CYIL vol. 10 (2019)

KATEŘINA ŠIMÁČKOVÁ CYIL 10 ȍ2019Ȏ decisions point to the fact that the modern concept of human rights includes the prohibition of limitation of the already achieved standard of protection of rights, unless it is absolutely necessary (while even in times of crisis, their minimum basis is protected). 11 It may be noted that the classification of human rights under three generations (the first generation of civil and political rights, the second generation of social, economic, and cultural rights, and the solidarity rights known as “the third generation of rights” 12 ), can certainly serve as a kind of educational tool for the simplified description of phasing the development of human rights, but it should not be overestimated, because the “generations of rights” do not present completely enclosed and separated comprehensive sets of rights. 13 One also cannot ignore that in recent years, on the contrary, the interdependence and interconnectedness of all human rights across their generations have increasingly been emphasised ( “all human rights are interrelated and interdependent”). 14 C. Social rights in the case-law of the Constitutional Court, rationality test Social rights are subject to review by the Constitutional Court, both as regards the judgments deciding on constitutional complaints by individuals 15 and in the cases of review of constitutionality, i.e. the proceedings to annul laws and other legal regulations according to Section 64 et seq. of the Act on the Constitutional Court. 16 The decision-making practice of the Constitutional Court formulated basic assumptions for assessing the enforceability of social rights enshrined in the Charter of Fundamental Rights and Freedoms, e.g. a reference to the impossibility to adopt a regulation that would have been determined arbitrarily or disproportionately. The legislature has broad discretion; however, it must not interfere with the relevant social rights to make its realisation virtually impossible or even to withdraw it in general. 17 For example, in the case of social security in unemployment, it would have file No. Pl. ÚS 2/08, of 23 April 2008 (N 73/49 of the Collection of Judgments of the Constitutional Court (hereinafter the CC Coll.) 85; 166/2008 Coll.), item 54: “However, these facts must not deny the very existence of a particular social right and ultimately eliminate its exercising.” 11 The German Federal Constitutional Court infers the constitutional right to benefits guaranteeing humane subsistence level, that means necessary to preserve humane being, including “both the physical existence of human beings, i.e. food, clothing, household equipment, shelter, heating, hygiene and health, and the possibility of cultivating interpersonal relationships and a minimum level of participation in social, cultural, and political life, since a human being as a person exists necessarily in social ties” (judgment, 1 BvL 1, 3, 4/09 – Harz IV, of 9 February 2010, paragraph 135). This judgment stated that the applicable German statutory regulation of social benefits paid to unemployed persons and their minor children does not guarantee a humane subsistence level and disregards the principles of the welfare state, which violates Article 1 (1) and Article 20 (1) of the German Constitution. Further, on the impossibility of disproportionate taxation in such situations, cf. the judgments of Portuguese Constitutional Court No. 602/2013, 353/2012, and 187/2013. 12 As mentioned in its case-law also by the Constitutional Court – cf. the judgment file No. Pl. ÚS 55/13 of 12 May 2015 (N 93/77 CC Coll. 339; 170/2015 Coll.), The decisive period for the assessment of claims for unemployment benefits, item 43. All the decisions of the Constitutional Court are available at https://nalus. usoud.cz. 13 In BARTOŇ, M. et al. Základní práva [Základní práva] . Prague: Leges, 2016, pp. 45-46. 14 See I-5 of the Vienna Declaration and Programme of Action adopted by theWorld Conference on Human Rights in Vienna on 25 June 1993; or also item 1 of the UN General Assembly Resolution of 19 December 2011, A/ RES/66/151. 15 Judgment, file No. I. ÚS 2637/17 of 23 January 2018, on the obligation of the regional authority to provide persons with disabilities with appropriate social care services. 16 Act No. 182/1993 Coll., as amended. 17 In the above-cited judgment, file No. Pl. ÚS 55/13 (note No. 13).

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