The Constitutional Court found no 6 / 2009 Coll.
The Constitutional Court found of 14 October 2008 on the application for annulment of § 3 paragraph 1 of Act No. 220 / 1991 Coll., on the Czech Medical Chamber, the Czech Dental Chamber and the Czech Pharmacy Chamber
Valid
Contents
I.
II.
III.
IV.
V.
VI.
VII.
VIII. Ochrana veřejného zdraví
IX. Systémy dohledu nad výkonem lékařského povolání
X. Svoboda sdružování
XI. Rozhodovací praxe orgánů Úmluvy
XII. Judikatura Ústavního soudu
XIII. Zákonné znaky České lékařské komory
XIV. Hodnocení návrhu na zrušení § 3 odst. 1 zákona č. 220/1991 Sb.
XV. K dalším námitkám navrhovatelů
XVI.
6
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 14 October 2008 in plenary in the composition of Stanislav Balík, František Duchoň, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krůk, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of a group of senators of the Senate of the Parliament of the Czech Republic on the abolition of § 3 paragraph 1 of Act No. 220 / 1991 Coll., on the Czech Medical Chamber, the Czech Stomatology Chamber and the Czech Pharmaceutical Chamber,
as follows:
Motion denied.
Reasons
Recital of the proposal
1. By application to the Constitutional Court on 25 May 2006, a group of Senators of the Senate of the Czech Republic, referring to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and pursuant to Article 64 (1) (b) of the Act No. 182 / 1993 Coll., on the Constitutional Court, that the Constitutional Court of the Conflict with the Constitutional Order, namely Article 4 (4), Article 20 (1), Article 26 (1) and Article 27 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "Act No. 220 / 1991 Coll."), which imposes to each of the Czech Republic of the Law No 220 / 1991 Coll. "
2. In particular, the appellants expressed their belief that "under the right of free association, it is also necessary to extend the right not to be associated, if the body is not interested in it ', or that the right of free association" within the meaning of Article 20 (1) of the Charter also includes the right to "not to be associated', with which the same constitutional protection is attached.
3. According to the applicants, the principle of compulsory membership of the Czech Medical Chamber, a "public-law corporation bringing together all doctors," puts everyone before the choice between two constitutionally guaranteed rights; the right to the freedom to pursue a profession (Article 26 (1) of the Charter) and the right to join or not to join freely (Article 20 (1) of the Charter); If a doctor wants to "draw on" his right to the free exercise of his profession, he must be obliged to associate himself "in an organisation with which he (e.g.) does not want to identify himself," and vice versa, if he means to exercise the right not to associate freely, he must give up the right to pursue his profession.
4. The appellants declare that, when restricting fundamental rights and freedoms, it is necessary to conserve their substance and meaning, and therefore "it is necessary to resort to the minimum restrictions that still lead to the desired objective, and to choose a limit proportionate to the importance of the objective pursued ', while" the entire system of restrictions is then governed by the principle of subsidiarity, where restrictions cannot be applied where the desired purpose can be achieved without limitation'.
5. In the light of Article 26 (2) of the Charter (Article 4 (4)), the need for a pre-marked "choice 'is acceptable to the appellants only if it is needed to achieve a constitutionally legitimate objective and is proportionate to the meaning of the purpose pursued.
6. The appellants identify this constitutionally and discussed purpose with an understandable need to establish an appropriate regulatory framework for the profession of doctor, as it requires exceptional expertise and care and its performance directly affects the fundamental interests of individual individuals in preserving their life and health. They recognise that "it is certainly a legitimate and constitutionally acceptable objective of the State to seek adequate regulation of the provision of medical care and to supervise the quality of the services provided ', as" interference in the physical integrity of individuals carried out by doctors is often an extremely technical and ethically demanding and at the same time irreversible or difficult to repair'. State supervision is therefore a legitimate interest, according to the appellants, which is capable of justifying the restriction of fundamental rights and freedoms, and therefore the "legislator has chosen a path 'which" pursues a legitimate objective'; the applicants do not even dispute that the professional chamber (the Czech Medical Chamber) is competent by law to supervise this purpose.
7. The compulsory association in the Czech Medical Chamber, however, according to the applicants, is not the only way to manage "public health affairs," in particular to oversee the profession of doctors and guarantee their professional qualifications. It is not necessary if an alternative to "equally effective regulation 'is available, namely through" direct exercise of state administration', in which the State would establish professional and other requirements for the exercise of the profession and check that it is observed directly by its executive bodies, without forcing individual doctors to identify themselves with a "state organisation '(i.e. without interference with the constitutionally guaranteed right of association or non-association).
8. To support a "model with optional membership in the medical chamber," the applicants stated that "it is widely extended in Europe," it does not show any special disadvantages to the system existing in the Czech Republic and, by not touching the constitutionally guaranteed right of association, it is "more acceptable from the point of view of the constitutional order of the Czech Republic."
9. If, for example, in the case of advocacy, "an association in a corporate body of a professional chamber" is clearly necessary, because its performance "is very often directed against the State, its interests and authorities, whether it is a defence in criminal proceedings, an action against the State for damages, administrative actions, etc. ', in the case of a medical profession, there is no particular reason why it is to construct supervision of its performance by the professional administration, since, according to the appellants," there is not a sufficiently ambitious relationship between doctors and the State which would justify their necessary isolation from the state administration - and thus forced their compulsory association in the Chamber'.
10. The applicants then consider it important that the public projects the positions held by the Czech Medical Chamber against individual members; This is largely perceived because the Czech Medical Chamber is a "corporation, that is, a legal person with its own actions, own will, own attitudes, reputation, objectives and values," and "operates a factual activity, communicates with its surroundings and participates in actions that are somewhat perceived by the public," "acts politically, expresses itself on economic and political issues, takes political positions, supports one or the other government or non-governmental health concept, prefers procedures with which a number of doctors agree and disagree, etc.," and "is closely associated with the Ministry of Health, which directly affects it." "This awareness, this reputation and the sound of the CLK ', according to the promoters, are bound to be more or less passed on to the members of the chamber and those who are identified with it may bear a" displeasure' that they are associated with the public with activities with which they "disapprove" or consider them an attack on their own interests.
11. According to the appellants, the legislature did not thereby respect the criterion of necessity if the constitutionally guaranteed rights of individuals, i.e. freedom of association, were limited to a legitimate purpose, "but not necessarily and therefore inadmissible." "if such an association is not necessary - and comparison with abroad shows that it is not - it cannot be called an unconstitutional requirement by such a compulsory association."
12. Finally, the appellants took the view that the Constitutional Court should "postpone the enforceability of the annulment" for a good time, "where appropriate, so that the legislator could adapt the concept of health care administration to the membership of the Czech Medical Chamber, which would no longer be mandatory.
Comments, opinions and replies
13. The Constitutional Court, in accordance with the provisions of Section 69 of the Law on the Constitutional Court, facilitated the application for the initiation of proceedings by the parties - the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, and, above this legal framework, also addressed the institutions concerned, namely the Ministry of Health, the Czech Medical Chamber and the Association of Health and Social Welfare of the Czech Republic; the statements submitted by them were intimate with the plaintiffs, and they then submitted a reply to them.
Chamber of Deputies of Parliament of the Czech Republic
14. The Chamber of Deputies, in its observations of 1 February 2007 signed by President Ing. Miloslav Vlček, stated in particular that the legislature (the former Czech National Council) acted in accordance with the prescribed procedure when discussing draft law No 220 / 1991 Coll. and at the same time that the law adopted was not contrary to the Charter of Fundamental Rights and Freedoms. According to the President of the Chamber of Deputies, the promoters of the bill were aware that they were out of the concept of a series of chambers, which are usually built "as a prestigious association," while the mission of the medical chambers is turned outwards, to the civil public, who wants to protect the quality control of professional medical care, and to act as a fundamental control cell, which will be primarily of patient concern. The chosen organisational principle was the only possible from a practical point of view, according to the petitioners, based on the possibility of limiting the right to free association resulting from Article 20 (3) of the Charter, takes into account the right to health protection, as incorporated into Article 31 of the Charter, and therefore does not constitute a non-discriminatory restriction in view of the professional aspects of the property. The Chamber of Deputies pointed out that the repeal of § 3 (1) of Act No. 220 / 1991 Coll., without prejudice to similar provisions of § 3 (2) and § 3 (3) of the same Act, which regulates compulsory membership of the Czech Dentistry Chamber and the Czech Pharmacy Chamber, would necessarily be unsystematic and would lead to "certain discrimination."
Senate of Parliament of the Czech Republic
15. The Senate of the Parliament of the Czech Republic did not participate in the legislative process (in relation to the contested provision), but participated in the legislative amendments to Act No. 220 / 1991 Coll., namely implemented by Act No. 285 / 2002 Coll., on the Donation, Collection and Transplantation of Tissue and Organs and on the Amendment to Certain Laws (Transplant Act), and Act No. 111 / 2007 Coll., amending Act No. 20 / 1966 Coll., on the Care of the People, as amended, and certain other laws, and, accordingly, the right to comment on the proposal of the Proposers used [and contrario of the Constitutional Court of 27 / 6 / 2000 sp.
16. In its observations of 2 February 2007, authorized by the Senate President MUDr. Sobotka, it is recalled that "there is a wide range of medical professional chambers with compulsory membership of doctors [of varying degrees], such as Austria, Germany, Belgium, France or that Ireland, Canada, Great Britain have compulsory registration ', and that a similar issue (compulsory membership of a medical chamber) was addressed by the European Court of Human Rights in the decision of" Le Compte, Van Leuven and De Meyere v Belgium of 23 June 1981 and Albert and Le Compte v Belgium of 10 February 1983', where the professional chamber (in the case under consideration of the Belgian Medical Chamber) could not be considered to be an association within the meaning of Article 11 of the Convention on Human Rights and Fundamental Freedoms (hereinafter referred to the Convention), "the obligation to be registered in its list and not subject to the authority of its institutions, and thus less suppressed by the law. It is in consideration, it is stated in the statement whether the obligation of any doctor who carries out a medical profession in the Czech Republic to be a member of the Czech Medical Chamber can then not be assessed" analogous... even in relation to the Charter. "In his observations, the President of the Senate also stated that the appellants did not contest the unconstitutionality of also compulsory membership of the Czech Dental Chamber and the Czech Pharmacy Chamber.
Ministry of Health
17. In its Opinion of 29 March 2007, the Ministry of Health (hereinafter referred to as "the Ministry '), represented by Minister MUDr. Tomáš Julínek," while recognising "the specific nature of self-governing public corporations and their differences between associations in the true sense (voluntary associations) and associations intended to defend exclusively the socio-economic interests of their members, as a fully sufficient condition for the" non-application of Articles 20 and 27 of the LZPS in their entirety', does not perceive these circumstances. Moreover, according to the Ministry, when assessing the constitutional conformity of the contested legislation, it is necessary to base its assessment not only on Articles 20 and 27, but also on Article 26 of the Charter in conjunction with Article 4 (4) thereof, and to examine whether the statutory compulsory membership of the professional chamber does not undermine the very nature of the right to free choice of profession.
18. The Ministry recalled the three components of the proportionality test, namely the criteria of suitability, necessity and measurement in the collision of standing values according to their "severity."
19. It is of the opinion that the criterion of suitability "only partially fulfilled at best ', since undoubtedly the legitimate public interest can be" significantly more appropriate' by means of a method of direct administration, without conflict of interest for members to defend these public corporations, with the interests of the company. A self-governing corporation with a compulsory membership according to the Ministry "clearly attaches to a form of cartelisation, which, compared to the provision of services by the health industry under standard, albeit regulated conditions, leads to lower efficiency in the management of financial resources as well as to a deterioration of the quality of health care '. The Ministry also pointed out that the" breadth of the independence of the CLK' does not have a public equivalent in comparison with the European chambers of power.
20. From the point of view of necessity, the principle of compulsory membership of the Czech Medical Chamber according to the Ministry will not stand "unequivocally" because the objective pursued can be achieved again (for example) by "direct performance of the administration." While this will also be about limiting the right to free choice of employment, "every doctor will have to assume that an institution will oversee its activities', but this system, the Ministry means, is characterised by the greater" implicit 'independence of the state body exercising the direct exercise of the administration compared to the Czech Medical Chamber, whose elected officials are clearly motivated to defend their interests rather than those of their potential competitors (candidates for membership) or public interest, for example "on a thorough examination of the specific failures of individual members'.
21. While, according to the Ministry, as regards the criterion of "seriousness", it is true that, in view of the unquestionable public interest which is present here, "no measure or obligation imposed to ensure the maximum quality of care for human health cannot be considered inadmissible with reference to interference with a certain constitutionally guaranteed right," this is without prejudice to the argument on the greater effectiveness and impartiality of supervision of the exercise of the medical profession by a State body compared to "completely independent corporations." On the other hand, the Ministry recognises that the conditions attached to the creation and existence of membership (§ 4 and § 9 (2) of Act No. 220 / 1991 Coll.) do not constitute a disproportionate burden, and the obligation to pay "chamber 'contributions is also legitimate, provided, of course, that their amount is" proportionate'.
22. under "European" conditions, "two basic models are applied, according to the Ministry; the first implies a" very independent chamber with optional membership and significantly limited public power ', the second is a "chamber with compulsory and extensive public powers but largely subordinate to executive control'. According to the Ministry of Hybrids, the Czech Chamber of Medicine represents a hybrid which, with not only its legal rights," but also its practical functioning, "is out of line with the role of an independent but nevertheless self-governing body exercising public authority and" appears to have a tendency to intervene in the area covered by Article 27 of the LZPS in order to benefit both the former corporation and the quasi-trade union organisations which defend the economic and social interests of their members. "Experience shows, the Ministry states, that these roles are not always fully compatible, especially in the conflict of interest of members and public interest, especially when the applicable regulation lacks" insurance "similar" significant supervisory powers of the Ministry of Justice "over the Czech Bar Association.
Czech Medical Chamber
23. The Czech Medical Chamber, acting as President of MUDr. Milan Kubk, first, in its opinion of 6 February 2007 - on the issue of the status and competence of "professional chambers in a democratic legal state" - recalled the "self-governing traditions of our peoples," announced in the preamble to the Charter, and as a starting point to other considerations, stressed that the professional chambers, as a public body established by law and equipped with a certain scope of public authority, differ from "associations, companies, civil associations and other legal associations," which, on the contrary, have the character of private legal bodies. The fact that the proposal is directed only against the Czech Medical Chamber was then described as a non-systemic, "probably also politically purposeful" and "remarkable."
24. The Comoros pointed out that "the fact that someone is compulsory in a professional chamber does not mean any membership within the meaning of the association, even though Law 220 / 1991 Coll. uses this term, but the granting of rights, i.e. not the obligation to participate in this self-administration ', therefore Article 20 and 27 of the Charter cannot apply to professional chambers, as they affect only companies governed by private law. The term" member "of the Czech Medical Chamber is equivalent to the term" citizen of the state "or" member of the municipality, "and the imsuitability of the use of the category" membership "can, in its view, be demonstrated on Act No. 85 / 1996 Coll., on the advocacy, which completely knowingly avoids it in favour of the concept of" compulsory registration. "The possible attraction of the powers of the Czech Medical Chamber to the State, according to the Chamber, is not a" question in the level of constitutional law but in the level of political decision, "and would necessarily lead to the repeal of Act No. 220 / 1991 Coll. of the whole. It would then be necessary to create an" office' to take over the agenda of the Czech Medical Chamber, which would mean not only a commitment by the State to "pay it ', but especially problems with the establishment of a" team of officials', which, in the professional specificity of the exercise of the medical profession, would be able to "handle 'the current powers of the Chamber. On the question of the measure of constitutionally" protected values and their alleged collision', the Chamber stated that "the doctor does not in fact have a compulsory association in the medical chamber, but his registration (currently a member) is merely evidence of his fitness to pursue the medical profession and that he is also subject to the professional supervision of that chamber '; Therefore, the argument of the proposal is completely misleading in that it is not a denial of the right not to be associated under the supervision of the professional chamber established by the law.
25. According to the Chamber, the eligibility of the criticised legislation to fulfil the "purpose pursued 'is determined by the function of professional supervision and disciplinary function, if, on the contrary, the membership of the chamber would be selective or optional," the disciplinary authority and the full professional supervision of the chamber of the proper exercise of the medical profession would be impossible, since the possible exclusion of a physician from the chamber would not prevent him from continuing to pursue the medical profession'.
26. Nor is it appropriate to make a distinction between doctors "private 'and doctors" employees', and on individual specific cases, the Chamber justified why professional supervision should be maintained for the second category of doctors (for example, because not every case of ethical or professional misconduct of a doctor is a case which would justify termination of employment).
27. In relation to the "international context" of the Chamber stated that "the Council of Europe recommends replacing its Member States with the status of government bodies by the activities of professional self-government" and recalled that in a number of Member States of the European Union, the principle of compulsory membership of the relevant medical chamber applies; elsewhere the "principle of compulsory registration, which is not called membership, but as a result," the difference is rather semantic and in a way psychological. "
28. The Chamber rejected the objection that it was "political," and pointed out that in some cases (like in advocacy), "citizens' interests must also defend against the interests of the state, as is the case, for example, in the field of medical evaluation.
Department of Health and Social Welfare of the Czech Republic
29. In its opinion of 5.2.2007, The trade union of health and social care of the Czech Republic (hereinafter referred to as the "trade union"), by expressing the President of RNDr. Jiří Schlanger, first of all, stresses the importance of the distinction between a doctor-employee and a doctor performing a medical profession on his own account and his own responsibility (typically private practitioners, private outpatient specialists, etc.). Since, in the case of medical staff, the exercise of the profession is subject to direct control of the employer and is (essentially) responsible to third parties, they are "legally justified only by voluntary membership of the chamber ', or compulsory membership should be maintained exclusively with the head of the health care establishment (deputy for medical preventive care and primary care). According to the trade union, therefore, it is an alternative normative instrument, less restrictive of the constitutional values concerned, compulsory membership of the chamber for" private doctors' and "doctors' heads of staff for health care institutions', and direct administration in relation to others. As regards the conflict of constitutional values, the trade union, pointing to previous conclusions, expressed that the" conflict of fundamental rights "in the case of" medical staff of medical institutions "was not proportional and therefore not acceptable.
Replication of the applicants
30. In their reply of 18 May 2007, the applicants first outlined the arrangements for the supervision of the exercise of the medical profession in the selected European States (the Federal Republic of Germany, Austria, Belgium, Norway, the Netherlands, Ireland, the United Kingdom and Slovakia) and concluded that "the current system in the Czech Republic, which entrusts the unlimited powers of the Czech Medical Chamber without any supervision of the State, is completely different from other European systems which do not interfere in an undesirable way with constitutionally guaranteed rights."
31. They also stated that the "right to medical professional self-government" was not a constitutional right, and pointed out the views expressed in the legal theory that the constitutional concept of the exercise of public authority in the Czech Republic in the broad sense "is mezzanine and explicitly foresees only territorial authorities, without knowing the existence of other forms of self-government, such as the self-government of professional, economic, scientific, social, educational or academic" ("Constitutional Law of the Czech Republic 1, MU, Brno 2003"), and its "poor constitutional support" can only be found in the initial declaration of the Charter of Fundamental Rights and Freedoms, where the Constitution recognises the "self-governing tradition of our peoples."
32. The draftsmen oppose the observations of the Chamber of Deputies by reiterating that compulsory membership of a professional organisation is not the only conceivable solution, since the possibility of controlling and supervising individuals engaged in a particular profession is not based on compulsory membership in such a supervisory body but on the powers conferred on such an authority. The necessary expertise of control, repeated by the promoters, can be ensured by the state itself by its "medical experts." The question of the stress of the conditions of membership of the Czech Medical Chamber is, according to the applicants, "completely irrelevant," because, in any case (even if conditions were set "very minimal, such as currently") are "compulsory and forced." The repeal of similar provisions of Act No. 220 / 1991 Coll. concerning compulsory membership of the Czech Chamber of Dentistry and the Czech Chamber of Pharmacy was not proposed, since "it is necessary to interfere with the rule of law as little as possible" and "those chambers perform their functions rather better than the CLK and without undue excesses," therefore it is appropriate to leave the legislature to the amendment, which may also be unconstitutional.
33. In the context of the Senate's observations, the appellants questioned the accuracy of the reference to the judgments of the European Court of Human Rights of 23.6.1981 in Le Compte, Van Leuven and De Meyere v Belgium, complaint No 6878 / 75; 7238 / 75; and of 10.2.1983 in the case of Albert and Le Compte, complaint No 7299 / 75; 7496 / 76. The first judgment is based on a situation where members of the Belgian Medical Chamber and their interests have been and are still very strongly controlled directly by the State, which essentially speaks both to the establishment of members of the Chamber's bodies and to the wording of the important regulations of the Chamber or to disciplinary proceedings, and therefore, according to the appellants, is not applicable to different circumstances in the Czech Republic, where "The Member of the Czech Republic ', where" the trade union organisation or association of private law', does not in any way protect the minority views of "doctors', is politically involved and its members are" forced to pay for such a chamber '. As regards the second judgment of the European Court of Human Rights, the appellants state that, in its relevant part, "only reference' is made to the previous decision.
34. By contrast, the appellants refer to the "more recent case-law of the European Court of Human Rights', which" deals primarily with the right not to be associated 'and which does not explicitly exclude from it public bodies, as well as to the case-law concerning formal formation or legal entanglement, on the one hand, and the de facto effect of associations and corporations on the other ("§ 100 Chasagnou and Others v France, 29 April 1999'), or to the case-law which confirms the importance of the negative component of freedom of association - albeit in the context of" forced entry into a trade union '- of 11 January 2006' ("Sorensen and Rasmussen v Denmark ').
35. At the same time, the appellants suspected that the division of an association of public law from the concept of an association within the meaning of Article 11 The Convention is entirely expedient, since, above all, associations established by the law can be violated by the freedom not to join and not be forced to join, since private law associations can hardly have the means to secure and enforce compulsory membership in them; They add that "there is no difference in the wording of Article 20 of the Charter of Fundamental Rights and Freedoms for the application to an association of private or public law '.
36. On the contrary, the applicants identified the opinion of the Ministry of Health. Nor does it see the reason, particularly given the powers vested in the Czech Medical Chamber and its de facto "operation," for which it could be excluded from the scope of Article 20 and Article 27 of the Charter. They also raised the Ministry's argument that, in the exercise of the administration of this part of public affairs directly by the state body, this body will be more independent compared to the CLK, since its elected officials are logically motivated by their constituents to "defend their interests primarily as doctors, rather than the interest of patients, public interest." The plaintiffs have shown that they are in agreement with the Ministry also in judgment that the legal definition of the Czech Medical Chamber "significantly" deviates from the "European modifications to medical chambers." They also pointed out that Article 11 (2) The convention is enshrined in the criterion of "necessity," with the "necessary word not being as flexible as words useful or appropriate," and they assumed that it was precisely in the case of the legal regulation of the Czech Medical Chamber that there was confusion between "necessity" and "suitability."
37. The opinion of the Czech Medical Chamber is "fundamentally disagreed" if it is claimed that the current membership of the Medical Chamber is "only of the nature of the registration '; Although not at all times mandatory membership of the medical chamber is in itself unconstitutional, its inconstitutionality is founded" only in the context of the adaptation of the medical chamber, which, in the case of the CLK, comes close in some respects to the association of private law. "According to the appellants, it is not right to believe that, in the case of optional membership, supervision by the Chamber would become impossible, since it is possible to consider a system" similar to English, "" where... the Chamber is subject to the supervision of all registered doctors, while the Chamber even establishes its own ethical code. "The conventions of the Council of Europe referred to by the Chamber do not directly affect the professional self-government, but only the local authorities, and the recommendations of the Committee of Ministers are not legally binding on the Member States of the Council of Europe. As regards the Chamber of Imported Relations of the Doctor and the State, the appellants argue that, in the context of the assessment activity, the doctor is rather in a position of a" quasi-body' of the State and its activity is directed against the patient and not against the State as claimed. The Comoros's comments - as a whole - are, at the end, assessed by the appellants by "its natural desire to remain in the current position of a self-governing state organization, which has all conceivable powers without any responsibility and control '.
38. The appellants then acceded to the trade union of health and social care of the Czech Republic as long as it is necessary to take into account the differences between the two types of exercise of the medical profession (i.e. by private doctors and doctors), but they also stressed that "if freedom is guaranteed to bring together freely to protect the economic and social interests of everyone, they must pay equally for both doctors and doctors."
39. On 6.6.2007 The Constitutional Court received "Complement of the opinion of 18 May 2007 on the magazine ČLK ', which was annexed to 15 copies by the Czech Medical Chamber issued by Tempus medicorum, year 2007, No 5. The applicants explained that they did so so that the Constitutional Court could" draw an immediate picture "with this" card "of the Czech Medical Chamber.
40. Finally, on 30 June 2008, the appellants submitted a further "Complement of their observations," in which they announced the controversy with "the advocates of compulsory membership," referring to the arguments previously put forward, develop it in detail and detail. They reject the comparison of self-government and state power, as well as the argument that places citizenship and citizenship in one plane with compulsory membership in a state organization. "From this point of view" is said to have a sense of territorial self-government, but it focuses on local affairs, and "unlike the CLK, it does not normally issue politically reserved press" and "promote the views of a particular political party." Citizens, if they do not agree with the speeches of their community, can change it, which is not possible for a doctor, even if the outer speeches of the Chamber reach a level "not similar to the pre-November Red Law," and resemble "rather the basic organisation of one political party," which the applicants document by adding another figure in Tempus medicorum. The appellants acknowledge that the establishment of a self-governing professional chamber is a "political decision only," which in itself is not an intervention in the constitutionally guaranteed fundamental rights, and that it does not always have to be a compulsory membership of an unconstitutional one, but they recall what they said earlier, that it is only "in connection with the treatment of a medical chamber," when the association of private law approaches. Repeatedly, "absurd" is the view that the obligation is not linked to compulsory membership, but to the right to participate in self-government, because doctors are now "only entitled to choose whether to pursue their profession or not." Again, they contradict the view that Articles 20 and 27 of the Charter of "professional chambers' do not apply, since, as they have also already said," the legislator, by using the concept of membership and by regulating its activities, has brought the CLK closer to the private-law association ', and the CLK is indeed reflected in its factual activity. Although it is always necessary to keep a "list of doctors from which to verify their competence to pursue their professions', this does not justify compulsory membership of the CLK according to the applicants, as this can be entrusted to the competent national authority. Finally, the appellants consider the argument that the Chamber is acting against the State in the protection of the health of citizens (thus approaching the Bar Chamber), because - among other things - until now, as demonstrated by" historical experience, "it is not for the protection of patients, but for the interests of its own doctors and, respectively, their" usually financial "requirements. The applicants summarise that compulsory membership is not justified either by the need to keep a list of doctors or by the protection of patients, as the first task can be ensured without compulsory association in the CLK and the second Chamber" does not fulfil and cannot, by its very nature. "The claim that taking over the tasks of the Chamber by the State would be ineffective" in view of the specificities of the medical profession, "is, in their view, a" mere speculation "which is refuted by the regulations that" work "abroad.
Oral proceedings
41. At oral hearing, representatives of the procedural parties (representatives of the applicants and the person entitled to act for the Chamber of Deputies) summarised the arguments contained in the written submissions previously made. The representative of the appellants stressed in particular the specifics of the legal regulation of the Czech Medical Chamber consisting of its extraordinary autonomy in the absence of State supervision, including indistinct judicial supervision. The representative of the Chamber of Deputies objected to this and made it clear that the Authority generally considers it a "more correct" system for organising the exercise of the medical profession than the administration of the state.
Active legitimacy of the applicants
42. The appellants of Article 87 (1) (a) of the Constitution, according to which the Constitutional Court decides to repeal the laws or their individual provisions, in conjunction with Article 64 (1) (b) of the Law on the Constitutional Court, if they are contrary to the constitutional order, in accordance with which the application for annulment of the law or its individual provisions within the meaning of Article 87 (1) (b) of the Constitutional Court. (a) a group of at least 17 senators shall be entitled to submit the Constitution. This condition is fulfilled in the present case.
Constitutional conformity of the legislative process
43. According to Article 68 (2) of the Law on the Constitutional Court, when deciding on the annulment of laws and other legislation under its Part Two, Title Two, Section 1, the Constitutional Court also assesses whether the contested law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. However, this requirement can only be applied effectively if the constitutional arrangements on the basis of which the legislation under review has been adopted are effective; It follows that, for legislation issued before the entry into force of Constitutional Act No. 1 / 1993 Coll., the Constitution of the Czech Republic, the Constitutional Court is entitled to review only their content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and observance of the normative competence [cf. the finding of the Constitutional Court of 6.10.1999 sp. zn. Pl. ÚS 9 / 99 (N 135 / 16 SbNU 9; 289 / 1999 Coll.)]. The case in question also falls to the full if Law No. 220 / 1991 Coll. was approved by the former Czech National Council on 8.5.1991 and became effective on 1.6.1991, i.e. before the Czech Constitution became effective; However, the contested provision of Paragraph 3 (1) was not affected by any amendment to this law already in the relevant period (i.e. Law No 285 / 2002 Coll. and Act No 111 / 2007 Coll.). Moreover, the corresponding procedural deficit was not contested by the appellant.
44. Following this finding, the Constitutional Court took the view that the content of the contested provision of the law was consistent with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution].
Article 3 (1) of Act No. 220 / 1991 Coll.
45. Paragraph 3 (1) of Act No. 220 / 1991 Coll., which the applicants attacked, reads: Any doctor who carries out a medical profession in medical and preventive care in the Czech Republic must be a member of the Czech Medical Chamber.
Self-administration and constitutional order of the Czech Republic
46. The questions of professional self-government are open to constitutional review at a lower frequency than that of the local government, and their factual assessment in the case-law of the Constitutional Court is also unnecessary. It can be pointed out in the teaching the concept (apart from self-administration) of "other forms of public administration," where the self-government includes the professional, academic, economic, insurance and education (Filip, J.: Constitutional Law of the Czech Republic. 1, Basic concepts and institutes. Constitutional foundations of the Czech Republic. Brno: Masaryk University, nakl. Adplněk, 2003, p. 501).
Territorial Authority
47. The Constitutional Court, found on 19.11.1996 sp. zn. Pl. ÚS 1 / 96 (N 120 / 6 SbNU 369, 375; 294 / 1996 Coll.), stated that "it considers the local authorities to be an indispensable component of the development of democracy. Local government is an expression of the right and ability of local authorities, within the limits of the law, under its responsibility and in the interests of the local population, to regulate and manage a part of public affairs. 'In the finding of 9.7.2003 sp. zn. Pl. ÚS 5 / 03 (N 109 / 30 SbNU 499; 211 / 2003 Sb.) added that according to the initial thesis on which the concept of self-government is built, the foundation of a free state is a free community, then (from the point of view of regional significance) at a higher degree of territorial hierarchy of the self-governing community of citizens, the region.
Professional self-government
48. The Constitutional Court, in relation to the profession of veterinary surgeon, in the judgment of 16 April 2003, sp. zn. I. ÚS 181 / 01 (N 58 / 30 CollNU 97), expressed itself in such a way that it was "related to the so-called self-government, namely to professional chambers with compulsory membership, bringing together self-employed individuals in certain professions, where a strong public interest in their proper performance was given. These chambers are legal persons governed by public law, established by law, with the right to issue different internal rules for the Chamber and its members, who must submit to them with regard to compulsory membership. The Chamber thus exercises certain powers over these members - members of a particular professional state - which typically include... disciplinary authority." As an obiter dictum Constitutional Court on the problem of "whether or not membership of the Chamber of Veterinary Doctors of the Czech Republic is compulsory," he added that, because of the compulsory membership of the Chamber and the public interest in the exercise of the profession '(as well as the proper activities of lawyers, notaries, doctors, pharmacists, patent representatives, etc.), the Chamber is entrusted "with certain authority to guarantee this requirement. The very existence of any self-government, by principle, limits state bureaucracy, allows people to take immediate care of things that are directly affecting them, thereby contributing to greater freedom and individual autonomy. Therefore, professional self-government is also supported by a democratic rule of law." "However, also in its activities, it is necessary to insist on the unconditional respect of fundamental rights and freedoms under the protection of an independent judicial authority and within it as an" ultima ratio "under the protection of the Constitutional Court as a judicial authority for the protection of constitutionality'.
49. Article 21 (1) of the Charter, which guarantees citizens the right to participate in the administration of public affairs (Filip, J.: Constitutional Law of the Czech Republic. 1, Basic concepts and institutes. Constitutional foundations of the Czech Republic. Brno: Masaryk University, nakl. Supplement, 2003, p. 502). It is not against the question to refer also to the preamble to the Charter, which "The Federal Assembly, based on the proposals of the Czech National Council and the Slovak National Council,... following the democratic and self-governing traditions of our peoples... decided on this Charter of Fundamental Rights and Freedoms."
50. Otherwise, in constitutional order, there is no explicit support for the creation of this type of self-government, and the requirement to establish so-called professional chambers is not from here on the legislator.
51. Legal theory concluded that, although the Constitution does not explicitly regulate public bodies other than local authorities, this certainly does not mean that they are excluded (Filip, J.: Constitutional Law of the Czech Republic. 1, Basic concepts and institutes. Constitutional foundations of the Czech Republic. Brno: Masaryk University, nakl. Adplněnek, 2003, p. 503); After all, there is the "principle of a democratic state under Article 1 (1) of the Constitution of the Czech Republic and the unwritten principle of a social state for which the principle of participation in the administration of public affairs should also apply and, more importantly, the administration of matters directly affecting citizens and which must be organised in a way or other way" (p. 506).
52. Therefore, even if it could be agreed with the appellants that a direct constitutional legal support for professional self-government is "poor," the said self-government is not entirely neutral in this context, and favourable assessment tendencies, particularly in relation to the "state administration" which they confront, are familiar.
53. The decisive aspect for the organisation of supervision of the exercise of a medical profession is thus - in a situation where the existence of a special constitutional guarantee of the right to professional self-administration cannot be convinced - the protection of public health. Within these limits, constitutional order provides the legislator with relatively wide discretion on how to ensure it in particular; ensuring (organisation) the proper professional exercise of medical care (performance of the medical profession) is undoubtedly one (and important) requirement that this constitutionally established objective be achieved. Article 6 (1) Each Charter has a right to life and Article 31 provides that everyone has a right to health protection.
54. In accordance with the finding of the Constitutional Court of 27.9.2006 sp. zn. Pl. ÚS 51 / 06 (N 171 / 42 CollNU 471; 483 / 2006 Coll.), it is recalled that "the rights to life and health as laid down in Articles 6 (1) and 31 of the Charter of Fundamental Rights and Freedoms are absolute fundamental rights and values."
55. Similarly, the importance of life and health in the constitutional legal context can be imported from Article 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms (published in the Collection of Laws under No 209 / 1992 Coll.), Article 12 of the International Covenant on Economic, Social and Cultural Rights (proclaimed in the Collection of Laws under No 120 / 1976 Coll.), Article 24 of the Convention on the Protection of Human Rights and the Dignity of Human Beings (published in the Convention on the Protection of Human Beings of 12 January 1998), Article 11 and 13 of the Convention on the Protection of Human Rights and Immunity, as amended by the Protocol to the Convention on the Protection of Human Rights and Immunity in the Application of Biology and Medicine of Human Beings of 12. 1.
56. It is worth noting that according to the Council Conclusions on common values and principles in the health systems of the European Union (2006 / C 146 / 01) published in the Official Journal of the European Union on 22 June 2006, health systems are an integral part of the European Social Infrastructure. When discussing future strategies, the protection of the values and principles underlying the health systems of the European Union should be of common interest. The Council of the European Union has also taken note of the European Commission's intention to develop Community principles for safe, quality and effective health care by strengthening cooperation between Member States and ensuring clarity and certainty in the application of Community law in the field of health services and healthcare. According to the Declaration on the common values and principles of the health ministers of the European Union, on which the European health systems annexed to the above conclusions of the Council of the European Union are annexed, universal, access to quality care, equality and solidarity, which the various institutions of the European Union generally recognise in their work, are identified as fundamental values. All health systems in the European Union seek to focus primarily on the patient and respond to individual needs, but different Member States have different approaches to applying these values in practice. Health ministers have taken note of the growing interest in the role of market mechanisms (including pressure from competition) in managing health systems; In doing so, they stated that it was up to the Member States to establish their own approach with specific interventions designed for the health system.
57. Detailed information on the conditions of access to and supervision of the medical profession is provided by the World Health Organisation Regulation and licensing of physicans in the WHO European Region, issued in 2005, and available from http: / / euro.who.int / document / e87789.cf.
58. The professional association of doctors in France The National Medical Chamber (presented at http: / / www.conseil-national.medecin.fr /) has the character of a "public service" (service public); The law provides for the membership of a chamber as a condition for the practice of a doctor ("obligatorily brings together all doctors who practice medicine") and the Chamber decides on the appointment of doctors. The Chamber is responsible for the ethics and professional quality of medical care and is responsible for disciplinary action against its members. In Austria, the medical chambers of each country and the Austrian Medical Chamber (http: / / www.aerztekammer.at /), to which all doctors authorised to pursue the medical profession belong as regular members. The Chamber shall keep a list of all doctors in Austria authorised by the Land Chambers to pursue the profession, whether they are ordinary or exceptional, and shall also be entitled to disciplinary proceedings. The chambers are also called upon to protect and promote the working, social and economic interests of doctors. The Federal Medical Chamber (http: / / www.bundesaerztekammer.de /) is a central organisation in the system of medical self-administration in the Federal Republic of Germany. The status of medical chambers in the Federal Republic of Germany is governed by the laws of each country. In Bavaria, for example, there are regional and regional medical associations and medical chambers, and every doctor engaged in the profession (or resident here) has an obligation to report to the county medical association where he becomes a member after paying the contribution. The professional association in Belgium, which is called the Medical Chamber (http: / / www.ordomedic.be /), also has the status of a public-law corporation with a legal personality in which membership is compulsory and only those doctors registered in the Chamber list can practice medicine. The Chamber shall decide on the inclusion in the list of doctors, ensure that medical ethics and rules of practice are respected and conduct disciplinary proceedings.
59. By contrast, in the UK, it is intended to "protect, promote and maintain public health and safety 'the General Medical Council (http: / / www.gmc-uk.org /), which is characterised by the nature of the corporation (body corporation); all doctors must be registered with the Council. The Council consists of elected members (all registered doctors), other members are set up by designated institutions (universities with medical faculties, Royal College) and nominated by the Private Council. (Davies, M.: Medical Self-regulation. Crisis and Change. Medical Law and Ethics, Ashgate, 2007, p. 15 et seq.; Parliament of the Czech Republic, Chamber of Deputies, Parliamentary Institute: Status of medical chambers abroad, information base No 5.033, January 1994).
60. The conditions of the exercise of the medical profession in the first Czechoslovak Republic were regulated by Act No. 113 / 1929 Coll. on medical chambers (as amended by Act No. 176 / 1934 Coll. and No.), so (§ 3 (1)) that "all doctors who live permanently in the district of the medical chamber and practice medicine... are members of the medical chamber." This did not apply to doctors "established in the civil service (civil and military)" who were members of the chamber "only as far as their out-of-service practice is concerned." The Chamber had the character of a public self-governing corporation, and its Board of Honours exercised disciplinary authority (§ 27 (1)).
61. In view of the appellant set up by the framework of the constitutional assessment of the contested provision § 3 (1) of Law No 220 / 1991 Coll. the question of his conformity with the freedom of association or its establishment in constitutional order becomes crucial.
62. Article 20 (1) of the Charter, to which the appellants have pointed out, provides that the right to join freely is guaranteed and everyone has the right to join in associations, companies and other associations. Article 20 (3) The Charter may be restricted to the exercise of such rights only in cases provided for by law, where it is necessary in a democratic society for the security of the state, for the protection of public security and public order, for the prevention of criminal offences or for the protection of the rights and freedoms of others.
63. It follows from Article 11 (1) of the Convention that everyone has the right to the freedom of peaceful assembly and to the freedom to associate with others, including the right to establish or enter into trade unions in defence of their interests. Pursuant to Article 11 (2) of the Convention on the exercise of these rights, no restrictions may be imposed other than those laid down by law and necessary in a democratic society in the interests of national security, public security, the prevention of unrest and crime, the protection of health or morale or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of legal restrictions on the exercise of such rights by members of the armed forces, police and public administration.
64. The negative component of freedom of association (so-called "negative right to freedom of association") is generally understood as the possibility of freely choosing not to be a member of a particular association and the corresponding prohibition on any association to compel [cf. the finding of the Constitutional Court of 11.6.2003 sp. zn.
65. There is no doubt that the meaning and scope of the term "association" enshrined in Article 11 (1) of the Convention and in Article 20 (1) of the Charter, i.e. in the "general standard of association law" (Klíma, K.: Comments on the Constitution and the Charter. Pilsen: Aleš Čenek Publishing and Publishing, 2005, p. 757), are identical. The existence of the relevant difference and the reasons for it are not claimed by the applicants either.
66. The appellants refer, as mentioned above, to the claim that "the exclusion of an association of public law from the concept of association within the meaning of Article 11 of the Convention is entirely purposeful ', and that" the wording of Article 20 of the Charter of Fundamental Rights and Freedoms does not in any way imply a difference in the application to an association of private or public law', namely the difference between the Czech Medical Chamber and the Belgian Chamber of Medicine assessed by the European Court of Human Rights in the judgment of 23.6.1981 in Le Compte, Van Leuven and De Meyere v Belgium, complaint No 6878 / 75; 7238 / 75, and the "more recent case-law of the European Court of Human Rights'.
67. It is therefore necessary to consider whether Article 11 of the Convention and Article 20 (1) of the Ratione materiae are applicable in relation to the Czech Medical Chamber.
68. The interpretation determines, in accordance with the decision-making practice of the bodies of the Convention, that the concept of "association 'is standardized in Article 11 (1) The conventions must be given autonomous importance. Classification in national law has only a relative value and forms only a starting point.
69. The question whether the medical chamber is within the scope of Article 11 of the Convention was addressed by the European Court of Human Rights in the judgment of 23 June 1981 in Case Le Compte, Van Leuven and De Meyere v Belgium, complaint No 6878 / 75; 7238 / 75; and the decision on acceptability of 6 November 2003 in the case of Popov and Others, Vakarelov, Markov and Bankov v Bulgaria, complaint No 48047 / 99, 48961 / 99, 50786 / 99 and 50792 / 99 in the decision on acceptability of 8 July 1992 in the case of Simón v Spain, complaint No 16685 / 90. In such cases, the institutions of the Convention have found that the institutions under consideration are not associations within the meaning of that Article, so that intervention in the negative component of freedom of association could not take place through compulsory membership.
70. The European Court of Human Rights, in its judgment of 23 June 1981 in Le Compte, Van Leuven and De Meyere v Belgium, in complaint No 6878 / 75; 7238 / 75, dealt with the Belgian Medical Chamber. He stated that he was an institution of public law, established not by individuals, but by law, integrated into the state structure, and the judges appointed by the king were appointed to most of its institutions. The Chamber shall pursue an objective of public interest, namely health protection, by ensuring, under the relevant laws, the form of public control over the performance of medical practice; In particular, it shall be required to keep a list of the members of the Chamber under this competence. In order to carry out the tasks entrusted by the State, it enjoys certain administrative, as well as normative and disciplinary prerogatives outside the field of ordinary law, and therefore uses the legal means of public authority.
71. The European Court of Human Rights, in its decision on admissibility of 6 November 2003 in the case of Popov and Others, Vakarelova, Markov and Bankov v Bulgaria, complaint No 48047 / 99, 48961 / 99, 50786 / 99 and 50792 / 99, assessed the Bulgarian Union of Doctors and the Union of Dentists in Bulgaria (the Union). He recalled that the bodies of the Convention have a constant view of the regulatory bodies of the free professions in that they are not associations within the meaning of Article 11 of the Convention; normally the aim of these bodies established by the law of regulation and the promotion of professions, thereby performing significant public law functions aimed at protecting the public. Therefore, they cannot be compared to private law associations or trade unions and remain integrated into the state structure. The Court of First Instance must (nevertheless) consider in concreto whether - in the present case, both of the Union, characterised by its functions, structure and membership - they are associations falling within Article 11 of the Convention or are rather public bodies where it cannot intervene in the freedom of association of compulsory membership. In this context, it noted that the Union - like the Belgian Medical Chamber - pursued objectives in the public interest, namely health protection, by exercising public control over the performance of medical practice under the relevant legislation; In particular, they maintain registers of doctors and dentists, are entrusted with the establishment of rules and with disciplinary powers, propose codes of professional ethics for doctors and dentists, adopt rules of good practice together with the National Health Insurance Fund under the Law on Professional Organisations of Doctors and Dentists, and impose penalties for malpractice. The Court of First Instance therefore concluded that the Union was using public procedures. He also had to address the particular complaint of the complainants that the Union was private law associations because they were entrusted with the negotiation and conclusion of the National Framework Agreement with the National Health Security Fund, which they considered to be comparable to a collective agreement setting out the conditions under which doctors and dentists work and are remunerated (which is the task of trade unions, which is why the Union has the characteristics of trade unions falling within the scope of Article 11 of the Convention). However, the Court found here that the National Framework Treaty does not regulate such issues as wages and working conditions; the contract concerns payments which health care providers may require from the National Health Insurance Fund for the services of insured persons as well as the quality, quantity and manner of provision of such services. Thus, according to the Court of First Instance, the contract is more similar to a price control mechanism than a collective agreement. where an individual contract with the National Health Fund is chosen as an example, it is difficult to argue that this is a relationship similar to that between the employee and the employer. Although it is true that individual contracts negotiated by (private) doctors and dental practitioners have an extensive influence on the way in which they work and the prices they may charge insured persons, they are not similar to those of employment contracts, as they merely lay down the conditions under which they will provide services to patients and the amounts that doctors and dental practitioners may require from the Fund for the services provided. The Court recalled that the remuneration for health services provided to patients with another type of health insurance or without health insurance is not regulated by the Treaty. It also referred to the "recent 'decision of the Bulgarian Supreme Administrative Court, which found the Treaty to be equivalent to a secondary regulation and subject to judicial review. The Court of First Instance therefore held that the negotiations on the Treaty and its conclusion cannot be inferred from the fact that the Union plays the role of trade unions; the structure of the Union is described in detail in the Law on Professional Organisations of Doctors and Dentists, including the structure and function of the central and regional bodies of the two Union and membership of the institutions (the Union Statute addresses only secondary issues such as the precise number of members of the institutions and technical details of the institution-setting procedure). The Court also noted that membership of the Union is based on the decision of the individual to pursue a profession which requires specific legal regulation and not on other factors such as land ownership (and contrario report of the Commission of 30 October 1997 in Case No 25088 / 94, paragraph 89).
72. In its decision of 8.7.1992 in case Vialas Simón v Spain, complaint No 16685 / 90, the European Commission on Human Rights stated that the medical chambers in Spain are public bodies established by law and following the public interest - protection (public) health - by ensuring a certain public control of the exercise of medical practice and respect for medical ethics. Within the scope of the powers conferred on the State by the medical chambers, certain administrative and disciplinary privileges shall be enjoyed; Medical chambers also participate in the process of establishing legal and implementing standards, or give opinions on health proposals submitted by public authorities. According to the Commission, with regard to these competences granted to the medical chamber, it is appropriate to conclude that the association within the meaning of Article 11 of the Convention is not concerned. In the present case, the complainant argued that there were no chambers for doctors operating in the public sector than the associations foreseen by this Article, since in relation to them, the traditional functions of checking the performance of the medical practice and compliance with the medical ethics are carried out by the administration which employs them. However, with reference to the judgment of the Spanish Constitutional Tribunal of 17 July 1989, the Commission concluded that even the fact that the State ensures compliance with the legal and contractual obligations of the doctors employed by it cannot be compared - as requested by the complainant - to remove the competence of the medical chambers in relation to doctors employed in the public sector in order to control the exercise of medical practice and respect for medical ethics.
73. The institutions of the Convention have concluded that Article 11 of the Convention is not applicable to ratione materiae even in the case of other professional chambers.
74. It is also possible to refer to the partial decision of the European Commission on the acceptability of the European Commission of 12.3.1981 in Case No 8734 / 79 Barthold v Federal Republic of Germany on compulsory membership of the Council of Veterinary Doctors.
75. In its decision of 8 September 1989 on acceptability in the Reverse and Legallais v France, Complaints No 14331 / 88 and 14332 / 88, the Commission concluded in relation to the compulsory membership of the French Chamber of Architects that the statutory obligation to join the Chamber of Architects is aimed at protecting the public interest (interest not specified but also from the context of a case which can also be identified with the protection of the recipients of the services or of the public).
76. In its decision of 2 July 1990 on the admissibility in Case A and Others v Spain, complaint No 13750 / 88, the Commission made it clear that the public law bodies in Spain are governed by law and pursue an objective of general interest, namely the promotion of free and adequate legal assistance and thus the promotion of justice. The Commission noted that the inclusion in the list kept by the Chamber, which constitutes a preliminary and necessary condition for the performance of the lawyer's profession, is open to all those who fulfil the legal conditions. It then recalled that the professional chambers are not associations within the meaning of Article 11 of the Convention, according to the established decision-making practice of the bodies of the Convention.
77. The Court of First Instance, in its decision on acceptability of 3 April 2001 in case O. V. R. v. Russia, complaint No 44319 / 98, in relation to the question of membership of the Archangelic notary chamber, has again observed that the free trade chambers are not associations within the meaning of Article 11 of the Convention. The aim of these bodies set up by law is to regulate and promote these professions while at the same time carrying out public protection tasks. They cannot therefore be compared to trade unions, but remain integrated into state structures.
78. In its decision on the admissibility of 12 October 2004 in Case No 24057 / 03 Bota v Romania, the Court of First Instance also referred to its settled case-law, according to which free trade chambers are public bodies governed by law and pursuing objectives in the public interest, which is why Article 11 of the Convention does not affect them. The Court of First Instance once again emphasised that the Union of lawyers of Romania here was established by law and pursues an objective of general interest, namely the promotion of adequate legal assistance and the implicit promotion of justice.
79. From other decisions where the bodies of the Convention concluded that the bodies under consideration were outside the scope of Article 11 of the Convention, the decision on the admissibility of the decision of the European Commission on Human Rights of 6.7.1977 in the case of X. v. Sweden, complaint No 6094 / 73 (decision on the adoption of the Staff Council of the Association of "A. Student Tår '), the decision on acceptability of 12 April 1991 in the case of Halfon v United Kingdom, complaint No 16501 / 90 (Association of Students of the University of Exeter), decision on acceptance of 10 July 1991 in the case of Weiss v Austria, and the case of the European Court of Human Rights), the decision on acceptance of the Court of 14 September 1999 in the case of Austria, complaint No 3241 / 96 (decision of the Students of the Exeter University of 10 July 1998 in the Treaty of Sweden, complaint of 10 July 1991 in Case No 2721 / 96 (Student Union of the Stockholm University of the Stockholm University of the European Union), and the European Court of the European Court of Human Rights of 14.
80. For the sake of completeness, it should be noted that, on the contrary, the intervention in the negative aspect of freedom of association, contrary to Article 11 of the Convention, was found by the European Court of Human Rights (as regards membership of trade unions), or in the judgment of 13.8.1981 in Case No 14327 / 88, Case No 254.1996 in Case No 25088 / 95, Case No 7601 / 76, 7806 / 77, judgment of 20.4.1993 in Case No 16130 / 1993 in Case No Sibson v United Kingdom, Case No 14327 / 88 and Others in Case No 254.1996 in Case No Gustafsson v Sweden, Case No 15573 / 89, judgment of 11.1.2006 in Case No Sorensen v Denmark, Case No 52562 / 99 and 52620 / 99, then in Case No 306.1993 in Case A Sigurdur.
81. The Constitutional Court expressed its views on the characteristics of the professional chambers in the above mentioned finding of 16.4.2003 sp. zn. I. ÚS 181 / 01, N 58 / 30 SbNU 97 (see paragraph 48). He also identified the definition of doctrine in the finding of 25.6.2002 sp. zn. Pl. ÚS 36 / 01, N 80 / 26 CollNU 317; 403 / 2002 Coll., based on the aspects defining the concept of public authority; for them he had the factors of public purpose, the way in which he was established and the powers conferred on him.
82. In view of the constant constitutional court's views on the importance of its own precaselaw, as well as the decisions of the bodies of the Convention, in particular the European Court of Human Rights, and their consequences for the assessment of a particular case, it is sufficient to state that the Constitutional Court is based on both (as set out in sections X. and XII above).
83. It therefore focuses on the question of whether the opinions expressed so far in these sources concerning so-called professional self-administration or so-called professional chambers in relation to Article 11 of the Convention and Article 20 (1) of the Charter are applicable to the Czech Medical Chamber. In doing so, it is not mentioned that the interpretative aspects presented have an indicative value mainly in their overall sounding.
Establishment of the Czech Medical Chamber
84. The Czech Medical Chamber was established by law (the provision of § 1 paragraph 1 of Act No. 220 / 1991 Coll.) and defined as a self-governing non-political building organisation gifted with legal personality and bringing together all doctors registered in the list (§ 1 paragraph 2 and 3 of Act No. 220 / 1991 Coll.).
85. It is therefore characterised by the same form of establishment as other professional chambers which, according to the decision-making practice of the bodies of the Convention, are outside the scope of Article 11 of the Convention. The law of the Czech Republic (§ 1 paragraph 1 of the Act No. 220 / 1991 Coll.), the Chamber of Patent Representatives of the Czech Republic (§ 22 of the Act No. 237 / 1991 Coll., Act No. 417 / 2004 Coll., Act No. 417 / 2004 Coll., on the Chamber of Veterinary Physicians of the Czech Republic (§ 23 of the Act No. 360 / 1992 Coll., Act No. 358 / 1992 Coll., Act No. 381 / 1991 Coll.), Czech Chamber of Architects and Czech Chamber of Authorized Engineers (§ 35 of the Act No. 29 of the Act No. 358 / 1992 Coll., Act of the Law of the Law and their Activities (notaries)), Czech Chamber of Architects and Czech Chamber of Authorized Engineers and Techniques (§ 23 of the Act No. 35 of the Law.
86. The form of establishment of the Czech Medical Chamber already attaches to the view that it is an institution which identifies itself with those which have been dealt with by the bodies of the Convention as public bodies (see paragraphs 69. to 79. above), and at the same time differs from the associations which the European Court of Human Rights assessed in the appellant's judgment of 29.4.1999 in Case No 25088 / 94, 28331 / 95 and 28443 / 95 in Chassagna and Others v France. The approved municipal association of hunting here remained the "private law institutions', with Law No 64-696 of 10.7.1964, known as" Loi Verdeille ', then represented the "call for membership of the association established under the Law of 1901', which affects (paragraphs 32 and 99 of the judgment cited) the association of private law [that does not call into question the judgment on the relative value of the fulfilment of that criterion, as is given, for example, in relation to the creation of a" private law 'public limited company under the basis of Act No 77 / 2002 Coll., on the public company of the Czech Railways, the State organisation of the Railway Infrastructure Administration and the amendment of Act No. 266 / 1994 Coll., on Drams, as amended by the Act No 77 / 1997 Coll., as amended; cf. sp. zn. III. ÚS 63 / 06.
Mandatory membership
87. Similarly, the "forced" membership under Section 3 (1) of Act No. 220 / 1991 Coll. brings the Czech Medical Chamber closer to the public law corporations according to the caselaw summary in Section XI. and XII, and is then merely a platonic objection that it is "the exclusion of an association of public law from the concept of association within the meaning of Article 11 of the Convention" totally "purposeful." The appellants' consideration that "private-law associations can hardly have the means to secure and enforce compulsory membership 'is then also in conflict with the ambition to establish compulsory membership with" private-law institutions' or associations within the meaning of Article 11 of the Convention, which are already evidenced by the matters examined by the European Court of Human Rights and listed in paragraph 80 above.
Supervision of the medical profession
88. If the Czech Chamber of Medicine, pursuant to § 2 (1) (a) and (b) of Act No. 220 / 1991 Coll. ensures that its members carry out their profession professionally, in accordance with its ethics and in the manner laid down by the laws and regulations of the Chamber, or guarantees the expertise of its members and confirms compliance with the conditions for the exercise of the medical profession under special regulations, the purpose of its establishment is to ensure the proper exercise of the profession at all, and taking into account its nature (see Section VIII. "Protection of public health") - beyond any doubt - "the performance of public law tasks to protect the public."
Article 1
89. Paragraph 2 (1) (a) of Act No. 220 / 1991 Coll. presupposes that the Czech Medical Chamber issues the "Regulations of the Chamber," and Article 15 (2) confers on it the power to "approve, amend and revoke the organisational, negotiated, electoral and disciplinary rules." This - norm - power is exercised by the Congress of Delegates, which is attributed to the authorisation to issue ("approval ') and other rules of the Chamber, which is derived from a demonstration of the authority's competence. The normative power is also characteristic of other professional chambers and one of the most complete can be the adjustment embodied in Act No. 85 / 1996 Coll., on the Advocacy, (§ 49-53).
90. The autonomous legislative power, binding on the members of the chamber, thus constitutes a "constitutional element of the public authority entrusted to the public body" (Beran, K.: Legal persons governed by public law. Praha: Linde, 2006, str. 63).
91. This conclusion, decisive in terms of the subject under consideration, is no longer a material solution to the question of a possible review of this standard ("state regulations'). However, it is doubtless not to be subject to judicial review of decisions of the Comoros authorities affecting the legal status of its members, or to the fact that, beyond judicial protection, the obligations arising from the rules on the status of individual members may be situated (cf. After all, the appellants' objection that there is no relevant judicial supervision is clearly different from the compulsory membership institute, which is here - exclusively -.
Personnel and disciplinary authority
92. The Czech Medical Chamber keeps a list of members [§ 2 (1) (e) of Act No. 220 / 1991 Coll.] and a list of visiting persons [§ 6a (1) of Act No. 220 / 1991 Coll.]. The public nature of the entries in the lists kept by the Czech Medical Chamber is maintained even in the minimum area of administrative discretion provided for in the provisions of Sections 4 and 6a (2) of Act No. 220 / 1991 Coll.; the applicant for registration in the list of members of the Chamber which was not registered by the Chamber or if the minutes were not made in time, has the right to seek protection in court (Sections 6a (11) and (7) of Act No. 220 / 1991 Coll.).
93. Even after the effective date of Act No. 95 / 2004 Coll., on the conditions for obtaining and recognising professional competence and specialised competence for the performance of the medical profession of a physician, dental practitioner and pharmacist, as amended, the Czech Medical Chamber remains competent to determine the conditions for the performance of the private practice of its members and for the performance of the duties of professional representatives under the special regulation and of the heads of physicians and primary practitioners in non-state medical institutions and to issue certificates of compliance with these conditions [§ 2 (2) (c) and (d) of Act No. 220 / 1991 Coll., State Regulations No. 11 - Licensing Order]. The possibility of judicial review is also maintained here (§ 2 paragraphs 3 and 4 of Act No. 220 / 1991 Coll.).
94. In the "staffing" context, it is also appropriate to point out the possibility of the Czech Medical Chamber to participate in the selection procedures in the casting of health management posts, to require from its members documents related to the exercise of the profession, to express its views on the conditions and manner of continuing training of doctors, dentists and pharmacists, to take part in specialist examinations and to issue binding opinions to members of chambers on the professional problems of providing health care and medical research [§ 2 (2) (b), (g), (h) and (i) of Act No. 220 / 1991 Coll.].
95. The Czech Medical Chamber is entrusted with disciplinary authority [§ 2 (2) (f) of Act No. 220 / 1991 Coll.], which is carried out by the Honorary Council of the District Association and by the Honorary Council of the Czech Medical Chamber (§ 13 (1) and § 18 (1) of Act No. 220 / 1991 Coll.). The application for the opening of disciplinary proceedings pursuant to § 14 (2) (c) of Act No. 220 / 1991 Coll. is lodged by the review committee of the District Association (cf. also § 2 (2) (e) of Act No. 220 / 1991 Coll.) and against the decision of the Honorary Council of the District Association by which the disciplinary measure was imposed may be brought an appeal which is decided by the Chamber's Honorary Council. Pursuant to Article 18 (5) of Law No 220 / 1991 Coll., the decision of the Honorary Council to impose a disciplinary measure is revisable by the Court.
96. The nature of the summarized characteristics of personnel and disciplinary - as indicative of public law - was highlighted by the Supreme Administrative Court in its judgment of 6 January 2005 No 6 As 36 / 2003-115, according to which the disciplinary authority (here in relation to lawyers) is "part of the public administration, since it would not be entrusted to the Chamber, it would form part of the general government." There is no reason not to identify with this conclusion, and in the "staffing and disciplinary" regulation of the competences of the Czech Medical Chamber there is therefore an obvious similarity with those "public corporations" which were assessed by the bodies of the Convention in Section XI above.
97. Where the appellants refer to the "more recent case law 'of the European Court of Human Rights, which according to them" deals primarily with the right not to be associated and which does not explicitly exclude public bodies', and to the case-law "concerning the formal establishment of the fixation and, on the other hand, the de facto existence of associations and corporations (Section 100 of the Chassagna and Others v France, of 29 April 1999) ', it is to be added that, in the level of powers conferred, there is a substantial difference between the Czech Medical Chamber and the approved" general associations of hunting' which, according to the Court of First Instance, did not have "privileges outside the sphere of ordinary law, whether regular or disciplinary ', and did not use" public authority procedures' (paragraph 101 of the judgment).
Participation in proceedings under the Public Health Insurance Act
98. Pursuant to the provisions of § 2 (2) (a) of Act No. 220 / 1991 Coll., chambers are entitled to participate in the negotiations in the formation of scales of medical performance, in the pricing of medicines, medicinal products and tariffs of other services provided by pharmacies. Together with the adjustment contained in § 17 (3), § 17 (6) and § 48 (1) (b) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, constitutes a basis for the various types of proceedings involving the participation of the Czech Medical Chamber on Public Health Insurance and the extent and conditions under which health care is provided.
99. Paragraph 17 (1) of Act No. 48 / 1997 Coll. states that, in order to ensure the performance in kind of the provision of health care to insured persons, the General Health Insurance Company and other health insurance companies, established under the Special Act (Act No. 280 / 1992 Coll., on departmental, branch, corporate and other health insurance companies, as amended), contract with health care institutions on the provision and reimbursement of health care ("individual contracts"). Before these individual contracts are concluded, pursuant to § 46 (2) of Act No. 48 / 1997 Coll. a selection procedure must be held, the procedure of which is governed by the provisions of § 46 to 52; a member of the commission set up by the exclamator (the Regional Office or the City of Prague) for each selection procedure is the representative of the relevant professional organisation, i.e. also the Czech Medical Chamber. However, the health insurance undertaking shall not be bound by the results of the selection procedure; Similarly to the opinion of the applicant, he "takes account of them" when concluding individual contracts (§ 52 (2) of Act No. 48 / 1997 Coll.), which is governed by the so-called framework agreement, which is the result of conciliation between representatives of associations of health insurance companies (representatives of the General Health Insurance Company of the Czech Republic and of occupational insurance companies) and representatives of the relevant group contractual health establishments represented by their interest associations (also the Czech Medical Chamber).
100. The framework agreement is intended to include provisions relating to the period of effectiveness, the manner and reason for the termination of the "individual contract ', to regulate the way in which the payment of the healthcare provided is made, the rights and obligations of the parties to the individual contract, unless they are provided for by law, the general conditions of quality and effectiveness of the provision of health care, the conditions necessary for the performance of the individual contract, the control mechanism of the quality of the care provided and the correctness of the amounts charged, as well as the obligation of mutual communication to check the necessary data (Section 17 (3) of Act No 48 / 1997 Coll.). The framework agreements, agreed in individual segments of healthcare provided, are submitted after adoption to the Ministry of Health, which will assess their compliance with the legislation and public interest and subsequently issue them as a decree (now Decree No. 618 / 2006 Coll., which is the issue of framework contracts). If a new contract is not concluded before the end of the contract, the contract shall be renewed until the new framework contract is concluded. If there is no agreement between the parties to the conciliation procedure on the content of the framework agreement within six months or if the framework agreement submitted contravenes legislation or public interest, the Ministry of Health shall be called upon to adapt accordingly.
101. Paragraph 17 (6) of Act No. 48 / 1997 Coll. defines the procedure leading to the determination of the value of the point, the amount of health care payments paid from health insurance and the regulatory limitation for the following calendar year. Representatives of the General Health Insurance Company of the Czech Republic, other health insurance companies and relevant professional associations of providers as representatives of contractual health establishments participate in the conciliation procedure.
102. If an agreement is reached on the value of the point, the amount of health care payments covered by health insurance and regulatory restrictions, the Ministry of Health shall assess its content in terms of compliance with legislation and public interest. If the outcome of the agreement is in accordance with legislation and public interest, the Ministry of Health shall issue it as a decree. If the outcome of the conciliation procedure does not result in a result within 90 days before the end of the relevant calendar year, or if the Ministry of Health finds that the outcome of the conciliation procedure is not in accordance with legislation or public interest, these parameters shall be determined by decree for the following calendar year (currently Decree No. 383 / 2007 Coll., on the determination of the values of the point, the amount of health care payments paid from health insurance and the regulatory limitation of the amount of health care provided by public health insurance for 2008). The list of health performance with point values is published by the Ministry of Health by Decree (§ 17 paragraph 5 of Act No. 48 / 1997 Coll.); before the Act No. 261 / 2007 Coll., on stabilization of public budgets, the conciliation procedure was also applied here.
103. The assessment of the powers of participation in the selection and conciliation procedures thus summarised, then it is quite appropriate to conclude that - in the context of the above mentioned (in point 71) of the European Court of Human Rights Decision on Acceptance of 6 November 2003 in the case of Popov and others, Vakarelova, Markov and Bankov v Bulgaria, Complaint No 48047 / 99, 48961 / 99, 50786 / 99 and 50792 / 99 - nor does the Czech Chamber of Health "approach" the trade union organisation (Article 11 (1) of the Convention, Article 27 (1) of the Charter). From the above mentioned elements of framework (and subsequently "individual ') contracts, it is clearly concluded that the regulation of relationships between health insurance companies and health establishments with similar collective agreements (defining essentially the relationship between employers and employees, or their rights and obligations in employment) cannot be identified in terms of content. The same applies also to the adjustment of the position of the Czech Medical Chamber to the value-setting regime, the level of health care payments covered by health insurance and regulatory restrictions, where, in the words of the European Court of Human Rights (there), it is a" control price mechanism', to which by nature the features are not private, but also - "public law '.
104. It is possible to identify without difficulty that the "non-territorial" public bodies of professional government have the following characteristics (similar to the local government): 1 / they are established by law, 2 / they are entrusted with the exercise of public authority over a certain population group, 3 / they have legal personality, 4 / they have a personnel base (special reason for membership), 5 / they are economically and budget independent of the State, 6 / they are responsible for their actions, 7 / they act not only in their interest but also in public or general interests, 8 / the State oversees them, 9 / they can be defended against their authoritarian decisions before the courts (see Filip, J.: Constitutional law of the Czech Republic. 1, Basic concepts and institutes. Constitutional foundations of the Czech Republic. Brno: Masaryk University, nakl. Adplněk, 2003, p. 500-501).
105. It is equally acceptable that the legal definition of the Czech Medical Chamber, as presented in the previous section (XIII.), reflects these characters accordingly. The Czech Medical Chamber features 1 / -5 / fulfills the full amount (ad 5 / include citing § 20 of Act No. 220 / 1991 Coll., according to which the Chamber separately manages its property and manages according to the annual budget. The revenue of the Chamber shall consist of membership contributions, subsidies, gifts and other revenue. The proceeds of the fines are part of the social fund of the Chamber.), and the responsibility of the Chamber in civil and administrative terms is available. The acts of the Czech Medical Chamber do not, as stated above, stand outside the scope of judicial control (although problematic - similar to other chambers, with some exceptions, such as the Czech Bar Chamber or the Chamber of Patent Representatives of the Czech Republic). Negotiations in the public or general interest are an indisputable correlate to the protection of public health.
106. The case-law of the Constitutional Court in several of the above mentioned findings of 16 April 2003 sp. zn. I. ÚS 181 / 01 (paragraph 48.) in respect of the Chamber of Veterinary Physicians of the Czech Republic, established by Act No. 381 / 1991 Coll., also in the Czech Medical Chamber, it is appropriate to extend the judgment that it is one of the professional chambers "with compulsory membership, bringing together self-employed individuals in certain professions, where there is a strong public interest in their proper performance. These chambers are legal persons governed by public law, established by law, with the right to issue different internal rules for the Chamber and its members, who must submit to them with regard to compulsory membership. The Chamber thus exercises certain powers over these members - members of a particular professional state - which typically include... disciplinary authority."
107. Already in Section XIII, the "legal signs" of the Czech Medical Chamber have already been summarised in detail in the individual sections of the "legal signs" of the Czech Medical Chamber, that these characters, as a provenance of "public law," distinguish the Czech Medical Chamber from those associations of "private law" which enjoy obvious protection under Article 11 of the Convention or Article 20 (1), or Article 27 (1) and (2) of the Charter.
108. It is essential that these legal features allow the Czech Medical Chamber to be identified with those institutions which have assessed the bodies of the Convention (in particular the European Court of Human Rights) in the decisions calculated in Section XI. It is clear that there is indeed no relevant difference between the Czech Medical Chamber and, for example, the Belgian Medical Chamber, assessed by the European Court of Human Rights in Le Compte, Van Leuven and De Meyere v Belgium as a "public law institution" established not by individuals but by law, is integrated into the state structure, pursues an objective of public interest, namely the protection of health, by providing, according to the relevant laws, the form of public control over the performance of medical practice, for the performance of tasks entrusted to... the State enjoys certain administrative, as well as normative and disciplinary prerogatives outside the sphere of ordinary law, "and thus uses public authorities' (see paragraphs 69 and 70). By contrast, the argument of the applicants that the Belgian Chamber is" very strongly controlled directly by the State, "the need for decisive modulation (in relation to the Czech Medical Chamber) does not clearly imply, and the same applies to the claim that the Czech Chamber of Medicine, by its de facto action," is currently "reminiscent of a trade union organisation ', i.e." private law association', since the decisive characteristics of the "public law institution ', on the contrary, retain the level of medical care paid in the same way, and the lack of" private law' elements has been demonstrated (see paragraph 103) also in relation to its participation in selection and conciliation procedures, or in the value regime of the point, the level of payment of health care paid by health insurance and regulatory restrictions. It is sufficient to refer to paragraph 87 above, from which it is submitted, to the appellants' reasoning on the "purposeful 'separation of public law associations from the concept of association within the meaning of Article 11 of the Convention, that, in the case of sections XI and XII. of the so-called professional chambers concerned (" public law institution'), the distinction is objective, based on a legal (legal) basis, which is evidenced - by its similar legal definition - by the Czech Medical Chamber. The appellant's degree of autonomy in relation to the State does not in itself interfere with such a "distinction '.
109. The key is that if, in relation to (these) institutions examined by the institutions of the Convention, the institutions of the Convention were not associations within the meaning of Article 11 of the Convention, "neither could they have intervened in the negative component of freedom of association with compulsory membership ', it is justified to extend this conclusion to an institution comparable to them, which, as was imported, is the Czech Medical Chamber. If, in the light of the conclusion set out in point 65, there is no doubt that the meaning and scope of the concept of" association' as enshrined in Article 11 (1) of the Convention and in Article 20 (1), The documents are identical, and logically, the conclusion that the exclusion of the involvement in the freedom of association is also valid in relation to the negative component (right not to be associated), which is based on Article 20 (1) (or Article 27 (1) and (2)) of the Charter to which the applicants referred.
110. If freedom of association (its negative side) cannot be objectively affected by compulsory membership in the Czech Medical Chamber, there is no room for continuing the evaluation of the proposal by the promoters by the proportionality test to verify whether or not there is a constitutionally unacceptable restriction or whether the means for that freedom have been "more gentle '.
111. However, it should not be noted here that - firstly - the compulsory membership institute under Article 3 (1) of Act No. 220 / 1991 Coll. is not exceptional in comparable (European) circumstances (see Section IX above), and secondly - that it is "logical" by organically ensuring the competence of the Czech Medical Chamber towards the relevant addressees (doctors) precisely by being members thereof. Although the binding nature of the standards, acts and other measures of the Chamber could be achieved otherwise than exclusively through compulsory membership (see, for example, paragraph 59), it is essential that its installation in the relevant circumstances cannot in any way be linked to the arbitral or arbitrary legislator.
112. Mandatory membership of the Czech Medical Chamber pursuant to § 3 (1) of Act No. 220 / 1991 Coll. is therefore not in conflict with Article 20 (1) (Article 27 (1) and (2)) of the Charter.
113. Thus, only in the theoretical level (without the necessary projection into the outcome of the proceedings) remains the dispute over the "suitability" of the "member" categories or "membership" of Act No. 220 / 1991 Coll., based on a comparison with Act No. 85 / 1996 Coll., on the advocacy which operates with the term "registration in the list of lawyers maintained by the Czech Bar Association" (§ 4). It is not clear what real (and contrario symbolic, formal, semantic, psychological, etc.) amendment of Act No. 220 / 1991 Coll. would bring; for the purposes of constitutional review (unless mandatory "membership" in the professional chamber is an expression of restrictions on freedom of association) can be limited to stating that the comparison of the two legal regulations does not imply that the status of lawyers vis-à-vis the Czech Bar Chamber is different from that of doctors in relation to the Czech Medical Chamber. This judgment cannot shake even the appellants' reference to the "de facto functioning" of the Czech Medical Chamber, or the objection that "each member of the organisation is bound to be identified with it and as such is displeased to be associated with activities with which he does not necessarily agree," as he clearly does not have constitutional legal reflection.
114. In view of the lack of intervention in the constitutionally guaranteed freedom of association, the fact that they reflect only the political question (the choice of one or the other concept of administration), which is not the case for the Constitutional Court, is irrelevant, given the lack of intervention in the constitutionally guaranteed freedom of association. It is noted only that, in line with the appellants in point 52, it is recognised that, although the direct constitutional legal support for professional self-government is "poor ', it is" favourable assessment trends, in particular in relation to the State administration which they confront', are not overlooked.
115. The appellant also argued that there was a need for a distinction between doctors "private 'and" medics-workers' (in the form of agreement with the opinion of the Czech Health and Welfare Union) in the decision of 8.7.1992 in the case of Vialas Simón v Spain (paragraph 72 above), and there is no reason for the opinion expressed by it (that it is not a matter of determination in the context under consideration).
116. The references of the appellants to the "more recent case law" of the European Court of Human Rights have already been taken into account in the Chassagna and Others v France judgment of 29 April 1999, with the fact that effective support for their views cannot be derived from them. In its judgment of 13.8.1981 in Case No 7601 / 76, 7806 / 77, paragraph 57, the Court held that the protection of personal beliefs provided for in Articles 9 and 10 of the Convention in the form of a guarantee of freedom of thought, conscience and religion and freedom of expression is one of the purposes of freedom of association under Article 11 of the Convention, and therefore the appeal of a person against his belief in membership of the Association is against the very essence of Article 11 of the Convention, but this was a membership of trade unions, i.e. in associations within the meaning of Article 11 of the Convention. Similarly, the European Court of Human Rights in the judgment of 30 June 1993 in Sigurdur A. Sigurjonsson v Iceland, complaint No 16130 / 90, assessed the views presented by representatives of the Frech association (paragraph 37), but also after having declared that the association in question was covered by Article 11 of the Convention (paragraph 32). Critical regulation of Act No. 220 / 1991 Coll. does not restrict the possibility of establishing a "real 'association within the meaning of Article 20 (1), Article 27 (1) and (2) of the Charter.
117. It is also odd to consider that compulsory membership of the Czech Medical Chamber constitutes an intervention into the law enshrined in Article 26 (1) of the Charter, according to which everyone has the right to a free choice of profession. If it has been established that freedom of association within the meaning of Article 20 of the Charter (its "negative aspect ') is not affected by compulsory membership, then it will logically not stand up to the claim which, on the contrary, is based on the" prejudice' of that freedom. Therefore, it does not apply, as the appellants say, that the right to the free exercise of the profession of doctor is affected by the fact that those who wish to pursue that profession must waive the freedom of association because there is no such right. The constitutional conformity of other legal conditions for the pursuit of a medical profession (Section 4 of Act No. 220 / 1991 Coll.) cannot be challenged by reference to Article 26 of the Charter and the appellants do not do so.
118. In cases where membership of an association is not assessed within the meaning of Article 11 of the Convention, the scope for reflection on intervention in the negative component of freedom of association shall not be opened, which is documented by the decision-making practice of the bodies of the Convention, for example, in the decision of 8 September 1989 on acceptance of the Revert and Legallais, complaint No 14331 / 88 and 14332 / 88, in which the European Commission for Human Rights stated that the complainants can freely express their personal views "by other means." In the decision of 12.4.1991 in Case No 16501 / 90 Halfon v United Kingdom, it did not accept as a relevant objection to the political activities of the Exeter College of Students associated with the National Union of Students.
119. The same applies in relation to the apparently determining motive which leads the appellant to disagree with the compulsory membership which they identify with a reserved opposition to the public or political appearance of the Czech Medical Chamber, which they described in detail (see paragraphs 10 and 40 above), and document, among other things, the printed copies of Tempus medicorum. Here, too, it must be recalled to the appellants that, if the freedom of association within the meaning of Article 20 of the Charter is not "in play," an effective constitutional framework is lacking in order to give a favourable assessment of their criticism. While the work of the Chamber of Professionals as a public authority may objectively result in interference with those fundamental rights and freedoms which are protected by the sources of constitutional order, the reaction can be nothing more than the creation of an adequate legal (judicial) framework of the necessary protection, not the removal of persons at risk from its scope. Moreover, the appellants - other than the inapplicable reference to Article 20 of the Charter - did not even claim to have intervened in fundamental rights and freedoms; the claim that (some) members of the Chamber are "displeased" that they are associated with activities with which they "disapprove" and consider them "to be an attack on their own interests," does not, of course, imply such action. The applicants also ignore the fact that the "will '(including" political opinions') presented on the outside by the Czech Medical Chamber against which they are protesting is an expression of established institutional mechanisms (in particular the bodies of the Chamber and its representatives), whose constitutionality (democraticity) is not disputed and whose functioning and socio-political outputs are therefore objectively involved by all "mandatory 'members (doctors); That is to say, those who do not agree with the Chamber's public speech. It can therefore be assumed that the current public picture of the Czech Medical Chamber reflects at the moment the dominant will of its members or (all) doctors, which can also be expressed by the fact that doctors have a chamber that they wish to have, or how they" allow. "That the situation against which the applicants are opposed is not a direct expression of the legal regulation of the Czech Medical Chamber (including the compulsory membership regulation) is offered, which is demonstrated by the promoters themselves by the fact that they also do not propose the compulsory membership of the Czech Dental Chamber and the Czech Pharmacy Chamber (as amended in the same provision of § 3 of Act No. 220 / 1991 Coll.) to cancel. There can be no constitutional argument here.
Conclusion
120. On this basis, the Constitutional Court concluded that the application for annulment of the contested provision of Paragraph 3 (1) of Law No 220 / 1991 Coll. was not justified and was therefore rejected under Paragraph 70 (2) of the Law on the Constitutional Court.
President of the Constitutional Court:
v. JUDr. Holländer v. r.
Vice-President
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Court of First Instance took a different position on the decision of Judge Eliška Wagner.
1) NB: Collection of finds and orders of the Constitutional Court, Volume 18, Found No. 98, p. 355, published under No. 232 / 2000 Coll.
Contents
I.
II.
III.
IV.
V.
VI.
VII.
VIII. Ochrana veřejného zdraví
IX. Systémy dohledu nad výkonem lékařského povolání
X. Svoboda sdružování
XI. Rozhodovací praxe orgánů Úmluvy
XII. Judikatura Ústavního soudu
XIII. Zákonné znaky České lékařské komory
XIV. Hodnocení návrhu na zrušení § 3 odst. 1 zákona č. 220/1991 Sb.
XV. K dalším námitkám navrhovatelů
XVI.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 6 / 2009 Coll., on the application for annulment of § 3 paragraph 1 of Act No. 220 / 1991 Coll., on the Czech Medical Chamber, the Czech Dental Chamber and the Czech Pharmacy Chamber |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.01.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0