The Constitutional Court found no 261 / 2018 Coll.
The Constitutional Court found of 25 September 2018 sp. zn.
Valid
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261
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 18 / 17 on 25 September 2018 in plenary composed of the President of the Court of Paul Rychetský and Judges Louis David, Jaroslav Fenyk, Josef Fialy, Jan Filip, Jaromír Jirsy (Judge of the Rapporteur), Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Suchánek, Milady Tomková, David Hýř and Jiří Zemánek, on the proposal of a group of Senators of Parliament of the Czech Republic, represented by Mgr. Michal. Sella, a lawyer, based in Prague 1, 15b, 15c, 16a, 16b, 16c, 18a, 18a, 23 and 61 of the Act on the protection of the Slovak Republic, in the text of the Czech Republic, and the Czech Republic.
as follows:
Motion denied.
Reasons
Subject matter
1. A group of 25 Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "draftsman") proposed to the Constitutional Court the repeal of Act No. 123 / 2017 Coll., amending Act No. 114 / 1992 Coll., on Nature Protection and Landscape Protection, as amended, (hereinafter referred to as "Amendment to the Act"), in order to repeal the provisions of § 15, 15a, 15b, 15c, 15d, 16, 16a, 16b, 16c, 16d, 17, 18, 18a, 19, 20, 22, 22a, 23 and 61 of Act No. 114 / 1992 Coll., on Nature Protection and Landscape Protection, as amended acts including Act No. 123 / 2017 Coll., (hereinafter referred to as "Act" on Nature Protection and Landscape Protection "). At the same time, the appellant requested priority consideration of the proposal.
2. In particular, the appellant contests the shortcomings of the legislative process prior to the adoption of the amendment to the law, the uncertainty or internal contradiction of the amended legislation and its inadequacy to the right of municipalities and regions to self-government, the right to own property and freedom of movement.
Active procedural legitimacy and management conditions
3. Under Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, a group of at least 17 senators has the right to file a motion for annulment of the law or its individual provisions. The application was lodged by a group of 25 senators; In accordance with Article 64 (5) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each of them individually confirmed that it was attached to the proposal. Therefore, the applicant fulfils the condition of active legitimacy.
4. The proposal contains all the legal requirements required, is admissible within the meaning of the provisions of Section 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., and at the same time there are no grounds for terminating the procedure under the provisions of Section 67 of the same Act. The Constitutional Court has therefore dealt with the proposal meritorically; Decided on it without the regulation of oral proceedings because it did not carry out the taking of evidence within the meaning of the first sentence of § 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and further clarification of the case could not be expected from the hearing.
5. The appellant asked for a preliminary consideration of the proposal, which justified the fact that the Nature and Landscape Conservation Act, as amended, concerns all national parks and the rights and obligations of persons present in them - a large number of natural persons, municipalities, regions and national parks are at the same time the most valuable natural values of the Czech Republic. In the course of the proceedings before the Constitutional Court, the appellant requested twice to extend the deadline for submitting a reply to the observations of other parties and other persons. In view of the general justification of the request and the procedural activity (more precisely, passivity) of the applicant, the request was not granted. Nevertheless, the Constitutional Court discussed the proposal at the earliest possible date, which was appropriate to the complexity of the case under assessment.
Legislative process
Arguments of the appellant
6. The appellant contested the amendment of the Act as a whole because of a breach of the legislative process with the constitutional order - with reference to the finding of the Constitutional Court of 23 April 2008 sp. zn. Pl. ÚS 2 / 08 (N 73 / 49 SbNU 85; 166 / 2008 Coll.), according to which the constitutionality of the amendment itself can be assessed if the constitutionally prescribed method of its adoption has been infringed. The amendments to the Act (see sections 15a to 15d of the Act on Nature Conservation and Landscape Protection) indicate national parks without the legislature acting in accordance with § 40 (3) and (4) of the Act on Nature Conservation and Landscape Protection, i.e. without the Ministry of Environment ("the Ministry ') making a proposal to declare a national park, a protected landscape area, its protection zone, or a protected landscape area which would subsequently submit to municipalities, regions and the owners concerned to claim objections. Pursuant to Article 40 (3) of the Nature and Landscape Conservation Act, the content of the nature and protection zones is also to be defined, not only when the territorial demarcation is changed, thereby limiting the autonomous activity of municipalities and regions contrary to Articles 8, 100 (1) and 101 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
Observations of the parties and interveners
7. The Constitutional Court, pursuant to § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, called on the Chamber of Deputies and the Senate of the Parliament of the Czech Republic (as parties to the proceedings) and the Government and the Public Protection Officer to comment on the proposal; Article 48 (2) of the Law on the Constitutional Court also requested the President of the Republic and the Minister for the Environment. All observations received are summarised below, the Ombudsman did not intervene and the Minister for the Environment did not comment on the proposal. Other bodies, namely ASOCIACE MURIEL VICTORIA GOTU, p., and Ing. Jan Bechýně, who are not parties to the proceedings. The Constitutional Court did not ask them to comment and therefore did not see them.
8. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as the Chamber of Deputies) merely described in its observations the course of the legislative process of adopting the contested regulation. The government bill amending Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended, was circulated to Members as Press No. 501 on 2 June 2015. The first reading of the draft law started and was interrupted on 7 October 2015, then on 20 January 2016 the first reading continued and the draft law was ordered to discuss the Committee on the Environment as a guarantee committee and the Committee on Public Administration and Regional Development. The second reading of the draft law started on 4 May 2016, when it was interrupted and continued on 25 May 2016, the amendments were processed as print No 501 / 4. The third reading of the draft law was launched on 1 July 2016, then interrupted and continued on 2 December 2016 - the draft law as amended was approved by Resolution 1439. The bill was then passed to the Senate of the Parliament of the Czech Republic ("the Senate '), which returned it to the Chamber of Deputies on 18 January 2017 with amendments. The Chamber of Deputies discussed the proposal on 21 February 2017 and 1 March 2017, and by resolution 1577 it maintained the original draft law. The President of the Republic did not sign the law and returned it to the Chamber of Deputies on 10 March 2017 for further consideration. The Chamber of Deputies, which returned the bill, negotiated on 4 April 2017 and maintained the law in the contested text by resolution 1606. The draft law was approved in a constitutional manner, the law was signed by the relevant constitutional authorities and duly declared.
9. In his observations, the Senate stated that the bill was passed on 20 December 2016 and was discussed by the Committee on Territorial Development, Public Administration and the Environment, the Committee on Economy, Agriculture and Transport and the Constitutional Committee under Senate Press No. 25. The Guarantee Committee and the Committee on the Economy, Agriculture and Transport recommended rejecting the bill, the Constitutional Committee recommended adopting a bill with 34 amendments. The Senate discussed the proposal on 18 January 2017 and returned it to the Chamber of Deputies by resolution No 75. The discussion of the bill in the Senate and the Chamber of Deputies was accompanied by a longer live debate which resulted in 54 amendments being tabled. Although the Senate did not explicitly see a conflict with constitutional order in the draft law, it presented its own idea of the legal regulation in question, particularly with the emphasis on strengthening the positions of municipalities and mitigating certain conditions of protection.
10. In particular, the Government stated in extensive terms that the contested legislation had been adopted and issued within the limits of the Constitution and in the prescribed manner. The Government and the Ministry were aware of the impact of the national park legal regime on the interests of municipalities and regions; Therefore, the above-standard attention was paid to proper and thorough discussion of the draft amendment with all stakeholders. The government believes that the amendment to the law did not interfere in the constitutionally guaranteed rights and freedoms of individuals or in the right of municipalities and regions to self-government by the legislative process or the contested legislation. In this context, the Government pointed to the finding of the Constitutional Court, sp. zn. Approval of the amendment to the Act was not preceded by a proposal under Section 40 of the Act on Nature and Landscape Protection, as there was no reason for that - the announcement of national parks did not change their territorial definition or the closer protection conditions. The purpose of the amendment to the Act was to ensure the legal continuity of the national parks declared so far at the level of the law, without changing the requirements which must be discussed under Paragraph 40 of the Nature and Landscape Conservation Act. The amendment to the law does not use the dictate usual in the establishment regulations ("being declared"), but only notes the existence of the national parks still declared. The subject matter of protection, verbal delimitation and indicative graphic representation of borders are identical to the existing legislation. The definition of the zones of the national park will be carried out by the Ministerial Decree, as was the case under the current legislation - after discussion with municipalities (Section 71 of the Nature and Landscape Conservation Act) and the National Park Council (Section 20 (3) of the Nature and Landscape Conservation Act). The Government considers the claim to adopt an amendment to the Act without any closer involvement and taking into account the interests of the municipalities and regions concerned to be false, as the legislative process was preceded by detailed discussions of many months in all national parks councils, with the citizens of Šumava National Park, with representatives of municipalities and regions, at the Ministry and in the regions concerned. In the Chamber of Deputies, two round tables organised by the Guarantee Committee, a seminar and repeated discussions in committees and plenary were dedicated to the bill; no other law has been discussed to such an extent with representatives of the local authorities.
11. In his observations, the President of the Republic stated that he supported the Senate version of the proposal in the legislative process, giving a negative opinion on the parliamentary version, in particular because the draft amendment does not prevent damage to forests and, on the contrary, has a negative impact on the local population. He also expressed his opposition to the proposal in a letter returning the bill to the Chamber of Deputies. According to the President of the Republic, the procedure laid down in § 40 of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as previously amended, since the new legislation is substantially different, has an impact on the local authorities and other property owners; the submission of a draft amendment to the law on the comments only to the Union of Cities and Municipality was not sufficient.
12. The Constitutional Court sent all the observations to the representatives of the appellant for a reply in which the appellant responded in particular to the observations of the Government. The draft law has not been practically discussed with the representatives of the municipalities, the Government's observations do not contain specific information on the alleged meetings and the caselaw cited above is not appropriate to the case under consideration. The amendment to the Act extended the protection conditions, i.e. the scope of orders and prohibitions, and therefore Article 40 of the Nature and Landscape Conservation Act should have been taken into account in the legislative process. The indicative graphical representation of national parks' borders is different from the original rules and the territory of national parks has been changed. The subject matter of the protection of national parks has also changed both formally and materially by amending the law. The amendment to the law led to the disappearance of previously declared national parks and the announcement of new national parks - with a different legal regime.
Self-assessment of the Constitutional Court
13. According to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with a constitutional order consists of answering three questions: whether it was adopted and issued within the limits of the Constitution, whether it was adopted in a constitutional manner and whether its content is in accordance with constitutional laws.
14. The appellant challenges Amendment Act No. 123 / 2017 Coll. also the individual provisions of the Act on Nature Conservation and Landscape Protection, which was amended by that Act. Thus, the Constitutional Court first addressed whether it is possible to challenge the amendment of the law as a whole separately or to fight directly against the amended provisions in the law.
15. The Constitutional Court has repeatedly concluded in its established case-law that the amendment of the law does not have a separate legislative existence, but it becomes part of an amended standard [e.g. the finding of sp. zn. Pl. Pl. ÚS 5 / 96 of 8.10.1996 (N 98 / 6 SbNU 203; 286 / 1996 Coll.), the resolution of sp. zn. Pl. Pl. ÚS 25 / 2000 of 15.8.2000 (U 27 / 19 SbNU 271), the findings of sp. zn. Pl. If the procedure for checking the standards is a derogatory reason for the absence of standard competence or a breach of the constitutionally prescribed procedure for the adoption of the law, the constitutionality of the amendment itself is also assessed [see the finds sp. zn.
16. The appellant explicitly challenges the amendment of the law as a whole - with arguments against the unconstitutional nature of the legislative process of its adoption, which is admissible in the light of the above. As part of the review of the amendment of the law, the Constitutional Court only assesses whether the constitutional framework of the legislative process (in the Constitution, established competence and acceptance in a constitutionally prescribed manner) has been respected, resulting in the adoption of the amendment.
17. The appellant does not argue that the Parliament of the Czech Republic does not have the competence to adopt an amendment to the law, which could not be justified even in prima facie terms, since it has legislative powers under Article 15 (1) of the Constitution. The appellant's argument is directed against a defect in the legislative process consisting of non-compliance with the requirements of § 40 (3) and (4) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended before the contested amendment, namely that the draft law by which national parks were declared was not submitted to the municipalities, the counties and the owners concerned who were thus unable to exercise their right to object.
18. The Constitutional Court, for example, dealt with the constitutional conformity of the legislature and, inter alia, stated that "if the regulation of the legislative process, which is part of a simple law, by expressing a constitutional principle, as well as its possible infringement, does not constitute a derogatory ground within the meaning of Article 68 (2) of Act No 182 / 1993 Coll., as amended, for non-compliance with the constitutional procedure for adopting a law or other legislation." In the decision of 15.2.2007 sp. zn. The Constitutional Court pointed out that formal defects in the legislative process cannot without further delay lead to the deregulation of the legislation under consideration, since such possible interference by the Constitutional Court must always be measured in relation to the principle of legitimate trust of citizens in law, the principle of legal certainty and the protection of acquired rights. In the decision of 1.3.2011 sp. zn.
19. In other words, the Constitutional Court adheres to the principle of restraint and abolishes legislation exceptionally, unless its essential rules have been observed in the legislative process and the errors reach constitutional legal dimensions. This conclusion was not reached by the Constitutional Court in the present case. As part of the legislative process, the standardised procedure for discussing the draft law was followed by both chambers of Parliament of the Czech Republic, the Chamber of Deputies adopted the law by the necessary majority (see Resolution No. 1606) and the law was declared in the Collection of Laws under No. 123 / 2017 Coll.
20. It is a well-known fact, and it also follows from the observations made by the parties that the adopted amendment to the law was publicly and extensively discussed across stakeholders and was given sufficient public space. Without assessing at this point whether the amendment to the Act has been declared a national park, (not) compliance with the requirements laid down in § 40 of Act 114 / 1992 Coll., on the conservation of nature and landscape, as amended before the contested amendment, is not, in view of the above, eligible for a derogatory statement in this case. The interests of the municipalities, regions and owners of real estate in the territory of the national parks were defended by elected representatives in both the chambers of the Parliament of the Czech Republic and the President of the Republic, which was reflected in a number of amendments tabled, returning the bill to the Chamber of Deputies by the Senate and veto of the President of the Republic. The proposal was also discussed with the Union of Cities and Municipality and at the meeting with representatives of the local authorities at the round table. It cannot therefore be concluded that the parties concerned would be denied the possibility of expressing their opposition to the draft law. the question of whether the representatives of the municipalities and regions concerned have been held one or more meetings does not satisfy the requirement of the constitutional dimension of the case. In view of this, the Constitutional Court therefore concludes that the constitutional framework has been respected in the adoption of the amendment to the Act.
21. In order to assess the constitutional conformity of the legislative process in the case under examination, it is irrelevant whether or not national parks have been newly declared as amending the law. However, the Constitutional Court considers it appropriate to address this issue as an obiter dictum. Before the amendment to the Act, the National Parks were declared by the Government Regulations for the National Parks of Sumava, Podyjí and Krkonošský National Park (Decree of the Government No 165 / 1991 Coll., establishing the Krkonošský National Park and laying down the conditions for its protection, Decree of the Government No 164 / 1991 Coll., establishing the National Park of Podyjí and laying down the conditions for its protection), following the provisions of § 8 of Act No 40 / 1956 Coll., on the State Protection of Nature, as amended by Act No 146 / 1971 Coll. The youngest of the national parks - Czech Switzerland National Park - was declared the only separate Act No. 161 / 1999 Coll., which is the National Park of Czech Switzerland, and the Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended, (the legislation effective since 1 June 1992 provided that national parks and closer protection conditions are declared by separate law). The legal requirement was fulfilled only at the Czech Switzerland National Park, the remaining national parks did not comply with the prescribed form of their law, which was due to the fact that they were declared before the date of entry into force of stricter legislation. The subject of the current constitutional check is the contested amendment to the law, as are the individual amended provisions. The appellant is based on the assumption that the national parks, on 31 December 1992, ceased to exist legally for the purpose of contradicting their constitutional legislation with Article 6 (1) of the Constitutional Act to the Charter (Constitutional Act No. 23 / 1991 Coll., which introduced the Charter of Fundamental Rights and Freedoms as the Constitutional Law of the Federal Assembly of the Czech and Slovak Federal Republic) and that, consequently, the contested amendment to the Act was newly declared - but the Constitutional Court does not agree with that. In order to conclude on the absence of national parks, a legislative change would first be necessary to abolish the existing national parks' legal provisions, or a derogatory statement would be necessary in relation to those legislation - but none of these options has been fulfilled.
22. The Act on Nature and Landscape Protection eliminates the abovementioned deficiency by unifying the legal form of the national parks' legal provisions while centralising it into a single law. The change must be acknowledged in this respect as it fulfils the long-term regulatory requirement for the legal form of national park law. It is clear from the content of Section 15, in conjunction with Section 90 (10) of the Nature and Landscape Conservation Act, that the legislator maintained existing national parks and only continuously consolidated the legal form of their legislation into one law.
23. Since the legislator did not define new national parks, it was not necessary to follow § 40 (3) and (4) of Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended by the Act, nor to take further legal steps in relation to the adoption of a new design or concept (e.g. to carry out an assessment of the consequences on European sites or bird areas under § 45h of the Nature and Landscape Conservation Act).
Constitutional conformity of individual provisions of the law
24. The author in eventum and, with reference to the finding of sp. zn. Pl. ÚS 2 / 08 attacks the individual amended provisions of the Nature and Landscape Conservation Act in case the legislative process is not found to be contradictory with constitutional order. The objections are structured according to the thematic headings relating to the definition of national parks and their establishment (a), the protection conditions and rest areas (b), the zoning of national parks (c), the National Park Council (d), the forests of national parks (e), the limitation of State ownership of certain land on national parks (f) and the State's pre-sale of certain land on national parks (g).
(a) National parks
Derogation of the contested legislation
25. The amendment to the legislation does not have a separate legislative existence, but it becomes part of the amended legislation and as such its constitutionality is assessed. In addition to the amendment to the law as a whole, the appellant attacks individual amended provisions, which are part of the legislation on nature conservation and landscape protection. The Constitutional Court therefore assessed the substantive compliance of the contested provisions with the constitutional order. In order to complete and supplement the necessary context, the Constitutional Court refers to the wording of the contested provisions of the law as regards the various parts of the arguments of the parties and the interveners.
National parks
(1) Extensive areas with typical relief and geological structure and the predominant presence of natural or man-made altered ecosystems, unique and relevant on a national or international scale in terms of ecological, scientific, educational or enlightenment, can be declared national parks.
(2) All use of national parks must be made subject to the conservation of their environmentally stable natural ecosystems corresponding to the site and to the achievement of their natural biodiversity and must be consistent with the objectives of the protection pursued by their declaration.
(3) The long-term objective of the protection of national parks is to preserve or gradually restore natural ecosystems, including ensuring the uninterrupted course of natural events in their natural dynamics, on the predominant surface of national parks, and to maintain or gradually improve the state of ecosystems, the existence of which is conditional on human activities relevant to biodiversity, on the remaining territory of national parks.
(4) The mission of national parks is to meet the long-term objectives of protecting national parks, as well as to enable the use of national parks for sustainable development, education, research and nature-friendly tourist use, in ways that do not conflict with the long-term objectives of protecting the national park.
(5) National parks and their protection zones are hereby declared.
National Park Czech Switzerland
The object of protection, verbal delimitation of borders and an indicative graphic representation of the progress of the national park Czech Switzerland are listed in Annex 1 to this Act.
Giant National Park
The object of the protection, the verbal delimitation of borders and the indicative graphic representation of the progress of the boundaries of the Giant National Park and the verbal delimitation of borders and the indicative graphic representation of the progress of the boundaries of the Giant National Park protection zone are set out in Annex 2 to this Act.
National Park Podyjí
The object of the protection, the verbal delimitation of the borders and the indicative graphic representation of the progress of the borders of the National Park Podyjí and the verbal delimitation of the borders and the indicative graphic representation of the progress of the borders of the National Park Podyjí are set out in Annex 3 to this Act.
Šumava National Park
The object of protection, the verbal delimitation of borders and the indicative graphic representation of the progress of the border of the Šumava National Park are listed in Annex 4 to this Act. '
Arguments of the appellant
26. In order to define the national parks and to establish them, the appellant states in particular that the provisions of § 15 of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., constitute a comprehensive change in the concept of national parks in the Czech Republic. He identified two changes as essential: 1. that the predominant presence of natural or man-crafted ecosystems is sufficient for the national park (compared to the earlier "significant part"); 2. the long-term objective of protecting national parks is newly defined - the conservation or gradual restoration of natural ecosystems, including ensuring the undisturbed course of natural events in their natural dynamics on the predominant area of national parks and the preservation or progressive improvement of the state of ecosystems, the existence of which is conditional on human activities of biodiversity, in the remaining territory of national parks. The appellant criticises the indeterminate nature of that legislation - it states that the possibility of interpreting its normative content is excluded by normal interpretation procedures. It is essentially a general clause that can be fulfilled by any content when interpreting and applying. The individual paragraphs of Section 15 of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., are not logically linked to each other or to other provisions of the Act on Nature and Landscape Conservation.
27. In relation to the provisions of § 15 (1) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., the appellant argues that this provision allows the declaration of the characteristic territories as national parks, but does not contain an interpretative guide on the sites concerned. It is not clear when the rule of law hypothesis will be fulfilled - the condition for declaring territory as a national park is met. That provision contains indeterminate concepts ("the extent of the territory '," typical relief of the territory' or "typical geological construction of the territory ') which give room for arbitrage. It should be clear to everyone from that provision which territory is" threatened' with being declared a national park, thereby limiting fundamental rights and the right to self-government, but which cannot be ascertained from that provision. The appellant referred to the case-law of the Constitutional Court [e.g. the findings of the sp. zn. Paragraph 15 (1) is therefore contrary to Articles 1 (1), 2 (3) and 101 (4) of the Constitution and Article 2 (2) and 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
28. Paragraph 15 (2) of Act No. 114 / 1992 Coll., on the Conservation of Nature and Landscape, as amended by Act No. 123 / 2017 Coll., the appellant further points out the uncertainty in the legal terms which the legal order of the Czech Republic does not clarify; anything concerning the permissible or inadmissible use of national parks may be derived from the provision cited. The Constitution in Article 99 divides the Czech Republic into municipalities and counties, but it does not and does not recognise the division of the territory into national parks. The provision of the Act gives the basis for any State interference in the jurisdiction of municipalities and counties, its interpretation cannot be ruled out arbitrarily and, without constitutional support, it limits the autonomous activity of municipalities and counties contrary to Articles 8, 100 (1) and 101 (1) of the Constitution. The appellant also pointed out the contradiction with Article 1 of the Nature and Landscape Conservation Act, as the requirement to take into account the needs of the population and regional and local circumstances was not met. On Article 15 (3) and (4) of Act No. 114 / 1992 Coll., on the conservation of nature and landscape, as amended by Act No. 123 / 2017 Coll., the appellant argues that it creates a bureaucratic structure according to which long-term objectives of protection are to be met by the mission of national parks, which is moreover intended to enable their use in other directions - the wording lacks normative content and can be interpreted in any way.
29. According to the appellant, the requirement of a legal form for the declaration of national parks and their protection territories is illogically bound in relation to other provisions of the law. Article 15 (1) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., states which territories can be declared a national park, but Article 15 (5) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., it follows that the national parks are declared by this Act. The legislator announced four national parks by amendment of the Act, despite the fact that the new conditions for publication could not apply because they were neither valid nor effective. Furthermore, the appellant contends that when the new national park is declared, the whole text of the Nature and Landscape Conservation Act will always be "open ', which may result in political trade and give the space to so-called stickers.
30. Under the provisions of § 15a to 15d, the Nature and Landscape Conservation Act declares individual national parks with the fact that their law on the establishment of such parks is repealed by the Derogation Provisions. The transitional provisions concern only the Czech Switzerland National Park, the other national parks are missing. There is no provision for the transfer of rights and obligations from employment and property relations or for the transfer of the responsibilities of individual administrations for other national parks. Those provisions may be interpreted by cancelling and redeclaring the National Park legislature, but for which it is necessary to follow the legal procedure under Section 40 of the Nature and Landscape Conservation Act - to allow the municipalities and regions concerned to participate in the publication of the National Park. The legislature seems to have tried to remove a quarter-century-long state in which three national parks were declared only by government regulation, not by law, which can be generally acknowledged, but in an insensitive way. The legislature did not state, as was taken into account in section 15 (1) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., nor did it comply with § 45h of the Act on Nature and Landscape Conservation - to carry out an assessment of the consequences of the concept or intention of declaring a national park in the territory in view of the impact of the favourable state of the object of protection or integrity of the European site or bird area.
31. Paragraph 15d of Act No. 114 / 1992 Coll., on the Conservation of Nature and Landscape, as amended by Act No. 123 / 2017 Coll., concerns the National Park of Šumava and refers to Annex 4 to the Act, in which the subject of protection, verbal delimitation of borders and indicative graphic representation of the progress of the national park boundaries. That national park has been defined without any closer involvement of the municipalities and regions concerned and taking into account their interests. The national park Šumava is the largest national park with an area of 68 000 hectares, the protection zone consists of the area of the Protected Landscape Area Šumava with an area of 99 000 hectares and 23 cities and municipalities are located in the national park. The appellant contends that it is not possible to establish whether the requirements under Section 15 of the Act have been met in the case of the Šumava National Park. The law does not define what is the subject of protection anywhere, but that is a key question, since the law operates with this concept, for example, in the case of exemptions from the prohibition of activity, thereby limiting the rights and freedoms of persons in the territory of the national park. Thus, the nature and landscape conservation authorities may interpret the definition of the subject-matter of protection arbitrarily and are therefore contrary to Article 79 (1) of the Constitution.
Observations of the parties and interveners
32. On the part of the constitutional complaint concerning the definition and publication of national parks, only the government and the President of the Republic have made a relevant comment. The Government believes that the amendment did not interfere with the constitutionally guaranteed rights and freedoms of the municipalities and regions concerned. In this context, it pointed out the finding of the Constitutional Court, sp. zn. The Government stressed the importance of the role of municipalities and regions as partners of national parks administrations and, inter alia, that their representatives are legally members of national parks councils, municipalities are also granted the status of the institution concerned under Act No. 500 / 2004 Coll., the Administrative Code, as amended, when discussing the draft measure of a general nature and the position of owners of the parcels concerned, with the possibility of exercising opinions, objections or comments. According to Article 71 (3) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 320 / 2002 Coll., the municipalities are also involved in all administrative proceedings conducted in the territory of the National Park by the administration of the National Park (e.g. the procedure for allowing exemptions from the prohibitions in the National Park).
33. The Government does not agree with the appellant's argument on the insecurity of terms and the absence of regulatory content. The Nature and Landscape Protection Act includes a number of concepts from the science fields, including those which are legally indeterminate, the content and importance of which cannot be defined in detail, and their application will depend on expert assessment in each individual case, as is the case in the legal systems of many European states. The national park status area is to be protected as a category of nature protection, all restrictions on activities in the national park territory must be based on specific national park protection instruments (basic and close protection conditions, compliance activities in the national park protection zone etc.). The Government considers the objection concerning the absence of a constitutional basis for the division of the territory of the Czech Republic into national parks to be incomprehensible since according to the Constitution, the territory of the Czech Republic is divided into municipalities and regions belonging to the right to self-administration, which does not in any way limit the possibility of declaring in their territory areas with a specific regime, provided that this possibility is enshrined by law in the public interest. Moreover, pursuant to Article 101 (4), The Constitution may be impacted by the State on the activities of the local authorities, if the protection of the law so requires and if the intervention is carried out in the manner laid down by the law. The requirement of Section 1 of the Nature and Landscape Conservation Act to take account of the economic, social and cultural needs of the population and regional and local conditions is reflected in all the institutes of the law; the definition of long-term objectives for the protection of national parks pursues a legitimate priority interest in the protection of unique nature in national parks and is reflected in other provisions of the law.
34. The definition of the national park is based on existing criteria and is newly adapted to generally accepted international standards for this category of specially protected territory. Paragraph 15 (3) of Act 114 / 1992 Coll., on Nature and Landscape Protection, as amended, merely stated that a form of law should be used for the declaration of a national park, not that each national park should be declared a special law. The purpose of the amendment was to unify and simplify the rules for all national parks in order to ensure the clarity and economy of legislation and the effectiveness of administrative procedures. The transitional provisions of the Act apply only to the Czech Switzerland National Park, because the legal form of the administration of the National Park is changing from the state's organisational component to a contribution organisation, as is the case with other national parks administrations. As of 1 January 2018, all national park administrations have the same legal form. The announcement of the National Park is not an intention that would be subject to an assessment of the consequences on European sites and bird areas under Sections 45h and 45i of the Nature and Landscape Conservation Act, since specially protected areas, including national parks, constitute an instrument for the protection of these sites and areas (see Government Regulation No. 318 / 2013 Coll., on the establishment of a national list of European sites, as amended by Government Regulations No. 73 / 2016 Coll. and No. 207 / 2016 Coll.).
35. The President of the Republic considers as a fundamental lack of the legislation under appeal that the uniform rules laid down for national parks do not reflect the specificities of the different territories of the national parks, leading to the merits of the appellant's objections concerning, in particular, the inadequacy and unjustifications of the extension of prohibitions, restrictions in individual zones and interference in the freedom of movement in resting areas. The negative impact of the law is also the weakening of representatives of municipalities and regions on the National Park Council, as well as the uncertainty of the provisions of the law and the failure to comply with the legislative process; of the number of indeterminate provisions of the law it is offered that it is rather a substantive draft law. The contested legislation is capable of ensuring the free development of nature in the major part of the Šumava National Park and contributing to the gradual disappearance of human settlements in the national park.
36. In the reply, the appellant stated that the object of the protection of national parks had changed both formally and materially by amending the law. The amendment to the law led to the disappearance of previously declared national parks and the announcement of new national parks - with a completely different legal regime. In its observations, the Government admitted that the application of certain provisions would depend on a professional individual assessment, which, according to the appellant, is contrary to the predictability of the law.
Self-assessment of the Constitutional Court
37. The Constitutional Court assessed the compliance of the contested provisions of Sections 15 and 15a to 15d of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., with the constitutional order of the Czech Republic and reached the following conclusions:
Uncertainties or inclarity of legislation and its interpretation
38. The appellant contests the indeterminate or incomprehensible nature of the contested provisions concerning the definition and designation of national parks in general as well as in relation to individual national parks already declared, thereby giving it scope for their subsequent interpretation and application.
39. The indeterminity of legal concepts is not unusual in the rule of law, in its essence results from the abstract and regulatory nature of legal standards and does not in itself constitute the unconstitutional nature of legislation. As a contradiction with the requirement of legal certainty, which is one of the components of the rule of law (Article 1 (1) of the Constitution), uncertainty could be considered if its intensity would exclude the possibility of determining the normative content of legislation by means of the usual interpretative procedures [e.g. the findings of 5.4.2005 sp. zn. Pl. ÚS 44 / 03 (N 73 / 37 SbNU 33; 249 / 2005 Sb.] or of 13.3.2007 sp. zn. ÚS 10 / 06 (N 47 / 44 SbNU 603; 163 / 2007 Sb.)]. The scope for possible derogatory intervention by the Constitutional Court would be "given only in the case of a breach of constitutional order and inaccuracy, insecurity and unpredictability of the law extremely impedes the fundamental requirements of the law in the rule of law '[the finding of 27.3.2008 sp. zl. ÚS 56 / 05 (N 60 / 48 SbNU 873; 257 / 2008 Coll.], paragraph 50].
40. The legislative use of so-called indeterminate terms is based on the fact that their specific content is fulfilled by the application activities of public authorities without this in the legal state of violation of constitutional order (e.g. legal certainty); otherwise it would be impossible to effectively implement public administration. It is, in a sense, a manifestation of a wider ideological starting point - the so-called doctrine of skepticism about standards. Not all rules of conduct, legal terms can be formulated for futuro (precisely); for certain types of cases - due to their nature - the principles, objectives which the courts and the national authorities then put into life of the application activities [cf. the finding of the Constitutional Court of 8.7.2010 sp. zn.
41. However, in this context, the Constitutional Court must stress that the reasons for the unconstitutional nature of the rule of law are not, in principle, any interpretative difficulties in interpreting the law. If the provision does not provide a clear language answer for certain situations, this does not in itself mean its unconstitutionality. The Constitutional Court then, while respecting the principle of minimisation of interventions, reiterates what it had already judged in its finding of 3 February 1999 sp. zn. Pl. ÚS 19 / 98 (N 19 / 13 CollU 131; 38 / 1999 Coll.) that: "[of the many conceivable interpretations of the law must in any case only be used which respects constitutional principles (if such an interpretation is possible) and that the provisions of the Law on Non-constitutionality cannot be repealed unless the provision in question is applied without violating the constitutionality (principle of minimisation of intervention) '.
42. The appellant contesting the insecurity of the contested provisions cannot be attested because they have a normative content which can be interpreted using common interpretative methods and subsequently applied to a particular case. In the case of several possible interpretations, it is appropriate to choose the interpretation which will be most appropriate as a result for compliance with the constitutional framework. Where the legislature uses the terms "extensive territory," "typical relief of territory," "unique and significant territory," "enlightening," "ecologically natural ecosystems corresponding to the site," "biodiversity," "objective and object of protection," and "predominant presence," or, in an abstract manner, the criteria for granting the status of a national park of territory, such wording is constitutionally conformable.
43. The notion that the law must be clearly and in detail planned in advance as to how persons, authorities and courts should proceed does not identify the Constitutional Court. The legislative trend, consisting of the most detailed and case-by-case adjustment of rights, obligations and facts, is an unfortunate consequence of the so-called hypertrophy of the law. The most detailed legal regulation will not guarantee that the law will be respected - on the contrary, it creates more scope for obstruction and circumvention of the law. A reasonable official or judge (and cannot be based on the premise that an official and a judge are unreasonable) must be able in a particular situation in a constitutional fashion to interpret the meaning of "biodiverse," "unique and significant" and so on. It is important that, in the case of defective interpretation, the rule of law provides a number of instruments for the protection of public subjective rights and of the public interests concerned - remedies in the context of administrative proceedings or other proceedings under part four of the administrative order, administrative action under the administrative order and, last but not least, an individual constitutional complaint. It will only be possible to speak of a violation of the prohibition of libel when applying these provisions to a particular matter, not now in the "what if" phase of mere controversy.
44. The appellant further contends that the various paragraphs of Section 15 of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., are not logically related to each other or to other provisions. According to the Constitutional Court, the objection is not justified. Paragraph 15 (1) of the Act regulates the characteristics of the territory which can be declared as national parks, paragraphs 2 and 3 of the same section regulate the use of national parks and the long-term objectives of their protection, paragraph 4 defines the mission of national parks and the last fifth paragraph provides that national parks and their protection zones are declared by that law. It is not clear from the proposal, except for the argument on the provisions of § 15a to 15d of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., to which other provisions of the Act on Nature and Landscape Conservation are not logically linked. Paragraph 15 (1) to (4) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., defines in an abstract manner what territories can be declared national parks, how they can be used, what their mission is and what long-term objectives are for their protection. The legislation does not contradict itself internally. Paragraph 5 must be interpreted as an attempt by the legislator to establish all national parks by law, with the intention of minimising the fragmentation of national parks legislation into several laws. In other words, the legislator has defined which territories can be declared a national park, with this becoming a law on nature and landscape conservation. The legislation of § 15a to 15d of Act No. 114 / 1992 Coll., on the Conservation of Nature and Landscape, as amended by Act No. 123 / 2017 Coll., which brought together the legislation of individual national parks fragmented in the law of establishment into one law, corresponds to that.
45. The legislature has not declared new national parks, but has merely harmonised the form of the national parks' establishment legislation, thus fulfilling the requirement of their legal form; It was therefore not necessary to follow § 40 (3) and (4) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended before the contested amendment of the Act, nor was it necessary to take any further legal steps in relation to the adoption of a new proposal or concept (e.g. to carry out an assessment of the consequences on European sites or bird areas under § 45h of the Nature and Landscape Conservation Act). The appellant's argument concerning the absence of transitional provisions on newly declared national parks and the abolition of its establishment legislation can be further pointed out by the Government, which stated on this objection that the legal form of the individual administrations of national parks, which are and remain a contributory organisation, does not therefore go beyond their rights and obligations; only the administration of the Czech Switzerland National Park has changed since it has the form of an organisational component of the State, which responds to the transitional provision of the law.
46. The appellant further contends that for the declaration of national parks pursuant to Article 15 (5) of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., the full text of the Nature and Landscape Conservation Act will be "open ', which may result in political trade, and will be given space to so-called stickers. That argument is merely speculation about future events in the Chamber of Deputies. The legislator has adopted the chosen way of regulating national parks in the framework of a constitutionally consistent legislative process, for its consequences and for any application deficiencies it has to bear political responsibility.
47. In view of the above, the Constitutional Court concludes that the contested legislation is not incomprehensible, indefinite or indiscriminate.
Proportionality of the contested legislation
48. Part of the appellants' objections are directed against the inadequacy of Sections 15 and 15a to 15d of Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended by Act No. 123 / 2017 Coll., concerning the limitation of the right to self-government pursuant to Article 8 of the Constitution.
49. Article 8 The Constitution shall be guaranteed the self-administration of territorial units which have the right to self-administration pursuant to Article 100 (1) of the Constitution. The State can intervene in their activities only if it requires the protection of the law and only in the manner laid down by the law.
50. The Nature and Landscape Conservation Act defines its purpose in the provision of Section 1, according to which it is to contribute to the conservation and restoration of natural balance in the landscape, the protection of diversity of life forms, natural values and beauty, the sustainable management of natural resources and the creation of a Natura 2000 system in accordance with the law of the European Communities in the Czech Republic, with the participation of the respective municipalities, regions, owners and land managers. The economic, social and cultural needs of the population and regional and local circumstances must be taken into account.
51. The importance of national parks in the Czech Republic has recently been formulated in the framework of the Czech National Parks Conference 2016. National parks are important for maintaining biological and geological diversity by ensuring the conservation of species populations in their natural environment. They are also important for hydrological and climatic, as they affect mesoclimate, carbon or oxygen cycle and contain surface and groundwater, affect their flow, thereby mitigating climate change. The importance of scientific and research is highlighted by the fact that their territories with ecosystems left behind by spontaneous development represent a benchmark study area for man-made ecosystems, an observation and monitoring tool for phenomena not occurring outside their territory in an appropriate area or quality. National parks are also of social-economic importance. The economic benefits of the region of national parks by creating jobs directly and indirectly through contracts to private entities, as well as in the national park itself as a guarantee of friendly tourism. Another importance is therefore recreational and tourist, as it is currently the most visited territory of the Czech Republic. National parks are also of educational importance as they can arouse a positive relationship with nature, clarify the course of natural events and motivate the public to cooperate on environmental protection. Finally, national parks are of international importance.
52. The considerable importance of national parks is indisputable, as the tightened regime for the protection of national parks' territory helps in particular to preserve biological and geological diversity, to protect species populations in the natural environment, to affect climate, and so on. In addition, national parks are important for science, social or economic. The aim of the national parks is to compromise the achievement of long-term conservation objectives (undisturbed natural phenomena) and to enable the use of their territory (for sustainable development, education, education, etc.), all as components of the right to a favourable environment under Article 35 (1) of the Charter, as well as the requirement to preserve and develop the natural wealth according to the preamble of the Constitution. The above justifies the high importance of national parks, which naturally also entails certain restrictions on fundamental human rights and freedoms or other public interests.
53. The appellant contests, in relation to certain provisions only in general, the inadequacy of the amended legislation. Therefore, at the next stage of the review of the contested provisions, the Constitutional Court examined the compliance of the legislation as an expression of environmental protection within the meaning of the preamble and Article 7 of the Constitution and Article 35 (1) of the Charter with the right to self-administration pursuant to Articles 8 and 100 (1) of the Constitution.
54. In general, the objectives of the contested legislation include the conservation of biological and geological diversity already mentioned, the protection of species populations in the natural environment, climate impact, through the undisturbed course of natural phenomena combined with the sustainable development of national parks. The specific objectives of the amendment are further: the harmonisation of the legal regulation of national parks in one law and the prevention of fragmentation of national parks, the reduction of activities in the territory of national parks in response to experience in the application of earlier legislation or effective management of national parks and related matters (e.g. the maintenance of the participation of the concerned municipalities and regions in the process of approving projects, the simultaneous participation of professional public bodies, the harmonisation of the basic protection conditions for all national parks with the possibility of granting individual exemptions from the prohibitions, the emphasis on State ownership of land in national parks or the reorganisation of new national parks with the requirement of maintaining its long-term stability in response to negative events in individual zones, etc.).
55. The need for legislation presupposes an urgent social need for it to exist and, in particular, the relationship of proportionality to the legitimate objective pursued. In other words, the Constitutional Court must focus on whether the legislator respected the principle of proportionality and achieved a fair balance between competing interests in the framework of abstract constitutional control. The proportionality test, which includes three criteria, can traditionally be used for this. The first is the assessment of the eligibility to meet the legitimate objective pursued (criterion of suitability) - it is established whether a specific measure can achieve the intended objective of protecting a non-limited basic right or a public good. Another criterion is the assessment of necessity. It shall examine whether, when selecting the appropriate means, the most favourable means for limited fundamental law have been used. The last to assess proportionality (in a narrower sense), i.e. whether the injury to the fundamental right is disproportionate in relation to the legitimate objective pursued. Measures restricting fundamental human rights and freedoms must not, by their negative consequences, exceed the positives that bring a conflicting interest in their adoption.
56. The Constitutional Court has already established above what legitimate objectives the contested legislation pursues. Nature conservation in the national parks is an expression of society's interest in preserving and developing inherited natural wealth as a public good. The objective pursued can be achieved by regulating activities carried out in national parks. The current state of the company and the lack of environmental literacy of some people require that national parks and rules of conduct be legally regulated therein - the legislation in question fulfils the condition of suitability.
57. In the second step of the proportionality test, the Constitutional Court examined whether the legislator could not choose a solution which would be more lenient against the limited right to self-administration. At the same time, however, a safer solution would have to achieve the legitimate objectives pursued at the same or at least comparable level. If they are only partially fulfilled, they cannot be regarded as a realistic alternative which should lead to the conclusion that the contested legislation is not necessary.
58. In view of the construction of its argument, the appellant did not raise any argument questioning the necessity of the contested adjustment. The Constitutional Court must, with respect to the division of power and when assessing the step of necessity in the proportionality test, be restrained in relation to the legislative elections made by a more informed legislator on possible other solutions. It cannot, particularly in the absence of the appellant's argument, consider alternatives by the legislator of the chosen solution and assess whether they would actually achieve the legitimate objectives pursued at a similar level. Both the government's argument and the explanatory memorandum show that other alternatives to legal regulation have been considered but have not been sufficiently effective to achieve the objectives set.
59. According to the contested legislation, national parks are declared directly by the Nature and Landscape Conservation Act, which also includes their common regulation. The fragmentation of legislation in the law and in the law of establishment is removed. The amendment to the Act clarified the definition of a national park, clearly defined the long-term objectives of the protection of national parks and defined their mission, which is then reflected in other provisions of the regulation of national parks. In addition to the owners of real estate in the territory, the municipalities and regions concerned, to which the right to raise written objections belongs, are participating in the process of declaring (actually) new national parks (§ 40 (3) and (4) of the Nature and Landscape Protection Act).
60. The Constitutional Court, referring to all the above, summarises that the legislation under appeal meets the criterion of necessity in the second step of the proportionality test, since regulation has been chosen which is capable of achieving the objectives set with a fair degree of limitation of the right to self-administration (municipalities and regions are still allowed to participate in the process of declaring new national parks), another solution would not have been so effective with the same degree of limitation of rights and freedoms.
61. At the last stage of the review of the constitutionality of the contested legislation, the Constitutional Court also examined whether this legislation achieves a fair balance between conflicting interests and materially. It is specifically a conflict of interest in the protection of the environment within the meaning of the preamble and Article 7 of the Constitution and Article 35 (1) of the Charter with the right to self-administration pursuant to Articles 8 and 100 (1) of the Constitution. It was necessary to assess whether the damage to fundamental rights was disproportionate in relation to the legitimate objective pursued in the form of protection of the public interest in the conservation and development of the environment in the territory of national parks.
62. The appellant is intended to restrict the rights and freedoms in favour of the protection of national parks. According to the Constitution and the Charter, the right to self-government can be restricted by law if it is required to protect the law. On the generally used scale of the seriousness of the restriction of fundamental rights and freedoms, "substantial - moderate - low ', the contested legislation, according to the Constitutional Court, constitutes a slight restriction. The role of the environment and the interest of society in preserving and developing inherited natural wealth were highlighted above. A certain degree of limitation of fundamental rights and freedoms is necessary to fulfil that interest.
63. In particular, in relation to the right to self-administration of the municipalities concerned, their decision-making activities in the management of their territory within the national park are limited. Municipality of the national park is not denied the right to self-administration, it is limited only by the requirement to protect nature in national parks as specially protected territories. The right of municipalities to participate in matters relating to the definition of a national park and its individual areas is maintained (in particular, they may object to the draft declaration of a national park, they may agree to the zoning of national parks and they participate in the definition of resting areas) and the management of a national park (e.g. they may agree to draft national park management principles). Their participation shall be made possible within the framework of national park councils or from the position of the authorities or owners concerned. In other words, municipalities have the opportunity to participate in their decision-making on their territory in relation to nature conservation, although modified in view of the fact that their territory is spread out in the national park territory - it is essential that they are not denied this possibility without further delay. All restrictions and prohibitions are not designed as absolute regulation by the contested legislation, but can be flexibly addressed to the specific needs of the municipalities concerned and their population. In the decision of 19.4.2010 sp. zn. IV. ÚS 1403 / 09 (N 88 / 57 SbNU 155) The Constitutional Court concluded that the municipality's self-administration is one of the pillars of Czech constitutionality, but that does not mean that the legislator is forbidden by law to regulate the exercise of this right. In the present case, the legislature set legal limits for the exercise of the right of municipalities to self-administration in the territory of national parks, while allowing them to participate in the management of national parks. It is therefore not possible to conclude on the discharge of this constitutionally guaranteed right, but on its appropriate limitation in relation to the protection of natural wealth in the territory of national parks. The municipalities and regions concerned may participate in the procedures and procedures relating to the national park on their territory or may, through their delegates, comment on important documents relating to the protection and management of the national park. In the event of interference with public subjective rights or public interests, the rule of law provides a number of effective means of protection.
64. In conclusion, the Constitutional Court summarises that the contested provisions of § 15 to 15d of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended by Act No. 123 / 2017 Coll., meet the formal and material conditions for the statutory limitation of the constitutional right to self-government, pursue the legitimate objective of nature conservation and are proportionate.
(b) Protection conditions for national parks and rest areas
Derogation of the contested legislation
Basic protection conditions of national parks
(1) The entire territory of national parks is prohibited
(a) to place or authorise mining works, including related mining structures or installations, other than the provision and disposal of existing mining works;
(b) define new industrial zones;
(c) establish exploratory territories;
(d) mine minerals, peat or bacon, except for the extraction of building stone and sand for construction in the national park;
(e) to dispose of waste originating outside the national park;
(f) authorise or carry out the deliberate distribution of non-geographical plant species;
g) introduce intensive game farming such as disciplines, farm farms or pheasants;
(h) amend the existing land water regime;
(i) the release of animals, other than the release of animals on the basis of approved rescue programmes or of animals treated with rescue stations at the place where they were found;
j) place lamps outside enclosed objects pointing the luminous flux above the horizontal passing through the centre of the lamp;
(k) conduct fireworks or use fireworks; or
(l) fly in contravention of the conditions laid down in a measure of a general nature issued under another legislation, except for flights to ensure the safety of the state, the protection of persons, property or public order, and flights for the needs of nature conservation authorities.
(2) In the territory of national parks outside the built-up territory of municipalities and the built-up areas of municipalities are prohibited
(a) use means or carry out activities which may cause significant changes in the biodiversity, structure and function of ecosystems contrary to the objectives of the protection of national park zones or the national park zone regime;
(b) to place, authorise or carry out structures, other than those requiring no territorial decision or territorial consent and intended for the purposes of conservation of nature, farming land and forests, tourism, watercourses management, fire protection and rescue, state defence, protection of state borders or conservation;
(c) to remove the upper layer of land or to conduct landscaping, outside structures which do not require territorial decisions or territorial consent and intended for the purposes of conservation of nature, care of agricultural land and forests, tourism, watercourses management, fire protection and rescue, state defence and protection of national borders, or outside the maintenance of cultural monuments;
(d) permit or carry out geological work;
(e) collect minerals, plants or catch animals, except for the normal management of land, research authorised or organised by the nature conservation authority, exercise of hunting rights, fishing rights or the general exploitation of forests under another legislation;
(f) use artificial fertilisers, slurry, silage or lime on parcels outside the garden;
(g) to plant or plant plants outside the garden; This does not apply to the planting or planting of the original trees or local varieties of fruit trees,
(h) use biocides outside buildings;
(i) to store fuel or chemical products outside the places reserved by the nature conservation authority for a limited period;
(j) to dispose of waste originating in the national park outside the places reserved by the nature conservation authority;
(k) to adjust the natural watercourses or to remove from the natural watercourses the flooding or other naturally occurring obstacles, except in the case of an immediate threat to the life or health of persons or the threat of material damage to property;
(l) to enter and remain with motor vehicles and trailers off-road, local communications and places reserved by the body of nature protection, with the exception of the entry and residence of vehicles of the essential components of the integrated rescue system, the municipal police, the armed forces of the Czech Republic, the customs administration of the Czech Republic, the prison services of the Czech Republic, other public authorities, veterinary services, watercourses managers' vehicles, water supply operators and sewerage, energy systems, pipelines, production ducts and public communications networks in the performance of their tasks or vehicles needed for the forestry and agricultural management in the national park and vehicles of owners and tenants of immovable goods in connection to their use;
(m) to ride a bicycle or horse off the road, local communications and places reserved by the nature protection authority, with the exception of driving carried out by members of the essential components of the integrated rescue system, municipal police, the armed forces of the Czech Republic, the customs administration of the Czech Republic, the prison services of the Czech Republic, workers of other public authorities, veterinary services and water service managers in the performance of their tasks or owners and tenants of immovable property in connection with their use;
(n) to engage in climbing, watercourses or other water sports outside the places reserved by the nature conservation authority;
o) camp outside the places reserved by the Nature Protection Authority;
(p) to develop fires outside the places reserved by the nature conservation authority;
(q) organise or organise sporting, tourist or other public events outside the places reserved by the nature conservation authority;
(r) to open or stand-by sales outside buildings;
(s) operate aircraft capable of flying without a pilot or aircraft model; or
(t) carry out chemical sprinkling of roads, except for maintenance of first-class roads.
Closer protection conditions of National Park Czech Switzerland
(1) The entire territory of the Czech Switzerland National Park is prohibited
(a) interfere with the natural development of rock formations for reasons other than the immediate threat to human life or health or the imminent damage to property of a significant scale;
(b) use livestock to draw and ride off roads and local roads and places reserved by the nature conservation authority; This prohibition shall not apply to the normal management of land with the consent of its owner or lessee; or
(c) to sleep in nature outside the places reserved by the nature conservation authority by measures of a general nature.
(2) Free running of domestic animals is prohibited throughout the Czech Switzerland National Park territory outside the built-up territory of the municipalities.
(3) The whole territory of the Czech Switzerland National Park is possible only with the consent of the nature conservation authority
(a) establish new prospects or make rock formations of staircases and ladders accessible, or remove them;
(b) to place information, advertising and promotional facilities;
(c) open up grounders; or
(d) to change the types or uses of land outside the built-up territory of the municipalities and the stalled areas of the municipalities.
Closer protection conditions of the Giant National Park
Only with the consent of the Nature Protection Authority can the whole territory of the Giant National Park
(a) to change the types or uses of land outside the built-up territory of the municipalities and the built-up areas of the municipalities; or
(b) to carry out ploughing of permanent grassland.
Closer protection conditions of the National Park Podyja and its protection zone
(1) On the entire territory of the National Park It can only be used with the consent of the nature protection authority
(a) to change the types or uses of land outside the built-up territory of the municipalities and the built-up areas of the municipalities; or
(b) to carry out ploughing of permanent grassland.
(2) The operator of the hydroelectric power plant in Vranov nad Dyja is obliged to provide an environmentally tolerable flow regime in the river Dyja.
(3) The purpose of the National Park Protection Zone The protection of its landscape and natural values and increased care of its registered offices in the national park protection zone Podyjí is similar to the security of the national park's territory against interference.
Closer protection conditions of the Šumava National Park
The entire territory of the Šumava National Park is possible only with the consent of the nature conservation authority
(a) to make adjustments and maintenance of watercourses and other watercourses;
(b) to build new or reconstruct existing surface drainage of land, outside the built-up territory of municipalities and the built-up areas of municipalities;
(c) to change the types or uses of land outside the built-up territory of the municipalities and the built-up areas of the municipalities; or
(d) carry out the ploughing of permanent grassland.
National park rest area
(1) The resting areas of the national park are areas with limited movement of persons in order to facilitate the uninterrupted development of ecosystems or their components, which are sensitive to the excessive movement of persons and are vulnerable to the effects of interference associated with them.
(2) In the quiet territories of the national park it is prohibited to move outside the roads or routes reserved by the nature conservation authority, except for owners and tenants of land when entering their land, members of the essential components of the integrated rescue system, municipal police, armed forces of the Czech Republic, the customs administration of the Czech Republic, the prison services of the Czech Republic, workers of other public authorities, staff of the professional organisation of state conservation, veterinary service workers, water and sewage operators, energy systems, pipelines, production ducts and public communications networks in the performance of their tasks. When reserving a path or route, the nature protection authority may lay down conditions relating to the extent, manner and time of movement on that route or route.
(3) The resting areas of the national park are determined by the Ministry of Environment by measures of a general nature.
(4) The boundaries of the resting area of the national park and information on the conditions of movement on journeys or routes in the resting area of the national park shall be indicated by the nature conservation authority in the field in the manner laid down by the Ministry of the Environment Decree.
Limitation of activities in national parks and visiting rules of the national park
(1) The conditions for restrictions and lists of tourist and recreational activities prohibited or limited by laws, regulations, general measures or decisions under this law or other legislation are published by the nature conservation authority in the visiting rules of the national park.
(2) The National Park Visiting Regulations shall be published by the Nature Protection Authority in the form of an electronic document on its website. The visiting rules may also be published for part of the national park territory. '
Arguments of the appellant
65. Furthermore, the appellant challenges the provisions regulating protection conditions and rest areas, as they unduly restrict the fundamental rights of the operators concerned, significantly centralise the scope of national park administrations and the general nature and landscape conservation bodies - the possibilities of direct influence on the territory of national parks, the possibilities of exceptions to the prohibitions laid down and the ban extended to an disproportionate extent. Paragraph 16 of Act No. 114 / 1992 Coll., on Nature Protection and Landscape Protection, as amended by Act No. 123 / 2017 Coll., like previous legislation, regulates the basic protection conditions of national parks, the conditions of individual national parks are set out in Sections 16a to 16d of this Act. The list of prohibited activities in the territory of national parks has been extended quantitatively and geographically, which the applicant considers to be disproportionate and unfounded. The individual safeguard conditions are hardly individualised in relation to national parks with regard to their specificities, the exceptions to the prohibitions are conditional on the approval of the management of the national park, contrary to the principle of proportionality.
66. In relation to Article 17 of the Nature and Landscape Conservation Act, the appellant contends that the quality of the sites on which resting land can be declared should be established or the grounds for its publication. The current legislation gives nature conservation authorities the possibility of any interference with the right to freedom of movement. The territory of national parks is aimed at millions of tourists, but restrictions on their movement must be proportionate. Article 14 (3) The Charter may restrict freedom of movement, but the possibility of declaring a resting area anywhere in the national park without further restriction denies the criterion of immortality. While possible, potential defence in administrative justice is costly, lengthy and often unsuccessful. Repeatedly, the appellant argues that the legislator has substantially reduced the right to self-administration.
Observations of the parties and interveners
67. Only the government and the President of the Republic have made a relevant comment on that part of the proposal. According to the Government, the appellant did not state in what way it saw the inadequacy of the limitation of the fundamental rights of the operators concerned by individual instruments of protection of national parks based on existing legislation or new instruments in which municipalities are involved under the law. It is clear that the appellant sees the national park as a territory in which self-government is to have the decisive say and which is to serve the interests of the municipalities, not as a category of nature conservation. The interests of self-government cannot be unilaterally prioritised at the expense of protecting unique nature. The new regulation on safeguard conditions limits the possibility of overuse of regulation where this is not necessary. The regulation of restrictions on activities affects only human activities which constitute a threat or direct damage to the national park protection articles; However, if the legal conditions are fulfilled, an exemption may be granted for the participation of the municipalities concerned.
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Regulation Information
| Citation | The Constitutional Court found No. 261 / 2018 Coll., on the application for annulment of Act No. 123 / 2017 Coll., amending Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended, or on the repeal of certain provisions of Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 15.11.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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