service of members of security forces
affected. Appeal stated that it considered the aforementioned
law on the service of members of security forces and
amendment to the Act on the service of members of security forces, in the context of
became valid also amended the contested provisions of § 112, paragraph
. 2 and 4, in the belief that doing so within the bounds set by
competence and in a constitutionally prescribed manner. The Senate concluded that it is
Constitutional Court to review the constitutionality of the contested provision and
decided.

III.

Admission process under the Act and its amendments

12th The Constitutional Court verified that

- Contested the wording of § 112 par. 4 Act no. 361/2003 Coll.
text was to be classified under the amendment deputies Petr Ibl and
that voting no. 258 at the 18th meeting of the Chamber of Deputies, held on 2 July 2003
to the proposal from the petitioner voted these
former MPs: Vlastimil Aubrecht, Milan Bičík, Robin Böhnisch,

Peter Gate, George Dolejš, Jirina Purple, Paul Hojda, Pavel Kováčik,
Stanislav Hamster Zdenek Maršíček, Ladislav Mlčák, Petr Rafaj, Antonin
gray, Skromach, Karel Šplíchal, Václav Votava and Peter Zgarba that

- 21st vote at the 20th meeting of the Chamber of Deputies held on 23 September 2003
for the contested law voted in favor of the petitioner, these groups
former MPs Vlastimil Aubrecht, Milan Bičík, Robin Böhnisch, Petr
taken, Jirina Purple, Paul Hojda, Zdenek Jicinsky, Catherine
final, Pavel Kováčik, Stanislav Hamster Ivana left, Zdeněk Maršíček, Ladislav
Mlčák, Petr Rafaj, Anthony Grey, Skromach, Karel
Šplíchal, Vaclav Votava Petr Zgarba. He refrained from George Dolejš, and that

- With 498 votes at the 48th meeting of the Chamber of Deputies on 26 October 2005
for the revised version of the contested Act, including amendments
contested § 112 par. 2 Act no. 361/2003 Coll.
voted petitioner from these former MPs Vlastimil Aubrecht,
Robin Böhnisch, Václav Grüner, Zdenek Jicinsky, Antonin pastime,
Stanislav Hamster Břetislav Petr, Petr Rafaj, Anthony Grey, Zdenek
Škromach, Vaclav Votava. The vote in the same poll from the group
petitioner refrain from these former MPs Milan whip, Peter harrows,
George Dolejš, Ladislav Mlčák, Jirina Purple, Paul Hojda, Catherine
final, Pavel Kováčik and Zdenek Maršíček. He voted against the group
petitioner Ivana Left. Not logged in to vote were Šplíchal Karel and Petr
Zgarba.

13th The Constitutional Court of stenographic reports from the first day of the 8th meeting of the Senate
ongoing 30 November 2005 found that the representative of the petitioner
Frantisek Bublan as a former government minister
Czech Republic, among others, said: "The proposal itself surely amendment
provides space for discussion and application and your proposals to amend the text.
I would for any other situation did not prevent this debate too, because I know that
this is an area that is important for all of us, but for the time
distress, that I talked about at the beginning, I can not ignore .
We therefore ask you any suggestions for amendments to the legislation service
exercised when discussing another amendment, which I expect in the next
year, and it will be once again submitted to the Chamber of Deputies ... S
considering what I said, I ask for approval of the draft amendment
form that is not associated with the need to refer the text back
Deputies. ".

14th The Constitutional Court of the Parliamentary Press no. 675 / 0-3 and shorthand reports
following meetings of the Chamber of Deputies and its committees found that a group of MPs
represented Bublan presented on 3 December 2008
bill which should be adopted as an amendment to Act no.
361/2003 Coll., as amended,. The bill was sent
deputies as print 675/0 on 4 December 2008. The draft was then sent
government for its opinion on December 5, 2008. The revised version of the draft was delivered
December 15, 2008 as Assembly Members print no. 675/1
. This proposal was sent to the Government for its opinion
December 17, 2008. The government sent its opinion on January 13, 2009. Dissenting opinion
government was circulated to Members January 14, 2009 as print 675/2.
Organising Committee recommended discussing the bill
January 15, 2009 (Resolution no. 333). Designated Mgr. Zdenek Bohac and proposed draft
order to discuss security committee. The first reading took place
2nd October 2009 at the 62nd meeting of the Chamber of Deputies. The bill was assigned for discussion
committees (Resolution no. 1441). Safety Committee discussed
bill and issued December 2, 2009 resolution, delivered to Members as
printing 675/3. The adoption of the law occurred, the legislative process is not over till
end of the 5th term of the Chamber of Deputies. The bill concerned
among others. the provisions of § 112. 2 first sentence under the law, which
revised text should read: "a member of staff is set
income with regard to any service overtime of 150 hours
calendar year during state of emergency
under a special legal regulation. ". The provisions of § 112. 4 of the contested Act
bill does not touch. The group of deputies who submitted on 3 December 2008
this bill, were among a group of petitioners in this case
spoke: Vlastimil Aubrecht, Jan Babor, Robin Böhnisch,

Zuzana Brzobohatá, Frantisek Bublan, Joseph Čerňanský, Kosta Dimitrov,
Václav Grüner, Zdenek Jicinsky, Gabriela Kalábková, Václav Klučka, Karel
pastime, Jan Matter, Vladimir Lesenská, Zdenek Maršíček,
Marcela Merino wool Břetislav Petr, Jiri Petru, Petr Ploc, Petr Rafaj
Anthony Grey, Miloslav Soušek Petr Sunkovský, Skromach, Vaclav
Šlajs, Karel Šplíchal, Jerome Tejc, Václav Votava, Cyril Zapletal.

15th The Constitutional Court is known that Members of the Chamber of Deputies were
for its current term from the petitioner elected:
Vojtech Adam, Jan Babor, Robin Böhnisch, Peter Gate, Frantisek Bublan, George
Dolejš, Milada Halíková Pavel Hojda, Václav Klučka, Catherine
final, Pavel Kováčik, Stanislav Hamster Jan Matter, Vladimir
Lesenská, Ivana left, Jiří Petr Petr Ploc, Antonin gray, Ladislav
Šincl, Skromach (MP was up 23. 10. 2010), Jerome Tejc,
Václav Votava and Cyril Zapletal.

16th The Constitutional Court verified that, in the current election period
Chamber of Deputies has not submitted a bill that would require an amendment
Act no. 361/2003 Coll., On the service of members of security forces
, as amended .

IV.

The standing of petitioners

17th Proposal filed by a group of 45 deputies of the Chamber of Deputies, thereby formally
appears to be completing the formalities of nominating respective
Members pursuant to Article. 87 paragraph. 1 point. a) Constitution and § 64 para. 1 point. b)
Law on the Constitutional Court.

18th The Constitutional Court finds that in this case the proposal submitted
actively legitimized the petitioner, albeit overlooked that the group
petitioner is partly composed of members who contested for the adoption of legislation in the Chamber of Deputies voted
.

V.

Legal assessment of the Constitutional Court

19th The proposal to repeal the provisions of § 112. 2 first sentence of Act no.
361/2003 Coll., On the service of members of security forces,
amended by Act no. 530/2005 Coll., Which reads: "a member of the
fixed income business with regard to any service overtime of
150 hours a year. "it is not justified.

20th The Constitutional Court, knowing the history of the adoption of Act no. 361/2003 Coll., His
amended by Act no. 530/2005 Coll. and attempted another amendment
in the years 2008-2009, dealt with firstly by the fact that the proposal brings
compared to the situation in 2003 and 2005, when some Members from the petitioner for
Act no. 361/2003 . and its amendment voted and promote it, some
significant and argumentative when an unknown nova or responds to a
a significant change in the constitutional system, international obligations or legal
series Czech Republic. Already prima vista is clear that this is not so.
The petitioner refers to the European Social Charter (no. 14/2000 Coll. M.
S.), Valid and effective in 2003, comparisons are made with the position
employees under Act no. 262/2006 . Labour Code, as amended
that when it comes to employee status in the
area since 2003, materially changed fundamentally, and argues
inequalities, without debate, which could hardly have been It can change just
contested provisions of § 112 par. 2 Act no. 361/2003 Coll.
amendment in 2005. I found this fact to some extent give the appearance
expediency argument of the proposal, which neither provides no explanation
change the opinion of the group of deputies from the petitioner.

21st The Constitutional Court then, we are bound by the petition, but not in full the
its reasoning, focused on the issue of remuneration of members of security forces
from the viewpoint of its previous case law.

22nd In its judgment of 28 June 2011 sp. Nos. Pl. US 17/10 (232/2011 Sb.)
Constitutional Court summed up that "one of the essential signs
democratic rule of law is the principle of proportionality, which mainly
presupposes that a measure restricting fundamental rights or freedoms may not | || their negative consequences exceed the accomplishments represented
public interest in these measures. The restriction of fundamental rights or freedoms may
exceptionally occur even when they conflict with a
public goods (public interest); However, it is essential in this context
maxim that a fundamental right or freedom can be restricted only in case
extremely strong and duly justified public interest in

Thorough investigation of the nature and the limited fundamental rights.
The first condition is therefore mutual benchmarking of collision standing
fundamental rights and the public interest (ie. False conflict, unlike conflict
two fundamental rights), the second is the requirement of preserving the essence and meaning of limited fundamental
law, respectively. freedom (Art. 4 par. 4).
Balancing the competing fundamental rights, then, as usual
consists of the following criteria: the first is the criterion of suitability
seeking an answer to the question whether the institution restricting a fundamental right
allows you to achieve the objective pursued, followed criterion | || necessity, consisting of comparing the legislative means
restricts a fundamental right, respectively. freedom with other measures
permit achieving the same goals, but do not affect
fundamental rights and freedoms, and continues criterion for comparing concerned,
conflicting fundamental rights [see. eg. Finding sp. Nos. Pl. US
40/02 dated 11. 6. 2003 (N 88/30 SbNU 327; 199/2003 Coll.)]. (49)
In consideration of the applicability of the principle of proportionality (proportionality)
however, can not fail to see that in practice the Constitutional Court may not always be the principle
main criterion for consideration of the constitutionality of a particular statutory provision.
This is because the principle of proportionality is applied in particular in
Human Rights and Fundamental Freedoms (the Charter Chapter Two);
rights in economic, social and cultural, it is necessary to take into account just
to Art. 41 Sec. 1 of the Charter otevírajícímu wide space for the legislature
when choosing a variety of solutions. Due to Art. 41 Sec. 1 of the Charter may not be
legislation in the strict respect of the proportionality of the objective
followed by the regulation, ie. Not necessarily the measure in a democratic society
essential, as is the case with other rights covered by
can be invoked directly from the Charter (cf.. However, for example. Art. 27 paragraph. 1, 2 and 3
Charter of rights and cited therein, which are Article 41 paragraph. 1 limited).
The test of constitutionality in this sense goes through a statutory arrangement, in which
monitoring can detect a legitimate goal and that doing so
means they can be seen as a legitimate means to achieve its
, which need not be by means of the best, the best, the wisest and most effective
[judgment file. Nos. Pl. US 83/06 of 12 third
2008 (N 55/48 SbNU 629; 116/2008 Coll.)]. In other words, the provisions of Article
. 28 of the Charter is thus primarily issued legislators to
is filled with specific content (cf. Also the second sentence of the provision itself
which refers to the particulars provided for common law).
Social and economic rights, which include the right to remuneration for work and
satisfactory working conditions differ from the classic fundamental rights
that do not exist as a priori unlimited basic rights that may | || legislature be restricted only for reasons foreseen in the Charter, but on the contrary
legislature gives them the appropriate content and scope. (50) In the case of
economic and social rights because the constitutional guarantees represent
constitutionally guaranteed protection institutions (employment, wages, social security
family, parenting, etc.), rather than protect specific public subjective rights
. The criteria
constitutional review can therefore be used only where the legislature has constitutional protection
these institutions completely ignored or negated. The same applies in relation to the interpretation of laws containing
adapt these institutions. If such general
courts interpret and apply the law, their activities from a constitutional viewpoint
controllable only in terms of potential power
arbitrariness, but not in terms of actual Art. 28 of the Charter.
Concretization of economic and social rights belong only to legislators, not
Constitutional Court [resolution file. Ref. II. US 1372-1307 dated 19. 6. 2007 (
SbNU unpublished); cf. Additional findings sp. Nos. Pl. US 8/07 of 23 third
2010 (promulgated as no. 135/2010 Coll.); Finding sp. Nos. Pl. US 2/08 of
23rd 4. 2008 (N 73/49 SbNU 85; 166/2008 Coll.) And others.]. ".

23rd The Constitutional Court in the context of the petitioner mentioned judgment of the Constitutional Court
sp. Nos. Pl. US 37/93, referring to the Constitutional Court of Czechoslovakia
sp. Nos. Pl. US 22/92 recalls, "that the complainant's allegation in this regard
applies fully to the legal opinion expressed in the judgment sp. Nos. Pl. US 4/95
(Collection of Decisions, volume 3, judgment no. 29 ; promulgated under no. 168/1995

Coll.), Under which "inequality in social relationships, if touch
fundamental human rights, must reach an intensity of questioning,
least in a certain direction, the very essence of equality."
The Constitutional Court is of the opinion, according to which equality is a relative category, which requires
removal of unjustified differences. The principle of equal rights
is understood that legal differentiation in the approach to certain rights
not be a manifestation of arbitrariness, it does not follow, however, conclude that
everyone must be granted every right, with certain statutory right that
favoring one group or category of persons over another can not be
itself automatically to violate the principle of equality.
Legislature has a certain discretion to decide whether such preferential treatment
grounds. It must see to it that the preferential approach is based on
objective and reasonable grounds (a legitimate legislative aim) and that
between that aim and the means to achieve it (legal advantages)
there is a proportional relationship (cf.. judgment in the case file. Nos. Pl. US 15/02, Collection
decision, volume 29, judgment no. 11; promulgated under no. 40/2003 Coll.). ".
[cf. Constitutional court dated 16. 9. 2004 sp. Ref. III. ÚS 288/04
(N 132/34 SbNU 331)].

24th Constitutional court has dealt extensively with the issue of inequality in finding
dated August 18, 2004, file no. Nos. Pl. US 07/03 (N 113/34 SbNU 165;
512/2004 Sb.). Here, among others. said: "the Constitutional court has comprehensively addressed the issue of equality
the decision no. Nos. Pl. US 33/96, Collection of Decisions, Volume 8
, judgment no. 67; promulgated under no. 185/1997 Coll. (From other decisions, then
particular Judgment. Nos. Pl. ÚS 4/99, Collection of Decisions, Volume 14, Judgment
no. 93, promulgated as no. 192/1999 Coll.). He concurred with [especially in
findings sp. Nos. Pl. US 16/93 (see above), sp. Nos. Pl. US 36/93 (Collection
decision, volume 1, judgment no. 24; promulgated as no. 132/1994 Coll.), Sp.
Brand. Pl. US 5/95 (Collection of Decisions, Volume 4, judgment no. 74;
promulgated under no. 6/1996 Coll.), Et al. Nos. Pl. US 9/95 (Collection of Decisions, Volume 5,
judgment no. 16; promulgated as no. 107/1996 Coll.)]
With an understanding of the constitutional principle of equality as expressed by the Constitutional Court of Czechoslovakia (Decision Ref. No. .
Pl. US 22/92, Collection of Decisions of the Constitutional court of the CSFR, judgment no.
11): "It is a matter of law, in the interest of securing its functions decided that a certain group
less benefits than others. Even here, however
not act arbitrarily ... If the law benefits one group and
the same time sets disproportionate obligations on another, this may be done only on the basis
appeal to the public good. ". The Constitutional Court rejected this
absolute understanding of the principle of equality, and further stated: "
equality of citizens can not be understood as an abstract category, but as relative equality
as it is conceived by all modern constitutions" [sp. Nos. Pl.
US 36/93 (see above)]. The principle of equality thus shifted in
constitutional acceptability of aspects for distinguishing subjects and rights.
First aspect, which can be termed non-accessory inequality
defined thus eliminating arbitrariness (arbitrary) during the differentiation.
Second aspect arises from the legal opinion expressed in the judgment
sp. Nos. Pl. US 4/95 (Collection of Decisions, volume 3, judgment no. 29;
promulgated under no. 168/1995 Coll.): "Inequality in social relationships, if
affect fundamental human rights, must reach intensity
at least in a certain direction, the very essence of equality.
This usually occurs when, if violation of equality is connected to violation of another fundamental right
... "[consistently sp. Nos. Pl. US 5/95 (see above)].
The second aspect in evaluating the unconstitutionality of legislation
establishes inequality is the inequality that affects some
of Fundamental Rights and Freedoms (ancillary inequality). ".

25th In the case now under consideration so the constitutional court after it found that
creating the material conditions of the security forces
is left to the discretion of the legislature, focused on the question whether the contested provisions of the Act establishes
inequality, or whether or not a manifestation of his
arbitrariness or apparently irrational behavior of the legislature.
the Constitutional court took the assessment of the case into account and the explanatory report to the Act no.
361/2003 Coll., according to which "the proposed legislation will strengthen social security
members of security forces. it is expected her to bring

Stabilizing members of these churches and consequently reduce spending
security forces to provide basic equipment and training to
training of new members. In connection with the adoption of the bill
assume the savings associated with reduced administrative demands
decisions in matters of service, with the rationalization of the structure
individual security corps, etc. ".

26th The argument that the contested provision is unfair and constitutes
inequality between the individual members of security forces
according to how many of them serve out overtime, does not hold water.
Before the law are, in principle, all members of the security forces after the amendment
by Act no. 530/2005 Coll. equal status to such inequality.
because of discrimination could occur only in specific cases if necessary
same commander assigning two mA members overtime Services
vastly different in terms of length of service hours.

27th The contested provision of § 112. 2 first sentence of the Act no. 361/2003 Coll.
Amended by Act no. 530/2005 Coll., Can not be assessed in isolation from the whole
Act. The contested provision is based on the principle of do ut facias. Already when discussing
Act no. 361/2003 Coll. at the 10th session of the Senate on 10 September 2003 in accordance with the relevant
těsnopiseckého recording Deputy Prime
Czech Republic Stanislav Gross this idea of ​​Law, commented: "
other words, this law does not fee for the overtime knows no additional charge | || for the service at night and on Sundays, Saturdays, holidays and for a split shift.
If someone simply wants to serve in the security forces is therefore a solid
ranking ... but it also means that he will have to service
insert a lot of their rights or her private life. " .

28th The Constitutional Court has dealt extensively comparing remuneration
various professional groups in its judgment of 28 June 2011 sp. Nos. Pl.
US 17/10 (232/2011 Sb.). It should be noted that in 2009 amounted
average wage in the Czech Republic 23 598 CZK per month, state
employees in total CZK 24,994 per month in health
CZK 26,879 per month, with security forces 33 313 CZK per month and only
central state administration bodies more, ie. 34 136 CZK per month.
From the above data it is clear that the remuneration of the security forces
with regard to the complexity of their work found themselves high above the average in relation
to pay state employees in total, while it concerned
possibly even those members of the security choirs who neodsloužili not limit
150 overtime hours a year.

29th The Constitutional Court concludes that even some Members of the group of deputies
who is the petitioner, under the bill in 2008-2009
proposed amended text of the contested provisions in the form
mentioned in paragraph 14 of this judgment would not fully complied ideas sponsor if
respect of which it claims to inequality in relation to employees under the Code
work. It should add that neither the Labour Code is not uniform legislation
for all categories of employees and employers. The nature of the profession
follows that if security forces would establish a regime Code
work, in effect paralyzed the operation of these forces, and therefore
both historically and from the perspective of comparative law tends to be members of these ratios
traditionally, churches and of course a separate and specific
.

30th Compared to the petitioner presents in relation to overtime
employees under the Labor Code, lacks important reminders,
synallagmatically as amended Act no. 361/2003 Coll. compared Code
work enshrined institutes, and severance and výsluhového contribution.
The position of cabinet minister Frantisek Bublan at the 8th meeting of the Senate held on
30th November 2005 to discuss the amendment, ie. Act no. 530/2005 Coll.
Among others. stated that "the remuneration proposal provides growth Staff
income to match the growth of salaries of other categories of public
employees in public administration. Other savings, which was also a thorn in the eye
occurred to her in severance and in výsluhového contribution.
The amount of severance is reduced from eight times to six times monthly income ...
Staff Curve výsluhového contribution was changed in
Commons, and in such a way that no upward trend, conversely

Highest increase - three per cent - is among 15 to 20 year of service, then
next five years, it is reduced to two percent increase in the last five years
per cent. I initially had with this proposal
little problem, finally, after discussions with the Chief of Police, I went to
because it seems to me preferable not to this time.
We need to police the working age, who are now a little bruised
whether to remain in service or not, that they are somehow motivated
And these are people who have already completed at must be 15 or
years or more. I was so opposite to the curve aligned and quite
I personally liked that there could be such a motivating factor. ".

31st The Constitutional Court did not find expression in the adoption of legislative arbitrariness
current wording of the provisions of § 112. 2 first sentence of the Act no. 361/2003 Coll
. It concluded that a repeal of the contested provision
deviate from the principle of minimizing interference. In its judgment of 16 October 2007 sp. Ref.
Pl. US 53/04 (N 160/47 SbNU 111; 341/2007 Coll.)
Constitutional Court indeed stated that "in the area of ​​economic, social, cultural and
minority, in which the state is obligated to active often end interventions ...
the legislature logically has much greater discretion to exercise their
concept of the permissible limits of the de facto inequality within it.
Therefore chooses preferential treatment much more frequently. ".

32nd If the applicant alleges finally violation of the European Social Charter
Constitutional Court finds that the issue to the provisions of § 112, paragraph
. 2, first sentence of Act no. 361/2003 Coll., As amended by Act no. 530/2005 Coll
., Was not the subject of inquiries for regular reports on the Czech Republic
performance of the European Social Charter submitted by the Government of the Czech Republic authorities
Council of Europe. The Constitutional Court took into account the fact that
Czech Republic is bound by the European Social Charter, as
ratified international treaty. In considering this matter took note of the decision
Committee for Social Rights, and the European Council of complaints
police union against France (application no. 38/2006) and the European Council
police union against Portugal (Complaint no. 37/2006), although these decisions
petitioner claimed any draft. Now
In the present matter, it is not a specific control standards in cases
discussed by the Committee of Social Rights was a party quite different
petitioner, who against the Czech Republic to the Committee on Social
rights complaint did not. Constitutional Court to assess the situation
police in other contracting states of the European Social Charter and the wider
deal with consequences salary of policemen in France or Portugal
not evaluate any decision of the Committee for Social Rights.
The Constitutional Court then entrusted to him within the competence of the reasons mentioned above
concludes that it did not find a contradiction contested legislation with the European Social Charter
respectively. the provisions of Article. 4 paragraph. 2, and therefore -
as explained above - that the remuneration for overtime from 150 hours a year
were included, respectively. reflected in the basic salary
members of security forces.

33rd For similar reasons, the Constitutional Court has found unconstitutional nor
provisions of § 112 par. 4 Act no. 361/2003 Coll., Added:
'members who did not perform the service because of his usual day of service
fell feast, the service income is not reduced. ".
Nod while neither the petitioner's argument that "
ten percent increase in the basic fare under § 114 of the Act no. 361/2003 Coll.
no adequate remedy with respect to twelve festivals for which he should be granted
paid off. ". Even in this case, the legislature has not acted irrationally and
Constitutional Court found the legislature arbitrariness.

34th Regarding legislation remuneration of members of the security forces
in general, the Constitutional Court recalls that it is primarily up to
legislators and executive authority to propose and adopt
depending on the situation and the possibility of such legislation, which
would allow ensuring the proper operation of these components, as well as their physical security.

VI.
Conclusion


35th The Constitutional Court on the basis of the above finding that the contested provisions
§ 112. 2 first sentence of the Act no. 361/2003 Coll., On the service
members of the security forces, as amended by Act no. 530/2005

Coll., § 112 par. 4 Act no. 361/2003 Coll. not in conflict with the constitutional order of the Czech Republic
, and therefore the proposal under § 70 para. 2
Law on the Constitutional Court.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took the decision of the plenum judges Vlasta
Formánková, Pavel Holländer, Jan Musil, Elizabeth Wagner and partly
to its reasoning the judge Stanislav Balik.

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