The Constitutional Court found no 327 / 2005 Coll.
The Constitutional Court found of 28 June 2005 on the application for annulment of Article 3a of Act No. 114 / 1995 Coll., on Inland Navigation, as amended
Valid
The Constitutional Tribunal found
Text versions:
29.08.2005
327
FIND
The Constitutional Court
On behalf of the Czech Republic
On 28 June 2005, the Constitutional Court decided on the motion of a group of senators of the Senate of the Czech Parliament to abolish Article 3a of Act No. 114 / 1995 Coll., on inland navigation, in plenary, composed of the President of the court of Pavel Rychetský and Judges František Duchona, Military Güttler, Pavel Holländer, Ivana Janů, Dagmar Lastovecký, Jiří Much, Jan Musil, Jiří Nykodmi, Miloslav Excellent and Michaela Židlicka,
as follows:
Paragraph 3a of Act No. 114 / 1995 Coll., on Inland Navigation, as amended, is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
On 5 May 2004, the Constitutional Court received a proposal from 18 Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the applicants') to repeal Article 3a of Act No. 114 / 1995 Coll., on Inland Navigation, as amended, (hereinafter referred to as" the Law on Inland Navigation ') for its contradiction with Articles 1 (1) and 2 (1) and (3) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution'), Articles 11, 35 and 36 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Convention on the Protection of Human Rights and Fundamental Freedoms', as well as the content of the Convention on the Protection of European Flora, Wild Fauna and Natural Habitates', notified under No 107 / 2001 Coll.
The appellants state that, by adopting this legal provision, Parliament of the Czech Republic exceeded its position as legislator, the provision is not of a regulatory nature and does not have any link to any other legislative part of the law. This is a preliminary interpretation decision on a future question in an individual case. By deciding that a particular waterway is in the public interest, Parliament has applied an indefinite legal concept to a particular case, but that is essentially the responsibility of the administrative body, possibly subsequently the court, in order to violate the principle of division of power. In fact, Parliament is not entitled to intervene in any way in the power of executive, Parliament has withdrawn the right of administrative authorities to decide what is of public interest and for what reason.
In the appellants' view, the contested provision also infringed the right to judicial review as it prevented it from examining in the administrative justice system whether the administrative authority correctly applied an indefinite legal concept of public interest to a particular situation. This issue has already been resolved by the legislator, with general courts examining decisions of public authorities from the point of view of legality. The appellants refer to the findings of the Constitutional Court sp. zn.
The contention of the contested provision with the Berne Convention is seen by the appellants in that part of the development and modernisation of the waterway is to be the construction of the Water Works of the Middle Žleb and Malá Břežno and the New Navigational Degree of the Přeč, where animal species protected by this Convention are found to be affected by the construction of these water works. The endangered species, protected by the Berne Convention, are in the present case the otter, the glacier, the eagle, the sea eagle, the stork, the stork, the stork, the stork, the bullock, the beaver, the salmon, the blueberry, the blue, the vaccinated blue, the smelt, the boar, the boar, the toad, the gravel, the stork, the green jumper, the stork, the lark and the lizard.
In so doing, the contested provision excludes a fixed waterway from the protection provided for in the Berne Convention. Although this Convention provides for certain exemptions from the protection of animals and plants, those exemptions are certainly not those permitted exemptions.
The appellants also state that the parliamentary debate shows that the aim of the contested regulation is to give priority to the construction of a waterway over the right of ownership and the right to protect the environment, to circumvent any possible exemptions from environmental protection and to protect shipowners, shipowners and builders from those who would like to prevent construction. The fundamental right to the environment is significantly higher than the undefined public interest. In this context, the appellants refer to the conclusions of the Constitutional Court's finding, sp. zn.
On the question of the protection of property rights, the appellants refer to the decisions of the European Court of Human Rights in the Sporrang and Lonnröth v Sweden (1982), in which the Court held that a conflict of public interest with the protection of property rights had to be dealt with in accordance with the principle of fair balance. However, this possibility of balancing is excluded and addressed to the detriment of ownership by the contested provision of apriori.
According to the provisions of § 69 (1) of Act No. 182 / 1993 Coll., as amended, hereinafter referred to as "the Law on the Constitutional Court ', the Constitutional Court requested observations on the submitted proposal from the Chamber of Deputies and the Senate of Parliament of the Czech Republic as parties to the proceedings.
The President of the Chamber of Deputies of the Parliament of the Czech Republic PhDr. Lubomír Zaorálek stated in his comments on the proposal that the purpose of the provisions of Section 3a of the Inland Navigation Act was to allow for a more smooth construction of the waterway in those sections of the Elbe and Vltava which are crucial to the inland waterway business. This regulation does not interfere with the ongoing administrative procedures, but only concerns the future adjustment, nor does it interfere with the powers of the executive, which, in individual administrative procedures, assesses the matter separately, with the fact that the administrative discretion process depends solely on it. The President of the Chamber of Deputies stated that the law was passed after a properly implemented normative process, signed by the relevant constitutional authorities and was duly declared. In this situation, the President of the Chamber of Deputies expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution, the constitutional order and our rule of law. However, it is up to the Constitutional Court to examine the constitutionality of that provision and to give a decision in connection with the application for annulment of the provisions of Section 3a of the Inland Navigation Act.
The then President of the Senate of the Parliament of the Czech Republic, doc. Dr. Petr Pithart, in his comments on the proposal, stated that the Senate did not agree with the originally proposed exclusion of the prohibitions laid down by the Act on Nature Protection and Landscape, in which he saw the illegal interference of the legislature in executive power. He therefore approved the deletion of the part of the proposal in question, with which the Chamber of Deputies subsequently agreed. However, in the case of the contested provision, the Senate did not find majority violations of constitutional principles which should lead to its non-approval. The contested provision does not decide on the preference of a given activity to the second, i.e. it does not specifically prefer the development and modernisation of a waterway against the protection of a specially protected territory, but it increases the first of them to a public interest. In the relevant administrative procedures, the competent authorities will therefore be called upon to assess which of these public interests has priority and under which conditions. Within the meaning of Article 43 of Act No. 114 / 1992 Coll., on Nature and Landscape Protection, as amended, exemptions from prohibitions in specially protected territories may be granted only if other public interest significantly outweighs the interest of nature conservation. However, the question is whether the designation of the development and modernisation of a specifically defined waterway as a public interest does not contradict the principle of power sharing. However, the Constitutional Court is competent to answer it.
The Constitutional Court also requested comments from the Ministry of Transport and the Ministry of the Environment pursuant to Articles 48 (2) and 49 (1) of the Law on the Constitutional Court.
The Minister for Transport Ing. Milan Šimonovský stated in his observations on the submitted proposal that the public interest of the development and modernisation of the waterway referred to in the contested provision of the Act derives from the international obligations of the Czech Republic, namely the Europe Agreement on Main Inland Waterways of International Significance (AGN), notified under No 163 / 1999 Coll. (hereinafter referred to as "AGN '). The contested provision concerns a waterway of international importance which is included in AGN and is quite general and normative, as it affects all cases of development and modernization which can occur on all waterways of the Czech Republic bent according to AGN in water magistrate E 20. This provision does not interfere with the individual decision-making of the authorities in the field of nature conservation and landscape conservation, as the nature conservation authorities decide individually when the other public interest significantly outweighs the interest of nature conservation and landscape conservation (Section 56 of Act No. 114 / 1992 Coll., on nature conservation and landscape conservation, as amended). Nor does the provision in question infringe any provision of the Berne Convention or Article 35 of the Charter as it concerns only the establishment of a public interest in the development and modernisation of the waterway in question. For these reasons, the Minister for Transport proposed that the Constitutional Court reject the proposal to repeal the provisions of Section 3a of the Inland Navigation Act.
The Minister for the Environment RNDr. Libor Ambrozek stated on the proposal that the contested provision regulates a particular matter, which is contrary to the requirement for the generality of the law. The waterway in question is partly situated in the protected landscape area of the Labská Sand, which is the future territory of NATURA 2000, which will be declared according to the criteria of Council Directives 92 / 43 / EEC and 79 / 409 / EEC. In the opinion of the Minister for the Environment, it cannot be established on a flat-rate basis that the development and modernisation of the waterway is always a reason for granting an exemption and such an adjustment is contrary to the Directives cited. In the case of the Berne Convention, the Minister for the Environment expressed doubts as to whether the Convention belonged to international treaties within the meaning of Article 10 of the Constitution, since it was not ratified by the Parliament of the Czech Republic. However, it has been legally negotiated and the authorities of the Czech Republic are bound by it. The exemption from the obligations set out in the Berne Convention may be authorised only by an individual legal act and not by a flat-rate law. The Minister for the Environment therefore agreed to the proposal of a group of Senators to repeal the contested provision.
The parties were asked to communicate whether they had agreed to waive the oral procedure under the provisions of Paragraph 44 (2) of the Constitutional Court Act, and were brought to the attention of the letter of the fact that, if they had not expressed their views within the prescribed time limit, their consent within the meaning of Article 101 (4) of the Civil Code would be envisaged. The legal representatives of the appellants and the President of the Senate of the Parliament of the Czech Republic have expressed their consent to the abandonment of oral proceedings, the Chamber of Deputies of the Parliament of the Czech Republic did not send its comments on the request.
The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, examined whether a law whose provision is assessed from the point of view of constitutionality was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
The Constitutional Court found from the Parliament's press and shorthand reports, as well as from the observations of the parties, that the Chamber of Deputies approved the Government's proposal for an amendment to the Inland Navigation Act, including the newly inserted provision of Section 3a, under the Rule 343 / 0, at its 23rd meeting of 12 December 2003, when 82 votes were voted on in May 70 and 25 against the adoption of the proposal. The bill was referred to the Senate, which discussed it at its 13th meeting on 21 January 2004, and by resolution 338 it returned to the Chamber of Deputies with amendments (37 Senators voted in favour of returning the motion to the Chamber of Deputies in May 28).
The Chamber of Deputies renegotiated the bill as Parliament's Press No. 343 / 5 and No. 343 / 6 and voted on it at its 27th meeting of 20 February 2004. In the case of 94 Members, 140 Members voted in favour of the bill as approved by the Senate and 7 Members voted against it. Then the amendment to the Inland Navigation Act was signed by constitutional officials and duly declared in the Collection of Laws in the amount of 39 under No. 118 / 2004 Coll.; the date of entry into force of the Treaty of Accession of the Czech Republic to the European Union (i.e. 1 May 2004). Thus, the amendment to the Inland Navigation Act was adopted in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the rules laid down in Article 39 (1) and (2) of the Constitution.
The Constitutional Court notes that the application complies with all the formalities laid down by the Constitutional Court Act and that there is no impediment to its hearing by the Constitutional Court.
For the sake of completeness, it should be noted that the contested provision was inserted in the Government amendment to the Act by an amendment contained in the resolution of the Economic Committee of the Chamber of Deputies No 155 of its 23rd meeting, held on 3 December 2003. In the draft law approved by the Chamber of Deputies on 12 December 2003 (Chamber of Deputies No 343 / 4), Section 3a was worded as follows:
The development and modernisation of the waterway defined by the Elbe water flow from the river km 129,1 (Pardubice), on the national border with the Federal Republic of Germany and the Vltava water flow from the river km 91,5 (Třebenice) including the Vranany - Burin river to the water flow of the Elbe, including the upper part of the water flow of Berounka to the port of Radotín, is in the public interest. Where such a waterway lies in a specially protected territory, the activities related to its development and modernisation shall not be subject to the prohibitions laid down in the specific legislation (1a).
(1a) Act No. 114 / 1992 Coll., on Nature and Landscape Conservation, as amended. '
The amendment approved by the Senate on 21 January 2004 required the deletion of the second sentence of Section 3a, including footnote 1a). As mentioned above, the Chamber of Deputies adopted this Senate proposal.
The contested provision as amended shall contain the following text:
The development and modernisation of the waterway defined by the Elbe water flow from the river km 129,1 (Pardubice), on the national border with the Federal Republic of Germany and the Vltava water flow from the river km 91,5 (Třebenice), including the Vranany-Burin navigation channel to the Elbe water stream including the upper part of Berounka water flow to the port of Radotín, is in the public interest. '
The Constitutional Court has examined the proposal submitted to abolish the provisions of Section 3a of the Inland Navigation Act and finds that this proposal is justified. The contested provision is unconstitutional because it infringes the principle of division of powers enshrined in Article 2 (1) of the Constitution. By declaring the development and modernisation of a particular waterway as a public interest in the law, Parliament failed to comply with the requirement for the universality of the legislation, applying an indefinite legal concept in a particular case and thus intervening in the power conferred on the executive.
The Constitutional Court has repeatedly expressed its views in a number of its decisions on the requirement of the general rule. In the find sp. zn. Pl. ÚS 55 / 2000 (Reports of Decisions, Volume 22, Found No 62: Declared under No 241 / 2001 Coll.) stated the following:
"The basic principles of the material rule of law include the maximum universality of legal regulation (requirement of the universality of law or of the universality of legislation). The universality of content is an ideal, typical and essential feature of the law (or even of the law at all), in relation to judicial judgments, governmental and administrative acts. The purpose of the division of state power into legislative, executive and judicial power is to entrust universal and initial power regulation to the state of legislature, based on universal power regulation and decision-making on individual cases of administration and exclusively on individual cases of the judiciary. The definition of the definition of the concept of a law (or a law) then depends on the concept of a law (a law) in a material sense, from which laws (legislation) must be distinguished in the sense of formal law. If the laws within the meaning of the formal acts of the legislature by which the legislature" authorises or authorises certain specific measures of executive bodies (state budget, state contracts, etc.) ', the "traditional teaching' considers that, in such cases, the legal authority issues - in the form of laws - administrative acts' (F. Weyr, Czechoslovak Constitutional Law, Prague 1937, p. 37), under the law in the sense of formal (and not material) legislation issued by the Government, ministries and other administrative bodies which determine the legal status of precisely individualised (designated) bodies. As much as they are a source of law in their form (legislation), their content are therefore the application of the law. '
Arguments for the universality of the law were analysed by the Constitutional Court in the decision on page Pl. ÚS 12 / 02 (ECR 29, p. 20; published under No 83 / 2003 Coll.), in which he stated, inter alia:
"In the present case, however, these aspects need to be taken into account in the assessment of the law, which regulates a unique case, which therefore also deviates from one of the fundamental material characteristics of the concept of the law, which is universality. Let us remember that the requirement of the universality of the law is an important part of the principle of the rule of law and thus also of the rule of law.... A particular argument against the laws on unique cases is the principle of division of power, i.e. the separation of legislative, executive and judicial powers in a democratic rule of law... Article 3 (1) Section 9 of the US Constitution also stated in this context:" No law may be passed containing a judgment of a court '.
Paragraph 3a of the Inland Navigation Act provides that the development and modernisation of a specific waterway is in the public interest. It therefore undoubtedly regulates a unique case and lacks the essential material character of the rule of law, which is generality. It is therefore not a material law, but the contested provision is de facto an individual legal act (cf. V. Knapp, Law theory, Prague, 1995, p. 149 - 150). It is for the Constitutional Court to assess whether this constitutes an infringement of the contested provision.
Since the contested provision was only inserted in the draft amendment by an amendment during the discussion of the proposal by the Chamber of Deputies, there is no reasoned report and its specific purpose and objective can only be estimated. However, it is clear that the contested provision follows the facilitation of the development and modernisation of a specifically defined waterway. The demonstration of public interest is necessary in the case of expropriation or forced restriction of property rights pursuant to Article 11 (4) of the Charter and the subsequent provision of § 108 of Act No. 50 / 1976 Coll., on zoning and construction regulations (Construction Act), as amended. In the light of the original wording of the contested provision, it is also appropriate to cite the provisions of § 43 of Act No 114 / 1992 Coll., on the conservation of nature and landscape, as amended, "Exceptions to the prohibition in specially protected territories pursuant to § 16, 26, 29, 34, § 35 (2), § 36 (2), § 45h and 45i in cases where the public interest is significantly outweighed by the interest of nature protection are permitted by the Government in each case."
The contested provision of Section 3a of the Inland Navigation Act therefore precludes the administrative authority from seeking public interest in the development and modernisation of the waterway in question, since it is already determined by the law itself. The Constitutional Court considers that such a solution, i.e. the declaration of public interest in a specific case by law, is unconstitutional.
The question of public interest was dealt with by the Constitutional Court, for example, in the decision on page I. ÚS 198 / 95 (ECR 5, p. 23), in which he stated, inter alia:
"It cannot be overlooked that not every collective interest can be classified as the public interest of the company in maintaining an unjustified construction. In this context, it can be concluded that the concept of" public interest 'is to be understood as such an interest which could be classified as a general or general interest. The question of general interest is addressed, for example, by F. A. Hayek in the publication "Law, Legislation and Freedom," Part II (published by ACADEMIA Praha, 1991), on page 14. The author states that "it is often erroneously suggested that all collective interests are the general interests of society; However, in many cases, the satisfaction of the collective interests of certain groups with the general interests of society may be in complete conflict. The entire history of the development of democratic institutions is the history of fighting to prevent individual groups from abusing the government for the collective interests of these groups." It is therefore necessary that the restriction of property rights should take place only after careful consideration of the basic condition of whether the restriction is necessary in the public interest.'
The public interest in a particular case is established during the administrative procedure on the basis of a measure of various specific interests, considering all contradictions and comments. The rationale of the decision, the central point of which is the question of the existence of public interest, must then clearly indicate why the public interest prevailed over a number of private, particular interests. The public interest must be found in the decision-making process on a particular issue (typically on expropriation) and cannot be established in a particular matter and priori. For these reasons, the determination of the public interest in a particular case is typically executive powers and not legislative.
For the contested provision of the law, it cannot be ascertained for what reasons the legislator has granted the development and modernisation of a specifically defined waterway status of public interest, whether it has identified any conflicting interests and how it has dealt with their existence. Moreover, it is clear that these circumstances cannot even be established as the legislative process is not equipped with the means to assess individual cases with all their context and consequences.
The relationship between executive and legislature was dealt with by the Constitutional Court in the decision on page Pl. ÚS 1 / 2000 (Reports of Decisions, Volume 18, Found No 51; published under No. 107 / 2000 Coll.), in which he stated:
"This system (note of the national committees) was replaced by a legal state based on the division of state powers: legislative, executive and judicial, in which the Parliament of the Czech Republic, composed of the Chamber of Deputies and the Senate, has only legislative power, and any executive or judicial power is lacking. The only executive power of the Chamber of Deputies is the ability to disciplinary action against its members and to decide on their consent to criminal prosecution; further carry out illegal functions consisting of the possibility of setting up an investigation committee on matters of public interest and the possibility of interfering with the Government and its members. Therefore, the Chamber of Deputies must not intervene in any way in the power of executive and self-government, except in the case of initiative or recommendations, etc. '.
The contested provision did not only intervene in executive power, but also limited the right to judicial review. Any administrative decisions (such as the expropriation) taken in connection with the construction and modernisation of the waterway in question will be subject to review by the administrative court, but the question of the existence of a public interest will be excluded from this review, since it is already established by the law to which the general courts under Article 95 (1) of the Constitution are bound. In the absence of the contested provision, the general courts could examine whether the administrative authorities did not exceed the statutory limits of administrative discretion when applying the indefinite legal term "public interest 'in a particular situation (cf. § 78 (1) of the Administrative Rules). However, that excludes the contested legislation de facto.
The issue of the exclusion of judicial review in the case of individual legal regulation was dealt with by the Constitutional Court in the finding of the sp. zn.
"The individual regulation contained in the legislation depriving the addressees of the possibility of judicial review of the fulfilment of the general conditions of the regulatory regulation of a particular entity, which lacks transparent and acceptable justifications in relation to the possibility of general regulation, must therefore be regarded as contradictory to the rule of law (Article 1 of the Constitution), which is an immune division of powers and judicial protection of rights (Articles 81 and 90 of the Constitution). '
Although the contested provision is not entirely excluded from the judicial review, its restriction is so serious that the conclusions expressed in the finding are also fully affected by the case under consideration.
In view of the above arguments, the Constitutional Court considers that the contested provision of Paragraph 3a of the Inland Navigation Act is incompatible with the principles of the rule of law, in particular the principle of division of power, and is contrary to Articles 1, 2 (1) and (3), 81 and 90 of the Constitution, as well as Article 36 of the Charter. Therefore, from the point of view of the implied constitutional bail-out, the proposal to abolish the provisions of Section 3a of the Inland Navigation Act appears justified.
Therefore, the Constitutional Court annulled the provisions of Section 3a of the Inland Navigation Act pursuant to Section 70 (1) of the Constitutional Court Act.
In view of these reasons, which led to the annulment of the contested provision of the law, the Constitutional Court no longer addressed further objections in relation to the breach of the Berne Convention, which the proposal contained.
The legal issues discussed and all the facts of the case were sufficiently clear from the paper documents. As the oral hearing could not be expected further clarification of the case, the Constitutional Court, with the consent of the parties, waived it under Paragraph 44 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 327 / 2005 Coll., on the application for annulment of § 3a of Act No. 114 / 1995 Coll., on Inland Navigation, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.08.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0