CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE RIGHTS OF THE ELDERLY IN THE CASEǧLAW OF THE CONSTITUTIONAL COURT … happened if the length of participation in pension insurance was in relation to the length of the decisive period established to exclude a substantial portion of the working population from the entitlement to unemployment benefits – see a comprehensive summary in the judgment, file No. Pl. ÚS 55/13, of 12 May 2015. 18 According to the Constitutional Court, the social rights (and economic and cultural rights) enshrined in Chapter Four of the Charter have a specific nature, different in nature from the other fundamental rights. In its judgment, file No. Pl. ÚS 2/08 of 23 April 19 2008, the Constitutional Court pointed out that the social rights “are mainly dependent on the economic situation of the state. The level of provision reflects not only the economic and social development of the state but also the relationship between the state and a citizen, based on the mutual accountability and recognition of the principle of solidarity.The extent to which the principle of responsibility and solidarity is reflected in the legal system of the given state also determines the character of the state (e.g. as a social state). The rate of recognition of the principle of solidarity depends on the level of ethical understanding of cohabitation in society and its level of cultural development, but also on the sense of individual justice and solidarity with others and sharing their fate at a particular time and place. “ Social rights are thus not completely unconditional in nature and, in accordance with Article 41 (1) of the Charter, can only be claimed within the confines of law. This provision gives the legislature the power to set specific conditions for the realisation of social rights. Or it is a sub-constitutional legislation which gives the answer to the question of what and under what circumstances individuals may claim based on their fundamental rights. However, the consideration of legislature is not without limits in this respect. The legal execution should not be contrary to constitutional principles; when realising the constitutional regulation enshrined in the Charter, the legislature must abide by Article 4 (4) according to which the nature and meaning of the provisions concerning the limitations on fundamental rights and freedoms must be preserved. As already stated, the law must not therefore deny or vacate the right in question. 20 In other words, the specific nature of social rights does not mean that the legislature is not bound by them. Enshrining their existence in the Charter indicates that the legal regulation must maintain a certain minimum standard of the social rights (i.e. there is a certain lower limit of restrictions, their essential content). Otherwise, however, the specific balance of liberal and social aspects is fundamentally determined by the parliamentary majority. 21 The above described considerations also imply in a special test that the Constitutional Court constructed as a methodological tool to review the legislature’s interference in the constitutionally guaranteed social rights. The test is known as a rationality test 22 that reflects 18 (N 93/77 CC Coll. 339; 170/2015 Coll.). The decisive period for the assessment of claims for unemployment benefits. 19 (N 73/49 CC Coll. 85; 166/2008 Coll.). Petition seeking the annulment of Act No. 261/2007 Coll., the Public Budgets Stabilisation Act, concerning social security and a guard period, cited from item 53. 20 The judgment, file No. Pl. ÚS 2/08, cited above, item 52; and the judgment, file No. Pl. ÚS 3/15, of 30 May 2017 (N 89/85 CC Coll. 503, No. 231/2017 Coll..), The mechanism of determining the amount of reimbursement of medical devices from public health insurance, items 99 to 100. 21 The judgment, file No. Pl. ÚS 55/13, cited above, item 46. 22 For more, see KRATOCHVÍL, J. Test racionality: skutečně vhodný test pro sociální práva? [Rationality test: a truly appropriate test for social rights] Právník 12/2015, p. 1052 to 1074 or VYHNÁNEK, L. Proporcionálně či jinak? Problém ústavního přezkumu zásahů do sociálních práv. [Proportionally or otherwise? The problem of constitutional review of interference in social rights] Časopis pro právní vědu a praxi , 3/2014, pp. 203-221, on p. 208.

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