1995/06/13 - Pl. ÚS 25/94: School Material Decision

13 June 1995

HEADNOTES

1. Education

free of charge means that the state shall bear the costs of

establishing schools and school facilities, of their operation and

maintenance, but above-all it means that the state may not demand

tuition, that is, the provision of primary- and secondary-level

education for payment.  An exception is allowed for private and

religious schools which exist apart from the network of „state“ schools,

which to the necessary degree secure the right to education free of

charge.  

2.The provision on the degree to which the government

provides free textbooks, teaching texts, and basic school materials can

not be placed under the heading of the right to education free of

charge.  




CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THECZECH REPUBLIC

 


The Plenum of the Constitutional Court of the Czech Republic concerning

the petition of a group of Deputies instituting a proceeding on the

annulment of Government Regulation No. 15/1994 Coll., on the Provision

Free of Charge of Textbooks, Teaching Texts, and Basic School Materials,

has decided, thusly: The petition is rejected on the merits.

 


REASONING

 


I.
 

On

4 November 1994, the Constitutional Court of the Czech Republic

received from a group of Deputies of the Assembly of Deputies of the

Parliament of the Czech Republic a petition instituting a proceeding on

the annulment of Government Regulation No. 15/1994 Coll., on the

Provision Free of Charge of Textbooks, Teaching Texts, and Basic School

Materials.  In the petitioners’ view, this regulation is in conflict

with Article 33 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms,1) with Article 28 para. 2 letters a) and b),2) and Article 41

of the Convention on the Rights of the Child,3) and with Article 5 para.

2 of the International Covenant on Economic, Social, and Cultural

Rights.

In addition, the group of Deputies cites the objected-to Government Regulation and asserts that it is in conflict with:

- Article 33 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms,1) which guarantees to all citizens the right to elementary and

secondary school education free of charge;

- Article 28 para.

2, letters a) and b) of the Convention on the Rights of the Child,2)

promulgated under No. 104/1991 Coll., pursuant to which the Czech

Republic as a State Party bound itself to establish, free of charge,

education for all children and to establish, free of charge, secondary

general and specialist education and, in cases of need, to provide

financial support as well;

- Article 41 of the Convention on the

Rights of the Child3) and Article 5 para. 2 of the International

Covenant on Economic, Social, and Cultural Rights,4) according to which,

in case of a conflict between domestic and international rights, those

rights shall be applied which were, on the day the international treaty

entered into effect, more favorable for persons under the jurisdiction

of the State Party.

Thus, this state of facts satisfies the

condition of admissibility of the petition as required in § 66 para. 1

of Act No. 182/1993 Coll., and it can be assumed that the Government

Regulation was adopted in the manner stated in §68 para. 2 of Act No.

182/1993 Coll.

The Government of the Czech Republic informed the

Constitutional Court of its position on the group of Deputies’

petition, to the effect that its Regulation No. 15/1994 Coll.5) was

based upon authority given it under § 4 para. 2 of Act No. 29/1984

Coll., on the Basic and Secondary School System (the Education Act)6),

pursuant to which the Government is to designate the extent to which

textbooks, teaching texts, and basic school materials will be provided

to students free of charge.  It added that education free of charge as

called for in Article 33 para. 2 of the Charter of Fundamental Rights

and Basic Freedoms1) is to be understood (in connection with the

mentioned § 4 of the Education Act6)) as referring to the right of

students to be provided with instruction in suitable buildings, the

wages of qualified instructors and further personnel, the costs of the

operation and maintenance of the buildings, free use of educational

aids, that is, those which are owned by the school and which it uses for

its own instruction (models, chemicals, chalk, wall maps and pictures,

etc.).  Students, or their parents, are to pay for educational materials

which are owned and used by the students, with the exception of

materials which the state provides to students in the first year of

elementary school, worth 200 Czech Crowns per student.  The

above-mentioned Government Regulation provides that textbooks for

elementary school are also lent to the students free of charge, but they

do not become their property.  In secondary school, the students

purchase textbooks, and they become their property.  This fact is not in

conflict with the Charter of Fundamental Rights and Basic Freedoms, for

the Government was merely exercising its authority; in addition, it is

relatively difficult, particularly in relation to secondary specialist

schools to precisely define the concept „textbook“ (without being bound

to the list of textbooks), for in many cases they also make use of

expert literature which are not texts prepared for didactic purposes,

and the students commonly obtain them as their own property.  
 


II.
 

From

the perspective of the legal enactments of which the group of Deputies

speak in their petition, it is appropriate to emphasize right away that §

4 para. 1 of Act No. 29/1984 Coll., on the System of Basic and

Secondary Schools (the Education Act),6) provides that citizens enjoy

the right to education free of charge in schools that are a part of the

elementary and secondary school system.  The right to education can be

secured in exchange for payment in private or religious schools.  § 4

para. 2 of the above-cited Act states that students are to be provided

with textbooks, teaching texts, and basic school materials to the extent

provided for by the Government.

The group of Deputies’ petition

is based on the conviction that the 1 December 1993 Government

Regulation No. 15/1994 Coll., on the Provision Free of Charge of

Textbooks, Teaching Texts, and Basic School Materials, is in conflict

with Article 33 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms,1) with Article 28 para. 2, letters a) and b) of the Convention

on the Rights of the Child,2) and Article 5 para. 2 of the

International Covenant on Economic, Social, and Cultural Rights.3) 

Article 33 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms1) provides that citizens enjoy the right to education free of

charge in elementary and secondary school, as well as university-level

education in accordance with the citizen’s capabilities and society’s

possibilities.  Article 28 para. 2 of the Convention on the Rights of

the Child,2) promulgated under No. 104/1991 Coll., is not subdivided

into letters a) and b), and it provides that „States Parties shall take

all appropriate measures to ensure that school discipline is

administered in a manner consistent with the child’s human dignity and

in conformity with the present Convention.“  However, it can be deduced

from the context of the submitted petition that the group of Deputies

evidently had in mind Article 28 para. 1, letters a) and b) of the

Convention,2) which provides that „States Parties recognize the right of

the child to education, and with the view to achieving this right

progressively and on the basis of equal opportunity, they shall, in

particular:

(a)  Make primary education compulsory and available free to all;

(b)  Encourage the development of different forms of secondary

education, including general and vocational education, make them

available and accessible to every child, and take appropriate measures

such as the introduction of free education and offering financial

assistance in case of need;“.

Article 5 para. 2 of the

International Covenant on Economic, Social, and Cultural Rights,4)

promulgated under No. 120/1976 Coll., provides that „[n]o restriction

upon or derogation from any of the fundamental human rights recognized

or existing in any country in virtue of law, conventions, regulations or

custom will be admitted on the pretext that the present Covenant does

not recognized such rights or that it recognizes them to a lesser

extent.“

In this connection, it is necessary to state once again

that § 4 para. 1 of Act No. 29/1984 Coll.,6) provides that citizens

enjoy the right to education free of charge in schools that are part of

the elementary and secondary school system.  The right to education may

be provided in exchange for payment, but only in private or religious

schools.  In its judgment No. 49/1994 Coll., which is referred to in the

group of Deputies’ petition, the Constitutional Court annulled that

portion of § 4 para. 1 of Act No. 29/1984 Coll., which reads „unless

provided otherwise by statute“.  The other provisions of the act were

not affected, thus § 4 para. 26) was not thereby affected.  It provides

that, to the extent prescribed by the Government, students shall be

provided free of charge with textbooks, teaching texts, and basic school

materials.

Legal norms of a lower legal force must be in

conformity with legal norms of a greater legal force.  Proceeding on the

basis of this universally recognized principle, it follows that a

Government Regulation must be in conformity not only with constitutional

acts but also with international treaties under Article 10 of the

Constitution of the Czech Republic7) and „ordinary statutes“.  All legal

norms of a greater legal force (that have a bearing on Government Order

No. 15/1994 Coll.5)) guarantee the right to education free of charge. 

The mentioned Government Regulation, No. 15/1994 Coll.,5) does not

restrict the right to education free of charge nor does it affect it

substantially.  Education free of charge unquestionably means that the

state shall bear the costs of establishing schools and school

facilities, of their operation and maintenance, but above-all it means

that the state may not demand tuition, that is, the provision of

primary- and secondary-level education for payment.  An exception is

allowed for private and religious schools which exist apart from the

network of „state“ schools, which to the necessary degree secure the

right to education free of charge.  The provision on the degree to which

the government provides free textbooks, teaching texts, and basic

school materials can not be placed under the heading of the right to

education free of charge.  According to the interpretation of this

concept proposed by the petitioners, the state should see to the

provision of everything directly related to attendance at elementary and

secondary schools, for example, galoshes, briefcases, pencil cases,

writing equipment, physical education gear, etc.  It is clear that

education free of charge cannot consist in the fact that the state bears

all costs incurred by citizens when pursuing their right to education

and the Government undoubtedly has authority to proceed in this way.  In

no way does this cast into doubt the principle of elementary and

secondary education free of charge.

Art. 13. Para. 1 of the

International Covenant on Economic, Social, and Cultural Rights provides

that, „States Parties to the present Covenant recognize the right of

everyone to education“, and Art. 13 para. 2 of the same Covenant

provides that, „States Parties to the present Covenant recognize that,

with a view to achieving the full realization of this right:

(a)  Primary education shall be compulsory and available free to all;

(b)  Secondary education . . . shall be made generally available and

accessible to all by every appropriate means, and in particular by the

progressive introduction of free education.“

The costs connected

with putting the right to education into effect can be divided between

the state and the citizen, or his legal representative.  It is

appropriate to keep in mind that it is in the citizen’s own interest to

obtain education (and by this way also higher qualifications and better

opportunities to make one’s way in the labor market) and to make effort

himself to achieve it.  The expenses connected with putting the right to

education into effect are a long-term investment into the life of the

citizen.  The state bears the essential part of these costs, however, it

is not obliged to bear all of them.

The Constitutional Court

has, thus, come to the conclusion that Czech Republic Government

Regulation No. 15/1994 Coll., on the Provision Free of Charge of

Textbooks, Teaching Texts, and Basic School Materials, does not infringe

either Article 33 para. 2 of the Charter of Fundamental Rights and

Basic Freedoms,1) Article 28 para. 1, letters a) and b)2) or Article 41

of the Convention on the Rights of the Child,3) or Article 5 para. 2 of

the International Covenant on Economic, Social, and Cultural Rights,4)

nor any other constitutional act, statute, or international treaty under

Article 10 of the Constitution.7)  Therefore, pursuant to § 70 para. 2

of Act No. 182/1993 Coll., on the Constitutional Court, it has rejected

on the merits the group of Deputies’ petition proposing the annulment of

this enactment.
 




Pl. US 25/94
Overview of the most important legal regulations

1.  

 Art. 33 par. 2 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that citizens have the right to free

elementary and secondary school education, and, depending on particular

citizens’ ability and the capability of society, also to

university-level education.

2.    Art. 28 par. 1 letter a, b of

the Convention on the Rights of the Child (published in the Collection

of Laws under no. 104/1991 Coll.) provides that states parties to the

convention shall recognize the right of the child to education, and with

the aim of gradual implementation of this right on the basis of equal

opportunity, shall:
a.    introduce free and mandatory education for all children
b.  

 support the development of various forms of secondary education

including general and specialized education, make it accessible and

acceptable for every child, and take other appropriate measures, such as

introducing free education and, in case of need, providing financial

support.
       Note: The complainant incorrectly cites Art. 28 par. 2 of the Convention.

3.  

 Art. 41 Of the Convention on the Rights of the Child (published in the

Collection of Laws under no. 104/1991 Coll.) provides that nothing in

the Convention affects provisions which to a large extent assist

implementing the rights of the child and which may be contained in: a)

the legal order of the state party b) international law which is binding

for that state.

4.    Art. 5 par. 2 of the International

Covenant on Economic, Social and Cultural Rights (published in the

Collection of Laws under no. 120/1976 Coll.) provides that no limitation

or deviation from any of the fundamental human rights recognized or

existing in any country on the basis of law, treaties, regulations or

custom shall be permitted on the grounds that the Covenant does not

recognize such rights or that it recognizes them in a lesser extent.

5.  

 Order of the Government of the CR no. 15/1994 Coll., on Cost-free

Provision of Textbooks, Teaching Texts and Basic School Supplies.

6.  

 § 4 of Act no. 29/1984 Coll., on the System of Elementary Schools,

Secondary Schools and Post-secondary Specialized Schools (the Schools

Act), provides in par. 1, that citizens have a right to cost-free

education in schools which are part of the elementary and secondary

school system; the right to an education can be exercised in private

schools and in parochial schools for payment. Par. 2 provides that

education in post-secondary specialized schools established by the state

can be provided for payment from the time when the government, by an

order, provides its amount and method of payment; in these schools

established by municipalities, from the time when the municipality

provides the amount and method of payment by generally binding

ordinance, and the payment may not be more than half of the expenses

calculated per one student at the school.
Note: § 4 par. 1 as amended

by of Act no. 190/1993 Coll. provided that citizens have a right to

cost-free education in schools which are part of the elementary and

secondary school system, unless the Act provides otherwise. This

provision was annulled by judgment ÚS no. 49/1994 Coll.

7.  

 Art. 10 of Act no. 1/1993 Coll., the Constitution of the CR, provides

that international treaties concerning human rights and fundamental

freedoms which have been duly ratified and promulgated and by which the

Czech Republic is bound are directly applicable and take precedence over

statutes.