Found at the Constitutional Court of the Czech Republic No. 112 / 1996 Coll.

Motion denied.

On 14 September 1995, the Constitutional Court of the Czech Republic received an application for annulment of the provisions of the Annex And Act No. 99 / 1963 Coll., Civil Code, as amended, which excludes the possibility of requesting that the decision of the rector of the university of appeal be reviewed by the court in the Dean's decision on admission or non-admission to university under § 18 (2) of Act No. 172 / 1990 Coll., on universities. The application was lodged pursuant to Article 74 of Law No 182 / 1993 Coll., on the Constitutional Court, by the appellant R. K., together with a constitutional complaint, accompanied by a submission of 9 October 1995, on the annulment of the order of the Regional Court in Brno of 5 September 1995 No 29 Ca 320 / 95-13, terminating the procedure for the review of the decision of the Rector of the University of Technology in Brno of 14 August 1995 No 1537 / 9120 / 95 in the case of appeal until the Dean's decision not to accept a university.

In a constitutional complaint, the appellant contends that the fundamental rights and freedoms resulting from Articles 1, 2 (2), 3 (1), 33 (1) of the Charter of Fundamental Rights (hereinafter referred to as the Charter), 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights (published under No 120 / 1976 Coll.) and 2 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (proclaimed under No 209 / 1992 Coll.).

Since, together with the constitutional complaint, the appellant was submitted in accordance with Article 74 of Law No 182 / 1993 Coll. also a proposal for the annulment of certain provisions of the law, the Constitutional Court suspended on 18 October 1995 by a resolution adopted pursuant to Article 78 (1) of the Act cited.

Pursuant to Articles 42 (3) and 69 of Law No 182 / 1993, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations of 8 November 1995, the President of the Chamber of Deputies of the Czech Parliament, PhDr. Milan Ude, confirmed, in accordance with the requirements contained in the provisions of § 68 (2) of Act No. 182 / 1993 Coll., that Act No. 519 / 1991 Coll., which was amended by the Civil Code and which contains Annex A to the Civil Code, was approved by the necessary majority of Members of the Federal Assembly of the Czech and Slovak Federal Republic on 5 November 1991, signed by the relevant constitutional officials and duly declared. In the opinion of the President of the Chamber of Deputies of the Parliament of the Czech Republic, the conviction on compliance with the provisions of Annex A to the Civil Code precludes the possibility of requesting that the decisions of the Rector of the College on appeal to the Dean's decision on admission or non-admission to university be reviewed by the court, with constitutional laws and with international treaties under Article 10 of the Constitution. It refers to the General Clause contained in Article 36 (2) of the Charter allowing legal exceptions to the general rule of judicial review of administrative decisions. The meaning of the negative enumeration contained in Annex A to the Civil Code is seen in the statement in the dynamic development of administrative law and its legislative provisions, and it also draws attention to a comparative argument that no rule of law applies without exception to judicial review of administrative decisions and, if such a review is enshrined as a principle in a legal order, it is always accompanied by a negative enumeration of administrative decisions which are not subject to judicial review.

In accordance with the provision of § 42 (2) of Act No. 182 / 1993 Coll. The Constitutional Court also requested written observations on the proposal, Ing. Ivan Pilip, Minister of Education, Youth and Sports, and Prof. Ing. Stanislav Hanzlo, CSc., President of the Czech Conference of Rectors.

In a statement of 9 February 1996 by Prof. Ing. Emanuel Ondráček, CSc, Deputy Minister for Education, Youth and Sports, under the authority of the Minister for Education, Youth and Sports Ing. Ivan Pilip, the nature of the constitutional right to education contained in Article 33 (1) of the Charter is primarily analysed. It is noted that this right can only be understood by the fact that it is everyone's right to apply for education, the conditions under which this right to education can be implemented by higher education are enshrined in § 18 (1) of Act No. 172 / 1990 Coll., as amended. In the opinion expressed in the opinion of the Deputy Minister of Education, by deciding to accept a degree, the Dean of the Faculty does not interfere with everyone's right to education, but assesses the competence of a candidate who is applying for higher education to that degree. It recalls, at the same time, that the conditions under which higher education may be applied must not be contrary to the Charter and therefore consider it a conceivable case of bringing an action against a university of a discriminatory nature. On the basis of the above, it is concluded that the decision to accept is left to the discretion (administrative discretion). the court would not have been able to establish objectively whether the expertise of all tenderers had been objectively assessed and therefore the review function of the court would be merely formal. At the end of the opinion of Prof. E. Ondráček, CSc., is therefore the rejection of the proposal for the annulment of the provisions of Annex A to Act No. 99 / 1963 Coll., as amended, excluding the possibility of requesting that the decision of the Rector of the High School on appeal to the Dean's decision on admission or non-admission to study at a university under § 18 (2) of Law No. 172 / 1990 Coll. be reviewed by the Court. In his observations of 12 February 1996, Prof. Ing. Stanislav Hanzl, CSc., President of the Czech Conference of Rectors, took a negative opinion on this proposal. At its meeting on 9 February 1966, the entire Czech Conference of Rectors took the same view.

As in the opinion of the Deputy Minister of Education, Prof. Ing. S. Hanzl, CSc., first analyses the nature of the constitutional right to education. It states that, contrary to primary and secondary education, which is the specific subjective right of each citizen, the right to university education must be understood as a right of equal access to apply for admission to, and formally the same conditions of study in, higher education, but not as a right to be admitted to any school for which the citizen is interested. For the basic freedom of schools to determine the conditions for admission to study, only restrictions on respect for fundamental rights and freedoms are allowed in the opinion (e.g. it states that the exclusion of the possibility of applying for studies for reasons of belonging to an ethnic group, race or sex). As the possibility of studying in higher education is not considered a fundamental right in the sense that anyone could study at any university chosen by him, this reasoning leads to the conclusion that the legislature did not doubt, if he excluded the possibility of judicial review of the decisions of the rector on appeal until the Dean's decision on admission or non-admission to university under Section 18 (2) of Act No. 172 / 1990 Coll.

The appellant sees the unconstitutional nature of the provisions of the Annex And Act No. 99 / 1963 Coll., as amended, which excludes the possibility of requesting that the rector's decision of appeal before the Dean's decision on admission or non-admission to university under § 18 (2) of Act No. 172 / 1990 Coll. be reviewed by the Court, in breach of Article 36 (1), (2) and Article 33 (1) of the Charter.

The right of everyone to education contained in Article 33 (1) of the Charter shall, in the appellant's view, apply to higher education. Since Article 36 (2) The Charter must not preclude the review of decisions relating to fundamental rights and freedoms under the Charter, which, in the appellant's view, gives rise to a discrepancy in Annex A to the Civil Code excluding the possibility of judicial review of decisions on studies at a university with a quoted provision of the Charter.

By order of the Constitutional Court of 20 November 1995, sp. zn. II. ÚS 229 / 95 was rejected in accordance with § 43 (1) (f) and § 35 (2) of Act No 182 / 1993 Coll. of the proposal of G. K. to abolish the provisions of Annex A to Act No 99 / 1963 Coll., as amended, excluding the possibility of requesting that the decisions of the rector of a university on appeal to the Dean's decision on admission or non-admission to study at a university under § 18 (2) of Law No 172 / 1990 Coll. According to the provision cited by the Law on the Constitutional Court, the appellant has the right to take part in the hearing in the case under point (b) (ii) (ii) of the Rules of Procedure 32 / 95 as an intervener. By application dated 23 November 1995, the intervener made itself known in that case.

As already stated in the Constitutional Court's finding in the case sp. zn. Pl. ÚS 4 / 95, the Charter contains some fundamental human rights, which by their nature constitute social values constituting the company's values. In the social process, these values serve only ideally typical categories, which express target ideas and which can primarily include freedom. The economic, social and cultural rights referred to in the title of the fourth Charter, to which the right to education belongs under Article 33, cannot be attributed to those values which contain ideally typical dimensions, in the view of the Constitutional Court. This conclusion also appears to suggest the differences in the regulation of individual fundamental rights directly by the Charter itself. Whereas, for example, freedom is conceived here as a fundamental human right "without further ', which is expressed by the concept that the limitation of any form of it is subject to the law (Articles 7 (1), 8, 9, 10, or the Charter), economic, social and cultural rights are either explicitly laid down in the Charter itself (e.g. Article 33 (2):" Citizens have the right to free education in primary and secondary schools,...'), or their establishment is left to the law. In this respect, it is precisely Article 41 (1) of the Charter which states that the rights referred to in Articles 26, 27 (4), 28 to 31, 32 (1) and (3), 33 and 35 of the Charter may be invoked only within the limits of the laws implementing those provisions. Such a law is, for example, a law establishing the conditions under which citizens are entitled to State aid in their studies (Article 33 (4) of the Charter).

The term "right to education" (Article 33 (1) of the Charter) is vague in itself, because it is only a generally formulated law that involves countless social aspects and purposes, often of different social quality and social impact. In the opinion of the Constitutional Court, the tendency to move any of these aspects and purposes to a plane eligible for infringement would, as in a number of similar cases, be capable of causing a number of socially dysfunctional and adverse effects. Thus, in the opinion of the Constitutional Court, the right to education at a university cannot be understood as a fundamental right in the sense that everyone would be entitled to study at a university of their choice and that the State would be obliged to guarantee anyone the education they wish for. According to the provisions of Paragraph 18 (1) of Act No. 172 / 1990 Coll., a citizen has the right to study in the chosen field of study if he proves the necessary competence for this study; However, on the basis of a proposal from the Dean (or Rector), the Academic Chamber shall approve the aspects for determining the necessary competence and the method of its verification. The criteria for admission to university are therefore not laid down by law, but they are a matter of self-governing competence. From this, in the opinion of the Constitutional Court, it cannot be concluded that the exclusion of judicial review of the decision on the appeal against the failure to accept a candidate to study at a university is not an infringement of Article 36 (2) of the Charter. Despite this autonomy, however, universities cannot impose conditions on applicants that would actually violate their fundamental human rights, for example by discriminating against them for their affiliation with any national or ethnic minority, their religion, etc. Such a breach of fundamental human rights could then undoubtedly be the subject of a constitutional complaint lodged pursuant to the provisions of § 72 et seq. of Act No. 182 / 1993 Coll.

The sentence that "the Court of First Instance must not, however, rule out the review of decisions relating to fundamental rights and freedoms under the Charter '(Article 36 (2) of the Charter) is therefore, in the view of the Constitutional Court, to be interpreted in such a way that, as regards the rights referred to in the title of the Fourth Charter, the rights must always be laid down, it must not be decided whether they have already become directly the Charter or only by law under Article 41 (1) of the Charter. Therefore, even in cases where the possibility of seeking review of an administrative authority's decision by a court pursuant to Annex A to the Civil Code is excluded, it would hardly be possible to include a decision establishing a remuneration for primary and secondary education, the validity of which is expressly provided for in Article 33 (2) of the Charter.

In addition to this fundamental opinion, it can be added that the conditions for study are verified on academic ground and therefore the relationships that arise here are probably different from those of a supreme nature. In order to exclude such and similar decisions from the powers of review of the courts, the legislature undoubtedly led to the fact that, in addition to decisions which clearly cannot be regarded as decisions on public subjective law, there are those which are partly of such a nature which they may or may have, but whose review by the court is not appropriate, either for the nature of the body which issued them or for the nature of the decision itself (e.g. when the professional aspects prevail over legal). It is these reasons that seem to have led to the decision of the Rector or the Academic Chamber on the appeal pending the decision not to accept university studies in Annex A to the Civil Code.

In the opinion of the Constitutional Court, the provisions of the Annex As regards the civil order excluding the possibility of requesting that a rector's decision to appeal to the Dean's decision on admission or non-admission to university under Paragraph 18 (2) of Law No 172 / 1990 Coll. be reviewed by a court, it is not contrary to Article 36 (1), (2) or Article 33 (1) of the Charter, and therefore the Constitutional Court has decided to reject the proposal under Article 70 (2) of Law No 182 / 1993 Coll.

The right to give a different opinion on the whole decision in the Protocol on the Act on the Act on the Constitutional Court was exercised by the judge of the Constitutional Court of the Czech Republic JUDr. Pavel Holländer. The judge of the Constitutional Court of the Czech Republic, JUDr. Vladimir Paul, used the same right to justify the decision.