The Constitutional Court found No 405 / 2006 Coll.

Paragraph 5 (3), second and third sentences, of Act No. 155 / 1995 Coll., on Pension Insurance, as amended, and Paragraph 6 (4) (a) (11) of Act No. 582 / 1991 Coll., on the Organisation and Implementation of Social Security, as amended, in the "care of a man under the age of four years, care of a child under the age of 18, if the long-term disabled is requiring exceptional care," and "these children and 'shall be deleted on 1 July 2007.

1. In accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the appellant sought the annulment of the provisions of § 5 (3), second and third sentences of Act 155 / 1995 Coll., as amended (hereinafter referred to as "Act 155 / 1995 Coll.," or "the Act on Pension Insurance") and the provisions of § 6 (4) (a) (11) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, as well as "the Act on the organisation and implementation of social security," the care of a child under the age of up to four years, the care of a child under 18 years, being in a long-term, and "those children" and.

2. In the application to initiate the procedure, the appellant stated that, in the legal case of applicant M. H. against the defendant of the Czech Social Security Administration, the decision of the Regional Social Security Administration in Děčín of 28.6.2001 No. POD 20 / 2001 / DZ / Če was decided that the applicant could not be considered as a childcare person within the meaning of Section 5 (1) (r) of Act 155 / 1995 Coll., as amended. The decision was based on the grounds that the applicant submitted an application to participate in the insurance and at the same time the application for the initiation of proceedings concerning the duration and extent of the care of a man under the age of four years after the legal period of two years laid down by law and therefore cannot be considered as a person mentioned in § 5 (1) (r) of Act No 155 / 1995 Coll. The applicant's appeal was rejected by decision of 14.8.2001 No DP / 2220 / 01 and confirmed by appeal of the contested decision of the Regional Social Security Administration of Decin of 28.6.2001. The defendant justified his decision by the fact that, pursuant to Article 5 (3) of Act No 155 / 1995 Coll., a man is considered to be the person referred to in paragraph 1 (r) only if he has submitted an application to participate in insurance within two years of the end of childcare. The application to initiate the procedure was lodged by the applicant with the competent district social security administration on 21 June 2001, i.e. after the legal deadline. In the statement of reasons for the decision, the defendant also stated - on the appellate plea of the applicant, that he had suspended his business for the sake of childcare - that he had carried out evidence by the applicant's part of the self-employed person, led and set up with the administration of the first instance, and found that the applicant had ceased his business without giving any reason since 1994. The applicant brought an appeal against the defendant's decision to the Regional Court in Ústí nad Labem, in which he argued, inter alia, that he had not been properly informed by the county social security authorities whose expertise he had confidence in, how he should proceed with the case, and, in the absence of such an instruction, he submitted an application for participation in insurance late. However, the Regional Court in Ústí nad Labem confirmed the defendant's decision by judgment of 18.10.2001 sp. zn. 15 Ca 338 / 01. The Court did not consider the necessity of fulfilling that administrative requirement discriminatory; According to the Court, it was essential that the claimant failed to fulfil the condition of its inclusion in the insurance group and that the reasons for that were not relevant. The applicant appealed against the judgment of the Regional Court in Ústí nad Labem, but the Supreme Court in Prague confirmed the contested decision by judgment of 6 February 2002. The Court of First Instance found, inter alia, that the provision of the law which it establishes for the applicant is unambiguous and does not allow for any exception.

3. Against that judgment, the applicant made a claim that the judgment was based on an incorrect legal assessment of the case. As in the appeal and in the appeal, he argued that Article 5 of Law 155 / 1995 Coll. is discriminatory against men because women are not limited by any time limit. It considers this provision to be contrary to Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter); In his view, even if there was no such contradiction, there would be inequality in the rights between men and women, because the competent authorities do not have an explicit obligation of instruction on this issue, and men who are still in the care of the child rather the exception are said to be unable to know about this lapsed deadline.

4. The Supreme Court - having regard to the amendment of the rules of procedure - referred the application pursuant to § 129 (4) of Act No. 150 / 2002 Coll., the Rules of Procedure of the Administrative Court, the Supreme Administrative Court (appellant) to complete the proceedings, in accordance with the provisions of Part Three of Title Three of the First Act, namely to complete the procedure under the provisions governing the appeal proceedings.

5. The Supreme Administrative Court took the view that the provisions of § 5 (3), second and third sentences of Act No. 155 / 1995 Coll., on Pension Insurance, as amended, and § 6 (4) (a) (11) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended by the Act No. 155 / 1995 Coll., are contrary to the constitutional order of the Czech Republic, provided that a man is considered to be a person caring for a child under the age of four years or for a child under the age of 18, if the long-term disabled requiring emergency care is only submitted for participation in insurance within two years from the end of care of the child, "and the period of care of the child is demonstrated by the decision of the district social security of the age and extent of such care, initiated by the administrative procedure initiated on his application. 'According to Article 5 (1) (r) of Act No 155 / 1995 Coll. on Pension Insurance, as amended, a number of persons who are involved in pension insurance if the conditions laid down by that Act are fulfilled are those who are caring for a child under the age of four or for a child under the age of 18 if the long-term disabled is requiring exceptional care. According to Article 5 (3) of the Act referred to, the person referred to in paragraph 1 (r) shall be the parent of the child, the person to whom the child has been assigned to foster care by decision of the court or to whom the child has been given custody by decision of the competent authority, and the spouse of the child's parent, if the child has been entrusted to the other spouse by decision of the court or if the other parent has died or is not known. According to the second sentence of the same paragraph, a man shall be considered to be the person referred to in Paragraph 5 (1) (r) only if he has submitted an application to participate in the insurance no later than two years after the end of childcare; if he has not submitted such an application within that period, he may not be considered as the person referred to in paragraph 1 (r). According to the third sentence of this paragraph, the provisions of the second sentence shall apply mutatis mutandis to a person who cares for a child under the age of 18 if the long-term disabled is requiring exceptional care. Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, in § 6 (4) (a) (11), entrusts the district social security administration, inter alia, to decide on the duration and extent of the care of a man under the age of four years and the care of a child under the age of 18, if the long-term disabled is requiring exceptional care, if the periods of care of those children are after 31 December 1995. According to Article 85 (2) of the same Law, the periods of care referred to in Article 6 (4) (a) (11) are demonstrated by a decision of the district social security administration on the duration and extent of such care. The application to initiate the procedure shall be made on the prescribed form and may be made at the earliest after the completion of the said care or during the duration of the procedure in connection with the application for a pension, but not before the application for participation in pension insurance has been filed in accordance with the second sentence of § 5 (3) and § 4 of the Pension Insurance Act, but no later than two years after the end of that care.

6. It follows from the appellant's view that the Pension Insurance Act distinguishes and sets different conditions for parents or others (in the first sentence of Paragraph 5 (3)) to participate in pension insurance, depending on whether he is a man or a woman, depending on whether he is a child under the age of four or a child under the age of 18. To a woman (the mother of a child or another woman - the person referred to in the first sentence of Paragraph 5 (3)), taking care of the child (if not covered by another, more favourable form of participation in insurance) is sufficient for the child to be counted as a replacement period of insurance into the total period of insurance for entitlement to the pension and the amount of the percentage of the pension. In addition, the Pension Insurance Act imposes on men the condition that they have to submit an application to participate in pension insurance within the statutory period and also, within the statutory period, a proposal to initiate the procedure by which the administrative authority decides on the duration and extent of his childcare. If he misses a statutory period, even though he has taken care of the child, he does not have to take part in the insurance, and his period of care is not included in the total period for pension entitlement and the amount of the percentage. The law thus, without giving any substantive grounds relating to the different sex, only according to the sex of the person caring for the child, establishes in a different way the right to participate in the pension scheme of such a person and sets out unequal conditions for men and women for participation in the pension scheme in connection with the care of minors. For these reasons, the Supreme Administrative Court considers that the condition of a man's participation in pension insurance by filing an application to participate in pension insurance within the statutory deadline and the application to initiate proceedings in which the administrative authority decides on the duration and extent of his / her childcare is contrary to the constitutional order, namely Articles 1, 3 (1) and 30 (1) of the Charter of Fundamental Rights, as it constitutes, depending on the sex of the person in charge of childcare, an inequality between men and women in their right to adequate physical security in age or incapacity for work.

7. The Constitutional Court, in accordance with the provisions of § 42 paragraphs 3 and 4 and § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, sent the proposal in question to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and requested the written opinion of the Ministry of Labour and Social Affairs (§ 48 paragraphs 1 and 2 of the Act cited).

8. It is stated in the Chamber of Deputies of the Parliament of the Czech Republic that the Pension Insurance Act binds the creation of a participation in the pension insurance of persons caring for children or for helpless persons on the condition that such persons (both women and men) submit a written application to participate in pension insurance no later than two years after the end of that period, as they may submit an application to participate in the insurance of persons aged over 18 years (both women and men), and their participation in the insurance is to cover the period of their holding in the employment register as a candidate for employment, provided that, for the period of such registration, they did not benefit from unemployment support or training, or the period of continuous training for a future occupation by studying at a secondary or high school in the Czech Republic, except for the first six years of that study after the age of 18 years. An exception to this principle is that a woman does not submit an application to participate in a pension scheme for childcare. The reason for this exemption is its practicality. In recognition of the replacement period of insurance, it is examined whether the conditions for its recognition are actually fulfilled, so it does not happen automatically. Only in childcare is it based on a more developed model in our environment, where it is mainly women who take care of children of low age. Submission of applications to participate in pension insurance by women - in the care of young children - would therefore, in many cases where women care for young children, become more formal and therefore the view prevailed that women do not have to apply for the care of young children. The legislature has acted in the belief that the laws adopted comply with the Constitution, and it is up to the Constitutional Court to examine the constitutionality of those laws.

9. The Senate of the Parliament of the Czech Republic first stated in its observations that Act No. 155 / 1995 Coll., on Pension Insurance, was approved by the Chamber of Deputies on 30 June 1995, with effect from 1 January 1996, that is, before the constitution of the Senate. Subsequently, the Act, which had already been amended several times after the creation of the Senate, was only amended by Law No 134 / 1997 Coll. concerned the contested provision § 5 (3). He also stated - in particular - that if the appellant is based on the fact that Act No. 155 / 1995 Coll., on Pension Insurance, as amended, even in the case of care for a child under 18 years of age, if the long-term disabled is requiring exceptional care, it sets out different conditions for participation in pension insurance, depending on whether it is a man or a woman, it is an opinion which does not support the legislation. In this case, it follows from the legislation in force [§ 5 (1) (r) and § 5 (3) of the Third Pension Insurance Act] that the scheme is applicable to a person caring for such a child, regardless of whether it is a man or a woman. In the context of the care of a child under 18 years of age who is severely disabled requiring exceptional care, a caring person (without distinguishing between men or women) is required to submit an application to participate in pension insurance no later than two years after the end of childcare. This period is calculated on the basis of the decision of the district social security administration pursuant to § 6 (4) (a) (11) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended. The proposed annulment of the provision of § 5 (3) sentence of the third Act No. 155 / 1995 Coll., on pension insurance can therefore hardly be relied on in argument on its contradiction with constitutional order, namely Articles 3 (1) and 30 (1) of the Charter of Fundamental Rights and Freedoms, as stated in the proposal. On the other hand, the regulation concerning the care of a child under the age of four years, where the law provides for different conditions for calculating the duration of such care, if the caring person is a woman or a man, may generally appear to be an arrangement establishing an unequal conditions for participation in pension insurance in connection with the care of such a child, depending on whether it is a man or a woman. In this case, however, it should be substantial to assess the different arrangements from those expressed, for example, in the Constitutional Court's finding published under No 40 / 2003 Coll. on the application for annulment of Article 78 of Act No. 155 / 1995 Coll., on Pension Insurance. This means an assessment of whether the different treatment is an expression of pleasure, or whether it is based on objective and reasonable reasons (a legitimate objective of the legislator) and whether there is a state of proportionality between that objective and the means of achieving it (legal advantage). The appellant assumes that the law lays down different conditions for men and women, "without giving any substantive reasons relating to the different sex '. However, it is not apparent from its submission whether it had provided evidence in the procedure it conducted concerning the reasons for which the Pension Insurance Act provided for in 1995 special arrangements for men caring for children under the age of four and how it assessed such reasons in terms of their objectivity, rationality and proportionality. It would therefore be appropriate, in the opinion of the Senate, to assess the contested provisions in this respect, taking into account, in particular, any comments made by the competent authorities in the field of pension insurance. In the present case, it can also be taken into account, according to the Senate, that any delay in the pre-compulsory period provided for in the application to participate in pension insurance can be dealt with in justified cases in the framework of the removal of hardness within the meaning of § 4 (3) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended.

10. In the comprehensive opinion of the Ministry of Labour and Social Affairs, which the Constitutional Court also requested in view of the specificity of the case under examination, it is stated in particular, after a general recap of the legal situation in force, that earlier (before 1 January 1996), if the same conditions for a child were met by a man, it was not covered by those provisions for a replacement period counted until the time of employment; This period of time has not been evaluated by men for their pension entitlements at all. The calculation of a man's childcare period was only possible by the Pension Insurance Act with effect from 1 January 1996. In addition, the Act also extended the length of the replacement period due to childcare without a qualified reason from three to four years. The second sentence of Section 5 (1) (r) of the Pension Insurance Act provides for the condition for a man to be considered as a person. That condition shall be the filing of an application to participate in pension insurance no later than two years after the end of childcare; If a man has not submitted such an application within that period, he may not be considered to be the person referred to in § 5 (1) (r). "If we examine whether the Pension Insurance Act provides for a similar or other special condition for the creation of a pension scheme for the purpose of care to a woman, we will not find her." Paragraph 5 (3) of the Third Pension Insurance Act provides, however, that paragraph 3 of the second provision also applies mutatis mutandis to a person who takes care of a child under the age of 18, if the long-term disabled is requiring exceptional care. In this case, that condition is therefore also applicable to a woman. It follows from the above that, for the participation of a woman in a pension insurance scheme due to the care of a child under four years of age, the Pension Insurance Act does not provide for any administrative condition [see Section 5 (1) (r), where a "person ', i.e. a man and a woman who is a child under four years of age, and Section 5 (3), second sentence, where the condition for applying for an insurance participation is expressly for a man, not for a woman], but for the care of a child under 18 years of age, if the child fulfils the qualifying conditions, does not distinguish between the sex insurance law of the caring person - both the man and the woman must fulfil the same condition for participation in insurance (i.e. submit an application for a pension insurance participation within the prescribed period). The Pension Insurance Act provides for the same condition for both a man and a woman to obtain at least one year of insurance for the assessment of the period in question as alternative periods of insurance for both pension entitlement and the percentage rate of pension. At the same time, however, the Pension Insurance Act prevents multiple persons from making a duplicate assessment of the same period, in the provision of Paragraph 14 (2), according to which the same period of childcare under Section 5 (1) (r) cannot be counted simultaneously for several persons; If more than one person has taken care of the child at the same time, such care shall be taken as a replacement period of insurance for the person who has taken care of the most. In the preparation of the draft amendment to the Pension Insurance Act, this requirement was said to be crucial in seeking appropriate tools to prevent the evaluation of one and the same period by more insured persons, in particular for reasons of public interest protection, since, in the view of the Ministry of Labour and Social Affairs, the effective management of the funds earmarked for the payment of pensions should also be considered as a public interest. These funds are obtained from insurance premiums paid by both natural and legal persons, and because they are (even sui generis) part of the state budget, they thus acquire the characteristics of public material values. The fact that that period is assessed for pension entitlement and the amount of its percentage rate fully without any reduction, without anyone paying any premium to the pension scheme during that period, justifies, in the opinion of the Ministry, an attempt to find a solution that effectively prevents the misuse of public funds.

11. In search of this solution, the Ministry's opinion was based on the long-term experience of the pensioner, which is that it is very difficult to prove the facts that occurred several decades ago when applying the pension entitlement. After 20, 30 or more years, it is difficult to find out which of the parents cared for or who cared for children under four years of age. For this reason, the processors considered it necessary to propose an adjustment that would enable the actual situation to be established at the present time. However, this cannot be done without the synergies of the person whose participation in insurance is involved. It offered the possibility to choose the same administrative conditions for the participation of all childcare workers under the age of four years in pension insurance as those proposed for participation in the pension insurance of childcare workers under the age of 18, if the long-term disabled are severely disabled requiring exceptional care, and those who personally care for a predominantly or completely helpless person or partially helpless person over the age of 80. However, since the condition for applying to participate in pension insurance due to childcare under four years of age for all carers (both men and women) and the subsequent initiation of proceedings on the duration and extent of such care was finally abandoned. According to the Ministry, the processors of the proposal came from the facts - which, after nine years of the effectiveness of the Pension Insurance Act, did not change much and which result from the traditional model of the Czech family and the still-remaining difference in the remuneration of men and women - that it is mainly women who care for children under the age of four. For men, these are quite exceptional cases compared to the number of caring women. Statistical data from the year of the effectiveness of the Pension Insurance Act, i.e. from 1996 to 2003, are said to only confirm the accuracy of these considerations. When considering whether an administrative condition for the creation of a pension scheme for childcare purposes under the age of four should be imposed on all persons in the same situation, or only on men who care for a child of that age - compared to women - only in isolated cases, an approach based on objective and reasonable reasons has prevailed, according to the Ministry. In the case of women, this would be a measure that would have "adverse 'effects on women and would also be a major administrative burden on social security authorities (including cost increases) as a result of new accounting and decision-making activities. The establishment of an administrative condition for men alone appeared to be" less evil "in a given situation, as it requires the fulfilment of certain synergies only from a small number of persons (less than one promile) who are in the same situation, and the fulfilment of an administrative condition by a man can be proven to fulfil its purpose, i.e. excluding the evaluation of one and the same period by more insured persons.

12. In addition, according to the Ministry, it should be noted that, on the other hand, men have a more favourable procedural position in proving the period in question when claiming entitlement to benefit than women, since they are only required to take two simple steps to decide on the duration and extent of childcare up to four years (i.e. to apply for insurance and to initiate proceedings for the period and extent of childcare up to four years), and it is sufficient if they do so at the same time, on the same day as a single visit to the district social security administration, if they do so between the end of childcare and the end of two years from the end of that care. At this current time, shortly after care, it is not difficult for men to prove their relationship with the child's birth certificate, or by decision of the competent authority or court. On the other hand, a woman (and even a birth mother) must submit a birth certificate (or a birth certificate) for the purpose of demonstrating the care of a child within four years of the age of four, or an extract of a birth certificate relating to a given child, possibly - particularly in case of legitimate doubt by the administration - additional evidence to demonstrate the duration of such care, which, for example, 40 years after the end of care, may be a problem (the document is not available, lost it, etc.), so that in some cases it must make more effort and often also financial means to demonstrate a relationship with the child. However, if it proves it in a credible manner, it will be sufficient to assess the duration of care for such a child by its honourable declaration, as the administrative condition laid down for men caring for a child under the age of four will reliably exclude the evaluation of the same periods of care for one child from more persons. However, if the administrative conditions laid down for the participation of a man in a pension scheme were to be abolished for the purpose of caring for a child under the age of four, both the man and the woman who would have applied for an assessment of the period of care for a child under the age of four would have to prove not only that they are a person defined in the first sentence of Section 5 (3) of the Pension Insurance Act, but also that they had actually cared for the child and to what extent (i.e. that the period of childcare cannot be assessed by another person, even if that other person claims for a number of years later); This, according to the Ministry, would be very difficult, especially taking into account the considerable time interval (usually several decades), taking into account - in many cases - the breakdown of the original family ties (the parents of the child have broken up, both of them will ask for an assessment of the same period of childcare that will not be covered by the insurance period, or they will not agree on who is to be assessed). This would result in a deterioration in both male and female procedural status. It would not be possible to prevent overpayments in pensions arising from the assessment of childcare to a person who would have claimed a pension earlier (and, in view of the different retirement age, it can be assumed that it would usually be a woman) if another person would have subsequently asked for the same period to be set off. In such a case, the necessary proof would have to be made, including, where appropriate, the quantification of the excess payment on the amount already granted. In this situation, there would also be unjustifiably caregivers under the age of 18, if the long-term disabled are requiring exceptional care, even if they are subject to the same conditions of participation in insurance for the care of that child, regardless of gender, as the Senate of the Supreme Administrative Court proposes to abolish the administrative condition and for them. A marginal solution that would burden both carers (both men and women without distinction) and pensioners would be to determine the condition of filing an application to participate in pension insurance within two years of the end of childcare in both the age of four and women. In this context, the Ministry pointed out the number of children born live in the Czech Republic, which exceeds 90 000 per year. At the end of its opinion, the Ministry admitted that Paragraph 5 (3) of the Second Law on Pension Insurance contained a certain degree of inequality between a man and a woman, but that the inequality did not reach an intensity which would unreasonably infringe the principle of equality, in particular without justification of public interest and the protection of public values consisting of the economic management of public funds.

13. The provisions of the Pension Insurance Act or the Act on the organisation and implementation of social security which the applicant challenges and demands to be abolished are (bold marked by the contested):

14. Paragraph 5 (3) of the Pension Insurance Act - The person referred to in paragraph 1 (r) shall mean the parent of the child, the person to whom the child has been assigned to foster care by a decision of the court or of whom the child has been given custody by a decision of the competent authority, and the spouse of the child's parent, if the child has been entrusted to the other spouse by a decision of the court or if the latter has not been known; a parent is also understood as a child-adopter. A man shall be deemed to be the person referred to in paragraph 1 (r) only if he has submitted an application to participate in insurance no later than two years after the end of childcare; if he has not submitted such an application within that period, he may not be considered as the person referred to in paragraph 1 (r). The second sentence shall also apply mutatis mutandis to a person who cares for a child under the age of 18 if he is a long-term severely disabled person requiring exceptional care.

15. Paragraph 6 (4) (a) (11) of the Act on the organisation and implementation of social security - Regional Social Security Administrations decide on the duration and extent of care of a man under the age of four years, the care of a child under the age of 18, if the long-term disability requires exceptional care, and the care of a person who is personally caring for a predominantly or completely helpless person or a partially helpless person over the age of 80, if the periods of care of those children and helpless persons after 31 December 1995.

16. The Constitutional Court first examined, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, whether the law in respect of which the appellant contests the unconstitutionality of its provisions had been adopted and issued within the limits of the Constitution laid down by the jurisdiction and by the constitutional procedure.

17. From the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, as well as from the relevant parliamentary press and data on the voting process, the Constitutional Court found that the Chamber of Deputies approved the draft pension insurance law at its 32nd meeting on 30 June 1995, before the creation of the Senate. The law was signed by constitutional officials and on 4 August 1995 it was declared in the Collection of Laws, in the amount of 41 under the number 155 / 1995 Coll. The Pension Insurance Act was thus adopted in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the rules laid down in Article 39 (1) and (2) of the Constitution. Law No 134 / 1997 Coll. amending the Pension Insurance Act in the contested provision (third sentence inserted) was also properly adopted as the draft law was approved in the Chamber of Deputies on 23.5.1997 and in the Senate on 11.6.1997. The law was signed by the relevant constitutional authorities and declared in the Collection of Laws on 26 June 1997, in amount 48 under number 134 / 1997 Coll. (The Pension Insurance Act 155 / 1995 Coll. was amended by a number of other laws, but these amendments did not affect the contested provision.)

18. As regards the contested provision of the Act on the Organisation and Implementation of Social Security No 582 / 1991 Coll., the Constitutional Court notes that, as regards the laws issued before the Constitution of the Czech Republic became effective, the Constitutional Court is entitled to examine only their content compliance with the current constitutional order, but not the constitutionality of the procedure of their formation and observance of the legislative powers. In view of the so-called formal control of constitutionality, the Constitutional Court therefore examined only the partial amendments to the Act which affected the contested provisions. it is primarily Law No. 160 / 1995 Coll., amending and supplementing certain laws in connection with the adoption of the Pension Insurance Act. In this respect he found that this law was properly passed on 30 June 1995 at the 32nd meeting of the Chamber of Deputies, the relevant constitutional officials signed it and on 8 August 1995 it was published in the Collection of Laws, in the amount of 42 under the number 160 / 1995 Coll. This law, too, was adopted in a constitutionally prescribed manner and within the limits of the Constitution established competence.

19. Another amendment, which supplemented the contested provisions of Act No. 582 / 1991 Coll., on the Organisation and Implementation of Social Security, was implemented by Act No. 424 / 2003 Coll., amending Act No. 582 / 1991 Coll., on the Organisation and Implementation of Social Security, as amended, and certain other laws. The Constitutional Court verified that the Act cited was duly passed on 26 September 2003 at the 20th meeting of the Chamber of Deputies and on 6 November 2003 at the 11th meeting of the Senate of the Parliament of the Czech Republic. It was signed by the constitutional authorities and on 12 December 2003 it was published in the Collection of Laws, in the amount 139 under the number 424 / 2003 Coll. The Constitutional Court therefore notes that this law was also adopted in a constitutionally prescribed manner and within the limits of the constitutional competence laid down.

20. Following this finding, the Constitutional Court took the view that the contents of the contested legal provisions were consistent with the constitutional order of the Czech Republic.

21. In essence, the question is whether the above mentioned provisions of the Pension Insurance Act and the related provisions of the Act on the Organisation and Implementation of Social Security are capable of violating the principle of equality in rights, generally expressed in Article 1 of the Charter of Fundamental Rights and Freedoms, according to which people are free and equal in dignity and in rights, and specified in Article 3 of the Charter (paragraph 1), under which fundamental rights and freedoms are guaranteed to all, inter alia, without distinction of sex or other status. Account should also be taken of Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms, according to which the use of the rights and freedoms conferred by this Convention must be ensured without discrimination based on any reason such as gender. Article 26 of the International Covenant on Civil and Political Rights also provides that all are equal before the law and have the right to equal protection of the law without discrimination; the law is designed to prohibit any discrimination and to guarantee equal and effective protection against discrimination for any reason, such as race, colour, sex, language, religion, political or other beliefs, national or social origin, property and genus.

22. The Constitutional Court, having examined the case, considered that the application should be complied with and the contested legal provisions annulled.

23. The Constitutional Court has the following reasons.

24) Equality between all human beings as bodies of fundamental rights and freedoms is essentially the content of all documents protecting human rights. This includes, inter alia, the practical knowledge and recognition of the value of each person as such, regardless of his or her ability, knowledge and "usefulness" or the benefits of the whole; from a legally philosophical point of view, it is a manifestation of the ancient truth - although countless times in history violated - that man must never be arbitrarily treated only as a means of serving the interests of others. It can be said that the equality of a free individual in dignity and rights is the cornerstone of our constitutional order and is actually reflected in the entire Charter of Fundamental Rights and Freedoms.

25. The Constitutional Court has already in a number of its decisions (cf. their summary, for example, in the sp. zn. Pl. ÚS 33 / 96, Collection of finds and resolutions of the Constitutional Court of the Czech Republic, Volume 8, Found No 67, p. 163, 170 et seq.; published under No. 185 / 1997 Coll.) has explained the content of the constitutional principle of equality. In particular, it must therefore be reiterated that it was in agreement with the understanding of equality, as already stated by the Constitutional Court of the CSFR in its finding of 8 October 1992 sp. zn. Pl. ÚS 22 / 92 (published under No 11 of the Reports of the resolutions and findings of the Constitutional Court of the CSFR), according to which "it is for the State to decide, in order to safeguard its functions, that it will provide a group with less benefits than others. But even here, he must not go any further... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'The Constitutional Court of the CSFR thus rejected the absolute understanding of the principle of equality and took equality as a relative category, which in particular requires the elimination of unjustified differences and the exclusion of arbitrarily. The content of the principle of equality has thus shifted into the area of constitutional acceptance of the aspects of the distinction between entities and law. The legal distinction in access to certain rights must therefore not be an expression of pleasure, but it does not imply a categorical conclusion that everyone should be granted any right. Moreover, Article 1 of the Charter of Fundamental Rights and Freedoms cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but, on the contrary, it must be understood as a single whole. It is clear from the adaptation of this general provision that even the basic protected values listed in Article 3 of the Charter did not devise the constitution as absolute. In the case sp. zn. Pl. ÚS 4 / 95 (Collection of finds and resolutions of the Constitutional Court of the Czech Republic, Volume 3, Found No 29, p. 209 et seq.; declared under No. 168 / 1995 Coll.) The Constitutional Court noted, inter alia, that inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity which is doubtful, at least in a certain way, already the very essence of equality. This is usually the case when a breach of equality is also linked to another fundamental right.

26. As also stated by the Constitutional Court in the find sp. zn. Pl. ÚS 15 / 02 (Collection of finds and resolutions of the Constitutional Court of the Czech Republic, Volume 29, Found No. 11, p. 79, 87 et seq.; Declared under No. 40 / 2003 Coll.), the constitutional principle of equality in rights belongs to those fundamental human rights which constitute the value order of modern democratic societies. The principle of equality is a legally philosophical postulate guaranteed by the prohibition of discrimination in a level of positive law. Equality is not a fixed category, as it undergoes development, which is particularly marked in the area of political and social rights. Also, international human rights documents and many decisions of international control bodies are based on the fact that not every unequal treatment of different entities can be classified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to others. In order for this principle to be infringed, several conditions must be met: various entities in the same or comparable situation are treated differently without having objective and reasonable grounds for different approaches. It can be added that the European Court of Human Rights, in its established case-law, notes mutatis mutandis that the difference in treatment between persons in comparable or comparable situations is discriminatory unless it has any objective and reasonable justification, i.e. if it does not pursue a legitimate objective or if the resources used are not proportionate to the objective pursued. The United Nations Committee on Human Rights, in applying Article 26 of the International Covenant on Civil and Political Rights, has also repeatedly expressed the view that the exclusion of arbitrarily lies in the fact that discrimination cannot be applied beyond reasonable and objective criteria. International documents and judicates often distinguish between formal equality (i.e. equal treatment of formally equal entities in the same formal cases) and substantive equality (i.e. formally unequal treatment of de facto non-equal entities to compensate for this de facto inequality in order to help establish real equality between them). The latter case is referred to as so-called positive discrimination where it introduces favourable treatment for entities that are in fact significantly disadvantaged compared to others (preferential treatment). Consequently, the means of preferential treatment are not fundamentally contrary to the legal principles of equality and non-discrimination where their application is intended to eliminate de facto discrimination between those entities. The legislature has some scope to consider whether such preferential treatment will anchor in the legal order. In doing so, it must ensure that a favourable approach is based on objective and reasonable grounds (a legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means of achieving it (legal advantage). In the area of civil and political rights and freedoms, which immanently characterises the obligation of the State to refrain from intervening in them, there is only a minimal scope for preferential treatment of certain entities in general. On the other hand, in the area of economic, social, cultural and minority rights, in which the State is obliged to take active action - because it is intended to remove the speculative aspects of inequality between different groups of companies that are intrinsically socially, culturally, professionally, professionally or otherwise stratified - the legislator logically has much greater scope to apply its view of the permissible limits of actual inequality within it (cf. Cf. Cf. Cf. Cr. ÚS 15 / 02).

27. In the light of the above-mentioned fundamental principles and the conclusions previously adopted by the Constitutional Court, it was therefore necessary to assess in the present case whether the legislation consisting of the contested provisions of the Pension Insurance Act and the Act on the Organisation and Implementation of Social Security is not an expression of pleasure and also of legitimate efforts to - in a way justified - a preferential approach and not of an unconstitutional distinction between the parties (men and women) concerned, which is not based on objective and reasonable reasons and considerations. One of the essential features of the democratic rule of law is the principle of proportionality, which foresees, in particular, that measures limiting fundamental rights and freedoms must not, by their negative consequences, exceed the merits of the public interest in such measures.

28. Meritum of the case consists - as detailed above - in the legislation according to which, for the purposes of pension insurance, a man is considered to be a caring person under four years of age only if he has submitted an application to participate in insurance no later than two years after the end of childcare. It must be said - in agreement with the Senate of the Parliament of the Czech Republic and with the opinion of the Ministry of Labour and Social Affairs - that, as regards the person who is caring for a child under 18 years of age, if the long-term disabled is requiring exceptional care, this condition also applies to a woman (§ 5 (3), third sentence) and therefore no gender inequality can occur in this respect (see also paragraph 36 below). However, for the participation of a woman in a pension insurance scheme due to the care of a child under four years of age, the Pension Insurance Act does not provide for any administrative condition - unlike men - and therefore there is undoubtedly a clear inequality. The Constitutional Court therefore focused in particular on the examination of the constitutionality of the legislation consisting of the sentence of the second provision of Section 5 (3) of Act No. 155 / 1995 Coll., on Pension Insurance.

29. (a) According to the opinion of the Ministry of Labour and Social Affairs when preparing the draft amendment to the Pension Insurance Act, this requirement (mentioned condition for men) was crucial in seeking appropriate tools to prevent the evaluation of one and the same period of time of more insured persons; This is due in particular to the protection of the public interest, as the public interest must also be considered to be the efficient management of the funds intended to pay pensions at the level laid down by law. The Constitutional Court therefore questioned whether that objective could be considered sufficiently legitimate and in particular whether it was implemented in a manner appropriate to that objective. While it is clear that the efficient management of public funds is certainly in the public interest and that the legislator adopted a solution may even be admitted - particularly from the point of view of practice - to a certain relevance, it cannot be overlooked that this was done at the cost of establishing a significant gender inequality and at the price of discrimination against men who care for children under the age of four. Arguments with statistics (contained in the opinion of the Ministry of Labour and Social Affairs), showing that men are quite exceptional cases compared to the number of caring women and that setting the administrative conditions in question only for men (allegedly) requires "certain synergies" from a small number of persons (less than one promile), cannot stand from a constitutional point of view. On the contrary - logically speaking, the Ministry is contradictory to some extent here, because if there are such a negligible number of men, then the potential misuse of public funds would certainly not be of such a size as to enable the legislator to be justified at all, despite the fact that this fraction of the insured persons' circle is already, in some way, subject to the possibility of essentially unfair negotiations. On the other hand, even if the consequences of the measure were to be affected or could affect even a small group of people, that would be unconstitutional. As regards the objection in the Chamber of Deputies that a woman is excluded from that obligation because of the "practicality of such an exception," since the "model developed in our environment" would in these cases give rise to mere formality, it must be noted that in the rule of law, significant interference with fundamental rights or freedoms and the violation of the principle of gender equality cannot be justified only by their practicality in terms of interests and simpler practices of state authorities. Although restrictions on fundamental rights or freedoms may exceptionally also occur in the event of a collision with one of the public goods (public interest); In this context, however, the maximum is that fundamental right or freedom can be limited only in the event of an extremely strong and duly justified public interest, in a careful examination of the substance and meaning of the restricted fundamental right. Thus, the first condition is that there is a correlation between fundamental law and public interest (so-called false conflict - unlike the conflict between two fundamental rights), the second is the fact that the examination of the substance and the meaning of the limited fundamental law or freedom (Article 4 (4) of the Charter) has already been stressed. As usual, the inter-measure consists mainly of the following criteria: the first is the criterion of suitability, i.e. the answer to the question whether an institute restricting a fundamental right allows the objective pursued to be achieved; Another criterion is the necessity of comparing a legislative instrument restricting fundamental rights or freedom with other measures to achieve the same objective but not affecting fundamental rights and freedoms. (Note: This finding is not mentioned in more detail as it would be unnecessary.) From the point of view of the conditions cited, compliance with the principle of proportionality, the legal provision under examination, which significantly infringes the fundamental right resulting from the constitutional principle of equality, cannot stand; although it pursues as the main objective of efficient management of public funds, it does not, in particular, fulfil the requirement of a comparison of a legislative instrument limiting fundamental rights with others in relation to the measures that may be taken to achieve the same objective without interference with the constitutionally protected principle of gender equality. The exclusion of libel is, as is repeatedly emphasised above, in particular that any privilege or discrimination cannot be exercised beyond reasonable and objective criteria. However, for the reasons set out above, this is no longer the case.

30. In assessing, in particular, the criterion of necessity (as part of the proportionality test), the Constitutional Court also considered that the State and its authorities seem to have other ways of finding out or obtaining relevant information for the matter in a timely manner - using existing databases - (competent authorities, state or public authorities, for example, must know to whom they are paying a parental contribution or who is taking parental leave), without having to require the cooperation of the legitimate body (male), thus touching the area of freedom and, as a result, discriminating against it or violating the constitutional principle of equality in this respect. In a broader sense, this is also related to the attempt to eliminate unnecessary bureaucratic burdens, i.e. to use and connect effectively the information that various authorities (both state and public) have previously identified or could have detected in connection with their activities.

31. In this situation - in the context of Articles 1 and 3 (1) of the Charter of Fundamental Rights and Freedoms - discrimination is, in particular, in relation to the right to adequate physical protection in the old age referred to in Article 30 (1) of the Charter. The contested provision clearly infringes those articles, since the selected entities are discriminated against without sufficient grounds compared to those of others in a completely identical legal position. Thus, the Constitutional Court considers that the contested provision, consistently speaking, raises an unjustified inequality between those involved in pension insurance, which was established by the adoption of a compulsory application for participation in the insurance for men within two years of the end of childcare. In this respect, the Constitutional Court has therefore found no reason to reasonably explain the inequality in access to entities in the same situation as described above.

32. For the sake of completeness, it can also be noted that the arguments alleged consequences of the annulment of the contested regulation or of possible practical complications, as contained in particular in the quoted opinion of the Ministry of Labour and Social Affairs, do not stand up. Here, the Constitutional Court considers that - in its view - it is not the only alternative to the legislative solution to the question (in relation to the cancellation) to burden both men and women in the future by imposing an obligation to apply for insurance. However, it is not the task of the Constitutional Court, as a judicial body for the protection of constitutionality, to give the legislator detailed instructions on how to deal with the situation at the level of simple law; It is only his duty to assess whether or not the contested provisions of the law stand up from a constitutional point of view.

33. For this reason, it is also irrelevant in the opinion of the Senate of the Parliament of the Czech Republic that it is possible in some cases to resolve the delay in the resolution of the law's hardness; This could possibly have a place in the proceedings on a constitutional complaint, but not in the proceedings on compliance of legislation with the constitutional order. This is all the more true if the Constitutional Court finds that the contested provision is unconstitutional and cannot be interpreted in a constitutional manner. The fact that there may be a mechanism in the legal system that may sometimes allow the unconstitutional consequences of such a provision to be reduced or removed does not, of course, alter the unconstitutional nature of that legal provision itself; the obligation of the Constitutional Court to act as a guarantor of the constitutionality of the rule of law is, therefore, a derogation.

34. It cannot therefore be concluded that, by adopting the contested provision, the legislator did not maintain an obligation of equal access to law-makers and created different groups, one of which was unjustifiably discriminated against. In particular, there was a breach of the principle of proportionality between the objective of the law and the funds chosen. While the postulate of equality, as stated above, does not imply a requirement for general equality between all and all, it implies a requirement that the law does not, without justification, favour or disadvantage one before the others. In the present case, it is common ground that the requirement to grant the same rights under the same conditions - excluding unjustified differences - is not respected by the contested provision, since the legislator, without constitutionally acceptable reasons, has put those entities at a disadvantage which, although they have actually taken care of the child, may easily find themselves in a situation where - although otherwise lawful conditions are met - insurance will not be involved in the same situation, unlike those in the same situation. The contested provision thus constituted, in the view of the Constitutional Court, differences which cannot be justified in a sufficiently constitutionally qualified manner.

35. It remains only to be added that, in view of the categorical wording of the provision of the second paragraph of Paragraph 5 (3) of the Pension Insurance Act, there was no room for interpretation of the contested provision, which would be constitutional in order to allow the contested provision not to be annulled.

36. (b) As regards the provisions of Section 5 (3), third sentence of the Pension Insurance Act, the Constitutional Court, although - in another place (paragraph 28) - notes that, in the case of a childcare worker under the age of 18, if the long-term disabled is requiring exceptional care, the condition of the second sentence applies to a woman, so that there is no gender inequality. However, it cannot be overlooked that, by deleting only the second sentence of the provision of § 5 (3) of Act No. 155 / 1995 Coll., on pension insurance, the third sentence would lose its meaning, including the reference to the second sentence. Therefore, the Constitutional Court also complied with the application in that it annulled both the second sentence and the contested sentence of the third provision in question.

37.2) As regards the contested provision of Paragraph 6 (4) (a) (11) of Act No 582 / 1991 Coll., on the organisation and implementation of social security, as amended, in the parts expressed in the words "care of a man under four years of age, care of a child under 18 years of age, if the long-term severely disabled requiring emergency care, and" and the words "these children and ', the Constitutional Court concluded that the application for their abolition should be complied with for a similar reason to that was stated in the preceding paragraph. It is clearly a provision that is so relevant to the repealed provisions of the Pension Insurance Act (for this reason it was also proposed by the appellant for cancellation) that it is logically inseparable from and closely related to the repealed provisions of the Pension Insurance Act. However, the Constitutional Court points out in this regard that the whole situation requires a systemic approach by the legislator and a comprehensive solution to this issue, whereby there may be a change or deletion of others in a broader sense, taking into account the relevant provisions of the laws governing the material under examination.

38. For the reasons set out above, the Constitutional Court has accepted a reasonable delay in the enforceability of this finding, as it is the only way for the legislature to make a new constitutional adjustment to this issue.

39. The Constitutional Court, with the agreement of the parties, waived oral proceedings as further clarification of the case cannot be expected.

Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Stanislav Balík, Vladimir Krka, Dagmar Lastovecká and Jan Musil to decide on the full.