The Constitutional Court found no 282 / 2017 Coll.
The Constitutional Court found of 27 June 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
04.09.2017
282
FIND
The Constitutional Court
On behalf of the Republic
On 27 June 2017, the Constitutional Court decided under sp. zn. Pl. ÚS 21 / 16 in a plenary composed of Vice-President of the Court of Justice of Milady Tomková (Judge of the Rapporteur) and Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Sukánek, Kateřina Šimáčková, Vojtěch Šimíček, David Uhlíř and Jiří Zemánek, on the draft of the Senate of the Parliament of the Czech Republic, represented by Mgr. Jiří Kuchera, a lawyer, with the President of the Parliament of the Czech Republic, as parties to the proceedings and the Government of the Czech Republic,
as follows:
I. The application for annulment of § 24 paragraphs 1, 2 and 4 of Act No. 13 / 1997 Coll., on roads, as amended, is rejected.
II. The remainder is rejected.
Reasons
Subject matter
1. By a proposal submitted to the Constitutional Court on 28 April 2016, a group of 18 Senators of the Parliament of the Czech Republic (hereinafter referred to as the "promoters") proposed to the Constitutional Court the annulment of Article 24 of Act No. 13 / 1997 Coll., on roads, as amended (hereinafter referred to as the "Road Act"). The proposal was accompanied by a request for priority consideration.
Arguments of the applicants
2. The appellants came to the belief that the contested provision was unconstitutional in connection with the visit of the 7th President of the People's Republic of China, the Secretary-General of the Central Committee of the Communist Party of China and the President of the Central Military Commission of the Communist Party of China, Xi Jinping, on 29 March 2016. The police of the Czech Republic did not allow the participants of properly announced gatherings to enter the premises of Hradčanská Square. According to the appellants, this intervention was carried out by a regulation of closures within the meaning of Section 24 of the Road Act, and the alleged non-constitutionality of this provision thus seeks to demonstrate how the administrative body (Prague Capital, Prague Capital, Prague Capital, Transport Agencies Department) was applied in the present case. In this context, the appellants point to the absence of a legitimate reason for the issue of the closure, the procedural misconduct of the administrative authority in the context of the administrative procedure, or the fact that the issue of the closure was circumventing Act No. 84 / 1990 Coll., on the right of assembly, as amended.
3. In addition to these objections against a specific administrative decision, the appellants also point to the unconstitutional nature of Article 24 of the Road Law itself. As the appellants argue, the administrative act authorising closure has the characteristics of a measure of a general nature, but nevertheless the law confers a form of decision on that act, thereby limiting the possibilities of protecting against interference with the rights which it may cause.
4. The non-constitutionality of the contested provision is further seen in the absence of an adjustment to the limits of administrative discretion when deciding on the authorisation of closure. In particular, the appellants point out that the law does not lay down the admissible grounds for closure, the extent to which it may be ordered or the range of applicants authorised to apply for closure. The appellants consider it insufficient if the limits of administrative decision-making are laid down in general principles, since they can be interpreted too extensively.
5. The appellants accentuate that the principle of proportionality (see Section 2 (3) of Act No. 500 / 2004 Coll., Administrative Regulation) directly refers to the conditions laid down by the law on the basis of which the administrative authority can intervene in the rights of persons, of which it is established that the law must lay down the conditions of intervention and the principle of proportionality then limits that intervention to the necessary extent. However, without the conditions laid down by law, the principles themselves are not sufficient for the operation of the administrative body, and it is therefore necessary that the legal regulation of the limits for the issue of the closure be contained directly in Section 24 of the Road Act, which merely allows the requirement of the enumerance of public law in accordance with Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') and Article 2 (3) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution').
6. Under the current legislation, it is alleged that the authorisation of closure may be decided at any time on the basis of any conceivable reason, which may make the contested provision an instrument of repression. According to the appellants, the anti-constitutional nature of the contested legislation is highlighted by an implementing decree on the Road Transport Act (Decree of the Ministry of Transport and Communications of 23 April 1997 No. 104 / 1997 Coll., implementing the Road Transport Act, as amended, hereinafter referred to as "Decree No. 104 / 1997 Coll. '), which does not state the obligation to justify such a decision in a qualified manner between the formalities of the conclusion decision.
7. In addition, the applicants argue the principle of the presumption of the accuracy of legal acts, which led the police of the Czech Republic to be bound by a decision made on 29 March 2016, although illegal and unconstitutional. The appeals are therefore ineffective in such a case, since at the time of the decision on the appeal or administrative action, the intervention will already be irreparably completed.
8. According to the appellants, the contested provision will not stand even in the proportionality test. In the context of the proposal to repeal Article 24 of the Road Act, it is necessary to compare the possibilities of the administrative office to allow the closure of the infrastructure, in particular, with freedom of movement and the right of assembly. The contested provision is allegedly not going to stand in the first step of the proportionality test, which is to be a suitability test, given that it does not provide grounds for ordering closure, that is to say, the objective which should be to protect the fundamental right or the public good. If the aim of the closure cannot be established, or what public interest was pursued by the closure, it is all the more impossible to determine why this interest was more important than the exercise of the constitutionally guaranteed rights of citizens. The problem is not only to apply the provisions by the administrative authorities, but to ensure that the administrative authority cannot know what is the legitimate reason for the conclusion and how to measure the rights in question. Even if, for example, in the case of a visit by foreign statesmen for a legitimate reason of closure, the Road Authority is allegedly unable to adequately assess the safety risks, which is why the Road Transport Act should provide for an obligation to take a decision on the basis of a binding opinion from the authority which could properly assess the issue.
9. According to the appellants, the contested legislation does not correspond to the principle of necessity either, since it does not provide for a subsidiarity rule which would lay the ground for complete closure only as an ultima ratio, unless the closure of a partial or other device under the Road Law is sufficient.
10. Finally, Paragraph 24 of the Road Law, according to the applicants, will not stand up to the proportionality test in the narrow sense, as the administrative body does not have the legal basis for considering the limits for the regulation of closures in situations where there is a conflict with fundamental rights and freedoms.
11. The appellants refer in this connection to the judgment of the European Court of Human Rights in Case "M. R. Andersson vs Sweden" (the judgment in Margaret and Roger Andersson v Sweden of 25.2.1992, No 12963 / 87), from which they claim that, for administrative discretion, there must always be certain limits under the law, which are also related to the requirement of predictability of law. If there were no limit, the applicants would not, according to the applicants, be able to regulate their behaviour in a certain way and anticipate the consequences of their behaviour.
12. In conclusion, the appellants point out the long-term practice of applying the contested provision where the administrative authorities allegedly comply with the requests for closure mechanically. The applicants mention the closures that were ordered on the occasion of the 2000 International Monetary Fund meeting, the 2002 North Atlantic Treaty Organisation, the 2007 visit of the 43rd President of the United States of America, George W. Bush, or the 2004 visit of the 44th President of the United States of America, Barack Obama, and the 3rd President of the Russian Federation, Dmitri Medvedev, in 2010. It is also referred to the 2014 decision of the Road Authority, when the administrative authority closed Hradčanská Square for application of Sections 19 (5) and (6) of the Road Act. In addition, the appellants note that the administrative authorities do not treat the assemblies as parties to the proceedings, which is allegedly contrary to the finding of the Constitutional Court sp. zn. II. ÚS 459 / 04 of 18.8.2005 (N 161 / 38 SbNU 285).
13. The appellants have stated that it is highly likely that violations of rights will occur through Article 24 of the Road Law in the near future, which could constitute an attack on the very essence of a democratic rule of law.
Proceedings before the Constitutional Court
14. The Constitutional Court called on the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as parties to the proceedings to comment on the proposal. In accordance with Article 69 (2) and (3) of Act 182 / 1993 Coll., on the Constitutional Court, as amended, the proposal was also sent to the Government of the Czech Republic and to the Ombudsman, with the possibility that they may inform the Constitutional Court that they are intervening.
15. The Chamber of Deputies, in its observations of 1 June 2016, summarised the history of the adoption of Act No. 13 / 1997 Coll., on roads, the proposal of which was submitted by the Government of the Chamber of Deputies on 16 August 1996. The law was passed by the necessary majority of Members of the Chamber of Deputies (pursuant to the Chamber of Deputies, 158 Members voted in favour of the Bill 80, against 47, with a vote of 350), signed by the relevant constitutional authorities and duly declared. Finally, the Chamber of Deputies expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution and our rule of law.
16. In its observations of 27 May 2016, the Senate stated that, following the referral of the draft law on roads, the Senate's Organising Committee ordered the proposal to be discussed by the Committee on Economic, Agriculture and Transport (Guarantee Committee) and the Constitutional-Legal Committee. The Guarantee Committee recommended the Senate not to deal with the bill. The Constitutional Legal Committee recommended approving the proposal. The Senate approved the bill on 23 January 1997 in a vote in favour of all 59 senators present. The Senate's observations further describe the history of the adoption of three amendments [Act No. 80 / 2006 Coll., amending Act No. 13 / 1997 Coll., on Road, as amended, and other related laws; Act No. 196 / 2012 Coll., amending Act No. 13 / 1997 Coll., on Road, as amended, and certain other laws; and Act No. 268 / 2015 Coll., amending Act No. 13 / 1997 Coll., on Road, as amended, Act No. 361 / 2000 Coll., on Road Traffic and on Amendments to Certain Acts (Road Traffic Act), as amended, and other related laws). There was no debate on the shortcomings raised in the provisions of the Road Transport Act mentioned in the proposal for the repeal of the Act during the discussion of the Bill and its three amendments.
17. The Government of 31 May 2016 It informed the Constitutional Court that it was intervening. In its opening statement of 24 June 2016, it then pointed out the specific nature of the proposal, which shows, for the most part, the characteristics of an individual constitutional complaint, and only its final part can be formally described as a proposal for the annulment of the law. For these reasons, the Government objected to the lack of active legitimacy of the appellants to lodge a constitutional complaint and proposed that the Constitutional Court reject the draft of a group of senators in at least part of it as an application made by a person manifestly unjustified under the provisions of § 43 (1) (c) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 77 / 1998 Coll.
18. The nature and purpose of the contested provision are seen by the Government in the need to regulate the possibility of restricting the general use of infrastructure. This can be due both to a large extent of special use (e.g. construction work on adjacent properties) and to other activities or events (maintenance of infrastructure, renewal of horizontal road signs, accidents, landslides, etc.). Act No. 13 / 1997 Coll., on roads, in Paragraph 24 (1) provides for the strongest interference in the road's own function.
19. The Government does not consider that the provision in question is in conflict with Article 4 (2) and (4) of the Charter against the appellants. Circumstances of situations which may be the basis for a request for a transport closure result, by indicative reference, from Article 24 (8) of Act No. 13 / 1997 Coll., on Road, as amended by Act No. 268 / 2015 Coll. According to the Government, it is not appropriate for the law to define taxiously the cases where the closure can be ordered, since the reasons for the restriction of operation can (and in practice are) be very variable. Similarly, it is, according to the Government, appropriate to lay down only general principles of proportionality and proportionality, since the law cannot impose excessive limits on the number of different situations of different importance and specific circumstances in advance; it is a matter of administrative discretion. In the Government's view, it is not possible to restrict or restrict the range of applicants who are allowed to seek authorisation for traffic locks, since once again, it is not possible to predict which entity or group of persons would have a legitimate interest in taking a traffic limitation decision. In this context, the Government recalled that the wide scope of administrative discretion is not exceptional in the area of administrative law, but unlimited discretion does not exist even in the case of benevolent legislation, with the use of administrative discretion being limited by doctrine and case law. For this reason, too, the reference to the case law of the European Court of Human Rights is not justified, because it also states that "law" means a case law which is very rich in conflict of rights and the use of administrative discretion.
20. In addition, according to Article 24 (4) of Act No. 13 / 1997 Coll., on roads, when making decisions, the competent road authority shall ensure that the closure is limited to the shortest possible time, the detour has been properly technically secured and satisfactory from the point of view of operation and that access to neighbouring properties is granted. The administrative authority may also specify in the decision the conditions under which the authorisation granted may be restricted or revoked. The administrative authority should also insist that the closure is only partial and not complete if it is possible to fulfil the reason for the closure. Therefore, the Road Authority must treat the clearance of the closure sensitively and weigh the often conflicting interests of individual participants.
21. Paragraph 24 (4) of Act No. 13 / 1997 Coll., on roads, in the view of the Government, provides sufficient criteria for the use of administrative discretion by the Road Authority, which should also ensure that the basic principles of administrative activity are respected in accordance with § 2 to 8 of the Administrative Code, which are based on constitutional principles (in particular the principle of legality under Article 2 (3) of the Constitution and Article 2 (2) of the Charter). If the appellants consider that the administrative authorities generally approach applications only mechanically, the Government considers that this is an maladministration which should be primarily addressed by increased supervisory and, where appropriate, methodological activities, but not by the repeal of the provision in question.
22. As regards the form of decision-making on the conclusion, the Government recalls that Article 24 of the Road Law was adopted at a time when, in the legal order, the Institute of General Measures had not been established, so the legislator chose the form of the decision. The Government does not consider that this form is contradictory to the Constitution, nor does it consider that it is necessary to extend the scope of the parties to the closure proceedings to the persons concerned, as the applicants believe. The parties are clearly defined in Section 24 (2) of the Road Law, the general provisions on participation in administrative proceedings are not applicable here according to the case law of the Supreme Administrative Court. The opposite interpretation, i.e. that the parties to the proceedings for the closure of communications are all persons who may be directly affected by the decision in their rights or obligations within the meaning of Article 27 (2) of the Administrative Regulation, would in some cases lead to absurd conclusions (for example, when closing busy streets, the number of participants could be disproportionately high).
23. The Government also draws attention to the fact that the majority of the closures are accompanied by a decision to authorise the special use of infrastructure under Section 25 of the Road Act, since the activities described in this provision, which are outside the scope of general use, can only be carried out when the traffic on the road is restricted. If Paragraph 24 of the Road Act were to be repealed, the administrative authority would lose the possibility of temporarily limiting traffic to infrastructure, and as a result it would also not be possible to implement specific use due to maintenance and repair of infrastructure.
24. In conclusion, the Government expresses concern that, if the Constitutional Court had accepted the annulment of the contested provision, the majority of transport, civil engineering and other line construction structures would have been stopped or impossible to implement them. Similarly, it would no longer be possible to organise any sporting events such as cycling events, marathons, rallys, etc., as these can often only be held for road closures. Since there are many reasons for the possible closure of the infrastructure and cannot be generalized, it is also not possible, in the view of the Government, to specify the provisions of Section 24 of the Road Transport Act in this sense, since it is never possible to obtain a list of legitimate reasons for the closure of the infrastructure. Therefore, the proper exercise of administrative discretion by the relevant administrative authorities will always be important in this respect. The administrative discretion shall always take place within the limits laid down in the constitutional order, the relevant legal standard or the fundamental principles of the law governing the decisions of the administrative authorities.
25. Finally, the Government takes the view that, in view of the possibility of a constitutional interpretation of the contested provision, it takes precedence over its depreciation. In the light of the foregoing, it considers that a constitutional interpretation of the contested provision is possible and proposes that the Constitutional Court reject the application for annulment of Paragraph 24 of the Road Law.
26. The Ombudsman informed the Constitutional Court on 18 May 2016 that he would not intervene.
27. The comments received were sent to the appellants who did not make use of the replica.
28. The Constitutional Court did not find the case to be urgent, therefore it did not act pursuant to Article 39 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., for the same reasons as led it to partial refusal and partial rejection of the application for annulment of the contested provision, as described below.
29. Since the Constitutional Court did not expect further clarification of the case from the oral hearing, it waived it under § 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.
Derogation of the contested provision
30. Paragraph 24 of Act No. 13 / 1997 Coll., on Road, as amended, reads:
Restrictions on general use by closures and detour
(1) Operation on motorways, roads, local roads and publicly available special purpose roads may be partially or completely closed or a detour may be ordered. No one shall be entitled to compensation for any losses incurred by him as a result of the closure or detour.
(2) The closure and detour shall be decided by the competent road administration at the request of the person in whose interest the closure is to take place. The competent Road Administration Office shall discuss the application
(a) the owner of the infrastructure to be closed and the owner of the infrastructure to be detour;
(b) with a municipality in whose built-up territory a detour is to be authorised,
(c) with the rail operator, if it is the road communication on which the runway is located;
(d) with the Police of the Czech Republic, if the round route is to lead by road, local communication or publicly accessible purpose communication.
(3) Where the closure of a geographical area by several road administrations is concerned, it shall be for the Road Administration Office, whose territorial area is the longest part of the closure; other road administrations are in such cases the administrative authorities concerned.
(4) When making decisions, the competent road administration shall ensure that the closure is always limited to the shortest possible time, the detour is properly technically secured and satisfactory from the point of view of operation and that access to adjacent properties is granted. The Road Administration may specify in the Decision the conditions under which the authorisation granted may be restricted or revoked. The appeal against this decision shall not have suspensory effect.
(5) The competent administrative authority of the road shall notify the decision without delay:
(a) the Czech Fire Department,
(b) to the relevant health-care emergency service providers;
(c) hauliers in regular passenger services, if they are road hauliers on which they operate and are known to the Road Administration,
(d) all road administrations which permit the transport of particularly heavy or large objects, if the infrastructure used for this type of transport is closed.
e) The Ministry of the Interior, if on motorways, in other cases the Police of the Czech Republic,
(f) the electronic toll system operator, if it is a toll infrastructure.
(6) The owner of the motorway, road, local road or public-access special-purpose road on which a detour is to be conducted is obliged to suffer free of charge the traffic transferred to it from the closed infrastructure. Any adjustments to the road by-pass necessary for the purpose of detour and compensation for any subsequent damage shall be provided for in the conditions of the closure and detour decision and shall be made on the costs of the applicant for detour and detour.
(7) The closing and detour must be marked as prescribed. The marking shall be provided by the applicant for closure and detour on his load and shall be responsible for his condition for the duration of the closure and detour.
(8) In the event of a danger of default (natural disasters, road accidents, collapse or damage to objects), the relevant part of the infrastructure must be immediately closed and marked by its owner or administrator, at least in a provisional manner, if the performance of the infrastructure management is ensured through the AIFM. In the event of an accident in the civil engineering network or other management, the relevant part of the infrastructure shall be immediately closed and at least provisionally marked by the owner of the civil engineering network or of that management and shall immediately notify the owner of the infrastructure or of the AIFM if the performance of the infrastructure management is ensured through the AIFM. This is without prejudice to Paragraph 36 (6). The infrastructure owner or administrator, where the performance of the infrastructure management is ensured through the AIFM, shall notify the closure and designation of the part of the infrastructure manager responsible for establishing the local and transitional road traffic arrangements immediately after the closure and designation has been made or has become aware of it.
(9) The implementing act shall lay down the details of the application for authorisation of the closure and the regulation of the detour and the particulars of the decision in these cases. ';
Terms and conditions of the formal assessment of the proposal
31. The Constitutional Court notes that it is competent to discuss the application in question, which was submitted to that effect by an authorised appellant [Paragraph 64 (1) (b) of the Law on the Constitutional Court], is admissible and fulfils all the statutory requirements. It could therefore proceed to a substantive review of the contested provision.
32. However, the Constitutional Court notes that, in the proceedings under Article 87 (1) (a) of the Constitution, it assesses the compliance of the contested laws with the constitutional order. It is not for the Constitutional Court to examine an individual decision in which the contested provision has been used by a court or administrative authority. However, even with regard to the petition lodged by the Constitutional Court, the objections raised by the appellants to the errors committed by the administrative authority in the adoption of Decision No MHMP-472195 / 2016 / O4 / Ma of 21 March 2016 were only perceived by the Constitutional Court as an argument strengthening the application for annulment of the contested law, not as a separate application for annulment of the said administrative decision, which would have to be decided [rejected under Paragraph 43 (1) (c) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 77 / 1998 Coll., as a proposal made by someone manifestly unjustified]. This does not change the fact that it is not for the Constitutional Court to assess specific cases in this procedure. It shall be up to the superior administrative authorities or, where appropriate, the administrative courts to review the decisions of the Road Administration in the event of appeals or administrative actions.
Review of the procedure for the adoption of the contested provision
33. The Constitutional Court, in accordance with Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first dealt with whether the contested provision was adopted within the limits of the Constitution laid down by competence and by the constitutional procedure. It is clear from the statements made by both chambers of Parliament and the stenoprotocols available that the condition of constitutional conformity of the legislative process has been met, which the appellants do not even question.
34. It must be added, however, that, contrary to the observations made by the Chamber of Deputies in the stenoprotocol of the 7th meeting of the Chamber of Deputies of 20 December 1996, it follows that the draft of the contested law was approved by the Chamber of Deputies by Voting No 349, with 113 Members in favour of approval, against which 15 Members were opposed. Vote 350, which was mentioned in the Chamber of Deputies, voted on the procedural proposal of Mr JUDr. Vojtěch Filip to close the meeting. Indeed, 80 Members voted in favour of this proposal, 47 against it.
Substantial assessment of the proposal
35. The Road Act regulates the infrastructure regime. These are defined in Section 2 (1) of the Law in question as road and other vehicles and pedestrians, including fixed installations necessary to ensure this use and its safety. Paragraph 19 (1) of Act No 13 / 1997 Coll. provides that, within the limits of the special provisions governing road traffic and under the conditions laid down by that Act, the infrastructure is subject to a general use regime.
36. The general use is free use of the infrastructure for the normal purposes for which it is intended, pursuant to Paragraph 19 (1). In particular, the Constitutional Court took a close look at the findings of the Pl. ÚS 21 / 02 of 22.3.2005 (N 59 / 36 SbNU 631; 211 / 2005 Coll.), in which it noted, inter alia, that the current legal theory and practice understood the use of generally accessible material goods by an unlimited number of users. This must be a use which corresponds to the nature and purpose of the good and which does not exclude from similar use of the same good other than potential users. Where certain uses exceed those limits and exclude or restrict the use of the good by another user, such use shall be regarded as being specific, if not even illegal, in use. Thus, two types of public use are distinguished, namely general use and specific use. Both types of use are of a public nature, the owner's will is of no importance here. The general use does not require any decision of the administrative authority, so no authorisation is required for it, the user range is unlimited. The user may be anyone who fulfils the conditions set. On the other hand, the specific use arises on the basis of an administrative decision and only for users identified in that decision.
37. Paragraph 19 (1) of Act No. 13 / 1997 Coll., on Road, therefore establishes a public right to use infrastructure which may not only be owned by the State, the regions and municipalities but also by private legal or natural persons. The contested provision of Paragraph 24 of the Road Act allows the administrative authority (and, in exceptional cases, the owner of the road) to temporarily restrict the general use of infrastructure by partial or full closure of the road.
38. The Constitutional Court is not bound by the justification of the proposal when assessing the compliance of the law with the constitutional order. However, under abstract control of standards, it is usually virtually impossible to penalise and consider all conceivable situations in which the provision under consideration could be relevant from a constitutional point of view. It is, therefore, often precisely the argument contained in the proposal that can serve the Constitutional Court to identify the problems that need to be taken into account primarily when assessing the law. It is clear from the proposal under consideration that the applicants do not consider it an unconstitutional authorisation to close down the infrastructure itself partially or completely, but in particular the conditions (or their absence) under which the administrative authority can do so, with reference to Article 2 (3) of the Constitution and Article 2 (2) of the Charter. Consequently, the appellants also see a contradiction between the contested provision and Articles 4 (2) and (4) and 19 of the Charter.
39. Nor does the Constitutional Court have any doubts as to the constitutional conformity of the administrative authority with the possibility, under certain circumstances, to temporarily close the infrastructure partially or completely. After all, the possibility of closing the infrastructure is essentially a prerequisite for such communication to be open to the public in the long term, as the closure takes place typically, for example, in the authorisation of the specific use of the communication consisting of carrying out the necessary construction work on communication within the meaning of Section 25 (6) (c) of the Road Act.
40. The Constitutional Court therefore focused in particular on the compliance of the contested provision with Article 2 (2) of the Charter and Article 2 (3) of the Constitution and, in the light of the appellants' arguments, also addressed the alleged contravention of Article 19 of the Charter. In view of the fact that the appellants see constitutional deficits of the contested provision even in the legal form of closure and also the involvement in administrative proceedings, the Constitutional Court also addressed these issues, despite the fact that part of those objections were contained in the part of the proposal in which the appellants opposed a specific administrative decision rather than the contested provision as such. It follows from the constitutional review thus defined that the Constitutional Court did not deal more closely with paragraphs 3, 5, 6, 7, 8 and 9 of the contested provision which do not relate to the objections under consideration. To that extent, the proposal was therefore rejected pursuant to § 43 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, as manifestly unfounded.
Compliance with Article 2 (2) of the Charter of Fundamental Rights and Freedoms and Article 2 (3) of the Constitution of the Czech Republic
41. Article 2 (3) of the Constitution and Article 2 (2) The Charter lays down one of the fundamental principles of the rule of law, namely that public power (although it is somewhat simplified in the articles cited) can be applied in cases, within the limits and in the ways laid down by law. Therefore, the provisions in question exclude any choice in the application of public funds and instruments in relation to all persons (it is not relevant, in view of the wording of the Charter, that the Constitution refers only to citizens). A breach of this principle occurs when public authority is exercised contrary to the law, or where there is insufficient legal basis for its application [cf.
42. In relation to the exercise of public authority in the form of executive decisions of public authorities, it is possible from Article 2 (3) of the Constitution and Article 2 (2) of the Charter to establish a requirement that the administrative authority should take decisions only in matters where the law provides it with competence, competence and competence, that the procedure for such decisions be laid down by law and that the authority concerned should be within the limits laid down by the law on decisions (to avoid excesses).
43. As regards, in particular, the exercise of public authority in the form of the closure of infrastructure, there is no doubt that the competence (§ 24 (1) of Act No. 13 / 1997 Coll., on the Road), the competence (§ 40 (1) of the Road Code) and the jurisdiction (§ 40 (1) to (3) of the Road Act) of the administrative body in this matter is laid down by law. In the same way, according to the Constitutional Court, the condition of the legal procedure of the administrative body is fulfilled, since it is generally adapted by the administrative system with partial differences according to the Road Act as a special law. Finally, as will now be explained, the law on roads, the administrative order and the constitutional order provide for limits in which the administrative authority must move when deciding on the conclusion and which prevent the administrative authority from enjoying public authority.
44. According to the contested provision, the administrative authority may, in part or in full, close the infrastructure, namely the request of the person in whose interest the closure is to take place. The law therefore allows the administrative authority to exercise administrative discretion in deciding whether or not to proceed to the conclusion and to what extent. However, it is not clear from the very possibility of using administrative discretion that perhaps the administrative authority can proceed freely.
45. The Constitutional Court is based on the principle that administrative discretion must not lead to unfounded decisions and to the approval of the authorities which decide in administrative proceedings. Administrative discretion shall always take place within the limits laid down by the constitutional order, the relevant legal standard or the fundamental principles governing the decision-making of the administrative authorities [finding sp. zn.
46. As regards the possibility of temporary closure of the infrastructure, the limits of this authorisation are already derived from Section 24 of the Road Act itself. First, according to the provisions of paragraph 2 of this Article, a request for closure may be made by the person in whose interest the closure is to take place. The law does not specify this "interest" in any way, nor does it specify in more detail the entity that can request the conclusion of the communication in its interest, but in the view of the Constitutional Court, this is not even necessary. The reasons for which a person (possibly a public authority, which will typically submit an application in the public interest) may request partial or full closure of the infrastructure may be very diverse and, in the case of a taxa, there would be a risk that the law would not allow the communication to be concluded, even if it might be necessary or at least desirable in specific circumstances. In contrast, the text of the law allows (and also requires) the administrative authority to assess whether the interest presented by the applicant, whatever the circumstances, outweighs the public interest of the general use of accessible material goods by an unlimited number of users, or other interests and rights which may be affected in specific cases and which may be restricted by the closure decision.
47. The obligation to balance individual interests in the decision on the conclusion arises, on the one hand, from the full wording of Section 24 of the Road Act and, on the other hand, from the nature of the administrative discretion, which, as has already been said, is always limited by constitutional order and fundamental principles of administrative procedure.
48. Paragraph 24 (2) of the Road Code states which bodies the administrative authority is obliged to discuss with which to discuss the conclusion of the communication, which implies that the administrative authority must take into account, where appropriate, the interests of those bodies or the reservations raised against the conclusion. Furthermore, § 24 (4) of Act No. 13 / 1997 Coll., on roads, requires the administrative authority to ensure that the closure is limited to the shortest possible time, the detour is properly technically secured and satisfactory from the point of view of operation and to allow access to neighbouring properties. These provisions lay down, inter alia, requirements for necessity and proportionality.
49. The decision to conclude is, of course, limited to the fundamental principles of administrative activity, as set out in particular in Sections 2 to 8 of the Administrative Regulation, which include, inter alia, the principle of the exercise of powers in accordance with the purpose entrusted to the administrative authority (Section 2 (2) of the Administrative Regulation), the principle of the principle of the prohibition of abuse of administrative discretion, and the principle of the protection of the public interest (Section 2 (4) of the Administrative Regulation), or the principle of the protection of legitimate expectations (Section 2 (4) of the Administrative Regulation).
50. Therefore, it is clear from the fundamental principles of the activity of the administrative authorities, as well as from the wording of Article 24 of the Road Act itself, that the partial or full closure of the communication may be undertaken by the administrative authority only if the applicant's interest in concluding the communication outweighs the other considerations of the relevant interests, only to the extent necessary to achieve that interest and for as short as possible. If the decision to conclude can be affected by fundamental rights, the administrative authority within the meaning of Article 4 (4) of the Charter must examine its substance and meaning (see further in relation to the right to gather peacefully), which does not in any way exclude the contested provision.
51. If the appellants contend that the administrative authorities do not comply with those requirements (or that the principles to be followed are interpreted "too extensively ') and that they" automatically' approach to the conclusion of communications, this possible infringement of the law may not be dealt with by the interference of the Constitutional Court, but by appeal in the context of administrative proceedings or, where appropriate, administrative actions. The contested version of the law does not allow or encourage the appellant to follow the procedure.
52. The Constitutional Court therefore considers that the contested provision of the Road Act, in conjunction with the entire legal order of the Czech Republic, does not allow the approval of the administrative authorities when deciding on the closure of the infrastructure.
53. In the light of all the above, the contested provision is not contrary to Article 2 (3) of the Constitution and Article 2 (2) of the Charter.
Compliance of the contested provision with Article 19 of the Charter of Fundamental Rights and Freedoms
54. A key argument of the proposal to abolish Paragraph 24 of the Road Law can be considered as a key argument, including in the light of the space which the appellants have given to a specific assembly, which, in their opinion, was prevented by the conclusion of the communication, of the contested provision.
55. The right to gather peacefully is guaranteed in particular by Article 19 of the Charter, but its importance also arises from a number of international instruments which guarantee it and which the Czech Republic has undertaken to comply with. The right of collection is thus guaranteed, inter alia, by Article 11 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') or Article 21 of the International Covenant on Civil and Political Rights.
56. The law in question is one of the fundamental pillars of a democratic state. Its application is one of the main forms of active participation in public life and provides people with an effective means of expressing views on political and other social issues, which can also be understood as a collective exercise of freedom of expression [Constitutional Court Opinion No. II. ÚS 164 / 15 of 5.5.2015 (N 88 / 77 SbNU 285)]. Of course, the right to gather peacefully is not just to confront the government (or anyone else) with the opinion of the majority, but, by its nature, it is also very effective in creating a public debate over opinions or ideas that, for their lack of support, might otherwise completely miss public attention. This also helps to protect other constitutional values and the constitutional order of guaranteed rights.
57. Moreover, the importance of the right to gather peacefully for democratic society is strengthened by the fact that the restriction of this right can often only occur in the eyes of the public (typically at spontaneous gatherings), which makes it more resilient to the creeping restriction of constitutionally guaranteed rights and freedoms, for example, compared to the freedom of the press, the restriction of which can occur without obvious public intervention and thus without appropriate public response. The right of assembly can thus constitute a key means of expressing views and maintaining freedom and democracy.
58. The right of collection is not absolute, and the conditions under which it can be restricted are laid down in the Charter and those international treaties. Article 19 (2) of the Charter of Fundamental Rights and Freedoms thus refers to its possible restriction where it is provided for by law and is necessary in a democratic society to protect the rights and freedoms of others, to protect public order, health, morality, property or the security of the state. In both the Convention and the International Covenant on Civil and Political Rights, restrictions on the right of assembly may be formulated by analogy, except in the case of partial differences, the Charter expressly states that the Assembly must not be subject to the authorisation of a public authority.
59. At the legal level, the right of assembly is governed in particular by Act No. 84 / 1990 Coll., on the right of assembly, as amended, (hereinafter referred to as the Law on the right of assembly). This law also provides for the conditions under which the assembly may be prohibited by an administrative authority or its dissolution may be carried out. According to Article 11 (1) of the Act cited, the administrative body shall prohibit the assembly not later than three working days after receipt of a valid notification of its conduct. The law on the right of assembly does not result in the possibility of banning the assembly at a later date, while the relatively short time available to the administrative body is also due to the legislature's efforts to further strengthen the Charter, which requires that the holding of the assembly is not based on the authorisation principle. It does not, in principle, make it a long-standing uncertainty that the administrative authority will not find the reasons for which the assembly will ban. The short period of time for the decision to prohibit the announced assembly is then also for the appellant to bring an administrative action against the decision, which may be decided by the courts before the scheduled date of the assembly.
60. The contested provision of Section 24 of the Road Law allows the infrastructure to be partially or completely closed. Consequently, as a result of its application, there may be a situation where the participants of a duly announced and unprohibited assembly are prevented from entering the places where the assembly was to take place.
61. This fact - that the application of the contested law can be prevented by a assembly which has been duly reported and has not been prohibited under the law of assembly - is in the opinion of the Constitutional Court in itself not unconstitutional. Article 19 (2) While the Charter may be a law-limited right of peaceful assembly, this does not mean that only the law on the law of assembly can be the law.
62. On the other hand, the fact that the restriction of the right of assembly is imposed by a law which primarily pursues another objective does not in any way mean that such a restriction does not need to comply with the requirements of Article 19 (2) of the Charter, namely that it is only possible if it is necessary in a democratic society to protect the rights and freedoms of others, to protect public order, health, morality, property or public security. The closure of the infrastructure at which the announced assembly is to take place will be open to the administrative authority only if such closure complies with the requirements of Article 19 (2) of the Charter, i.e. that the communication will be concluded in order to achieve one of the legitimate objectives in Article 19 (2). The instruments indicated that the closure of the communication would be necessary in order to achieve this objective and that the limitation of the right of assembly would be proportionate to the objective pursued.
63. It cannot be forgotten, however, that the essence of the closure procedure under Section 24 of the Road Transport Act is to decide on the need to restrict traffic, not on the need to restrict assembly. In other words, if only the prohibition of assembly (without the need to shut down communications) would be sufficient to achieve the alleged objective of the closure of infrastructure, the conclusion under Section 24 of the Road Law cannot be permitted, since this would clearly circumvent the law of assembly.
64. At the same time, the administrative authority must bear in mind that the limitation of the right of assembly is only taken into account in exceptional cases, which is all the more true in a situation where the assembly was not prohibited within the time limit laid down in the Law on the right of assembly. Although it cannot be excluded from the view of the Constitutional Court that the closure of the infrastructure will take place after the expiry of the time limit referred to in Article 11 (1) of the Law on the right of assembly, as such a need may arise suddenly, but this means that the conclusion of the communication at the expense of the right of assembly must be made all the more exceptional, as it reduces the degree of certainty of the appellant that the assembly will not be prevented, its margin of manoeuvre for the choice of the replacement point of assembly (which will be particularly important for those assemblies which are relevant in relation to the place and time in which it takes place), and, in the most extreme case, even the early defence of the European Court of Human Rights in the case of Bączkowski and Others against Poland on 3 May 2007, see Section VII / C of the Administrative Court of Justice). The decision on the closure of the infrastructure at the place and time at which the assembly is notified must therefore be taken in principle - in particular if the purpose of the assembly would be denied by a change in time or place - in good time, if the reasons for the closure so allow. In accordance with this requirement, Paragraph 39 (2) of Decree No 104 / 1997 Coll., according to which, in the absence of an accident, the application for authorisation for closure shall be delivered to the competent road administration no later than 30 days before the date of the requested closure of the communication, as well as Article 71 (1) of the Administrative Regulation, under which the administrative authority is obliged to issue a decision without undue delay. Paragraph 29a (5) of the Road Act, which provides for the obligation of the administrative authority to publish data from the decision on closures and detour on motorways, roads, local roads and publicly accessible special-purpose roads provided for in the implementing legislation, without undue delay through the Central Road Register in a way that allows remote access.
65. The applicants carried out a three-stage proportionality test [with reference, inter alia, to the finding of the Constitutional Court sp. zn. In the context of that test, they stated that the contested provision could not pass the first step (the suitability test) because it did not set the reasons for the regulation of closure and it could not therefore be established whether it outweighs the right of assembly or the second step (the necessity test), since Article 24 of the Road Code did not lay down the rules of subsidiarity (and moreover chose an inappropriate form of decision against a more appropriate measure of general nature; see below), nor the third step (the proportionality test in the narrower sense), since the administrative authority allegedly does not have the legal basis (limits) to consider the limits for the regulation of conclusion in a situation where there is a conflict with fundamental rights and freedoms.
66. However, in the view of the Constitutional Court, it is essential for the assessment of the contested provision that, in conjunction with the whole legal system, it allows the administrative authority to carry out this test and subsequently the administrative court, as explained above. The contested provision does not limit the right of peaceful assembly on its own, merely allowing the administrative authority to do so in certain cases (indirectly). As is apparent from sections VII / A and VII / B, it may do so precisely and only if, in the specific circumstances of the present case, the conditions arising from the constitutional order or the case-law of the Constitutional Court are fulfilled for such interference in the fundamental law. Under these circumstances, the proportionality test is now irrelevant, as this must be done precisely in the specific interference with the right of assembly or, where appropriate, any other constitutionally guaranteed right which could result from the closure of the infrastructure.
67. It can therefore be concluded that the contested provision is not by allowing, in fact (as a result), the assembly to be held on specific infrastructure in breach of Article 19 of the Charter. However, this does not mean, of course, that it could be found consistent with the constitutional order of the procedure, the aim of which (the predominant purpose) would be to use Paragraph 24 of the Road Transport Act in a particular case to prevent political assembly from fulfilling the purpose of the contested law.
Participation in proceedings and the possibility of judicial protection
68. The appellants in connection with the right of peaceful assembly also pointed out that the parties to the closure proceedings must be in the intentions of the Constitutional Court's finding, sp. zn. II. ÚS 459 / 04 of 18.8.2005 (see above), as well as the convened assembly. They also add that the administrative authorities do not treat the consortia as participants. The arguments put forward in this way strictly do not constitute a relevant argument for the annulment of the contested provision, as they, on the contrary, offer its constitutionally conformal interpretation. However, given that Article 24 (2) of the Road Act, which determines with whom the administrative authority will discuss the request for closure, is also contested, the Constitutional Court examined whether the unconstitutional nature of the procedure for closure could be a party to the administrative procedure. In particular, the right to a fair trial (Article 36 (1) of the Charter, Article 6 (1) of the Convention), the right to judicial review of decisions of public authorities (Article 36 (2) of the Charter) and the right to an effective remedy (Article 13 of the Convention) may be affected.
69. Even before the Constitutional Court could assess the consistency of Section 24 (2) of the Road Act with the quoted constitutional rights, it had to deal with the interpretation of that provision itself. According to the case law of the Supreme Administrative Court, that provision, despite not being entirely pure legislative technique, constitutes a definition of the parties [See Judgment of the Supreme Administrative Court No 10 As 264 / 2015-46 of 30 March 2016, against which a constitutional complaint was lodged at the Constitutional Court under point I.ÚS 1916 / 16 (Order of the Constitutional Court of 30 May 2017, available at http: / / nalus.ujud.cz)].
70. For this reason, the conclusions of the cited finding, sp. zn. II. ÚS 459 / 04, are not affected. In it, the Constitutional Court dealt with the situation where the decision of the City Council of the City of Prague was imposed on the National Cultural Monument of Vysehrad to ensure the closure of its premises for the public between 21.9.2000 and 27.9.2000, although the assembly was duly notified for the time and place in question. At that time, the Constitutional Court concluded that, by notifying the Assembly, the complainant had set aside from a group of persons whose rights could only be affected by the contested decision in a hypothetical manner, since it was clearly specified after the relevant notification and "in play 'threatened its specific rights. For the above reasons, the Constitutional Court considered that the complainant, as the assembly convened, should have been a party to the proceedings for the closure of the premises of the National Cultural Monument of Vysehrad.
71. However, it cannot be overlooked that the participation was governed by Article 14 (1) of Act No 71 / 1967 Coll., the Administrative Procedure (Administrative Regulation) under which the party concerned was the one whose rights, protected interests or obligations are to be dealt with or whose rights, protected interests or obligations may be directly affected by the decision; a party was also a party to the proceedings who claimed that a decision in its rights, protected interests or obligations could be directly affected until the contrary had been proved. Act No 71 / 1967 Coll., on Administrative Procedure (Administrative Regulations), as amended, has been replaced by a new administrative order (Act No 500 / 2004 Coll., Administrative Regulations), which provides, in the provision of Paragraph 27 (2), that participants are also other persons concerned if they may be directly affected by the decision in their rights or obligations.
72. The provisions cited constitute a general definition of the parties to the administrative procedure and shall apply only if, in the specific legislation, the number of participants is not defined differently (and taxiously). This was not the case in the procedure for the closure of the site of the National Cultural Monument Vysehrad, which is why Article 14 (1) of Act No 71 / 1967 Coll., which resulted in the fact that the party to the proceedings had also to be a party to the meeting, since the procedure clearly concerned his rights. However, as has already been said, in the case of Article 24 of the Road Code, the situation is different, as it contains in paragraph 2 its own adaptation of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the heading of the road.
73. For the sake of completeness and in the light of the arguments put forward by the appellants who referred in particular to the right of the gatherer, the Constitutional Court adds that the gatherer of the gatherer of the gatherer of the gatherings does not follow from the law of the gatherer.
74. The definition of the heading of the participants for the specific procedure in the specific legislation excludes the use of the general definition of the participants contained in the administrative order, but does not exclude without further special provisions on participation arising from other (special) regulations (see, for example, Supreme Administrative Court judgment No 1 As 6 / 2011-247 of 1 June 2011). In other words, an exhaustive list of the parties to the closure procedure does not mean that the participation of other entities cannot be governed by another law. In the judgment cited, for example, the Supreme Administrative Court concluded that § 109 of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), containing a taxative list of participants, does not prevent civil associations whose main mission under the Statutes is to protect nature and landscape, since their authorisation to participate in administrative proceedings in which the interests of nature and landscape conservation (subject to further conditions) may be affected, is expressly enshrined in § 70 (3) of Act No. 114 / 1992 Coll., on the conservation of nature and landscape, as amended.
75. However, the Act on the right of assembly does not explicitly provide for the participation of the caller in other proceedings and such conclusion cannot be drawn from an interpretation. Moreover, even in assessing the notification of the assembly by the administrative authority, the law on the right to collect with "traditional 'administrative proceedings does not in principle count, which is already due to the fact that the assembly is not subject to authorisation. If, within three working days of notification of the assembly, the assembly is not prohibited, the administrative procedure shall not take place at all. If the administrative authority finds reasons to ban the assembly, it may prohibit the assembly even without further hearing the case with the appellant (although in some cases communication with the appellant will seem desirable - see Section 8 (1) of the Law of the Assembly). Nor is an appeal admissible against a decision to ban the assembly. The actual protection of the rights of the participants of the assembly (through its convened party) is thus placed in the hands of administrative courts. Therefore, it cannot be concluded that it contains special rules ensuring the participation of the appellant in other administrative proceedings. After all, contrary to the concept of the law on assembly law, this would ultimately lead to the appellant not being able to bring an administrative action immediately against the decision on closure, but would first have to file an appeal which has no suspensive effect. It is therefore apparent from the above that the addressee of the notified assembly is not a party to the clearance proceedings, even if such a decision may affect its fundamental rights.
76. Consequently, Paragraph 24 (2) of the Road Law constitutes a exhaustive list of the parties, which may result in an administrative decision to close the proceedings affecting the rights of a person who was not a party to the administrative procedure.
77. In general, this situation can be considered undesirable. However, in the view of the Constitutional Court, the situation is not without further unconstitutional action, since the constitutional order (and, in particular, the articles mentioned in paragraph 68 of this decision) does not imply the right to participate in administrative proceedings. On the other hand, constitutional order implies, inter alia, the right of everyone to have a public hearing of a case by an independent and impartial court without undue delay, in its presence and while maintaining the principle of equality between participants (Article 38 (2) and Article 37 (3) of the Charter), the right to judicial review of decisions of a public authority which is decided on fundamental rights (Article 36 (2) of the Charter) or on civil rights and obligations (Article 6 (1) of the Convention) and the right to an effective remedy (Article 13 of the Convention). However, those rights are not concluded that an administrative decision may affect the rights of a person who was not a party to the administrative procedure.
78. The Constitutional Court dealt with a similar question already in the sp. zn. Pl. ÚS 16 / 99 of 27.6.2001 (N 96 / 22 SbNU 329; 276 / 2001 Coll.), which repealed part of the fifth Civil Code. At the time, Paragraph 250 (2) of the Civil Code provided for the active legitimacy to bring an administrative action by previous parties in administrative proceedings, which in some cases may have led to a situation in which the right of access to a court was excluded by the bodies whose rights or obligations were negotiated or may have been affected in their rights by a decision of a public authority. Such a situation was, in the view of the Constitutional Court, contrary to Article 36 (2) of the Charter and to the requirements of Article 6 (1) of the Convention, since the requirement that everyone whose civil rights or obligations are concerned must be guaranteed the right of access to the Court has not been fulfilled.
79. The Constitutional Court also stated that the situation could be resolved in two ways. The first approach would be to amend those provisions of administrative law which exclude persons who may be affected by an administrative decision from participating in administrative proceedings. As the Constitutional Court added, such a solution would be effective and therefore desirable, since the possibility of defending its rights should be granted to all the persons concerned in the administrative procedure itself. However, the Constitutional Court also admitted that the problem could be solved by the deregulation of part of the sentence of the first provision of Paragraph 250 (2) of the Civil Code, expressed in the words "as a party to the administrative procedure '- by abolishing the condition of participation in the administrative procedure for bringing an administrative action.
80. The current rules governing the bringing of an administrative action by the parties in the administrative proceedings (see paragraphs 65 (1) or 82 (1) of the Administrative Rules of Procedure, in practice, the judgment of the Supreme Administrative Court No 4 As 157 / 2013-33 of 18.4.2014; see also the judgment of the Municipal Court in Prague No 6 A 82 / 2016-104 of 16.3.2017, in which the action of a person who was not a party to the administrative proceedings was considered and dealt with as an action against unlawful interference). The second of the above-mentioned solutions, which was outlined by the Constitutional Court in the decision of the sp. zn. The Charter can therefore be applied for even if the legislator (for example because of speed or economy) has decided to limit the scope of the parties to the administrative procedure compared with § 27 of the Administrative Regulation. The possibility of redress within the meaning of Article 13 of the Convention is then provided through the administrative judiciary (see, for this, point 64).
Nature of the infrastructure closure
81. According to the appellants, § 24 of the Road Act opts for an inappropriate form of decision compared to a more appropriate general measure which they consider should be issued in the closure procedure. They state that, from the point of view of the article, it is a general measure.
82. As regards the nature of the conclusion of the Constitutional Court, the very fact that the legislature admits the nature of the decision to a particular act, even if the form of general measures appears more appropriate, cannot be established without further unconstitutional measures (after all, the Institute of General Measures is expressly anchored in the Czech legal order for a relatively short period of time).
83. The Constitutional Court has in the past dealt with the Institute of General Measures in detail, with its admittance to its material understanding [finding sp. zl. ÚS 14 / 07 of 19.11.2008 (N 198 / 51 CollNU 409)]. At the same time, it has repeatedly observed a breach of the basic rights of the complainants in a situation where administrative courts did not examine as a measure of a general nature an act which intervened in the rights of the complainants and which fulfilled the material characteristics of the measures of a general nature [e.g. the finding of page IV of the ÚS 2087 / 07 of 29.3.2010 (N 67 / 56 of SbNU 757)]. However, this was the case where the nature of the act issued by law was not unequivocal and where, in the absence of measures of a general nature, the possibility of judicial protection of the persons whose rights it intervened in the act would be significantly reduced. This is not the case with Article 24 of the Road Act. The contested provision expressly grants the contracting authority the form of a decision (cf. paragraphs 4 and 5 in particular) and also provides for the procedure for its issue, including the heading of the parties (paragraph 2) and special arrangements for appeals (paragraph 4). In these circumstances and taking into account the arguments set out in Part VII. / C this finding is not limited in any way by the judicial review of the closure and there are no other reasons which could lead the Constitutional Court to conclude that the decision on closure must be regarded as a general measure of a constitutional nature. Moreover, it is doubtful whether an institute of general nature would at all (in the light of the procedure for its approval) be appropriate for the conclusion of the communication, given the need to respond by concluding on often sudden and unpredictable situations.
Conclusion
84. For all the above reasons, the Constitutional Court partially rejected the application under Paragraph 70 (2) of the Law on the Constitutional Court and partly rejected pursuant to Paragraph 43 (2) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended.
President of the Constitutional Court:
v. JUDr. Tomková v. r.
Vice-President
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Regulation Information
| Citation | The Constitutional Court found no 282 / 2017 Coll., on the application for annulment of § 24 of Act No. 13 / 1997 Coll., on roads, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 04.09.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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