2012/11/27 - Pl. ÚS 1/12: Forced Service

27 November 2012

Czech republic constitutional court judgment

CZECH REPUBLIC

CONSTITUTIONAL COURT 

JUDGMENT

 

IN THE NAME OF THE REPUBLIC


 

The

Plenum of the Constitutional Court, consisting of the Chairman and

Judge Rapporteur Pavel Rychetský and Judges Stanislav Balík, Vlasta

Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka,

Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Miloslav Výborný and

Michaela Židlická, ruled on a petition from a group of deputies of the

Chamber of Deputies of the Parliament of the Czech Republic, represented

by Deputy JUDr. Jeroným Tejc, seeking the annulment of Act no. 341/2011

Coll., on General Inspection of Security Forces and on the Amendment of

Related Acts, of Act no. 364/2011 Coll., which Amends Certain Acts in

Connection with Cost-saving Measures by the Ministry of Labour and

Social Affairs, of Act no. 365/2011 Coll., which amends Act no. 262/2006

Coll., the Labour Code, as amended by later regulations, and other

related Acts, of Act no. 366/2011 Coll., which amends Act no. 111/2006

Coll., on Assistance in Material Need, as amended by later regulations,

Act no. 108/2006 Coll., on Social Services, as amended by later

regulations, Act no. 117/1995 Coll., on State Social Support, as amended

by later regulations, and other related Acts, of Act no. 367/2011

Coll., which amends Act no. 435/2004 Coll., on Employment, as amended by

later regulations, and other related Acts, of Act no. 369/2011 Coll.,

which amends Act no. 48/1997 Coll., on Public Health Insurance and on

the Amendment and Supplementing of Certain Related Acts, as amended by

later regulations, and certain other Acts, of Act no. 370/2011 Coll.,

which amends Act no. 235/2004 Coll., on Value Added Tax, as amended by

later regulations, and other related Acts, of Act no. 372/2011 Coll., on

Health Care Services and Conditions for Providing Them (the Act on

Health Care Services), of Act no. 373/2011 Coll., on Specific Health

Care Services, of Act no. 374/2011 Coll., on the Medical Emergency

Service, of Act no. 375/2011 Coll., which Amends Certain Acts in

Connection with the Adoption of the Act on Health Care Services, the Act

on Specific Health Care Services, and the Act on the Medical Emergency

Service, of Act no. 426/2011 Coll., on Retirement Savings, of Act no.

427/2011 Coll., on Supplementary Pension Savings, and of Act no.

428/2011 Coll., which Amends Certain Acts in Connection with the

Adoption of the Act on Retirement Savings and the Act on Supplementary

Pension Savings, alternately, seeking the annulment of § 30 par. 2 let.

d) of Act no. 435/2004 Coll., on Employment, as amended by Act no.

367/2011 Coll., in § 18a par. 1 of Act no. 111/2006 Coll., on Assistance

in Material Need, as amended by Act no. 366/2011 Coll., the words “and

persons listed in the register of job seekers54),” and § 121 par. 1 and 5

of Act no. 372/2011 Coll., on Health Care Services and Conditions for

Providing Them (the Act on Health Care Services), alternately on the

petition from the secondary party seeking the annulment of § 70 to 78, §

114 par. 1 let. g), § 117 par. 1 let. e), f), g), n) and r) and par. 3

let. d), e), f), g), h), i) and m) of Act no. 372/2011 Coll., on Health

Care Services and Conditions for Providing Them (the Act on Health Care

Services), alternately on the petition from the secondary party seeking

the annulment of § 4 par. 5, §14, § 28 par. 2, § 35, § 36 par. 3, 5 and

6, § 45 to 47, § 48 par. 1 and 2, § 50, § 52 to 54 of Act no. 372/2011

Coll., on Health Care Services and Conditions for Providing Them (the

Act on Health Care Services), with the participation of the Chamber of

Deputies of the Czech Republic and the Senate of the Parliament of the

Czech Republic as parties to the proceeding and a group of senators from

the Senate of the Parliament of the Czech Republic, represented by

JUDr. Jan Mach, attorney, with his registered office at Prague 1,

Vodičkova 28, and a group of deputies from the Chamber of Deputies of

the Parliament of the Czech Republic, represented by Deputy JUDr.

Vojtěch Filip, as secondary parties to the proceeding, as follows:


I.

The provisions of § 30 par. 2 let. d) of Act no. 435/2004 Coll., on

Employment, as amended by Act no. 367/2011 Coll., are annulled as of the

day this judgment is promulgated in the Collection of Laws.

 

II.

In § 121 par. 1, the words “for a period of no more than 36 months from

the day this Act goes into effect, unless stated otherwise,” including

the preceding comma, in par. 4 first sentence the words “but no later

than 36 months after the day when this Act goes into effect,” including

the preceding comma, par. 4 second sentence, and par. 5 of Act no.

372/2011 Coll., on Health Care Services and Conditions for Providing

them (the Health Care Services Act), are annulled as of the day this

judgment is promulgated in the Collection of Laws.

 

III.

The provisions of § 76 and 77 of Act no. 372/2011 Coll., on Health Care

Services and Conditions for Providing them (the Health Care Services

Act), are annulled as of the day this judgment is promulgated in the

Collection of Laws.

 

IV.

In § 36 par. 3 of Act no. 372/2011 Coll., on Health Care Services and

Conditions for Providing them (the Health Care Services Act), the words

“The validity of a previously expressed wish is 5 years.” are annulled

as of the day this judgment is promulgated in the Collection of Laws.

 

V. The remainder of the petition is denied.


 

 

REASONING
(Edited and abridged)

 

I.-V.
Subject Matter of the Proceeding

 

1.

The Constitutional Court ruled on a petition from two groups of

deputies and one group of senators. The first group of deputies proposed

the annulment of 14 Acts that had been re-approved by the Chamber of

Deputies after being rejected by the Senate or returned with amending

proposals. The petitioners believed that the process of adoption of

these Acts was inconsistent with the Constitution. However, their

petition was also directed against the new legislation on public

service, which extends possible performance of it to persons listed in

the register of job seekers. They, however, cannot refuse an offer to

perform public service from a regional branch of the Labour Office

without a serious reason, because they would be taken off the register

for a period of at least six months. This group of deputies also sought

annulment of the obligation of existing operators of health care

facilities to apply for a new authorization to conduct their activity

(“re-registration”) if they wish to conduct it after 31 March 2015.

2. The

petition from the group of senators was directed, in addition to the

provisions concerning the cited “re-registration” obligation, against

the new legal framework for the National Health Information System and

the definition of the elements and amounts of penalties for certain

administrative delicts under the Health Care Services Act.

3. Finally,

the petition from the second group of deputies contained objections

relating to the manner in which the Health Care Services Act was

adopted, and relating to the content of the Act. On a general level, it

disputed the introduction of the term “health care services” and the new

definition of the standard of health care provided. However, it also

contained a petition seeking the annulment of a number of component

provisions regulating certain specific institutions of the Act, e.g. the

time limitation applied to a previously expressed wish.


VI.
Review of the Competence and Constitutional Conformity of the Legislative Process

 

4. The

Constitutional Court states that the petitions submitted by the

petitioner and the secondary parties met the formal requirements set

forth by the Act on the Constitutional Court, so nothing prevented

substantive review of them.

 

5. Under

§ 68 par. 2 of the Act on the Constitutional Court review of the

constitutionality [sic] of a law with the constitutional order, or

another legal regulation, consists of three components. The following

questions must be answered: whether the statute or other legal

regulation was adopted and issued within the bounds of constitutionally

provided competence, whether it was adopted in a constitutionally

prescribed manner, and whether its content is consistent with

constitutional laws or, in the case of another legal regulation, with

statutes.

 

6. In

the case of all the contested statutes, there is no doubt whatsoever

that Parliament was competent to adopt them, under Art. 15 par. 1 of the

Constitution, and the Constitutional Court also has no doubts that

during their adoption the constitutionally prescribed manner of decision

making was observed by the chambers of Parliament and by the President,

and that they were always adopted by the prescribed majority of

deputies or senators. Nor do the petitioners dispute these facts in any

way. Therefore, the Constitutional Court turned to the individual

objections that both groups of deputies raised in relation to the manner

of adoption of the contested statutes.

 

7. The

petitioners seek annulment of the contested statutes on the grounds

that they, as representatives of the parliamentary opposition, were

denied their constitutionally guaranteed rights during the legislative

process. The Constitutional Court has recognized in the past that such

interference is sufficient grounds for the annulment of a statute in a

proceeding on review of norms; however, it required as a condition for

granting such a petition that it be filed without undue delay after the

adoption of the statute, or after its promulgation in the Collection of

laws. As the contested statutes were promulgated in the Collection of

Laws in December 2011 (or, in case, at the end of November 2011), the

petition, which was delivered to the Constitutional Court on 6 January

2012, can be considered to have been filed immediately after their

promulgation. Thus, the conditions were met for the Constitutional Court

to review the constitutional conformity of the legislative process in

terms of all the objections made by the petitioners.

 

8.First,

the Constitutional Court considered the manner in which the bills

denied or returned by the Senate were inserted into the agenda of the

then ongoing 25th meeting of the Chamber of Deputies. Under § 97 par. 3

and 4 of the Rules of Procedure, the chairman of the Chamber of Deputies

“shall submit” a denied or returned bill after at least ten days “at

the next earliest meeting,” so the Chamber of Deputies will vote on it

again. It is evident that the cited provisions give the chairman an

obligation to initiate discussion of these bills at the next earliest

meeting, so that it will be possible to decide on them as soon as

possible. The law does not provide the specific manner in which the

chairman is to initiate this, but one can expect that the form will

correspond to the methods provided by the Rules of Procedure for

including a particular point on the meeting agenda. As a rule, this

means a draft meeting agenda under § 54 par. 4 of the Rules of

Procedure, or it may mean a proposed amendment to an approved meeting

agenda under § 54 par. 6 of the Rules of Procedure; however, objections

against it can be raised by two parliamentary groups or by 20 deputies.

In contrast, supplementing a session agenda by decision of the Chairman

of the Chamber of Deputies cannot be considered such a method, for the

following reasons.

 

9.The

overall concept of the Rules of Procedure indicates that approving a

meeting agenda is in the competence of the Chamber of Deputies, and the

law allows expanding it without the chamber’s consent only

exceptionally. Essentially, this means in extraordinary situations,

which include, e.g. declaration of a state of war or a situation of

endangerment of the state. In these cases the Rules of Procedure

expressly state that if a meeting is held, the discussion of a

particular point shall be included in the agenda (§ 100a par. 3, § 109m

par. 2 of the Rules of Procedure). This text must be distinguished from

those provisions that merely order including a point in the agenda of

the next meeting (e.g., § 82 par. 1, § 109 par. 6 of the Rules of

Procedure), which is a formulation analogous to that in § 97 par. 3 and 4

of the Rules of Procedure. Their purpose is to ensure that the points

in question will be discussed at the earliest opportunity. Nonetheless,

these provisions permit points to be included in an approved agenda of

an ongoing meeting in a manner other than that under § 54 par. 6 of the

Rules of Procedure. Supplementing a meeting agenda always carries the

risk that the parliamentary majority, by the surprise inclusion of a

particular point, will deny individual deputies the opportunity to

prepare for discussion of it, or even take part in the discussion (cf.

judgment file no. Pl. ÚS 53/10, point 126), which are also the reasons

why a parliamentary minority can use an objection to block such a

proposal. The foregoing would apply in the case of including a

particular proposal for immediate discussion at a meeting where that was

done by decision of the Chairman of the Chamber of Deputies based

solely on his own discretion; this is why such an interpretation of his

powers cannot be supported.

 

10.

Despite these conclusions, the Constitutional Court did not find that

there was an impermissible limitation of the rights of the parliamentary

opposition in the contested actions by the Chairwoman of the Chamber of

Deputies. The approved agenda allowed for consideration of bills denied

or returned by the Senate. Although it did not directly specify these

bills, the agenda was approved at time when the resolutions to deny or

return the bills of the contested statutes had already been delivered to

the Chamber of Deputies. Thus, one could assume that the supplement to

the agenda would concern these in particular. Moreover, the date for

discussion of them was set so as not to conflict with the ten day period

under § 97 par. 3 and 4 of the Rules of Procedure, the purpose of which

is to create sufficient time to familiarize oneself with the position

on the bills taken by the Senate. Therefore, we can summarize that, even

if the additional supplementing of the agenda for the 25th meeting of

the Chamber of Deputies to include the bills returned or denied by the

Senate required the process under § 54 par. 6 of the Rules of Procedure,

the already approved agenda allowed for consideration of the contested

statutes. Therefore, in this matter there was no room to apply the

opposition deputies’ objections against the supplementing of the agenda.

 

11. As

regards the contested combining of debate and simultaneous limiting of

the deputies’ speaking time and the number of their opportunities to

speak, the Constitutional Court emphasizes that in creating the

structure of the legal order, in terms of its formal division into

statutes, the legislature is bound by the attributes of a state based on

the rule of law, which include the principles that the law should be

foreseeable, understandable, and internally consistent. It is precisely

from these principles that one can draw the requirement that a statute,

in the formal sense, not simultaneously regulate multiple topics that

are not mutually connected, in content and systematically. Justification

for this requirement can also be found in relation to the manner in

which bills are considered. If the legislative process is to permit open

and critical evaluation of bills, it is desirable that its subject

matter be defined precisely in view of the abovementioned connection in

content, and that discussion thus take place in a clear and

understandable manner. For these reasons, the Constitutional Court

shares the petitioners’ opinion that § 54 par. 8 of the Rules of

Procedure must be interpreted to mean that combining discussion of one

or more points on the agenda presupposes that they are mutually

substantively connected. Combination of debate on several unrelated

points would, in contrast, lead to the absurd result of an

“all-inclusive” debate that would lack any reasonable purpose, precisely

due to the scope of its subject matter.

 

12. This

interpretation is also important for the potential application of § 59

par. 1 and 2 of the Rules of Procedure, under which the Chamber of

Deputies may agree, “regarding a point under consideration” to limit the

speaking period, which may not be shorter than ten minutes, and also

that a deputy may speak no more than twice “regarding the same matter.”

The Constitutional Court does not find extreme the interpretation that

these concepts could be applied to the subject of debate, which, in the

case of combined debate, is all the points discussed as part of it. The

reason for this is precisely the requirement of substantive connection,

from which viewpoint it is only important that the subject of debate is a

certain coherent topic, not whether it is formally divided into several

bills, and thus forms several points on the agenda. A different

interpretation would ultimately lead only to an artificial attempt to

adopt particular material in a single statute, although for practical or

other reasons it could be much more useful to leave it, formally, in a

number of statutes.

 

13. The

Constitutional Court is of course aware that the purpose of the cited

methods, which can be applied by the parliamentary majority, is

precisely to shorten the total period of debate, which always brings

with it a limitation on the opportunity for (not only) opposition

deputies to speak in the debate. However, this does not mean that these

are automatically illegitimate methods or that they disproportionately

affect the rights of the opposition. The Rules of Procedure may permit

the parliamentary majority to adopt measures whose purpose is to address

situations where the opposition attempts to postpone adoption of the

decision under discussion through maximum use of all legal means.

Limiting the speaking period or the number of times one person can speak

under § 59 par. 1 and 2 of the Rules of Procedure does not remove the

right of individual deputies to take part in debate, but only limits it

in time. As indicated above, the point is to find a balance between the

governing majority’s interest in adopting a particular decision and the

opposition’s right to seek, through permissible means, to reach the

opposite result.

 

14. Thus,

for reviewing all these limitations in terms of the rights of the

parliamentary opposition the key question is still whether the

requirement of substantive connection was met, which would justify

combining debate under § 54 par. 8 of the Rules of Procedure, and if

that was not the case, whether the failure to meet this requirement is

sufficient to establish grounds for derogation in relation to the

contested statutes. We can summarize briefly that the debate in question

concerned, substantively, statutes containing significant (or even

fundamental) changes in the area of provision of health care, the

pension system, the social system, and labour relations. The connection

undoubtedly existed between some statutes, as is evident in the statutes

in the areas of health care and retirement security. However,

concluding that it exists in relation to all of them is possible only in

a very abstract form, far removed from the content itself, which

obviously does not correspond to the purpose of combining debate. Unlike

with the Act on Stabilization of Public Budgets, which was reviewed in

the past (judgment file no. Pl. ÚS 24/07), in this case it is not even

possible to identify a joint purpose for these statutes in an

intelligible way. In the case of the Act on General Inspection of

Security Forces there is even no substantive connection with any of the

other contested statutes. Therefore, even with a restrained review, the

Constitutional Court did not find that the statutory prerequisites for

combining debate existed for the bills of the contested statutes.

However, it concluded that in this case the error is not of an intensity

that would, in view of the overall review of the manner of adoption of

the contested statutes, establish that they were inconsistent with the

constitutional order.

 

15. In

this regard, the Constitutional Court emphasizes that the limitation in

question occurred in the last phase of the legislative process, when

the Chamber of Deputies had already had three readings of all these

bills, in the usual time frame. They had also been duly considered in

the Senate. Thus, the Chamber of Deputies only faced the decision

whether it would insist the bills that had already been approved once,

or whether it would deny them, or, in the case of the two returned

bills, whether it would approve them in the version amended by the

Senate. These facts are fundamentally reflected in the review of the

legislative process as regards fulfillment of its legitimating function.

The content of the limitations does not in any way cast doubt on the

conclusion that the result of this process as a whole is statutes where

all persons taking part in the process had an opportunity to familiarize

themselves with their content, to take a position on them, and, in the

course of debate, to state this position publicly in Parliament (and not

only there), as well as to propose possible amendments. The statutes

also cannot be criticized on the grounds of unforeseeability or surprise

in relation to the parties they addressed, or in relation to the wider

public.

 

16. Unlike

the petitioners, the Constitutional Court does not believe that, in

terms of observance of the fundamental constitutional principles

regarding the legislative process, the manner in which the contested

statutes were adopted can be compared to the manner of consideration and

adoption of several statutes in shortened proceedings during a state or

legislative emergency in November 2010, which were the subject of its

review in judgments file no. Pl. ÚS 55/10 and file no. Pl. ÚS 53/10

(also in judgment file no. Pl. ÚS 17/11). While in that case the entire

legislative process was shortened to only several days, without there

being extraordinary and serious grounds for such serious interference in

the process, against the will of the parliamentary opposition, here the

contested statutes were, although with the exception of the contested

combined debate, considered in the standard manner and in a framework

that allowed sufficient time. Thus, this matter does not involve a

situation where deputies had to take a final position on a government

bill immediately after it was submitted. On the contrary, the Chamber of

Deputies had already once expressed its position on the bills, and the

purpose of repeated debate on them was to allow the deputies to respond,

in connection with the legislative process up to that point, to the

reasons that had sounded in the Senate, due to which the bills were

denied, or returned with comments. It must be emphasized that the

Chamber of Deputies held a second vote only after the ten day period

under § 97 par. 3 and 4 of the Rules of Procedure, which allowed all

deputies to familiarize themselves in advance with the Senate’s

position. At the same time, the parliamentary opposition as a whole had

the opportunity to speak regarding the bills in debate, although we can

recognize that for individual deputies the opportunity was significantly

limited.

 

17. Nothing

about this review is changed by the fact that in the case of most of

the contested statutes there was a certain shortening of the deadlines

for discussion of bills in committees under § 91 par. 1 and for starting

the third reading under § 95 par. 1 of the Rules of Procedure, although

one can have various opinions on the justification for these measures,

in view of the subject matter being reviewed and its scope. However, the

shortening was not such as could, in terms of the abovementioned

positions, cast doubt in a constitutionally relevant manner on the

legislative process that took place, even through its cumulative effect

with the combining of debate in the last phase. The Constitutional Court

considered the other objections raised in relation to the legislative

process to be obviously unjustified.

 

18. For

all these reasons the Constitutional Court concluded that the manner of

adoption of the contested statutes was consistent with Art. 1 par. 1,

Art. 5, 6 and 15 of the Constitution and Art. 4, Art. 21 par. 1 and 4

and Art. 22 of the Charter, or with certain other articles thereof,

which were cited in this regard by the petitioners and the secondary

parties. The contested statutes were adopted and issued within the

bounds of constitutionally specified competence and in a

constitutionally prescribed manner. Thus, the Constitutional Court could

turn to a substantive review of the contested provisions of the

statutes.

 

 

VII.
Review

of the constitutional conformity of the law that specify refusal to

perform public service as a reason for deletion from the register of job

applicants

 

19. The

first group of measures for which the petitioners seek substantive

review supplement the legislative framework of the institution of public

service contained in the Act on Assistance in Material Need. It is

obvious from the contested § 30 par. 2 let. d) of the Act on Employment

and § 18a par. 1 of the Act on Assistance in Material Need that,

although they do not provide a direct obligation for the registered job

seeker to accept an offer to perform public service, they do tie his

decision to the consequence of whether he will continue to be listed in

the relevant register and whether he will continue to have the

opportunity to exercise rights arising from that status. This condition

is key to constitutional law review of this matter.
[…]

 

VII./c
Review of the consistency with the prohibition of forced labour

 

20. The

Constitutional Court first reviewed whether public service, in the case

of persons listed in the register of job seekers is work or service

under the cited provisions, then whether it is performed willingly, or

whether it is not performed as a result of duress of under threat of

penalty, and finally, if these questions could be answered in the

affirmative, whether it is not a case of forced labour or service

subject to an exception under Art. 9 par. 2 Charter or Art. 4 par. 3 of

the Convention, possibly also Art. 2 par. 2 of the Convention concerning

Forced or Compulsory Labour or Art. 8 par. 3 let. b) and c) of the

International Covenant on Civil and Political Rights, promulgated as no.

120/1976 Coll.

 

21. The

first question must be answered in the affirmative. It was already

stated that public service has the character of employment [“dependent

work”] under § 2 of the Labour Code; therefore it can, with no doubt

whatsoever, be included within the wider concept “work or services”

under Art. 9 par. 1 of the Charter. Thus, the Constitutional Court could

turn to the next question posed, whether the performance of public

service takes places willingly or as a result of coercion. In this case

however, the answer is not obvious prima facie, and requires more

detailed definition of the criterion.

 

22. We

must note, first of all, that an obligation that could be described as

forced labour or services need not be imposed on an individually

independently, but may be part of the rights and obligations that arise

to him out of a legal relationship to which he is a party. Therefore, in

order to evaluate whether he expressed consent with the creation of

that obligation, it is essential to weigh whether he had an opportunity

to influence the content of that legal relationship, what aim he was

pursuing by entering into it, and whether the given obligation also

serves to achieve that aim, whether it is related in content to the

subject matter of the legal relationship, and whether it is not

disproportionately burdensome in relation to it.

 

23. A

job seeker’s obligation to accept an offer to perform public services

cannot be evaluated independently, but as a component of this legal

relationship, corresponding to his status. Related to this, however, is a

key question that must be answered in this matter, and that is whether

public service can be considered forced labour in a situation where the

job seeker was included in the relevant register at his own request,

without being required to file the application, and could also request

to be removed from the register at any time. In this regard, we must

consider the aim of including a job seeker in the register, as well as

the manner in which this aim can be achieved through an obligation to

perform public service.

 

24. The

legal framework for providing assistance finding employment under

Chapter II of the second part of the Act on Employment, which is the

legal basis for the register of job seekers, in the aggregate implements

Art. 26 par. 3 of the Charter. This provision guarantees citizens who,

through no fault of their own cannot exercise their right to obtain the

means for their living needs through work (and are also not unfit for

work under Art. 30 par. 1 of the Charter), that they will be provided

material security in an appropriate scope by the state. The

constitutional framers thereby bound the state to adopt a legislative

framework that will at least partially mitigate the negative

consequences that loss of income can have for an individual and his

dependents, and will thus provide an opportunity for him to address this

situation. What is meant by an appropriate scope is not clear from the

text of the Charter alone. Definition of this term, as well as setting

conditions for exercising the right in question, is up to the

legislature, which must weigh all other circumstances, not excluding the

possibility of public financing. However, the normative solution chosen

by the legislature must respect the aim of the guarantee, and its

content may not make achievement of that aim impossible.

 

25. These

conclusions also connect to the previous case law concerning social

rights, which the Constitutional Court developed in its judgment of 24

April 2012 file no. Pl. ÚS 54/10 by the construction of the

reasonability test as an instrument to review the legislature’s

intervention in the area of constitutionally guaranteed social rights.

This test, which will be applied below to the contested legislation,

reflects both the need to respect the legislature’s relatively wide

discretion, and the need to rule out possible excesses on its part. It

consists of the four following steps:

1) defining the purpose and essence of a social right, i.e., its essential content,

2)

evaluation of whether a statute does not affect the very existence of a

social right or the actual implementation of its essential content,

3)

evaluation of whether the legislative framework pursues a legitimate

aim, i.e., whether it is not an arbitrary lowering of the overall

standard of fundamental rights,

4)

evaluation of whether the statutory means used to achieve it is

reasonable (rational), even if not necessarily the best, most suitable,

most effective, or wisest (point 48 of this judgment).

 

26. The

legislature is entitled to set the conditions and scope in which the

right to appropriate material security in unemployment can be exercised

under Art. 26 par. 3 of the Charter, including conditions for listing

job seekers in the register and maintaining them in it, from which other

rights, in addition to the right to support during unemployment, are

derived, e.g., payment of health insurance by the state. Thus, it can

undoubtedly require cooperation and fulfillment of other obligations for

the purpose of ensuring that the assistance in question will be

provided to persons who are interested in working but do not have an

opportunity for employment. In its deliberations, however, it must keep

in mind that the persons for whom the entitlement is intended, by being

included in the register of job seekers, are exercising their

statutorily provided rights in the confidence that their purpose is to

mitigate the effects of loss of employment on their financial situation

and assistance in seeking new employment. This confidence is

strengthened not only by the constitutional guarantee of this right, but

also by the fact that a condition for the creation of an entitlement

for support in unemployment is a previous period of employment during

which these persons were required to pay premiums for social security.

Being listed in the register is also the only way in which they can seek

any performance on the grounds that they became unemployed.

 

27. The

Constitutional Court believes that public service is a public law

relationship, the content of which is the performance of activity that

meets the elements of employment under § 2 par. 1 of the Labour Code.

What distinguishes it from the basic labour law relationships (§ 3

second sentence of the Labour Code) is, first, the mutual positions of

the parties. Whereas in concluding an employment agreement the employee

and employer are formally on an equal level and the content of the

agreement is the result of their identical expressions of intent, in the

case of public service the relationship is between a job seeker and the

regional branch of the labour office, which, however, acts in the

relationship like a state body. This relationship also requires a

contract, but the specific offer to conclude the agreement depends on

the administrative discretion of the relevant body. The job seeker has

no opportunity to influence the subject matter of the agreement or where

and how long he will perform it. He can only refuse the offer in its

entirety, the result of which, however, will be that he will be removed

from the register of job seekers. The only exception is a case where the

job applicant had serious reasons for refusal under § 5 let. c) of the

Act on Employment; however, even the cited “reasons worthy of special

consideration,” which are the only open concept in the exhaustive list

given in this provision, do not create an opportunity to simply express

disagreement with the offer. These grounds are aimed at exceptional

situations, when the requirement to mitigate possible disproportionate

consequences of this obligation is appropriate. However, other

differences between public service and basic labour law relationships

can also be emphasized. As will be set forth below, in the case of

public service, the person performing it does not have a right to

compensation. These persons are not even reimbursed for expenses that

they incurred in connection with the performance of public service, nor

are they subject to a number of provisions that protect the employee’s

position in basic labour law relationships in various aspects (e.g.,

concerning vacation).

 

28. The

foregoing is reflected in the constitutional law review of the

contested provisions and in a way testifies to the contradictory nature

of the present state of the law. If a person who lost employment decides

to ask for assistance finding it, he must, after two months in the

register, accept that in the case of an offer he will, for a period of

up to one half of the specified weekly working hours (§ 79 par. 1 of the

Labour Code) perform what is essentially employment for an entity

designated by the state, without an entitlement to wages, and with a

considerably lower level of protection than the Labour Code provides to

employees. In other words, the state conditions the exercise of the

person’s rights, which it grants in the event of employment, on de facto

ordering the person half-time employment. However, the job seeker

remains formally unemployed, which means that he is denied rights that

an employee normally has in a labour law relationship, and the state

does not have to provide the counter-performance that the state itself

otherwise requires from any other employer, under threat of penalty.

Moreover, the job seeker still has a number of obligations connected

with being listed in the register of job seekers (e.g., cooperation with

the regional branch of the labour office), and he is forced to look for

employment himself in his own interest.

 

29. The

above-defined ambivalence in a job seeker’s position strengthens the

negative effects that the contested legislative framework causes in the

sphere of his fundamental rights and freedoms. This means not only the

freedom to decide whether to accept the public service or not. If the

purpose of the state measures under the Act on Employment is to provide

assistance finding employment, then it is understandable that the job

seeker cannot without a reason refuse the offer of employment provided

(cf., in this regard, the approach of the European Court of Human

Rights, e.g., in the decision of 4 May 2010 in Schuitemaker v.The

Netherlands, Application no. 15906/08). In such a case, the requirement

that the job seeker cannot, through no fault of his own, obtain the

means for his living needs through work would be significantly cast in

doubt. However, the public service and the connected grounds for being

removed from the register of job seekers under § 30 par. 2 let. d) of

the Act on Employment does not lead to assistance finding employment. As

indicated by the statement from the Minister of Labour and Social

Affairs, its purpose must be seen in securing purposefulness of the

cooperation on the part of the state, i.e. that it is aimed at persons

who are socially needy and is not misused (“being unemployed should not

pay”). It should also be a means for maintaining or reacquiring work

habits and preventing the social exclusion of the unemployed. However,

the contested provisions pursue these aims only seemingly, and the

obligation they set of accepting an offer of public service after only

two months of unemployment does not in any event represent an

appropriate and commensurate means for achieving them.

 

30. Primarily,

it is not at all clear for what reason the legislature presumes a loss

of work habits after only two months of unemployment. In the case of

persons who were employed for several years or even decades, such a

general presumption has no justification. However, questions are also

undoubtedly raised about whether such a manner of performing work can

lead to maintaining or reacquiring work habits. The individual

guarantees that the constitutional order defines through the prohibition

of forced labour and the right to free choice of profession, but also

the right to fair compensation and the right to appropriate material

security during unemployment, in the aggregate formulate an imperative

for the legislature that the legislative framework relating to the

performance of work always reflect its importance for an individual’s

free and dignified life. Thus, the legislature cannot view the

performance of work in isolation, only as an independent activity,

without taking into account all the other related aspects. The condition

contained in § 30 par. 2 let. d) of the Act on Employment puts the job

seeker in a position where, if he wishes to continue to draw

unemployment support, or other benefits, or if he is to continue to be

provided assistance by the Labour Office, he must be available in order

to work off this state assistance. According to the Minister of Labour

and Social Affairs, these benefits are even supposed to represent the

equivalent of work performed as part of public service, or “fair

compensation,” even though they take the form of “social benefits.” As

we can judge from his statement, the public service is intended for

persons who are “able and willing to work,” and the evidence of their

“willingness,” which is a necessary prerequisite for remaining on the

register, is precisely performing the public service. Thus, the

consequence is a completely opposite view of the essence of work than

that which arises from the abovementioned constitutional norms. Work

habits are to be preserved and continued through such performance of

work in which, apart from the activity itself, all its other natural

aspects, which give its performance purpose and provide motivation to

the worker, are denied.

 

31. However,

similar reasons can be used to cast doubt on the second purpose of

public service, that of preventing social exclusion. The fact that the

job seeker is performing public services changes nothing about the fact

that he continues to be unemployed, and in terms of income he receives

the appropriate social support from the state. Therefore, it is

difficult to find support for the conclusion that his social position is

improved. On the contrary, the Constitutional Court believes that, in

view of the particular features of public service, its effect is

precisely the opposite. The state assigns the work of those performing

public service a lower value than in other analogous cases, which is

also in and of itself reflected in the manner in which the wider public

sees the performance of public service. However, in this regard, we also

cannot overlook the similarity between the performance of public

service and serving a sentence of community work (§ 65 of the Criminal

Code), as a result of which, in the eyes of the public the differences

between the two institutions are blurred. This is evidenced in

particular by the fact that the kind and scope of the work performed are

similar, that as a rule even the “supervisors” of their proper

performance are the same, and that in both cases the work is performed

without an entitlement to compensation. This consequence is at present

intensified by the visible identification of the workers involved by

vests with the label “public service.” Thus, in the aggregate, the state

treats them in the same manner as persons sentenced for a crime, only

for the reason that they became unemployed and are exercising their

legal rights, without violating any legal obligation. Therefore, the

obligation to accept an offer of public service does not serve to limit

social exclusion, but to intensify it, and it can cause those performing

it, whose work has the same elements externally (for other people) as

serving a sentence, humiliation to their personal dignity.

 

32. The

contested obligation also cannot be considered an appropriate means

that prevents misuse of the relevant power by the state, which can also

be achieved by a less intrusive method. An offer of public service can

have (and in a number of cases undoubtedly has) this effect on those job

seekers who took advantage of state support, although they could

themselves obtain the means for their living needs through work. These

job seekers have no reason to accept public service under the conditions

required, because they will understandably consider it disproportionate

in relation to the benefits provided by the state, or it will be a

barrier to black market work for them. However, it cannot be presumed

that all job seekers will misuse the assistance; with some groups of job

seekers especially such a situation will definitely not be the rule. As

an example that anyone can document by observing the people around

himself we can certainly cite persons who lost their jobs a few years

before reaching retirement age and despite their best efforts cannot

find new employment. These people do not, as a rule, lose their work

habits in two months, and yet they will be subject to this provision if

they ask to be added to the register of job seekers. Although they have

not in any way transgressed against the rules, they will be forced to

accept and perform public service under the conditions stated above,

often for a period of several months. Yet, the intended purpose could

undoubtedly be achieve by more appropriate measures, which would affect

only those job seekers who really did not observe the conditions for

continued listing in the register, e.g., strengthening inspection

mechanisms.

 

33. The

cited shortcomings, which cast doubt on the ability of this institution

to be a suitable or proportional means for achieving the aims pursued,

cannot be removed even through the use of administrative discretion by

the regional branches of the Labour Office when selecting job seekers.

There is a fundamental problem in the fact that these branches do not

have an obligation, but merely the possibility of offering the

performance of public service, which is dependent on the number of

places agreed with municipalities or other entities. Understandably, a

substantial proportion of job seekers, or even a majority of them, will

see public service of up to 20 hours a week, performance of which is

motivated, instead of any sort of compensation, purely by the threatened

penalty of being removed from the register of job seekers, not as an

opportunity, but as a burden. Thus, a situation will arise, when it will

depend on the number of agreed on places, whether a particular person

will or will not perform public service, so it will not be exceptional

to find a situation in which out of two job seekers who are in a

comparable position in terms of the relevant criteria, only one will

have to perform public service. As a result, a certain group of job

seekers will have to in fact work for all the entitlements arising from

their inclusion in the register of job seekers while another group will

not, even though this inequality cannot be justified in any way except

as a consequence of randomness. Moreover, this opens the door to

possible misuse of discretion, because it will in fact be possible to

exclude a particular person from this offer, without any kind of

justification.

 

34. The

text of § 18a of the Act on Material Need indicates that the Act does

not contain criteria for selecting job seekers who are to be offered

public service. Therefore, the selection of them depends on the

practices of the individual regional branches of the Labour Office,

which gives them extremely wide administrative discretion. One can

imagine several alternatives for setting these criteria. They could take

into account e.g., the length of time that a person is listed in the

register of job seekers, as well as qualifications, economic and social

status, family or health situation, age, etc. However, no key will be

able to change the fact that an offer of public service and the related

obligation for the job seeker to accept it will always affect only those

job seekers who have been listed in the register for more than two

months. This is not an inequality that could be approved merely by

reference to its preventive function. If public service could be

considered exclusively a measure against misuse of the position of a job

seeker and the related benefits, then one could undoubtedly accept that

it will be offered, according to a certain pre-defined key, only to

certain job seekers, and the mere possibility of the offer will serve as

a warning. The Constitutional Court confirmed this solution in the case

of the conduct of random tax inspections [cf. judgment of 18 November

2008 file no. I. ÚS 1835/07 (N 196/51 SbNU 375), including the

dissenting opinion of Judge Ivana Janů, and the opinion of the plenum of

8 November 2011 file no. Pl. ÚS-st. 33/11 (368/2011 Coll.), which

reversed the legal opinion contained in that judgment]. However, the

comparison with tax inspection ceases to be relevant, if other elements

of public service are taken into account, that is the performance of

work of up to 20 hours a week over a period of several months. This is

an obligation that is sufficiently burdensome that, for the group of job

seekers to whom public service was offered, it fundamentally changes

the conditions for exercising their entitlements to material security in

the event of unemployment.

 

35. Thus,

in the aggregate, in view of § 30 par. 2 let. d) of the Act on

Employment, two groups of job seekers are created, with fundamentally

different conditions for being maintained in the relevant register, and

the determination of which group a particular job seekers belongs in

depends to a great degree on the wide discretion of the regional branch

of the Labour Office. In view of the limited number of places, the

decision about who will be offered public service will always have a

certain element of randomness. This inequality between the two groups of

job seekers, which will basically arise each time, if public service is

not always offered to all job seekers, who can, in consequence of not

accepting it, be taken off the register, lacks constitutionally approved

justification and is inconsistent with the prohibition of arbitrariness

arising from the principle of a state governed by the rule of law under

Art. 1 par. 1 of the Constitution.

 

36. The

fact that job seekers can defend themselves in the administrative

courts against a decision to remove them from the register does not in

any way cast doubt on these conclusions. The appropriate complaint can

be used to protest against a removal from the register for which legal

reasons were not given, which, in the case of a reason under § 30 par. 2

let. d) of the Act on Employment, will also mean review of whether the

job seeker had the right to refuse public service for a serious reason

under § 5 let. c) of the Act on Employment, that is, e.g., for the

reason that the kind of public service offered is obviously

disproportionate to the job seekers existing expert qualifications.

Nonetheless, such a review cannot remove the structural problems of the

institution, which, apart from the cited inequality, include other

shortcomings identified in this judgment. These are the consequence of

the contested legislative framework, and can be removed only by action

on the part of the legislature.

 

37. The

Constitutional Court states that the aims of the legislative framework

for assistance in finding employment under Chapter II of Part Two of the

Act on Employment and public service diverge significantly. In view of

the fact that public service offers the unemployed only the possibility

of unpaid performance of the assigned work activity, the obligation on a

job seeker to perform it for up to 20 hours a week, with all the cited

limitations, can be considered a disproportionate burden for exercising

individual statutorily defined rights that are accorded the job seeker

for the purpose of material security during unemployment. This is an

obligation imposed by law, which every person applying for assistance

finding a job must bear during the time that he is listed in the

register of job seekers. Otherwise, he would not be able to exercise any

of these rights. All these facts make it impossible for a review of the

contested obligation to perform the offered public service to begin

with the assumption, that it involves the job seeker’s consent to be

listed in the relevant register. On the contrary, based on these facts

one can reach the opposite conclusion, that § 30 par. 2 let. d) of the

Act on Employment imposes on job seekers a disproportionate obligation

to perform work, and penalizes refusal by removal from the register.

Therefore, the Constitutional Court concluded that this obligation meets

both elements of forced labour under Art. 9 of the Charter and Art. 4

of the Convention, or Art. 2 par. 1 of the Convention on forced or

compulsory labour.

 

38. Thus,

to conclude this part, the last of the posed questions remains to be

answered, that being whether the contested obligation cannot be included

under one of the exceptions to the prohibition of forced labour

established by the Charter, the Convention, or another international

treaty. In this regard the Constitutional Court emphasizes that the only

exception to the prohibition that can come into consideration is the

argument of extraordinary circumstances as a result of an economic

crisis, formulated by the Minister of Labour and Social Affairs. In his

opinion, this argument could be included under Art. 4 par. 3 let. c) of

the Convention, under which forced or compulsory labour is not

considered to include service required in a case of emergency or

calamity that endangers life or the well-being of society, and under

Art. 2 par. 2 let. d) of the Convention concerning Forced or Compulsory

Labour, which establishes this exception for work required in cases of

emergency that would endanger the existence or the well-being of the

whole or part of the population. However, the Constitutional Court

emphatically rejects such an assessment.

 

39. The

reference to the ongoing economic crisis is, above all, very vague, and

it does not in any way indicate in what way the obligation of job

seekers to accept an offer of public service is supposed to contribute

to overcoming it, or overcoming its consequences. The aim of the

obligation, though one can have reservations regarding the ability of

this obligation to achieve it, is primarily directed at the protection

of individual job seekers from the consequences of (not only) long-term

unemployment. This does not mean that the aim is not compatible with the

public interest in reducing unemployment and that achieving it could

not, in a wider context, contribute to economic development, but this

connection is very abstract, and it could be justified by basically any

sort of work obligation, so the Constitutional Court cannot consider it

to be adequate. This exception could be accepted only if a certain

obligation was imposed precisely for the purpose of preventing or

removing a danger that would threaten lives and health or property

values (well-being). By the nature of the matter these must be

obligations of an extraordinary nature, which does not rule out imposing

them for a longer period. However, the obligation of job seekers to

perform public service is not a means for removing some extraordinary

situation, but is conceived as a permanent measure within the active

employment policy, intended to preserve job seekers’ work habits and

prevent them from being socially excluded. For these reasons it cannot

be included in any of the abovementioned exceptions.

 

40. For

all these reasons the Constitutional Court concluded that the

obligation of job seekers to accept an offer to perform public service,

which is a condition for their continued listing in the register of job

seekers, is inconsistent with the prohibition of forced labour under

Art. 9 par. 1 and Art. 26 par. 1 of the Charter, Art. 4 par. 2 of the

Convention and Art. 8 par. 3 let. a) of the International Covenant on

Civil and Political Rights, and also violates the prohibition of

arbitrariness under Art. 1 par. 1 of the Constitution and the principle

of equal dignity under Art. 1 of the Charter, or the right to

preservation of human dignity under Art. 10 par. 1 of the Charter.

 

 

VII./d
Review of consistency with the right to appropriate material security during unemployment under Art. 26 par. 3 of the Charter

 

41. Setting

a new reason for removing someone from the register of job seekers as a

result of refusing an offer to perform public service also functions as

a change to the conditions for the creation and continued existence of

an entitlement to support during unemployment, because this entitlement

can arise only for a listed job seeker (§ 39 of the Act on Employment).

Thus, its primary consequence is a fundamental limitation of the

entitlement, which, upon expiration of two months, becomes an

entitlement that is conditioned on the acceptance of a possible offer.

This is undoubtedly a very fundamental change, which, depending on the

age of the job seeker who refuses an offer, can mean shortening the

support period by 3, 6 or even 9 months, and can thus have a fundamental

negative effect on his social situation. Therefore, simply for this

reason doubt arises from the fact that the legislature did not in any

way take into account the legitimate expectations of participants in

this insurance in relation to the decisive period and did not provide

appropriate transitional measures that would establish a longer time

period for such changes. However, before the Constitutional Court could

weigh the possible intensity of this action in terms of the principle of

legal certainty or confidence in the law, it had to ask a more general

question, whether this limitation can be accepted in view of the content

of the obligation.

 

42. The

Constitutional Court again emphasizes that public service is a public

law relationship; those performing it, if they are job seekers, despite

performing employment [“dependent work”] of up to 20 hours a week,

remain formally unemployed, and they are denied rights that they would

have as employees in basic employment law relationships. Thus, their

obligation to accept an offer to perform public service in fact

establish a new condition for them to receive support in unemployment,

which consists in the performance of an activity that is de facto

nothing other than employment, and the obligation thus changes the very

meaning of the support, because, as the Minister of Labour and Social

Affairs openly stated in his statement, it becomes compensation for

public service. However, this completely denies the aim for which

support in unemployment is meant to be provided, and especially, for

which the relevant insurance premiums are paid. The job seekers must

again work off the benefits to which they should already be entitled

under the law as a result of the occurrence of the insured event. In no

event is this only an obligation whose aim is to be inspection of

whether the conditions for the entitlement actually exist, e.g., whether

the job seeker really cannot perform employment through no fault of his

own. Finally, we cannot leave unnoticed the unjustified inequality that

arises among job seekers as a result of setting a new reason for

removing someone from the register of job seekers under § 30 par. 2 let.

d) of the Act on Employment.

 

43. The

reasons thus summarized justify the conclusion that the contested

legislative framework affects the material existence and actual

implementation of the essential content of the constitutionally

guaranteed social right to appropriate material security during

unemployment under Art. 26 par. 3 of the Charter, because, after only

two months, moreover in some cases without any objectively reviewable

reasons, permits removing job seekers from the register of job seekers,

with the described consequences of losing appropriate material security.

 

 

VII./e
Review of consistency with the right to fair compensation for work under Art. 28 of the Charter

 

44. To

conclude this part of the judgment the Constitutional Court considered

the question of whether the contested provisions are consistent with the

right to fair compensation for work under Art. 28 of the Charter. Its

essence is the principle that the performance of employment [“dependent

work”] in any form of an employment law relationship entitles employees

to compensation, and in this case too the legislature has wide

discretion to determine how it will ensure that this is applied,

including the ability to regulate the manner and level of compensation.

 

45. To

evaluate the consistency of the contested provisions with this right it

is sufficient to answer two questions, those being whether the

principle contained in Art. 28 of the Charter also applies to the

performance of public service, and if so, whether the benefits that the

law accords to job seekers as material security during unemployment can

be considered fair compensation. Regarding the first question, we must

state that the institution of public service under § 18a of the Act on

Assistance in Material Need does create a framework for performance of

activity that may have the nature of dependent work [employment] without

entitlement to compensation, but the Act does not attach any penalty to

refusal of that activity. Nor can such a penalty be agreed to in a

written contract of a public law nature, which represents the legal

basis for performance of public service, because a regional branch of

the Labour Office lacks the necessary statutory authorization to make

such an agreement. However, these characteristics are applied only in

the event that the public services is performed by persons in material

need or persons listed in the register of job seekers for a period of

not more than two months. In contrast, if they were listed as job

seekers for a longer period, then they would be subject to the

obligation to accept the offer of public service under § 30 par. 2 let.

d) of the Act on Employment, and under Art. 28 of the Charter they would

have to be considered to be employees, who must be entitled to

compensation for performing employment [“dependent work”].

 

46. It

is obvious that the lack of any compensation whatsoever in the case of

the obligation of job seekers to perform public service would be

impermissible interference in the very essence and significance of their

right to fair compensation for work, because this right would be

completely denied (the second step of the reasonability test). As

already mentioned, in terms of the Charter the performance of employment

[“dependent work”] must be viewed in all its aspects, not only as an

independent activity. It is precisely the compensation for work that is

the counter-performance that motivates an employee to perform the work

and best illustrates the mutual positions of both parties in labour law

relationships. At the same time, it permits employees to create

conditions for a dignified life and the creation and maintenance of

social relationships. Therefore, it is very difficult to understand how

the performance of public service without an entitlement to a wage is

supposed to lead to renewing and preserving work habits. In this regard

the law actually creates worse conditions for those performing public

service than for those serving a prison sentence, who, in contrast, if

they are assigned to perform work, are guaranteed an entitlement to

compensation (§ 33 par. 1 of Act no. 169/1999 Coll., on Serving a Prison

Sentence, and Amending Certain Related Acts). A different procedure

with sentenced persons would cast doubt on the very re-socialization

function that this assignment is meant to fulfill [cf. decision of the

German Constitutional Court of 1 July 1998 file no. 2 BvR 441/90

(BVerfGE 98, 169)].

 

47. It

remains to answer the second of the posed questions, or what can be

considered fair compensation. However, it is sufficient here to refer to

the abovementioned reasoning, that support during unemployment and

other rights that form appropriate material security in that event,

pursue different aims, and cannot be considered as compensation or

counter-performance for the performance of public service. To illustrate

the absence of any connection, we can point to the fact that the level

of these benefits changes according to criteria that have no

relationship to the work performed. A person performing public service

who was given the offer after two months in the register of job seekers

will for several months receive all the benefits, including support

during unemployment. However, if, after the end of the support period he

continues to perform the same work, then he will do so only through an

“exchange” for other rights, in particular payment of health insurance.

In fact, this will also be the case during the period when he does not

receive unemployment benefits because of receiving severance pay (cf. §

44a of the Act on Employment). Therefore, the Constitutional Court

states that § 30 par. 2 let. d) of the Act on Employment is not

consistent with the right of employees to fair compensation for work

under Art. 28 of the Charter, and also under Art. 7 let. a) of the

International Covenant on Economic, Social and Cultural Rights.

 

48. This

ground for derogation does not apply in relation to the possibility of

job seekers to perform public service under § 18a of the Act on

Assistance in Material Need, which the petitioners also seek to have

annulled in a section of the petition. Thus, public service remains the

legal form of performing activity for one of the purposes defined in

this provision, the use of which by persons in material need or by job

seekers depends fully on their consent. The question of what motivation

these persons will have to perform it, which naturally arises in this

regard, exceeds the scope of this constitutional law review.

 

 

VII./f
Summary

 

49. For

all the stated reasons, the Constitutional Court concluded that § 30

par. 2 let. d) of the Act on Employment, as amended by Act no. 367/2011

Coll., is inconsistent with Art. 1 par. 1 of the Constitution, Art. 1,

Art. 9 par. 1, Art. 10 par. 1, Art. 26 par. 1 and 3 and Art. 28 of the

Charter, Art. 4 par. 2 of the Convention and Art. 8 par. 3 let. a) of

the International Covenant on civil and Political rights and Art. 7 let.

a) of the International Covenant on Economic, Social and Cultural

Rights. The Court did not find justified the proposal to annul § 18a

par. 1 of the Act on Assistance in Material Need, as amended by Act no.

366/2006 Coll., in the part expressed by the words “and persons listed

in the register of job seekers54),” which, in view of the petitioners’

arguments, was to be reviewed only as to its consistency with Art. 28 of

the Charter.

 

 

VIII.
Review

of constitutional conformity of the obligation of new registration of

providers of health care services under § 121 par. 1 and 5 of the Act on

Health Care Services

 

50. The

petitioners and the group of senators, which has secondary party status

in this proceeding, also see § 121 par. 1 and 5 of the Act on Health

Care Services as inconsistent with the prohibition of retroactivity and

the principle of legal certainty under Art. 1 par. 1 of the Constitution

and with the right to conduct business under Art. 26 par. 1 of the

Charter. They point to the fact that the operators of non-state health

care facilities, who conduct their activity on the basis of a decision

on registration under the Act on Medical Care in Non-State Medical

Facilities, must re-apply for a permit to provide health care services.

The application presumes re-submission of certain documents, which can

result in a disproportionate burden on these subjects. However, the

petitioners’ objections are also directed against the fact that their

existing authorization is to expire by law upon the expiration of 36

months from the day the Act on Health Care Services goes into effect,

even though the affected operators of non-state health care facilities

have not committed any sort of wrongdoing.

 

51. In

this matter, the Constitutional Court had to consider the question of

whether the change of legal status of the existing operators of

non-state health care facilities implemented by the contested provisions

justifies a conclusion that the interference in their legal certainty

is of such intensity that it would justify concluding that the

provisions are inconsistent with the principles of a state based on the

rule of law under Art. 1 par. 1 of the Constitution. It reviewed this

question together with the possible interference in the right to conduct

business under Art. 26 par. 1 of the Charter, because, in view of the

nature of the legal relationships affected by the contested provisions,

one can assume that any interference of such intensity into legal

certainty will also affect the other right.

 

52. The

Act on Health Care Services sets conditions for obtaining authorization

to provide health care services which do limit the possibility of

conducting business in this field; however, the need for them is

justified at a general level by the requirement of the appropriate level

of expertise in providing health care, though the Constitutional Court

does not at this point state a position on the particular legislative

framework. In their petition, the petitioners do not in any way dispute

the new framework. They see violation of Art. 26 par. 1 of the Charter

only in the treatment of the issue of continued validity of the

authorization of those health care services providers who, after the Act

on Health Care Services goes into effect, perform their activity on the

basis of registration under the Act on Health Care in Non-State Health

Care Facilities. Specifically, they argue against subjecting the

provision of health care services to a requirement of obtaining a new

authorization under the Act on Health Care Services. Their starting

point is the assumption that it is only as a result of this consequence

that existing operators of non-state health care facilities, in the case

of individuals, or their professional representatives, in the case of

individuals who do not have the required expert qualification or legal

entities, will be required to prove their professional specialization

under Act no. 95/2004 Coll., while otherwise it would be sufficient for

them to have specialization under the regulations that preceded this

Act. The Constitutional Court does not agree with this assessment.

 

53. In

its transitional provisions, Act no. 95/2004 Coll. specified in detail

in what manner, or also under what conditions, specializations obtained

under existing legal regulations will be considered to be

specializations under the new Act and its implementing regulations. This

is legislation that went into effect several years before the Act on

health Care Services went into effect, and was also relevant in relation

to person through whom non-state health care facilities provided health

care in accordance with existing legislation. Thus, even during the

time when the Act on Health Care in Non-State Health Care Facilities was

in effect, the loss of competence to conduct a health care profession

under § 13 par. 1 let. a) of Act no. 95/2004 Coll. could lead to

termination of registration, which, understandably, also applied to

cases where requirements were not met for a specialization under

previous legal regulations to be considered specialization under the

latter Act. Thus, the contested provisions do not present any change

from the existing legal situation as regards the requirement of

specialization for physicians, dentists, and pharmacists.

 

54. The

foregoing means that acquiring a new permit to provide health care

services under § 121 par. 5 of the Act on Health Care services does not

require existing operators of non-state health care facilities to have

higher or different qualification of those employees who are physicians,

dentists or pharmacists. Therefore, in the case of the contested

provisions, if one can even consider whether a consequence of them is a

further limitation of the right to do business under Art. 26 par. 1 of

the Charter, it can only be on the grounds of a time limitation on the

ability to provide health care services on the basis of existing

registration and on the grounds of the new administrative burden that is

unavoidably tied to the acquisition of a new permit. The first reason

is also cited by the petitioners. Therefore, the Constitutional Court

reviewed whether these provisions, which set new conditions for the

ability to provide health care services, as interference in the right to

practice a particular profession or conduct activity, will stand up to

the proportionality test.

 

55. The

provisions are mutually related in content, and they can be seen as a

single whole, because both are components of the treatment of the

intertemporal effects of the Act on Health Care Services on existing

legal relationships. Nonetheless, a certain problem arises already in

the first step of the proportionality test, i.e. identification of an

aim that can justify the interference in a fundamental right. In the

case of the contested provisions, it would be possible to formulate the

aim of the time limitation on the existing authorization and the related

requirement of a new authorization to provide health care services as

an interest in having all providers of health care services, after the

end of the transitional period, conduct their activity on the basis of

authorization under the Act on Health Care Services. However, an aim

formulated thus is not sufficient, for the reason that it itself

includes the aim of limiting the right to conduct business under Art. 26

par. 1 of the Charter, which, however, cannot be a purpose in and of

itself. In order to stand up to the test, its wording would have to

provide an understandable answer to the question of why this limitation

is to take place, that is, why are all providers of health care services

supposed to have an authorization issued when this Act is in effect.

However, such an answer cannot be derived from the contested provisions.

 

56. As

indicated by their content, as of the day the Act on Health Care

Services goes into effect, the same legislative framework applies to all

providers of health care services, regardless of whether they conduct

their activity on the basis of existing registration or a new

authorization. The Act thus enabled existing operators of non-state

health care facilities to function for a certain time under the regime

of the new statute, without that change requiring these subjects to meet

any special conditions. However the submission of an application under §

121 par. 5 of the Act on Health Care Services does not carry any

obligation to prove new qualification or other prerequisites that would,

as regards the requirements for obtaining an authorization to provide

health care services, permit distinguishing in this regard between

providers on the basis of registration under existing legislation, who

need not meet these requirements for now, and providers with

authorization under the new law, to which the new legislation applies in

full. The application basically requires only presenting data that had

to be contained in an application for registration under § 10 of the Act

on Health Care in Non-State Health Care Facilities, and which the

relevant administrative offices have at their disposal.

 

57. The

purpose of the requirement for a new authorization was not formulated

either by the Minister of Health in his statements nor by the

professional associations approached by the Constitutional Court, which,

in contrast, pointed out that this requirement is unnecessary. Even the

background report to the government bill does not give an answer to the

question of an aim, because its original version assumed that the

existing operators of non-state health care facilities would be able to

provide health care services on the basis of their registration without

any time limitation. The change was not made until the amending proposal

from the Health Care System Committee, which did not contain any

reasons for it.

 

58. In

the case of the contested provisions, the Constitutional Court was not

able to identify any aim that could be furthered by subjecting the

further provision of health care services to the requirement of a new

authorization that is not tied to documentation of any new facts. The

prohibition on arbitrariness that follows from the principle of a state

governed by the rule of law under Art. 1 par. 1 of the Constitution does

not permit the legislature to impose an obligation, or a limitation of a

particular fundamental right, the fulfillment of which has no

objectively perceptible aim that would constitutionally approve this

interference. If the legislature also tied a certain penalty to the

violation of this obligation, it would be appropriate, depending on its

content, to consider whether it is chicanery. In the case of the

contested provisions, the Constitutional Court is aware that the

requirement for a new authorization does not represent a significant or

even intolerable burden. The legislature established simplified

conditions for obtaining it and created an adequate time frame for

applying. However, these facts are significant for evaluating the

intensity of the interference in a fundamental right, which can be

evaluated only in relation to the aim pursued. On the contrary, its

absence justifies a conclusion that the obligation in question is of an

arbitrary nature, because a limitation on the rights and freedoms of an

individual that is an aim in and of itself is not acceptable in a state

governed by the rule of law.

 

59. Therefore,

the Constitutional Court concluded that the obligation of existing

operators of non-state health care facilities to obtain a new

authorization for the provision of health care services and the

connected time limitation on providing them on the basis of registration

under the Act on Health Care in Non-State Health Care Facilities is

inconsistent with the principle of arbitrariness, which arises from the

principles of a state governed by the rule of law contained in Art. 1

par. 1 of the Constitution, and is also a violation

 of

the right of these subjects to conduct business under Art. 26 par. 1 of

the Charter. This reason for derogation affects part of the contested §

121 par. 1 of the Act on Health Care Services expressed by the words

“for a period of no more than 36 months from the day this Act goes into

effect, unless provided otherwise,” in par. 4 first sentence the words

“but no later than 35 months after the day this Act goes into effect,”

including the preceding comma, and par. 4 second sentence and § 121 par.

5 of the same Act; for that reason the Constitutional Court ruled to

annul them.

 

 

IX.
Review of the constitutional conformity of collecting and publishing certain data on health care workers

 

60. The

group of senators that is a secondary party in this proceeding in its

petition seeks the annulment of § 70 to 78 of the Act on Health Care

Services, which newly regulate the National Health Care Information

System. The Constitutional Court states here that some of the objections

raised do not qualify for a review on the merits. The secondary parties

do state, on a general level, that the purpose of this system is

defined very generally, but they do not further clarify whether their

objection disputes the aim of all the component (and relatively

independent) registers that it comprises, or only some of them. The

Constitutional Court also considers indefinite the claim that, in

contrast to the original legislative framework, there is no new

provision of the manner in which the database is to be technically

created and how the data in it are to be coded, and that the scope of

data that are to be made anonymous is not provided. In this case as well

the secondary parties do not specify what part of the National Health

Care Information System their objections are directed against, and apart

from the reference to certain provisions of the Charter and of the

Convention on Human Rights and Biomedicine do not present any

consideration that would indicate the reason why the stated facts are

alleged to be inconsistent with the constitutional order.

 

61. The

secondary parties met the burden of proof only in that part of their

judgment [sic] that is directed against the legislative framework for

the National Register of Health Care Workers. The secondary parties

specifically object to the scope of data contained in it about health

care workers, which, moreover, will be newly published on the relevant

webpages. At the same time, they do not see any purpose for the

duplicate collection of personal data about physicians, dentists, and

pharmacists. As is evident from their petition, they believe that these

facts make the contested legislative framework inconsistent with the

right to protection from unauthorized collection, publication, or other

misuse of personal data under Art. 10 par. 3 of the Charter and the

right to protection from interference in private life under Art. 10 par.

2 of the Charter.

 

62. The

provisions of § 70 and 73 of the Act on Health Care Services and the

background report to it indicate that the purpose of processing personal

data in the National Register of health care workers is to obtain

information about the staffing for the provision of health care services

for the management of the health care system and formation of health

policy, as well as for scientific and statistical purposes. The last

purpose which is, though implicitly, expressed in the abovementioned

contested provisions, is to ensure public access to these collected data

about health care workers. Thus, the Constitutional Court could turn to

evaluation of the legislative framework of the register from that

viewpoint, whether its purposes can be considered sufficient to justify

interference in the fundamental right for informational

self-determination under Art. 10 par. 3 of the Charter, and if so,

whether the obligation imposed in order to achieve them, to disclose

personal data, or to tolerate the processing and publication of the

data, will stand up in terms of proportionality.

 

63. The

first cited purpose, obtaining data on staffing for the provision of

health care for managing the health care system and the creation of

health policy, undoubtedly can be described as constitutionally

approved. Creating a register containing data on health care workers,

specifically their identification and contact data [§ 76 par. 1 let. a),

b) and d) of the Act on Health Care Services], basic data on their

structure [§ 76 par. 1 let. c), e), in essence also let. j) of the Act

on Health Care Services], on their qualifications [§ 76 par. 1 let. g),

h) and k) of the Act on Health Care Services] and data related to the

performance of the health care profession [§ 76 par. 1 let. i), j), l),

m) and n) of the Act on Health Care Services], is also a means that is

capable of achieving the declared aim. These date permit the relevant

state bodies to evaluate to what extent the provision of health care (or

health care services) is ensured at the statewide and regional level in

terms of the number and qualifications of health care workers, to

record and assess relevant changes, including various aspects of the

migration of health care workers, and to adopt necessary measures which

they consider useful in order for a possible shortage not to endanger

citizens’ access to health care in the short or long term. In a wider

context they thus contribute to the protection of the constitutional

values of life, health and human dignity.

 

64. In

the next step of the proportionality test the Constitutional Court

reviewed whether the contested framework will stand up in terms of the

requirement of necessity. A substantial part of the data in the register

is already recorded in connection with the creation and existence of

health care workers’ authorization to conduct the activity in question,

as in the case of physicians, dentists and pharmacists these data are

maintained by the relevant professional associations, who keep them as

part of their member lists. However, this duplication is not decisive

for evaluating necessity. The new register is intended to serve for

evaluating the staffing for the provision of health care services for

purposes of managing the health care system, i.e. undoubtedly a

different purpose from that which justifies maintaining the lists in

individual associations. It is also processed by a different subject,

and, as a whole, includes a much wider scope of data about a greater

number of subjects. Therefore, the mere establishment of it cannot be

considered unreasonable or even arbitrary, and the requirement of

necessity in this case must be evaluated in terms of the data processed

and the manner in which they are handled, in connection with its

purpose.

 

65. Above

we outlined the connection of individual data to the pursued aims,

which is also the starting point for evaluating the necessity for the

extent of data processed. The Constitutional Court is of the opinion

that in the case of identification data of health care workers, data

about their structure (sex, age, citizenship), and qualifications

(education, specialization) and practice of a health care profession

(place of work, date of beginning, interruption and ending of work) the

aim for which these particular data are required is obvious. All these

areas basically involve basic data without which it would not be

possible to obtain the information that is the aim of the data

processing. preserving identification data during the period that one

practices the profession allows inspection of the processed data, if

they are provided by several subjects, as well as tracking changes,

including the time aspect.

 

66. The

remaining data are related to the practice of a health care profession.

Whereas the abovementioned assessment applies without anything further

to data about whether the person is a visitor or permanent staff member,

about the health care provider where the health care worker is

employed, and about the region, in the case of data concerning loss of

authorization to practice a health care profession, on the loss of

health qualification, loss of a clean record and the length of the

period for which the conduct of activity is prohibited, it is desirable

to state more detailed reasons. All the terms set forth in § 76 par. 1

let. n) of the Act on Health Care Services must be interpreted from the

standpoint of whether they are relevant in relation to the existence of

the authorization to perform a health care profession or not. A health

care worker’s loss of health qualification or a clean record under § 3

of Act no. 95/2004 Coll. or § 3 of the Act on Non-Physician Medical

Professions automatically means that a person may not continue to

practice his profession, and the loss of authorization to conduct a

health care profession (e.g., expulsion from a professional association)

or imposition of a prohibition on activity have the same consequence.

However, the register does not serve for the collection of particular

data on the health status of health care workers, or about what

particular conduct that met the elements of a crime or disciplinary

violation they committed. These data are not necessary for obtaining

information about whether a health care worker is practicing his

profession. Therefore, for purposes of this register it is sufficient

information that such a situation arose, and its legal classification.

For that reason, the scope of data maintained under § 76 par. 1 let. n)

of the Act on Health Care Services must be interpreted restrictive, in

the abovementioned sense.

 

67. As

regards access to the processed data, a fundamentally important

provision is § 76 par. 2 let. a) of the Act on Health Care Services,

under which data processed under paragraph 1 and contained in the

relevant register shall be publicly accessible on the webpage of the

Ministry of Health. The only exceptions are data about national

identification number and residence. Thus, the first question that

arises in this regard is directed toward the purpose of this publication

and whether it can justify such intensive interference in the right to

informational self-determination.

 

68. The

contested legislative framework undoubtedly pursues the aim of

permitting public access to data about health care workers, but the

publication of personal data without the consent of the subject cannot

be a purpose in and of itself, but merely a means to achieving a

different aim, which either must be expressly defined in the law, or

must be possible to derive unambiguously. In this case the legislative

framework does not expressly define a particular aim. Nonetheless, a

legitimate reason for publication can be seen in relation to the data

concerning the actual performance of a profession, similarly as in the

case of the lists kept by professional associations. Mandatory

publication of data about the fact that a certain person is practicing

(and thereby also meets the requirements for) a health care profession,

what qualifications he has for that performance, what his specialization

is and where he practices permits everyone to verify whether he is

being provided services by a person who meets all the requirements

imposed by legal regulations. Persons performing these professions must

be aware that, although the conduct of their activity serves to protect

the life and health of patients, it also carries significant risks

(typical incorrect performance of a particular procedure), and therefore

the ability to verify their qualifications must be seen as a legitimate

means for protection of patients (or a guarantee that they will be

provided health care at the requisite level of expertise) and as a

limitation related to the practice of a profession under Art. 26 par. 2

of the Charter.

 

69. The

cited conclusions undoubtedly justify publication of a significant part

of data under § 76 par. 1 of the Act on Health Care Services, but they

cannot apply to all the data. Date and place of birth, or citizenship,

like the unpublished national identification number or place of usual

residence, are personal data where no reason can be found why they

should be publicly available for all the cited workers. This also

applies to the register of data concerning loss of authorization to

perform a health care profession, on loss of health qualification, loss

of a clean record and the length of time for which performance of the

profession is prohibited. If the purpose of publication is to be the

ability to verify whether a health care worker really meets all the

legal requirements to practice his profession, then the fact that he is

listed in the register is sufficient evidence. However, if he ceased to

meet them, or stopped practicing his profession, then there is no reason

to make his data available. It is sufficient to state these facts

without further details, that is, without any data relating to the loss

of a clean record or health qualification. Therefore, public access to

data on health care workers under § 76 par. 2 let. a) of the Act on

Health Care Services, if it concerns data under paragraph 1 let. b), e)

and n) of the Act on Health Care Services, will not stand up in the

second step of the proportionality test.

 

70. The

Constitutional Court does not rule out the possibility that public

access to the data in question may also have another legitimate aim that

could justify the greater part of these data, or even all of them;

however, the law does not define it and it cannot be unambiguously

concluded, even implicitly. In the end this also applies to the period

during which data are to be published and which is not defined

definitely enough. Although the arguments above indicate that public

access to data under § 76 par. 1 let. n) of the Act on Health Care

Services will not stand in the second step of the proportionality test,

we cannot overlook the fact that the legislature expected this. The

legislature specified that data on the loss of authorization to practice

a health care profession or on a prohibition of activity, or also on

termination of performance of a health care profession [§ 76 par. 1 let.

i) of the Act on Health Care Services] would also be publicly

available, from which it is evident that the legislature intended this

to be so even after a worker ceased to practice his profession. The

question is, however, how long this access is to continue, or what is

the criteria by which one can evaluate whether it is appropriate for the

information on a particular person’s health care profession to be

publicly available, even after the passage of a longer period of time,

without the consent of the subjects or even against their will. If the

aim, as was implicitly concluded, is only to enable the public to verify

the qualifications and authorization of a health care worker who is

currently practicing his profession, then there is no reason for

subsequent (long-term) publication of these data. In this regard as

well, a different aim, one that would justify a longer period of

publication, would have to be provided by law. It remains to be added

that, for these same reasons, one can have doubts as to the period for

which data are supposed to be maintained in the register in a

non-anonymous form. The legislative framework gives no answer to the

question of whether and when they are to be deleted or made anonymous,

and in view of the inadequate definition of the aim no answer is given

by § 20 par. 1 of the Act on Personal Data Protection either.

 

71. The

fact that the scope of publicly available data will not stand in the

second step of the proportionality test is also significant for the

constitutional law evaluation of the access of other subjects. Of

course, there is no problem with § 76 par. 2 let. b) in connection with §

73 par. 2 let. c) of the Act on Health Care Services, which guarantees

health care workers access to the register in the scope of data that

they submitted about themselves. However, in the case of other

authorized subjects under § 76 par. 2, in particular in connection with §

77 par. 1 of the Act on Health Care Services, the question, for what

purpose and in what scope these subjects are to have access to personal

data processed in the register, is not sufficiently addressed. This

shortcoming is partly a consequence of the fact that the legislative

framework fundamentally expected public access to the register in

question. However, even in that case, there would not be a clear reason

why, for example, an educational facility or health care services

providers should have access to the national identification numbers or

addresses of the usual residences of all health care workers. Whether

they will have it depends on a decision by the Ministry of health,

which, under § 73 par. 3 of the Act on Health Care Services ensures

individual workers of an authorized subject access to the register and

determines its scope and purpose; however, in the absence of a

statutorily defined aim for this access, any decision it makes will be

unreviewable, and will be interference in the right to informational

self-determination. Because the condition of a statutorily defined aim

has not been in the case of the majority of authorized subjects under §

76 par. 2 let. c) in connection with § 77 par. 1 of the Act on Health

Care Services, in this case too we can conclude that the contested

framework has not met the requirement of necessity.

 

72. For

all these reasons, the Constitutional Court concluded that the

contested legislative framework for the National Register of Health Care

Workers sets public access to processed personal data in a scope and

for a period that cannot be justified by any constitutionally approved

aim; likewise such a purpose cannot be deduced in relation to the

authorization of certain subjects for the achievement of which the

Ministry of Health is to define the scope of access rights for their

workers. These conclusions affect the evaluation of whether the

contested legislative framework will stand as a limitation of their

fundamental right to informational self-determination under Art. 10 par.

3 of the Charter in the proportionality test, and they justify a

conclusion that in that test, in terms of necessity, § 76 par. 2 let. a)

and c) of the Act on Health Care Services clearly will not stand. At

the same time, it must be emphasized that annulment of these provisions

would have a fundamental effect on the legislative framework of the

register as a whole, because the ability to use it would be considerably

limited, but it would not be possible to evaluate precisely whether it

continues to serve the aim for which it was created. This fact, together

with uncertainty as regards the period of keeping the processed data,

justifies the conclusion that the legislative framework in§ 76 and 77 of

the Act on Health Care Services will not stand in the second step of

the proportionality test as a whole, and is therefore inconsistent with

Art. 10 par. 3 of the Charter.

 

73. To

conclude this part, the Constitutional Court points out that in this

proceeding it did not review the constitutionality of the legislative

framework for the national Health Care Information System as a whole,

but only considered certain aspects of those provisions that apply to

the National Register of Health Care Workers. Therefore, this judgment

does not, beyond the scope of that review, establish the obstacle of res

judicata as regards § 70 to 78 of the Act on Health Care Services, so

nothing prevents the secondary parties (or any other authorized

petitioner) from submitting a new petition against those provisions, in

which they specify the grounds why they seek annulment of them. The

Constitutional Court is aware that the collection and processing of

personal data on the state of health of patients without their consent

is very intensive interference in their fundamental rights and in this

regard it is necessary to impose especially strict requirements on the

legislative framework, in particular as regards setting the aims for

which these data are to be collected and processed, the scope of the

data, the circle of persons who are to have access to the data, the

purpose of that access, the period for which they are to be processed,

and safeguards to ensure that they will not be accessed without

authorization or misused, including measures for subsequent inspection

of the use of the data. In this regard, such a framework must stand in

relation to all personal data that are processed. Therefore, it is

desirable for the legislature, when adopting new legislation for the

National Register of Health Care Workers, carefully weigh, to what

extent the other registers in the National Health Care Information

System will stand from these viewpoints, and by timely action remove any

shortcomings in them that could lead to violation of the right of

patients, health care workers, or other persons to informational

self-determination.

 

 

X.
Review

of the constitutional conformity of the definition of elements of

certain misdemeanors or other administrative delicts in the Act on

Health Care Services and the level of penalties for them

 

74. The

petition from the group of senators was also directed against § 114

par. 1 let. g) and § 117 par. 1 let. e), f), g), n) and r) and par. 3

let. d), e), f), g), h), i) and m) of the Act on Health Care Services,

which define the elements of certain misdemeanors or other

administrative delicts in the provision of health care services. The

secondary parties believe that the upper limit of fines that this Act

sets for committing the cited delicts are, in view of their gravity, set

at a disproportionate level, and thus will not stand in terms of Art. 4

par. 1 and 4 of the Charter. In the case of some of these delicts, the

disproportion is also caused by ambiguity, vagueness, or even

inconsistency of their elements, which does not allow health care

workers to clearly evaluate whether their actions are or are not

consistent with the law.

 

75. Under

the Constitutional Court’s settled case law, a monetary penalty that

has the character of a public law obligation for monetary payment to the

state is interference in the property substratum, and thus also the

property rights of the obligated subject, but it does not in and of

itself mean violation of that constitutionally guaranteed right

(judgment file no. Pl. ÚS 7/03). Evaluation of whether the penalty will

stand as permissible interference generally depends on meeting certain

conditions. First of all, the penalty, including in the case of an

administrative delict, must be provided by statute, which has been met

in this matter (cf. judgment file no. Pl. ÚS 14/09, point 29). However,

the legislation must also stand up to the test of ruling out extreme

disproportionality, that is, whether the interference in

constitutionally guaranteed property rights, connect with the penalty,

does not lead to such a fundamental change in the affected subject’s

property rights that it would mean “ruining the very basis of property”,

i.e. “destruction of the property base” (judgment file no. Pl. ÚS

3/02), or whether it is not a case where the “limit of public law

mandatory monetary performance by the individual vis-à-vis the state

reached a choking (suffocating) effect” (judgment file no. Pl. ÚS 7/03).

However, the legislation can also be reviewed in terms of observance of

the constitutional principle of equality, both accessory equality under

Art. 3 par. 1 of the Charter, which prohibits discriminating against

persons in the exercise of their fundamental rights, as well as

non-accessory equality, enshrined in Art. 1 of the Charter and

consisting of ruling out arbitrariness by the legislature when

differentiating the rights of certain groups of subjects [cf. judgment

file no. Pl. ÚS 36/01, judgment file no. Pl. ÚS 7/03, judgment of 21

April 2009 file no. Pl. ÚS 29/08 (N 89/53 SbNU 125; 181/2009 Coll.),

point 56]. If the considerations thus defined are preserved, the final

word regarding the purposefulness of a monetary penalty at a certain

level is reserved for the legislature.

 

76. The

starting points summarized above are significant for evaluating the

arguments of the secondary parties, which consist of the objection that

the upper limit of the penalties is disproportionate in view of the

gravity of the violations, as well as the uncertainty of their

definition. As regards the first viewpoint, it is obvious that the

objection is primarily an expression of disagreement with how the

legislature used its authority when setting the possible levels of

penalties in the Act on Health Care Services. The secondary parties are

actually seeking reevaluation of them, because they do not consider the

individual administrative delicts to be sufficiently serious to justify

setting penalties at the stated level. However, the Constitutional Court

is not authorized to conduct such a review. Within the framework of an

abstract review it can review the proportionality of contested monetary

penalties, in the meaning of the objection, only in terms of their

possible liquidatory or “suffocating” effect, and even in that case it

cannot limit itself only to consideration of whether the upper limit is

proportional or not. Even if setting a fine at that level, which, in the

case of the contested penalties is CZK 100,000 to CZK 1,000,000, had

that character in relation to a particular group of responsible

subjects, the relevant administrative body has the ability, in each

individual case, when deciding on the level of penalty, to take into

account not only the gravity of the violation and the circumstances

under which it was committed, but also the property situation of the

responsible subject.

 

77. The

obligation to review the effects on the property of the responsible

subject arises directly from the constitutional order, because any

imposition of a monetary penalty is always interference in property

rights under Art. 11 of the Charter, and therefore must stand, in every

individual case, in terms of all the abovementioned constitutional

criteria for review of the level of penalties. If such a penalty is

imposed on a health care services provider for violation of an

obligation relating to the conduct of that business activity, it must be

taken into account whether imposition of the fine does not de fact make

it impossible for the provider to continue his activities. In other

words, it must be reviewed whether the fine does not interfere in the

very essence and significance of the right to conduct business under

Art. 26 par. 1 of the Charter, or whether, in relation to that right, it

does not have a liquidatory effect that is not the aim of the penalty.

For these reasons, the fact that § 118 par. 2 of the Act on Health Care

Services does not mention the possible effects of a penalty on the

property of the responsible subject cannot be interpreted to mean that

an administrative bode need not, or even must not, take them into

account. Nothing about this conclusion is changed by comparison with §

12 of Act no. 200/1990 Coll., on Misdemeanors , as amended by later

regulations, which is applied in the case of a misdemeanor under § 114

par. 1 let. g) of the Act on Health Care Services, or with other

provisions of special statutes that define the limits of administrative

discretion for imposing fines on individuals or legal entities and, on

the contrary, expressly set forth the obligation to take into account

the property situation of the responsible subject. The absence of this

viewpoint in certain legislative frameworks, which is primarily a

negative consequence of the continuing fragmentation and lack of

conceptual unity of the legislation governing administrative punishment,

does not justify a conclusion that the legislature intended to rule out

the obligation of administrative bodies to heed the constitutionally

guaranteed rights of responsible subjects when exercising administrative

discretion. Such an interpretation could not even be considered

constitutional, and in a situation where one can derive the obligation

to take the responsible subject’s property situation into account

directly from the cited articles of the Charter, a different

interpretation must take priority.

 

78. Thus,

annulling the legislation in question would be appropriate only if the

cited viewpoint were ruled out when imposing penalties, which could

typically be the consequence of setting its lower limit at a level that

could have a liquidatory or „suffocating“ effect on at least part of the

responsible subjects [cf. judgment file no. Pl. ÚS 3/02, judgment of 10

March 2004 file no. Pl. ÚS 12/03 (N 37/32 SbNU 367; 300/2004 Coll.),

judgment file no. Pl. ÚS 14/09]. In this case, however, this is a

hypothetical consideration, as the Act on Health Care Services does not

set any lower limit for penalties for the contested administrative

delicts. The possible unconstitutionality of the provision setting the

upper level of penalties, resulting from the ability to set a fine at

such an extremely high level that imposing a penalty at that level would

be impermissible under all circumstances, is clearly ruled out in this

case.

 

79. Therefore,

for all these reasons, the Constitutional Court cannot but state that

the reviewed provisions of the Act on Health Care Services setting

penalties for certain administrative delicts are not inconsistent with

Art. 11 par. 1 in connection with s Art. 4 par. 1 and 4 of the Charter.

The possibility of reviewing specific application of these provisions

from the abovementioned constitutional law viewpoints in proceedings on

constitutional complaints remains unaffected.

 

80.

To conclude this section, the Constitutional Court had to address the

related arguments concerning the uncertainty, vagueness, or

inconsistency, but it did not find this objection to be justified. The

contested provisions are not a case where the wording of a legal

regulation makes it impossible to determine its normative content even

through the use of usual methods of interpretation.

 

 

XI.
Further objections against the Act on Health Care Services or individual provisions thereof

 

81. The

Constitutional Court turned to review of the last submitted petition,

the petition from a group of deputies, which is a secondary party in

this proceeding, seeking annulment of the Act on Health Care Services as

a whole, or annulment of some of its provisions.

 

 

XI./a
The term “health care services”

 

82. In

relation to the Act on Health Care Services, the secondary parties

object that instead of the term “health care,” used by the Charter and

the Constitution, it uses a new term, “health care services,” whereby

it, as a whole, comes into conflict with the constitutional order.

However, the Constitutional Court does not agree with this assessment.

 

83. First

of all, it must be emphasized that the significance of introducing the

term “healthcare services” as the central term of the new legislative

framework is undoubtedly more than a mere change of terminology, and it

can also be seen as an element of a certain cultural or value shift in

the manner in which the society views questions of the doctor-patient

relationship, an individuals‘ responsibility for his health, and the

role of the state in ensuring the availability of health care. The

consequence will be that it will gradually penetrate and establish

itself in people’s thinking, and in time also in the related wider

social discussion on these questions, which can have an effect, among

other things, on the content of a number of existing legal concepts or

institutions. Nonetheless, it is not up to the Constitutional Court to

criticize this change in terms of purposefulness or correctness. It is

only authorized to evaluate its consistency with the constitutionally

guaranteed right to protection of health and provision of health care

under Art. 31 of the Charter; in this sense one can question the basic

starting point of the secondary parties’ arguments, because health care

does not cease to be a legal term (cf. § 2 par. 4 and § 5 of the Act on

Health Care Services). It is not replaced, but merely subordinated under

the wider term “health care services.” Thus, it maintains its

autonomous content, arising from Art. 31 of the Charter. Moreover,

introduction of the new term cannot be interpreted in a manner that

would limit the content of the term “health care,” and thus the relevant

constitutional right also remains preserved. For these reasons the

Constitutional Court considers this objection to be unjustified.

 

 

XI./b
New definition of the standard of health care guaranteed by law

 

84. As

regards objections relating to individual provisions, the secondary

parties are arguing first of all against § 4 par. 5 and § 28 par. 2 of

the Act on Health Care Services. Unlike the existing § 11 par. 1 of the

Act on Care for the Health of the People, under which health care

facilities provided health care “in accordance with the currently

available medical knowledge” the new legislative framework provides

patients the right to provision of health care services only at the

“requisite level of expertise,” which it defines „in view of the

specific conditions and objective possibilities.”

 

85. The

Constitutional Court emphasizes that the statutory obligation that

health care, or health care services, be provided “in accordance with

the currently available medical knowledge” (§ 11 par. 1 of the Act on

Care for the Health of the People) or “under the rules of science and

recognized medical procedures” (the contested provisions), is defined

only in general and its content is made specific by the aggregate of

available knowledge in medical science in a particular period accepted

by professionals in the field and verified by practice. However, that

does not mean that it is defined vaguely or indefinitely for its

addressees. The ability to answer the question of whether a particular

procedure meets it or not must be viewed in the context of the

qualification requirements for the practice of individual health care

professions. This obligation is also defined in a similar manner in Art.

4 of the Convention on Human Rights and Biomedicine, under which any

procedure in the field of health care, including scientific research,

must be conducted in accordance with the appropriate professional

obligations and standards.

 

86. There

is no fundamental difference between the requirements arising from the

existing and new legislative framework as regards the cited part; nor do

the other elements contained in the definition of “requisite expert

care” under § 4 par. 5 of the Act on Health Care Services support a

different conclusion. The requirement to respect a patient’s

individuality arises from the fact that the effect or suitability of a

particular type of treatment or procedure can vary depending on the

patient, and his mental and physical condition. However, taking account

of “specific conditions and objective possibilities,” which undoubtedly

means both the specific circumstances in which health care services were

provided and the current possibilities of individual health care

facilities to conduct the provision of these services in a particular

manner, also cannot be considered a novelty.

 

87. It

is precisely this element of the definition of requisite expert care

that the secondary parties object when they claim that as a result of

it, the Act on Health Care Services (compared to the previous

legislative framework) no longer insists on the best possible treatment

of the patient, i.e. – in other words – that the patient be treated

according to the highest degree of scientific knowledge. However, the

Constitutional Court is of the opinion that this requirement cannot be

derived from the constitutional order. It must be stated, above all,

that defining the conditions under which an individual can exercise the

right to health care belongs to the legislature, under Art. 31 in

connection with Art. 41 par. 1 of the Charter. Its discretion is

limited, on the one hand by the general principles related to the

principle of a state governed by the rule of law, primarily the

principle of equality and the prohibition of arbitrariness, and on the

other hand by the requirement of respecting the essence and significance

of a constitutionally guaranteed right (Art. 4 par. 4 of the Charter),

which, in the case of social rights, generally has the character of a

guarantee of a particular performance or service that pursues some

constitutionally approved aim. Therefore, it is up to the legislature to

define such conditions for the exercise of rights under Art. 31 of the

Charter as will give individual insured persons access to health care

that will meet all the abovementioned requirements for quality. However,

any recognized claims are tied to the framework of health insurance and

the related limiting factor, which is the limited funds available to

pay for health care [cf. judgment of 10 July 1996 file no. Pl. ÚS 35/95

(N 64/5 SbNU 487; 206/1996 Coll.), also the reference to “available

resources” under Art. 3 of the Convention on Human Rights and

Biomedicine]. Therefore, the statutory requirement of a guarantee for

provision of health care at the best level from a worldwide viewpoint,

instead of raising the standard, would most likely lead to that level

becoming unattainable in the great majority of cases, and in view of the

costs, would in fact limit an individual’s access to health care. Even §

11 par. 1 of the Act on Care for the Health of the People, which the

secondary parties consider to be constitutional, did not recognize a

different interpretation. In its case it was also not possible to

overlook the de facto limits (in finance, knowledge and personnel) that

were and are determinative for the extent and form of health care

provided in the Czech Republic. Therefore, the answer to the question of

whether a specific type of treatment will always be the best possible,

or whether another (less expensive) alternative will be given priority

always depends on the legislature’s discretion, or on how it sets the

rules that will be determinative in this question. This legislative

framework of course cannot step outside the limits that the

constitutional order provides for defining the content of a right under

Art. 31 of the Charter. For these reasons, the Constitutional Court

concluded that the contested provisions are clearly not inconsistent

with Art. 31 of the Charter, or with Art. 4 of the Convention on Human

Rights and Biomedicine, with the content of which they agree.

 

 

XI./c
Overlooking the patient’s actual competence to decide on his rights

 

88. The

Convention on Human Rights and Biomedicine states in Art. 6 par. 2 that

“Where, according to law, a minor does not have the capacity to consent

to an intervention, the intervention may only be carried out with the

authorization of his or her representative or an authority or a person

or body provided for by law. The opinion of the minor shall be taken

into consideration as an increasingly determining factor in proportion

to his or her age and degree of maturity.” The secondary parties believe

that § 35 of the Act on Health Care Services is inconsistent with this

provision, because it overlooks the actual competence of minors to give

consent to health care. Instead of that, it merely sets forth an

obligation to record in the health care documentation the opinion of the

minor, or also of a patient who has been stripped of competence to

perform legal acts.

 

89. The

contested provision is based on Art. 6 of the Convention on Human

Rights and Biomedicine, the text of which it basically takes over in

paragraph 1 and further develops in later paragraphs. While this article

assumes that even if a procedure can be performed on a minor only with

the consent of his legal representatives, the minor’s opinion will be

taken into account as a factor whose binding nature grows

proportionately to age and degree of maturity, § 35 of the Act on Health

Care Services only sets forth an obligation to record in the health

care documentation the opinion of the minor patient or patient who has

been stripped of competence to perform legal acts. However, this fact

does not prevent making a constitutionally conforming interpretation of

the provision, which would accord it wider significance, in that the

opinion will be taken into account. Moreover, the Act itself assumes the

provision is relevant, as it addresses a situation where the opinion of

a minor patient or a patient who has been stripped of competence to

perform legal acts differs from the opinion of their legal

representative. Therefore, the Constitutional Court states that it does

not see inconsistency with the constitutional order in the question of

insufficient account being taken of the will of these persons.

 

 

XI./d
Limiting the application of a previously expressed wish

 

90. Further

objections are directed against limiting the validity of a previously

expressed wish under § 36 par. 3 of the Act on Health Care Services to 5

years. The secondary parties do not directly identify the

constitutional norm with which the contested provision is said to be in

conflict, but it is obvious from their arguments that it is Art. 9 of

the Convention on Human Rights and Biomedicine, under which a patient’s

previously expressed wish regarding a medical procedure is to be taken

account if, at the time of the procedure, the patient is not in a

condition where he can express his wishes.

 

 

91. The

institution of a previously expressed wish permits a patient to express

consent or lack of consent with the provision of a particular health

care service or the manner in which it is provided in the event that he

is in a condition in which he cannot express his wishes. The seriousness

of the consequences of this expression of intent requires that there

not be any doubts as to whether the patient in question made it. Lack of

consent to a particular procedure can lead to worsening a patient’s

state of health or even to his death. Therefore, the Constitutional

Court does not consider limitation of this right to be impermissible, if

the law conditions its application on certain formal requirements that

prevent possible misuse of this institution, and permits the actual

content of the patient’s intent to be unambiguously understandable.

 

92. The

purpose of limiting the validity of a previously expressed wish to a

period of 6 years is to protect the patient in view of the assumed

developments in medicine. New medical procedures, which may not have

been known to the patient at the time the wish was expressed, could be a

relevant reason for changing his decision, if he knew about them and

his state of health permitted him to make a decision about the provision

of a particular health care service. Thus, the Act assumes that if a

patient wishes to maintain his previously expressed wish, he must

express the wish (and confirm it), repeatedly, after a certain interval

of time.

 

93. In

this regard, the Constitutional Court posed the question of whether

this framework conflicts with Art. 9 of the Convention on Human Rights

and Biomedicine, which establishes an obligation to take the patient’s

wish into account, without the validity of that wish being in any way

limited by the passage of time. It considers it essential to distinguish

situations where it is possible for a patient to express the wish again

without great difficulties and where, in contrast – in view of his

state of health – it is not possible. It is precisely in these cases

that the contested time limitation comes into conflict with the purpose

of the institution of a previously expressed wish. The patient expressed

the wish precisely for the eventuality that he would not be able to

make his own decisions about himself, but the law conditions the

validity of the wish, in the event that such a situation arises, on a

new expression of will, which, however, the patient cannot make. The

consequences of this shortcoming in the legislative framework can be

demonstrated on the example of a patient with Alzheimer’s disease who,

before his state of health no longer permits him to express consent or

lack of consent with the provision of health care service, expresses in

the prescribed manner his wish that he not be resuscitated in the event

of a heart attack. This wish can be valid for several months or years

after the point when he will no longer be able to give consent, but the

day after the five year period expires it will no longer be possible to

take the wish into account, although, with the exception of the

expiration of that time, nothing has taken place that would cast doubt

on the wish continuing, and the patient himself cannot express his

original wish again. The reasons for the original wish may be an

expression of the patient’s long-term value beliefs, and any general

considerations about the expression of will not being current as a

result of the passage of time may not have any substantive

justification.

 

94. The

Constitutional Court is of the opinion that it is not compatible with

the rights of the patient under Art. 9 of the Convention on Human Rights

and Biomedicine, for his previously expressed wish not to be taken into

account only as a result of the passage of a statutorily provided

period of validity, if the patient does not have a real opportunity to

renew the wish through an expression of intent. In view of the fact that

the contested provisions allows that possibility, it must be seen as a

limitation of the right in question that lacks any constitutionally

approved reason (cf. Art. 26 and 27 of the Convention), as a result of

which it is inconsistent with Art. 9 of the Convention. Of course, this

inconsistency applies only to the last sentence of § 36 par. 3 of the

Act on Health Care Services, under which the validity of a previously

expressed with is 5 years.

 

 

XI./e
Refusal to accept a patient or ending care for a patient

 

95. The

secondary parties point out the serious effect of § 48 par. 1 and 2 of

the Act on Health Care Services, which govern the reasons for ending

care for a patient on the patient’s fundamental rights. However, the

Constitutional Court does not find the reason for ending health care

under § 48 par. 2 let. c) of the Act on Health Care Services to be vague

or uncertain. Under § 28 par. 1 of that Act, and in accordance with

Art. 5 of the Convention on Human Rights and Biomedicine, provision of

health care is tied to the free and informed consent of the patient, and

ending care for a patient is a logical result of a situation where a

patient does not consent to the provision of any health care services.

 

96. Apart

from the stated reason, the secondary parties criticize the lack of an

opportunity to defend against incorrect evaluation of the existence of

reasons for ending care on the part of the health care facility

provider, but this objection is also not appropriate. Refusing to accept

a patient, or ending care for a patient, without the legal conditions

having been met, could have consequences at the level of civil law

relationships, primarily in case of a question of compensation of

damages. Thus, in that sense the affected patient is guaranteed judicial

protection of his right in accordance with Art. 36 par. 1 of the

Charter. We can added that this protection is also supplemented in the

form of administrative inspection in the field of provision of health

care services, because a health care services provider’s actions that

are inconsistent with § 48 of the Act on Health Care Services constitute

an administrative delict under § 117 par. 3 let. a) and b) of that Act.

The secondary parties’ arguments are not justified in relation to the

contested provisions.

 

 

XI./f
Non-provision of health care services

97. The

Act on Health Care Services permits health care workers to not provide

health care services in cases whether their lives are directly

endangered or their health is serious endangered or if it conflicts with

their conscience or religion. The secondary parties believe that the

contested § 50 of the Act on Health Care Services exposes patients to a

risk of endangering their health, or even encourages the commission of a

crime. They criticize the fact that health care workers will not have

to provide assistance without regard to their own risk, although they

have that obligation under the Hippocratic oath and a number of

professional codices.

 

98. The

right to protection of health gives rise to the general obligation of

the state to ensure the provision of health care to citizens, which,

however, does not mean that every health care worker must, regardless of

his conscience or religion, or values that he holds, must always

provide any sort of health care. In terms of this right, it is not

important which health care worker provides the service, but that it be

provided. Insofar as § 50 par. 2 fifth sentence of the Act on Health

Care Services also ensures that the refusal will not happen in a case

where the refusal will endanger the life of the patient or seriously

endanger his health, and the provider is not able to ensure the

provision of health care services by another health care worker, it is

quite obvious that this regulation does not affect the essence of the

right under Art. 31 of the Charter.

 

99. The

situation is different with the non-provision of health care services

under § 50 par. 1 let. b) of the Act on Health Care Services, i.e., in

the event that provision of them would directly endanger the life of the

health care worker or serious endanger his health. This exception

applies regardless of whether the patient is exposed to risk of injury

to health or even death, and in specific cases will actually approve the

consequence that a particular person will not be provided health care

services at all. In this sense the contested provision affects the very

essence of the right to protection of health and to health care;

therefore, we must review whether interference in this right for the

purpose of protection the right of the health care worker to health and

protection of his health will stand up in the proportionality test. In

other words, it is necessary to evaluate whether the right to not

provide health care in view of the risks involved, which is definitely a

suitable (competent) measure for protection the life and health of the

health care worker outweighs the right of the person to protection of

his health, or to the provision of health care.

 

100. In

an abstract review of constitutionality, the scope for answering this

question is limited to general weighing of the conflicting values. The

Constitutional Court believes that the life and health of a health care

worker are values that, in the practice of this profession, are also

entitled to protection, and which justify the existence of limits in the

degree of risk that can be unconditionally required of a health care

worker. However, what can be considered direct endangerment of life or

serious endangerment of health depends on evaluating specific

circumstances. In terms of this review it is important that the

non-provision of health care services must be a necessary measure, and

thus cannot be accepted in a case where the risks tied to provision of

health care could be effectively eliminated in view of these

circumstances. However, it is also true that determining the degree of

risk is not an exact science, and the possibility of objective

evaluation must always be affected by the amount of information that the

health care worker had at his disposal at the relevant moment. If these

conditions are met, we can state that the contested provision permits

limiting the right to health care under Art. 31 of the Charter in a

manner that is consistent with Art. 4 par. 4 of the Charter. Any closer

evaluation of proportionality will be possible only in particular cases

where the contested provision is applied.

 

 

XI./g
Processing a patient’s personal data and maintaining health care documentation

 

101. The

objection directed against the legislative framework for the processing

of a patient’s personal data, and specifically the handling of his

national identification number under § 52 of the Act on Health Care

Services consists only of a claim that it is inconsistent with a number

of provisions, primarily of the Charter and of the Convention, but the

secondary parties have not in any way indicated what specifically this

inconsistency is supposed to consist of. Therefore, the Constitutional

Court did not review it, and did likewise with the secondary parties’

objection to § 53 and 54 of the Act on Health Care Services, which

govern the manner of maintaining health care documentation.

 

 

XI./h
Defining the position of an expert representative

 

102. The

secondary parties’ last objection was directed against § 14 of the Act

on Health Care Services, which provides conditions for appointing a

certain person as the expert representative of a health care services

provider. Their criticism of the contested provision is that it

uncertainly defines what an expert representative is responsible for and

that it allows one person to function as the responsible representative

for up to two health care facilities. They see inconsistency with the

right to payment-free health care under Art. 31 of the Charter in

insufficient guarantees that this care will be provided at an adequate

level of quality.

 

103. The

Constitutional Court is of the opinion that allowing the possibility

that one person will be the expert representative of up to two providers

does, in a wider sense, affect the quality of the provision of health

care services, but its content does not in any way cast doubt on the

existence of effective guarantees. The limitation, under the condition

that the person must conduct his function in a scope necessary for the

proper expert management of the health care services provided, is

directed toward the aim that the function not be performed for several

providers, merely formally. However, it is not up to the Constitutional

Court to evaluate whether this provision is suitable and correct, that

is, whether it is sufficient to limit it to two health care facilities.

The Court’s review can only concern the already cited question of ruling

out arbitrariness, which the contested provision will undoubtedly meet,

as it is capable of achieving its aim and it cannot in any case be

described as unreasonable. Therefore, the secondary parties’ petition is

not justified in relation to this provision.

 

104. The

secondary parties did not raise any objections to the other provisions

of the Act on Health Care Services, so the Constitutional Court did not

review their consistency with the constitutional order.

 

 

XII.
Formulation of derogatory verdicts and their legal consequences

105. For

all the cited reasons the Constitutional Court ruled that § 30 par. 2

let. d) of the Act on Employment, as amended by Act no. 367/2011 Coll.,

in § 36 par. 3 the words “The validity of a previously expressed wish is

5 years,” § 76 and 77, in § 121 par. 1 the words “for a period of no

more than 36 months after this Act goes into effect, unless provided

otherwise,” including the preceding comma, in par. 4 first sentence the

words “but no later than 36 months after the day this Act goes into

effect,” including the preceding comma, par. 4 second sentence and par. 5

of the Act on Health Care Services are inconsistent with the

constitutional order; therefore, it annulled them under § 70 par. 1 of

the Act on the Constitutional Court.

 

106. The

Constitutional Court did not find the remainder of the petition to be

justified, and denied it under § 70 par. 2 of the Act on the

Constitutional Court.

 

Instruction: Decisions of the Constitutional Court cannot be appealed.

 

Brno, 27 November 2012


Pavel Rychetský
Chairman of the Constitutional Court