Found at the Constitutional Court of the Czech Republic No. 13 / 1996 Coll.

Motion denied.

Group 42 Members The Chamber of Deputies of the Parliament of the Czech Republic has submitted a proposal to repeal the provisions of Article I (8) of Act No. 138 / 1995 Coll., amending and supplementing Act No. 29 / 1984 Coll., on the System of Primary Schools (Education Act), as amended by Act No. 188 / 1988 Coll., Act No. 171 / 1990 Coll., Act No. 522 / 1990 Coll., Act No. 134 / 1993 Coll., Act No. 190 / 1993 Coll., Act No. 331 / 1993 Coll., Act No. 49 / 1994 Coll., Act No. 49 / 1994 Coll., and Act No. 190 / 1993 Coll., and in this proposal, the Act No. 76 / 1978 Coll. The contested provision of the amendment to the Education Act states that training in higher vocational schools set up by the State may be provided for in return for payment from the time when its amount and the method of payment are laid down by the Government by regulation; in those schools established by the municipalities, since the amount and method of reimbursement are laid down by a generally binding decree. The remuneration cannot be higher than half of the calculated costs per pupil of the school. Thus, the determination of the period from which remuneration will have to be paid, as well as the amount and methods of payment, shifts to legislation and the source of the law of a lower legal force than the ordinary law. Such a procedure is a gross violation of the constitutional order of the Czech Republic and, moreover, of the ratified and declared human rights and fundamental freedoms treaties which, under Article 10 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), are directly binding and have priority over the law. For example, Article 13 (1) of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll., recognises everyone's right to education, while providing that, in order to achieve the full implementation of this right, basic education is required to be compulsory and freely accessible to all, and that secondary education is also allowed and made available by the gradual introduction of free education [Article 13 (2) (a), (b), (c)]. Moreover, under Article 5 (2) of the same Pact, no restriction or withdrawal of any of the fundamental human rights recognised or existing in any country by virtue of laws, conventions, regulations or practices under the pretext that the Pact does not recognise such rights or that it recognises them to a lesser extent. Also in the Convention on the Rights of the Child, published under No 104 / 1991 Coll., the right of the child to education is recognised, with the fact that, for the purposes of the gradual implementation of that right and on the basis of equal opportunities, all children are in particular introduced free and compulsory basic education and encouraged to develop different forms of secondary education, including by such measures as free education [Article 28 (1) (a), (b)]. It is noted in Article 41 (a), (b) of this Convention that nothing in this Convention is affected by provisions which are to a greater extent conducive to the exercise of the rights of the child and which may be contained in the legal order of a Contracting State or in international law which is binding on such State. All these fundamental arguments were explicitly stated by the Constitutional Court of the Czech Republic in the justification of its finding published under No 49 / 1994 Coll. The Group of Signed Members of the Chamber of Deputies of the Parliament of the Czech Republic therefore proposes that the Constitutional Court should decide by finding that Article I (8) of Act No. 138 / 1995 Coll., which introduced the new paragraph 2 (4) of the Education Act, as amended, is deleted from the date of the declaration of the finding in the Collection of Laws.

The Chamber of Deputies of the Parliament of the Czech Republic, in a letter from its President, PhDr. Milan Uhde, dated 12 October 1995, referred to the explanatory memorandum to Act No. 138 / 1995 Coll., which states that the original law only dealt with the system of primary and secondary schools. Since higher education institutions, only experimental until the amendment, have proved to be accepted, they have therefore been included in the school system as one of its essential components. However, it is a study that is more demanding than secondary school, with an extensive practical component, a study in which the graduate reaches higher vocational education. This is therefore a post-graduate course for high school graduates, which aims to increase qualifications or specialisation. Given the nature of this study and the trends in its expected development, it is not appropriate to finance exclusively from the state budget. In primary and secondary schools, the Charter guarantees that education is free of charge, but since higher education provides additional qualifications for pupils who have already passed the secondary school graduation exam, this education can be provided for remuneration. The introduction of education in higher vocational schools for remuneration is therefore not contrary to the constitutional order of the Czech Republic or to the international treaties by which the Czech Republic is bound. The law was approved by the necessary majority of Members of the Chamber of Deputies of the Parliament of the Czech Republic on 22 June 1995, signed by the relevant constitutional authorities and duly declared. The legislature therefore acted in the belief that the law adopted was in accordance with the Constitution and our rule of law and it is up to the Constitutional Court to assess the constitutionality of that law and to give a decision in connection with the application for annulment of Article 4 (2) of Law 138 / 1995.

From the report on the 32nd meeting of the Chamber of Deputies of the Parliament of the Czech Republic on 20-30 June 1995, the Constitutional Court found that Law No. 138 / 1995 Coll. was approved on 22 June 1995 by a necessary majority of 95 Members pursuant to the provisions of § 39 paragraphs 1 and 2 of the Constitution. This law was published in 37 Collection of Laws of the Czech Republic, sent out on 27 July 1995. The bill was discussed and adopted on the basis of the Government's proposal of 7 December 1994 (House Press No. 1430) and the Joint Reports of the Committees of the Chamber of Deputies on the Government Bill of 16 June 1995 (House Press No. 1632). It can therefore be considered that the law was adopted and issued within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).

The term "higher vocational school ', which is defined in detail by Act No. 138 / 1995 Coll. (Article I (1), (2)), has become part of the educational system (§ 1 (1) of the Education Act), is defined in Article I (28) (§ 27a of the Education Act) by stating in paragraph 1 of the provision cited that the higher vocational school prepares for the qualified performance of demanding professional activities or deepens the educational attainment of specific demanding activities. According to paragraph 2, the higher education institution provides higher vocational education in each field of study, which includes general, specific vocational training, demanding practical training and ending with discharge; day study lasts at least two years and at most three years, long-term study lasts at least three years and at most four years. If practical training takes the form of professional experience of more than three months is part of the daily study, daily study may take a maximum of three and a half years. A student who has successfully completed a discharge shall have the right to use the title of a graduate of a higher vocational school in his name. Paragraph 3 of the provision provides that pupils and other applicants who have obtained full secondary education or full secondary vocational education are to be admitted to higher education. As is apparent from the explanatory memorandum to Act No. 138 / 1995 Coll., the reason for the inclusion of higher vocational schools in the education system was the fact that these, so far experimental, schools proved to be good. It is a post-graduate course for high school graduates and aimed at increasing their qualifications or specialisation.

It is therefore clear from what has been mentioned that higher education institutions are, on the one hand, part of an education system, but, on the other hand, they are a different type from secondary schools, as they are already expected to receive secondary education. Thus, by this nature, higher vocational schools are excluded from the scope of Article 33 (2) of the Charter, which embodies citizens' right to free education in primary and secondary schools. Although this article also refers to the right to free education in universities, it is no longer about the right of an unconditional nature, because it is, on the contrary, conditional on the ability of the citizen and the possibilities of society. However, Paragraph 4 (2) of the Education Act does not contradict, in the view of the Constitutional Court, the ratified and declared international agreements on human rights and fundamental freedoms by which the Czech Republic is bound, which are directly binding and take precedence over the law (Article 10 of the Constitution). In particular, Article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights, published in No. 120 / 1976 Coll., states that higher education will also be made available to all by all appropriate means, but only through the gradual introduction of free education. Also, by adopting the Convention on the Rights of the Child, published in No 104 / 1991 Coll., States Parties to this Convention, they recognised the right of the child to education with a view to the progressive implementation of that right and on the basis of equal opportunities, in particular by introducing free and compulsory basic education for all children [Article 28 (1) (a)] and by encouraging the development of various forms of secondary education, including general and vocational education, as well as by doing so is acceptable and available to each child and by adopting other appropriate measures such as the introduction of free education and, where necessary, the granting of financial support [Article 28 (1) (b)]. It is therefore clear from those international agreements that, in terms of higher than secondary education, the provision of such contracts is linked to a particular process, the characteristic of which is the progression of individual measures. Thus, the introduction of free education at higher education institutions, under current legislation and in existing social conditions, is merely an objective to which each Contracting Party is directed in accordance with its possibilities. These international standards do not therefore have an unconditional subtext when adjusting higher than secondary education, and merely indicate the expected trend in development. Also, a reference to Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights, providing for the inadmissibility of restrictions or derogations from any of the fundamental human rights recognised or existing in any country on the basis of laws, conventions, regulations or practices under the pretext that the Covenant does not recognise or recognise such rights to a lesser extent, lacks justification, in the view of the Constitutional Court, as the Charter also lays down in Article 33 (2) an unconditional right to free education only in primary and secondary schools. Finally, in the view of the Constitutional Court, it cannot be accepted by the appellants that the unconstitutional nature of the contested standard can be inferred from the fact that the time of the introduction of the remuneration for higher education in higher vocational schools established by the State, as well as its amount and the method of payment, are left to the Government's regulations. It follows from the provisions of Paragraph 78 of the Constitution that the Government is entitled to issue regulations implementing the law and within its limits. Therefore, if the contested provision of § 4 (2) of the Education Act already states that the remuneration for training provided by higher education institutions cannot be more than half of the calculated costs per pupil of the school, then the government is left with only the determination of the period from which such remuneration is to be granted and the determination of its amount and the method of reimbursement is made entirely in Article 78 of the Constitution.

The objection to the unconstitutionality of § 4 (2) of the Education Act, as amended by Act No. 138 / 1995 Coll., also consists in referring to the State's obligation to gradually introduce a free higher than secondary education [Article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights]. The question here is whether this commitment implies a ban on the legislator's change in the validity of higher education to education for remuneration, even partially. However, the opinion contained in this objection is not shared by the Constitutional Court. The concepts such as' education free ',' health care free ',' Parliament ',' elections', as well as many others, have a different meaning in the totalitarian and democratic system in principle. In a system of political and economic totalitarianism, these concepts create merely the appearance of legitimacy of power, as well as the mere fiction of a welfare state, while, in a democratic political and economic system, they refer to the mechanism of shaping, or the functioning of, legitimate power or the level of state activity in relation to citizens paid for by tax revenues. In the opinion of the Constitutional Court, the fundamental difference in the meaning of these terms in those different systems is why, given their divergence, these terms cannot be identified in substance.

The right to give a different opinion in the protocol on the hearing and to attach it to the decision, stating its name under § 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was used by the judge of the Constitutional Court of the Czech Republic JUDr. Vladimir Paul.