The Constitutional Court found no 30 / 1998 Coll.
The Constitutional Court found of 17 December 1997 on the proposal of the President of the Republic to repeal Act No. 243 / 1997 Coll., amending Act No. 246 / 1992 Coll., to protect animals against abuse, as amended
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FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 17 December 1997 in plenary on the proposal of the President of the Republic to repeal Act No. 243 / 1997 Coll., amending Act No. 246 / 1992 Coll., to protect animals against abuse, as amended,
as follows:
On the day of the publication of this finding in the Collection of Laws, Act No. 243 / 1997 Coll., amending the Act of the Czech National Council No. 246 / 1992 Coll., for the protection of animals against abuse, as amended, is hereby repealed.
Reasons
On 3 October 1997 the Constitutional Court received a proposal from the President of the Republic to repeal Act No. 243 / 1997 Coll., amending Act No. 246 / 1992 Coll., to protect animals against abuse, as amended, by virtue of its adoption in a manner contrary to Article 50 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
Infringement of Article 50 The Constitution sees the President of the Republic in the following circumstances: The Act was referred to the President of the Republic on 13 June 1997 pursuant to § 98 (1) of Act No. 90 / 1995 Coll., on Rules of Procedure of the Chamber of Deputies, President of the Chamber of Deputies, and delivered to the Office of the President of the Republic on the same day. On 28 June 1997, the President of the Republic was returned to the Chamber of Deputies and served on the next working day, i.e. Monday, 30 June 1997. According to the President of the Republic, the beginning of the 15-day period for the return of the law began to run on the day following the date of referral of the law, in accordance with the practice developed since the effectiveness of the Constitution. In the present case, this means that the deadline for the repayment of Act No. 243 / 1997 Coll. was to start on 14 June 1997.
By order of 5 September 1997 No 244 / 1997 Coll. The Chamber of Deputies declared its decision not to vote again on Law No 243 / 1997 Coll. adopted on 12 June 1997 and returned by the President of the Republic, given that, in its view, the condition laid down in Article 50 (1) of the Constitution was not fulfilled.
The Act amending Act No. 246 / 1992 Coll., to protect animals against abuse, as amended, was published in the Collection of Laws under No. 243 / 1997 Coll., when it was signed by the President of the Chamber of Deputies and the Prime Minister.
The proposal of the President of the Republic points to the fact that the legal principle is generally recognised in the Czech legal order, according to which, if the last day of the deadline is Saturday, Sunday or holiday, the last day of the deadline is the next working day. Given that the return of the law is a constitutional act of the President of the Republic in which no one can represent it, as well as the legal and political seriousness of the act, the 15-day period under Article 50 (1) of the Constitution cannot be shortened, according to the President's conviction.
Since the President of the Republic is convinced of the timeliness of the exercise of his constitutional power to restore Parliament's law and since Parliament did not comply with the provisions of Article 50 (2) of the Constitution, he proposes the annulment of the contested law on grounds of non-compliance with the Constitution's prescribed procedure.
The proposal of the President of the Republic was accompanied by:
- a copy of the relevant website of the so-called report of the Office of the President of the Republic (No L 134 / 97; 5414 / 97), certifying the delivery of the Law of 12 June 1997 amending Act ČNR No. 246 / 1992 Coll., to protect animals against torture, as amended, to the President of the Republic for signature, on 13 June 1997,
- a copy of the letter of 28 June 1997 No 5414 / 97 returning the law to the Chamber of Deputies by the President of the Republic, indicating the date of its service on 30 June 1997,
- a copy of the letter of the President of the Chamber of Deputies of the President of the Republic dated 3 July 1997 No 2654 / 97 SP, stating that the 15-day period has been exceeded and that the repayment of the law cannot be taken into account and that the act is submitted to the President again for signature,
- a copy of the letter of the President of the Republic to the President of the Chamber of Deputies dated 7 July 1997, No 5920 / 97, in which an unaltered opinion is expressed to return the law in question to the Chamber of Deputies, as well as the belief that this was done in the Constitution, which is why the President of the Chamber of Deputies is requested to re-submit the bill to the Chamber of Deputies.
Under the provisions of Sections 42 (3) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, the proposal was sent to the Chamber of Deputies for observations. At the same time, pursuant to § 42 (2) of Act No. 182 / 1993 Coll. The Constitutional Court has requested as documentary evidence from the Chamber of Deputies that the President of the Republic returned the Act to the Chamber of Deputies and a certified photocopy of the record of the receipt of this document by the Chamber of Deputies in the relevant postal book.
The Constitutional Court received the observations of the Chamber of Deputies on 13 November 1997. It states that, in the event of the repayment of Law No 243 / 1997 Coll. of the President of the Republic to the Chamber of Deputies on 5 September 1997, the latter adopted a resolution that it would not vote again on the law adopted because it was not returned to it within 15 days of being referred to the President of the Republic.
Opinion The Chamber of Deputies is justified by the fact that, as regards the method of calculating the time limit referred to in Article 50 (1) of the Constitution, the Constitution itself does not contain special provisions on calculating time limits. Since the time limit referred to in Article 50 (1) The Constitution is not further interpreted in the Constitution itself or in any other law, it cannot be interpreted in the opinion contained in the statement otherwise than literally. It is further noted that it is not the act of signing the recovery decision, but the actual recovery, that is to say the moment when the decision was delivered to the addressee, i.e. the time of delivery, that is to say. Although the statement makes a distinction between the decision to refer back the law to the Chamber of Deputies and to serve it, it nevertheless concludes that there is one deadline for both acts. The service is thus agreed with the repayment, which shows that the period of 15 days must be respected, regardless of whether it is a working day or not.
The comments reject the analogous application of other service legislation, since there are different arrangements for different services and it is not clear which of the rules should be applied. Furthermore, the existence of a generally accepted legal principle relating to the calculation of procedural time limits is rejected as the special arrangements apply only to the time limits laid down in the individual laws and cannot therefore be applied when interpreting the time limits laid down in the Constitution.
By understanding the deadline contained in Article 50 (1), The Constitution in the procedural sense would, in the opinion contained in the statement, lose any meaning. The reason for this conclusion is the requirement of legal certainty and the non-extension of the legislative process.
The expression also rejects the impossibility of the President of the Republic returning the law The Chamber of Deputies on a day of work, leave of absence or holiday, because the Office of the Chamber of Deputies is prepared to ensure the adoption of decisions by the President of the Republic in those days.
On the basis of these arguments, it is stated that the Chamber of Deputies has acted in accordance with the Constitution in the context of the repayment of the adopted law by the President of the Republic. A copy of the letter of the President of the Republic dated 28 June 1997, No 5414 / 97, returned to the Chamber of Deputies by Law No 243 / 1997, indicating the date of its delivery to the Chamber of Deputies on 30 June 1997, and the statement by the Head of the Office of the Chamber of Deputies on the method of service of laws between the Office of the Chamber of Deputies and the Office of the President of the Republic. According to this, the receipt of a letter from the President of the Republic to which the law is returned by the Office of the Chamber of Deputies is confirmed by the so-called paper of the President of the Republic by the signature of the person who takes the law, indicating the date of receipt. The receipt of the letter of 28 June 1997 is therefore confirmed on 30 June 1997 by the signature on the so-called paper, which is deposited in the Office of the President of the Republic, and its certified copy cannot be submitted by the Chamber of Deputies.
At the oral hearing on 17 December 1997, the President of the Chamber of Deputies added his written observations to the effect that at the beginning of the period laid down in Article 50 (1) The Constitution must be regarded as the date of referral to the President of the Republic and not the following day. In the present case, the end of that deadline would then fall on Friday, 27 June 1997, with the result that the President of the Republic would not be in doubt.
In the reply of the President's Office to the President's Office to act on his behalf before the Constitutional Court, there was a statement of objection to the establishment of a constitutional practice according to which the beginning of that period is calculated on the day following the date of referral of the law to the President of the Republic. The existence of such a custom by the President of the Chamber of Deputies was not recognised.
From the proposal of the President of the Republic and its annexes, the observations of Parliament and its annexes, from Parliamentary Rapporteur No 10 / 96-97, as well as the shorthand record from the discussion of Act No. 243 / 1997 Coll. in the Chamber of Deputies, the following was found:
The draft amendment to Act No. 246 / 1992 Coll., on the Protection of Animals against Torture, as amended, was approved by the Chamber of Deputies on 22 May 1997 and by the Senate on 12 June 1997.
The Act was referred to the President of the Republic on 13 June 1997. The President of the Republic decided on 28 June 1997 to refer back the Act amending Act No. 246 / 1992 Coll., as amended, to the Chamber of Deputies for reconsideration, with the Law returned being delivered to the Chamber of Deputies on 30 June 1997.
By letter of 3 July 1997 No 2654 / 97 SP, the President of the Chamber of Deputies noted that the 15-day deadline was exceeded and that, in his view, the refunding of the law could not be taken into account, therefore again the President of the Republic submitted the law for signature. The President of the Republic, in his reply of 7 July 1997 No 5920 / 97, insists on his decision to return the law in question to the Chamber of Deputies, as well as on the belief that this was done by the Constitution. The letter also states that, when the 15th day of the deadline fell on the day of the leave of employment, i.e. on Saturday 28 June 1997, the President of the Republic assumed that, in both these and similar cases, the implementation of constitutional powers limited by time limits would be treated as normal in all standard legal systems. It also refers to the fact that both our and most foreign institutes do not directly regulate the running and termination of time limits, which is always carried out by the end of the next working day if the last day of the working day (Saturday, Sunday, holiday). For these reasons, the President of the Republic in a letter asks the President of the Chamber of Deputies to re-submit the returned Act to the Chamber of Deputies.
On 5 September 1997, on a proposal from the Constitutional Committee of the Chamber of Deputies, these, by a ratio of 154 votes to, 2 against, at 22 abstentions, have decided to vote first on whether or not the President of the Republic has fulfilled the deadline for returning the law and then to vote on the law itself.
On the same day, the Chamber of Deputies decided by a ratio of 97 votes to 77 against and 9 abstentions to not vote again on the law amending Act No. 246 / 1992 Coll., as amended, adopted on 12 June 1997 and returned by the President of the Republic, given that the condition laid down in Article 50 (1) of the Constitution has not been fulfilled. The resolution was published under No 244 / 1997 Coll.
The Act amending Act No. 246 / 1992 Coll., as amended, was then published on 30 September 1997 in 82 Collection of Acts under No. 243 / 1997 Coll.
Under the provisions of § 68 (2) of Act No. 182 / 1993 Coll. The Constitutional Court, in proceedings for the annulment of laws and other legislation, shall examine the content of the law or other legislation in the light of their compliance with constitutional laws, international treaties, as provided for in Article 10 of the Constitution, or, where applicable, other laws, and shall determine whether they have been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure.
The subject of the examination concerning the proposal of the President of the Republic to repeal Act No. 243 / 1997 Coll. is the last of the above aspects, i.e. the assessment of compliance with the constitutional procedure.
Part of this procedure is the right of the President of the Republic to return the adopted law, with the exception of the Constitutional Parliament law, with a justification within 15 days of the date on which it was referred to it (Article 50 (1) of the Constitution). If the President of the Republic makes use of that right, the constitutionally prescribed procedure for the adoption of the law continues to be renegotiated in the Chamber of Deputies (Article 50 (2) of the Constitution).
If the law has been returned by the President of the Republic after the deadline laid down in Article 50 (1) of the Constitution, it shall become valid without further consideration in the Chamber of Deputies by decree in the Collection of Laws (Article 52 of the Constitution, Section 5 of Act No. 545 / 1995 Coll., on the Collection of Laws of the Czech Republic). However, if it has been returned within that time limit, its further examination by the Chamber of Deputies is a violation of the constitutional procedure.
Opinion The Chamber of Deputies stating that the Constitution has not been complied with by the prescribed time limit for the application of the suspensive veto by the President of the Republic shall be based on the following arguments:
The first is to reject the existence of general rules for counting time in Czech law, as well as to reject the possibility of analogy between constitutional law and other sectors of Czech law (including public law, namely administrative law).
In the Chamber of Deputies' view, the lack of a constitutional regulation on the calculation of time and the absence of general legal rules justifies the literal interpretation of constitutional deadlines. This interpretation is further supported by the requirement of legal certainty and the non-extension of the legislative process.
The third argument is the declared readiness of the Office of the Chamber of Deputies to take back the law on request (based on a visa) by the President of the Republic on the day of work.
The fourth argument is the interpretation of Article 50 (1) A constitution according to which the return of the law must be regarded not as an act of signing a recovery decision, but as a real recovery, that is, the moment when the decision was delivered to the addressee, i.e. the time of service.
Finally, the last, fifth, argument is that at the beginning of the period laid down in Article 50 (1) The Constitution must be regarded as the date of referral to the President of the Republic and not the following day. In the present case, the end of that deadline would then fall on Friday, 27 June 1997, with the result that the President of the Republic would not be in doubt.
The proposal by the President of the Republic, on the other hand, is based on the opinion of the presence of general legal principles in the Czech legal order, the example of which is also the general rules for calculating legal deadlines. In its argument, the President of the Republic is also based on the assumption that, in both these and similar cases, constitutional powers limited by time limits will be exercised as is normal in all standard legal systems. It points out in this respect that both our and most foreign institutes do not directly regulate the running and termination of deadlines.
In advanced democracies, the issue of counting time in constitutional law does not cause problems. The rule is that the Constitution does not directly regulate the rules for counting time, and for this purpose there are accepted procedures in law and constitutional policy practice.
In the Federal Republic of Germany, the Constitution (Basic Law) does not explicitly regulate the calculation of time limits. The decisions of the Federal President are limited by the Basic Law by a time limit in two cases: when deciding to appoint a Federal Chancellor or to dissolve the Federal Assembly (Article 63) and when deciding to dissolve the Federal Assembly after the declaration of mistrust (Article 68). In German law, including constitutional law, the general principle is that the provisions of the Civil Code (BGB) apply to the calculation of time limits, unless special provisions exist. The basic law does not contain special provisions [see Schenke, Kommentar zum Bonner Grundgesetz (Bonner Kommentar), bearb. v H. J. Abraham u.a., 9 Bde., Hamburg 1950ff., Loseblatt, Stand März 1997, Art. 63, S. 52, Art. 68 S. 87].
In addition, the question of counting the time limits for operations carried out in relation to the Community Assembly is also covered by the Federal Assembly Act. According to Article 124 of the Act, those time limits shall begin on the day following the applicable date and, if the last day of the period of time of action in relation to the Joint Assembly is Saturday, Sunday or a legally recognised holiday, it shall take its place as close to the following working day.
An example of a constitution that directly regulates certain aspects of time counting is the Constitution of the United States of America. It is precisely the case of the President's suspension theorem, when the constitution has explicitly modified its passage and termination: "If the President does not return the bill within ten days (Sunday does not count) from the date on which it was presented to him, it becomes the law even without its signature." (Article 1, Section 7 of the Constitution of the United States of America).
In the present case, the decision of the Constitutional Court is in fact not only a dispute over the passage of time limits in constitutional law, but, above all, a dispute over understanding of law in democratic society.
Indeed, the Constitution of the Czech Republic does not contain a special regulation of the counting of time, i.e. also a regulation of the assessment of the beginning and termination of time limits, unlike other sectors of law.
According to Paragraph 122 (1) of the Civil Code: "The period of time determined according to the days shall begin on the day following the event which is decisive for its beginning." Furthermore, Paragraph 122 (3) of the Civil Code states: "If the last day of the period is Saturday, Sunday or holiday, the last day of the period is closest to the following working day." It follows from the systematic interpretation of the Civil Code that those provisions apply to both types of substantive civil time limits, i.e. limitation and limitation periods (the limitation period is laid down in the title of the Eighth Civil Code, but that provision is contained in the title of the ninth defining certain terms and therefore does not apply only to limitation but also to limitation periods).
Paragraph 57 (1) of the Civil Code states: "Until the time limit expires, no account shall be taken of the date on which the facts determining the beginning of the period took place; This shall not apply if the time limit is set by the clock. '; Paragraph 57 (2) of the Code of Civil Procedure then states:" If the deadline for Saturday, Sunday or holiday is the last day of the period closest to the following working day. "
Under Paragraph 60 (1) of the Penal Code, "The date on which an event has become the beginning of the period shall not be counted until the period specified by the days. 'In order to determine the end of the period, the following provision shall be made in Paragraph 60 (3) of the Criminal Code:" If the end of the period is due to the day of work or leave, the last day of the period shall be deemed to be the next working day. "
Pursuant to Paragraph 27 (2) of the Administrative Regulation, "The date on which the start of the period was established shall not be counted until the deadline," whereas "If the end of the period for a working day is the last day for the next working day."
The fact that the Constitution does not contain special provisions on time counting is natural from a comparative and factual point of view.
It has already been mentioned that the constitutions of democratic countries do not regularly contain special provisions on the counting of time, so there is no exception in this respect.
A modern democratic written constitution is a social treaty by which the people representing the constitutional power (pouvoir constituant) establish themselves into one political (state) body, establishing an individual's relationship with the whole and a system of power institutions. A document institutionalising a system of basic generally accepted values and formulating a mechanism and a process of forming legitimate power decisions cannot exist outside the public's accepted context of values, fairness ideas and ideas of the meaning, purpose and way of functioning of democratic institutions. In other words, it cannot function beyond the minimum value and institutional consensus. For the field of law, it follows that the source of law in general, as well as the source of constitutional law, including in the system of written law, are also fundamental legal principles and practices.
This thesis is confirmed not only by theoretical analyses, but mainly by the history of the 20th century linked to the existence of totalitarian states. Mechanical identification of legal texts has become a welcome tool for totalitarian manipulation. It has made justice, in particular, an obedient and unthinking tool for promoting totalitarian power.
Another completely unsustainable moment of application is its application based solely on its language interpretation.
Language interpretation is merely an initial approach to the applied legal standard. It is only a starting point for clarifying and clarifying its meaning and purpose (for which there are a number of other procedures, such as logical and systematic interpretation, the interpretation of e ratione legis, etc.). A mechanical application that is abstract or not aware, either intentionally or as a result of ignorance, meaning and purpose of the rule of law makes law an instrument of alienation and absurdity.
Acceptance and other sources of law, other than written law (in particular general legal principles), evoke the question of their knowledge. In other words, it calls for the question of whether their formulation of things is fanciful or whether it can be established to some extent objective procedures in formulating them.
The democratic system faces a possible libel when formulating 'unwritten law' in a dual way. It does not share such deep-rooted scepticism in our environment to be able to make responsible individual decisions and to present them on the basis of convincing arguments from the public for consideration. Thus, the first guarantee against the libel is the cultural and moral context of responsibility. The latter is a system of democratic institutions shaping the division of power. In other words, the first is the autonomous guarantee, the second is the heteronomic norm guarantee.
The characteristics defining the human community include a defined range of shared values, as well as a vision of the rationality (effectiveness) of behaviour. A Community which does not have this character can only be maintained by force (power).
The ordinary law is a typical example of the specificity and unwritten legal rules of human behavior. A general belief on the need to comply with the general rule of conduct (opinio necessitatis) and its preservation for a long time (usus longaevus or longa consuetudo) is needed in order to create a legal custom. Both of these aspects are definite aspects for defining a general rule of law (an aspect which distinguishes between the general principle and the rule of law is, in particular, the degree of generality).
In the system of written law, the general rule of law is the nature of a separate source of law only by preater legem (i.e., unless the written law provides otherwise).
Even in Czech law this applies and a number of general legal principles are commonly applied, which are not explicitly included in the legislation. An example is the legal principle that does not justify ignorance of the law or the principle of inadmissibility of retroactivity, not only for the criminal law sector. Another example is interpretation rules and contrario, a mine ad maius, a maire ad minus, reductio ad absurdum etc. Another, a modern constitutional unwritten rule, is the solution to the conflict of fundamental rights and freedoms, the principle of proportionality. These generally accepted legal principles without any doubt include, in the area of the law of the constitutional rule on the calculation of time, how they have been clearly and sensually defined in European legal thinking since Roman times. This fact does not in any way prevent the legislator or legislator, if it considers it appropriate, from defining the calculation of time in an explicitly different way. An example of this procedure by the Czech legislature in the constitutional sector is § 72 (2) of the Law on the Constitutional Court, according to which the period begins on the date applicable to its passage and not on the following day as usual. In this context, it must also be pointed out that Article 50 (1) of the Constitution is different from "the date 'which is applicable to its passage and Article 72 (2) of the Law on the Constitutional Court, according to which the term" the date' is applicable to its passage.
The purpose of the legal institute of the time limit is to reduce entropy (uncertainty) in the exercise of rights or powers, to limit time the state of uncertainty in legal relations (which, in particular, plays an important role in the light of evidence in disputes), to speed up the decision-making process with a view to realising the intended objectives. These reasons led to the introduction of deadlines thousands of years ago.
On the other hand, where the exercise of a right or a power is limited in time, it is necessary to take account of certain facts (obstacles) on the part of the body of that right or power which, not because of its fault, prevents them from being exercised. In other words, create a design that actually allows the right or the power to apply within a given time limit. To this end, legal thinking, again in Roman times, created thought structures, fiction of the construction of the deadline (passing time) or the shift of its termination.
These general legal rules (in this case legal fiction), which are by nature a legal response to practical problems, have been in force for millennia in European legal culture. As has already been mentioned, it is also possible for the legislator or legislature to proceed differently, but in this case he is obliged to expressly provide for such a procedure. As this did not happen in the case of counting the deadline under Article 50 (1) of the Constitution, both the beginning and the termination cannot be interpreted otherwise than in accordance with the generally applicable principles.
In favour of that conclusion, there is another reason or interpretation that the Constitutional Court considers crucial in this context. In a situation in which there is a dispute between the bodies applying the Constitution concerning the interpretation of a provision, that dispute must be resolved in favour of the possibility of exercising the constitutional power which it relates to, or in terms of the meaning and purpose of the constitutional institute concerned. This is the division of power between constitutional authorities in the legislative process in the case under examination.
The opinions on the present case also raise the question of the legal nature of the period in question. 15-day period referred to in Article 50 (1) The Constitution is a time-limit for service, not a time-limit for a "decision," which, moreover, the President of the Republic does not even claim in his proposal to repeal Act No 243 / 1997 Coll.. This finding does not change the fact that, in the present case, since the end of the period fell to the day of work (Saturday 28 June 1997), its last day was the next working day (i.e. Monday 30 June 1997).
Finally, the argument of the Chamber of Deputies will not stand up when it declares its readiness at the request of the President's Office to take back the law on a day of work. If the Act on Rules of Procedure of the Chamber of Deputies or other legislation does not contain provisions defining the scope of the Chamber of Deputies on working days, it is legally irrelevant to declare its readiness to take over, following the previous publication of the Office of the President of the Republic, the law returned on the day of work.
For all these reasons, the Constitutional Court concluded that the President of the Republic returned to the Chamber of Deputies for renegotiation within the time limit laid down in Article 50 (1) of the Constitution for the protection of animals against abuse, as amended. By declaring that law in the Collection of Laws without having re-voted on its adoption by the Chamber of Deputies, Article 50 (2) of the Constitution was infringed in accordance with the procedure of the Chamber of Deputies, and the Constitutional Court annulled Act No. 243 / 1997 Coll., amending Act ČNR No. 246 / 1992 Coll., to protect animals against abuse, as amended.
President of the Constitutional Court:
JUDr. Kessler v. r.
The right to give a different opinion on the grounds of the finding in the Protocol on the hearing and its connection to the decision, stating its name under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was exercised by Judge JUDr. Ivan Janů.
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Regulation Information
| Citation | The Constitutional Court found No. 30 / 1998 Coll., on the proposal of the President of the Republic to repeal Act No. 243 / 1997 Coll., amending the Act of the Czech National Council No. 246 / 1992 Coll., to protect animals against abuse, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.03.1998 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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