Found at the Constitutional Court of the Czech Republic No. 126 / 1997 Coll.
The finding of the Constitutional Court of the Czech Republic of 30 April 1997 on a proposal related to a constitutional complaint on the annulment of the provisions of § 33 paragraph 11 of Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended by Act No. 160 / 1995 Coll.
Valid
The Constitutional Tribunal found
Text versions:
10.06.1997
126
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 30 April 1997 in plenary on the proposal of Ing. J. V., linked to a constitutional complaint, to repeal the provisions of § 33 paragraph 11 of Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended by Act No. 160 / 1995 Coll.,
as follows:
Motion denied.
Reasons
Ing. J. V. lodged with the Constitutional Court on 1 April 1996 an application to initiate proceedings on a constitutional complaint against Decision No 34 / 21-1495-44 / 2 of 9 February 1996, which did not grant its appeal against the decision of the Military Social Security Office of 10 January 1996 to suspend payment of the service allowance. At the same time as this constitutional complaint, the appellant submitted a proposal to repeal the provisions of § 33 paragraph 11 of Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended by Act No. 160 / 1995 Coll. In the statement of reasons for the complaint, the appellant stated that on 31 March 1994 he was discharged from the service of an occupational soldier and the following day he was transferred to the reserve under the order of the Minister of Defence of 17 February 1994. He was dismissed pursuant to § 26 (1) (g) of Act No. 76 / 1959 Coll., as amended, i.e. according to the provision that "in the service of a professional soldier, soldiers for whom there is no other classification in the reduction of the number of armed forces or their reorganisation '. On the date of his release, he served in the armed forces for 22 years and 7 months and was released in the rank of Lieutenant Colonel. In view of the above, it met the conditions for a service allowance of 32% of the salary provided for in Paragraph 33 (1) (c) of the Act. On this basis, the Military Social Security Office granted him a service allowance of CZK 4500 from 1 April 1994. At the same time, it was informed, in accordance with Article 33 (4) of the Act, in the version in force at the time, that, when a service allowance is granted for admission to a service other than an occupational soldier, the allowance granted shall continue to be paid and shall not be reduced when faced with other income from gainful activity.
On 1 July 1994, the appellant was recruited to serve a member of the Police of the Czech Republic in the rank of Lieutenant upon his request and following the fulfilment of the legal conditions and was also appointed as Police Inspector of the Criminal Service of the Police of the Czech Republic - North. At the time of admission he was instructed that due to the difference in the service of a police officer from the service of an occupational soldier, according to the Act No. 186 / 1992 Coll., on the service relationship of members of the Police of the Czech Republic, it is possible to grant him the rank of Lieutenant Colonel and it is not possible for him to be included in the service ratio of the professional soldier. He was therefore appointed to the basic rank of Lieutenant for personal evaluation in 7th grade without experience in 1st grade with the salary of a member after the completion of the basic military service.
On 11 December 1995, the appellant was brought to the attention of the Military Social Security Office on the amendment of Act No. 76 / 1959 Coll. consisting of the addition of the provision of Paragraph 33 (11) of the Act in such a way that the payment of the service allowance does not apply when re-entering the service under other laws. On 10 January 1996, he received a decision to suspend payment of the service allowance from the Military Social Security Office. It appealed against this within the legal period, but the appeal was rejected and the contested decision was confirmed.
The appellant further stated in the reasoning that the service contribution was regarded as a compensation to the State for having been deprived of his profession for a number of years of the most productive age without fault. He joined the Police of the Czech Republic because it was closest to his original profession and the conditions were acceptable to him here, provided that he continued to receive a service allowance which compensated for his pay gap. The plaintiff states that he is married, has three children and was able to financially secure the needs of his family only thanks to the service allowance at the level of his salary with the Police of the Czech Republic.
The complainant contends that he has chosen a new service relationship with the Police of the Czech Republic for the validity of a legal provision according to which he continued to have a service contribution. The new provision of Paragraph 33 (11) of Law No 76 / 1959 Coll. infringes, in the view of the complainant, the principle of legal certainty and the unlawful interference in his family and private life, as well as his right to freedom of choice of profession under Article 26 (1) of the Charter of Fundamental Rights and Freedoms. This intervention sees, in particular, in the circumstances that, by ceasing the payment of a payout, the family is in a difficult economic situation, forcing itself to seek another, more financially advantageous job.
In the appellant's view, the direct application of Paragraph 33 (11) of Act No. 76 / 1959 Coll., as amended, resulted in a final decision which is contrary to the above constitutional rights and therefore proposed the annulment of that provision.
The Constitutional Court first examined whether the formal terms of the constitutional complaint were fulfilled.
The applicant lodged a constitutional complaint after his appeal against the decision of the Military Social Security Office was not granted by the Ministry of Defence and this decision was confirmed. Since it was a final decision of the Supreme Authority on the defence section, the appellant did not use up all the procedural means provided by the Law on the Protection of the Law, as provided for in Section 75 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, since it did not refer to the General Court for a proposal to examine the legality of the decision of the State Administration Body under the provisions of Section 244 of the Civil Code.
However, following the examination of the proposal, the Constitutional Court concluded that, in the present case, this is a question which is significantly above the complainant's own interests, since it is a wide range of persons who were affected by the ex-wife, i.e. directly from the law, and who were therefore completely stopped from paying the service allowance, thereby losing part of their income. In addition, the Constitutional Court took into account the fact that the Constitutional Court is gradually being contacted and, in the future, other citizens who were affected by the amendment in question would probably have been turned over.
Under the provisions of § 75 (2) of Act No. 182 / 1993 Coll. The Constitutional Court shall not refuse the acceptance of a constitutional complaint, even if the condition laid down in paragraph 1 of the provision cited is not met, if the complaint is substantially in excess of its own interests and has been lodged within one year of the date on which the facts which are the subject of the constitutional complaint occurred. This condition was fulfilled by the complainant, as the payment of the payment of the service was stopped on 1 February 1996 and the constitutional complaint was lodged on 1 April 1996.
In the present case, the Constitutional Court concluded that the two above-mentioned conditions of § 75 (2) of Act No 182 / 1993 Coll. were fulfilled and therefore did not reject the constitutional complaint, even if the appellant did not use up all the procedural means prior to its submission.
In addition to the content of the Constitutional Court, it was established from the decision to grant service to the Military Social Security Office that the claimant had been granted a service allowance of CZK 4500 per month with effect from 1 April 1994 until the age of 60, because he had been dismissed by order of the Minister of Defence from the service of a professional soldier under § 26 (1) (g) of the Act due to the reduction of the number of armed forces.
It was also found that the claimant had been stopped by the decision of the Military Social Security Office by the payment of the service allowance on the grounds that this was in line with the amendment of Act No 76 / 1959 Coll. effective from 1 January 1996, with effect from 1 February 1996.
By decision of the Ministry of Defence on the appeal of the complainant, the termination of the payment of the service allowance was confirmed in full on the grounds that, under the amendment of Act No. 76 / 1959 Coll. (No. 160 / 1955 Coll., Article XII), which supplemented the provisions of Paragraph 33 (11), the payment of the service allowance does not fall under other laws. It is clear from the amendment that it applies with effect from 1 January 1996 to all recipients of service allowances, regardless of the previous duration of service or the date on which the allowance was granted. It is therefore irrelevant when the beneficiary of the service contribution entered this other service, whether before or for its effectiveness. Only the effective date of Amendment 160 / 1995 Coll., from which the payment of the allowance does not belong, is decisive here, while the right to the benefit remains.
It is further noted in the Ministry of Defence's decision that the provision of Paragraph 33 (11) was added to the law in order to bring the provision of Act No. 76 / 1959 Coll. concerning the service contribution into line with similar provisions of other laws on service conditions (e.g. the Police of the Czech Republic and the Security Information Service). It would be unfounded for a former professional soldier to continue to receive a service allowance when the Law on another service relationship under which he was accepted continues to maintain his entitlement to a similar service benefit while, at the same time, including the duration of the service of the professional soldier in active employment, counting his entitlement to the allowance and its amount. If the applicant fulfils the conditions for entitlement to a service allowance under the Act No. 186 / 1992 Coll., as amended, the applicant will be awarded a service allowance under this Act after the service is completed and the period of military active service will be credited to him for the service allowance.
The President of the Chamber of Deputies of the Parliament of the Czech Republic states in his observations that the provision of the Act is based on the principle that the legal relations of both substantive and procedural law, which were established by the existing legislation (i.e. in this case before the adoption of Act No. 160 / 1995 Coll.), are governed by this law in principle, until the effective date of the new law, but after its effectiveness is governed by the new law. Therefore, the Act does not interfere with the legal relations and claims arising from them before 1 January 1996, but only in accordance with the constitutional order of the Czech Republic sets out in the future the conditions for the granting and payment of the service contribution. In this context he referred to the findings of the Constitutional Court published in the Collection of Laws under No 164 / 1994 Coll. and No 107 / 1996 Coll., in which the Constitutional Court also dealt with the issue of the retroactivity of legislation.
The President The Chamber of Deputies was approved by the necessary majority of Members on 30 June 1995, signed by the relevant constitutional authorities and duly declared. The legislature acted in the belief that the law adopted was in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic.
The issue of the service contribution has already been addressed by the Constitutional Court's finding, sp. zn. Although there were different provisions, in this case the service allowance can be assessed in accordance with the explanatory memorandum to the law in question. The service allowance is designed in our legal system as a compensation for work done under difficult conditions and compensation for certain personal restrictions resulting from the nature of work in the armed forces of the State. It belongs to all those who have fulfilled the statutory conditions and are part of a system of social benefits related to termination of service. Entitlement to all these benefits shall be maintained.
The service allowance cannot be seen as part of the remuneration for the work, but according to the opinion of the Minister of Labour and Social Affairs, with which the Constitutional Court identified itself, as a separate income which was not part of the so-called "professional income 'and is not part of the salary of members of the armed forces. This is a specific category of income justified to some extent by social reasons.
The Constitutional Court first considered the objection of retroactivity and found that the complainant's view of the retroactive application of the law was one-sided. In the already cited finding of the Constitutional Court, essentially the same as the finding of sp. zn. Pl. ÚS 3 / 94 No. 164 / 1994 Coll., the difference between the right and wrong retroactivity is explained. With reference to the above findings of the Constitutional Court, the amendments to Law No 76 / 1959 Coll. are not a genuine retroactivity, but an incorrect one, which our legal order admits, and when legal relations that arose under the law of the old are essentially governed by this law until the law is effective.
As regards the assessment of whether the contested provision of Paragraph 33 (11) of Law No 76 / 1995 Coll. was infringed by the appellant of those fundamental rights and freedoms, the Constitutional Court considers that it does not.
First, the Constitutional Court dealt with the objection to a breach of the principle of legal certainty, which the complainant relies on the fact that he entered into the service of the Police of the Czech Republic in good faith that the State which provided him with the service at that time would not threaten the stability and reliability of its social policy by sudden changes, as citizens have the right to have state behaviour calculated for them. The Constitutional Court is of the opinion that excessive changes to legislation - particularly on economic, wage and social policy - weaken the legal certainty of citizens and the credibility of the state itself. On the other hand, however, legislators cannot be denied the right to re-regulate social relations wherever they consider it necessary and effective from the point of view of the public interest, unless the fundamental rights and freedoms of citizens are jeopardised in substance.
In the present case, the Constitutional Court did not find such a threat, and the objection that the reorganisation of the service contribution infringed the complainant's right to freedom of choice under Article 26 (1) of the Charter of Fundamental Rights and Freedoms could only be rejected. Ing. J. V. was notified in advance by the Military Social Security Office for the amendment of the Act and the related withdrawal of the service allowance and could then consider whether it would change the current employment for one which is not based on a service relationship and in which the service allowance would continue to receive, for example for employment in one of the fields of his technical education. If the complainant did not do so, he made it clear that despite the loss of CZK 4,500 in his family's monthly budget, he preferred to continue working with the Police of the Czech Republic. His situation was therefore not such that he was deprived of any alternatives and that he was forced to comply with the new measure of the law. It is true that the payment of the service allowance is resting for the duration of his service - and the Constitutional Court understands that the complainant sees this as an injury - but entitlement is not lost and other years of service are included in the amount of the service allowance to be paid after the service. The purpose of the service allowance is financial compensation when leaving the service at all, not simply when transferring from one service to another.
Paragraph 33 (11) of Act No. 76 / 1959 Coll., as amended, does not restrict the right to free choice of profession or the right to engage or engage in other economic activities. The difficulty of finding a new job is mitigated by the service allowance to which the complainant would be permanently entitled in each other's employment, with the exception of service.
The Constitutional Court also considered that the legislature defined, in general and without exceptions, the range of bodies to whom, if the same conditions are met, the service allowance is retained and, in general, the range of those who are losing their right to pay, only for the duration of their service. In doing so, it maintained the principle of equality in assessing the personnel scope of the law, since it defined it without favouring or favouring those or those entities within those groups. If the cancellation of the service allowance were to apply only to the service conditions that would only arise in the future, as the complainant suggests, this would infringe the principle of equality by favouring those who were already in service before the measure was effective, compared to those who were newly created. Nor will the objection that there has been an unauthorized interference in private and personal life stand. Nothing such a direct effect of the contested legislation has taken place. As regards the granting or not of the rank of Lieutenant Colonel also in the new service relationship of the complainant, this is a question which is out of the question of assessment in the context of this procedure because the continuity or discontinuance of rank is not related to the service contribution.
In view of the above, the Constitutional Court had no choice but to reject the application for annulment of the provision of § 33 paragraph 1 of Act No. 76 / 1959 Coll., as amended by Act No. 160 / 1995 Coll.,
President of the Constitutional Court of the Czech Republic:
v. JUDr. Holecek v. r.
Vice-President
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 126 / 1997 Coll., on a proposal related to a constitutional complaint, on the annulment of the provisions of § 33 paragraph 11 of Act No. 76 / 1959 Coll., on certain service conditions of soldiers, as amended by Act No. 160 / 1995 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.06.1997 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0