Pl. US 25/94


                         JUDGMENT

        The Constitutional Court of the Czech Republic

              in the Name of the Czech Republic



     The  Plenum  of  the  Constitutional Court  of  the  Czech
Republic, composed of Justices JUDr. Iva Brozova, JUDr. Vojtech
Cepl,  JUDr. Pavel Hollander, JUDr. Milos Holecek, JUDr.  Ivana
Janu,   JUDr.  Vladimir Jurka, JUDr. Vladimir  Klokocka,  JUDr.
Vladimir   Paul,   JUDr.   Antonin   Prochazka,   JUDr.   Pavel
Varvarovsky,  and JUDr. Eva Zarembova, concerning the  petition
of  a  group  of  Deputies  instituting  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, has decided,

                        THUSLY:


    The petition is rejected on the merits.


                          REASONING:


                        I.

     On  4 November 1994, the Constitutional Court of the Czech
Republic  received from a group of Deputies of the Assembly  of
Deputies  of  the Parliament of the Czech Republic  a  petition
instituting  a  proceeding  on  the  annulment  of   Government
Regulation No. 15/1994 Sb., on the Provision Free of Charge  of
Textbooks, Teaching Texts, and Basic School Materials.  In  the
petitioners' view, this regulation is in conflict with  Article
33  para.  2  of  the Charter of Fundamental Rights  and  Basic
Freedoms,  with  Article  28 para. 2 letters  a)  and  b),  and
Article  41  of the Convention on the Rights of the Child,  and
with  Article  5  para.  2  of  the International  Covenant  on
Economic, Social, and Cultural Rights.

     Three signature sheets were annexed to the petition.   The
first  two  contained  the signatures of 30  Deputies  and  are
entitled "The Group of Deputies of the Parliament of the  Czech
Republic Petitioning for the Annulment of Government Regulation
No.  15/1994 Sb., on the Provision Free of Charge of Textbooks,
Teaching   Texts,  and  Basic  School  Materials",   and   thus
correspond  with the requested action (petit) of the  submitted
petition.  [The Court then describes the third signature sheet,
which  concerns a series of other enactments that are unrelated
to  the  petition,  so that it is apparent  it  was  mistakenly
attached.]    Thus,  it  concerns  entirely   different   legal
enactments  than those which are objected to in  the  petition.
What  is  clear from the above is that the group  of  Deputies'
petition  seeks the annulment of Government Order  No.  15/1994
Sb.,  and that this petition was submitted by the group  of  30
Deputies listed on the first two signature sheets.

     §  64  para. 2 letter b) of Act No. 182/1993 Sb.,  on  the
Constitutional Court, provides that, among others, a  group  of
at  least  25  Deputies or a group of at least 10  Senators  is
authorized to submit a petition, pursuant to Article  87  para.
1, letter b) of the Constitution of the Czech Republic, seeking
the  annulment of sub-statutory legal enactments or  individual
provisions  thereof.  30 Deputies is, therefore,  a  sufficient
number for the submission of the relevant petition seeking  the
annulment of the Government Regulation.  The group of Deputies'
petition  states  that  the Government  issued  Regulation  No.
15/1994 Sb., after the original version of § 4 para. 1  of  the
Education  Act,  was amended by Article I of Act  No.  190/1993
Sb.,  which, however, the Constitutional Court annulled by  its
Judgment  No. 49/1994 Sb.  In addition, the group  of  Deputies
cites the objected-to Government Regulation and asserts that it
is in conflict with:

    -  Article 33 para. 2 of the Charter of Fundamental  Rights
and  Basic Freedoms, which guarantees to all citizens the right
to elementary and secondary school education free of charge;

    -  Article  28 para. 2, letters a) and b) of the Convention
on the Rights of the Child, promulgated under No. 104/1991 Sb.,
pursuant  to  which the Czech Republic as a State  Party  bound
itself to establish, free of charge, education for all children
and  to  establish,  free  of  charge,  secondary  general  and
specialist  education  and,  in  cases  of  need,  to   provide
financial support as well;

    -  Article 41 of the Convention on the Rights of the  Child
and  Article  5  para.  2  of  the  International  Covenant  on
Economic,  Social, and Cultural Rights, according to which,  in
case  of  a conflict between domestic and international rights,
those  rights  shall  be applied which were,  on  the  day  the
international  treaty entered into effect, more  favorable  for
persons under the jurisdiction of the State Party.

     In Point I of the Czech Government Resolution No. 671 of 1
December  1993,  it  is  seen that the Government  adopted  the
Government  Regulation  on  the provision  free  of  charge  of
textbooks,  teaching  texts, and basic  school  materials  with
modifications in accordance with the viewpoint of the  Chairman
of   the   Legislative  Council  of  the  Government  and   the
Government's clarification.  In Point II of the resolution, the
Government  charged  the  Minister  of  Education,  Youth,  and
Physical Training with the task of preparing the final  version
of  the  Government Regulation under Point I of this resolution
and  of  submitting it to the Prime Minister for his signature.
The  Government Resolution No. 13, of 5 January 1994,  provided
that the Government Regulation should take effect on the day of
its promulgation.  Government Regulation No. 15/1994 Sb. from 1
December  1993 was promulgated in Issue 5 of the Collection  of
Laws of the Czech Republic, issued on 25 January 1994, and  was
signed  by  the  Prime Minister and the Minister of  Education,
Youth,  and  Physical  Training.  Thus,  this  state  of  facts
satisfies  the  condition of admissibility of the  petition  as
required in § 66 para. 1 of Act No. 182/1993 Sb., and it can be
assumed  that  the  Government Regulation was  adopted  in  the
manner stated in §68 para. 2 of Act No. 182/1993 Sb.

      The  Government  of  the  Czech  Republic  informed   the
Constitutional Court, in a memorandum received by the Court  on
27  December  1994, of its position on the group  of  Deputies'
petition (adopted at its meeting held on 21 December 1994),  to
the  effect that its Regulation No. 15/1994 Sb. was based  upon
authority given it 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.  It  added  that
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  (in  connection with  the  mentioned  §  4  of  the
Education  Act)  as referring to the right of  students  to  be
provided  with instruction in suitable buildings, the wages  of
qualified instructors and further personnel, the costs  of  the
operation  and  maintenance  of  the  buildings,  free  use  of
educational aids, that is, those which are owned by the  school
and  which  it uses for its own instruction (models, chemicals,
chalk,  wall  maps  and pictures, etc.).   Students,  or  their
parents,  are to pay for educational materials which are  owned
and used by the students, with the exception of materials which
the  state provides to students in the first year of elementary
school,  worth  200  Czech  Crowns  per  student.   The  above-
mentioned  Government Regulation provides  that  textbooks  for
elementary school are also lent to the students free of charge,
but  they  do not become their property.  In secondary  school,
the   students  purchase  textbooks,  and  they  become   their
property.   This  fact is not in conflict with the  Charter  of
Fundamental  Rights and Basic Freedoms, for the Government  was
merely  exercising its authority; in addition, it is relatively
difficult,  particularly  in relation to  secondary  specialist
schools  to  precisely define the concept  "textbook"  (without
being  bound to the list of textbooks), for in many cases  they
also make use of expert literature which are not texts prepared
for didactic purposes, and the students commonly obtain them as
their  own  property.   The Government  further  observed  that
Article 28 para. 2 of the Convention on the Rights of the Child
contains no letters a) or b) and as a substantive matter has no
effect upon the contested Government Regulation because  in  it
the  States Parties to the agreement bind themselves  to  "take
all  appropriate measures to ensure that school  discipline  is
administered  in  a  manner consistent with the  child's  human
dignity  .  .  .".   Article  28  para.  1  letter  a)  of  the
Convention, reference to which was evidently intended,  is  not
in  conflict  with  the  contested Government  Regulation,  No.
15/1994 Sb., because it concerns mandatory basic education free
of  charge,  the  same  as  does Art.  28  para.  1(b)  of  the
Convention, which provides that States Parties to the agreement
shall,  "[e]ncourage  the development  of  different  forms  of
secondary   education,   including   general   and   vocational
education,  make them available and accessible to every  child,
and  take appropriate measures such as the introduction of free
education  and offering financial assistance in case of  need."
The   contested  regulation  is  not  in  conflict  with  these
provisions  either.  Reference to Article 41 of the Convention,
which  is  contained  in the text of the petition,  is  not  on
point,  according to the Government's opinion,  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; or

    (b)  International law in force for that state."

Finally,  Article  5 para. 2 of the International  Covenant  on
Economic, Social, and Cultural Rights, to the alleged violation
of  which the Deputies referred in their petition, affects only
general  human  rights.  The Government is  of  the  view  that
making  textbooks  and education materials  available  free  of
charge cannot be interpreted as a basic human right.

     In  the case under consideration, the Constitutional Court
also  sought  the  views  of the Czech Ministry  of  Education,
Youth,   and   Physical  Training.   The  Court  received   its
submission  on  21  April  1995, and it  contained  a  position
identical to that of the Government of the Czech Republic.

     The  Gazette  of  the  Ministry of Education,  Youth,  and
Physical Training, Nos. 6 & 7 from July and August, 1994, shows
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.


                             II.

     From the perspective of the legal enactments of which  the
group of Deputies speak in their petition, it is appropriate to
emphasize  right away that § 4 para. 1 of Act No. 29/1984  Sb.,
on  the  System  of Basic and Secondary Schools (the  Education
Act), provides that citizens enjoy the right to education  free
of  charge  in  schools that are a part of the  elementary  and
secondary school system.  The right to education can be secured
in  exchange for payment in private or religious schools.  §  4
para.  2 of the above-cited Act states that students are to  be
provided  with  textbooks, teaching  texts,  and  basic  school
materials to the extent provided for by the Government.

     The group of Deputies' petition is based on the conviction
that the 1 December 1993 Government Regulation No. 15/1994 Sb.,
on  the  Provision Free of Charge of Textbooks, Teaching Texts,
and  Basic  School Materials, is in conflict  with  Article  33
para.  2  of  the  Charter  of  Fundamental  Rights  and  Basic
Freedoms,  with Article 28 para. 2, letters a) and  b)  of  the
Convention on the Rights of the Child, and Article 5 para. 2 of
the  International Covenant on Economic, Social,  and  Cultural
Rights.   Article  33  para. 2 of the  Charter  of  Fundamental
Rights  and  Basic  Freedoms provides that citizens  enjoy  the
right  to  education free of charge in elementary and secondary
school,  as  well as university-level education  in  accordance
with  the  citizen's capabilities and society's  possibilities.
Article  28  para.  2 of the Convention on the  Rights  of  the
Child,  promulgated under No. 104/1991 Sb., is  not  subdivided
into  letters  a) and b), and it provides that "States  Parties
shall  take  all  appropriate measures to  ensure  that  school
discipline  is  administered in a manner  consistent  with  the
child's  human  dignity  and  in conformity  with  the  present
Convention."   However, it can be deduced from the  context  of
the submitted petition that the group of Deputies evidently had
in  mind  Article  28  para.  1,  letters  a)  and  b)  of  the
Convention,  which provides that "States Parties recognize  the
right of the child to education, and with the view to achieving
this right progressively and on the basis of equal opportunity,
they shall, in particular:

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

    (b)   Encourage  the  development  of  different  forms  of
secondary   education,   including   general   and   vocational
education,  make them available and accessible to every  child,
and  take appropriate measures such as the introduction of free
education and offering financial assistance in case of need;".

     Article  5  para.  2  of  the  International  Covenant  on
Economic,  Social, and Cultural Rights, promulgated  under  No.
120/1976   Sb.,  provides  that  "[n]o  restriction   upon   or
derogation  from any of the fundamental human rights recognized
or  existing  in  any  country in virtue of  law,  conventions,
regulations or custom will be admitted on the pretext that  the
present  Covenant does not recognized such rights  or  that  it
recognizes them to a lesser extent."

     In  this  connection, it is necessary to state once  again
that § 4 para. 1 of Act No. 29/1984 Sb., provides that citizens
enjoy the right to education free of charge in schools that are
part  of the elementary and secondary school system.  The right
to  education may be provided in exchange for payment, but only
in  private or religious schools.  In its judgment No.  49/1994
Sb.,  which is referred to in the group of Deputies'  petition,
the  Constitutional Court annulled that portion of § 4 para.  1
of  Act No. 29/1984 Sb., which reads "unless provided otherwise
by  statute".   The  other  provisions  of  the  act  were  not
affected,  thus  §  4  para. 2 was not  thereby  affected.   It
provides  that,  to  the extent prescribed by  the  Government,
students  shall  be  provided free of  charge  with  textbooks,
teaching texts, and basic school materials.

     Legal  norms of a lower legal force must be in  conformity
with  legal norms of a greater legal force.  Proceeding on  the
basis of this universally recognized principle, it follows that
a  Government  Regulation must be in conformity not  only  with
constitutional acts but also with international treaties  under
Article  10  of  the  Constitution of the  Czech  Republic  and
"ordinary statutes".  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.   An  exception is allowed for private  and  religious
schools  which exist apart from the network of "state" schools,
which  to  the  necessary degree secure the right to  education
free  of  charge.   The provision on the degree  to  which  the
government provides free textbooks, teaching texts,  and  basic
school  materials can not be placed under the  heading  of  the
right   to  education  free  of  charge.   According   to   the
interpretation of this concept proposed by the petitioners, the
state  should  see  to  the provision  of  everything  directly
related to attendance at elementary and secondary schools,  for
example, galoshes, briefcases, pencil cases, writing equipment,
physical education gear, etc.  It is clear that education  free
of  charge cannot consist in the fact that the state bears  all
costs  incurred  by  citizens  when  pursuing  their  right  to
education  and  the  Government undoubtedly  has  authority  to
proceed  in this way.  In no way does this cast into doubt  the
principle of elementary and secondary education free of charge.

      Art.  13.  Para.  1  of  the  International  Covenant  on
Economic,  Social, and Cultural Rights provides  that,  "States
Parties to the present Covenant recognize the right of everyone
to  education",  and  Art. 13 para.  2  of  the  same  Covenant
provides   that,  "States  Parties  to  the  present   Covenant
recognize  that, with a view to achieving the full  realization
of this right:

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

    (b)   Secondary  education . . . shall  be  made  generally
available and accessible to all by every appropriate means, and
in   particular  by  the  progressive  introduction   of   free
education."

     The  costs  connected with putting the right to  education
into  effect can be divided between the state and the  citizen,
or his legal representative.  It is appropriate to keep in mind
that  it  is in the citizen's own interest to obtain  education
(and   by  this  way  also  higher  qualifications  and  better
opportunities  to make one's way in the labor  market)  and  to
make effort himself to achieve it.  The expenses connected with
putting  the  right to education into effect  are  a  long-term
investment into the life of the citizen.  The state  bears  the
essential  part of these costs, however, it is not  obliged  to
bear all of them.

     The Constitutional Court has, thus, come to the conclusion
that  Czech Republic Government Regulation No. 15/1994 Sb.,  on
the  Provision Free of Charge of Textbooks, Teaching Texts, and
Basic  School  Materials, does not infringe either  Article  33
para.  2  of  the  Charter  of  Fundamental  Rights  and  Basic
Freedoms,  Article 28 para. 1, letters a) and b) or Article  41
of  the  Convention on the Rights of the Child,  or  Article  5
para. 2 of the International Covenant on Economic, Social,  and
Cultural Rights, nor any other constitutional act, statute,  or
international  treaty  under Article 10  of  the  Constitution.
Therefore, pursuant to § 70 para. 2 of Act No. 182/1993 Sb., on
the  Constitutional Court, it has rejected on  the  merits  the
group  of  Deputies' petition proposing the annulment  of  this
enactment.

Notice:   A  decision of the Constitutional Court  may  not  be
appealed.


In Brno, 13 June 1995


                      JUDr. Milos Holecek, Vice Chairman
                      Constitutional Court of the Czech Republic