CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE RIGHTS OF THE ELDERLY IN THE CASEǧLAW OF THE CONSTITUTIONAL COURT … down that the detailed provisions of the right are set by law (Article 30 (3)). This is usually interpreted as meaning that it is the duty of the legislature to enact a law governing this matter. In addition, in terms of the constitutional regulation of the right to social security, Article 41 (1) of the Charter is important as it sets out that this and other rights may only be claimed within the confines of the laws implementing the mentioned provision. B. Specific aspects of social rights The generally accepted interpretation of the specifics of social rights is based on the fact that they are expensive and redistributive and are in conflict with the legal freedom of others (each redistribution interferes with the property rights of those who contribute to the redistribution) and the collective good (especially the financial balance of the state). A competence argument is emphasised, meaning that the scope of social rights as political issues with a massive impact on the state budget should be decided by the parliament, which first and foremost is democratically legitimised. In the spirit of this argument, it might be stated that in the tripartite conflict between the principles of social, liberal, and democratic state, the Charter in Article 41 (1) prioritises the principle of democracy as a rule of majority. It is then inferred that the level of social security of citizens should primarily be determined by the parliament and not the Constitutional Court. Various generations of human rights (civil and political rights as the first generation and social rights as the second generation) and the difference between the negative obligations of the state arising from basic human and political rights and positive obligations of the state arising from social rights are referred to in this context. Deciding on a range of social rights is largely seen as a political issue decide by the electoral contest and the democratically elected legislature. 7 It might be pointed out against this that ensuring the right to a fair trial or basic human rights of prisoners may also be costly and that social rights are no less important than civil rights. Both types of rights protect a natural human dignity. Human dignity may well be violated by depriving a human being of personal freedom by unjust imprisoning, as well as by pulling down his or her house or taking all means from him or her so that he or she could not get any food. 8 It is then followed by deliberations on how extensively the courts can (in individual cases of constitutional judiciary) interfere with the decision of legislators to regulate social rights (known as the justiciability of social 9 rights). The extent of performance by the welfare state is based on the traditional doctrine perceived as a “political question”, not within the powers of courts. On the other hand, neither constitutionally guaranteed social rights could be vacated by an ordinary law, 10 and European constitutional courts in their 7 E.g. WINTR, J. InWAGNEROVÁ, E. et al. Listina základních práv a svobod: komentář [Charter of Fundamental Rights and Freedoms: Commentary]. Prague: Wolters Kluwer, 2012, p. 627, similarly also cited Alexy R. Theorie der Grundrechte . 3. Aufl. Frankfurt: Suhrkamp, 1996, in his Theorie der Grundrechte. 8 KRATOCHVÍL, J. Sociální práva v Evropské úmluvě na ochranu lidských práv a Mezinárodním paktu o občanských a politických právech [Social rights in the European Convention for the Protection of Human Rights and the International Covenant on Civil and Political Rights]. Prague: Charles University, Faculty of Law, 2010 Waldron, Jeremy. Liberal Rights: Collected Papers 1981-1991. Cambridge University Press, 1993. 9 See, for instance, ARAMBULO, K. Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights: Theoretical and Procedural Aspects . Antwerpen: Intersentia: Hart 1999, p. 55 et seq. Droits des pauvres, pauvres droit? , Research on the Justiciability of Social Rights, conducted by Diana Roman for CREDOF University Paris Ouest Nanterre la Défense. Available at: www.droits-sociaux.u-paris10.fr or KRATOCHVÍL, J. Justiciability of Social Rights: Any Gaps? Právní k [Lawyer] 11/2007, Vol. 146, pp. 1161-1188. 10 See, for instance, the judgment on the petition seeking the annulment of the Public Budgets Stabilisation Act,

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