The Constitutional Court found No 26 / 2018 Coll.
The Constitutional Court found on 19 December 2017 sp. zn.
Valid
26
FIND
The Constitutional Court
On behalf of the Republic
On 19 December 2017, the Constitutional Court decided under sp. zn.
as follows:
The application for annulment of § 12 paragraphs 4 and 5 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., amending Act No. 269 / 1994 Coll., on the Register of Penalties, as amended, and certain other laws are rejected.
Reasons
Subject matter
1. By application delivered to the Constitutional Court on 4 March 2016 The Supreme Administrative Court (hereinafter referred to as the "appellant ') proposed to the Constitutional Court the annulment of § 12 paragraphs 4 and 5 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., amending Act No. 269 / 1994 Coll., on the Register of Penalties, as amended, and certain other laws.
Arguments of the appellant
2. The contested application was based on proceedings brought before the appellant under sp. zn. 2 As 278 / 2015 in which the complainant opposed the judgment of the Regional Court in Pilsen, which dismissed the complainant's action against the decision of the Regional Office of the Pilsen Region, which dismissed his appeal against the decision of the Municipal Office of Kralovice, the Environmental Department. This latter decision was decided by the complainant not to establish a hunting guard for non-compliance with the conditions set out in Paragraph 12 (3) (c) of the Hunting Act, namely for non-compliance with the conditions of integrity. This condition was not met by the complainant, as he was sentenced by the District Court of Pilsen-North on 29 July 1976 for the intentional crime of stealing property in socialist property.
3. In assessing the case, the appellant first considered whether the contested provisions could not be interpreted in a constitutional manner. In view of the impossibility of such an interpretation, it concluded that the contested provisions are contrary to Articles 1, 3 (1), 21 (4) and 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
4. According to the appellant, the requirement of integrity as a precondition for the performance of hunting guards must be understood as a restriction of the fundamental right to freedom of choice of profession and the right to exercise public office. While the limitation of these rights may be legal, it must nevertheless fulfil certain conditions, i.e. it must investigate the substance and meaning of the fundamental right, it must not be directed towards a purpose other than the stated purpose and must not be discriminatory.
5. The Supreme Administrative Court sees the objective of the contested provision in the requirement of a certain moral safety of the person exercising the function of hunting guard (public person). This objective is alleged to be capable of achieving this objective, but the contested provisions are, according to the applicant, disproportionate to that objective, since the definition of integrity is very broad, both in terms of the scope of the offences or offences affecting integrity and in terms of the possible number of persons concerned, as a result irreversible. As a result of the contested provisions, the commission of any or all minor offences in the youth (such as disorderly conduct) makes it impossible for the hunting guard to rule even after many years, when the conviction is otherwise over and the defendant is seen as not being punished. The same is true, according to the appellant, for committing offences.
6. The device chosen could only be regarded as being most respectful of fundamental rights if specific criminal activity (in addition to which there would be a clear link with a restricted activity), the perpetration of which in the past would be a reason to restrict the fundamental right, or if other conditions were laid down for which the person who was convicted of an intentional offence or offence could be considered to be fair (e.g. after the expiry of the prescribed reasonable period). The Supreme Administrative Court points out that the legislature has likewise acted in the case of conditions for appointment as a hunting operator. In addition, it considers that not all offences in the hunting section are such that they would have to constitute a life-long distance from the function of hunting guard (e.g. an offence consisting of allowing the free running of a domestic animal after hunting outside their influence under § 10 (1) of the Hunting Act in conjunction with § 46 of Act No. 200 / 1990 Coll., on infringements, as amended).
7. In another part of its proposal, the Supreme Administrative Court also points out the Ombudsman's observations on the amendment of the hunting law, according to which the conditions for the exercise of hunting guards are stricter than those for the performance of the function of forest guards, fishing guards or nature guards. According to the appellant, the condition of integrity is examined three times for a person seeking the function of hunting guard. The condition for appointment to office is, among other things, that a person owns a valid hunting ticket and a valid weapons licence, and that, even in the case of the issue of hunting tickets, the integrity of the licence is examined.
8. According to the appellant, the argument that integrity must be set strictly, as the hunting guard uses a weapon in the performance of his duties. The appellant points out that the hunting guard does not have the authority to use the weapon as a coercive against another person and, moreover, the fact that the person is entitled to use the weapon is already assessed when examining the assumptions for the issue of the gun licence.
9. The appellant states that, in its proceedings, the complainant would fulfil the condition of integrity for the performance of the duties of a member of the Security Corps, i.e., for example, police officers. It should be clear from the nature of the matter that there is also an increased emphasis on the moral profile of the persons who carry it out.
Proceedings before the Constitutional Court
10. The Constitutional Court called on the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as parties to the proceedings to comment on the proposal. In accordance with Article 69 (2) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the proposal was also sent to the Government of the Czech Republic and to the Ombudsman, with the possibility that they may inform the Constitutional Court that they are intervening.
11. The Chamber of Deputies, in its observations of 3 May 2016, summarised the history of the adoption of the Hunting Act. The bill was passed by the necessary majority of Members of the Chamber of Deputies (for it was 134, against 38) after the original bill was returned by the Senate with amendments which did not concern the contested provisions. After signature by the relevant constitutional authorities, the law was declared on 31 December 2001.
12. The Senate stated, in its observations of 28 April 2016, that after the referral of the draft law on hunting, the Senate Organising Committee ordered the proposal to discuss the Committee on Economy, Agriculture and Transport (Guarantee Committee), the Constitutional and Legal Committee, the Committee on Territorial Development, Public Administration and the Environment and the Committee on Foreign Affairs, Defence and Security. The first three committees proposed to return the bill to the Chamber of Deputies with amendments, the latter proposed to reject the bill. When discussing the bill in the Senate, the debate did not concern the issue of integrity. Order No 196 of 26.10.2001 The Senate returned the bill to the Chamber of Deputies with amendments which did not concern the contested provisions. 44 of the 50 senators present voted for the resolution, 3 senators opposed it. The Chamber of Deputies, which returned the bill, discussed the bill on 27 November 2001 and approved the bill as amended by the amendments adopted by the Senate by Resolution 1863. The Senate's observations also describe the history of the adoption of the amendment to the Act on Hunting, Act No. 124 / 2008 Coll., amending Act No. 269 / 1994 Coll., on the Register of Penalties, as amended, and some other laws.
13. Government on 4 May 2016 It informed the Constitutional Court that it was intervening. At the beginning of its observations on the same day, it pointed out that the Supreme Administrative Court is based on a false assumption that the exercise of the function of hunting guard is a profession, business or other economic activity within the meaning of Article 26 (1) of the Charter. Article 26 According to the Government, the Charter is an expression of the protection of the right to work and must be understood in the context in which it is enshrined, for example, in the International Covenant on Economic, Social and Cultural Rights. It therefore concerns those activities which are linked to the realisation of interests which are intended to lead to the achievement of a means of subsistence. It is essential to be able to carry out work and to obtain the means to satisfy life's needs.
14. The function of hunting guard is, according to the Government, a voluntary activity carried out free of charge. This activity is therefore no longer a profession by definition and cannot be referred to as other economic activities. Only gainful work activities of a longer-term nature can be regarded as an occupation according to the Government.
15. While the Government considers the guard of the mind to be a public office within the meaning of Article 21 (4) of the Charter, it does not, however, consider the contested arrangements to be contrary to that Article. Act No. 449 / 2001 Coll., on hunting, as amended, does not create any inequality between persons seeking to perform duties. Equal access is maintained for all citizens, because they are all subject to the same requirements. The Government refers to the judgment of the Supreme Administrative Court No 6 As 226 / 2014-29 of 11 December 2014, according to which the hunting guard is given, within the framework of its powers, a significant power to prevent disruptive activities in the event of a threat to the interests protected by Act No. 449 / 2001 Coll., on hunting, as amended, including against the user of the hunt, on whose proposal it was appointed, the hunting operator or member of the hunting community. The legal conditions for the function of hunting guard must therefore, according to the Government, ensure that it is carried out by people at a sufficient professional level, but also providing a guarantee of moral authority. The moral aspect of the matter is also said to be important in view of the possible misuse of the power of hunting guards.
16. According to the Government, there is no mechanical comparison of the terms of the provisions of the hunting guard with other guards or with the requirements for the eligibility of members of the armed corps, since they are always the conditions for the exercise of different public functions or professions fulfilling different purposes and with specific powers. The comparison of the conditions for the performance of the function of hunting guards with those for the service of members of the security corps is, according to the Government, very simplistic, with the appellant allegedly completely ignoring a number of other rules and measures governing the service of members of these corps and absent in the case of hunting guards. As regards the hunting guard, the government points out that the competence of the hunting guard authorises significant interference in the personality sphere of the persons against whom it is directed.
17. In view of the regulation under Act No. 449 / 2001 Coll., on hunting, as amended, it is worth noting, according to the Government, that in terms of the rigour of the assessment of integrity, the requirements for the integrity of the ordinary holders of hunting tickets, hunting farms and hunting guards are significantly differentiated here, given the degree of responsibility and the role of the position in the activities under Act No. 449 / 2001 Coll., on hunting, as amended.
18. The Government also points out that the proposed repeal of Article 12 (4) and (5) of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., would increase the legal uncertainty of the addressees of the standard and, paradoxically, strengthen the requirement of integrity for all holders of hunting tickets and also for hunting operators. According to the Government, the provisions governing their qualification requirements are directly linked to Article 12 (4) of the Hunting Act, which refers to intentional offences and to the concept of integrity defined there. If Article 12 (4) of the Hunting Act had been repealed, it would have been necessary to conclude that, without special arrangements, it would not have been considered to be fair (for the purposes of the issue of hunting tickets or for the provision of a hunting operator) even if the guilty party was legally guilty of a negligent offence. This would allegedly have far-reaching consequences and it cannot be ruled out that some hunting operators lose their capacity to perform their duties day by day.
19. Finally, the Government added that it does not dispute the fact that the current legislation is relatively strict. However, this rigour does not, in its view, exceed the intensity for which the contested provisions should be repealed. Finally, the Government recalled that the Ministry of Agriculture is preparing an extensive amendment to Act No. 449 / 2001 Coll., on Hunting, as amended, where this issue is also addressed.
20. In the light of the foregoing, the Government considers that the contested provision pursues a legitimate objective, with the means to achieve it being rational and proportionate, as they do not impose unjustified obstacles to the performance of the hunting guard function. Therefore, the Government proposes that the Constitutional Court reject the proposal.
21. The Ombudsman informed the Constitutional Court on 11 April 2016 that he did not intervene.
22. The observations received were sent to the appellant, who did not make use of the replica.
23. Since the Constitutional Court did not expect further clarification of the case from the oral hearing, it abandoned it pursuant to § 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.
Derogation of the contested provision
24. Paragraph 12 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., paragraphs 4 and 5 of which are contested by a proposal for their abolition, reads:
Provisions of hunting guard
(1) The user of the hunt is obliged to propose for each 500 ha chase to the state authority the provisions of one hunting guard. The application for the provision of hunting guards shall be submitted within 30 days of the conclusion of the contract for the hire of a chase or within 30 days of the date on which the user of the hunt was notified by the authority of the hunting authority of the abolition of the hunting guard provisions; in the case of the use of a wannabe on its own account, the application shall be submitted within 30 days of the date on which the decision to recognise a wannabe becomes final.
(2) The Thessaloniki Guard provides for a 10-year term for a State hunting authority; a repeated provision is possible. The proposal shall contain the written consent of the person proposed for the provision of hunting guards. If a user fails to comply with the obligation referred to in paragraph 1, the hunting guard may establish a State hunting authority and inform the hunting user accordingly.
(3) A natural person who:
(a) is over 21 years of age;
(b) is resident in the Czech Republic,
(c) it is fair and fair,
(d) has legal capacity;
(e) is physically and medically fit for the function of hunting guard;
f) has demonstrated knowledge of the rights and obligations of hunting guards under this law and knowledge of the related regulations;
(g) it has made a promise to the following text: "I promise that as a hunting guard, I will most carefully and conscientiously perform my duties in the exercise of the protection of hunting activity, that I will comply with the legislation in the performance of this activity and do not exceed the authority of the hunting guard. ',
h) has a valid hunting ticket and a valid weapons licence and is insured (§ 48);
(i) have given written consent to the provision.
(4) Under this law, a person who has been convicted of an intentional offence or who has been found guilty of an offence in the hunting section or who has been fined in accordance with this law shall not be deemed to be righteous.
(5) In order to assess the integrity of a person, the authority of the State Administration of Hunting shall request the issue of a copy of the Register of Penalties. When assessing the integrity of a criminal offence, it shall not be taken into account to eliminate a conviction under a special law. A request for a copy from the Register of Penalties and a copy from the Register of Penalties shall be sent in electronic form in a way that allows remote access.
(6) Before the provision, the Authority will examine the knowledge of the proposed person referred to in paragraph 3 (f) and accept its promise under paragraph 3 (g). The provisions of the hunting guard shall be implemented by issuing a service badge with a State emblem and a hunting guard card indicating its duration and scope. The area of competence of hunting guards is defined by hunting.
(7) The Muse Guard shall notify the authority which appointed it of any change to the conditions referred to in paragraph 3 within 30 days of the occurrence of the change.
(8) The decree shall set out the model of the service badge with the national emblem, the model of the hunting guard card and the details of the assumptions for the performance of the hunting guard function and their verification. '
Presumption of a formal assessment of the proposal
25. The Constitutional Court finds that it is competent to discuss the application in question, which is admissible and fulfils all the legal requirements.
26. As regards the applicant's active legitimacy, in the present case it is the so-called specific (incident) control of standards. The General Court is entitled (§ 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended; Article 95 (2) of the Constitution of the Czech Republic, hereinafter referred to as "the Constitution ') to make a proposal when proposing the repeal of the Act or its individual provision, the application of which is to be immediate, or where necessary its unavoidable application, and not only its hypothetical use or other broader context (resolution of the Constitutional Court sp. zn. Pl. ÚS 39 / 2000 of 23.10.2000 (U 39 / 20 SbNU 353)). It follows from the purpose and purpose of the specific control of the constitutionality of legal standards that the law to be applied in the resolution of the case is only one which obstructs the achievement of a desirable, that is to say, constitutional, outcome; If it had not been removed, the outcome of the present proceedings would have been different [point 26 of the Constitutional Court's finding, sp. v. Pl. ÚS 3 / 06 of 6.3.2007 (N 41 / 44 of the CollNU 517; 149 / 2007 Coll.)]. The Constitutional Court considers that these conditions are met in relation to the contested provisions, since by abolishing the contested provisions, the scope for the complainant's provision (in proceedings before the appellant) would be open to the function of hunting guard.
Review of the procedure for the adoption of the contested provision
27. On the question of whether the Law on Hunting was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner (§ 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll.), the Constitutional Court refers to the findings of sp. zn. By amending Act No. 124 / 2008 Coll., amending Act No. 269 / 1994 Coll., on the Register of Penalties, as amended, and certain other laws, since then until the contested Section 12 (5) of the Hunting Act, it was added that the request for a copy of the Register of Penalties and a copy of the Register of Penalties is transmitted in electronic form, in a way enabling remote access. From the available Parliament's press releases, shorthand reports and voting data, the Constitutional Court found that the Chamber of Deputies approved the bill at its meeting on 13 February 2008, the Senate approved the draft at its meeting on 19 March 2008. After the signing of the President of the Republic and Prime Minister, the Act was declared in the Collection of Laws in the amount of 39 under the number 124 / 2008 Coll. The contested provisions of the law were thus adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
Substantial assessment of the proposal
28. In accordance with the individual provisions of Act No. 449 / 2001 Coll., on hunting, as amended, the Constitutional Order has been dealt with several times in the past by the Constitutional Court. He stated (the finding of the Constitutional Court sp. zn. Act No. 449 / 2001 Coll., on hunting, as amended, does not constitute an adjustment of hunting activity as an interest activity, but as a basis as a dedicated and regulated activity for the protection and development of nature, i.e. the activities used to implement a constitutionally anchored task of the State to ensure that natural resources and the protection of natural wealth are used in a gentle manner (Article 7 of the Constitution).
29. For the protection of hunting, hunting (§ 12 (1) of the Hunting Act) or by the State Administration (§ 12 (2) of the Hunting Act) is designated by the Hunting Guard. The hunting guard has a relatively wide range of authorisations, such as killing in the law of specified animals, dealing with fines pursuant to Act No. 449 / 2001 Coll., on hunting, as amended, on the collection of hunting weapons or dogs by persons caught in illegal hunting, on the spot or on the holding and inspection of means of transport where there is a reasonable suspicion that they carry or contain illegally acquired game (see Section 14 of Act No. 449 / 2001 Coll., on hunting, as amended). The duty of hunting guards (Section 15 of the Hunting Act) is, inter alia, to wear a service badge, to supervise compliance with the obligations relating to the protection of hunting, or to notify the identified defects, deficiencies and damage to the user of the hunt or the authority which has established it (or also to the authorities of the Czech Police or the authorities of the state). The State is responsible for the damage caused by the hunting guard in the context of the performance of its tasks (Section 16 (3) of the Hunting Act). The function of hunting guard is a voluntary and unpaid activity.
30. The conditions for the exercise of hunting guards are laid down in particular in Section 12 (3) of the Hunting Act (in detail also the Decree of the Ministry of Agriculture No. 244 / 2002 Coll., implementing certain provisions of Act No. 449 / 2001 Coll., on hunting, as amended), with the aim of being a person over 21 years of age, residing in the Czech Republic, being fair, arbitrary, for the performance of the function of hunting guards physically and medically qualified, has demonstrated the knowledge of the rights and duties of hunting guards under this Act and has made a promise, has a valid hunting ticket and a valid gun licence, is insured and has given written consent with the provision. The requirement of integrity, as contained in Section 12 (3) (c) of the Hunting Act, is specified in the provisions contested by the proposal under examination, namely in Section 12 (4) and (5) of Act No. 449 / 2001 Coll., on Hunting, as amended by Act No. 124 / 2008 Coll. According to paragraph 4, a person who has been convicted of an intentional offence or who has been convicted of an offence in the hunting section or who has been fined under this law by the law shall not be deemed to be righteous [to say that the Czech legal order does not contain a general definition of integrity; However, in cases where the law which works with the concept of integrity does not contain its own definition, the person who has not committed the offence or who is being looked at (§ 106 of the Criminal Code) is considered to be in principle not to be guilty (cf. N 70 / 14 SbNU 99); However, this does not apply without exception, since, for example, the condition of integrity under § 5 (1) (d) of Act No. 85 / 1996 Coll., on the Advocacy, is, according to the interpretation of the courts (see, for example, the judgment of the District Court for Prague 1 sp. zn. 11 C 25 / 2000 of 13.3.2001; but also commentary literature, see Svekovský et al. Law on advocacy. Commentary. C. H. Beck, 2012, p. 40) does not restrict to integrity criminal but also requires integrity in the sense of moral and professional). According to the second sentence of Section 12 (5) of the Law on Hunting, when assessing the integrity of a person, a judgment under a special law is not taken into account (that is Section 106 of the Criminal Code).
31. The first sentence of the same paragraph of § 12 of the Law on Hunting is closely related to the latter, according to which, in order to assess the integrity of the person, the State Administration of Hunting will apply for a copy of the Register of Penalties. In addition to the listing, the copy of the Register of Penalties contains data on the crimes committed (Section 10 (4) of Act No. 269 / 1994 Coll., on the Register of Penalties, as amended). This information serves primarily for the purposes of criminal proceedings, since it can be taken into account in the assessment of the overall personality of the perpetrator and is also relevant in terms of the fulfilment of the qualified facts of certain offences [see, for example, Section 305 (3) (b) of the Criminal Code], since the elimination of the conviction does not change the very fact that the person concerned has committed a crime in the past. However, while in criminal proceedings the judge may have the fact that several decades have passed since the commission of the previous offence, taking into account, for example, the size of the sentence, Act No. 449 / 2001 Coll., on hunting, as amended, does not allow any moderation.
32. The applicant considers the contested provisions to be inconsistent with Articles 26 (1) and 21 (4) of the Charter, in conjunction with Article 3 (1) of the Charter. The Constitutional Court therefore dealt with the compliance of the contested provisions with the cited articles of the Charter, or with the related articles of the international human rights treaties by which the Czech Republic is bound.
Compliance of the contested provisions with Article 26 (1) of the Charter
33. The Charter guarantees everyone the right to free choice of profession and to prepare for it, as well as the right to engage in other economic activities. Article 26 (3) The Charter has every right to obtain the funds for its life needs through work. A similar guarantee comes from Article 6 of the International Covenant on Economic, Social and Cultural Rights and Article 1 of the European Social Charter (published under No 14 / 2000 Coll.), which guarantee the right to work.
34. The Constitutional Court has previously acknowledged that the excessive requirement of integrity may, under certain circumstances, be contrary to Article 21 (1) and (2) of the Charter [cf. Findings sp. zn. However, contrary to the view of the Supreme Administrative Court, the contested provisions do not interfere at all with the above rights, since the function of hunting guard cannot be regarded as a profession, business, other economic activity or, in general, as a work within the meaning of the articles of the Charter and of international treaties.
35. On the right to freedom of choice of profession, the Constitutional Court stated, for example, in the decision on page 11 of the Pl. ÚS 11 / 08 of 23.9.2008 (N 155 / 50 of the SbNU 365), in which it stated:
"It is a public subjective right of an individual not to impose unjustified obstacles to the public nature of the choice and exercise of the lawful activities for which he has the necessary preconditions. It is a starting point in this direction for the follow-up of education, employment, anti-discrimination measures. They certainly cannot be interpreted as guaranteeing the individual's classification as he imagines within the framework of the labour law - and therefore in his substance of private law - relations. Right to free choice of profession as enshrined in Article 26 (1) The Charter is not a subjective right to a particular employment with a given employer or to a particular type or type of employment to which the competent authority would be obliged to provide such employment, possibly with the use of State authority. Such a subjective right would necessarily run against the freedom of employment and the subjective right of other people, including the right not to employ those who do not want to do business. It is about freedom to compete freely for the chosen profession, but it does not guarantee success. '
36. Similarly in Resolution sp. zn. III. ÚS 547 / 98 of 8.4.1999 (U 30 / 14 SbNU 295) The Constitutional Court noted that "the constitutional right to free choice of profession does not mean the inconsistency of the employment carried out and the prohibition of unilateral unbundling of employment. The Charter, in Article 26, grants everyone the right to freedom of choice of profession, but the content of that right is only the right of an individual to decide in what area of human activities he would like to exercise his or her professional capacity and to apply for such a profession (or to obtain preparation for the pursuit of such a profession). On the other hand, however, it should be noted that the fact that the chosen profession will actually be pursued is the result of an agreement with a future employer in the performance of dependent work, i.e. the result of the conclusion of a contract of employment and the creation of an employment relationship. Article 26 The right to freedom to choose a profession does not include a guarantee that an individual of a chosen profession must also obtain it. Such a guarantee would be a restriction on the right of the other party to a work relationship, i.e. an employer who has the right to engage freely, including the possibility of creating the necessary work collective for that activity."
37. Thus, the Constitutional Court understands the right to free choice of profession as an option for everyone to choose in what area of human activities they will attempt to implement, and the corresponding obligation of the State to respect that choice or not to interfere irrationally with it (see Articles 26 (2), 41 (1) and 4 (4) of the Charter). In this respect, it is also possible to see in that law the strengthening of human dignity [Article 1 (1) of the Charter; see also the preamble to the Charter of the United Nations (UN)], as it allows everyone to choose an area in which they will develop in a personality and otherwise, in which they will build up their position as a member of human society and establish social relations and in which one of the senses of their own existence can, to some extent, be seen.
38. Article 26 (3) of the Charter Together, the Charter guarantees what the International Covenant on Economic, Social and Cultural Rights collectively calls "the right to work," even though it deliberately avoided this union of the Constitution in the Charter), it underlines, on the one hand, the active duty of the State (to try to create conditions that will enable individuals to secure their own activities by means of means for their livelihood), on the other hand, by explicitly linking work with livelihood, it strengthens the perception of the right to work as a precondition for the use of further rights and freedoms guaranteed by constitutional order. If one is denied the possibility of getting the means to live, other human rights and freedoms can become an illusion.
39. Value protected in Article 26 (1) and (3) The Charter is therefore, on the one hand, the pursuit of a particular activity (profession, work), as it already develops a person's personality, as outlined above, and, on the other, the fact that, thanks to that activity, a person can take care of himself materially. Thus, the right to work cannot be limited to the material element alone. The granting of material aid while denying the possibility of working would in principle be contrary to Article 26 of the Charter, irrespective of the amount of "benefits' provided. On the other hand, the work or profession cannot be completely removed from the material component, as the activity of a person obtains the character of a job or profession within the meaning of Article 26 of the Charter, precisely because it is an activity of such value to society or individuals that it allows a person (at least potentially) to take care of himself (even if he does not need it). Protection of Article 26 The Charter is not the pursuit of any activity, but an activity that can be characterised as a profession or work and whose value lies not only in the activity itself, but also in the importance of that activity for the person who carries it out, namely that this activity is fundamentally capable of providing a living for him. The function of hunting guard, which one performs in his spare time and without a claim for remuneration, does not constitute such an activity. This does not, of course, diminish the importance of hunting as such from the point of view of the public interest, as described in the quoted finding in sp. zn.
40. The above results from the linguistic interpretation of Article 26 of the Charter but also from its systematic classification (among economic, social and cultural rights) and logical interpretation. This does not mean that the State could freely prohibit people from carrying out certain activities, since they may be protected by other provisions of the Charter or international treaties. Protection of Article 26 However, the Charter may only be given to those activities which, within the meaning of point 39 of this finding, can be characterised as a profession or work (possibly as preparation for the profession). In fact, if any human activity were to fall under the work or profession, there would be a total exclusion of the real possibility of guaranteeing the right to work-related rights, namely the rights of employees, who, inter alia, have the right to fair remuneration for work and to satisfactory working conditions (Article 28 of the Charter, Article 7 of the International Covenant on Economic, Social and Cultural Rights).
41. In addition, the Constitutional Court notes that the conclusions that have just been drawn cannot in any way be interpreted as meaning that perhaps the work for which remuneration is not due could not constitute forced labour or service within the meaning of Article 9 of the Charter. This is clear from the fact that, while Article 26 (3) of the Charter explicitly refers to the work of earnings, it does not do so in Article 9 (and, moreover, it does not only talk about work but also about services). It is not without meaning that, in the English version of Article 6 of the International Covenant on Economic, Social and Cultural Rights, the word "work" is used for work, whereas Article 8 (3) of the International Covenant on Civil and Political Rights (prohibiting forced labour) uses the word "labour." Moreover, it would not make any sense for Article 9 of the Charter to be exempted from the protection of a worker by degrading the conditions of forced labour (by denying remuneration or other material benefit). Finally, the International Labour Organisation Convention 29 on Forced or Compulsory Work (published under No. 506 / 1990 Coll.), through which the Czech Republic has undertaken to suppress forced or compulsory work (Article 1 (1)), which means "any work or service which is enforced under the threat of any penalty on any person and to which the said person has not volunteered '(Article 2 (1)).
Compliance of the contested provisions with Article 21 (4) of the Charter
42. The Charter guarantees citizens access to elected and other public functions on equal terms. Pursuant to Article 25 (c) of the International Covenant on Civil and Political Rights, every citizen has the right and the possibility to enter into public services of his country on equal terms, without any differences referred to in Article 2 and without unjustified restrictions.
43. As the conditions of access to the function of hunting guard, according to the appellant, infringe Article 21 (4) of the Charter, the Constitutional Court addressed the question of whether the hunting guard could be regarded as "another public office 'within the meaning of the provision cited in the Charter.
44. According to the case law of the General Court, the hunting guard is a public office within the meaning of Article 21 (4) of the Charter (see Supreme Administrative Court judgment No 226 / 2014-29 of 11.12.2014). On the contrary, it appeared in the literature that the hunting guard under the protection of Article 21 (4) of the Charter did not fall (see Šiměl, V. In: Wagner, E. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer, a. s., 2012, p. 510). The Constitutional Court, having considered all the context, tends rather to extend the interpretation of that Article of the Charter.
45. The Charter guarantees citizens' right to participate in governance. They can do so directly (through direct democracy institutes), by free choice of their representatives, or by applying for an elected or other public office. The fundamental principles of the Czech Republic as a democratic rule of law (Article 1 (1) of the Constitution) are reflected in the rights guaranteed by Article 21 of the Charter, in accordance with which the source of all state power is the people who exercise it through the authorities of the legislature, executive and judicial (Article 2 (1) of the Constitution) or, in specified cases, directly (Article 2 (2) of the Constitution). Respect and respect for the rights guaranteed by Article 21 The Charter is therefore a prerequisite for the characteristics of the Czech Republic as a rule of law based on the system of representative democracy. Through other political rights (Article 17 et seq. of the Charter), democracy and political pluralism (Article 5 of the Constitution) are then strengthened and confirmed. It is the environment of the rule of law and (representative) democracy that creates conditions in which other human rights and freedoms are respected, promoted and respected. Similarly to the right to work, the rights guaranteed in Article 21 of the Charter represent the value of themselves, but also a means of enforcing and using other rights. While the right to work seeks to strengthen the subjective perception and benefit of guaranteed rights and freedoms from an individual's perspective, the right to participate in governance is an assumption that other rights will be guaranteed by the State at all.
46. Management within the meaning of Article 21 The Charter is a public activity relating to cases of general interest carried out in the exercise of public authority. Public function within the meaning of Article 21 (4) The Charter is a function the citizens directly participate in. In other words, Article 21 (4) The Charter guarantees the right of access to functions through which citizens directly participate in the preparation or issue of normative or individual decisions, or the conduct of other acts of a different nature carried out in the exercise of public authority, by means of the powers available to them. Public office persons are defined in principle by choice or appointment (cf. Šiměl, V. In: Wagner, E. et al. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer, a. s., 2012, p. 510). In the case-law of the Constitutional Court, for example, a representative of the insurers in the Board of Directors of the Central Insurance Corporation of the Czech Republic [Found sp. zn. IV. ÚS 255 / 99 of 3.8.1999 (N 108 / 15 of the SbNU 71)], a member of the Board of the Institute for the Study of Totalitarian Procedures [Found sp. zn. Pl. ÚS 25 / 07 of 13.3.2008 (N 56 / 48 of the SbNU 791; 160 / 2008 Coll.)], a position of a judge [found sp. zn. I. ÚS 2420 / 11 of 16.11.2011 (N 197 / 63 of the SbNU 291)], or a general representative [find sp.
47. The Minority Guard is a state-appointed natural person who is endowed by the law with relatively extensive powers and whose mission is to protect hunting in the intentions of the above mentioned Constitutional Court's finding. Through the function of hunting guard as a specific public administration [cf. the Constitutional Court's finding sp. zn. Pl. ÚS 50 / 2000 of 9.5.2001 (N 72 / 22 SbNU 125; 242 / 2001 Coll.)] and official persons within the meaning of § 127 of the Criminal Code, the State shall carry out its constitutionally anchored task (Article 7 of the Constitution) to ensure the gentle use of natural resources and the protection of natural wealth. The Muse Guard is therefore directly involved in governance and is a public office within the meaning of Article 21 (4) of the Charter.
48. Although national law may provide a higher standard of protection than international human rights treaties, the Constitutional Court nevertheless adds briefly that the hunting guard is undoubtedly the performance of public service (English "public services'; Spanish" funciones públicas', French "fonctions publics') within the meaning of Article 25 (c) of the International Covenant on Civil and Political Rights. To the parties already mentioned, the term" public function 'of the Constitutional Court notes that even if, in its General Commentary No 25, the term "public service' was not concerned by his practice within the meaning of the First Optional Protocol to the International Covenant on Civil and Political Rights, there would be a very broad interpretation of that concept, under which, for example, even (Minister of Education appointed) teachers of secondary schools (William Eduardo Delgado Páez v Colombia, No 195 / 1985 of 12.7.1990), teachers of higher education (Adimayo M. Aduayom, Sofianay T. Diasso and Yawa S. Doba v Tog, No 422 / 1990, 424 / 1990 and 424 / 1990 of 12.8.1996) or judges (Soratha Bandanayake v Sri i Lance, No 1376 / 2005, No 1376 / 2005).
49. The Muse Guard is therefore a public office within the meaning of Article 21 (4) of the Charter.
50. As has already been said, Article 21 (4) On equal terms, each citizen has access to elected and other public functions. Whereas, for the other political rights referred to in Section 2 of Title II of the Charter expressly permits their limitation by law (under the conditions set out above), the exercise of those rights itself is linked to the fulfilment of certain conditions (Article 18 (2) and (3), Article 23 of the Charter), the law guaranteed by Article 21 (4) of the Charter is not so limited. However, it is clear from its wording that it does not guarantee the right of the applicant to perform a particular function but only the possibility of applying for it (in other words, it is not the duty of the State to provide each citizen with any public office), and that it assumes that there are certain conditions that the public office must fulfil. Thus, the determination of (equal and proportionate) conditions for the performance of a function does not constitute an intervention in Article 21 (4) of the Charter but essentially its implementation.
51. Where the Charter expressly provides for these conditions and, at the same time, places a single requirement on them, namely the requirement for equality, it must be concluded that it is primarily up to the legislator (where appropriate, the legislator) to choose the appropriate and proportionate criteria to be met by candidates for different public functions, depending on their own consideration (but with respect to the requirement for equality). In this respect, the Constitutional Court has previously held that the solution to the question of the suitability of the criteria set for the performance of a particular function is, in principle, subject to the legislator's discretion (finding sp. zn. Pl. ÚS 25 / 07 of 13.3.2008).
52. Each condition distinguishes from the nature of the matter - between those who fulfil it and who can apply for a post and those who do not, and who are denied access to the post for that reason. Unequal conditions within the meaning of Article 21 (4) On the other hand, the Charter must be understood, first and foremost, as would not have been the same for all comparable operators, without this distinction being proportionate to the legitimate objective pursued. This would be an uneven condition, for example, if women seeking a certain function had to be impeccable, while men did not.
53. It should be noted here that, from the right to equal conditions of access to public office, it is not possible to import a constitutional requirement to identify the conditions for the exercise of different public functions. Certain coherence in the determination of conditions is undoubtedly desirable and may be indicative of the existence or absence of a legitimate objective, or the proportionality of its fulfilment (see below), but the fact that a function is subject to higher requirements than another (even if very similar) cannot in itself be contrary to Article 21 (4) of the Charter. As the Constitutional Court summed up in the above mentioned finding, sp. zn. Pl. ÚS 25 / 07, "It is not for the Constitutional Court to lead the legislature to unify the assumptions for the exercise of various close functions, for example, by uniting the age limit for judges and lawyers - a member of the disciplinary senate or the requirement of education for judges and representatives of the Ombudsman '.
54. This is because, among other things, the establishment of conditions for the exercise of public functions is largely a political issue, with various public functions not only placing different claims on their executors (due to different activities, meaning, etc.), but may also differ in the extent to which political agreement exists in the current composition of the legislature as regards the conditions for their exercise. It is not up to the Constitutional Court, for example, to replace the legislator with one of the legal adjustments by referring to the requirement of equality, in a situation where the government is able to enforce a reduction in the requirements for the performance of a particular public function in Parliament, but no longer, for whatever reason, to do so. Indeed, the Constitutional Court could only abolish a stricter regulation, even if it seemed more appropriate in the present case. For these reasons, candidates for different public functions are not in a comparable position (in the sense of the requirement of equality under Articles 1 and 3 (1) of the Charter).
55. In addition to point 54 of this finding, they will be contrary to Article 21 (4) The Charter and those conditions that apply equally to all (must be fulfilled by anyone applying for a post), but which do not pursue a legitimate objective, or those that would result in a manifestly disproportionate restriction on access to public functions.
56. This procedure also corresponds to the interpretation of Article 25 of the International Covenant on Civil and Political Rights. The provision in point (c) requires a "level playing field 'for entering public services and further provides that the rights and possibilities provided for in the article in question are" without any distinction referred to in Article 2 and without unjustified restrictions'. Accordingly, General comment No 25 of the United Nations Committee on Human Rights states that the requirements for appointment, promotion or appeal must be objective and reasonable.
57. Although Article 21 (4) According to the Constitutional Court, the Charter refers to elected and unelected public functions, without making any distinction between them, it is clear (even in the light of the other paragraphs of Article 21) that, in the case of elected functions, a more stringent assessment of the legitimate objective than the non-elected one is appropriate. This is already the case because the restriction of access to elected functions indirectly limits the democratic process (voters cannot vote for the person they want). This is also related to the fact that, while, in the case of unelected functions, certain facts can be taken into account only by establishing the legal criteria for access to them, for those elected, the electorate itself can assess the importance of the facts attached to them. Thus, in some cases, the prior exclusion of a group of candidates may lose cause.
58. As regards the condition of integrity within the meaning of Article 12 of the Hunting Act, there is no doubt that it applies directly to all potential applicants. According to the Constitutional Court, it follows a legitimate objective against which it is clearly not disproportionate.
59. The condition of integrity for the performance of a particular function or public service is a standard instrument appearing not only in the law [e.g. § 13 (1) (c) of Act No. 361 / 2003 Coll., on the service ratio of members of the Security Corps] but also in the Constitution (Art. 84 (3), Article 93 (2) of the Constitution). Its objective is generally twofold.
60. First of all, it is possible to see the attempt of the legislator (or the legislator) to ensure the best possible performance of public functions, which are significantly influenced - whether directly or indirectly - by the lives of each individual, since they manage matters of general interest and exercise public authority. This may include, for example, the administration of the state budget (the Minister of Finance), influencing political issues (members of Parliament or the council of the municipality) or deciding on specific rights and obligations of individuals (imposing a fine on public guards, deciding on guilt and punishment by courts, etc.). Although compliance with the laws is necessary in any activity, in the exercise of public authority, binding is one of the key manifestations of the rule of law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter).
61. The condition of integrity in this respect is based precisely on the consideration that a righteous person is more likely to perform his function not only well (he will achieve adequate results) but also in accordance with the law. The Constitutional Court considers that this consideration is logical, and the appellant also admits that "a person who has never been convicted of an intentional offence or an offence in the hunting sector, or has never been fined under the hunting law, is in a position to comply with a certain moral safety requirement with a higher degree of probability than he who has been so sentenced or affected '.
62. This does not mean, of course, that whoever committed the crime will in the future commit another, or perhaps every righteous person is less "morally defective" in the words of the plaintiff than he who does not meet the condition of integrity. The integrity to date is certainly not a 100% test, but such a test does not require our constitutional order and it can be said that it does not even exist. After all, it is similar to the age limit. Its function is to ensure "life experience" necessary for the performance of a particular function, yet it is far from impossible that some younger people will be able to gain more experience in their current life than others in older age. If the legislator can require a certain degree of certainty that the public office holder will act in accordance with the law, it is primarily up to him to establish the criteria to be used to achieve that degree of certainty. These criteria cannot be entirely arbitrary, however, if they have a direct link and a certain logical link with the objective to be achieved by them, as is the case with the condition currently under assessment, it is not possible to say that they do not pursue a legitimate objective.
63. The second function of the conditions of integrity is linked to the requirement of citizens' confidence in public power. The integrity of the person involved in governance can, to some extent, increase its moral credit in the public eye. Thus, the added value is not in this sense in a better-performing activity, but in a potentially better image, which the exercise of public authority by a person who has never committed any crime can create.
64. It can be added that the condition of integrity cannot be regarded as an additional punishment for committing a crime (or for committing other offences for which a person is not considered to be righteous). Its nature and purpose is not to penalise or restrict individuals, but only to establish a certain standard for the pursuit of socially important activities. The conviction for a crime is only (albeit not perfect) proof that the person does not meet this standard.
65. In general, therefore, the condition of integrity for the exercise of public functions follows a legitimate objective. This is the case in particular with the hunting guard. It has already been described above that the hunting guard has wide powers, through which he can interfere with the personal sphere of individuals (he can detain a person, search his vehicle, shoot his cat, etc.). The exercise of these powers can be easily misused, which makes it understandable for the legislator to have the least likely persons to abuse them. It must also be recalled that the mission of the hunting guard is to protect hunting and thus the natural wealth of the Czech Republic within the meaning of Article 7 of the Constitution. In this context, the Constitutional Court also points to the already cited finding of sp. zn.
"The Constitutional Court is aware, however, that, in particular because of the negative phenomena in the exercise of hunting that are linked to the communist regime, it has occurred in society in the previous period and so far there have been shifts in the perception of hunting. In order to achieve the socially desirable purpose pursued by the law, systematic educational activities and consistent fulfilment of the principles of hunting in practical life are needed. In individual cases, the exercise of hunting rights can and can still only slide to the level of entertainment, which gives the impression of activity for the chosen, or the exercise of hunting activity, which affects the status of owners of hunting grounds illegally. However, this fact - abuse of law or the existence of illegal activities - cannot become a justification for understanding the current legal regulation of hunting as unconstitutional; individual offences against hunting and abuse of rights arising from its regulation must be rigorously punished individually, thereby contributing to changing negative views of hunting as an abstract category. '
66. In the view of the Constitutional Court, given the undeniable importance of hunting, and the public view referred to above, the objectives pursued by the condition of integrity for hunting guards are all the more relevant. The condition of integrity for the performance of hunting guards pursuant to § 12 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., thus the legislator pursued a legitimate objective. The other question, however, is whether the means chosen to achieve this objective are manifestly disproportionate and, therefore, whether their determination has led to a manifestly disproportionate restriction on access to public functions. The Constitutional Court is of the opinion that, despite its rigour, the condition of integrity, which is not taken into account for the destruction of convictions, is obviously not disproportionate to the exercise of hunting guards.
67. At this point, the Constitutional Court recalls that the law prohibits the exercise of hunting guards only by persons who intentionally infringed serious rules of conduct (see the subsidiarity of criminal repression currently enshrined in Section 12 (2) of the Criminal Code), or who have infringed rules of thought directly linked. The denial of access to the function of hunting guard (for the condition of integrity) therefore results solely from a specific, intentional (in the case of crimes), individual behaviour of the individual, even if it could have occurred at any time in the past.
68. The contested provisions of the law do not restrict the perpetrators of intentional crimes (or those who were found guilty of committing an infringement on the section of hunting or who were fined in accordance with Act No. 449 / 2001 Coll., on hunting, as amended) in access to all public functions (not a general condition for the performance of public functions), but only as a hunting guard. In this context, the appellant compares the conditions for the exercise of hunting guards with those for the exercise of other guards. The Constitutional Court has already stated above that the conditions for the exercise of individual public functions need not necessarily be systematic and graduated from the importance of the functions for which they are provided. However, it is clear that the scope of the hunting guard authorisation is different from that of the other guards, and in particular the hunting guard can actively use the weapon in the performance of his activity. The Supreme Administrative Court argues that this fact is irrelevant since the hunting guard does not have the right to use it as a means of coercive action against another person and, moreover, the right to use the weapon is already being assessed when examining the assumptions for issuing the gun licence. This argument is not relevant in the view of the Constitutional Court, since the gun licence authorises, in particular, the acquisition, possession and carrying of weapons [Article 28 of Act No. 119 / 2002 Coll., on firearms and ammunition (the Law on Weapons), as amended], their use being limited to the shooting range (possibly other places, but also under additional conditions), and to the protection of life, health or property [§ 28 (5) of Act No. 119 / 2002 Coll., on firearms and ammunition (the Law on Weapons), but in certain cases (e.g. necessary defence), it is not necessarily necessary to rely on the possession of the firearms licence. On the contrary, the hunting guard uses a weapon in the exercise of public authority, which is very important and in the wrong hands a potentially dangerous authorisation, regardless of the fact that the weapon is not used as a coercive device against people. The more strict conditions for a person to be a hunting guard are therefore appropriate compared to other guards.
69. The appellant also submits that, in the case from which the application for annulment of the law came, the complainant does not fulfil the condition of integrity for the performance of hunting guards, but fulfils the condition of integrity for the function of a member of the Security Corps, such as, for example, a police officer whose moral profile is also subject to high claims, while the police may even use the weapon as a means of enforcement (§ 51 of Act No. 273 / 2008 Coll., on the Police of the Czech Republic). This argument is considered somewhat misleading by the Constitutional Court. Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended, lays down several conditions for the performance of the service, which are further tightened according to the post for which the individual is applying, in a sense similar to that of Act No. 449 / 2001 Coll., on hunting, as amended, which systematically distinguishes and gradually tightens the requirements for the holder of the hunting ticket, hunting operator and finally the hunting guard. The argument that the complainant would comply with one condition of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended, does not, therefore, say much about the difficulty or proportionality now under consideration. The ability to perform the service properly and by law is verified, for example, by a minimum degree of education [Paragraph 13 (1) (d) of the Law on the service relationship of members of the Security Corps] or by psychological examination, which must identify for the applicant the personality characteristics which are a prerequisite for the performance of the service in the Security Corps (Section 15 (3) of the Act on the service relationship of members of the Security Corps), regardless of the fact that the applicants are undergoing a selection procedure (Section 16 of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended by Act 204 / 2015 Coll.). Moreover, the performance of the service is subject to constant strict control by the superiors (see for example Section 49 et seq. of Act No. 361 / 2003 Coll., on the service relationship of members of the Security Corps, as amended), which is not entirely absent in the case of hunting guards. The rigidity of the conditions of integrity under consideration for the performance of hunting guards thus compensates, in essence, for the absence of other control mechanisms which would be desirable in the light of the significant rights of hunting guards, but the introduction of which, in view of the nature of the hunting guard function, would be difficult (at least to the extent that, for example, members of the security corps).
70. It can be added that, for a similar reason, there is no need for comparison with other public functions (e.g. judge, public prosecutor, member of the Banking Board of the Czech National Bank), for which the condition of integrity is more moderate, since for these functions the law also requires compliance with many other strict conditions and their proper performance is ensured by a number of control mechanisms. In the case of hunting guards, as has already been said, these mechanisms are largely absent, while other conditions (apart from the condition of integrity) for the provision for the function of hunting guards are relatively mild (see Section 12 (3) of the Hunting Act), despite the broad authority of the hunting guards, including the right to use the gun in the performance of the function [cf. 68 / 1999 Coll.], according to which the finding of the Constitutional Court sp. zn.
71. The Supreme Administrative Court also points out that for a person seeking the function of hunting guard, integrity is assessed three times, as further conditions are the possession of a valid hunting ticket and a valid gun licence, while for both the hunting ticket and the gun licence, integrity is also required (albeit not to that extent). This is completely irrelevant. The possession of a hunting ticket and a weapons licence is a logical precondition, given the tasks of the hunting guard, but both the hunting ticket and the gun license make sense for those who are not hunting guards. It is understandable, then, that even for their possession, regardless of any interest in performing the function of hunting guard, the law lays down certain conditions, and there is no reason for this to affect in any way the scope of the conditions for those holders of hunting tickets and weapons licences who, moreover, wish to hold public office.
72. Strictly speaking, while the appellant is right that the condition of integrity is "assessed on three occasions," this does not mean that one has to carry out the same thing three times actively (such a request could indeed be a senseless and unpursuing legitimate objective in certain cases). After all, the argument of the Supreme Administrative Court cannot lead to the fact that whoever receives a hunting ticket and an armour licence may not fulfil the condition of integrity for being a hunting guard, so that this condition is not re-assessed. If the Supreme Administrative Court points out in this context that, contrary to the conditions for possession of a hunting ticket and for possession of a hunting licence, the condition of integrity in hunting guards is the most stringent, the Constitutional Court considers this to be entirely logical, since the hunting guard is associated with significant authorisations going far beyond those of the subjective rights enjoyed by hunting tickets holders and firearms. In Article 12 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., the State determines who it will entrust public office to and who will be appointed by an official with all the consequences associated with it (in addition to the authorisation of the hunting guards mentioned above, for example, increased criminal protection and increased criminal liability). From the logic of the matter, it will not automatically be anyone who can hold a hunting ticket and a gun licence, but only one who meets the additional conditions. A group of people who, according to the legislature, will be able to carry a weapon and hunt for game (§ 46 of the Hunting Act) may inevitably arise, but will no longer be eligible to be appointed by the State as official persons and entrusted with the exercise of public authority.
73. In view of the above, the Constitutional Court cannot conclude, despite the apparent rigour of the conditions of integrity laid down in Article 12 (5) of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll., that it would be manifestly disproportionate to the objectives it pursues and thus that it would infringe Article 21 (4) of the Charter.
74. The Constitutional Court does not claim by all that is being said that very strict conditions of integrity for the performance of hunting guards are appropriate or desirable. This assessment is up to the legislator and does not belong to the Constitutional Court. The Constitutional Court is only entitled to examine whether these conditions are unconstitutional or not. The arguments put forward show that this is not the case. It will be up to the legislature to assess and, for example, change the suitability of the individual conditions for the exercise of hunting guards, taking into account the actual effectiveness and results of the contested legislation.
Conclusion
75. For all the above reasons, the Constitutional Court rejected the application under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
Prof. JUDr. Fenyk, Ph.D., DSc., v. r.
Vice-President
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Louis David, Jan Filip and Jiří Zemánek to the decision.
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Regulation Information
| Citation | The Constitutional Court found no 26 / 2018 Coll., on the application for annulment of § 12 paragraphs 4 and 5 of Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 124 / 2008 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.02.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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