Found at the Constitutional Court of the Czech Republic No. 165 / 1995 Coll.

Motion denied.

On 4 November 1994, the Constitutional Court of the Czech Republic received a proposal from a group of 30 Members of the Chamber of Deputies of the Parliament of the Czech Republic to initiate the procedure for the annulment of Government Decree No. 15 / 1994 Coll., on the free provision of textbooks, teaching texts and basic school needs. In the appellants' view, that regulation of the Government is contrary to Article 33 (2) of the Charter of Fundamental Rights and Freedoms, Article 28 (2) (a), (b) and Article 41 of the Convention on the Rights of the Child and Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights.

Three signature documents are attached to the application. The first two contain the signatures of 30 Members and are written by the Group of Members of the Parliament of the Czech Republic proposing the repeal of Government Decree No. 15 / 1994 Coll., on the free provision of textbooks, teaching texts and basic school needs, and correspond to the petition submitted by the proposal. The third signing document containing the signatures of 11 Members is headed by the Group of Members of the Parliament of the Czech Republic proposing the annulment of § 17 paragraph 2 and part of § 18 of Act No. 425 / 1991 Coll. (the Decree No. 425 / 1991 Coll.). The Ministry of Labour and Social Affairs of the Czech Republic, on the remuneration of work performed outside the employment relationship, which was abolished by Act No. 74 / 1994 Coll., amending and supplementing the Code of Labour No. 65 / 1965 Coll., as amended, and certain other laws), on the abolition of § 3 paragraph 4 of Act No. 166 / 1993 Coll., on the Supreme Audit Office, on everything as amended by Act No. 117 / 1994 Coll., amending and amending Act No. 424 / 1991 Coll., on the Association in Political Parties and in the subsequent Act No. 331 / 1993 Coll., and Act No. 328 / 1991 Coll., on the bankruptcy and compensation, as amended by Act No. 122 / 1993 Coll., and on the Act No. 463 / 1991 Coll. It therefore concerns entirely other legislation than that contested by the proposal. It is clear from this that the motion of a group of Members is aimed at repealing Government Regulation No. 15 / 1994 Coll., and this proposal was made by a group of 30 Members on the first two signatures.

According to Article 64 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, the application for the annulment of another law or its individual provisions is pursuant to Article 87 (1) (b). (b) The Constitution of the Czech Republic may, inter alia, lodge a group of at least 25 Members or a group of at least 10 Senators. The number of 30 Members is therefore sufficient to submit a relevant proposal to repeal the Government's regulation. The proposal of the group of Members states that the Government issued Decree No. 15 / 1994 Coll. after the amendment of the original provision § 4 (1) of the Act of Education by Article I of Act No. 190 / 1993 Coll., which however annulled the Constitutional Court by finding No. 49 / 1994 Coll. Furthermore, a group of Members cites the contested government regulation and claims that it is contrary to:

- with Article 33 (2) of the Charter of Fundamental Rights and Freedoms which guarantees all citizens the right to free education in primary and secondary schools,

- with the provisions of Article 28 (2) (a), (b) of the Convention on the Rights of the Child, published under No 104 / 1991 Coll., according to which the Czech Republic, as a Contracting Party, has undertaken to introduce for all children free school education and to establish free secondary general and vocational education and, if necessary, to provide financial support,

- with Article 41 of the Convention on the Rights of the Child and Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights, according to which, in the event of a conflict of national and international law, the law which was more favourable to persons under the jurisdiction of a Contracting State on the date of entry into force of the International Treaty applies.

Resolution No 671 of the Government of the Czech Republic of 1.12.1993 shows that in Section I., the Government approves the Government's regulation on the free provision of textbooks, teaching texts and basic school needs, with modifications according to the opinion of the President of the Legislative Council of the Government and the specification of the Government. In paragraph II of the resolution, the Government requires the Minister for Education, Youth and Sports to draw up the final text of the Government Regulation under paragraph I of this resolution and to submit it to the Prime Minister for signature. By order of the Government of 5 January 1994 No 13, the Decree of the Government established the effectiveness of the Decree of the Government on the date of its publication. Decree of the Government No. 15 / 1994 Coll. of 1.12.1993 was published in the amount of 5 / 1994 Coll. sent out on 25.1.1994 and signed by the Prime Minister and Minister of Education, Youth and Sports. The condition for the admissibility of the proposal within the meaning of Article 66 (1) of Act No 182 / 1993 Coll. is therefore fulfilled and it can be assumed that the Government Decree was adopted in the manner set out in Article 68 (2) of Act No 182 / 1993 Coll.

By the letter received by the Constitutional Court on 27 December 1994, the Government stated that it had adopted an opinion on the proposal of a group of Members at its meeting on 21 December 1994 and stated that its Regulation No 15 / 1994 Coll. was based on the powers given to it by the provisions of § 4 (2) of Act No. 29 / 1984 Coll., on the system of primary and secondary schools (the Education Act), according to which the Government sets out the extent to which pupils are provided free of charge by textbooks, teaching texts and basic school needs. It added that the freedom of education within the meaning of Article 33 (2) of the Charter of Fundamental Rights and Freedoms (in connection with the provisions of Section 4 of the Education Act) means the right of a pupil to provide teaching in corresponding buildings, the wages of qualified teachers and other staff, the costs of operating and maintaining buildings, the free use of school equipment, i.e. those owned by the school and used for self-teaching (models, chemicals, chalk, wall maps and pictures, etc.). The school needs which are in the use and ownership of the pupil are paid for by the pupil or his parents, except for those provided by the State to the pupil in the first year of primary school in the range of CZK 200 per pupil. The government's regulation states that textbooks at primary school are lent to pupils for free, but are not their property. In secondary schools, pupils buy textbooks and become their owners. This fact is not contrary to the Charter of Fundamental Rights and Freedoms, since the government has only implemented its mandate, and it is also quite difficult, especially in secondary vocational schools, to define precisely (without being bound to the list of textbooks) the term "textbooks', because in many cases it is also used in technical literature which does not have the character of a didactically processed text, and pupils normally acquire it. Furthermore, the Government notes that Article 28 (2) of the Convention on the Rights of the Child does not contain points (a), (b) and does not affect the contested regulation of the Government, as the States Parties undertake to" take all measures necessary to ensure that discipline at school is ensured in a manner compatible with the human dignity of the child... '. Article 28 (1) (a) of the Convention on the Rights of the Child, which appears to have been envisaged, is not contrary to the contested Decree of the Government No 15 / 1994 Coll., as it deals with free and compulsory basic education as well as the provisions of Article 28 (1) (b). (b) The Convention on the Rights of the Child, which provides that States Parties to the Agreement "shall encourage the development of different forms of secondary education involving general and vocational education, shall make it acceptable and accessible to each child and shall take other appropriate measures such as the introduction of free education and, where necessary, the granting of financial support'. Nor is that provision contrary to the contested regulation. The appeal to Article 41 of the Convention on the Rights of the Child, which is contained in the text of the proposal, is, in the view of the Government, irrelevant because it states that" nothing in that 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:

(a) the legal order of the Contracting Party; or

(b) international law which is binding upon such a State. "

Finally, Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights, the alleged violation of which the Members in the proposal point out, concerns only universal human rights. The Government considers that the free provision of textbooks and teaching needs cannot be interpreted as a fundamental human right.

In the present case, the Constitutional Court also requested the opinion of the Ministry of Education, Youth and Sports. They were received on 21 April 1995 and this opinion is identical to that of the Government.

From the Bulletin of the Ministry of Education, Youth and Sports No. 6 and 7 of July and August 1994 it follows that the list of approved and published textbooks for primary schools (valid in the school year 1994 / 1995), which was lent under Government Decree No. 15 / 1994 Coll. to primary school pupils free of charge, contains more than 650 titles.

From the point of view of the legislation referred to by a group of Members in its proposal, it is appropriate to stress at the outset that Act No. 29 / 1984 Coll., on the System of Primary and Secondary Schools (School Act), § 4 (1) states that in schools which are part of the System of Primary and Secondary Schools, citizens are entitled to free education. In private and church schools, the right to education can be provided for remuneration. Paragraph 4 (2) of the Act states that, to the extent provided by the Government, textbooks, teaching texts and basic school needs are provided free of charge to pupils.

The motion of the Group of Members is based on the fact that Government Regulation No. 15 / 1994 Coll., on the free provision of textbooks, teaching texts and basic school needs, is contrary to Article 33 (2) of the Charter of Fundamental Rights and Freedoms, Article 28 (2) (a), (b) of the Convention on the Rights of the Child, Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights. The Charter of Fundamental Rights and Freedoms in Article 33 (2) provides that citizens are entitled to free education in primary and secondary schools, according to the capacity of a citizen and the possibilities of society also in universities. Article 28 of the Convention on the Rights of the Child published under No 104 / 1991 Coll., which does not contain points (a) and (b) of paragraph 2, provides that "States Parties to the Convention shall take all measures necessary to ensure discipline at school in a manner compatible with the human dignity of the child and in accordance with this Convention '. However, it can be concluded from the context of the proposal that a group of Members probably meant Article 28 (2) (a), (b) of the Convention on the Rights of the Child, which provides that" States Parties to the Convention shall recognise the right of the child to education and with a view to the progressive implementation of that right and on the basis of equal opportunities in particular:

(a) establish free and compulsory basic education for all children;

(b) encourage the development of different forms of secondary education involving general and vocational education, make them acceptable and available to each child and take other appropriate measures, such as the introduction of free education and, where necessary, the provision of financial support; ';

Article 5 (2) of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll., provides that "no restriction or derogation from any of the fundamental human rights recognised or existing in any country under the laws, conventions, regulations or practices shall be permitted under the pretext that the Covenant does not recognise such rights or recognises them to a lesser extent '.

In this context, it must be pointed out again that Law No 29 / 1984 Coll. in Paragraph 4 (1) states that citizens are entitled to free education in schools which are part of the primary and secondary school system. In private and church schools, the right to education can be provided for remuneration. The Constitutional Court found no 49 / 1994 Coll., on which the motion of a group of Members was referred, was annulled in Paragraph 4 (1) of Law No 29 / 1984 Coll. only part of the phrase "unless otherwise provided for by the law." The other parts of the Act were not affected, nor was the provision of Paragraph 4 (2), which provides that, to the extent provided by the Government, textbooks, teaching texts and basic school supplies are provided free of charge to pupils.

The legal standards of lower legal force must comply with the legal standards of higher legal force. If they are based on such a generally accepted principle, this means that the government's regulation must be consistent not only with constitutional laws, but also with international treaties under Article 10 of the Constitution and "ordinary laws." In all legal standards of higher legal force (in relation to Government Decree No. 15 / 1994 Coll.), the right to free education is guaranteed. The aforementioned Decree of the Government No 15 / 1994 Coll. does not restrict the right to free education and does not in fact affect it. Education free of charge undoubtedly means that the State bears the costs of setting up, operating and maintaining schools and school establishments, but above all it does not require the so-called tuition, i.e. providing basic and secondary education for remuneration. An exception may be private and church schools, which provide the right to education free of charge, alongside a network of "state schools." The determination of the scope of free provision of textbooks, teaching texts and basic school needs by the government cannot be placed under the concept of free education. According to the definition of the right to free education provided by the applicants, the State should ensure free provision of everything directly related to school attendance in primary and secondary schools, such as bridging, briefcase, pencil, writing, training, etc. It is clear that the freedom of education cannot consist of the State bearing all the costs incurred by citizens in implementing the right to education. Thus, the State may demand that part of the costs be paid in connection with the exercise of the right to education, and the Government is undoubtedly entitled to do so. This does not in any way call into question the principles of free education in primary and secondary schools.

Article 13 (1) of the International Covenant on Economic, Social and Cultural Rights provides that States, Contracting Parties to the Covenant, recognise the right of everyone to education, Article 13 (2) of the Covenant provides that States, Contracting Parties to the Covenant, recognise that, in view of achieving the full implementation of that right:

(a) basic education shall be compulsory and freely accessible to all;

(b) secondary education will generally be made available and made available by all appropriate means and in particular by the gradual introduction of free education.

The cost of implementing the right to education can be divided between the State and the citizen or his legal representative. It is worth recalling that it is also in the interests of the citizen himself to achieve education (and thus to achieve higher qualifications and a better opportunity for application in the labour market) and to pursue it himself. The cost of implementing the right to education is a long-term investment in the life of a citizen. The State bears a substantial part of these costs but is not obliged to bear them all.

The Constitutional Court concluded that the Decree of Government No 15 / 1994 Coll., on the free provision of textbooks, teaching texts and basic school needs, did not infringe Article 33 (2) of the Charter of Fundamental Rights and Freedoms, Article 28 (1) (a) and (b) and Article 41 of the Convention on the Rights of the Child and Article 5 (2) of the International Pact on Economic, Social and Cultural Rights or other constitutional laws or laws or international treaties under Article 10 of the Constitution, and therefore rejected the motion of a group of Members to repeal this legislation pursuant to Article 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court.