The Constitutional Court found no 240 / 2005 Coll.
The Constitutional Court's finding of 26 April 2005 on the application for annulment of the provisions of § 44 of Act No. 20 / 1987 Coll., on State Monument Care, in part expressed as "3,"
Valid
The Constitutional Tribunal found
Text versions:
17.06.2005
240
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 26 April 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, JUDr.
as follows:
Paragraph 44 of Act No. 20 / 1987 Coll., on State Monument Care, in part expressed as "3," is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Definition and recap of the proposal
On 15 April 2004, the Constitutional Court received a request from the Supreme Administrative Court to abolish the provisions of § 44 of Act No. 20 / 1987 Coll., on State Monument Care, in part expressed as "3,."
The appellant did so pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, after having concluded, in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), that the provisions of Article 44 of Act No. 20 / 1987 Coll., on State Heritage Care, in part expressed by the term" 3', are contrary to Article 2 (3) of the Constitution and Article 2 (2) and Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ').
In that case, Case 6 A 102 / 2001, the Supreme Administrative Court decided on the action by Mr M. requesting the annulment of the decision of the Ministry of Culture of 17 September 2001 No 5381 / 1998 on the declaration of a set of drawings and graphic papers of the applicant's assets for cultural heritage. The reasoning for the present decision states that the procedure for declaring a set of movable items as a cultural monument was initiated on the basis of a proposal from the National Gallery in Prague, which identified the set of drawings and graphic papers from the so-called M. collection as valuable works which cannot be threatened by export. Consent to the declaration of cultural heritage was expressed by the City Council of the City of Prague and the State Institute of Monument Care, the plaintiff did not comment on the proposal within the deadline. On the basis of the submitted paper materials, the Ministry of Culture concluded that the selected works from the ensemble meet the criteria of the cultural monument, are representative parts of the historical collection and a significant evidence of the development of Czech and European drawings and graphics from the 16th to 19th century, and were declared a cultural monument.
In the application to that administrative decision by O. M., Article 44 of the Act on State Monument Care was contrary to the general rules on administrative proceedings. This inconstitutionality is seen in the absence of the possibility for a party to appeal and in the absence of a review by an independent and impartial body in full jurisdiction, since, at the time the action was brought (before the administrative order became effective), the courts could only examine the legality of administrative decisions. In addition, the applicant objected to the contradiction of the Act on State Heritage with Article 11 of the Charter, i.e. the contradiction with the constitutionally guaranteed protection of property rights. It further suggested that the General Court consider bringing the case to the Constitutional Court, as it believes that it was decided on the basis of a law contrary to constitutional order.
The Ministry of Culture, in its observations on the application, pointed out the finding of the Constitutional Court sp. zn. I. ÚS 35 / 94 [Collection of finds and orders of the Constitutional Court ("the Reports of Decisions'), Volume 1, Found No 36], from which it imports confirmation of the constitutional conformity of the Law on State Heritage Care. It also referred to the decision of the Supreme Court in Prague, sp. zn. 7 A 13 / 99, according to which the contradiction of the Act on State Monument Care with the constitutional order cannot be brought to light only because that law does not allow for the bilingual nature of proceedings. It also draws attention to the possibility of discussing the matter by an independent body pursuant to Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention ').
Case O. M., which was held at the Supreme Court in Prague pursuant to § 246 (2) of the Civil Code, in the version which took effect before 1 January 2003, then passed to the Supreme Administrative Court under § 132 of the Administrative Rules. In the context of its discussion, the Supreme Administrative Court took the view that the provision of Article 44 of Act No. 20 / 1987 Coll., on State Heritage Care to be applied in the case is contrary to the constitutional order provided that the procedure for declaring cases as cultural monuments is not covered by the general rules on administrative proceedings.
The Supreme Administrative Court considers that the exclusion of the general rules on administrative proceedings [which is meant by Act No 71 / 1967 Coll., on administrative proceedings (Administrative Rules)] alone cannot be regarded as unconstitutional if such exclusion is compensated by the creation of a set of special rules, for a given type of procedure more appropriate (as is the case, for example, in the case of Law No 337 / 1992 Coll., on the administration of taxes and charges, as amended). The reason for the existence of special arrangements for administrative proceedings is then seen in the complexity and diversity of the public administration. However, if the law excludes general rules of administrative procedure without replacing them with others, the appellant considers that such arrangements are unconstitutional. As a result of the absence of other legal procedural arrangements that would affect the matter, the fact that an administrative body is not bound by law to protect the rights and interests of citizens, is neither obliged to deal with the matter conscientiously and responsibly, is not obliged to deal with the matter on time and without undue delay, nor is it obliged to ensure that the decision is based on a reliable state of affairs; on the contrary, the person whose rights are at issue shall not be able to defend or comment on the grounds of the decision itself. Similarly, according to the Supreme Administrative Court, a number of other obligations and rules do not apply: for example, there is no party to the proceedings, the case can also be decided by an administrative officer who has a personal or factual interest in the outcome of the proceedings, no one may be allowed to look at the file, no one need be notified of the decision and no less served, no one need be drawn up in writing, there is no prior issue of the decision, no appeal against the decision, an unlawful decision cannot be annulled or the procedure laid down in Paragraph 65 of the administrative order, and the decision does not have any formal authority.
In this context, the appellant finds the determination of the rules of the decision-making procedure entirely within the competence of the competent administrative authority. In this context, it refers to the opinion of the teaching body that, in such cases, there is no choice but to apply by analogy certain institutions of the administrative order and, where appropriate, the general principle of administrative law (D. Hendrych et al., Administrative law. General section, 4th edition, Prague 2001, p. 247). However, it considers that the argument of an administrative authority which would invoke the constitutionality of its procedure, based on the analogous application of the administrative order and on the principles of administrative law, is insufficient. Some of these principles can be found in the initial provisions of the administrative order, others may be based on the provisions of other laws, and again others may be a generalisation of administrative or judicial decisions. However, their listing is not mandatory and is therefore left to the approval of the administrative authority, which will respect the overall generally accepted principles in its decision making.
In this context, The Supreme Administrative Court points out the finding of the Constitutional Court sp. zn.
For those circumstances, the Supreme Administrative Court considers that the total exclusion of the administrative order from the decisions on the rights and obligations of natural and legal persons in a situation where there is no other applicable regulation which the administrative authority would be obliged to respect is contrary to the constitutional order, namely Article 2 (3) of the Constitution and to the corresponding provision of Article 2 (2) of the Charter, as well as Article 36 (1) of the Charter, and therefore proposed the provisions of Article 44 of Act No 20 / 1987 Coll., on State Memorial Care, in the part of the expression "3 '.
Recital of the essential parts of the party's observations
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In his observations of 24 February 2005, the President of the Chamber of Deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek, first of all, refers to the procedure of the Ministry of Culture in the case of Prosecutor O. M., in which he was notified in writing of the application for a declaration of a set of movable goods as a cultural monument and was allowed to comment on the application within the meaning of Article 3 (2) of the Act, of which the party to proceedings before the Constitutional Court of First Instance is required to respect the fundamental principles of administrative proceedings. It is further stated that the Act on State Monument Care does not allow an appeal when declaring cases as a cultural monument, but there is still no contradiction with the Constitution or international treaties by which the Czech Republic is bound. According to the interested party, the possibility of discussing the case by an independent body does not preclude the State Heritage Act.
The President of the Chamber of Deputies also refers to the argument of the Supreme Administrative Court by reference to the legal opinion contained in the judgment of the Supreme Court in Prague of 30 August 2001 No 7 A 13 / 99-28 concerning the provisions of Section 44 of the Law on State Monument Care and excluding the application of the administrative rules for the procedure for declaring cases as cultural monuments, thereby confirming the agreement of the Supreme Administrative Court itself with the view that the administrative authority must respect the fundamental principles of administrative proceedings in this procedure.
The President of the Chamber of Deputies further confirmed that Act No. 20 / 1987 Coll. was approved by the necessary majority of members of the Czech National Council on 30 March 1987, signed by the relevant constitutional officials and declared in the Collection of Laws.
Finally, it is for the Constitutional Court to consider, in the context of the application for annulment of the provisions of § 44 of Act No. 20 / 1987 Coll., on State Monument Care, in the part expressed by the expression "3," the constitutionality of that legal provision and to issue the relevant decision.
Pursuant to Articles 42 (4) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. At the beginning of his observations of 22 February 2005, his chairman, MUDr. Premysl Sobotka, stated that Act No. 20 / 1987 Coll., on State Heritage Care, was adopted by the Czech National Council on 30 March 1987, i.e. even before the creation of the Senate, none of its amendments concerned the contested provision of § 44, which is why the Senate cannot submit observations which would be based on the consideration of the law in question in the Senate.
As regards the contested inconstitutionality of the provisions of Section 44 of Act No. 20 / 1987 Coll., the appellant's argument is addressed by the party to the proceedings on certain aspects related to the issue:
On the matter concerning the declaration of a case for cultural monuments (pursuant to Article 3 of the Act on State Monument Care, as amended), this is not a clear case of the exclusion of general rules on administrative procedures without any legal procedural regulation. In fact, certain procedural rules on declaring cases as cultural monuments are laid down in Section 3 of Act No. 20 / 1987 Coll., as amended, as well as in Section 1 of Decree No. 66 / 1988 Coll., implementing Act No. 20 / 1987 Coll., on State Heritage Care, as amended by Decree No. 538 / 2002 Coll. From this point of view, in the view of the President of the Senate, rather than the argument concerning the absence of any other legislation, it would be appropriate to deal with the content of Article 3 of that law, whether and for what reasons such legal regulation could be considered to be so insufficient that, in relation to it, the provisions of Paragraph 44 in the part of the figure "3," "the Act on State Heritage Care of 28 April 2004, sp. zn. 6 and 106 / 2002 of the Supreme Court of Prague of 30 August 2001. However, according to the party to the proceedings, this is not the case and the whole argument is essentially based on the fact that there is no other applicable regulation in the matter which the administrative authority would be obliged to respect.
Finally, the President of the Senate notes that it is up to the Constitutional Court to examine and decide on the constitutionality of the contested provision of § 44 of Act No. 20 / 1987 Coll., on State Monument Care.
Abandonment of oral proceedings
Under Article 44 (2) of Law No 182 / 1993, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot expect further clarification of the case. Since all the participants, i.e. the appellant of 6 April 2005 and the parties to the proceedings in the observations of the President of the Chamber of Deputies of the Parliament of the Czech Republic of 12 April 2005 and the President of the Senate of the Parliament of the Czech Republic of 8 April 2005, agreed to waive the oral hearing and, furthermore, since the Constitutional Court considers that further clarification cannot be expected from the hearing, the oral hearing in the present case has been abandoned.
Derogation of the contested legislation
According to the provisions of § 44 of Act No. 20 / 1987 Coll. "General rules on administrative procedures do not apply to the proceedings provided for in Sections 3, 6, 8 and 21 (2) and (4)," whereas the provisions of Section 3 of the Law in question, as amended, are governed by the rules governing the declaration of cases as cultural monuments.
Conditions for the applicant's active legitimacy
The application for annulment of the provision of § 44 of Act No. 20 / 1987 Coll., on State Heritage Care, in part expressed by the term "3," was submitted by the Supreme Administrative Court pursuant to the provisions of § 64 (3) of Act No. 182 / 1993 Coll., as amended.
As already stated in the national case, in Case 6 A 102 / 2001, the Supreme Administrative Court is in a position to rule on the action by O. M., seeking the annulment of the decision of the Ministry of Culture of 17 September 2001 No 5381 / 1998 on the declaration of a set of drawings and graphic papers of the applicant's assets for cultural heritage. The Supreme Administrative Court, having concluded, in the context of its decision-making activities in accordance with Article 95 (2) of the Constitution, that the provisions of Article 44 of Act No 20 / 1987 Coll., on State Monument Care, in part expressed by the term "3," to be used in the resolution of Case 6 A 102 / 2001, is contrary to Article 2 (3) of the Constitution and Article 2 (2) and Article 36 (1) of the Charter, by order of 5 April 2004 No 6 and 102 / 2001 - 37 under Article 48 (1) (a) of the Rules of Procedure of the Administrative Procedure, suspended and submitted to the Constitutional Court of the present application for a standard check.
The procedural condition of the active legitimacy of the General Court pursuant to § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is such a relation to the annulment of the proposed law, or its individual provision, to the subject matter of the tribal proceedings, which sets out the reasons for the General Court's assessment of the case. In accordance with Articles 75, 76 and 78 of the Rules of Procedure, an administrative part of the examination of the contested decision in an action against a decision of an administrative authority is also a review of the contested defects in the administrative proceedings, and Article 44 of the Law on State Monument Care is the basis for such an assessment in the present proceedings. For the above circumstances, the appellant's compliance with the conditions of his active legitimacy for the standard control procedure may be established.
Constitutional conformity of competence and legislative process
Pursuant to Article 68 (2) of Act No 182 / 1993 Coll., as amended, the Constitutional Court, when deciding on the annulment of laws and other laws, assesses the content of those provisions in terms of their compliance with the constitutional order or, where applicable, the laws in the case of other legislation, and ascertains whether they have been adopted and issued within the limits of the constitutional competence and the constitutional procedure.
If the Constitutional Court assesses the constitutionality of the competence of the legislator and the constitutionality of the legislature process, it is based on the provisions of Paragraph 66 (2) of the Law on the Constitutional Court, according to which the application for annulment of laws and other legislation is inadmissible if the constitutional law or the international treaty with which the regulations under review are in conflict has ceased to be valid before the application of the Constitutional Court is served. It follows that, in the case of legislation issued prior to the entry into force of the Constitution of the Czech Republic No 1 / 1993 Coll., the Constitutional Court is entitled to review only their content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and observance of the normative competence [see the findings of the sp. zn. Declared under No 261 / 2000 Coll.), sp. zn. Pl. ÚS 40 / 02 (Reports of Decisions, Volume 30, Found No 88; Declared under No 199 / 2003 Coll.)].
In the present case, therefore, the Constitutional Court, having established that Act No 20 / 1987 Coll., on State Monument Care, took effect on 1 January 1988, that is, before the Constitution of the Czech Republic became effective, no 1 / 1993 Coll., none of its amendments concerned the contested provision of Paragraph 44.
Content compliance of the contested legal provision with the constitutional order (constitutionality of the exclusion of general administrative rules)
Legal opinion on constitutional aspects of the issue of the exclusion of general rules on administrative proceedings was expressed by the Constitutional Court in the sp. zn. Pl. ÚS 14 / 96. He stated that the fulfilment of a constitutional post, according to which state power can only be exercised in cases, within the limits and in the ways laid down by the law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter), constitutes a guarantee against abuse of State power and implies the need for legal basis for its implementation (whether in the form of an administrative order or other separate standard). The exclusion of the application of the general rules on administrative proceedings in the absence of others constitutes, in accordance with the Constitutional Court, a contradiction with Article 36 (1) of the Charter, which regulates the right of everyone to a specified procedure for seeking his or her rights.
Act No. 20 / 1987 Coll., on State Monument Care, as already stated, was adopted by the Czech National Council on 30 March 1987, entered into force on 1 January 1988, none of its amendments following the fall of the Communist regime concerned the contested provision of § 44.
According to the explanatory memorandum to § 44 of the Government Bill of the Czech National Council on National Monument Care (Press No. 8, Czech National Council 1986 - 1990) "the declaration of objects for cultural monuments does not affect the specific rights of their owners and therefore there is no reason to apply the administrative order. In addition, there are special interests of socialist society to preserve cultural monuments and their cultural political application, which cannot be conditional on the position of owners and their personal aspects. However, even when the general rules on administrative procedures are excluded, the relevant provisions of the law provide for the right of the owners to comment on the proposal or on the initiative of their declarations of cultural monuments. '
The whole concept of the Act on State Heritage, mirroring period ideological axioms, is based on the complete prevalence of public (state) interest and denial of the protection of individual rights, in the context of the protection of property law. From this approach it also addressed a contradictory opinion that the declaration of objects for cultural monuments, which is linked to the restriction of the owner's disposition and use rights, "does not affect the specific rights of the owners', which was why the legislator at the time did not see any reason to apply the administrative order in the present proceedings. Another argument of the concept at the time, which is then contradicted by the first, that the limitation of the owner's rights of disposal and use cannot be affected by its ownership rights, is the argument of the clear dominance of the" special interests of socialist society 'which "cannot be conditional on the position of owners and their personal aspects'.
The purpose of the provision of Article 44 of the Act on State Monument Care cannot be considered to be contradictory to the constitutional protection of property rights under Article 11 of the Charter and Article 1 of the Additional Protocol to the Convention.
The Constitutional Court is aware of the constitutional protection of cultural assets in terms of the protection of public goods (Article 34 (2) of the Charter). In a number of his decisions, he expressed his view that the conflict in the level of constitutional law occurs not only between fundamental rights and freedoms of each other, but also between fundamental rights and freedoms and other constitutionally protected values - public goods [sp. zn. Pl. ÚS 15 / 96 (Reports of decisions, Volume 6, Found No 99; published under No 280 / 1996 Coll.), sp. ÚS 256 / 01 (Reports of decisions, Volume 25, Found No 37)]. The assessment of this conflict is the result of the application of the principle of proportionality, which is also a necessary component of the maximum resulting from Article 4 (4) of the Charter, according to which even in the event of restrictions on the fundamental rights and freedoms arising from the priority with them in the context of a conflict of the public good, their substance and their meaning must be investigated.
It follows from the above that, in Article 44 of the Act on State Heritage, the exclusion of a general regulation of the administrative procedure when deciding on the declaration of cases for cultural monuments is contrary to the consequences of the assessment of that legislation by the principle of proportionality and of Article 4 (4) of the Charter.
The party to proceedings in favour of the constitutionality of Article 44 of Law No 20 / 1987 Coll. gives two arguments. The first is a reference to the case law of the General Courts and the Constitutional Court, and the second is that the exclusion of the general regulation of the administrative procedure when deciding on the declaration of cases as cultural monuments does not result in a complete absence of legal procedural arrangements, since the provisions of Section 3 of Act No. 20 / 1987 Coll., as amended, as well as Article 1 of Decree No. 66 / 1988 Coll., as amended by Decree No. 538 / 2002 Coll., provide for a clause in this context.
Where reference is made in the Senate's observations on the opinion of the Ministry of Culture on the application referring to the finding of the Constitutional Court sp. zn. I. ÚS 35 / 94, it must be pointed out that the assessment of the material consistency of the Institute's declaration of a cultural monument to Article 11 of the Charter, but not the question of excluding the general regulation of the administrative procedure without replacing it, was special.
The Supreme Court of Prague, in its judgment of 30 August 2001 in sp. zn. 7 A 13 / 99, concluded that "the fact that Act No 20 / 1987 Coll., on State Monument Care, does not allow an appeal against such a decision (§ 3 and § 44 of the Act) to be brought about by the fact that Act No 20 / 1987 Coll., namely Article 6 of the Convention, does not preclude the possibility of a case being dealt with by an independent body pursuant to that Article 6 of the Convention (in the Czech Republic of the Court of Justice)." In general, the court concluded that "even if the provisions of § 44 of Act 20 / 1987 Coll., on State Heritage Care, exclude the use of the Administrative Order for the procedure for declaring cases as cultural monuments (§ 3 of the Act), the administrative authority must respect the fundamental principles of administrative proceedings in such proceedings."
The Supreme Administrative Court, in its judgment of 28 April 2004, sp. zn. 6 A 106 / 2002, referred to the applicant's objection, according to which the legislation governing the declaration of a cultural monument is very tasteful and excludes the application of the administrative order, referring to the legal opinion contained in the judgment of the Supreme Court in Prague of 30 August 2001 No 7 A 13 / 99-28. In the present case, he therefore considered it not the very fact that the defendant (Ministry of Culture) followed the administrative rules, but that he respected the rights of the owner of the house in question (i.e. the plaintiff), which was the basis of the basic principles of administrative procedure. In this regard, the Supreme Administrative Court found that the defendant had informed the applicant in writing of the application for a declaration of the House for a cultural monument (Paragraph 3 (2) of the Law on State Heritage), enabled him to assert his argument and to provide evidence with which he was subsequently properly dealt with, and therefore concluded that the defendant respected the fundamental principles of the administrative procedure.
In its case-law, the Constitutional Court also raised the question of the constitutionality of the system of remedies. In this context, the Pl. ÚS 15 / 01 (Reports of Decisions, Volume 24, Found No 164; published under No. 424 / 2001 Coll.) stated: "The system of review instances is the result of a measure, on the one hand, of an effort to achieve the estate of law, on the other hand, the effectiveness of decision making and legal certainty." The Constitutional Court therefore shares the opinion of the Supreme Court in Prague, according to which the absence of two instances of administrative proceedings in the case of a judicial review does not constitute a contradiction of such procedural arrangements with the cases contained in Article 6 of the Convention and Article 36 of the Charter (an illustration of this maximum in the field of judicial proceedings is the unconstitutional nature of the so-called surprising decisions, which, by excluding the two-way procedure, deprive the parties of the right to make a factual and legal argument [see the findings sp. sp. z. sp. z. sp. sp. sp. sp. sp. sp. sp. §. (i) ÚS 220 / 04, p. 12, p. However, there is no conclusion from the opinion that the absence of a double-digit administrative procedure does not constitute an unconstitutionality without further conclusion that the contradiction with constitutional order as a result of such a finding does not constitute the exclusion of general administrative rules linked to the absence of special rules. The reason for this distinction is the fact that the absence of a two-way procedure does not result in an unconstitutionality in the case of an explicit regulation of an administrative procedure, the subject of which is the constitutionality of the absence of an explicit regulation of an administrative procedure in its entirety.
It is further stated in the two judgments that, in the absence of explicit regulation of administrative proceedings, the administrative authority is obliged to observe the fundamental principles of administrative proceedings, and these principles are evident not only from the doctrine but also from the aposterior case-law of review decisions in administrative proceedings.
That argument is based on the idea of an unwritten modification of the entire complex of procedural law. However, this concept is contradictory to the constitutional maximum, according to which state power can only be applied in the manner laid down by law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter). The maximum legal basis for the exercise of State power or written procedural law does not preclude its completion by case law, or by decisions of administrative authorities, but excludes the constitutional acceptability of the absence of explicit legal procedural arrangements in its entirety.
The absence of procedural arrangements for administrative proceedings can be compensated by the administrative activities and case law of the courts by the use of an analogy. However, the doctrine has very ambiguous views in this context. Petr Skrka rejects the analogy in general: "For the application and interpretation of the standards of administrative law, the use of the analogy is out of the question, which in a way results directly from their nature." General section. Brno 2003, p. 70). Petr Hår also holds a tentative position on the analogy in administrative law: "The analogy as a legal institution serves to cover loopholes in law and applies in particular to private law. In public law and in administrative proceedings, we must reserve a considerable reserve when using this institute." (P. Hål., Analogy as a legal institute and as a method of reasoning. A few comments on the analogy in law (not only) administrative. Lawyer, No 2, 2003, p. 123). In the light of Article 2 (3) of the Constitution and Article 2 (2) of the Milan Kindl Charter, the principle is that "the analogy in public law cannot be used to the detriment of the non-executor ', which implies that" it can be used for his benefit' (M. Kindl, Small consideration of the analogy in public law. Lawyer, No 2, 2003, p. 133). A similar opinion is also held by Vladimir Sládeček: "It may seem that the scope for the use of analogy in administrative or public law is hopelessly limited or rather completely emptied by the establishment of constitutional principles - limits on the application of public (state) power (i.e. Article 2 (3) of the Constitution, Article 2 (2) and Article 4 (1) of the Charter)... but this does not mean that it is impossible to apply it, even if it is not likely that it should be used frequently.. the analogy of law or the analogy of law in administrative law (whether tangible or procedural) is taken into account if it does not bring (unequivocal) the benefit of the party to the proceedings or the legal relationship of administrative law." Praha 2005, p. 130). According to Vladimir Vopalka, "if the adjustment is insufficient, there is no choice but to rely on the analogy and on some of the institutions of the administrative order, unless the nature of the matter excludes it, and on the general principles of administrative (procedural) law (D. Hendrich et al., Administrative law. General section 5, Prague 2003, p. 359).
Even from the outline of the opinion of the doctrine, in all its ambiguity, it can be concluded that if the doctrine allows the use of the analogy in the field of administrative proceedings at all, only under restrictive conditions - only within a limited framework for the purpose of completing the procedural arrangements and for the protection of the rights of the parties to administrative proceedings. However, it cannot be concluded from these opinions that it would be considered acceptable by the use of the analogy to create procedural arrangements for the administrative procedure in its entirety.
The legal opinion of the Constitutional Court, already expressed in the decision in sp. zn.
Finally, the party contends against the reasoning of the proposal of the Supreme Administrative Court by alleging that the exclusion of the general regulation of administrative proceedings in the decision on the declaration of cases as cultural monuments does not result in a complete absence of legal procedural arrangements, since the provisions of § 3 of Act No. 20 / 1987 Coll., as amended, and § 1 of Decree No. 66 / 1988 Coll., as amended by Decree No. 538 / 2002 Coll., provide for a clause in this context.
According to Article 3 (2) of the Act on State Heritage, the Ministry of Culture shall inform the owner in writing of the case on the application for a declaration of a cultural monument or that it intends to declare the case a cultural monument on its own initiative and shall allow him to comment on the proposal or initiative. In paragraph 4 of that legal provision, the obligation of the Ministry of Culture to declare the case for the cultural monument of its owner, the Regional Office, the Municipal Office of the Municipality with extended scope and the professional organisation of the State Monument Care and also to inform the Academy of Sciences of the Czech Republic at archaeological findings; This obligation applies to the Ministry even if it has not found the reasons for declaring the case as a cultural monument. The following paragraph 5 lays down the obligation for the owner to cooperate in providing relevant information to the Ministry for the purpose of declaring cases as cultural monuments, and then paragraph 6 of the provision of the State Monument Care Act contains a reference to more detailed procedural arrangements by general legislation. The participant then considers as such the provision of § 1 of Decree No. 66 / 1988 Coll., as amended by Decree No. 538 / 2002 Coll., according to which the Ministry of Culture declares real estate and movable goods, or their sets as cultural monuments on its own or other initiative, prior to the declaration of the case as a cultural monument, may, in addition to the observations provided for in § 3 (1) of the Act, request an opinion of professional, scientific and artistic organisations and provide details on the compulsory cooperation of the owner in accordance with § 3 (5) of the Act on State Heritage Care.
Although Article 3 of the Act on State Monument Care contains certain procedural standards, from the point of view of the overall content of the regulation of administrative proceedings it is only a torso, it is such a minimal part of the regulation which in no way can claim the ambition of completeness (with the possible presence of certain gaps). Paragraph 1 of Decree No 66 / 1988 Coll., as amended by Decree No 538 / 2002 Coll., then does not meet the requirement arising from Article 2 (3) of the Constitution and Article 2 (2) of the Charter concerning the legal force of the law which provides for the application of state authority.
Therefore, since the partial provision contained in Section 3 of the Act on State Heritage does not change the fundamental absence of a special procedure for deciding on the declaration of cases for cultural monuments (after the exclusion of the scope of the general regulation of the administrative procedure), this partial legal regulation is not capable of reversing the conclusion on the contravention of Article 44 of Act No 20 / 1987 Coll. in the part expressed by the expression "3," with Article 2 (3) of the Constitution and Article 2 (2) of the Charter.
On the basis of the grounds thus set out, it must be considered that the general rules governing the administrative procedure should be excluded when deciding to declare cases as cultural monuments as contradictory to Articles 11 (1) and 1 of the Additional Protocol to the Convention in conjunction with Article 4 (4) of the Charter, as well as Article 2 (3) of the Constitution and Article 2 (2) of the Charter.
For those reasons, the Constitutional Court on the date of the publication of this finding in the Collection of Laws of the provisions of § 44 of Law No 20 / 1987 Coll. in the part expressed by the expression "3," 'annulled.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 240 / 2005 Coll., on the application for annulment of the provisions of § 44 of Act No. 20 / 1987 Coll., on State Monument Care, in part expressed as "3," |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.06.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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