The Constitutional Court found No 211 / 2005 Coll.
The Constitutional Court found of 22 March 2005 on the application for annulment of § 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), and the annulment of § 4 (2) of Act No. 565 / 1990 Coll., on Local Charges, as amended
Valid
The Constitutional Tribunal found
Text versions:
30.05.2005
211
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 22 March 2005 in plenary composed of JUDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent and JUDr. Eliška Wagner in the case of the draft group of Members of the Chamber of Deputies of Parliament of the Czech Republic on the annulment of § 34 of Act No. 128 / 2000 Coll., on Municipality (General Establishment), and the repeal of § 4 (2) of Act No. 565 / 1990 Coll., on Local Taxes, as amended by the Act
as follows:
I. The proceedings for the motion of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to abolish Article 4 (2) of Act No. 565 / 1990 Coll., on Local Charges, are hereby terminated.
II. The motion of the Group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal Article 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment) is rejected.
Reasons
Definition and recap of the proposal
The Constitutional Court received on 21 August 2002 a proposal from a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the "appellant ') to abolish Article 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), and Article 4 (2) of the Act No. 565 / 1990 Coll., on Local Charges, in the then-applicable version.
The appellant analysed the content of the provisions of § 34 of Act No. 128 / 2000 Coll. It stated that this provision regulates and defines, through a demonstration account, what is understood as public space. This legal regulation is new, a similar provision was missing in previous municipal law regulations. In § 4 (2) of Act No. 565 / 1990 Coll., on local charges, the public space was defined on the day of the proposal for a so-called special use of public space.
The dispute between the contested provisions and the constitutional order is seen by the appellant in its conflict with Article 11 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). According to the appellant, the two contested provisions significantly interfere with the property law guaranteed by the Czech constitutional order. The definition of public space in the Municipality Act and in the Local Charges Act is considered to be too broad for the applicant to allow private land to be declared public if it fulfils the statutory conditions, even without the consent of the owner of the land in question. According to the appellant, such a declaration of private land for public spaces would have the character of an unconstitutional restriction on ownership. According to the appellant, ownership is a right which must not be infringed in any way. Article 11 (4) The Charter is an expropriation or forced restriction of property rights possible in the public interest, by law and for compensation. However, the declaration of the land for public spaces is not linked to any compensation. The appellant further referred to the fact that, under the Local Charges Act, the municipality itself, for the purposes of the public space charge, will determine the places of the nature of the public space which are subject to the public space charge in the municipality.
Paragraph 4 (1) of Act No. 565 / 1990 Coll. (Note at the time of the proposal) lays down a general obligation to pay a fee for the so-called special use of public spaces. It is up to the municipality to determine the places from which the special use of which gives rise to a charge. Since the owner of the land designated by the municipality as a public area is not exempt from the special use charge for such land, it is not excluded that the charge will also be imposed on the owner himself, who uses the public area in a manner appropriate to the so-called special use. "If the owner were, moreover, obliged to pay a charge on his land for his use to a municipality which had itself established that it was a public area, this would probably be a very absurd situation."
Paragraph 34 of Act No. 128 / 2000 Coll. also considers the appellant to be unconstitutional because it infringes the principle of equality of property law. According to the Charter, ownership has the same legal content and protection. Since the municipality can define "other premises' as a public area, this gives the municipality a large and disproportionate discretion. In view of the fact that the municipality can do so arbitrarily, it is possible that one of similar land will be declared a secondary area and another will not. In addition, according to the appellant, the right to business may also be violated as users would be forced to pay a fee on private land declared as public spaces, while not on other land.
In conclusion, the appellant pointed out that the contested provision of Paragraph 34 of the Municipality Act was adopted as a parliamentary amendment, so it was not the legislator's intention to cause such significant interference in property law. It therefore proposed that the Constitutional Court should abolish the contested provisions for their contradiction with Article 11 of the Charter.
Recital of the essential parts of the observations of the parties
On the invitation of the Constitutional Court pursuant to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '), the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic submitted observations as parties to the proceedings.
According to the Chamber of Deputies of the Parliament of the Czech Republic, the definition of public space is contained in Section 34 of Act No. 128 / 2000 Coll. (hereinafter referred to as the "Municipality Act '), there was no new law in the previous municipal establishment. In adopting this provision, the legislator intended to remove a gap consisting of the absence of a definition of the concept of public space. This term is used in approximately 138 laws and occurred, without definition, also in the previous municipal establishment [Act No. 367 / 1990 Coll., on Municipality (municipal establishment)]. The contested regulation is not a restriction on the ownership of the owner of such a space. In principle, the special public space scheme acts against third parties who, for example, are imposed or prohibited by certain behaviour, provides for the payment of a local charge on their use, the disposal of municipal waste from such premises, etc. The Act on Municipality was approved by the Chamber of Deputies of the Parliament of the Czech Republic on 8 March 2000 and by the Senate of the Parliament of the Czech Republic on 12 April 2000, signed by the relevant constitutional authorities and duly declared in the Collection of Laws. The legislature adopted this law in the belief that it is in accordance with the constitutional order of the Czech Republic.
It follows from the observations of the Senate of the Parliament of the Czech Republic that, during the general debate in the Senate, a number of provisions of the law on municipalities were discussed, but the constitutionality of the appellant challenged by Paragraph 34 was not questioned by anyone. The bill on municipalities was passed on 12 April 2000 by 42 senators from the present 69. The Act No. 565 / 1990 Coll., on Local Charges, was approved by the Czech National Council in 1990, i.e. before the Senate of Parliament of the Czech Republic was established. On the content of the proposal, the Senate stated that the definition contained in Section 34 of the Municipality Act defines the concept of public space for the purposes of exercising the powers conferred on municipalities by the Act. This is, for example, the decision of municipalities in relation to the labelling of public spaces, the authorisation to impose obligations on local public order matters, the protection of the environment and the maintenance of purity, as well as the authorisation to impose fines for administrative offences relating to the maintenance of order in public spaces, on the basis of generally binding regulations. The municipality acts here not as a legal person of private law but as a public corporation within the meaning of Article 101 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), whose task is to protect the interests of its citizens and the public interest. The essence of these competences is the legal regulation of the behaviour of persons in premises accessible to everyone within the territory of the municipality without restriction, where, in accordance with the law, such regulation is of public interest. The determination of the land as a public place is not left to the village's liking. In order to designate a land as a public place, the ownership relationship cannot be decisive, but only its nature allows for effective access to the land for everyone in the absence of restrictive interference by the owner. Only when this condition is met are the features of public space legally fulfilled. The prioritisation of the individual interest of the owner of the public space would lead to a substantial burden or a ban on the legal regulation of social relations in which the public interest is involved and thus to a restriction on the exercise of the territorial autonomy guaranteed by the Constitution. The words "and other premises accessible without restriction ', contained in the contested provision, cannot be interpreted other than that they are not any premises, i.e." other premises', but that they are areas of a similar nature to "squares, marketplaces, roads, local roads, parks and public greenery '.
The purpose of the fee for the special use of public space, which has its historical roots, is to ensure through the economic pressure of the municipality that the special, i.e. limited, use of public space is not preferred to general use. However, it should be admitted that if the owner of the public space uses the public space in a special way for his own use, the payment of the fee would not have to be "entirely fair." However, even the owner of such land should limit the special use of the land freely accessible to anyone to the strictly necessary period or, in accordance with legislation, to change the nature of the land by other measures. The payment of the charge by the owner of the land itself may also be regarded as an obligation to pay a "special property tax," from which, under the conditions laid down by the municipal decree within the meaning of Article 14 (2) of Law No 565 / 1990 Coll. the taxpayer may be exempted or be granted relief. It is to consider whether such exemption or relief should not be given directly by law.
Derogation of the contested provision § 4 paragraph 2 of Act No. 565 / 1990 Coll., on Local Charges, and termination of the application for annulment
The appellant challenged the constitutionality of § 4 (2) of Act No. 565 / 1990 Coll., on Local Charges. At the time of the submission of this draft provision, Paragraph 4 (2) of that Act was worded: "The public areas under that law are in particular squares, marketplaces, roads, local roads, parks and public greenery, as well as other premises accessible to everyone without restriction."
This provision was repealed by Act No. 229 / 2003 Coll., which took effect on 1 January 2004. The third paragraph of paragraph 3 shall be renumbered second paragraph as from 1.1.2004. At the time of the decision of the Constitutional Court, the provision of § 4 (2) of Law No 565 / 1990 Coll. reads:
"(2) The fee for the use of public space shall be paid by natural and legal persons who use the public space as referred to in paragraph 1."
Paragraph 1 of that provision shall then read as follows:
"(1) The charge for the use of public spaces is levied for the special use of public spaces, 4b) which means the execution of excavation works, the location of temporary structures and facilities used for the provision of sales and services, the location of construction or advertising facilities, circus facilities, funfair parks and other similar attractions, the location of landfills, the reservation of permanent parking places and the use of this space for cultural, sports and advertising events or the need for film and television works. No fee shall be paid from events organised in the public domain whose proceeds are intended for charitable and public benefit purposes. ';
Note 4b) refers to the definition of public space contained in § 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment).
As a result of the development of legislation after the submission of the proposal, the provision of Section 4 (2) of Act No. 565 / 1990 Coll. was derogated by an amendment to the Act on Local Charges by Act No. 229 / 2003 Coll. The purpose of this amendment was to extend, starting with its effectiveness, the definition of public space contained in Section 34 of the Municipality Act to the Local Charges Act.
Article 67 (1) of the Law on the Constitutional Court states that, if the law or its individual provisions which are proposed to be annulled expire before the end of the proceedings before the Constitutional Court, the proceedings shall be terminated. In this case, the provision of § 4 (2) of Act No. 565 / 1990 Coll., on Local Charges, was annulled before the legislative decision of the Constitutional Court. The current provision of Paragraph 4 (2) of that Act is a completely different provision. The Constitutional Court therefore acted in accordance with Paragraph 67 (1) of the Law on the Constitutional Court and stopped the procedure for this part of the proposal.
The further proceedings before the Constitutional Court were therefore reduced only to the constitutional procedure of § 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment).
Conditions for the applicant's active legitimacy
The proposal was tabled by a group of forty-three Members of the Chamber of Deputies of the Parliament of the Czech Republic and is therefore in line with the conditions laid down in Paragraph 64 (1) (b) of the Constitutional Court Act. The conditions of active legitimacy are therefore met on the part of the applicant.
Constitutional conformity of the legislative process
The Constitutional Court is required, in accordance with the provisions of Paragraph 68 (2) of the Law on the Constitutional Court, to examine in particular, in the procedure for checking the standards, whether the contested law has been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
According to data from the Chamber of Deputies of the Parliament of the Czech Republic, publicly available on the website of the Chamber of Deputies (http: / / www.psp.cz), the draft law on municipalities was submitted to the Chamber of Deputies by the Government of the Czech Republic on 17 November 1999. During the examination of the draft law, an amendment was tabled by Mr L. H., which introduced the provisions of Paragraph 34. The bill was passed by Resolution No 868 of 8 March 2000 of the Chamber of Deputies. Of the 184 Members present, 149 were in favour of the proposal and 30 were against it. The bill on municipalities was then passed on 12 April 2000 by 42 Senators from 69 Senators present (Resolution 333) and signed by the President of the Republic on 4 May 2000. The bill was published in the Collection of Laws as No. 128 / 2000 Coll. Act No. 128 / 2000 Coll. including the contested provision § 34 of the Act was adopted and issued in the prescribed manner.
Text of provision § 34 of Act No. 128 / 2000 Coll., on Municipality (Municipal Establishment), proposed for annulment
The contested provision of Section 34 of the Municipality Act reads:
"All squares, streets, markets, pavements, public greenery, parks and other premises are open to everyone without restriction, i.e. serving general use, regardless of ownership of the space."
Content compliance of the contested provision with the constitutional order
Paragraph 34 of the Municipality Act can be divided into two basic groups. First, the appellant argues that the definition of public space in the Municipality Act is too broad, since, contrary to Article 11 (2) of the Charter, it allows private land to be declared public space without the consent of its owner.
The second group of arguments is the possibility that the municipality provides pursuant to § 4 (1) of Act No. 565 / 1990 Coll., on local charges, the obligation to pay a fee for the so-called special use of public space also to the owner of the space itself, which was declared public space.
First group of objections
The contested provision of Section 34 of the Municipality Act states that public space is an area which meets the characteristics "regardless of ownership of that area '(Section 34 in fine). The form of ownership is therefore irrelevant for the declaration of the square, street, market, pavement, public green, park and other space for public spaces. The basic condition is that these premises are accessible to everyone without restriction and therefore serve general use. A substantial part of the public area is generally owned by municipalities (cf. Hendrych D. et al., Administrative law, 5th edition, C. H. Beck, Prague 2003, p. 266).
The characteristics of a particular area as a public area are significant with regard to the concept of general (public) use. Public (general) use is a traditional, very old legal institute, the importance of which was neglected especially after 1948 due to strong nationalisation tendencies. In this context, reference can be made to the content of the concept of general use, which has been given particular attention in the pre-war theory.
General use (usus publicus) can be understood as the use of a thing corresponding to its determination and not excluding the same use of others (Dictionary of Public Law, St. II. Brno, 1932, p. 991).
The above-mentioned Civil Code, as well as the applicable Civil Code, do not contain the definition of "public case 'or" general case'. The General Civil Code (hereinafter "O. Z.O. ') defined in Section 287" loose goods', "municipal or public goods' and" public property '. A free matter could be taken over by anyone, as a general or public good, for which only their use was possible, i.e. not ownership (e.g. roads and rivers). State capital was made up of what was intended to cover state needs (e.g. coin or postal shelf). Similarly, § 288 of the O. O. O. defined the terms "general estate" and "municipal assets." The general good was the cases which, according to the municipal establishment, served to use each member of the municipality and the municipal property was the cases generating revenue which were intended to cover municipal expenditure.
According to the commentary on the General Civil Code (F. Rouček, J. Sedláček, Volume I, Prague 1935, p. 17 et seq.), the public property of the real estate was therefore intended for public use by the administrative regulations (by law or by decree of the competent authority). These were public waters and public roads (roads, streets, bridges, squares, orchards and other roads), i.e. things belonging to public territorial corporations, i.e. public goods in the narrower sense of the word. Public goods in the wider sense of the word were considered to be those described above (i.e. belonging to public territorial corporations) but also those which were owned by a private investor. General use was a restriction of public law for the owner of the public good. The case remained in its possession if the statement of the competent authority ceased to be a public good. The administrative authorities decided whether a matter was a public good, which belonged to general use and whether the establishment of a law was not limited to general use.
According to the present case-law on § 287 O. Z.O.: "That the journey is a public journey does not exclude the private right to real estate, since the property right on land limited by general use will be revived if this general use ceases' (decision of the Supreme Court (G.U. 12.856. At the time, the Supreme Administrative Court ruled that:" The fact that the land is privately owned does not prevent the municipality from declaring a road for a public road. "(God. 4631 / 25 - see comment from above, p. 13).
As regards the case law of the period of time on § 288 O. O. O., it should be noted that: "By being public, private ownership of the property is not excluded." (Gl. U. 12.856 Supreme Court). According to the other Supreme Court judicate 11.290: "The square is a municipal property within the meaning of § 288 O. Z.O. The use and treatment of the municipal property is not governed by private law, but by public law, while the municipality does not act as a private owner but as a superior when it has lent the property to operate public undertakings and collects special benefits' (see the same comment, p. 19).
From the above mentioned historical excursion, from the legal theory and practice it follows that public use covered material goods privately owned even before the application of Act No. 128 / 2000 Coll. (cf. e.g. Hendrych, D. et al., Administrative law, 5th edition, C. H. Beck, Prague 2003, p. 267). For other literature, general public use: Pomahač, R., Public Administration Guide, ISV, Prague 1999, p. 138. In particular, on this issue, the analysis in Article O. David, J. Zacharias: Charges for the use of public spaces, Lawyer No 2 / 98, p. 161 et seq., where authors conclude that the public space can also be the property of a private owner. Similar views exist traditionally in Czech legal science (cf. generally on public use, e.g. Hoetzel J., Czechoslovak Administrative Law, General Part, Prague 1937, p. 296 et seq.).
The current legal theory and practice understands the use of generally accessible material goods by an unlimited number of users under the term "public use." This must be a use which corresponds to the nature and purpose of the good and which does not exclude from similar use of the same good other than potential users. Where certain uses exceed those limits and exclude or restrict the use of the good by another user, such use shall be regarded as being specific, if not even illegal, in use. Thus, two types of public use are distinguished, namely general use and specific use. Both types of use are of a public nature, the owner's will is of no importance here. The general use does not require any decision of the administration, so no authorisation is required for them, the user range is unlimited. The user may be anyone who fulfils the conditions set. On the other hand, specific use is based on an administrative decision and only for users identified in this decision, in other words, specific use is always on authorisation (cf. Hendrych, D. et al., quoted work from above, p. 261 et al.).
According to the theory, public spaces such as material goods are one of the possible subjects of public use, including water, infrastructure, landscape, forest, air, some types of energy and frequency spectrum (Hendrych et al., cit. work, p. 265 et al.).
In view of the particular archaic nature of the general use institute, it can be concluded that it was generally created in a normal way, i.e. by the long-term use of a particular material good. In this respect, it is possible to rely to a certain extent on the historical memory of the inhabitants of the municipalities, who usually have fixed the use of these goods "from time to time ', which also applies to the potential private owners of those goods, who have expressed their position to agree to this general use, that is to say that they regard the area owned by them as public space. As regards the status of owner, the older theory was based on" conjecture of dedication, "i.e. that, for example, public travel is dedicated to the owner of general use and cannot be removed (i.e. general use) by the private legal disposition of the owner (cf.
Thus, any space which is accessible to all without restriction serves general use and is designated as a public space in a generally binding municipal decree. According to Article 14 (2) of Act No. 565 / 1990 Coll., on Local Charges, the municipality will determine by a generally binding decree a place which is subject to a public space charge in the municipality. It is a decision which is within the separate jurisdiction of the municipality within the meaning of Section 35 of the Municipality Act. In this decision, the municipality is bound not only by the definition of public space contained in § 34 of the same law, but by the whole system of zoning and building management according to special regulations. Nor is the right of the owner to defend the general use of his property by private law (by action before a general court) limited in any way. The ability of the owner to defend himself with the "actione negatorium" was also permitted by pre-war legal theory (cf. quoted Dictionary of Public Law, p. 994). In the light of this, it can be concluded that the owners have the opportunity to defend themselves against arbitrary decisions made by the municipality on public spaces.
The definition of public space contained in Section 34 of the Municipality Act cannot, in the view of the Constitutional Court, be considered to be too broad. As the Senate stated in its observations, with which the Constitutional Court also agrees, the words "and other premises accessible without restrictions' contained in this provision must be interpreted as not being any premises, i.e." other premises', but as being areas of a similar nature to "square, marketplace, road, local communication, parks and public greenery '.
The space fulfilling the legal features of public spaces is a public area of the former. The removal of premises owned by private entities and fulfilling the legal characteristics of public spaces from the public law regime of public spaces would lead to a significant burden or a ban on the legal regulation of social relations in which the municipality, as a public body, has a public interest. This would, for example, negatively affect municipal decision-making in relation to the labelling of public spaces, the authorisation to impose, on the basis of generally binding decrees, the obligation to protect local public order matters, the protection of the environment and the maintenance of purity, as well as the right to impose fines for administrative offences relating to the maintenance of order in public spaces. In fact, a number of aspects of this public law regulation do not burden the owner in any way, but, on the contrary, his legal status as owner of such land improves [for example, public protection against pollution of public areas under § 10 (c) and § 58 of the Act on Municipality, by ensuring public order under § 10 (a) of the Act cited, etc.].
The payment of the special use of public spaces may not concern, and normally does not concern, all public areas, but only those which are defined for the purposes of the special use fee obligation by a generally binding municipal decree issued pursuant to § 14 (2) of Act No 565 / 1990 Coll., on local charges. The rights and obligations of the owner of such an area shall not be directly affected by his declaration of public spaces. Accordingly, the designation of a private property as a public area by a generally binding order of the municipality cannot be compared to an expropriation or compulsory restriction of property rights within the meaning of Article 11 (4) of the Charter, as the appellant does.
The appellant's basic thesis is the assumption that ownership is a right that "must not be infringed." From Article 11 (3) The Charter shows that ownership is not an absolute and unrestricted legal property over the matter, but is intended to fulfil and also perform other functions. Article 11 (3) The Charter obliges ownership, it must not be used to harm the rights of others or in violation of the law protected by general interests. If a private owner owns a land which meets all the characteristics of public space according to the legal definition, it is also necessary to accept the possibility that the municipality declares such land as public space (§ 14 (2) of Act No. 565 / 1990 Coll., as amended, § 84 (2) of Act No. 128 / 2000 Coll.). Thus, the relevant general binding order of the municipality merely declares an existing situation. In this regard, the Constitutional Court agrees with the view expressed by the Senate of the Parliament of the Czech Republic, according to which the municipality acts as a public body within the meaning of Article 101 (3) of the Constitution of the Czech Republic, whose task is to protect the interests of its citizens and the public interest. One of the functions of the obligation to pay fees for the specific use of public spaces is to ensure, through the economic pressure of the municipality, that specific, i.e. strictly limited and other users excluding the use of public spaces are not preferred to general use.
As the Constitutional Court has already stated in its case-law, it is necessary to respect the clarification of the social obligations of ownership within the meaning of Article 11 (3) of the Charter and Article 1 (2) of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, according to which the right to the protection of property does not prevent States from adopting laws which they consider necessary to regulate the use of property in accordance with the general interest. Such legal arrangements also apply in the Czech Republic, even if they do not have restrictions on the use of the property - and because of the variety of circumstances they cannot have - the nature of the inventory individually specified obligations, but rather obligations generally formulated but reasonably interpretable (see the finding of the Constitutional Court sp. zn. Pl. ÚS 11 / 01, published under No 144 / 2002 Coll. and published in the Collection of finds and resolutions of the Constitutional Court (hereinafter referred to as "the Reports of Decisions'), Volume 25, Found No 25).
Similarly, the appellant's argument of infringement of the equality of owners as defined in the second Charter's second sentence of Article 11 (1) shall not stand. The Constitutional Court points out its reasoning in the finding of the sp. zn. Pl. ÚS 15 / 99, according to which Article 11 and Article 26 (2) of the Charter are an expression of the general concept of the rule of law in the Czech Republic. Although the Czech Republic does not expressly declare itself to be a "social rule of law 'in any constitutional document, in fact, as in a number of Western European countries, the whole of its constitutional and legal system is based on the principle that ownership is committed and limited by legally protected general interests (Article 11 (3) of the Charter) and on the possibility of State interference in the regulation of property rights in the public or general interest. If such an adjustment takes place in the public interest, it is not an intervention in the equality of different owners. The constitutional system and the legal order of the Czech Republic reject a different value classification and a different degree of legal protection of what was referred to as" different types and forms of ownership "in totalitarian regime. According to the cited finding, the Czech legal order is based on one universal concept of ownership, the regulation of which is subject to the law-protected general interests (see in detail the find sp. zn. Pl. ÚS 15 / 99, published under No 80 / 2000 Coll. and published in the ECR, Volume 17, Found No. 38). In this sense, it is not and cannot be unconstitutional if certain premises owned by private persons are also subject to the public space regime, but instead is a consistent implementation of the universal concept of ownership of non-discriminating owners of a private and public law nature.
Finally, the appellant's objection that the municipality can proceed arbitrarily in determining the public area will not stand. The municipality is bound by the legal definition of public space in the relevant provision of the law, by the obligation to comply with the law of the Czech Republic, as well as by the requirement of a constitutionally conformistic interpretation of general (sub-constitutional) law. In addition, there is sufficient control in the Czech legal order that the municipality does not exceed its competence. In this regard, the Constitutional Court refers to Article 87 (1) (b) of the Constitution, according to which the Constitutional Court decides to abolish other legislation, including generally binding municipal decrees issued under their separate jurisdiction, in so far as they are contrary to a constitutional law, law or international treaty pursuant to Article 10 of the Constitution. The repeal of the entire provision of Section 34 of the Municipality Act would not have been possible to limit the alleged libel by the appellant, but, in the absence of any legal definition, the legislation would have given the municipality a much wider discretion in determining the public area than the current, contested, legislation.
If the appellant argues Article 11 (2) of the Charter, it is a provision which clearly does not apply to the contested provision of the Municipality Act. According to the following provision of the Charter: "The law specifies which property necessary to ensure the needs of the whole company, the development of the national economy and the public interest may be owned only by the State, the municipality or the designated legal persons; the law may also provide that certain items may only be owned by citizens or legal persons established in the Czech Republic. 'In fact, as is clear from the above analysis, public space cannot be regarded as necessary to ensure the needs of the whole company, the development of the national economy and the public interest. Therefore, there is no law to restrict the ownership of public spaces. the application of part of this provision after the semicolon is no longer considered at all.
Second group of objections
In the second heading of the objection, the appellant argues that the contested legislation produces unconstitutional consequences because it allows the owner of the area of the municipalities designated as public spaces to be forced to pay charges for the special use of public spaces.
The Constitutional Court has repeatedly stated in its caselaw that "theoretically, any provision of the law may, of course, be applied incorrectly, that is to say, contrary to the constitutional rules, which in itself cannot be the reason for the annulment of such an incorrectly applicable provision. '(Opinion sp. zn. In other words, if legislation is to be interpreted in several ways, and only one of them is unconstitutional, it is necessary to choose the interpretation of constitutionally conformal (find sp. zn. These premises are also a starting point for the following arguments.
The purpose of the General Standards Control Procedure is not to address all individual hypothetical situations that have not yet occurred, although they may sometimes occur. If the Constitutional Court did so, it would exceed its role as part of the general control of standards and replace the protection of fundamental rights which, by virtue of the nature of the cases, must be provided by general and administrative courts. The appellant has put up with a number of hypothetical examples and situations in which the contested provision would, in his view, create unconstitutional consequences. However, these legal conclusions of the appellant are not the sole and necessary interpretative consequence of the Municipality Act and the Local Charges Act. In other words, the conclusion that the charge for the special use of public spaces also applies to owners of such public spaces, necessarily from the contested provision or from another provision of the Civil or Local Charges Act.
The legal conclusion that the owner of the land would be obliged to pay special charges for the use of its land, which was designated as a public area by a general binding decree of the municipality, could be contrary, as the case may be, to the constitutional protection of ownership. In such a case, the exercise of the right of ownership by public authority would be charged. Thus, if, for example, the owner of a land designated as a public place on his land is an advertising facility (which is one of the examples of the so-called special use of public space, referred to in Section 4 (1) of Act No 565 / 1990 Coll.), he should not, in principle, be subject to a charge obligation for the special use of public space. In this case, the Constitutional Court supports both the legal conclusions expressed by some authors of legal theory (cf. David, O., Zacharias, J.: Charges for the use of public spaces, Lawyer No 2 / 98, p. 161 et seq.) and the reservations expressed in the Senate of the Parliament of the Czech Republic. In the present case, therefore, the action of the Constitutional Court is not appropriate. On the contrary, the protection of owners' rights will be the subject of possible proceedings before administrative courts, which will take into account all the relevant circumstances of the individual case and will, accordingly, distinguish the exercise of the right of ownership from its possible abuse.
Abandonment of oral proceedings
According to the provisions of Paragraph 44 (2) of the Law on the Constitutional Court, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it is not possible to expect further clarification of the case. The provision in question can be extended to proceedings in the present case, which is why the Constitutional Court asked the parties to submit their comments on whether they agreed to abandon the oral hearing. By a communication dated 19 January 2005, the applicant gave his consent to the termination of the oral hearing by his representative MUDr. Mgr. I. L. By letter dated 25 January 2005, the President of the Chamber of Deputies of the Parliament of the Czech Republic and by letter dated 26 January 2005, the President of the Senate of the Parliament of the Czech Republic gave his consent.
In the light of the above arguments, the Constitutional Court has suspended proceedings on the motion of a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to abolish § 4 paragraph 2 of Act No. 565 / 1990 Coll., on Local Charges, pursuant to § 67 paragraph 1 of the Law on the Constitutional Court. The application for annulment of § 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment) then rejected, pursuant to § 70 (2) of the Law on the Constitutional Court, because it concluded that there were no grounds for its annulment.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 211 / 2005 Coll., on the application for annulment of § 34 of Act No. 128 / 2000 Coll., on Municipality (municipal establishment), and on the annulment of § 4 (2) of Act No. 565 / 1990 Coll., on Local Charges, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.05.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0