The Constitutional Court found No 14 / 2015 Coll.
The Constitutional Court's finding of 16 December 2014, sp. zn.
Valid
14
FIND
The Constitutional Court
On behalf of the Republic
On 16 December 2014, the Constitutional Court decided under sp. zn.
as follows:
Paragraph 158 (a) of Act No 187 / 2006 Coll., on sickness insurance, is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Subject matter
1. The Supreme Administrative Court ("the appellant ') submitted to the Constitutional Court by its Resolution of 17.4.2014 No 4 Ads 116 / 2013-27 a proposal for the annulment of the provisions of § 158 (a) of Act No 187 / 2006 Coll., on sickness insurance (" the contested provision').
2. The applicant submitted this proposal after having concluded, in the context of its decision-making activities in the case sp. zn. 4 Ads 116 / 2013, in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), that the contested provision is contrary to the constitutional order.
Proceedings before administrative authorities and administrative courts
3. The purpose of the administrative procedure was to assess whether the applicant should be paid sickness insurance after the end of the period of support in an initial administrative procedure under Section 27 of the sickness insurance law. According to that provision, after the end of the period of support provided for under Paragraph 26, sickness benefits shall be paid on application by the insured person for the period laid down in the decision of the sickness insurance institution, as indicated by the sickness insurance institution's doctor, provided that the insured person can be expected to acquire working capacity within a short period, but not more than 350 calendar days from the end of the period of support provided for in Article 26, even for a non-current insured activity; This may also be done repeatedly, with a single extension of the sickness payment not exceeding 3 months. According to the first sentence, sickness payments may be made for a maximum period of 350 calendar days from the end of the support period laid down in Article 26 of the same Law.
4. The Regional Social Security Administration (hereinafter referred to as "OSSZ ') decided not to grant the sickness payment after the end of the support period. For the appeal of the applicant, the Czech Social Security Administration (hereinafter referred to as" CSSR') annulled this decision and returned the case to the first-degree authority for reconsideration of the applicant's health status after the correct date of expiry of the support period (10.8.2012), as the operative date of the decision was indicated in the operative part of the decision. The OSSZ subsequently issued (14 February 2013) a new decision granting the applicant entitlement to the sickness payment after the end of the period of support, "subject to the fulfilment of the other statutory conditions for the period from 11.8.2012 to 29.9.2012 '. Since 30 September 2012, when the applicant's working capacity was restored, he was not granted sick leave.
5. This decision was appealed against by the applicant, stating that since 2 January 2013 he was once again incapacitated because he had failed to pass the initial examination with his employer's racing doctor. This appeal was rejected by the ČSSZ, which "for the purposes of checking the accuracy of the health report ', which was bound by the first level authority, requested an assessment by the medical assessor of the medical evaluation service of the ČSSZ.
6. The applicant brought an action against these (sub-4 and 5) decisions of both the primary and the appellate administrative body, alleging that the contested decisions were based on incorrect conclusions of the relevant medical file, the examination of which took place in the course of the proceedings before the appellate body in its absence, was not taken into account in its disease of disease of boreliosis and the fact that he suffered from cranked nerve. Despite the unsatisfactory state of health, due to the lack of funding, he had to be recognised as being able to work on 1 January 2013. The Regional Court of Prague decided on this application by order of 20 November 2013 No 43 Ad 21 / 2013-15 by rejecting it by referring to the draft contested provision § 158 (a) of the sickness insurance law. According to that provision, decisions on the payment of sick leave are excluded from judicial review after the period of support.
7. In the course of the appeal proceedings against the order of the Regional Court, the fourth Chamber of the Supreme Administrative Court submitted a proposal for the annulment of the provision of the sickness insurance law in question.
Recital of the proposal
8. The appellant first referred to the consistent case law of the Supreme Administrative Court (e.g. judgment of 23 August 2012 No 5 As 17 / 2012-31), under which "Paragraph 158 of the Law on sickness insurance corresponds to the general principle applied in the administrative judicial proceedings or in the case of a judgment on the benefits of the Court of Pensions, according to which the courts are not called to examine separately the judgments in the matters of health and employment - first, the general rules contained in Section 70 (d) (CS) (acts which depend solely on the assessment of the state of health of persons, if they do not constitute a legal obstacle to the exercise of the profession - but are always a question of the judicial review), which the Court must be brought before the Court of Justice, and the Court of Justice only when it is examined when the decision of the administrative authority on the application is subject matter.
9. The appellant submits that the contested provision in the field of sickness insurance distributes and restates explicitly the rule contained in Section 70 (d) of Act No. 150 / 2002 Coll., the administrative court order under which decisions, the issue of which depends solely on the assessment of the state of health of persons or the technical state of affairs, are excluded from judicial review, unless they themselves constitute a legal obstacle to the pursuit of the profession, employment or business or other economic activity. It points to the finding of the Constitutional Court sp. zn. The appellant concludes that the contested provision of the sickness insurance law should be abolished in the light of the contradiction with the enforceable and binding finding of the Constitutional Court, sp. v. Pl. ÚS 15 / 12.
10. The appellant points out that the contested decision on the payment of the sickness after the end of the period of support should not be excluded from the judicial review as it affects the fundamental rights guaranteed by the Charter of Fundamental Rights ("the Charter ') or Article 36 (2) of the Charter, namely the right to adequate material security in the event of incapacity for work under Article 30 (1) of the Charter. The existence of the contested provision of the sickness insurance law requires administrative courts to reject actions against decisions on the payment of the sickness after the end of the period of support, although this conclusion is contrary to the above-mentioned finding of the Constitutional Court. According to the appellant, the continuation of such an option could in future lead to circumvention of this finding by the Constitutional Court, since special laws could provide for a rule which would exclude decisions that depend solely on the assessment of the state of health of persons from judicial review. This would be contrary to Article 89 (2) of the Constitution.
11. The appellant considers that the contested provision of the sickness insurance law cannot be interpreted in a constitutional manner. Its wording is very clear and does not allow for any possibility of review of the type of decision mentioned here and cannot therefore be interpreted in accordance with the conclusions of the Constitutional Court sp. zn. The appellant refers to the order of the Supreme Administrative Court of 31 May 2011 No 6 Ads 109 / 2009-72.
Observations of the parties
12. The Chamber of Deputies of the Parliament of the Czech Republic ("the Chamber of Deputies"), in its observations on the proposal of 8 June 2014, signed by President Jan Hamakk, described the procedure for adopting the draft sickness insurance law. On this point, it stated that the legislature acted in the belief that the law adopted was in line with the Constitution and our legal order.
13. The Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Senate"), in its comments on the proposal of 16 June 2014, signed by President Milan Štěm, also focused on the process of approving the draft sickness insurance law, including the contested provision. In addition, it stated that, as regards the treatment of sickness insurance proceedings, which defines which decisions are excluded from judicial review, that provision contained in Section 158 of the sickness insurance law at the time of its adoption (in March 2006) corresponded to that applied at that time. In the period following the adoption of the Sickness Insurance Act, which has been amended 34 times so far, only in one case partly intervened in Section 158. This was an amendment under Act No. 470 / 2011 Coll., amending Act No. 187 / 2006 Coll., on sickness insurance, as amended, and some other laws in which the Part One contained a rather extensive amendment to the Act on sickness insurance, under which it was referred to in Article 4 (1) of the Act on sickness insurance. I, point 138, provided that "At the end of point (d) of Section 158, the words and cancellations of this authorisation 'are added.'; It was therefore a partial amendment which did not concern the contested provision § 158 (a), which has been unchanged since the adoption of the Act in 2006.
14. The Senate stated that, when discussing the draft sickness insurance law, no discussion was held in the Senate as to both the adjustment contained in Section 27 concerning the payment of the sickness after the end of the period of support and the adjustment contained in Section 158 concerning decisions excluded from judicial review. On the subject, it can only be noted that the provision of Article 30 of the Charter, in which paragraph 1 also provides for the right to adequate physical protection in the event of incapacity for work, is included in the economic, social and cultural rights, and must therefore be interpreted in the light of Article 41 (1) of the Charter, thus not being a fundamental right applicable directly under a constitutional regulation, i.e. the Charter, as is the case-law under the second Charter. This approach was also mentioned in the decision of the Constitutional Court on a similar proposal [see the order of the Constitutional Court sp. zn. II. ÚS 524 / 06 of 29.11.2006 (not published in the SbNU, available at http: / / nalus.ujud.cz)].
15. The Government, which entered the proceedings as an intervener pursuant to Article 69 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), stated in its observations approved on 16 June 2014 and signed by Prime Minister Bohuslav Sobotka that the arguments put forward by the appellant on the Constitutional Court are not appropriate, since it is based on the mere mechanical application of the interpretative statement of findings sp. zn. Pl. ÚS 15 / 12 (see above), but without the current analysis of the Constitutional Court's caselaw on the extent of the constitutional guarantees of the fundamental law concerned, which, in the case in question, is not a primary right to judicial protection within the meaning of Article 36 (2), but a right to a reasonable substance of the basic law, in respect of ineligibility,
16. The Government considers that, even in the present case, it is for the assessment of whether the decision on the payment of the sickness after the end of the period of support is, or is not, an act affecting the fundamental rights guaranteed by the Charter, a key definition of the very scope of "the fundamental right in question '. This fundamental right in the present case is the right to adequate material security in the event of incapacity for work guaranteed by Article 30 (1) of the Charter. That fundamental right is implemented in the context of the subconstitutional law by, inter alia, the draft sickness insurance law concerned. It refers to some of the conclusions of the Constitutional Court concerning the determination of the constitutionally conformal level of compliance with the right to adequate material security; e.g. according to the Constitutional Court found on 24 April 2012 sp. zn. Pl. ÚS 54 / 10 (N 84 / 65 SbNU 121; 186 / 2012 Coll.).
17. According to the Government, the right to adequate physical security in incapacity for work within the meaning of Article 30 (1) of the Charter must be seen as an obligation to provide individuals with social benefits at a level sufficient to lead a decent life, only for the strictly necessary period of time when they are objectively unable, for health reasons, to provide themselves with their own gainful activities. The situation where the social event causes long-term or permanent incapacity to work is then dealt with by Act No. 155 / 1995 Coll., on Pension Insurance, as amended. The person may also be provided with a minimum social standard from other (insecurity) social systems, in particular under Act No. 111 / 2006 Coll., on assistance in material distress, as amended. The minimum material standard (in the sense of the appropriate extent referred to in Article 30 of the Charter) is constitutionally conformal, as is the result of the finding of the Constitutional Court sp. v. Pl. ÚS 54 / 10. According to the Government, the contested provision, or the related provision of the sickness insurance law, does not seem to interfere with the core of the fundamental law in question and does not constitute an obstacle to its actual implementation as it does not affect it at all. The contested provision concerns the decision on the payment of the sickness after the end of the period of support as a decision on (no) the payment of the non-payment of the non-payment of the additional benefit from the insurance scheme.
18. On the basis of the starting points of the design of the institution for the provision of the sickness benefit after the exhaustion of the support period, the government summarises that the extension of the payment of the sickness benefit after the end of the support period can be seen as a "superstandard 'given by the specific health situation of the insured person, which is expected to improve so much in the near future that the insured person regains working capacity and therefore it is not appropriate to claim a long-term benefit from another social insurance scheme, i.e. an invalidity pension pension pension. According to the Government, it is clear that the contested provision (and the related provision of the sickness insurance law) pursues an entirely legitimate objective which, in addition to the above-mentioned benefit provided by the insured person, also seeks to avoid unnecessary burdens and overcrowding of administrative courts in disputes whose outcome cannot de facto differ from that of the administrative authority, since their decision depends solely on the assessment of the health status of the insured person.
19. The Government considers that a possible devolution of the contested provision of the sickness insurance law would probably open the way for a review of all medical opinions issued under the sickness insurance law (or decisions derived therefrom). The issue of the decision on the payment of the sickness allowance after the end of the period of support is dependent on the opinion of the doctor of the sickness insurance institution, which is binding on the sickness insurance authority because it has the character of a professional binding opinion within the meaning of the provisions of § 149 (1) of Act No 500 / 2004 Coll., the administrative order.
20. In the case of an application for payment of sick leave after the end of the period of support at first instance, the OSSZ shall decide, on the basis of a medical opinion by the OSSZ Medical Service, on the basis of the medical opinion. Where an appeal is lodged against a first-instance decision which contains objections concerning the assessment of the health status of the appellant, the OSSZ shall request from the competent doctor the medical assessment service of the OSSZ to express whether the reasons for the change of its assessment conclusion are given and whether it persists in its initial assessment of the health status of the appellant. If the OSSZ does not fully comply with the appellant in the context of an autoremedura, it shall transmit the administrative file, with its opinion, to the appellant. On the basis of the appeal, the ČSSZ will again request an assessment of the health status of the appellant from the department of medical assessment service of the relevant CSSSI within the meaning of Section 149 (4) of the Administrative Regulation. Therefore, until the decision on appeal has been taken, the health status of the applicant is assessed three times in total, by two medical assessment services. The Government considers that the procedure described above guarantees a sufficient level of legal protection of the insured's interests. He's proposing a rejection.
21. The Ombudsman did not exercise her right to intervene, but, in her observations of 3 June 2014, she agreed with the proposal of the Supreme Administrative Court.
22. In the written opinion requested by the Constitutional Court pursuant to Article 48 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the CSMI states that the contested provision is linked to the provisions of Sections 145 (3), § 27 and 66 of Act No. 187 / 2006 Coll., on sickness insurance, as amended by Act No. 470 / 2011 Coll. It is clear from the provisions of Section 27 of the sickness insurance law that a decision not to be granted after the end of the period of support may only be taken in two cases. First, if the competent doctor of the sickness insurance institution concludes that the insured person has acquired working capacity, including other than the insured activity (his temporary incapacity should be terminated by the treating doctor), and, secondly, if, after 350 days, the insured person has not acquired such working capacity, as the damage to his health is of a long-term or permanent nature. The negative decision on the payment of sickness benefits after the end of the period of support does not affect the fundamental rights guaranteed by the Charter, as the applicant has either acquired eligibility for work and has therefore lost the reason for providing him with physical security in the form of sickness benefits, or, in the case of long-term or permanent incapacity to work caused by illness or accident, in compliance with the conditions laid down by law, is secured by disability pension.
23. The sickness insurance authorities shall, when deciding on the entitlement to the sickness benefit after the expiry of the period of support under the rules of the sickness insurance law and the administrative rules, provide no administrative discretion for social security administrations. The decision on the payment of the sickness allowance after the end of the period of support shall be dependent on the medical opinion of the sickness insurance institution and shall be binding on the sickness insurance authority. Like the Government in its observations, the CSSR also points out the possibility of appeals against the decision on the application for payment of the sickness after the end of the period of support. In addition, it states that, if the decision on the payment of the sickness is not excluded from judicial review after the end of the period of support, the Court of First Instance may, in the context of proceedings for an action against a decision by an administrative authority, add evidence to the expert opinion aimed at reassessing the applicant's health status. It further notes that there is nothing to prevent the insured person from claiming payment of the sickness after the end of the period of support in the event of a deterioration of his or her health status, for which he has been recognised as temporarily incapacitated.
24. ČSSZ is of the opinion that the contested provision of the sickness insurance law complies with the so-called "reasonable test" (see, for example, the already mentioned finding sp. zn. Pl. ÚS 54 / 10), since it does not interfere in the core of the right to physical security in the event of incapacity for work, pursues a legitimate objective and has chosen rational and not arbitrary means to achieve that objective.
Abandonment of oral proceedings
25. The Constitutional Court did not expect further clarification of the case from the oral hearing, therefore it waived the provisions of § 44 of the First Law on the Constitutional Court.
Derogation of the contested provision
26. Paragraph 158 (a) of the sickness insurance law reads:
Judicial review
Decisions on:
(a) sickness pay after the end of the period of support,...
Assessment of the jurisdiction of the Constitutional Court to discuss the application and the applicant's active legitimacy
27. The Constitutional Court first examined whether the procedural conditions for hearing the application were fulfilled. The application was submitted by an actively legitimate body (Article 64 (3) of the Law on the Constitutional Court in conjunction with Article 95 (2) of the Constitution), the Constitutional Court is competent to discuss that proposal (Article 87 (1) (a) of the Constitution) and is not inadmissible (Article 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
28. The Constitutional Court could therefore proceed to assess whether the contested provision is in conformity with the constitutional order, i.e. (a) whether the contested legislation was adopted and issued within the limits of the constitutional competence laid down, (b) whether the constitutional procedure for such adoption or extradition was complied with and, finally, (c) whether the contested legislation is in accordance with the constitutional order in terms of content (§ 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 48 / 2002 Coll.).
Review of the procedure for the adoption of the legislative provision under review
29. In assessing whether the contested provision was adopted within the limits of the Constitution and in a constitutionally prescribed manner, the Constitutional Court came from the relevant stenoprotocols (available at www.pspp.cz) and from the observations of the two chambers of Parliament of the Czech Republic.
30. The draft sickness insurance law containing the contested provision was submitted by the Government to the Chamber of Deputies on 2 June 2005. At the 45th meeting of the Chamber of Deputies held on 28 and 29 June 2005, the Government's draft sickness insurance law, discussed as House Press No. 1005 at first reading, was ordered to discuss the constitutional legal committee and the Committee on Social Policy and Health. At its 74th meeting on 2 November 2005, the Constitutional Legal Committee decided not to discuss the government bill. At its 41st meeting on 3 November 2005, the Committee on Social Policy and Health Affairs discussed the government bill, adopting amendments to it, but not to the provisions of Section 158 of the sickness insurance law. As part of the second reading of the bill at the 51st session of the Chamber of Deputies on 8 December 2005, a general and detailed debate was held, but no amendment was tabled to the contested provision. The third reading took place at the 51st session of the Chamber of Deputies on 21 December 2005, when the bill was approved in vote 1480 (resolution 2100); 87 Members present voted in favour of Bill 69 and against 17. The Chamber of Deputies passed the bill on 17 January 2006 to the Senate.
31. The Senate discussed the draft sickness insurance law as Senate Document No 242 (in the 5th term of office). The draft law was discussed in the Committee on Health and Social Policy, which, as a guarantee committee, adopted a resolution on the draft law, recommending the Senate to return the draft law with an amendment which did not concern the contested provision (a response to the Chamber of Deputies). In addition, Senate Press No. 242 was discussed in the Committee on Economic, Agriculture and Transport, which adopted a resolution of substance identical to that of the Guarantee Committee. The Senate discussed the draft law in question at the 9th meeting on 9 February 2006 and returned it to the Chamber of Deputies with amendments recommended for adoption by both committees, as mentioned above.
32. On the bill returned by the Senate, the Chamber of Deputies voted at the 54th meeting on 14 March 2006 and maintained the original bill, with 104 Members and 17 against (vote 153, resolution 2275). The law was delivered to the President of the Republic on 17 March 2006, who did not sign it and returned it to the Chamber of Deputies. The Chamber of Deputies of the President's Veto revoted at the 55th session, when in vote 173 it remained on the original bill (resolution 2419, of 174 Members present 103 in favour, 55 against). The Approved Act was delivered to the Prime Minister on 3 May 2006 and was published in the Collection of Laws in the amount of 64 under the number 187 / 2006 Coll.
33. The Constitutional Court finds that the sickness insurance law, which includes the contested provision, has been adopted and issued within the limits of the constitutional competence and the constitutional procedure.
34. Similarly, the conditions of Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act were fulfilled. In the case of the appellant, this is a provision of the law relating to its decision-making activities and which is to be used immediately in the resolution of the case; It is thus a true concrete control of the constitutionality of the law, as follows from the preamble to the factual and legal basis of the case (sub 3 to 11). The application thus fulfils the conditions for proceedings before the Constitutional Court for such a case.
Meritorious review of the proposal
35. According to Article 36 (2) of the Charter, "Who claims to have been shortened on his rights by a decision of a public authority may refer the court to examine the legality of such a decision, unless otherwise provided for by the law. However, the review of decisions concerning fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. 'Thus, contrary to the principle of enumeration (until 31.12.1991 before the adoption of the amendment to the Civil Code by Act No. 519 / 1991 Coll.), the general principle under which any decision of a public authority may be subject to review by a court if the legislature does not use the scope provided for it to rule out judicial review (originally that list was defined in Section 248 of the Civil Code and contained in Annex A to the Civil Code pursuant to paragraph 3 of that provision).
36. Extension and intensity of this space are not the subject of this procedure, since turnover "unless otherwise provided for by the law" does not need to be interpreted in this case. This would be necessary in a situation where there is a question as to whether the legislator is being limited even if it is not for the prohibition of a lockout in matters relating to fundamental rights and freedoms. However, the appellant does not require an answer to that question to be taken. It argues in the spirit of Article 36 (2) of the Second Charter that this reservation of the law is limited by the impossibility of excluding those decisions of public authorities concerning the fundamental rights set out in the Charter. This provision acts as a special rule in relation to Article 4 of the Constitution, which excludes the protection of fundamental rights and freedoms in general from the jurisdiction of the courts, not only in the context of decisions of public authorities.
37. Likewise, Article 36 (2) of the Charter acts as a special provision in relation to Article 36 (1) of the Charter. Therefore, where an exclusion from judicial review of an administrative decision concerning "fundamental rights and freedoms' under the Charter is provided for by law, it is an exclusion contrary to the two constitutionality of the constitutional order in this field; In other words, in the case of fundamental rights and freedoms, the law" otherwise "cannot provide (exclusion) because it would be contrary to the reservation of jurisdiction in the field of fundamental rights and freedoms provided for in Article 4 of the Constitution and the reservation of the right of judicial protection before an independent and impartial court under Article 36 (1) of the Charter. However, this provided that:
(a) fundamental rights and freedoms under the Charter will indeed be discussed. The same will apply in the light of Article 10 of the Constitution in relation to international agreements, as the condition that the law provides for something other than such an international agreement would be met;
(b) it will be a specific fundamental right or freedom, not just a general concept affecting everything (fundamental rights and freedoms as such, democratic order of fundamental rights and freedoms, social rights or political rights as a category), because otherwise practically judicial exclusions would not be taken into account, since such a system or a human legal system within the meaning of Article 1 (1) of the Constitution affects any activity of the State;
(c) be a decision by a public authority in an administrative procedure. In this case, it is not a matter of restricting judicial protection but of specifying the form or procedure in which it will be provided;
(d) fundamental rights and freedoms will actually be covered. However, it is sufficient when the decision concerns a fundamental right (such as setting out details, obligations in respect of the maintenance of fundamental rights and freedoms); interference or even breach is not a condition, as it is not a constitutional complaint. It should be added that, should the turnover "relating 'constitute an intervention in or even a breach of the fundamental law, this would result in the obligation of a general court to refer to the Constitutional Court not only in the light of the review of the constitutionality of the law applied by it itself within the meaning of Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act, but also in the light of its interpretation.
38. Article 36 (2), second sentence, of the Charter does not specify which "fundamental rights and freedoms" are affected or that only some of them are affected, whether in the sense of any privilege or other qualification. From the definition of this provision, as well as from the history of its preparation, it can be concluded that the legislator did not intend to make a distinction between the different "groups' of fundamental rights from any classification point of view. Thus, an administrative decision which affects some of the rights enshrined in the title of the fourth Charter as in the present case (Article 30 (1) of the Charter) must be eligible for review in the administrative justice sector as well as an administrative decision concerning the rights enshrined in Titles 2 and 3 of the Charter which are not subject to a restriction in the form of Article 41 (1) of the Charter. This view approach to the provision of the Charter, which guarantees the right to a judicial review (i.e. a fair trial) of those decisions of the administrative authorities relating to any of the fundamental rights enshrined in the Charter, is also evident in the case law of the Constitutional Court [in relation to a decision affecting the right to free choice of profession within the meaning of Article 26 (2) of the Charter, see the finding of sp. zn. Pl. ÚS 11 / 2000 of 12. 7. 2001 (N 113 / 23 of the SbNU 105; 322 / 2001 Coll.) and the decision on it relating thereto, available at http: / nalus.ujud.cz, in relation to the right to the protection of persons disabled in employment relations within the meaning of Article 29 (2) of the Charter, then, see paragraph 1.
39. Although in the case-law of the Constitutional Court, a resolution has also appeared which excludes the direct application of Article 36 (2) of the Charter in relation to the rights enshrined in the title of the Fourth Charter (economic, social and cultural rights) in respect of Article 41 (1) of the Charter [see, for example, resolution sp. zn. II. ÚS 524 / 06 of 29.11.2006, cf. Resolution sp. zn. III. ÚS 233 / 01 of 10.7.2001 (U 25 / 23 SbNU 335), available at http: / nalus.ujud.cz], it could not, having regard to its legal nature and legal opinion expressed by the Constitutional Court of the above (sub 38), have an effect on the outcome of the present proceedings, including for other reasons. It is not decisive to which fundamental law the administrative decision applies (the question of other forms of public administration did not need to be dealt with in this matter), as there is no such provision in Article 36 (2) of the Charter as sedes materiae. First of all, it must be pointed out that in the present case, Section 158 (a) of the sickness insurance law is not a separate question of the right to adequate physical security in the event of incapacity for work, but of the guarantee of the right to judicial review, which is formulated on a scale - to touch (or maintain pursuant to Article 4 (1) of the Charter), to intervene (to enter the protected area within the limits of Article 4 (2) of the Charter) and to infringe (to interrupt the vocabulary of the Stadion Constitution - § 106), thus to intervene in a way which is contrary to Article 4 (2) of the Charter, or to other already laid down constitutional cases. Although the Constitutional Court may agree with the conclusions contained in the Government of the Czech Republic's observations and in the requested opinion of the CSSR on the social rights rationality test, this could not have affected the outcome of the proceedings.
40. The Constitutional Court therefore does not object to the argument of the Government or of the requested State administration, which is in relation to the substance and meaning of the right to adequate material security in the event of incapacity for work, but does not refer to the substance of what the appellant must assess in the light of his mission in the protection of fundamental rights and freedoms within the meaning of Article 36 (2) of the Charter. In the present case, the question is not how a claim within the meaning of Article 30 (1) of the Charter is to be decided, but whether a court should at all have jurisdiction to decide on the payment of sickness benefits under the conditions laid down by the law. In the present case, the Regional Court denied that competence on the basis of the contested provision and the appellant, as an instance of appeal, contests the same obstacle in terms of the possibility of subjecting the conclusions of the Regional Court to his cognica. Thus, the law within the meaning of Article 41 (1) The Charter may specify the details of the right to adequate physical security in the event of incapacity for work referred to in Article 30 (3) of the Charter and, in addition, its limits under Article 41 (1) of the Charter. Therefore these, and only these details and limits, are assessed under Article 41 (1) of the Charter. It cannot apply to the content protected by Article 36 (2) of the Charter, let alone Article 4 of the Constitution, since in this case the Constitutional Court considers that it is one of the essential elements of a democratic rule of law.
41. If the payment of the sickness (even after the end of the period of support) is due to the specifications (details) of Article 30 (1) of the Charter, this is inevitably the result of the fulfilment of the conditions of sub 37 for situations where the law "otherwise" cannot provide for. Therefore, the application of the conditions for a specific form of the right to adequate material security in the case of incapacity for work in the sickness insurance law is not assessed, but the provisions of Article 36 (2) of the Charter are interpreted, under which, if "in the game 'of fundamental rights and freedoms (i.e. if they are affected or must be maintained), the legislature may not" otherwise' apply. Here it is possible to object to the wording of the constitution, however it is appropriate to apply the interpretation in dubio for libertate. It is therefore not the task of the Constitutional Court, in the context of a particular check of the constitutionality of Section 158 (a) of the sickness insurance law, to interpret to the appellant whether there is a constitutional amount of the benefit, how it is calculated, the form of application, etc., but whether the result of a decision on such a benefit is at all relevant to the fundamental law which could be affected without having to be affected or even infringed. Thus, the matter moves within the area of the guarantor of the right to judicial protection pursuant to Article 4 of the Constitution and Article 36 (1) and (2) of the Charter, not the social rights referred to in Article 30 of the Charter or Article 26 (1) of the Charter, since the result of the applicant's health assessment was also to conclude on what work can continue to be carried out in the event of early acquisition.
42. In the case of procedural guarantees for the protection of fundamental rights, as provided for in the Charter, the nature of any intervention in their substantive nature is not relevant [and is not even relevant in this case, cf., the finding of the Constitutional Court on the regulatory fees in health sp. zn. Where a decision by a public authority concerns a fundamental right, whether in the light of the details, conditions, limits (there is no need for infringement or shortening), the legislature may consider that the impossibility of applying these guarantees is, in the light of the above provisions of the constitutional order without further unconstitutional. In fact, without procedural guarantees of the application of fundamental rights, it would not be possible to grant individual protection against such unlawful decisions by public authorities.
43. On the basis of the above general considerations, the Constitutional Court has therefore decided to consider whether the decision on the payment of the sickness after the expiry of the period of support which is the subject of the dispute in this case concerns one of the fundamental rights, namely the right to adequate physical security in the event of incapacity for work, in particular pursuant to Article 30 (1) of the Charter or, in view of the possibility (within the meaning of Article 27 of the Law on sickness insurance), the conclusion on the exercise of a non-current job or profession also under Article 26 of the Charter.
44. As is apparent from the sickness insurance law, which is part of the legislation laying down, inter alia, details of the rights guaranteed in Article 30 of the Charter, the so-called sickness insurance benefit is the kind of benefit provided by sickness insurance, the payment of which is entitled to the payment of which the insured person has been recognised temporarily incapacity for work or has been ordered to be quarantined under a special legislation, if temporary incapacity for work or ordered quarantine for more than 14 calendar days (or in the period from 1 January 2012 to 31 December 2013), see Section 23 of Act 187 / 2006 Coll., as amended. Other conditions of entitlement to sickness insurance are laid down in Sections 24 and 25 of Act No. 187 / 2006 Coll., on sickness insurance, as amended. The period of support, i.e. the period for which the benefit is to be paid, shall end on the date on which the temporary incapacity for work or the quarantine ordered ends; However, the support period shall not exceed 380 calendar days from the date of temporary incapacity for work or quarantine, unless otherwise provided by the law (Section 26 (1) of Act No 187 / 2006 Coll., on sickness insurance, as amended).
45. According to Article 27 of the sickness insurance law, after the end of the period of support, the sickness insurance is paid on application by the insured person for the period laid down in the decision of the sickness insurance institution, as indicated by the sickness insurance institution's doctor, if it can be expected that the insured person will acquire working capacity within a short period of time, but not more than 350 calendar days from the end of the period of support, even for a non-current insured activity; This may also be done repeatedly, with a single extension of the sickness payment not exceeding 3 months. According to the first sentence, sickness payments may be made for a maximum period of 350 calendar days from the end of the support period. The provisions of Articles 30 (1) and 26 (1) to (3) of the Charter (payment of benefits and relationship to the current insured activity and future activities) are thus affected.
46. It is clear from the above that the decision on the payment of the sickness allowance after the end of the period of support constitutes a decision whereby the person (applicant) is entitled to physical security (benefit) in a situation where the person (temporarily) is unfit for work. This is clearly a decision which concerns the right to adequate material security in the event of incapacity for work. The Constitutional Court agrees with the appellant's conclusion that the contested provision of Section 158 (a) of the sickness insurance law, which provides for the exclusion of that decision from judicial review, is so clear that it cannot be interpreted in a constitutional manner; It is therefore necessary, in the light of the above, to derogate from that provision in relation to decisions of public authorities.
47. In relation to the finding of sp. zn. At the same time, however, this is an act affecting the fundamental right guaranteed by the Charter (Article 30 (1)). In so doing, the delegation of the contested provision confirms the constitutionally conformal interpretation of § 70 (d) of the Administrative Rules of Procedure, as defined by the Constitutional Court in that finding (recital 36 to the judgment in Case 15 / 12 Pl.
48. To the view expressed by the Government that the fundamental right in question is not primarily a right to judicial protection under Article 36 (2) of the Charter but a right to adequate material security in the event of incapacity for work under Article 30 (1) of the Charter, it can be noted that the right guaranteed by Article 36 (2) of the Charter The Charter is a procedural law which is linked to the application of another substantive law (which is of an accessorial nature). If this fundamental right is one of the fundamental rights guaranteed by the Charter (here the right to adequate material security in the event of incapacity for work under Article 30 (1) of the Charter, the question of the possibility of limitation for the pursuit of certain professions or activities within the meaning of Article 26 (2) of the Charter), it is the duty of the Constitutional Court to ensure that procedural guarantees for the protection of that fundamental right function. The right of access to a court, as well as other procedural rights falling within the general concept of "right to a fair trial," is not self-useful, it must always be seen in the custody of a protected fundamental right. At the same time, however, the right of access to the court can be seen as part of a constitutionally conformal degree of compliance with the right to adequate material security in the event of incapacity for work.
49. In relation to the concerns expressed by the Government that the derogation of the contested provision of the Sickness Insurance Act would lead to a review of all decisions based on medical opinions, it can be noted that the judicial review is [in line with the findings of the sp. zn. Other decisions of public authorities based on medical opinions which cannot be subsummated under those categories will fall under the exclusion from judicial review (unless, of course, a special law provides otherwise).
50. In this context, the Constitutional Court considers it necessary to draw attention to the situation in a particular matter which is not for it to deal with, but demonstrates the problem that is at stake in the case. The applicant in the opening procedure under sp. zn. 43 Ad 21 / 2013 before the Regional Court in Prague claimed (closer to sub 6) the facts that cannot be omitted when assessing the objections of the Government of the Czech Republic and ČSSZ. It is argued that the negative decision on the payment of the sickness after the expiry of the period of support does not affect the fundamental rights guaranteed by the Charter as the applicant has either acquired eligibility for work and has therefore lost the reason for it to provide physical security in the form of sickness benefits, or, in the case of long-term or permanent incapacity to work due to illness or accident, it is secured by an invalidity pension, subject to the conditions laid down by law. Furthermore, according to the Government, on the basis of the appeal lodged, the ČSSZ will again request an assessment of the health status of the appellant, from the department of medical assessment service of the relevant ČSSZ within the meaning of Section 149 (4) of the Administrative Regulation. Therefore, until the decision on appeal has been taken, the health status of the applicant is assessed three times in total, by two medical assessment services. However, the plaintiff claims otherwise (sub 6), and without the possibility of having his claim examined by an independent court, he remains without legal protection. In other words, if it is in breach of the law of the Constitutional Court, as set out in the sp. zn.
51. In addition, it can be noted that, in the context of judicial review of a decision of a public authority based on a professional assessment of the state of health, the courts will treat such an opinion in a similar manner to other elements of a professional nature. It should be borne in mind that, irrespective of the professional aspect of the case, these documents and their extradition may also show illegality (e.g. the opinion was given by a doctor who was not authorised to do so, or it was an assessment showing obvious elements of insolence, the report contains claims contrary to the facts, it was made in circumstances other than those mentioned) to be dealt with. Such illegality may also be taken into account in situations where the public authority issuing the decision on a professional basis (in the form of a binding opinion) has a minimum administrative discretion.
52. The system of appeals in administrative proceedings, as laid down by the law in relation to these types of decisions, cannot bridge the constitutional deficit in the absence of review by independent courts. However, the very scope of judicial review of a decision of this nature is already entirely in the hands of the administrative judiciary and it is not for the Constitutional Court to define it, since its cognac is limited in the present proceedings to determine whether an intervention in the right to judicial protection has taken place before a decision of a public authority in the event that such a decision concerns a particular fundamental right or freedom. It therefore stresses that this Decision merely opens the way for judicial review of decisions of administrative bodies which are in breach of the constitutional order, not necessarily to comply with the action of the applicant in the proceedings before administrative courts.
Conclusion
53. The Constitutional Court concludes that the decision on the payment of sick leave after the end of the period of support is a decision relating to the fundamental right enshrined in Article 30 (1) of the Charter or Article 26 (1) and (3) of the Charter. The exclusion of this decision from judicial review is contrary to the provisions of Article 36 (2) of the Second Charter, in conjunction with Article 4 of the Constitution, and therefore the proposal to abolish Article 158 (a) of the sickness insurance law must be complied with.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 14 / 2015 Coll., on the application for annulment of § 158 (a) of Act No. 187 / 2006 Coll., on sickness insurance |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.01.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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