The Constitutional Court found no 288 / 2021 Coll.
The Constitutional Court found of 22 June 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
30.07.2021
288
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 93 / 20 on 22 June 2021 in plenary composed of the President of the Court of Paul Rychetský and the judges and judges of Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy (Judge of the Rapporteur), Tomáš Ličovník, Vladimir Sládeček, Radovan Suchanek, Pavel Šámal, Kateřina Šimáková, Vojtěča Šimíček, David Uhír and Jiří Zemánek on a proposal of a group of senators, represented by Senator Ing. Tomáš Golán, in the Chamber of Parliament of the Czech Republic and the Parliament of the Czech Republic as a party to the proceedings and the Government as a party to proceedings,
as follows:
Motion denied.
Reasons
Definition of the case and wording of the contested provision
1. The appellant, in proceedings for the annulment of laws pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") in conjunction with § 64 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), seeks the annulment of § 16 (4) of Act No. 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act), as amended, including Act No. 82 / 2015 Coll., effective from 1. 9. 2016 (hereinafter referred to as "the Education Act"), "which reads:
"First-degree support measures shall be applied by the school or school establishment without the recommendation of the educational institution. The second to fifth degree support measures may be applied only with the recommendation of the educational institution. A school or a school establishment may, instead of a recommended support measure, take other support measures of the same degree after consultation with the relevant educational institution and with the prior written informed consent of the adult pupil, student or legal representative of the child or pupil, unless this is contrary to the interest of the child, pupil or student. ';
2. The contention with constitutional order is seen by the appellant, on the one hand, in violation of Article 10 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') in conjunction with Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'); is a restriction on the freedom of choice of the consultant by the parents and their children concerned by the fact that experts outside the system of state-established educational institutions cannot participate in the teaching activities. On the other hand, it is the providers of advisory services themselves, in respect of which the right to free choice of profession and the right to engage in business within the meaning of Article 26 (1) of the Charter is unduly affected. The ground for failure to comply with the constitutional order is, in particular, taken by the appellant from the sentence of the second contested provision (highlighted by the Constitutional Court). However, the text of Paragraph 16 (4) of the Education Act constitutes a functional whole; It is therefore proposed to abolish it in its entirety.
Active procedural legitimacy and management conditions
3. According to Article 64 (1) (b) of the Law on the Constitutional Court, a group of at least 17 senators has the right to file an application for annulment of the law or its individual provisions. The proposal in this case was submitted by a group of eighteen Senators and, in accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it was accompanied by a signature document to which each of them individually confirmed that it was attached. The applicant therefore fulfils the condition of active legitimacy.
4. The proposal also contains other legal requirements, it is admissible within the meaning of Section 66 of the Law on the Constitutional Court and negotiable (a contrario § 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
Arguments of the appellant
5. The contested provision of § 16 (4) of the Education Act, as amended, including Act No. 82 / 2015 Coll., amending Act No. 561 / 2004 Coll., on Pre-school, Basic, Medium, Higher Vocational and Other Education (Education Act), as amended, and certain other laws (hereinafter referred to as the "Amendment") were created as part of an effort to strengthen the principle of inclusion in the education of children, pupils and students (hereinafter referred to as "pupils"). In accordance with the principle of equality, pupils with special educational needs are provided with so-called support measures (see Section 16 of the Education Act). The new regulation strengthened the role of educational advisory establishments (within the meaning of Section 116 of the Education Act), since it extended their competence to diagnostics and advice in relation to the mentioned support measures, without which the school will not be able to take support measures.
6. The amendment, which, according to the explanatory memorandum, was aimed at preventing the abuse of support measures, significantly reduced the advisory activities of experts (in particular special teachers and child psychologists) working in the private sphere (outside the network of educational advisory facilities). Under current legislation, the services of private advisers cannot be used to deal with specific learning disorders (such as dysphonia, dyslexia), as the pupil cannot do without further examination and recommendations by the educational institution.
7. While the system formally admits the activities of private advisers, the contested arrangements do not give rise to relevance and prevent effective cooperation with them. Private and state independent experts in the field of special pedagogy and psychology thus, contrary to the essential core of Article 26 (1) of the Charter, do not have the option to pursue their profession [FTC 504 / 03 of 25.11.2003 (N 138 / 31 of SbNU 227), FSC 19 / 13 of 22.10.2013 (N 178 / 71 of SbNU 105; 396 / 2013 Coll.)]. While it was not obliged to take the recommended support measures before the amendment, the law now prevents it from doing so in case of interest. In addition, without the status of the educational institution, private experts cannot receive any public financial contributions, which puts them at a competitive disadvantage.
8. Although a non-public body may also be the founder of a educational institution, according to the author, such an option is unrealistic in the context of the requirement "compliance with the long-term intention of education and development of the educational system of the Czech Republic or of the relevant region" [see Section 148 (3) (a) in conjunction with § 7 (6) of the Education Act, as amended by Act No. 472 / 2011 Coll.], since the current policy of the Ministry of Education, Youth and Sports (hereinafter referred to as "the Ministry of Education") and the counties of the creation of new advisory centres does not support with the justification that the capacity of existing facilities is sufficient and focuses only on the availability of care in them. The contested regulation of the legislature empties the private advisory activity and makes it unnecessary. According to the appellant, it is generally known that the capacity of existing educational advisory establishments is not sufficient to absorb the stress caused by the amendment, thereby making the compulsory recommendation of the educational advisory establishment objectively unavailable under § 16 (4) of the Education Act.
9. For pupils with special educational needs, the contested regulation limits the parent (legal representative) to the free choice of the expert to whom they entrust their child, contrary to their right to personal self-determination of the individual and his family, and thus to Article 8 of the Convention and Article 2 of the Additional Protocol to the Convention, protecting the right to education, and expressly to parents' right to raise and educate the child according to their religious and philosophical beliefs, which the State is obliged to respect and actively protect (Article 32 of the Charter). The appellant also refers to the content of the rights arising from Article 24 of the Convention on the Rights of Persons with Disabilities (Communication of the Ministry of Foreign Affairs No. 10 / 2010 Coll. p.), without further dissolution. It follows from those constitutional principles that it is necessary to respect the primate of parents and his right to cooperate in the efforts to overcome the handicap of a child with a professional consultant in whom he has confidence. The objective pursued can be achieved by less invasive means, such as the accreditation system (verification of the expertise and qualifications of independent consultants). The public interest in the proper examination of the child for the purposes of implementing the corresponding support measure may be ensured without preventing parents from choosing a consultant.
(10) The appellant assumes that the reason for the amendment was the financial burden of the inclusion rules laid down for the State budget, provided that the explanatory memorandum states that it is intended to prevent the use of support measures. However, that reason does not consider that the new regulation is strong enough to lead to the full displacing of private professionals from the education system. According to the appellant, the solution adopted is discriminatory, unduly restrictive and not necessary in relation to the objective pursued.
Proceedings before the Constitutional Court
11. The Constitutional Court, pursuant to Article 69 of the Law on the Constitutional Court, also called on the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as parties to the proceedings and the Government, together with the Ombudsman, as potential interveners of the proceedings for observations. The Ombudsman informed the Constitutional Court that he did not intervene. The appellant did not submit a reply to the comments sent within the deadline.
Observation of Parliament's chambers
12. In their observations, the Presidents of the Chamber of Deputies and the Senate have described the course of the legislative process of adopting the contested adjustment as set out in the following paragraph.
13. Government Bill No. 82 / 2015 Coll. was distributed to Members as House Press No. 288 / 0 on 2. 9. 2014. At first reading, which took place on 19 September 2014, he was commanded to discuss the Committee on Science, Education, Culture, Youth and Sports and the Social Policy Committee; The two committees recommended approving the draft law, as amended by amendments (No 288 / 3 and No 288 / 4), by which the original draft of the contested provision was not affected (note of the Constitutional Court). In its second reading on 21 January 2015, the draft law, as amended by the amendments tabled (No 288 / 5), went through both a general and a detailed debate, at the third reading on 11 and 13 February 2015, the resolution of the Chamber of Deputies No 643 was approved. The Senate discussed the bill as Senate Press No. 41 on 19 March 2015 and approved it by Resolution No. 118 (50 votes out of 62 senators, 2 against). It was dealt with in more detail by the committee responsible - the Committee on Education, Science, Culture, Human Rights and Petitions (Guarantee Committee), the Committee on Territorial Development, Public Administration and the Environment, the Committee on Constitutional and Special Initiatives, and the Committee on Health and Social Policy. The adopted bill was signed by the President of the Republic and declared in the Collection of Laws on 17 April 2015 under No 82 / 2015 Coll.
14. The President of the Senate added in his comments on the draft Act No. 82 / 2015 Coll. in the Senate that, although there was a broad debate on the issue of inclusion in general (17 Senators spoke), there was no criticism in relation specifically to the introduction of the binding recommendation of the school advisory establishment for the application of second to fifth degree support measures.
Government observations
15. The Government has approved its entry into the proceedings within the meaning of Article 69 (2) of the Law on the Constitutional Court by Decree No 887 of 7 September 2020 and has made observations on the proposal by the Minister of Justice, which stated that the Government does not share the opinion presented by the group of Senators and proposes to reject it, since Article 16 (4) of the Education Act considers it compatible with the constitutional order.
16. Before the amendment to the Education Act became effective, the conditions of entitlement of pupils with special educational needs for the provision of support measures by the school and its enforceability were not modified. The content of the already enshrined right of the pupil to create the necessary conditions corresponding to his or her educational needs and to advise the school and the educational institution was not sufficiently specified; The basic rules for communication and cooperation of schools, pupils and advisory facilities were lacking. The amendment eliminates the categorisation of pupils according to their special educational needs, instead the introduction of a five-step classification of support measures for which the pupil is entitled free of charge according to their needs (Section 16 (1) of the Education Act), while the adoption of a second to fifth degree support measure, due to its organisational, pedagogical and financial needs, requires the recommendation of a school advisory establishment. The details are laid down in Decree No. 27 / 2016 Coll., on the education of pupils with special educational needs and gifted pupils, as amended.
17. However, the competence of the school counselling establishments is not affected by any further advisory assistance (except for the issue of mandatory recommendations on support measures) which private experts may continue to provide to pupils, so that both the school and the school counselling establishments may reflect the output of their activities. With regard to the capacity of school counselling establishments, the Government states that 157 bodies of school counselling establishments are registered in the register of schools and schools, of which 46 are pedagogical and psychological councils and 111 are specialised educational centres; the activity is carried out by 128 school advisory facilities of public authorities and 29 school advisory facilities of private bodies (whose activity is covered by Act No. 306 / 1999 Coll., on the provision of grants to private schools, preschool and school establishments, as amended, of at least 50%, up to 80% also covered by the state budget). According to the Government, the current capacity is sufficient, in line with the long-term objective of education and development of the education system for the period 2019- 2023, new places of provision of education services are registered in view of the demographic growth and availability of existing facilities. The government adds that the administrative process is gradually being simplified (e.g. the possibility to extend the date of rediagnostics), as well as the number of professional staff of school counselling establishments is increasing slightly.
18. According to the Government, the Ministry of Education has been flexible in supporting the capacity of these facilities in order to ensure sufficient professional personnel facilities for implementing the requirements of Section 16 of the Education Act since 2016. Referring to the case law of the Supreme Administrative Court (judgments No j. 2 As 69 / 2019-40 of 27.2.2020, sp. zn. 2 As 312 / 2017 of 28.3.2018 and Nos 2 As 66 / 2010-74 of 30.11.2010) and the Constitutional Court [finding sp. zn. Pl. ÚS 34 / 17 of 9.7.2019 (N 130 / 95 SbNU 84; 224 / 2019 Coll.) or Resolution sp. v. IV ÚS 1508 / 09 of 4.1.2010; All decisions of the Constitutional Court are available at https: / / nalus.ujud.cz]. The Government notes that the rejection of the application for the registration of a school or a school establishment in the register of schools and educational establishments due to non-compliance with long-term educational intentions is a constitutionally and combatedly pending procedure; According to the Government, the conclusions of that case-law are fully applicable to the registration of new school advisory establishments.
19. It is the duty of the State to ensure an accessible and rational network of educational establishments in the region and equal access to pupils without socio-economic barriers. According to the Government, the uncontrolled setting-up of private establishments according to market mechanisms could ultimately lead to the exclusion of public educational institutions from certain regions and thus, in fact, to the denial of free provision of all services covered by Decree No. 72 / 2005 Coll., on the provision of advisory services in schools and educational institutions, as amended ("Decree No. 72 / 2005 Coll. '). For the above reasons, the legislature has laid down rules governing the creation of educational advisory establishments which are applied identical to those of private and public authorities.
20. School advisory services for the issue of a recommendation on second to fifth degree support measures are not provided for remuneration, so this is not a normal business activity. Education is a public service (see Section 2 (3) of the Education Act) and this is related to the specificities of providing advisory assistance. Private educational institutions may provide only other services referred to in Section 116 of the Education Act for remuneration, which cannot be subdivided into support measures. Public bodies may provide services only to persons other than pupils or their legal representatives or schools and educational establishments in return for payment (see Section 8 of Decree No. 72 / 2005 Coll., as amended by Decree No. 607 / 2020 Coll.). The same services (and others, such as in particular diagnostic, advisory, reeducation, therapeutic, information and methodological activities) may also be provided for remuneration by professionals who are not organised in the education institution system, since their provision is not legally reserved exclusively for educational establishments.
21. Infringement of Article 26 (1) The acts of the contested regulation are not seen by the Government; according to the legislator, there is wide scope for defining the purpose and conditions of a particular business. Thus, the profession relating to the provision of education services, which is a public service, is logically legitimate and constitutionally consistent with a higher level of regulation (including market regulation) - see the judgment of the Supreme Administrative Court No. 2 As 66 / 2010-74 and the reference therein to the finding of the sp. zn. III. ÚS 2111 / 07 of 2.10.2008 (N 160 / 51 SbNU 3) or Resolution No. IV. ÚS 1508 / 09.
Abandonment of oral proceedings
22. After the above recap of the proceedings, the Constitutional Court concluded that there was no need for oral hearing in the case, as it would not have brought any further clarification of the case than from the written submissions of the appellant, the parties and the intervener. Having regard to the wording of Article 44 of the Constitutional Court Act, it therefore decided without a hearing.
Review of the procedure for the adoption of the contested rules
23. The Constitutional Court in the Intentions § 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., examined whether the contested provision had been adopted and issued within the limits of the Constitution established competence and in the prescribed manner. He concluded that there is nothing to argue with the legislator in this regard - the appellant itself does not dispute the course of the legislative process. For the sake of clarity, reference can be made to the summary contained in Parliament's observations (paragraph 13).
Meritorious review of the proposal
24. After examining the formal elements of the proposal and the imputability of the process of adopting the contested provision of the Law, the Constitutional Court examined its constitutionality in substance and concluded, on the basis of the considerations set out below, that the proposal was not justified.
A.
Right of access and pursuit - Article 26 (1) of the Charter
25. It is clear from the author's submissions that it is primarily defending the interests of experts in the fields of child psychology and special pedagogy who wish to pursue their profession in the context of (free) business activities, in which the contested regulation is intended to prevent them.
26. The rights guaranteed by Article 26 (1) of the Charter are systematically covered by the title of the Fourth Charter and belong to the group of economic rights. Article 41 (1) The Charter and the nature of those rights usually exclude that the methodology of their review is identical to that used in relation to classical fundamental rights (contained in particular in the title of the second Charter), such as a strict test of proportionality, the application of which significantly limits the discretion of the legislature in adopting legislation to regulate the subject matter of social relations under review. In the light of Article 4 (4) of the Charter, which prevents the restriction of the fundamental right from affecting its substance, and Articles 1 and 3 (1) of the Charter, expressing the principle of equality in rights and the prohibition of unequal treatment, the legislature's discretion (from a constitutional point of view) is not unlimited even in the field of the regulation of social and economic rights and may be subject to review by the Constitutional Court [cf. point 278 of the judgment of 27 November 2012 (N 195 / 67 CollNU 333; 437 / 2012 Coll.)].
27. In examining economic, social and cultural rights, the Constitutional Court applies, first and foremost, a rationality test (rationality) which reflects both the need to respect the legislature's relatively large discretion and the need to rule out its possible excesses and which consists of four steps: 1) the definition of the essential content of the law in question (its core); (2) an assessment of whether the alleged intervention affects it; (3) an assessment of whether the interests pursued by the alleged intervention are legitimate (constitutional); 4. Consideration of whether the legislation under examination is reasonable (rational) in view of the conflicting legitimate interests, although not necessarily the best, most effective or wisest [cf. "Only in the event of a finding in step 2), that the law affects the essential content of the fundamental right itself, should there be a proportionality test to assess, inter alia, whether intervention in the essential content of the law is justified by the absolute exceptional nature of the current situation, which would justify such intervention." [see page 1 of the Opinion of 20 May 2008 on ÚS 1 / 08 (N 91 / 49 of SbNU 273; 251 / 2008 Coll.]. In answer to the question whether a rationality test or a proportionality test is sufficient, the Constitutional Court considers that, if the legal regulation of the core of the constitutionally guaranteed economic, social or cultural law is insufficient, it denies its very existence, substance and purpose, then the laws establishing the limits of those rights must be evaluated by the proportionality test [see sp. zl. ÚS 37 / 16 of 26.2.2019 (N 31 / 92 SbNU 324; 119 / 2019 Coll.)].
28. In particular, the conduct of a reasonable test requires a definition of whether and how the contested legislation affects the fundamental right in question. With regard to Article 26 (1) It is necessary to understand the excessive restriction of access to professional activity by providing advisory services on the appropriate setting of support measures for pupils with special educational needs (under § 16 of the Education Act), which affects professionals in the field of children's psychology and special pedagogy who operate outside the network of educational institutions.
29. In the first step of the rationality test it is necessary to define the material content of the fundamental right (its core) concerned. In support of its argument, the appellant refers to the findings of points sp. zn. I. ÚS 504 / 03 and sp. zn. Pl. ÚS 19 / 13, which deal with the content of the right of access and pursuit within the meaning of Article 26 (1) of the Charter.
30. The right to take up business in the core means the freedom to pursue a certain gainful activity on its own account and the responsibility for making a profit without making the obligations and restrictions applicable to that activity impossible its main purpose (negative status). This is not to say that any entrepreneur in a free market environment should be guaranteed the right to profit, but that the extent of the statutory obligations that individual entrepreneurs must fulfil in relation to their activities must not make their business meaningless in terms of the possibility of achieving it.
31. However, it follows from the finding of sp. zn. I. ÚS 504 / 03 that the permissible rate of limitation of the exercise of that right in the terms of Articles 26 (2) and 41 (1) The Charter of Public Rights depends on the share of public authority in the very establishment of a particular field or type of activity. In fact, there are activities whose performance is even conditional on the existence and organisation of public authority (status of positivus), and then it is no longer possible to talk about the free market and the freedom described above in the true sense of the word (it is no longer simply an option for an individual to freely pursue the activity he has chosen). Therefore, when exercising the right to freedom of choice of profession, access to and pursuit of the profession, the role of public interest and public authority must always be assessed to create assumptions for the pursuit of such an activity; the degree of public authority's admissibility is different for different professions from the nature of the case, without undermining the principle of equality (Article 4 (3) of the Charter). In other words, the core of the right to do business is modified (weakened), the stronger the public interest in the quality of the activity in question, and the narrowest it is for the activities that the State directly creates to ensure its tasks, and the higher the level of public regulation (the limitation of the rights of the individual under Article 26 (1) of the Charter) is constitutional.
32. Relating to the present case, the core of the right to business of experts, whose interests the appellant advocates, is the guarantee that the State will not, by its regulation, make it impossible for the State to pursue their professional expertise in business. However, the core thus defined is substantially modified by the fact that it is a business in the field of education, i.e. not in a free market environment, but in an area through which the State implements its positive obligations under Article 33 of the Charter (see, in particular, points 45-48 of the sp. zn. The higher level of public regulation - including the legislator's political decision - whether or not to create a type of activity - is therefore not only conceivable but also foreseen. In order to take into account whether the contested regulation directly affects the core of the right of the experts concerned to conduct business, the next step of the test therefore plays an important role in the fact that, without a system of support measures for pupils with special educational needs, the appellant could not have a defined conflict at all and that the activity to which they seek access through the appellant is directly covered by the State and not simply regulated.
33. In the second step of the rationality test, to answer the question whether the contested provision affects the very nature of the right of the experts concerned to pursue their profession, first of all, it is necessary to evaluate what is the normal content of their agenda and what is the proportion of the diagnostic and advisory activity relating to the training of pupils with special needs, in other words, even more narrowly the proportion that the drafting of recommendations on support measures could take. The appellant argues that the legislator has completely emptied their activities by the current regulation. On the contrary, the Government states that the business activity of private experts is limited only by the non-marginally providing the possibility of making recommendations on support measures to a school, without prejudice to any other activities that they may carry out (for example, it provides for diagnostic, advisory, reeducation, therapeutic, information and methodological activities; See, in particular, the list of activities and services listed in Annexes 1 to 4 to Decree No. 72 / 2005 Coll., which are not exclusively entrusted by the Act to the educational institution).
34. The Constitutional Court is led by the consideration that the field of child psychology involves general care for the child's mental health and is not limited to the process of his education. He may undoubtedly play an important role in his mental life at a certain age and may at the moment be the only reason for seeking professional assistance, which, however, does not mean that another child (e.g. pre-school but also school age) will not require the care of a child psychologist due to an unrelated education (e.g. emotional, educational adaptation, relationship, psychosomatic, etc.). In addition to the services related to the adaptation of the education process to the individual needs of the pupil, these experts provide a number of other services (e.g. psychological advice and psychotherapy not related to education, diagnostics of the family environment, resolution of the family crisis, etc.).
35. On the other hand, a special teacher, as the name itself suggests, is more closely gifted with qualifications linked to the area of education, but also not exclusively, because his expertise is not limited to educating people with some kind of disability or disadvantage - he deals with the overall development of such a person, caring for him, his education and socialization (integration in society) throughout his life. However, even if the Constitutional Court were to look away from the next stages of the life of a handicapped person in which a special educator can assist him outside the field of education, it also considers that the applicant's assertion that the activities of a special educator would be limited to the moment of diagnosis of the special educational needs of the pupil and the recommendation of a support measure. The successful inclusion requires the said pupil to be provided with professional care throughout the entire training process. There are a number of cases where the recommendation of the support measure (i.e. the necessary contact with the educational institution) is already preceded by some cooperation between the child and the selected expert (from the pre-school age, for example) and is followed up at the school institution. In addition, the recommended support measures must be implemented in some way in cooperation with the school or school establishment, its effectiveness and the benefits for the pupil are continuously evaluated or adjusted. Here, too, a special educator can find use.
36. A number of experts are involved in the intensive inclusive process and the only moment when a private psychologist or a special educator is set aside is the issuing of a formalised state recommendation for the adoption of a support measure; In this respect, the new regulation did not give rise to any major changes, since according to § 16 (5) of the Education Act, as in the version effective until 31.8.2016, the pupil did not manage to find that he had special educational needs without the expression of the educational institution - see KATZOVÁ, Pavel. School law: Comment. Section 16 Education of children, pupils and students with special educational needs [ASPI system]. Wolters Kluwer, legal status as at 1 April 2009 (citation 2021-5-18), ASPI _ ID KO561 _ 2004CZ. Available in ASPI. ISSN: 2336-517X. Thus, a private expert is excluded only in a single formalised moment of a complex educational process; As is apparent from the explanatory memorandum as well as from the Government's observations, private expert opinions are taken into account as supporting material for recommendations issued by the educational institution. Thus, according to the Constitutional Court, the contested regulation does not necessarily lead to the displacement of private experts from participation in the educational process of pupils with special needs; a number of other activities that these experts may carry out for their clients, despite the lack of competence to issue recommendations for the adoption of support measures within the meaning of Section 16 of the Education Act (see Annexes 1 to 4 to Decree No. 72 / 2005 Coll.).
37. This conclusion is also reached by the Constitutional Court in view of the above-mentioned specificities of the education business, which is a public service under the Education Act, which is a characteristic of the State's responsibility not only for its availability but also for its quality. Thus, from the nature of the matter, a wider level of public regulation is acceptable compared to the normal private-law areas of business [like the area of healthcare provision, which is a citizens' Charter - as well as the right to education - guaranteed free of charge; Cf. Sf. In other words, without a state of social and economic maturity, and without a public-power education system in this particular way, the content of the activity that private experts, according to the appellant, are unjustly prepared, would not exist at all.
38. The contested regulation therefore does not affect the very core of the rights of representatives of those disciplines to the free pursuit of their profession. It follows that there is no reason to interrupt the proportionality test in its second step and to choose a more stringent measure of the proportionality test in the present case. The question of assessment in one of the next steps of the test is whether there is a legitimate difference between the treatment of professionals integrated in the public sector (through educational advisory facilities) and those who freely choose to operate outside it.
39. In the third step of the rationality test, the Constitutional Court assesses whether the interests pursued by the legislator established by the system of support measures (and the process of their adoption, including the contested provision) are legitimate and constitutionally acceptable. As it fulfils the constitutionally guaranteed right of a citizen to a (free) education, with a focus on pupils (physically or mentally) disadvantaged or highly talented, the Constitutional Court has no doubt about the legitimacy of the legislator of the interests pursued. The right to education guaranteed by Article 33 of the Charter results in a positive obligation on the State to ensure the availability and quality of education services (see in more detail points 45 et seq. In order to enable the State to realise its influence in the provision of that provision, it is legitimate and rational that it will, through the legislator chosen, set the rules which it considers to be the best at the moment; In doing so, it shall balance between meeting its commitments and the tolerable burden on public budgets. In order to fulfil these obligations in a broader context, the construction of an entire education system, with a system of training of pupils with special needs (and thus of the contested provision), is only an integral part. The Constitutional Court finds no reason why the purpose thus expressed should not be constitutional.
40. In the final step of the rationality test, the Constitutional Court considers whether the legislation under examination can be considered reasonable (rational), although not necessarily best, most appropriate, most effective or wisest (see paragraph 27).
41. The Constitutional Court did not consider it necessary to examine whether the current network of educational advisory establishments is or is not sufficient and proportionate to the tasks conferred on them by law, since even if the appellant (and the Government did not have it) and the existing capacities were insufficient, it is not from a constitutional point of view a relevant argument which would entitle the Constitutional Court to exercise its powers of deregation. The fact that the implementation of the legal regulation is lagging behind in practice and that the legislator will adopt a regulation which other components of the state apparatus are not ready to be put into practice, does not, in itself, have an indicative value of its (not) constitutionality (at least not in the level of abstract control of standards without the alleged individualised interference with the fundamental rights of the individual).
42. The Charter guarantees individuals the right to education, even free of charge for citizens (Article 33 (2) of the Charter); the guarantee is fully related to the implementation of special educational needs (see Section 16 (1) of the Education Act). This means that support measures are essentially covered by public budgets. The need for effective control of these expenditure is thus not a negligible public interest and a relevant factor in assessing the rationality of the adjustment and the conflict of conflicting legitimate interests.
43. Indeed, it follows from the explanatory memorandum, as the appellant points out, that one of the reasons for the submission and adoption of the amendment was to establish effective safeguards against the possible abuse of support measures (where no longer necessary for their use) by schools or parents, which the appellant does not find sufficiently strong in relation to the level of limitation of Article 26 (1) of the Charter; but it is not the only reason. In the same section (1.1.1. Providing support measures - definition of a problem), it is also noted that the earlier wording of the Education Act was disproportionately strict in the definitions of special educational needs and prevented the progressive setting of support measures. At the same time, according to the promoter of the amendment (Ministry of Education), the adjustment of the conditions for possible enforceability of support measures and the basic rules of communication and cooperation between schools, pupils, advisory institutions and bodies of social legal protection for children did not exist, so that the inclusive process was carried out as efficiently as possible and the student (parent) himself had the tools to enforce the adoption of support measures or to have subjectively unsatisfactory recommendations reviewed. Moreover, it follows from the same explanatory memorandum that the legislator's intention was not to reduce the expenditure of the State budget - the total amount of money spent should not have been significantly reduced or increased by the amendment; the aim was to achieve a more targeted and transparent use (see 1.2 Impact assessment of proposed variants - Economic impacts of variants 1).
44. It has already been mentioned that the responsibility of the State in implementing the public education service (and thus the rights under Article 33 of the Charter) is, on the one hand, to ensure its availability and quality. The legislature therefore adopted a government amendment proposal to establish the lack of legal regulation on the inclusive process and approved the introduction of a system newly built not to categorise pupils with special educational needs, but to take the five-stage support measures that pupils need for the proper course of their education. In this context, in view of the immediate impact of the support measures taken on public budgets, the need for a uniform methodology procedure and the guaranteed level of quality of the services provided, it was decided to entrust binding recommendations of second to fifth-degree support measures only to educational advisory establishments established under § 142 et seq. of the Education Act (and thus bound by strict legal rules both in terms of origin and further operation). It has thus balanced the conflict of several of the public interests concerned (to ensure the right to education, the sustainability of the burden on public budgets) and fundamental rights (to do business, the right to education) and the Constitutional Court do not imply that it does so unreasonably or exceedingly. It does not dispute that there may be a more suitable, better, more efficient or wiser option of inclusion system settings (e.g. the author-mentioned accreditation system). However, since the contested provision does not affect the core of the right of the experts concerned to do business (does not defer them), there is no room for the Constitutional Court to interfere with the political decisions of the democratically elected legislator simply because there could be a better solution; it is a decision of the legislator in an area in which he is gifted by a broad degree of discretion, in which he did not exceed the notional limit of constitutionality from the point of view of rationality.
45. While the appellant can therefore be agreed that the State treats the experts integrated in the network of educational advisory establishments and those standing outside it differently, it does not do so contrary to the principle of equality, since unequal treatment is not due to an excessive desire, but rather to a thoughtful step towards legitimate objectives (see previous points). Although there is a difference in treatment of experts operating in and outside the network of educational advisory establishments, it is justified by legitimate objectives, the argument criticising the real impossibility of applying itself through the establishment of its own educational advisory establishment outside the public sector cannot be upheld. In addition, the Constitutional Court has already dealt with the long-term purpose of the education and development of the education system of the Czech Republic or of the relevant region [§ 148 (3) (a) of the Education Act, as amended by Act No. 472 / 2011 Coll.], and has not found it constitutional [the then Optics of Assessment were aimed at the right to education, but the illegality of the proposal was justified by the Constitutional Court, inter alia, by the fact that the Charter does not contain a public subjective right to the establishment of a private (non-state, private) school or educational establishment (point 52) and that capacity reasons constitute a legitimate criterion for the regulation of the education system (paragraph 62).
46. In this connection, the appellant also mentions access to financial contributions from public sources which private professionals without the status of a school advisory establishment do not have and are therefore at a competitive disadvantage. However, competition in the true sense of the word can hardly be talked about if the group of entrepreneurs concerned are seeking profits in the form of financial contributions from public sources; the market environment in education is distorted by public regulation, which the State is obliged to promote (see the free provision of advisory activities in a educational institution under § 16 (1) of the Education Act and § 1 (2) and (3) of Decree No. 72 / 2005 Coll., which can be seen as the implementation of a constitutional order for the availability of free education to citizens, as contained in Article 33 (2) of the Charter). In this respect, too, the different treatment of those expert groups is legitimate and balanced by other interests concerned.
47. The Constitutional Court therefore concludes, with reference to the above, that the contested provision will stand up to the constitutional requirement of Article 26 (1) of the Charter by the optical test of rationality.
B.
Right of parents to raise children - Article 32 (4) of the Charter
48. The applicant also submits that part of the right of parents to raise children within the meaning of Article 32 (4) The Charter is also his freedom to choose an expert with whom he will cooperate to ensure a proper education, which is unduly restricted by the contested provision.
49. The content of a parent's right to raise a child is a guarantee that the State will only enter into this sovereign personal relationship in the most necessary cases, particularly in order to protect the best interests of the child as a vulnerable legal entity. However, as the Constitutional Court points out in point 73 of the finding of point sp. zn. He therefore also stated that the issue of the child's education is not fully available to parents under Article 32 (4) of the Charter (see as an example compulsory schooling or regulation of home teaching).
50. Parents have primary responsibility for the education and development of the child and their primary purpose must be the interest of the child [Article 18 of the Convention on the Rights of the Child (Communication of the Federal Ministry of Foreign Affairs No. 104 / 1991 Coll.)]. They also have the right to provide education and education for their children in accordance with their religious, philosophical and pedagogical beliefs [Article 14 (3) of the Charter of Fundamental Rights of the European Union (Notice of the Ministry of Foreign Affairs No. 111 / 2009 Coll. s.), see also Article 2 of the Additional Protocol to the Convention by analogy]. The Constitutional Court recognises the important role of parents who, in the context of parental responsibility, decide in the opinion of the child, his abilities and the talents of his education. For children with special educational needs, their education and education can intersect.
51. However, the contested regulation generally does not prevent the free choice of parents. As mentioned above, the adoption of a recommendation for a specific pupil of an appropriate support measure is only a partial aspect of the wider professional care provided to him during his teens and education. While it can be understood that some parents may view the compulsory involvement of a school advisory establishment as a complication, the contested provision does not prohibit the cooperation of a professional of his or her choice, in whose capacity the pupil (parent) has confidence or experience and information subsequently shared with the school advisory establishment. And the potential double burden of parallel professional care for the pupil is offset by the requirement of effective control of the management of public funds, and by the effort to ensure an impartial assessment of the needs and abilities of the pupil and of its best interest. In addition, the implementation of the recommended support measure is subject to the consent of an elderly pupil or legal representative of a minor student (§ 16 (5) of the Education Act, as amended by Act No. 82 / 2015 Coll.), the output of a educational advisory establishment can be subject to revision (§ 16b of the Education Act); It cannot therefore be said that, as a result of the contested provision, a parent would lose control of the exercise of his right to the education of a child according to his own ideas. Should this happen in a particular case, such a parent may seek protection of the rights of his or her child by judicial means.
52. For these reasons, the Constitutional Court does not consider the appellant's argument relating to Article 32 (4) of the Charter to be justified; Therefore, it is not necessary to carry out a reasonable test in the absence of direct interference with that law.
C.
Right to education - Article 33 (1) and (2) of the Charter
53. The appellant's objection that, as a result of the lack of a network of educational advisory facilities, the provision of recommendations for the adoption of a second to fifth degree support measure is objectively unavailable is potentially relevant in terms of the rights of pupils with special educational needs guaranteed by Article 33 of the Charter. It is necessary to ensure that adequate adjustments are made to the individual needs of children with disabilities, as required by Article 24 (2) of the Convention on the Rights of Persons with Disabilities, so as not to restrict their access to education in specific cases (see, for example, the judgment of the European Court of Human Rights of 30 January 2008 in the case of "Enver ', in the case of Turkey No 23065 / 12). However, the contested regulation allows the procedure consistent with the Charter and the international obligations of the Czech Republic in relation to education, since, in the context of the abstract control of standards from the very wording of the contested § 16 (4) of the Education Act, the restriction of access to education does not result (see also paragraph 41).
Conclusion
54. In the field of education, which guarantees the citizen free of charge and whose organisation seeks to meet other obligations (such as meeting the individual needs of each pupil as a maximum), the State is given a wide discretion as regards setting up the system, the procedures applied and procedures. The higher level of business regulation in this area is therefore legitimate. Although private children's psychologists and special educators may be disadvantaged compared to previous treatment compared to professionals working in educational institutions, this alone is not sufficient to declare the unconstitutionality of the contested legislation as it is pursued by a legitimate objective, in respect of which it is clearly unreasonable.
55. The Constitutional Court therefore rejected the proposal of a group of senators under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 288 / 2021 Coll., on the application for annulment of Article 16 (4) of Act No 561 / 2004 Coll., on pre-school, primary, secondary, higher vocational and other education (Education Act), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.07.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Education, Education, Education
Administrative law
The regulation text is for informational purposes only.
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