CYIL vol. 10 (2019)

KATEŘINA ŠIMÁČKOVÁ CYIL 10 ȍ2019Ȏ The order of equal treatment in social rights and the prohibition of discrimination are separate issues that should be further developed. The mere fact that victims of certain legislative measures, having seemingly neutral character, are certain vulnerable groups (e.g. widowed seniors), evidences an insufficient consideration of the constitutionally required principle of substantive equality. As if poverty and discrimination went hand in hand. Many of the decisions of the Czech Constitutional Court and international courts in favour of the protection of social rights are based precisely on the argument of equal access to them. 31 The judicial enforceability in the area of non-discrimination arising from the European Convention on Human Rights and Fundamental Freedoms can also be illustrated based on the case-law of the European Court of Human Rights applying the principle of non- discrimination in conjunction with the prohibition of inhuman treatment and the protection of privacy 32 in relation to social security. 33 Also, the topic of access to the judiciary within the meaning of judicial review of the legality of specific administrative decisions on the claim, amount or indexation of old-age pension is essential; these lawsuits are not subject to a court fee in the Czech Republic. 34 It is in relation to the fair enforcement of social rights where it should be noted that human rights, democracy, and the state remain often only virtual for people in poor social situation, while the judiciary is inefficient, inaccessible or unavailable, e.g. on the grounds of income or education, for those who do need it most. At the time of transition to a new regime, before the breakup of the Czechoslovak federation and the establishment of the independent Czech Republic, the Constitutional Court of the Czech and Slovak Federal Republic (hereinafter the Czechoslovak Constitutional Court) worked less than a year and rendered only a few crucial decisions on the constitutional conformity of laws. One of them was related to the drastic taxation of employed or self- employed old-age pensioners, while examining this issue mainly focused on equality and the prohibition of discrimination. The Czechoslovak Constitutional Court admitted that the legislature could set taxes differentiated according to the principle that the person earning more will pay higher taxes. It refused, however, the reversed procedure when economically and socially weaker subjects would be more burdened, as well as unreasonable arbitrariness, and therefore noted that there is a non-conformity of the contested legislation with Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter the Charter) and Article 26 in this part of the text and a link to the document was a lecture by MILADA TOMKOVÁ, titled Ochrana sociálních práv v čase ekonomické krize – přístupy mezinárodních organizací a ústavních soudů v Evropě , [Protection of social rights in times of economic crisis – approaches of international organizations and constitutional courts in Europe] held in October 2014 at a conference organised by the Institute of State and Law of the Slovak 3. Czechoslovakian origins of the case-law on the constitutionality of laws concerning old-age pensions, taxation and equal treatment

Academy of Sciences, “Social Security – at the Crossroads?” in Bratislava. 31 BOUČKOVÁ, P. Rovnost a sociální práva , Prague: Auditorium, 2009. 32 Moldovan and Others v. Romania, judgment No. 41138/98 of 12 July 2005.

33 Carson and Others v. the United Kingdom – even though also based on the Grand Chamber judgment, No. 42184/05, of 16 March 2010, the complainants did not succeed, the very principle of non-discrimination in access to pensions was generally recognised by the European Court of Human Rights. 34 Section 11 (1) (b) Act No. 549/1991 Coll., on court fees, in all its versions.

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