Found at the Constitutional Court of the Czech Republic No. 3 / 1997 Coll.

Paragraph 90 (1) of the first sentence in the words "§ 5 (6)" of the Act of the Czech National Council No. 114 / 1992 Coll., on the conservation of nature and landscape, as amended, shall be deleted from the date of the declaration of findings in the Collection of Laws.

Senate 6 A Supreme Court in Prague ("the Supreme Court ') of 26 October 1994, in a procedure under the fifth Title of the First and Second Civil Code (" o.s.'), concluded that the first sentence of Article 90 (1) of the Constitution ("§ 5 (6) 'of the Act of the Ministry of the Environment of the Czech Republic (" the Act of the Czech Republic'), which provides that the State authority serves all citizens and can be applied only in the cases, within the limits and in the ways laid down by the law, and in Article 2 (3) of the Constitution of the Czech Republic ("the Constitution '). On the basis of its conclusion, the Supreme Court stated that the contested legislation, by excluding the administrative order from the application for authorisation to export and import of endangered plants and animals protected by international conventions, by which the Czech Republic is bound (§ 5 (6) of the ČNR Act No. 114 / 1992 Coll.), created a situation where the administrative authority [in the case at hand the Ministry, see § 79 (3) (k) of the ČNR Act No. 114 / 1992 Coll.] can refuse, or even refuse to rule at all, without the applicant having to - by virtue of the Czech rules of administrative justice - a real opportunity to obtain judicial protection. The absence of any other legal procedural regulation that would affect the matter has, in the view of the High Court, other fundamental consequences, in addition to the arbitrarily mentioned above, namely that the administrative body is not legally bound to protect the rights and interests of citizens; it is neither obliged to deal with the matter conscientiously nor responsibly; it is not obliged to deal with the matter in time and without undue delay; it is also not obliged to ensure that the decision is based on a reliably established state of affairs; and, on the contrary, the person whose rights are at stake does not have the opportunity to defend such rights itself or to comment on the basis of the decision. Similarly, a number of other obligations and rules are not applicable, the Supreme Court states, for example, there is no party to the proceedings, the case can also be decided by an administrative officer who has a personal or material interest in the outcome of the proceedings, no one may be allowed to look at the file, no one may be notified of the decision and no one may be notified of the decision, no less served, no need be drawn up in writing, there is no obligation to provide the necessary supporting documents for the decision, no longer exists against the decision, no annulment of the decision, no recovery procedure or the procedure laid down in Article 65 of the Administrative Regulation, and no formal legal authority. Furthermore, the Supreme Court submits that, in a situation where the administrative authority has no legal obligation in the proceedings, it does not logically infringe the law, even if it does not issue any judgment, either by indifference or by express refusal to deal with the matter at all. The person whose rights are concerned cannot, in such a case, apply to the administrative court, because the fundamental condition of the proceedings is lacking, namely an unlawful decision such as a power act affecting the position of the person who needs such an act in order to exercise his right. The Supreme Court also notes in its proposal that the total exclusion of the administrative order from decisions on the rights and obligations of citizens in a situation where there is no other applicable regulation which the administrative authority would be obliged to respect is contrary to the constitutional order, namely Article 2 (3) of the Constitution and the corresponding provision of Article 2 (2) of the Charter, in which the constitutional obligation of the administrative authority is governed by law. If there is such a constitutional obligation and at the same time substantive law excludes the application of the law governing it, such an exclusion, according to the High Court, is contrary to both the Charter and the Constitution. In other parts of its proposal, the Supreme Court recites the content of its file, sp. zn. 6 A 1 / 95, in which the applicant, Mr H., seeks the annulment of the administrative act - letter of the Ministry dated 26 October 1994, No. PLO / 4616 / 94, by which the defendant - Ministry - has indicated that the export and import of animals and plants, particularly protected by the Convention on International Trade in Endangered Species of Wild Fauna and Plants and the Act of ČNR No. 114 / 1992 Coll., is generally prohibited and is authorised outside the administrative procedure, is not a legal claim to it and therefore is not required to issue a" negative opinion'. The applicant contends that the Ministry, on the one hand, requires compliance with the conditions which go beyond the Convention cited, and further submits that the letter of 26 October 1994, No. Furthermore, the applicant concludes that the granting of an authorisation is not a matter of discretion and that the authorisation should have been granted upon fulfilment of the conditions. The Ministry, as the defendant, continues the Supreme Court, in its observations in particular refusing to accept the applicant's application by the letter in question and, on the contrary, stating that the letter contained only a statement of the opinion that, if the applicant proves the facts specified in the previous correspondence, he will be granted an authorisation with no legal right to issue the authorisation. The Supreme Court then stated that the animal kept by the plaintiff is, in terms of civil law and therefore, an object of property law. The owner of the case within the meaning of Article 11 of the Charter may dispose of the case (ius disposendi) and is subject to restrictions based on paragraph 3 of that Article of the Charter. However, these restrictions must only be declared by law. One of these restrictions is, as the Supreme Court states, the need to obtain an official authorisation to export or import pursuant to § 5 (6) of Act No. 114 / 1992 Coll., which falls within the competence of the defendant Ministry [§ 79 (3) (k) of the Act No. 114 / 1992 Coll.], but in the form of consent. From this point of view, the Supreme Court concludes that the authorisation act cannot be supplemented by any conditions. Likewise, the Supreme Court adds, the owner can do business, i.e. implement his other fundamental right under Article 26 of the Charter. Furthermore, the Supreme Court took the view that there was a legal right to issue an authorisation, but that there was no other presumption of procedure in the case at hand, namely a decision by an administrative authority within the meaning of Article 244 (3) (c) of the EC Treaty, since it appears from the contents of the file that the Ministry clearly did not decide and did not reject the application for authorisation. Since neither the law of the Czech Republic knows the law of an action against an administrative authority for failure to act, nor the institute of an action for imposing an obligation on an administrative authority to give a decision, or an action for a determination that an administrative authority is illegally refusing to take a decision, it is, according to the Supreme Court, a case of refusal of administrative jurisdiction, which can be corrected by the Constitutional Court by declaring the intervention of a public authority in fundamental human law and, in future, prohibiting such action.

The Chamber of Deputies of the Parliament of the Czech Republic, in its letter of 16 September 1996 signed by its President, Mr Miloš Zeman, expressed its views by referring to the explanatory report on the draft Act No 114 / 1992 Coll., which in general states that the Act provides for the general protection of all living fauna and flora, that their use or their intervention must be based on legal authorisations and that the Act also provides for the obligation to prove the origin of specially protected plant and animal species. In particular, Section 90 states that this provision excludes administrative rules for certain types of decision-making under this Act and that activities which are organisational, notification, registration, planning or expression of state sovereignty (approval of exports or import of certain specially protected parts of nature) are excluded from administrative procedures. On the proposal of the Supreme Court of the Chamber of Deputies of the Parliament of the Czech Republic, it stated that the interpretation of the Supreme Court is based on the general regulation of administrative proceedings by a single law, by the administrative order, but that the complexity and diversity of public administration also requires the existence of special arrangements. Therefore, procedural issues are also included in the administrative law legislation, which often provide for procedures other than administrative rules. In particular, in the case of § 90 of the ČNR Act No. 114 / 1992 Coll., it then submits that, although it states that it does not comply with the provisions of the administrative order, this does not at the same time mean that such a procedure would not be an administrative procedure. In so doing, the fact that the law cited does not lay down specific procedural rules means that it must be based on the general principles of administrative procedure, which also implies that if the law provides that the administrative authority authorises the export and import of endangered plants and animals, it also provides for an obligation to decide in a particular case. If the competent administrative authority does not act in that way, it is not a lack of legal regulation but an error in the operation of that authority. In conclusion, it is up to the Constitutional Court to examine the constitutionality of the contested law in the context of the submitted proposal and to give its decision.

It follows from the short-term report on the 31st meeting of the Czech National Council on 18 - 21 February 1992 that Act ČNR No. 114 / 1992 Coll. was adopted on 19 February 1992 by the necessary majority, namely the votes of 105 Members, three Members opposed and four Members abstained (Article 102 et seq. of Constitutional Act No. 143 / 1968 Coll., on the Czechoslovak Federation). That law was signed by the relevant constitutional authorities and declared in the amount of 28 Collection of Laws, sent out on 25 March 1992. The bill was debated and adopted on the basis of a government proposal - House Press 497 and joint committee reports to it - House Press 579. It can therefore be considered that the law was adopted and issued within the limits of the Constitution established competence and in a constitutional manner (§ 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).

Since it is a matter of pending proceedings under part Five of Title 1 and Part Five of Title 2 of the General Court and possibly the subsequent proceedings before the Constitutional Court pursuant to § 72 et seq., Act No. 182 / 1993 Coll. not only the resolution of the question whether the letter of the Ministry of State of 26 October 1994 No. PLO / 4616 / 94 is reachable in the procedure under Section Five of Title 1 of the Constitutional Court, but also the decision pursuant to § 5 (6) of the Law No 114 / 1992 Coll., to which the General Rules on Administrative Procedure are not applicable to the procedure under § 5 (6), § 11 (1), § 5, § 5, § 5, § 6, § 5, § 5, § 6, § 5, § 5, § 6, § 5, § 6, § 4, § 4, § 5, § 4, § 4, § 4, § 5, § 4, § 4, § 4, § 4, § 4, § 2, § 4, § 2, § 39, § 52, § 69, § 69 of the Act. Paragraph 5 (6) of the ČNR Act No. 114 / 1992 Coll. states that the export and import of endangered plants and animals protected by international conventions by which the Czech Republic is bound are authorised by the nature protection authority. According to § 79 (3) (k) of the ČNR Act No. 114 / 1992 Coll. is the Ministry. When assessing the constitutionality of the contested provision, § 90 (1), first sentence, in the words "§ 5 (6)" of Act No 114 / 1992 Coll. was based on Article 2 (3) of the Constitution, which states: "State authority serves all citizens and can be applied only in the cases, within the limits and in the ways laid down by the law." Compliance with the postulate referred to in the first part of the provision referred to in the Constitution shall be defined by a requirement that this should only be done in the cases, within the limits and in the ways laid down by the law. The requirement in the second part includes not only guarantees against abuse of state power, but also the need for legal basis for its implementation, whether in the form of an administrative order or another separate standard. Also Article 2 (2) The Charter provides for this guarantee and the need for a legal regulation for the application of state power. Since the first sentence of Paragraph 90 (1) in the words "Paragraph 5 (6) ', by excluding the application of the general rules on administrative proceedings, constitutes the absence of both the legal basis and the limits and modalities of the application by the Ministry of State power in relation to the authorisation of the export and import of endangered plants and animals protected by international conventions, the first sentence of Article 90 (1) in the words" to proceedings under...' is contrary to Article 2 (3) of the Constitution and Article 2 (2) of the Charter, in the absence of any other legislation. Thus, by excluding the application of the general rules on administrative proceedings in the absence of others, a contradiction with Article 36 (1) of the Charter is also established, which regulates the right of everyone to a specific procedure for seeking their rights.