Found at the Constitutional Court of the Czech Republic No. 225 / 1995 Coll.
The finding of the Constitutional Court of the Czech Republic of 13 September 1995 on the application for annulment of the provisions which are expressed in § 3 (1) (b) and § 30 (b) of the Act of the Czech National Council No. 128 / 1990 Coll., on advocacy, expressed in words "at the Faculty of Law"
Valid
The Constitutional Tribunal found
225
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
On 13 September 1995, the Constitutional Court of the Czech Republic decided, in plenary, on a proposal, accompanied by a constitutional complaint by JUDr. J. L., by L., U K. 8 / 444, represented by JUDr. P. R., a lawyer based in L., B. N. 1502 / 1, to abolish the provisions which are in § 3 (1) (b) and § 30 (b) of the Czech National Council Act No. 128 / 1990 Coll., in the words "in the Faculty of Law," with the participation of the Chamber of Deputies of the Parliament of the Czech Republic
as follows:
Motion denied.
Reasons
On 10 September 1994, the appellant lodged a constitutional complaint against the judgment of the District Court of Prague 1 of 19 January 1994 in Case 12 C 519 / 93, in conjunction with the judgment of the Municipal Court of Prague of 9 June 1994 in Case 22 Co 223 / 94. These judgments rejected his action against the Czech Bar Association with its registered office in Prague 1, Národní tř. 16, which he requested to be entered in the list of Czech Bar Association's lawyers in Prague. The judgments of the two courts dismissed his action and recognised by law the opinion of the Czech Bar Association that, according to § 3 (1) (b) and § 30 (b) of the Act of the Czech National Council No. 128 / 1990 Coll., on the advocacy, only persons who have not received a higher education other than at the Faculty of Law of the University of the Czech and Slovak Federal Republic (now in the Czech Republic or in the Slovak Republic) can be included.
Since the appellant is a graduate of the National Security College, who also passed a rigorous examination at the Faculty of Law and holds the title JUDr, he considers that it is discrimination, which has its basis in the above wording of Sections 3 and 30 of the Czech National Council Act No. 128 / 1990 Coll., which requires university education "at the Faculty of Law." The appellant took the view that the cited provisions of the law, expressed in the words "at the Faculty of Law ', were already unconstitutional in appeal proceedings. However, the municipal court did not conclude at that time that the law to be applied was contrary to the constitutional law and therefore did not apply the provisions of Article 95 (2) of the Constitution to bring the matter before the Constitutional Court.
Therefore, the appellant combined its constitutional complaint within the meaning of Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, with a proposal to repeal that provision for a contradiction with Articles 3 and 4 of the Constitution and Articles 1, 3 (1) and 3 of the Charter of Fundamental Rights and Freedoms. These are provisions which declare the Charter of Fundamental Rights and Freedoms to be part of the constitutional order, stipulating that fundamental rights and freedoms are protected by judicial power, govern the principle of equality in rights and prohibit discrimination. In particular, the appellant sees unconstitutionality in breach of the principle of equality within the meaning of Article 4 (3) of the Charter of Fundamental Rights and Freedoms, according to which legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down. It presents the case of a person with the same education as he could become a lawyer.
The complainant then formulated his opinion in the proposal to abolish the words "at law school," both in § 3 and in § 30 of the Czech National Council Act No. 128 / 1990 Coll.
In view of this, the Senate of the Constitutional Court suspended the proceedings on the constitutional complaint pursuant to Article 78 (1) of Law No 182 / 1993 Coll. and the motion for the annulment of the law was referred to plenary for a decision under Article 87 (1) (a) of the Constitution.
At the request of the Judge-Rapporteur, the President of the Chamber of Deputies, PhDr. Milan Uhde, sent a statement to Parliament of the Czech Republic. This communication states that the Act of the Czech National Council No. 128 / 1990 Coll. has been properly approved and declared and is also in full compliance with the Constitution and the Charter of Fundamental Rights. The provisions of the Law on Advocacy requiring higher education at the Law Faculty for enrolment in the List of Legal Associates are clear and reasonable that only graduates of the Faculty of Law, not other higher education, may be included in the list of Legal Associates, although, in part, as was the case with the College of National Security, they provided education similar to that of the Faculty of Law. The President of the Chamber of Deputies also points to the opinion of the Supreme Court of the Czech Republic of 18 January 1995 (Plsn 1 / 95), which did not find any errors in the decision of the two courts.
The Constitutional Court, having found that the requirement of education at the Faculty of Law for Law Enforcement in the Czech National Council Act No. 128 / 1990 Coll. was unequivocal and formally unassailable, considered whether education at the Faculty of Public Security of the College of National Security is, or is not, a substance (i.e. materially) identical to that of the Faculty of Law and whether it is not an unequal assessment, as this would be contrary to the idea of a material rule of law.
From the point of view of the complainant, the parallels of legal education in law schools and the University of the National Security College must be made clear by its genesis.
1. Already during the 1960s, there was a tendency to increase the education of workers in the Ministry of Interior. Although the requirement of higher qualification was initially implemented by various courses of law faculty for the staff of this resort, in the second half of the 1960s it was already also in the framework of long-distance studies at the Faculty of Law, its scope and its requirements already close to the demands of the audience of the proper study.
2. However, this process towards equal legal education, after the Russian invasion at the time of the so-called "normalization" of the central-bureaucratic model of corporate governance, seemed to have broken down with the demands placed by the power centre on the qualification of executive agencies. The Federal Assembly's legal measure No. 107 / 1973 Coll., on the establishment of the National Security College, has become an expression of other, or other, value and content claims on workers in the Ministry of the Interior department than those that could have been realised by proper global and universal legal studies. The National Security College has become a sort of ministerial college compared to law schools.
3. In addition to the graduates of the National Security College and those who, for those or those reasons, did not need a university or even any education in the Ministry of the Interior, the Ministry of the Interior continued to come to this department. Graduating from the Faculty of Law remained a prerequisite for such posts in the resort, which, by its nature, required a more universal legal education (e.g. in civil-administrative).
4. On the other hand, the newly established National Security College has become a means of increasing qualifications not universally legal, but resortly- specific. She raised workers to perform tasks resulting from the mission of the Ministry of Interior. In examining the complainant's professional assumptions, the Czech Bar Association found out from his diploma that he had gained legal-security qualifications at the Faculty of Public Security. In addition to the general theory of the State and the right to marxismus-leninism, criminal law and criminalisation and public order activities of Public Security, it was then apparent that this examination was aimed in addition to the general theory of the State and the right to marxismus-leninism, criminal law and civil law and public order activities, but not at other legal disciplines from which he had to pass the examinations of a law faculty student (in particular civil and economic law).
In view of the fact that the disciplines which were taught were only partly covered by the law faculty and that the orientation and dimension of the teaching as well as the study requirements were guided by target ideas which also differed from the profile of universal lawyers, the Constitutional Court cannot but conclude that the appellant, as a graduate of the Faculty of Public Security of the National Security College of the National Security College, not only formally but also materially does not comply with the requirements laid down in § 3 (1) (b) and § 30 (b) of the Czech National Council Act No. 128 / 1990 Coll.
The Constitutional Court is based on the content findings expressed in the Opinion of the Supreme Court under Plsn 1 / 95, which states in particular that various faculties have been established at this school since the establishment of the College of the National Security College until its abolition: the Faculty of Public Security, the Faculty of State Security, the Faculty of National Border Protection and the Faculty of Investigation. None of them were a law faculty providing universal legal education in all fields of law. It is clear from the established fields at the National Security College and from the school's teaching plans that it also provided certain education in certain sectors of law, but its focus was different from the law faculty and corresponded to the specific requirements for teaching former members of the former National Security College.
5. Even the fact that the appellant later passed a rigorous examination and won the degree of law doctor cannot replace legal education at the law school, because the rigorous examination is only carried out in a particular field and is not of a universal legal nature. It could be argued that even at the Faculty of Law it was not a prerequisite for the title JUDr. Compilation of additional rigorous examinations from all legal disciplines, so that when, for example, in 1971, a student of the Faculty of Law passed the final examination of the course of justice, he was not tested from economic law, etc. However, unlike a graduate of the National Security College, he had already had to study law in all his fields and perform all the prescribed examinations, which can be understood as a prerequisite for him to take doctoral examinations at all. However, this assumption is not, to a comparable extent, met for graduates of the National Security College.
6. For all these reasons, the Constitutional Court has not found a breach of Articles 3 and 4 of the Constitution, which states that the Charter of Fundamental Rights and Freedoms is part of the constitutional order of the Czech Republic and that fundamental rights and freedoms are protected by judicial authority. The argument on discrimination cannot be accepted because it is not legally possible to establish the conformity of the objectives, content and methods of teaching, as well as the requirements imposed on students of the National Security College and students of the Faculty of Law. This does not change the individual cases raised by the appellant during the hearing. The subject of this decision by the Constitutional Court is a general finding as to whether the words "at the Faculty of Law 'are or are not in accordance with constitutional law.
In § 43 of the Act of the Czech National Council No. 128 / 1990 Coll., the legislature stated that lawyers who were already members of the Regional Association of Lawyers and the Municipal Association of Lawyers in Prague at the date of entry into force of the Act will be entered in the list of lawyers without application. This, however, did not infringe the principle of equality (Articles 1 and 4 (3) of the Charter of Fundamental Rights and Freedoms), as it is a measure acceptable for the sake of legal certainty and stability of existing legal relations, which corresponds to the rule of law.
In addition, the proposal to abolish the words "at the Faculty of Law" in § 3 (1) (b) and § 30 (b) of the Czech National Council Act No. 128 / 1990 Coll. would create a state that would allow only general "higher education" as a precondition for the conduct of advocacy without specifying the legal nature of such education.
On the basis of the foregoing considerations, the Constitutional Court was unable to reject the application for annulment of the provisions of § 3 (1) (b) and § 30 (b) of the Czech National Council Act No. 128 / 1990 Coll., on the advocacy, which is expressed in the words "at the Faculty of Law '.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The finding of the Constitutional Court of the Czech Republic No. 225 / 1995 Coll., on the application for annulment of provisions which are expressed in § 3 (1) (b) and § 30 (b) of the Act of the Czech National Council No. 128 / 1990 Coll., on advocacy, expressed in the words "at the Faculty of Law" |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.10.1995 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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