CYIL vol. 10 (2019)

KATEŘINA ŠIMÁČKOVÁ CYIL 10 ȍ2019Ȏ European Social Charter and the EU Charter of Rights guarantee entitlement to access to social security benefits and social protection services, inter alia in the event of old age, the current situation of a part of European (and Czech) seniors can be described using the words by Herring: “For far too many pensioners, retirement is a time of poverty. … The current state of funding old age care is unacceptable. Few would disagree with this, but the solution is harder to find. A strong case can be made for the state provision of free personal care, but the political will to find the funding for this seems to be lacking.” 3 A. Background Before 1989, the discourse of the then ruling Communist Party in Czechoslovakia preferred social rights to political and civil rights, while one of them was the right to social security in sickness and old age. At that time, the Constitution guaranteed the right of all working people to material security in old age and in the event of incapacity to work, which was ensured by the pension scheme. The concept of working people in this regulation was based on the then general obligation to work. 4 As to the wider context of social and political distortions caused by the communist regime, it is appropriate to mention in the context of post-revolutionary changes to the pension insurance and attempts to rectify its injustice that although the communist regime in its legal, ideological, and propaganda documents emphasised that it guaranteed the protection of social rights much better than “bourgeois- democratic” regimes, it did not ultimately guarantee truly equal and fair access to social rights. 5 The new regime after 1989, therefore, had to deal with this legacy in its approach to social security. For example, it was not possible to accept that in terms of the amount of old-age pension individuals would be penalised for that they opposed the communist regime that punished them very often for their opposition activities by low wages, by preventing them from having a permanent job or even by imprisonment. 6 In the course of social and economic transformation after 1989, it was emphasised that the transformation should take place also in the area of social security. It was not just that the secret police members had pensions higher than dissidents and other victims of the communist regime, but also the price liberalisation and the changing social and economic conditions were most painful for old-age and disability pensioners (i.e. for people largely unable to earn their living because of age or illness) in a great number of cases. Given the broad regulation of social rights in the period before 1989 and the international obligations of the state, the current Czech Charter of Fundamental Rights and Freedoms of 1991 includes a broad list of social rights, and one of them is the right to social security in old age (Article 30 (1)). Further, the Charter of Fundamental Rights and Freedoms lays 3 HERRING, J. Older People in Law and Society , Oxford University Press 2009, p. 234. 4 Article 23 of the Constitution of the Czechoslovak Socialist Republic (Constitutional Act No. 100/1960 Coll.). 5 TOMKOVÁ, M. Sociální zabezpečení [Social Security] . In Bobek, M., Molek, P. and Šimíček V. Komunistické právo v Československu. Kapitoly z dějin bezpráví. 1st edition. Brno: Masaryk University, 2009. p. 723. 6 ŠIMÁČKOVÁ, K., MOLKOVÁ FOUKALOVÁ, K., PROCHÁZKA, V. Zákon o protiprávnosti komunistického režimu a o odporu proti němu [Act on the illegality of the communist regime and on resistance against it] , Wolters Kluwer 2017, p. 133 et seq. 2. Constitutional regulation of the right to social security in old age in the Czech Republic as one of the social rights

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