II. US 405/02


In  this  case  §  61  of Act no. 155/1995  Coll.,  on  Pension
Insurance, by referring to an international agreement,  imposes
a  different  manner  of calculating the  amount  of  an  early
pension,  depending  on the criterion  of  the  location  of  a
citizen's  employer's registered address. If  a  Czech  citizen
(with permanent residence in the CR) was employed in the Slovak
Republic  at that time, in terms of pension insurance  this  is
considered "employment abroad," which has negative consequences
for  his  pension  entitlements in the Czech pension  insurance
system.
   The  Constitutional Court considers differentiation  between
citizens  of  the Czech Republic, which is based on  a  fiction
that  employment  in  the Slovak Republic  of  the  then  joint
Czechoslovak    state   is   "employment   abroad,"    to    be
discriminatory,  as  it  is not supported  by  "objective"  and
"reasonable" grounds.
   The  CR's international obligations vis-ŕ-vis the SR,  whose
effects  are  also  aimed  into the  past  an  into  the  legal
situations of their citizens, which were created and  developed
inside  Czechoslovakia and the Czechoslovak legal  order,  must
respect certain constitutional bounds.
   The  complainant  met the condition of a minimum  number  of
years of insurance required by § 31 para. 1 of Act no. 155/1995
Coll.  in  the time when the joint Czechoslovak state  existed.
The  Constitutional  Court  believes  that  application  of  an
international agreement on the basis of § 61 of  that  Act  can
not  lead  to  retroactively denying him  fulfillment  of  that
condition.  This  is inconsistent with the principle  of  legal
certainty  and the foreseeability of law, which form  the  very
basis  of the concept of a state governed by the rule  of  law.
The  concept  of a state governed by the rule of  law  must  be
understood  not  in  isolation,  but  in  connection   to   the
constitutional  requirement  of  respect  for  the  rights  and
freedoms  of the human being and the citizen, as is  stated  in
Art.  1  para.  1  of  the  Constitution.  This  constitutional
requirement  of respect for rights and freedoms  must  also  be
preserved  when  applying an international agreement,  all  the
more  so  because international law itself honors the principle
that  "ratification of international agreements does not affect
more  advantageous  rights, protection and conditions  provided
and  guaranteed  by  domestic legislation" (see  Constitutional
Court  judgment  of 24 May 1995, published under  no.  164/1995
Coll.).
   The  Constitutional Court is not authorized to evaluate  the
constitutionality   of   an  already   ratified   international
agreement.  On the other hand it is required to  be  guided  by
Article 88 para. 2 of the Constitution, under which the  judges
of  the Constitutional Court are bound in their decision making
only  by the constitutional order and the statute under par  1.
The  Agreement between the CR and the SR on Social Security  is
not  an agreement which could be considered a component of  the
constitutional order (see Constitutional Court judgment  of  25
June 2002, published under no. 403/2002 Coll.). It is also  not
an  agreement  under  Art. 10 of the Charter,  in  the  version
before the "Euro-amendment." As its preamble clearly indicates,
its  purpose  was  not  to  secure the fundamental  rights  and
freedoms of citizens. The parties were guided by "the desire to
regulate  their relationships in the area of social  security."
Therefore,   the  Constitutional  Court  can  not   accept   as
constitutional  an application of one of its  provisions  which
would result in a situation which is not in accordance with the
Charter  or  the  Constitution as parts of  the  constitutional
order.


A  Panel of the Constitutional Court decided, in the matter  of
the  petitioner J.H., on a constitutional complaint  against  a
verdict of the High Court in Olomouc of 21 March 2002, ref. no.
2  Cao 249/2001-27, with the participation of the High Court in
Olomouc  as  a  party to the proceedings and the  Czech  Social
Security Administration, Prague 5, as a subsidiary part to  the
proceedings, as follows:
   The  verdict of the High Court in Olomouc of 21 March  2002,
ref. no. 2 Cao 249/2001-27, is annulled.


                           REASONING
                               
In  a timely filed constitutional complaint, which reached  the
Constitutional  Court  on 20 June 2002 and  otherwise  met  the
conditions  prescribed  by  Act  no.  182/1993  Coll.,  on  the
Constitutional Court, as amended by later regulations (the "Act
on  the  Constitutional Court"), the complainant contested  the
verdict  of the High Court in Olomouc cited in the heading.  He
claims  that  the  High Court's decision did  not  respect  the
principle  of  observing  obligations  arising  from   accepted
international agreements, denied the complainant the  right  to
material security in old age in an amount corresponding to  the
length of the insured period, and the level of income and taxes
and  insurance premiums deducted from it, and thereby  violated
Article  1  of  the Charter of Fundamental Rights and  Freedoms
(the  "Charter"), which guarantees citizens' equal  rights.  He
petitioned  the  Constitutional Court to  annul  the  contested
verdict.
    For  its  discussion  and  decision  in  the  matter,   the
Constitutional  Court requested the file of the Regional  Court
in  Brno, file no. 41 Ca 201/2000, from which it determined the
following:
   The  Czech  Social Security Administration  in  Prague  (the
"subsidiary party") by its decision of 22 November  1999,  with
effect  as  of 1 July 1999, assigned the complainant a  partial
early old age pension of CZK 494 per month (with effect as of 1
August  1999  it  increased it to CZK 514 per  month),  on  the
grounds  that  the  amount of the pension  corresponds  to  the
period insured in the Czech Republic from 1 August 1995  to  30
June 1999. The complainant then applied for an increase in  the
pension,  asking  that his period of employment  in  the  joint
state  until 31 December 1992 also be included. On  26  October
2000  the  subsidiary  party rejected his  application  on  the
grounds that periods of employment until 31 December 1992  are,
under the Agreement on Social Security concluded between the CR
and  the  SR  under no. 228/93 Coll. (the "Agreement"),  Slovak
periods. The complainant filed an appeal against this decision.
The  Regional Court in Brno, by a verdict of 6 June 2001,  ref.
no.  41  Ca  201/2000-15, confirmed the contested decision.  It
based   its  legal  opinion  on  the  determination  that   the
complainant worked from 16 October 1962 to 31 July 1995 for  an
employer whose registered address was in the territory  of  the
Slovak Republic. Thus, it considered this period to be a period
insured   abroad.  It  concluded  that  the  subsidiary   party
proceeded  correctly in setting the level of pension,  when  it
applied  Article 11 of the Agreement and § 31  of  the  Act  on
Pension Insurance. It pointed out that if the Agreement did not
exist,  the complainant could not be assigned an early old  age
pension  at all, as he would not have met the required  insured
period in the Czech Republic, and Act no. 100/1988 Coll., which
is  in  effect  in the Slovak Republic, does not  recognize  an
early old age pension.
  The complainant appealed against the decision of the Regional
Court  in  Brno. He referred to the conclusions of the  Supreme
Court  of the CR reached in proceedings under file no.  30  Cdo
120/98  and  stated that if the Agreement did  not  exist,  the
subsidiary  party  would  consider the Czechoslovak  employment
period as its own. He pointed to the fact that the Slovak  side
can not address the question of whose the "Czechoslovak period"
is, as it does not recognize early old age pensions. He pointed
out  that the court did not apply in its decision the principle
"not  to  damage, by the existence of the Agreement, a  citizen
who  is  a  permanent  resident of a  state,  under  the  legal
regulations of which his entitlement would be more advantageous
without the Agreement."
  The High Court in Olomouc confirmed the contested decision in
its  verdict  of 21 March 2002, ref. no. 2 Cao 249/2001-27.  It
stated   that   the   subsidiary  party,  in  calculating   the
complainant's  early old age pension, proceeded  in  accordance
with  the Act on Pension Insurance and the Agreement. It  found
no  defects in its procedure when calculating the partial early
old  age  pension.  In the opinion of the  appeals  court,  the
complainant's other request can not be granted. The High  Court
pointed   out  that  after  the  division  of  the   CSFR   the
complainant's employment period from 16 October 1962 to 31 July
1995  must be considered a period of employment abroad,  as  it
was  performed  in  the territory of the Slovak  Republic.  The
period  until 31 December 1992 can not be separated  from  this
period as a Czechoslovak period, as this is not possible  under
either the Act on Pension Insurance or the Agreement. Under the
Act on Pension Insurance it would be possible to include as the
complainant's insured period for calculating the pension amount
only  the  time from 2 April 1959 to 31 December 1959,  from  1
January 1960 to 15 October 1962, and from 1 August 1995  to  30
June  1999,  i.e. a total of 10 years and 214 days.  The  court
concluded  that if only domestic regulations are  applied,  the
complainant  would  have no entitlement to  an  early  old  age
pension,  as  he would not meet the condition of the  necessary
insured  period, i.e. a period of at least 25 years.  According
to the appeals court, the Supreme Court verdict file no. 30 Cdo
120/98   can  not  be  applied  to  this  case.  The  beginning
assumption for the procedure contained in this verdict was  the
fact  that  the  applicant,  unlike the  complainant,  met  the
required insured period in the territory of the Czech Republic.
The High Court reached the final conclusion that the subsidiary
party's  decision denying the complainant's application  for  a
change  in the amount of the partial early old age pension  due
to  lack of fulfillment of the conditions of § 56 of the Act on
Pension  Insurance, with the application of Art. 11 and  20  of
the Agreement, is a "lawful decision."
   The complainant contested the decision of the High Court  in
Olomouc in the adjudicated constitutional complaint. In  it  he
points to the advantages and disadvantages of the criterion set
in  the  Agreement for determining which of the states  parties
will  bear the expenses for pensions during the period  of  the
joint  state, as being the location where the employer had  its
registered address as of the day the federation was divided. He
understands  the fact that his entitlement was evaluated  under
Slovak  regulations. However, he does not agree that he  should
bear  the  negative consequences, i.e. that after 40  years  of
work in his own country he should be left with a pension in the
amount  of  about  two thirds of the pension which  his  fellow
citizens  receive for the same period and the same  income.  He
points  out  that the citizens of both republics  were  assured
that   dividing   the  federation  would   not   affect   their
entitlements.  After  1993 the Ministry  of  Labor  and  Social
Affairs also passed a measure to even out the pension level  to
the  level of pensions given under Czech regulations.  However,
since  mid-1998 it has been gradually ceasing to implement  it.
The complainant points to other social international agreements
which  respect  the fundamental principle of not  damaging  the
citizen through such an agreement. However, in his opinion, the
providers  of pension insurance here ignore this principle.  He
believes that the creators of the Agreement also did not intend
to  not resolve the negative situation of many retirees on  the
Czech side, although on the other hand they did not expect  the
possibility  that  the economic situation  in  the  two  newly-
created  countries would not develop the same  way.  He  states
that  if  the  Agreement had not been concluded,  he  would  be
entitled  to  an early old age pension under Czech regulations,
for  37  years  worked in Czechoslovakia, and for  3  years  of
insurance in the Czech Republic after 1992. Only the period  of
insurance  in  the  Slovak Republic after  1992  would  not  be
included in calculating the amount of the pension. The  reality
is such that after 40 years of employment in his own country he
received  a  pension  of CZK 514. Thus, the  existence  of  the
Agreement  became for the complainant, who always had permanent
residence  in the territory of the Czech Republic,  a  disaster
which,   he   claims,  is  unparalleled  in  the  practice   of
international  agreements in the area of  social  security.  He
points  to the extraordinary measures of the Ministry of  Labor
and  Social  Affairs on removing harshness and to a  number  of
examples  from  actual  practice where,  especially  in  recent
years, the decision making of the allocation commission,  which
evaluates  individual applications for balancing  contributions
as   a  way  of  removing  harshness,  is  discriminatory.  The
government  ombudsman  also pointed this  out  in  his  summary
report  on his activities in 2001. However, the complainant  is
not  entitled  to  a balancing contribution.  He  also  is  not
entitled  to an early old age pension from the Slovak side,  as
such a pension does not exist in Slovakia. He was given only  a
partial  pension. According to the complainant, this  situation
could  be  corrected  by  allocating  him  a  "temporary  early
pension" until the time when he becomes entitled to an old  age
pension under Slovak regulations.
   The complainant points to the contested decision of the High
Court  in  Olomouc, under which the complainant is not entitled
to  an  early  pension  either under  the  Agreement  or  under
domestic  regulations.  He believes  that  this  conclusion  is
inconsistent with not only the purpose of concluding  bilateral
social  agreements (to not deprive a citizen of an  entitlement
only  because  he worked in the other contracting  state),  but
also the citizen's right to rely on future security in old age,
if  for a number of years he met the conditions required by his
own  state.  According to the complainant, the High Court  also
did  not  respect  the  principle of the  Agreement  concerning
division  of  expenses and related to the  time  of  the  joint
state. It handled the complainant's objection, pointing to  the
legal opinion of the Supreme Court stated in decision file  no.
30  Cdo 120/98, by retroactively dividing employment until 1992
into  periods in the territories of the Czech Republic  and  of
the  Slovak Republic which, however, the Supreme Court did  not
do  in  the cited verdict. Without any support whatsoever,  the
court  evaluated  the  complainant's  case  using  a  different
criterion  than  is  contained in  the  Agreement  itself.  The
complainant is convinced that the practice which the High Court
in Olomouc confirmed in the contested verdict also violates the
principles   of  the  multilateral  ILO  convention   no.   102
concerning  Minimum  Standards of  Social  Security  (published
under  no.  461/1991  Coll.) and the European  Social  Security
Code. He believes that payment of the full Czech early old  age
pension  until such time as he becomes entitled to  a  "normal"
Slovak  old age pension would not be inconsistent with the  aim
of  Article  20  of the Agreement. He points  to  a  number  of
examples  in  practice and states that an international  social
agreement can not annul or amend the laws of a state party. The
incorrect  interpretation applied by the High Court would  mean
that  a state party ceases to fulfill its obligations vis-ŕ-vis
its citizens, arising from its own laws, or permits some of its
citizens  to  receive worse security than others. In  contrast,
the  previous  practice  respected the  legal  opinion  of  the
Supreme  Court  of  the CSR, stated in decision  file  no.  Cpj
232/73,  under  which  the  fact that  the  Czechoslovak  state
concluded  an agreement on social insurance with another  state
may  not,  under  any circumstances, be to the detriment  of  a
Czechoslovak citizen's pension entitlements. Such an  agreement
can  bring  benefits for the citizen, but may  not  reduce  his
lawful   entitlements  under  Czechoslovak  regulations.   This
principle  is  also used in the case law of the  Constitutional
Court,  which stated, in judgment file no. Pl. US  31/94,  that
"ratification of international agreements does not  affect  the
more  advantageous  rights, protection and conditions  provided
and guaranteed by domestic legislation." The complainant points
to  differing  judicial  practice in addressing  these  issues,
where  some courts respect the abovementioned legal opinion  of
the  Supreme Court (e.g. decisions by the High Court in Prague,
file no. 12 Cao 12/96, the Regional Court in Ostrava, file  no.
21 Ca 280/99, the Regional Court in Brno, file no. 22 Ca 68/99,
22  Ca  69/99, and the Supreme Court in Brno, file no.  30  Cdo
120/98), but other courts do not. The contested verdict of  the
High  Court in Olomouc can be included in the second  category.
Yet,  with regard to the gravity of this issue, in view of  the
legal   certainty  of  citizens,  court  decisions  should   be
foreseeable and practices should be uniform.
   The complainant further points to Act no. 100/1932 Coll., on
the  domestic  applicability  of  international  agreements  on
social insurance. He states that the Agreement and domestic law
apply  side  by  side.  However, in his  opinion  the  rule  on
priority application of the Agreement does not mean that it has
higher legal force, but indicates the order of application.
   Thus,  the  complainant  is  convinced  that  he  should  be
allocated  an "interim" old age pension under Act no.  155/1995
Coll., on Pension Insurance, for the period from 1 July 1999 to
2  April  2001, i.e. for the entire time of employment  in  the
joint  state and the period of insurance obtained in the  Czech
Republic after 1992, until such time as he becomes entitled  to
an  old  age pension under Slovak regulations. The decision  of
the  High  Court  in  Olomouc did not respect  the  fundamental
principles  of a state governed by the rule of law  and  denied
the complainant his right to material security in old age in an
amount  corresponding to the length of the insured period,  the
level  of income, and the taxes and insurance premiums deducted
from  it. It thereby violated Article 1 of the Charter  on  the
equal rights of citizens.
   The  Constitutional Court, under § 32  of  the  Act  on  the
Constitutional  Court, called on the party to the  proceedings,
the  High  Court in Olomouc, and the subsidiary  party  to  the
proceedings,  the  Czech  Social  Security  Administration   in
Prague,  to submit statements on the adjudicated constitutional
complaint.
  The constitutional complaint is justified.
   The  Constitutional Court has emphasized many times  in  the
past  that  it is fundamentally not authorized to intervene  in
the  decision making activity of the general courts, as  it  is
not  the  top  of  that system (cf. Art. 81,  Art.  90  of  the
Constitution). If the courts proceed in accordance with Chapter
Five  of the Charter, it cannot assume the right of review over
their  activity  (Art. 83 of the Constitution).  On  the  other
hand, however, it is authorized to evaluate whether proceedings
as   a   whole   were  fair  and  whether  they  violated   the
complainant's fundamental rights or freedoms guaranteed by  the
Charter  or  the  Constitution. In the past the  Constitutional
Court  has repeatedly acknowledged that the interpretation  and
application of legal regulations by the general courts can  be,
in some cases, so extreme, that they diverge from the bounds of
Chapter  Five  of  the  Charter  and  thus  interfere  with   a
constitutionally guaranteed right. In that case  it  is  within
the  powers of the Constitutional Court to annul the  contested
decision (cf., e.g., II. US 433/98, or II. US 474/2000).
  The Charter states in Art. 30 para. 1 that "Citizens have the
right  to  adequate  material security in old  age  and  during
periods of work incapacity, as well as in the case of the  loss
of  their  provider. The subject of this right is a  "citizen,"
although  previously  valid  laws used  this  concept  to  mean
"resident with permanent residence in the territory of the CR."
The    adequacy    of   pension   security    payments    means
commensurateness  to the earnings of a given  "citizen"  before
the  entitlement  to  a  pension arose. The  complainant  is  a
citizen of the CR, has permanent residence in the territory  of
the  CR, and was given a partial early old age pension  in  the
amount  specified above, which, in his opinion,  is  much  less
than  he should be entitled to as an ordinary Czech citizen  in
the  pension  insurance system (see p. 18 of the constitutional
complaint).  The Czech Social Security Administration  and  the
general courts calculated the amount of the pension taking into
account the wording of the agreement between the CR and the  SR
on  social  security  of  29 October 1992,  which  gives  as  a
criterion for calculation of the amount of pension the location
of  the employer's registered address. In view of the fact that
the complainant was employed by an employer with its registered
address  in  Myjava, SR, the agreement refers  to  Slovak  law.
Slovak law, of course, does not recognize the institution of an
early  old  age pension. The High Court, as the appeals  court,
confirmed  the procedure and the decision of the  Czech  Social
Security  Administration and the court of the first level,  and
described them as "lawful."
   The  provision of § 61 of Act no. 155/1995 Coll., on Pension
Insurance,  which  was  applied in  this  matter,  really  does
require, in the matter of setting the base amounts and  percent
amounts  of  a  partial  pension,  applying  the  international
agreement first, so the procedure of the Czech Social  Security
Administration and the general courts was prima facie lawful.
   The  Constitutional Court does not agree with the manner  in
which  the  High Court understood the concept of lawfulness  in
its  decision. The Constitution of the CR, in Art.  1  para.  1
(before  the  "Euro-amendment" of Art. 1), at the beginning  of
the fundamental provisions, states that, "The Czech Republic is
a sovereign, unitary, and democratic state governed by the rule
of  law, founded on respect for the rights and freedoms of  man
and  of citizens." Thus, it is evident that the framers of  the
Constitution  did not connect the constitutional  existence  of
the  Czech  state  with  a mere formal postulate  of  a  "state
governed by the rule of law," but with a state governed by  the
rule  of  law whose real effect is respect for the  rights  and
freedoms of man and of citizens.
   In  this  case  the  law (by referring to  an  international
agreement) imposes a different manner of calculating the amount
of an early pension, depending on the criterion of the location
of  a  citizen's employer's registered address. Art. 1  of  the
Charter provides that people are free, have equal dignity,  and
enjoy  equality  of  rights. Art. 3  para.  1  of  the  Charter
declares  that  everyone is guaranteed  the  enjoyment  of  her
fundamental  rights  and  basic  freedoms  without  regard   to
differences  based  on factors cited in the  paragraph,  or  on
"other status." Thus, this provision of the Charter provides  a
ban  on  discrimination in the enjoyment of any of  the  rights
guaranteed by the Charter. The Constitutional Court thus had to
answer  the question whether the interpretation and application
of  the  relevant  statutory provisions  by  the  Czech  Social
Security Administration and the general courts, relating to the
complainant's  exercise  of  his right  to  "adequate  material
security  in  old  age" (Art. 30 para. 1) is  a  discrimination
which is forbidden by Art. 3 para. 1 of the Charter.
    Not   every  differentiation  between  citizens  is  of   a
discriminatory  nature.  Different  treatment  of  citizens  is
constitutionally acceptable if it is based on  "objective"  and
"reasonable" grounds. In this case the differentiation is based
on whether a citizen of the CR was, during the existence of the
Czechoslovak state, employed by an employer with its registered
address in the Czech Republic or in the Slovak Republic.  If  a
Czech citizen (with permanent residence in the CR) was employed
in  the  Slovak  Republic at that time,  in  terms  of  pension
insurance  this  is considered "employment abroad,"  which  has
negative consequences for his pension entitlements in the Czech
pension insurance system.
  The Czech Republic and the Slovak Republic were created as of
1 January 1993 by the division of the joint Czechoslovak state.
This  joint  state  was  characterized  by  a  uniform  pension
insurance system, and so, in terms of the law at the  time,  it
was legally irrelevant, which part of the Czechoslovak state  a
citizen  was  employed  in,  or  where  his  employer  had  its
registered  address. Czech National Council constitutional  Act
no. 4/1993 Coll., on Measures Connected with the Dissolution of
the  Czech  and  Slovak Federal Republic (Art.  1),  implements
reception  of  the  CSFR legal order in Czech  law,  such  that
constitutional  acts, statutes, and other legal regulations  of
the CSFR which were valid in the territory of the CR on the day
the CSFR ceased to exist remain valid. Thus, the Czech Republic
accepted the principle of continuity of the legal order at  the
constitutional level. The cited constitutional Act of the Czech
National Council is part of the constitutional order of the  CR
under Art. 112 para. 1 of the Constitution. Therefore, a period
of  employment with an employer whose registered address was in
the  Slovak part of the Czechoslovak state can not be  seen  as
"employment   abroad."   In  view   of   the   foregoing,   the
Constitutional  Court  considers such  differentiation  between
citizens  of  the Czech Republic, which is based on  a  fiction
that employment (or the registered address of the employer)  in
the  Slovak  Republic of the then joint Czechoslovak  state  is
"employment  abroad,"  to  be  discriminatory,  as  it  is  not
supported by "objective" and "reasonable" grounds.
   The  CR  concluded  the abovementioned agreement  on  social
security   with  the  SR  as  a  newly-created   entity   under
international  law.  It used the opportunity  to  exercise  its
sovereignty  by regulating its relationships with the  SR.  The
regulation of these relationships in the future does not create
any  specific problem of an international law or constitutional
law  nature. However, much more complicated from that point  of
view is the circumstance that the bilateral agreement on social
security with the SR interferes with legal relationships  which
arose and continued to exist during the former joint state  and
during  the  time when Czechoslovak law, which was subsequently
received  into  Czech  law, was valid. The  CR's  international
obligations vis-ŕ-vis the SR, whose effects are also aimed into
the  past an into the legal situations of their citizens, which
were  created  and  developed  inside  Czechoslovakia  and  the
Czechoslovak  legal order, must respect certain  constitutional
bounds.
   The  Constitutional  Court  of the  CSFR  declared,  in  its
judgment  no. 15 of 10 December 1992 (Pl. US 78/92), that  "the
principles  of  a  state governed by the  rule  of  law,  legal
certainties  which  can  be derived  from  the  requirement  of
democratic  organization  of  the  state,  require  that  every
constitutionally possible case of retroactivity be  established
expressis verbis in the Constitution, or in a statute, and that
cases  connected to it be resolved so that the acquired  rights
are  duly protected." The Constitutional Court of the  CR  also
accepts this principle. The complainant met the condition of  a
minimum  number of years of insurance required by § 31 para.  1
of   Act  no.  155/1995  Coll.  in  the  time  when  the  joint
Czechoslovak  state existed. The Constitutional Court  believes
that application of an international agreement on the basis  of
§  61  of  that Act can not lead to retroactively  denying  him
fulfillment  of that condition. This is inconsistent  with  the
principle  of  legal certainty and the foreseeability  of  law,
which form the very basis of the concept of a state governed by
the rule of law.
   As  the  Constitutional Court already emphasized above,  the
concept  of  a  state  governed by the  rule  of  law  must  be
understood  not  in  isolation,  but  in  connection   to   the
constitutional  requirement  of  respect  for  the  rights  and
freedoms  of the human being and the citizen, as is  stated  in
Art.  1  para.  1  of  the  Constitution.  This  constitutional
requirement  of respect for rights and freedoms  must  also  be
preserved  when  applying an international agreement,  all  the
more  so  because international law itself honors the principle
that  "ratification of international agreements does not affect
more  advantageous  rights, protection and conditions  provided
and  guaranteed  by  domestic legislation” (see  Constitutional
Court  judgment  of 24 May 1995, published under  no.  164/1995
Coll.).
   The  Constitutional Court is not authorized to evaluate  the
constitutionality   of   an  already   ratified   international
agreement.  On the other hand it is required to  be  guided  by
Article 88 para. 2 of the Constitution, under which the  judges
of  the Constitutional Court are bound in their decision making
only  by the constitutional order and the statute under par  1.
The  Agreement between the CR and the SR on social security  is
not  an agreement which could be considered a component of  the
constitutional order (see Constitutional Court judgment  of  25
June 2002, published under no. 403/2002 Coll.). It is also  not
an  agreement  under  Art. 10 of the Charter,  in  the  version
before the "Euro-amendment" As its preamble clearly indicates,
its  purpose  was  not  to  secure the fundamental  rights  and
freedoms of citizens. The parties were guided by "the desire to
regulate  their relationships in the area of social  security."
Therefore,   the  Constitutional  Court  can  not   accept   as
constitutional  an application of one of its  provisions  which
would result in a situation which is not in accordance with the
Charter  or  the  Constitution as parts of  the  constitutional
order.
   Because the contested decision of the High Court in  Olomouc
applied the relevant statutory provisions without the requisite
regard  for  the  requirements imposed  by  the  constitutional
order,  it interfered with the complainant's right to  judicial
protection  guaranteed by Art. 36 para. 1 of  the  Charter.  It
also  violated  Art.  3  para. 1  of  the  Charter,  a  ban  of
discrimination,  in connection with Art.  30  para.  1  of  the
Charter.
   With  regard  to  the  foregoing, the  Constitutional  Court
granted the constitutional complaint and annulled the contested
decision  of the High Court in Olomouc of 21 March  2002,  ref.
no. 2 Cao 249/2001-27, under § 82 para. 3 let. a) of the Act on
the Constitutional Court.

Notice:  Decisions  of  the Constitutional  Court  can  not  be
appealed.

Brno, 3 June 2003