CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE RIGHTS OF THE ELDERLY IN THE CASEǧLAW OF THE CONSTITUTIONAL COURT … constitutional content of the social rights enshrined in the Charter, designating that broader set of claims which by definition may fall under the given social rights, and their specific legal content, designating the set of claims that may actually be enforced against the state (public authorities). While it is true that only that particular legal content of social rights, and not the general constitutional content as determined by the constitution forming body, is dependent on the will of the legislature (Article 41 (1) of the Charter does not apply here). The distribution of powers among the constitution forming body (the general or potential constitutional content of social rights) and the legislature (the specific legal content – realisation of social rights) is confirmed in other words also by Jan Kratochvíl who emphasises that “the content of social rights is, however, already set out by the Charter itself, otherwise they would not be fundamental rights, namely the rights which also protect against a majority decision of the legislature”. Kratochvíl then considers Article 41 (1) of the Charter “an instruction to courts, including the Constitutional Court, to adopt a deferential attitude in relation to how those rights are realised by the legislature. That means, deferential as regards how the legislature itself understands (interprets), not defines, the content of social rights through the laws implementing them. Article 41 (1) of the Charter enshrines the primary position of the legislature when interpreting (not defining) the content of social rights.” 28 D. Justiciability of the legal regulation of social rights The considerations above imply that the social rights guaranteed by the Charter of Fundamental Rights and Freedoms are subjective public rights binding on the legislature. Its duties then lie partly in the negative obligation to refrain from interference in these social rights (such as in the form of damage to the health of individuals directly by the conduct of state), both in the obligation of equal treatment and the prohibition of arbitrariness, as in the case of any other legislation containing public subjective rights of individuals, and in the positive obligation to maintain the minimum essential content (core) of these rights. According to Wintr, three situations can, therefore, be identified where a law may be found to be unconstitutional due to its conflict with social rights: (a) the law interferes with the minimum standard of basic rights and such interference is not appropriate, necessary or adequate to protect another fundamental right (proportionality test, strict test of the merits); (b) the law does not interfere with the minimum standard of fundamental rights but constitutes an arbitrary restriction of the fundamental right, which does not pursue a legitimate aim or pursues it following unreasonable means (rationality test, basic test of the merits); and (c) the law guarantees social rights in a discriminatory manner. 29 According to Tomková, in the area of real guaranteeing of social rights, the legislature is limited based on international commitments and the Czech Charter in three ways: the prohibition of discrimination, basic minimum requirements (the prohibition of vacating rights and a highly questionable possibility of reduction of the already achieved standard), and access to the judiciary. 30 28 KRATOCHVÍL, J. Test racionality: skutečně vhodný test pro sociální práva? Právník 12/2015, p. 1055. 29 WINTR, J. In WAGNEROVÁ, E. et al. Listina základních práv a svobod: komentář. Prague: Wolters Kluwer, 2012, p. 632. 30 On the subject of reducing the achieved standard of social rights, see e.g. the letter of 16 May 2012 addressed by the President of the Committee on Economic, Social and Cultural Rights to the Member States ratifying the International Covenant on Economic, Social and Cultural Rights concerning the protection of the rights enshrined in the Covenant in the context of the economic and financial crisis; an inspiration for the conclusions

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