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Pl. US 25/94 JUDGMENT The Constitutional Court of the Czech Republic in the Name of the Czech Republic

Name of Case

Pl. US 25/94 JUDGMENT The Constitutional Court of the Czech Republic in the Name of the Czech Republic

Keywords, Context, On what breach of law was the case brought? Process, Result of case, What has this case done to further the right to education?

Keywords

Meaning of free, accessibility, materials, free education, text books, Czech Republic, charter of rights, national law, national level, court suggested monist system, limitation on right.

Context

On 4 November 1994, the Court received from a group of Deputies of the Parliament of the Czech Republic a petition commencing a proceeding on the annulment of Government Regulation No. 15/1994 Sb. on the Provision Free of Charge of Textbooks, Teaching Texts, and Basic School Materials which set out the principle that teaching aids (exercise books, pencils, colour box, ruler, etc.) will be provided to all children in the Czech Republic.

On what breach of law was the case brought?

The Group of Deputies asserted that Regulation 15/1994 was in conflict with:

-          Article 33 of the Czech Republic’s Charter of Fundamental Rights and Basic Freedoms 1991 (part of, and with the same legal standing as, the Czech Constitution), which guarantees to all citizens the right to elementary and secondary education free of charge;

-          Article 28 of the Convention on the Rights of the Child pursuant to which the Czech Republic as a State party bound itself to establish education free of charge for all children and to establish, also free of charge, secondary general and specialist education and, in cases of need, to provide financial support as well.

-          Article 41 of the Convention on the Rights of the Child,Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:

o       (a) The law of a State party; or

o       (b) International law in force for that State.’

-          Article 5 para. 2 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) according to which, in case of a conflict between domestic and international rights, those rights shall be applied which were, on the day the international  treaty entered into effect, more favourable for persons under the jurisdiction of the State Party.

Process

 

 

Result of case

While assessing the demand that text books should also be provided free of cost as part of “free education”, the Court held that "free" does not imply that the State has to bear all costs.

The Court stated that “free” in primary education means that the State would bear the costs of establishing schools, their maintenance and operation. However, tuition and teaching materials need not be free.

The Court stated the following:

‘Legal norms of a lower legal force must be in conformity with legal norms of a greater legal force. Proceeding on the basis of this universally recognized principle, it follows that a Government Regulation must be in conformity not only with constitutional acts but also with international treaties under Article 10 of the Constitution of the Czech Republic and "ordinary statutes".
[Note.This is an example of a monist system of law whereby International treaties are automatically incorporated into domestic law. See the section on monist and dualist systems on the website].
All legal norms of a greater legal force (that have a bearing on Government Order No.15/1994 Sb.) guarantee the right to education free of charge. The mentioned
Government  Regulation, No. 15/1994 Sb., does not restrict the right to education free of charge, nor does it affect it substantially. Education free of charge unquestionably means that the state shall bear the costs of establishing schools and
school facilities, of their operation and maintenance, but above all it means that the state may not demand tuition, that is, the provision of primary- and secondary-level education for payment.
The provision on the degree to which the government provides free textbooks, teaching texts, and basic school materials cannot be placed under the heading of the right to education free of charge. According to the interpretation of this concept proposed by the petitioners, the state should see to the provision of everything directly related to attendance at elementary and secondary schools, for example, galoshes, briefcases, pencil cases, writing equipment, physical education gear, etc. It is clear that its duty to ensure education free of charge cannot impose on the state the obligation to bear all related costs incurred by citizens when pursuing their right to education and the Government undoubtedly has authority to proceed in this way. In no way does this cast into doubt the principle of elementary and secondary education free of charge.
The costs connected with putting the right to education into effect can be divided between the state and the citizen, or the latter's legal representative. It is appropriate to keep in mind that it is in the citizen's own interest to obtain education (and by this way also higher qualifications and better opportunities to make one's way in the labour market) and to make an effort him (or her)self to achieve it. The expenses connected with putting the right to education into effect are a long-term investment into the life of the citizen. The state bears the essential part of these costs, however, it is not obliged to bear all of them.’

What has this case done to further the right to education?

That so many books were on a secondary school reading list meant that it would be unreasonable to expect the State to provide each one for every individual pupil. The problem the petitioners had was that although they weren’t asking for so many books, it was not possible to draw a legal line between a reasonable number of books to be provided and 650 books.

The petitioners in this case had asked for all direct costs to be met by the State. However, the Court might have felt it difficult to draw the line between a direct cost and an indirect cost.

As such, the Court might have been wary of ordering something that was possibly reasonable in that particular case as it could be interpreted in future to cause the State to have to provide something wholly unreasonable. If the Court had ordered that the State should provide for all costs associated with education, the principle of precedent (see section on caselaw as a precedent on the website) would have made it very hard for a future court not to decide that any cost even remotely associated with accessing the education system should be provided by the State. In the same way that the Court would not have wanted to have left the Government facing massive costs for lengthy booklists for each child, it also would not want to risk opening the floodgates for claims of spurious costs vaguely associated with attending school.

It is important to ask courts for specific remedies so that the court does not feel it will be at risk of setting an unquantifiable and unpredictable obligation on the State.

See the section on the website relating to what to ask for when taking a case.
The Court felt that there are some costs that should be paid for by the individual and some by the State but as there was not a clear line between that which would be justified in asking the State to pay for and that which would be justified for the individual to pay for, it decided that it would be best for the State to be left to decide what it had to provide.
See the cases on progressive realisation and budget interfering. Note that in those cases which were successful, it was generally the basic right that had not been fulfilled. In this case, the basic right to education had been fulfilled and on that basis the Court noted in its judgement, quoted above, that; ‘Education free of charge unquestionably  means that the state shall bear the costs of establishing schools and
school  facilities,  of their operation  and  maintenance,  but above-all it means that the state may not demand tuition,  that is, the provision of primary- and secondary-level education for payment.’

 

 

The petitioners argued that the concept of free education means that the state should provide everything directly related to the attendance at elementary and secondary schools, for example school text books, bags, pencil cases, writing equipment, physical education equipment, etc. 

The government argued that under § 4 para. 2 of Act No. 29/1984 Sb., on the  Basic and Secondary School System (the Education Act), pursuant to which the Government is to designate the extent  to which textbooks, teaching texts, and basic school materials will be provided to students free of charge. Education free of charge as called for in Article 33 para. 2 of the Charter of Fundamental Rights and Basic Freedoms is to be understood as referring to the right of students to be provided with instruction in suitable buildings, the wages of qualified instructors and further personnel, the costs of  the operation and maintenance of the  buildings, free use of educational aids, that is, those which are owned by the  school and which it uses for its own instruction (models, chemicals, chalk, wall  maps  and pictures, etc.). In effect, the state shall bear the costs of establishing schools and school facilities, of their operation and maintenance, but above all it means that the state may not demand tuition, that is, the provision of primary and secondary education for payment.

However, the Government was of the view that making textbooks and education materials available free of charge cannot be interpreted as a basic human right… Students, or their parents, are to pay for educational materials which are owned or used by the students, with the exception of materials which the state provides to students in the first year of elementary school …  Regulation 15/1994 provides that textbooks for elementary school are also lent to students free of charge, but they do not become their property.

In secondary school, the students purchase textbooks and they become their property.

The Government argued that Article 41 of the Convention on the Rights of the Child is not relevant for it states that "[n]othing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in:(a) The law of a State Party...” Presumably the government’s argument was that the purpose of the law of allowing the State to choose the funding of education was to make the education system more effective for everyone, which it could only do if choices regarding funding were made by the government. It could be that if the government had a certain budget available for education, and unless it could control exactly what it had to pay for within the education system, either some people would not have the full funding that others received or the government would have to increase its education budget.

The Government also referred to The  Gazette  of  the  Ministry of Education,  Youth, and Physical Training, Nos. 6 & 7 from July and August, 1994, which showed that the list of approved and issued textbooks for elementary schools, valid for the 1994 - 1995 school year, lent by the schools to elementary school students free of charge (as meant by Government Regulation No. 15/1994 Sb.), included more 
than 650 titles. Supplying a copy of each book to each secondary school child would be economically impossible.