The Constitutional Court found No. 265 / 2008 Coll.

Motion denied.

1. The Group of Senators of the Senate of the Czech Republic has delivered to the Constitutional Court an application for the annulment of part of Act No. 44 / 1988 Coll., on the Protection and Use of Mineral Wealth (Mining Act), namely the provisions of § 37 (5), second and third sentences of the Act, containing the procedure for determining the amount of compensation for mining damage. The contested legislation requires, in cases where an organisation carrying out a mining activity with the owner of the damaged case does not agree on the method of compensation, to determine the amount of compensation by expert opinion, the amount calculated being not to be reduced by a divestiture coefficient if less than one. The appellants consider that the contested legislation contradicts the content of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter). In particular, they consider that it infringes the principle of equality contained in Article 1 and the principle of the same legal content of property rights contained in Article 11 (1) of the Charter and that it does not respect the rules of the fair process enshrined in Article 36 et seq.

2. The appellant received the contested form of § 37 (5) of the Mining Act as a result of the amendment of Act No. 386 / 2005 Coll., amending Act No. 44 / 1988 Coll., on the Protection and Use of Mineral Wealth (Mining Act), as amended, and Act No. 61 / 1988 Coll., on Mining Activities, Explosives and State Mining Administration, as amended. The appellants point out that the contested legal text entered into the government bill as a parliamentary amendment and was already criticised by the Senate during the legislative process. Law No 386 / 2005 Coll. therefore also returned to the Chamber of Deputies with amendments, including the proposal to delete the text now contested. However, the Chamber of Deputies remained on the originally approved text.

3. First, the appellants recall the objections raised to the provision in question during the examination of the draft law in the Senate. The Senators referred to the non-systemic nature of the arrangements for determining the amount of compensation by expert opinion. First, a reference to the law under which such an assessment should be made was omitted when Act No 151 / 1997 Coll., on the valuation of assets and on the amendment of certain laws (the law on the valuation of assets), having regard to the dictation of the first sentence of its § 1, which reads "The law regulates the methods of valuation of matters, rights and other property values (hereinafter referred to as" property ') and services for the purposes laid down by specific rules. "Contrary to the previous legislation, which provided for an agreement between an organisation carrying out a mining activity and the owner of the object concerned without any obligation of an expert valuation, contractual freedom as a fundamental principle of private law was abandoned, in addition to the limitation of the possibility of reducing the prices determined by the coefficient of sales. The concept of" sales coefficient "is not even defined in the upper law. According to the Senate, the contested legislation inadvertently increases the protection of the property rights of owners whose properties are in the territory of conquest spaces.

4. These reservations are now followed by specific constitutional arguments.

5. The intervention in the principle of equality is seen in the following fact. Originally, there was no special scheme for compensation for mining damage; If the operator has not agreed to the mine activity with the injured party, the court in civil proceedings has decided on compensation, without, however, being limited in the choice of means of proof to determine the amount of the damage and its assessment, as is the case with the contested legislation. The new legislation introduced a privileged method of redress only for some of the owners concerned, as Section 37 (5) of the Mining Act relates to damage to buildings or installations located in the construction site or in a territory where the effects of mining activities may continue to be reflected in the long term and the construction or installation cannot therefore be brought into the previous state. These owners are in a more favourable position than those whose damaged goods lie outside the construction closure or in a territory where the effects of mining activity have only been manifested on a one-off or short-term basis. There is also no reason to favour the owners of the mining activity in question compared to those affected by other operating activities. Unconstitutional inequality also creates the exclusion of the use of the divestiture coefficient where this would lead to a reduction in the price of damaged or damaged goods. According to the appellants, the use of the term "marketability coefficient 'does not comply with the traditional requirement for the quality of laws which should use terms of generally known content and explain possible terms unknown. The term" sales coefficient "does not correspond to this, because only the lower legal force standard - Decree of the Ministry of Finance No. 540 / 2002 Coll. - sets its level and content basis, which is not yet very clear. The contested legal provision also assumes that the price calculated by the assessment is adjusted by a coefficient, but in fact the expert must take into account the coefficient when determining the price of the case. Finally, the contested scheme ignores that the divestiture coefficient is only applicable to the valuation of the construction in a cost-based manner and cannot be applied to the valuation carried out in a profit or comparison manner.

6. According to the applicants, the obligatory requirement of an expert opinion is contrary to the rules of the fair process. Without a rational reason for requiring an expert opinion as evidence to be carried out in the proceedings, for example, the possibility of deciding a dispute on compensation by a judgment of default or a judgment of recognition, or the possibility of the court being satisfied only with a professional statement of the amount of damage.

7. The artificial increase in the protection of the property rights of certain owners (owners of goods in the territory of the conquest premises) has created differences in the content and intensity of the protection of ownership of individual entities. This is contrary to how the Charter approaches the Institute of Property and its Protection.

A) Presentation of essential parts of the observations of the parties

8. The Constitutional Court sent the application to initiate proceedings in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.

9. In its observations, the Senate recalled that it no longer agreed to modify the existing mining compensation scheme when discussing the draft amendment to the Mining Act. The newly proposed solution was already considered by the Senate to be non-systemic and purposeful, which, in its consequence, means an unacceptable increase in the protection of ownership of the owners of the mining activities concerned. The Senate further pointed out that the amendment did not address the method of compensation (cash or in kind) but only its amount. It was also criticised for inconsistency, as it was not established who had the obligation to ensure that the expert's opinion was drawn up and whose remuneration was based. The Senate continues to hold those reservations against the contested provision, with the appellants' current arguments largely in line with those reservations. However, it leaves its assessment to the Constitutional Court.

10. The Chamber of Deputies, after a brief recap of the circumstances of the discussion of the amendment to the Mining Act in question, stated that Law No 386 / 2005 Coll. was properly approved, signed by the relevant constitutional authorities and duly declared. The aim of the contested provision was to strengthen the protection of property owners in a specific situation. The proposed amendment was justified by the fact that the unequal status of the owner of the property and the mining private company, which, by its mining activity, threatens the functionality of the property, should no longer be maintained, while in the case of demolition of the building as a consequence of mining activity, the owner is offered a price of only a few dozen percent of his estimated price, as a sales coefficient is applied. The Chamber of Deputies states that it cannot be triggered by the obligation to require an expert opinion to intervene in the right to a fair trial. Nor does it agree with the claim that the amendment unconstitutionally interferes with the content and protection of property rights. On the contrary, the new legislation increases the protection of property rights for all owners, even in certain legal situations. The contested legislation does not distinguish between owners but between legal situations in which owners of the same property may find themselves. It would not improve the legal status of any owner by abolishing it, but it would only deteriorate for some and remain unchanged for others. The Chamber of Deputies therefore acted in the opinion that it was in accordance with the constitutional order of the Czech Republic when discussing and approving the amendment in question.

B) Opinion of the Czech Mining Authority

11. The Constitutional Court considered it appropriate to request an opinion on the proposal submitted by the Czech Mining Authority (hereinafter referred to as "the Office") as a central body of the state administration in the mining sector.

12. The Office first pointed out that it did not propose the text of the contested provision and was inserted into the Mining Act as a result of the parliamentary initiative when discussing the government proposal for its amendment. In general, it attested to the appellants' reservations, as it itself considers that the provision in question is contrary to the Charter and the legislation governing compensation for damage caused by the nature of the operation. In its observations, the Office briefly described the rules on liability for mining damage and the rules on compensation. In his view, there is no constitutional formal reason for the owners of the property as calculated in Paragraph 37 (5) of the Mining Act to have a more favourable position in calculating compensation than other entities. The contested provision constitutes an inequality between, on the one hand, the operators damaged by the mining activity and, on the other hand, the conditions for calculating the compensation are less favourable in cases of damage arising outside the site of the construction closure and in territories where the impact of the mining activities is manifested only in the short term. The objection against the exclusion of the possibility of applying the divestibility coefficient shall be accompanied. The Office also agrees with the appellants that the obligation to require an expert opinion is an unjustified interference in the exercise of judicial authority. In this part, the law considers it unclear, since it is not established which parties are to ensure and bear the costs of the expert opinion.

13. Overall, the Office supported the proposal that the Constitutional Court should abolish the designated part of the law.

14. The contested part of the provision of § 37 paragraph 5 of Act No. 44 / 1988 Coll., on the Protection and Use of Mineral Property (Mining Act), as amended by Act No. 386 / 2005 Coll., on the Protection and Use of Mineral Property, reads:

"If both parties do not agree on the method of compensation, its amount shall be determined by an expert opinion. The amount of compensation thus calculated may not be reduced by a divestiture coefficient if its value is less than 1. ';

15. The proposal to abolish part of the provisions of Paragraph 37 (5) of the Mining Act was submitted by a group of 17 senators of the Senate of the Parliament of the Czech Republic and therefore in accordance with the conditions contained in the provisions of Paragraph 64 (1) (b) of the Law on the Constitutional Court. In the present case, it can therefore be concluded that the conditions of active legitimacy on the part of the applicant are met.

16. The Constitutional Court is required, in accordance with the provisions of Paragraph 68 (1) of the Law on the Constitutional Court in proceedings for the control of laws or other legislation, to assess whether the contested legislation has been adopted and issued in a constitutional manner.

17. From the content of the proposal, the content of the comments of the participants as well as the website of both chambers of the Parliament of the Czech Republic, it was found that the draft amendment to the Mining Act was submitted to the Chamber of Deputies by the Government of the Czech Republic. The original government proposal did not contain a text whose constitutional conformity is now being challenged. It was included in Mr Jaroslav Gongol's amendment. This amendment, designated as D3, was adopted by the Lower House during the discussion of the draft amendment to the Mining Act at the third reading on 24 June 2005 by a majority of 92 Members from 167 present. By Resolution 1753, the Chamber of Deputies also approved its own amendment to the Mining Act, by a majority of 160 Members from 167 present, no one voted against the proposal.

18. The Senate discussed the proposal referred to it on 28 November 2005 and in Resolution 181, most 57 of the 66 senators present spoke in favour of returning it to the Chamber of Deputies with amendments.

19. The Chamber of Deputies, which was returned, discussed the bill on 19 August 2005. The bill, as approved by the Senate, was not adopted, because it was voted in favour of the 176 Members present only 39, and 58. The Lower House then voted on the bill as referred to the Senate and was subsequently adopted by a majority of 171 Members of 176; No one voted against the proposal.

20. The President of the Republic signed the Act on 9 September 2005.

21. On 1 October 2005 the law was published in the Collection of Laws in the amount of 133 under the number 386 / 2005 Coll.

22. The Constitutional Court notes that the adoption and issue of the draft contested legal provision took place in the prescribed manner.

23. The following fact needs to be mentioned before the legal review. The Constitutional Court was awaiting the hearing and the decision on it in the light of the communication by the President of the Chamber of Deputies made in the context of the proposal that the Chamber of Deputies was currently discussing another government amendment to the Mining Act. An amendment was tabled to the proposal proposing the repeal of the same provisions of the Mining Act, which are now being examined by the Constitutional Court. The Constitutional Court has not informed the Lower House of further legislative developments. Since the wording of the relevant provisions of the Mining Act remained unchanged, the Constitutional Court has accepted its own review.

24. The subject of examination of constitutional conformity, the appellants made the above mentioned part of the provisions dealing with the question of compensation or the determination of the amount of mining damage.

25. The Mining Act regulates the issue of mining damage and their compensation in its ninth part in the provisions of § 36 et seq. The mine damage is defined in Section 36 (1) of the Mining Act as damage caused by material assets by the extraction and exploration of deposits when it is carried out by mining, mining, the setting up, securing and disposing of mining works and quarry, including their equipment, the rolling, sewage and sludge farms of organisations, the treatment and treatment of minerals carried out in connection with their conquest, as well as the damage caused by special interventions in the earth's crust. According to the second paragraph of the same provision, losses of surface and groundwater, a significant reduction in the yield of their resources and deterioration of their quality, if due to the activities referred to above, are considered as such. According to paragraph 3, for mining damage, in principle, except for the exceptions provided for, the organisation whose activities were caused by the damage is responsible; the organisation of the upper law means a legal or natural person who, in the course of his business, carries out the search, exploration or acquisition of exclusive bearings or other mining activities (§ 5a). Responsibility is designed here as objective, the organisation is libered only if it proves that the damage was caused by circumstances not originating in one of the activities defined in the first paragraph above. Paragraph 37a of the Mining Act then lays down the obligation of organisations to create financial reserves to ensure the settlement of mining damage and sets out the details of that obligation. The mother compensation is concentrated in § 37 of the Mining Act. First of all, its paragraph defines the treatment of mining damage as special to the general rules on compensation. The second paragraph deals with compensation for water loss, a substantial reduction in the yield or deterioration in its quality. Paragraph 3 deals with the replacement of effective preventive measures, paragraph 4 deals with cases and context of compensation only envisaged. According to the fifth paragraph (part of which is proposed for cancellation), the organisation is obliged to carry out provisional securing of the object, unless the construction or installation can be brought into its previous state because it is located in the building closure territory or in a territory where the effects of the activities referred to in § 36 will continue to be reflected in the long term. At the same time, the organisation is to agree with the owner of the building whether the compensation will be made in cash or by providing a replacement facility and the amount of compensation. If both parties do not agree on the method of compensation, its amount shall be determined by expert opinion. The amount of compensation thus calculated may not be reduced by a divestiture coefficient if its value is less than 1. The damage shall include movable property which becomes inapplicable as a result of the provision of the replacement object. The sixth paragraph allows participants to agree otherwise on compensation for mining damage, unless this is contrary to law, the seventh paragraph defines cases where the organisation does not provide compensation.

26. In the first place, the appellants of the legislation criticise the fact that it constitutes an inequality, both an inequality between the bodies of the upper activity of the injured and an inequality of the responsible organisations in relation to compensation bodies in other areas of human activity; another constitutional objection by the appellants concerning the principle of the same content of ownership is based on an unequal approach to the protection of property.

27. The Constitutional Court has already expressed the ideal and legal basis of the equality category in a number of its findings. In the judgment in Case 4 / 95 Pl. In the social process, these values serve only ideally typical categories of target ideas that cannot be completely covered with social reality and can only be achieved in an approximation way. Equality could therefore only become universal, every social form and phenomenon affecting the principle of social and historical development. However, in the context of this development, it can only be appealed to to within certain limits. There is no rule to determine what should be equal. In doing so, it is clear that egalitarian universalism would necessarily produce deeply dysfunctional social effects. Therefore, any equality in social events can only be an equality of "on the march," a development shape whose continuous oscillation in the area of continuity of tension between the pursuit of total equality and the pursuit of total inequality substitutes its own goal. Therefore, equality can only coincide with reality in certain basic data, otherwise, given the tendency of its extensive and intense increase, efforts to establish it may be at a threshold that can only be crossed at the cost of violating, for example, freedom. As one of the basic conditions of the social and historical process, equality is brought into a completely consistent relationship with freedom, with which it is subject to one another and which is based on both mutual support and conflict. Just as extreme egalitarian demands threaten the very essence of freedom, it is the opposite. Therefore, the Constitutional Court considers as an inadequate tendency to incorporate every effort to achieve equality into the framework of the establishment of fundamental human rights. If inequality is to affect fundamental human rights, it must achieve an intensity, at least in a certain way, which is at the very heart of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter, one of the political rights referred to in Article 17 et seq. While freedom is in substance given directly by the essence of the individual, equality usually requires "interlinks," a relation to other social values. Also from other decisions (e.g. sp. zn. The legal distinction in access to certain rights must not be an expression of pleasure, but it cannot be concluded that anyone must be granted any right. The Constitutional Court expressed itself on the question of equality in such a way that equality as a constitutional body has always been and is a category not abstract (absolute) but only relative, and cannot be understood mechanically and egalitarian. He emphasised, in accordance with the decision of the Constitutional Court of the CSFR, published under No 11 / 1992, the Reports of the resolutions and findings of the Constitutional Court of the CSFR (NB: the finding of the Constitutional Court of the CSFR sp. zn. Pl. ÚS 22 / 92), that it was for the State to decide, in order to ensure its functions, that it would provide a group with less benefits than others. However, it must not proceed freely here either. For the present case, it is not without meaning to mention the decision sp. zn. The fact that the legislator could do otherwise cannot, in itself, be regarded as an advantage or disadvantage for a certain group of citizens.

28. That excursion leads the Constitutional Court to conclude that certain legal arrangements which favour one group or category of persons over others cannot, in itself, be regarded as a violation of the principle of equality without further action. The legislature must have some scope to consider whether such preferential treatment will anchor. In doing so, it must ensure that the favourable approach is based on objective and reasonable grounds (a legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means to achieve it (legal advantage). In order to infringe the principle of equality, a number of conditions must be met: different entities which are in the same or comparable situation are treated differently without objective and reasonable reasons for the different approach being applied. Otherwise, it is for the State to decide to grant a group less benefits than others. It must only prove that this is in the public interest and for the public good. In this regard, the Constitutional Court has also now examined the contested part of the Mining Act.

29. The above shows the entry for the own assessment of the legal text. The Constitutional Court had to establish whether the contested legislation favoured certain entities at all. And if so, whether this based inequality is a constitutionally justified attempt to balance the legal status of persons affected by the negative effects of specific human activity, or is merely a factually unfounded privilege of a group of property owners. In other words, whether there is a legitimate reason for such a legislative solution and whether it complies with the principle of proportionality. Relatively separately, the two points affected must be assessed according to the indicated criteria; requiring expert valuation of the damaged item as well as exclusion of the use of the divestiture coefficient.

30. That part of the proposal, which goes against the obligation to determine the amount of compensation, has been assessed by the Constitutional Court as unfounded if the parties do not consider the method of compensation.

31. It did not find that this rule in any way favoured the category of persons damaged by mining activities or by entrepreneurs responsible for such damage. The reservations of the appellants who speak of 'fundamental intervention in the principle of equality' are certainly not appropriate. The legislation in question responds to a situation where the mining organisation has failed to agree with the injured owner. From a legal point of view, this means a dispute which will normally be called upon to decide a general court. The upper law merely regulates or complements the general rules on legal proceedings in such a way that an expert opinion is required to determine the amount of damage. The valuation of the damaged case by the expert, note bene in relation to the property, is, in principle, the most objective procedure, conscious of the facts, expertise and experience of the expert. Moreover, by a generally acceptable or even normal procedure, even for disputes over damages outside the field of upper law; any party to proceedings may make an appropriate evidentiary application in order to determine the amount of the damage, whether the dispute has caused damage to the mine or any other activity. In the course of the proceedings, the disgruntled participant may argue, submit opposition expert opinions or request the processing of a review expert opinion. Those rules shall apply to any procedure in which the amount of damage suffered must be determined. The fact that compensation must be determined by the expert does not generally shift its amount upwards or downwards. It's just a more precise and authoritative quantification. The adjustment of the rules under which the level of compensation is investigated does not affect the scope or conditions of the protection of property rights. The procedure provided for is not more favourable to persons damaged by the upper activity and to persons harmed by other than mining activity. There is therefore no reason to disturb it.

32. The Constitutional Court is, of course, aware of the impartiality of the division in question, which blends the method of compensation with its size; Instead of the failure to agree on the method of compensation, that is to say, whether in that case natural restitution or cash compensation will take precedence, the contested provision formalises equal rules of procedure for determining the amount of damage. Of course, stylistic inconsistencies or transgressions against the rules of logic are not and cannot be a derogatory reason. It should be recalled here that the Constitutional Court, in the context of the abstract control of standards, respects the doctrine of self-restraint, namely the maximum effort to minimise interference in the activities of other public authorities, not including legislative power. This is also reflected in highlighting the primacy of constitutionally conformal interpretation of the law prior to its deregation. Thus, even if the text of the law also appears problematic to the Constitutional Court, it tries to find an interpretative alternative to the constitutional order before it is disturbed. However, the indeterminity of the law in itself is not sufficient to conclude on its inconstitutionality, as is apparent from the finding of the sp. zn. Here, the Constitutional Court stated that "the indeterminity of one of the provisions of the law must be regarded as contradictory to the requirement of legal certainty and thus also to the rule of law (Article 1 of the Constitution of the Czech Republic) only if the intensity of that insecurity excludes the possibility of determining the normative content of that provision by means of standard interpretative procedures." In this case, however, the interpretation is clear and there is no problem in the context of the entire provision of Section 37 (5) of the Mining Act to overcome the legislative inconsistency by interpretation. In fact, even if this were not expressly provided for, the general method of compensation would be applied, which is in line with the general civil law (§ 442 (2) of the Civil Code in conjunction with § 37 (1) of the Mining Act). However, even if the second sentence of Paragraph 37 (5) of the Mining Act appeared to be redundant to the Constitutional Court in this respect, in accordance with the legal principle of superfluum non-nocet, it would not have been able to cancel it, since the excess of the provision of the legislation in itself is not a legal reason for its deregation (cf. sp. zn.

33. The same, as described above, criteria were also applied by the Constitutional Court in the assessment of constitutional conformity by rules excluding, in specified cases, the application of a divestiture coefficient of less than one value.

34. The coefficient of sales is the institute used in the field of valuation. The valuation methods for cases, rights and other assets and services are governed by the law on the valuation of assets. The appellants' argument that this standard on the assessment of damage under the contested provision cannot be applied because it does not contain a direct reference to it does not stand. The first sentence of Paragraph 1 (1) of the Law on the valuation of assets merely states that it regulates the methods of valuation of assets referred to therein "for the purposes laid down by specific provisions', thus requiring that a specific law contains a direct (explicit) reference to the law on the valuation of assets, but may contain an indirect (implicit) reference, which can be inferred from the classification of the contested provision. Moreover, the law contains valuation instruments which are undoubtedly applicable in the legal relations under consideration. Cases, rights and other assets and services are valued at a normal price, unless the law on valuation of assets provides otherwise (Paragraph 2 (1)). These methods are cost, return, comparison and other listed methods (Section 2 (3)). Unless otherwise specified, the construction or part thereof shall be valued in a cost, revenue or comparison manner or a combination thereof, the use of which for each type of construction is provided for in the Decree (§ 4 (1)). In assessing the construction in a cost-effective manner, the effects on the level and relation of the market price of the buildings are also taken into account in the specified prices and procedures (Section 5 (2)). The mathematical expression of these influences is the coefficient, among other things, of the selling coefficient, with which Decree No. 540 / 2002 Coll., implementing certain provisions of Act No. 151 / 1997 Coll., on the valuation of assets and on the amendment of certain laws (Law on the valuation of assets) works; This decree characterises it in Annex 36 by expressing the relationship between the prices of real estate negotiated under the purchase contracts and their prices established under the Order, adjusted to the same price level. The same annex shall contain a table where the sales coefficients are allocated to the buildings according to their location within the territory of the Republic and the population of the municipality where they are located.

35. It follows that, if the legislature operates in the contested provision with the term "divestiture coefficient ', the latter is clearly and clearly defined in the aforementioned implementing decree, with its incorporation in the legal order supporting the law on the valuation of assets itself. The legislative and technical reservations of the appellants (the contested legislation does not use generally known terms) cannot therefore be identified.

36. On the other hand, it is true that, contrary to the above-mentioned rule of determining the amount of compensation here, the establishment of an inequality between the owners of the damaged property cannot be doubted. However, the Constitutional Court considers that the reason which led the legislator to this disproportion is legitimate. Clearly, the legislator's attempt was to strengthen the position of the owners of the property concerned vis-à-vis the mining organisations, which are undoubtedly risky and hostile to the real estate. As a result of the legislative regulation, the advantage of a selected category of damaged owners is, however, a category which, according to the legislator, is threatened by the performance of a specific mining activity more or more immediate than other owners.

37. In the view of the Constitutional Court, it is important that the contested provision has established a situation in which the level of guarantee of the rights of owners of property located in the territory of the building closure and in the territories where the effects of mining activities will continue to materialise in the future, in some respects, without any negative impact on the status of damaged owners of others. On the contrary, the Constitutional Court would consider it inadmissible if the general standard of the guarantee of ownership were to be reduced.

38. The Constitutional Court declares itself on European legal culture and its constitutional traditions. Constitutional rules, in particular the Charter of Fundamental Rights and Freedoms, interpret in a spirit of general principles of law, which are not explicitly included in the law, but are fully applied in European legal culture. One of these unwritten constitutional rules applied by the Constitutional Court in its case-law is the principle of proportionality (see, for example, the find sp. zn. Such an approach is reflected in the interpretation of individual legislation, in the present case the contested provision of the Mining Act. This means assessing the appropriateness, necessity and balance of the adjustment which distorts the level of ownership protection. The contested legislation correctly reflects the specificities of mining activity and its impact on the sphere of the rights of other entities. It seems fair that persons who have been affected by the negative effects of mining activity should be able either to obtain alternative compensation or to obtain full redress for the damaged cause. Nor can it be forgotten that the potential affected by the mining activity is already reflected in the sellability coefficient itself. The owners of assets located in the relevant territories would thus be damaged twice by mining entrepreneurs. The Constitutional Court, having considered these factors, concluded that the legal advantage of limiting the applicability of the divestiture coefficient is proportional to the objective pursued, namely to strengthen the legal position of operators damaged by mining activities, which are moreover in a weaker position vis-à-vis operators.

39. Mutatis mutandis also applies to organisations (within the meaning of § 5a of the Mining Act) liable for compensation. In addition to the factors mentioned above, it is also necessary to take into account that the mining activities listed in Section 36 of the Mining Act, which cause mining damage, are already carried out with an entrepreneurial intention and are intended exclusively for profit. As such, there is no public interest in their implementation which would, to some extent, legitimise the interference with the fundamental rights of those entities which do not benefit from those activities. In this respect, the comparison of the applicants with the compensation of the owners of the real estate affected by the construction of industrial zones, liner structures and similar facilities, where it is either the so-called interest of the company (e.g. for road construction) or the interest of an unspecified circle of persons - to the public (e.g. the inhabitants of the municipality).

40. The Constitutional Court also rejects the fact that the provisions of the Mining Act in its contested part interfere with the exercise of judicial authority in the sense that the obligation to require an expert opinion would be contrary to the rules of the fair process, as guaranteed by Article 36 of the Charter. In the Czech legal system, the so-called legal accompanying theory does not apply, requiring a certain fact to be proved precisely by a certain kind of evidence. On the contrary, under Section 125 of the Civil Code (hereinafter referred to as "the" s. '), the general principle is that "all means of determining the state of the case can be used for proof'. According to § 132 o. s." The evidence is assessed by the Court on its own account, each evidence individually and all evidence in their context; taking careful account of all that has become apparent during the proceedings, including what has been stated by the parties. '; Although the appellant of the contested provision operates with an expert's opinion, thus drawing the attention of the parties in the out-of-court proceedings to the device, it is clear, however, in the event of a legal dispute, that, although the court may also be expected to apply the device, it is undoubtedly not limited to him, given the above mentioned. On the other hand, however, the Court of First Instance does not in any way restrict the possibility of carrying out further evidence and of assessing all the evidence it has carried out, including the expert opinion, freely. Simply put, although this provision requires the court to carry out this proof, it does not lay down any conditions for assessing it. It therefore does not interfere with the free assessment of the evidence and does not prevent the application of the provisions of Paragraph 136 of the Civil Code in cases of proven speculative abuse of the contested legislation.

41. As regards the relationship of the expert opinion to the guarantee of equal access to the parties, reference can then be made to the reasons set out in recital 31.

42. In addition, the Constitutional Court states that the right to a fair trial is a structured right, involving several separate subjective fundamental rights, formulated both specifically (for example, the public and the speed of the proceedings or an independent and impartial court) and in general (in particular "the right to a fair hearing '). The right to a fair hearing is a concept of indefinite, open and strictly unrestricted. Its content includes not only all the other guarantees in the Charter explicitly stated but also those which are not explicitly mentioned in it, but were drawn from the caselaw. Thus, principles which are an integral part of the concept of a fair process have been defined in the relation (not only) to evidence. These are above all principles of equality of arms and complementarity. This means that the dispute takes place through a contradictory debate, where the parties to the dispute must have" equal weapons, "i.e. the same ability to speak and defend" their "truth. It does not necessarily mean absolute, mathematical equality; the concept is relative, in particular in the sense that it cannot completely wipe out the difference in the procedural and, in particular, the factual position of the parties resulting from their different possibilities. Contrary to the principle of equality of the parties to the proceedings in the ordinary course of a constitutional legal question as to who is to bear the burden of proof in the civil process or what means of proof are to be examined, the facts which are proved are not expressly regulated. The evidence itself, although essential, is not the most important part of the proceedings, is not regulated at constitutional level. It does not, of course, stand" outside "of constitutional law, but its regulation is an entirely exclusive matter of the law. Therefore, if the legislator directs the evidence for a particular range of disputes by imposing an obligation on one of the facts to be established by a specific means of evidence, the equality of arms between participants is not affected. After all, the legislator has chosen the same path in, for example, legal eligibility proceedings (although not disputed); Paragraph 187 (3) of the Civil Code provides for an obligation to hear the condition of the investigator.

43. It is also unacceptable that the upper law, in the contested form, interferes inadvertently with the exercise of judicial authority. Here, the Constitutional Court adds to the considerations raised above that the legislator is competent to establish the rules of procedure, which corresponds to the principle of division of power (Article 2 (1) of the Constitution of the Czech Republic). It is not, therefore, the power of court to determine which rules will govern the process. The appellants' objection, as is envisaged in this regard, would logically lead to the conclusion that any procedural rules unduly interfere with the exercise of judicial authority.

44. The principle of negotiation does not apply in the abstract control of standards, and the Constitutional Court is therefore not bound by the grounds for the proposal, but is, on the contrary, obliged to examine the contested provision also from a point of view of compliance with constitutional law other than that for which the appellants challenge it. However, he did not find any violations of any other rules.

45. Those reasons led the Constitutional Court to conclude that the proposal under examination must be rejected in full under Paragraph 70 (2) of the Constitutional Court Act.