The Constitutional Court found No 4 / 2022 Coll.
The Constitutional Court found of 7 December 2021 sp. zn.
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4
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn.
as follows:
I. Paragraph 9 (4) of the Second Act No 94 / 2021 Coll., on emergency measures in the event of an outbreak of COVID-19 disease and on the amendment of certain related laws, is repealed in the words "refundable financial assistance."
II. The remainder is rejected.
Reasons
Definition of the subject-matter
1. The Constitutional Court received on 24 March 2021 a proposal from a group of senators, under which Senator Jan Horník (hereinafter referred to as the "applicant '), pursuant to § 64 (1) (b) of Act No 182 / 1993 Coll., on the Constitutional Court, by which the appellant sought the annulment of Act No. 94 / 2021 Coll., on emergency measures in the event of an epidemic of COVID-19 and on the amendment of certain related laws (for which the designation" pandemic law' (hereinafter referred to as "the Constitution ') was inserted in both in both the lay and the professional public, which is not entirely accurate but is so widespread that the Constitutional Court will continue to adopt it) under Article 87 (1) of the Constitution of the Czech Republic (hereinafter" Constitution'). At the same time, the appellant requested a preliminary examination of the proposal under Section 39 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
2. The draft was formulated as an alternative (or correctly possible - note of the Constitutional Court), as the appellant requested after the Constitutional Court the annulment of the entire pandemic law for the constitutionally defective conduct of the legislative process and, in the event that the Constitutional Court did not comply with this proposal, requested the annulment of the provisions of the first Paragraph 9 (2) of the Pandemic Act and of the first Paragraph 9 (4) of the Pandemic Law.
3. On 1 August 2021, the Constitutional Court received an amendment to the application by the appellant in the event of failure to comply with its application for annulment of the pandemic law as a whole for the alleged defects of the legislative process, in addition to the annulment of the provisions of § 9 mentioned in paragraph 2 above, and the annulment of § 2 (2) (a) to (f) of the pandemic law and the words "CZK 3 000 'in § 10 (2) (a)," CZK 1 000 000' in § 11 (2) (b), "CZK 500 000 'in § 11 (2) (c)," CZK 4 000' in § 11 (3) and "CZK 1 000 'in § 11 (2).
4. Since the primary proposal is directed against the whole of the pandemic law and the possible proposal against only part of it, the Constitutional Court considers the proposal to be directed against the whole of the pandemic law, with the fact that the part affected by the eventual proposal will be dealt with separately.
Compliance with procedural assumptions before the Constitutional Court
5. The applicant seeks the abolition of the Pandemic Act. The application for annulment of the law or its individual provisions pursuant to Article 87 (1) (a) of the Constitution is entitled, pursuant to Article 64 (1) (b) of the Law on the Constitutional Court in conjunction with Article 88 (1) of the Constitution, to submit a group of at least 17 senators. The current application was submitted by a group of 22 Senators and Senators, which they all confirmed by their signatures on the document delivered to the Constitutional Court by the appellant's legal representative.
6. The proposal is therefore submitted by an actively legitimate body and also fulfils other general procedural requirements under Sections 34 and 35 of the Law on the Constitutional Court, as well as specific procedural conditions for the procedure for the application for annulment of laws and other legislation under Sections 66 and 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. The Constitutional Court therefore dealt with the proposal from a factual point of view and assessed it and decided on it without a regulation of oral proceedings, since it did not carry out the evidence within the meaning of § 44 of the First Law on the Constitutional Court, as amended, and further clarification of the case could not be expected from the hearing.
7. The proposal for the annulment of the Pandemic Act was also accompanied by a proposal for a preliminary hearing of the case under Section 39 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., which Plenum did not consider necessary to decide separately, given that it was implicitly granted. Moreover, the earlier decision on the proposal was not possible because, in order to maintain procedural equality, the appellant extended it more than four months after sending its original proposal substantially equivalent to the de facto new separate proposal for the annulment of a part of the legislation, which required such a procedural approach by the Constitutional Court to the parties and interveners, in particular as regards the length of the period of time for the appellant's reply, as if it were indeed a new proposal.
Arguments of the appellant and other observations
8. The appellant explained its proposal in detail and the House of Deputies and the Senate as parties to the proceedings and the Government as intervening parties to the call by the Constitutional Court. The Ombudsman informed the Constitutional Court that he did not use his right to intervene under Paragraph 69 (3) of the Law on the Constitutional Court, as amended.
Arguments of the appellant
9. The author initially describes the repeated extension of the emergency state according to the Constitutional Act No. 110 / 1998 Coll., on the Security of the Czech Republic, as amended by the Constitutional Act No. 300 / 2000 Coll., (hereinafter referred to as the Constitutional Act on Security) from 30 September 2020, with the intention of the Chamber of Deputies when adopting the Pandemic Act to achieve the abolition of the emergency state. However, the day prior to the entry into force of the Pandemic Act, the emergency situation under Article 6 (1) of the Constitutional Law on Security was declared again, but the state of the pandemic emergency under § 1 (3) of the Pandemic Act was declared at the time of the submission of the constitutional complaint in parallel (the emergency situation ended at 12 April 2021 - note of the Constitutional Court). According to the appellant, the legal arrangements adopted to deal with a particular crisis situation cannot limit the constitutionally guaranteed fundamental rights and freedoms to a greater extent than the constitutional law on security in conjunction with Act No. 240 / 2000 Coll., on crisis management and on the amendment of certain laws (Crisis Act), as amended, ("Crisis Act '). The appellant's view that the compensation for the damage caused by the adoption of exceptional measures is thus unduly more limited by the pandemic law.
10. The appellant objects, on the one hand, to the entire pandemic law, because it considers that the rules of the legislative procedure have been infringed in such a way as to constitute its unconstitutionality, and in the event that the Constitutional Court does not, for that reason, abolish the entire pandemic law, the appellant requests the annulment of its individual provisions laid down in paragraphs 2 and 3 above, since, according to its conviction, those provisions limit the damage caused by the exceptional measures under the Pandemic Law in a manner incompatible with the constitutional order, namely Article 5 and 6 of the Constitutional Law on the Protection of Human Rights and Fundamental Freedoms ("Convention"), Article 11 (1) and (4) of the Charter of Fundamental Rights (hereinafter "Charter" Charter "), Article 1 of the Dodatk Protocol to the Convention on the Protection of Human Rights and Fundamental Rights and Fundamental Rights (" Convention "), Article 26 (2), Article 26 (2), Article 4 (2), Article 4 (2), Article 1 and (2), Article 1 and (2), Article 2), Article 2 and Article 2 and Article 2 and Article 2 and Article 2 and Article 2 and The appellant's argument can be approached as follows:
A) Objections to constitutional legislative deficits
11. The appellant first points out that an almost identical draft law, such as the pandemic law, was presented by the Government already in May 2020 (House Press 859), which was discussed in the ordinary legislative process and was not even withdrawn by the Government at the date of submission of the proposal now under consideration. Nevertheless, the Government has proposed to discuss the proposal of the Pandemic Act in a state of legislative emergency, which the President of the Chamber of Deputies has decided by decision No 96 of 15 February 2021, and pursuant to Rule 99 (2) of the Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, that the draft of the Chamber of Deputies will be discussed in a brief hearing, which was also done, and this proposal was approved by the Chamber of Deputies on 18 February 2021 and forwarded to the Senate on 19 February 2021.
12. According to the appellant, the state of the legislative emergency was not properly justified. In doing so, the Government had sufficient legal instruments to address the situation which it had been given by the declared and repeatedly prolonged emergency state, as well as Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended ("the Act on the Protection of Public Health '). With reference to the former case law of the Constitutional Court, the appellant concludes that, by this unjustifiable examination of the proposal for a pandemic law in a state of legislative emergency, there has been a serious breach of the rules of the legislative process, preventing rational discussion and criticism, submitting alternatives, etc.
13. The appellant also defines itself in relation to the way in which the draft pandemic law is discussed by the Senate. In it, the proposal was submitted to the relevant committees on 19 February 2021, already discussed by the relevant committees and the Senate plenary, which returned it to the Chamber of Deputies on 24 February 2021. The bill of pandemic law was therefore discussed by the Senate only four days after its commandments, which included a weekend. This happened outside the abbreviated negotiations under Article 118 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended by Act No. 172 / 2004 Coll., (hereinafter referred to as the Rules of Procedure of the Senate) and neither did the Government ask for such action. The Senate minority disagreed with this procedure and requested, in view of the gravity of the pandemic bill's proposal for a standard discussion, as the government had announced a declaration of emergency, regardless of the fate of the proposal in question. Most of the Senate's proposals failed. Originally, the Organising Committee set a time limit to discuss the draft law by 21 March 2021.
14. With the support of the former case-law of the Constitutional Court, the appellant also submits that the procedures of both the Chamber of Deputies and the Senate were contrary to Articles 1 (1), 5 and 6 of the Constitution and Article 22 of the Charter.
B) Opposition against the limitation of compensation resulting from the causal link with exceptional measures under the Pandemic Law
15. The appellant, starting with its argument against the contested provisions of Paragraph 9 of the Pandemic Act, draws on the principles set out in Article 2 (3) and (4) of the Constitution to require the democratic rule of law to exercise public power as a service to all citizens and that the instruments of exercising public power are not applied to the detriment of natural and legal persons. According to the appellant, the conditions for maintaining the basic parameters of the state, even at the expense of the rights of individuals, are defined by the Constitutional Safety Act. The emergency state declared under the Constitutional Safety Act is, according to the author, more serious than the state of pandemic emergency under Paragraph 1 (3) of the Pandemic Act and the Constitutional Safety Act in conjunction with Section 36 of the Crisis Act provides for more favourable conditions for compensation for damage caused by emergency measures to individuals than the pandemic law on compensation for damage caused by exceptional measures.
16. In the run-up to the emergency state under the Constitutional Law on safety and the condition of pandemic emergency under the Pandemic Act, the appellant therefore considers that the conditions for compensation under the Pandemic Act should be applied which are less favourable to individuals than those for compensation under the Constitutional Law on security in conjunction with the Crisis Act.
17. The appellant also briefly analyses the substance of the constitutional legal guarantees of ownership under Article 11 of the Charter and concludes that the compensation arrangements under Article 9 of the Pandemic Law do not meet the conditions for expropriation or compulsory restriction of property rights under Article 11 (4) of the Charter and Article 1 of the Additional Protocol to the Convention. Contrary to Section 9 of the Pandemic Law, in the context of the regime of the Emergency Act, the forced restriction of ownership rights is subject to monetary compensation without further limitation, and according to the appellant, the scope of this compensation cannot be limited by imposing additional conditions. In addition, the Crisis Act provides for a full compensation obligation in Paragraph 36 (1) for damage arising from crisis measures. On the other hand, compensation under Section 9 of the Pandemic Act is limited, which is unconstitutional according to the author. The appellant also points out that part of the right to own property pursuant to Article 11 (1) The Charter is also a legitimate expectation of acquisition.
18. The appellant sees the constitutional deficit of the compensation scheme under Section 9 of the Pandemic Act and in terms of the economic rights guaranteed by Article 26 of the Charter. The appellant admits that these rights can be restricted by law pursuant to Article 26 (2) of the Charter and that they can be relied upon only within the limits of the law under Article 41 of the Charter, but considers that even so, the compensation scheme of § 9 of the Pandemic Law infringes the very nature of those rights in breach of Article 4 (4) of the Charter. The exceptional measures provided for in Section 2 of the Pandemic Law allow the limitation of the very essence of economic rights for a specified period. If this exceptional restriction, which has been authorised by the public authorities, is not accompanied by full compensation, the appellant considers it a breach of Article 26 of the Charter.
19. According to the appellant, the liability of the State in the exercise of public authority cannot be limited solely to the liability of the State for the unlawful or incorrect decision laid down in Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by a decision or by an incorrect official procedure and on the amendment of the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended, but also to the liability for the legal procedure of the executive authorities, which limits fundamental rights. The appellant also claims, in these cases, that the extent of compensation under Article 36 (3) of the Charter cannot be limited even by law issued under Article 36 (4) of the Charter and that the denial of the principle of full compensation by judicial decision is contrary to Article 11 of the Charter.
20. The appellant considers that Article 9 (2) of the Second Pandemic Act and Article 9 (4) of the Pandemic Act exclude the costs incurred in connection with the acquisition or use of protective, washing, cleaning or disinfection devices and reduce the extent of the compensation for subsidies, repayable financial assistance and other aid granted in connection with the management of the pandemic disease COVID-19 caused by the spread of the coronavirus SARS-CoV-2 ("pandemic") or the impact of exceptional measures under the pandemic law.
21. In order to reduce the damage caused by the repayable financial assistance, the appellant states that such assistance is the funds from the state budget, the State financial assets or the National Fund which are provided to interest-free natural and legal persons in order to mitigate the effects of the pandemic and the beneficiary is obliged to return them. The reduction in the extent of the compensation pursuant to Section 9 of the Pandemic Law on Refusal Financial Assistance thus means that the State will reduce the compensation by the amount it has granted to the injured party, but the injured party is obliged to return it to the State after a certain period of time. In the end, the injured party is deprived of this amount in compensation under Section 9 of the Pandemic Act.
22. The appellant considers the transfer of the burden of proof of the fact that the damage could not be prevented or prevented to be a separate reason for the unconstitutional nature of the compensation scheme under Paragraph 9 of the Pandemic Law. According to the appellant, the liability of the State in situations where it is unable to grant individual subjective rights protection arising from the normal standard of guaranteeing fundamental rights and freedoms is of an objective nature, i.e. responsibility as a result. The State must not transfer the risk of these consequences in the event of emergency measures under the pandemic law to the damaged, according to the author.
23. Finally, the appellant pointed out that the Ministry of the Interior rejected all claims for damages under the Emergency Act in connection with the emergency situation of the spring of 2020, with a total of over 400 applications in total of over CZK 5 billion. This also follows from the letter from the Minister of Interior Jan Hamáček to the Presidents of parliamentary political parties. According to the appellant, this illustrates, on the one hand, the government's approach to compensation for the injured persons, and on the other hand, the fact that there was no "avalanche of claims" and the concern that the government justified the need to limit compensation in the pandemic law.
24. The appellant also points out from the point of view of the principle of primacy of constitutionally conformal interpretation prior to the extermination of the law or of its individual provision that, although the emergency and pandemic emergency situations could be based on the preferential application of the compensation scheme under the Emergency Act, this would not be possible after the abrogation of the Emergency State.
Extension of the proposal of 1.8.2021
25. In its procedural submission of 1 August 2021, the appellant proposed to repeal also Section 2 (2) (a) to (f) of the Pandemic Act and the selected provisions on the amount of fines for offences referred to in Sections 10 and 11 of the Pandemic Act. This extension of the proposal is, by its object and argument de facto, a completely separate proposal for the annulment of the same law, but since, in order to submit a proposal pursuant to § 64 (1) of the Law on the Constitutional Court, as amended by Act No. 83 / 2004 Coll., no expired period is prescribed, the Constitutional Court took note of the extension without considering it necessary to initiate a separate procedure.
(A) The exceptional measures selected
26. The appellant sees the unconstitutionality of the selected exceptional measures under § 2 (2) (a) to (f) of the Pandemic Law in breach of the principle of legality and in violation of the principle of proportionality.
27. The breach of the principle of legality, according to the appellant, is that the regulation of the contested exceptional measures does not ensure the accuracy, certainty and predictability of the rules as required by Articles 1 and 2 (3) and (4) of the Constitution, as well as by Article 2 (2) and (3) of the Charter. This regulation does not allow the public health authority to determine the content of the powers of the public health authority to take specific emergency measures or to ensure that they are applied consistently and equally in all cases, and neither can the legal limits on restrictions on fundamental rights and freedoms be inferred from them. According to the appellant, the legislator therefore acted in breach of Article 4 (4) of the Charter.
28. Thus, according to the appellant, the contested regulation is too broad and vague, does not implement and does no longer specify constitutional limits on the restrictions on fundamental rights and freedoms for the protection of public health. The scope and manner of limitation of these fundamental rights and freedoms cannot be determined in the contested emergency measures even by means of generally accepted interpretative methods. Although an interpretative guide may be the purpose of this adjustment, the method and scope of the restriction cannot be specified, the utilitarian aspect cannot constitute a single criterion for determining the substantive scope of the public health authority. Thus, the legislator resigned from his competence and left it to the executive without any reason, thereby creating room for the administration's application approval.
29. Although the appellant states that the review of the legal regulation in this procedure allows the reasoning to be based only on abstract constitutional arguments, and not on the actual effects of the law, it adds with one breath that the application of the administrative authorities' wishes have clearly already been demonstrated in practice, which is also evident from the criticism of the Ministry of Health's practice in the application practice of the Supreme Administrative Court. The appellant refers to the decisions of the Supreme Administrative Court which repealed a significant number of emergency measures or parts thereof issued by the Ministry of Health in the absence of a substantive competence or failure to comply with the requirement to justify the measure to the extent required by the pandemic law.
30. The appellant therefore concludes that the shortcomings in these measures found by the Supreme Administrative Court are a direct consequence of the insecurity of the pandemic law, which is an obvious consequence of the overcoming of the hearing when it is adopted and of the exclusion of extreme criticism by the feverish pressure on its adoption. Thus, the initial intention to tackle the pandemic crisis without the need for a state of emergency, on which there was majority political agreement, was not achieved, and thus the adopted text of the law does not correspond to the true will of the political majority.
31. In the context of this objection, the appellant adds that it has a fundamental reservation on the temporal scope of the Pandemic Act. The International Health Organisation declared a coronary pandemic on 11 March 2020. The Czech legislature predicts that the pandemic law will only be applied until 28 February 2022, which is an extremely unusual approach, which seems to suggest that the legislator is compared to the whole range of possible situations that may occur from 1 March 2020 (sic! - probably from 1 March 2022), which, however, cannot be objectively predicted. The fact that the "law will shut itself down" no matter what epidemic situation the Czech Republic, or the European Union and the whole world will find, completely undermines the meaning, but also the legitimacy of the law as a whole, and empties its declared purpose.
32. To support its preliminary conclusions, the applicant refers to the findings of the Constitutional Court sp. zn. Pl. ÚS 44 / 03 of 5.4.2005 (N 73 / 37 CollNU 33; 249 / 2005 Coll.), sp. zn. Pl. ÚS 16 / 93 of 24.5.1994 (N 25 / 1 SbNU 189; 131 / 1994 Coll.) and sp. zn. Pl. ÚS 2 / 08 of 23.4.2008 (N 73 / 49 SbNU 85; 166 / 2008 Coll.).
33. Furthermore, the appellant considers the contested regulation § 2 (2) (a) to (f) of the Pandemic Law to be non-discriminatory. It refers to the finding of sp. zn. However, the content of this objection is essentially merely the distribution of an indeterminate objection, as the appellant does not agree that the extent of the restrictions or prohibitions allowed by the contested regulation is neither specified nor limited in any way, and therefore the administrative authorities are granted powers which do not respect the braking system and the weighting as a substantial feature of the rule of law. The appellant points out that, when discussing the bill, some senators have already pointed out the insuitability of the regulation chosen for the intended purpose, and literally reproduces parts of their disapproval.
34. The appellant also reiterates the objection to the inconstitutionality of the pandemic law as a result of errors in the legislative process, but only in other words reiterates the above mentioned and recap in Part III.1.A).
B) To the selected upper limits of fines for offences
35. The appellant points out that the regulation of administrative penalties for offences in Sections 10 and 11 of the Pandemic Act is highly benevolent to administrative authorities and according to a number of senators and experts on criminal law, the amount of possible fines is determined by draconian law. Those, according to the appellant, may be manifestly disproportionate or beyond the limits of the property liquidation of those affected. According to the appellant, the Pandemic Law leaves completely free room for administrative authorities in the area of fines for the offences in question, thereby allowing them to be fancied. The decisive elements for administrative punishment as well as certain amounts of fines should at least be laid down in the framework at the legal level, to which the appellant refers the finding sp. zn.
36. The appellant considers it manifestly disproportionate to regard the level of fines in the "upper limit ', including in relation to any malfunctioning. It does not seem to it that an administrative authority could not impose a relatively high fine for the first, albeit serious, violation of the pandemic law. Although the contested provisions do not contain the" lower limit' of the penalties imposed, there is insufficient legal limit for the intervening administrative authorities, such as for the moderation of the amount of fines.
Observation of other parties and interveners, replica of the appellant and amendment of the application of 6.12.2021
37. The Constitutional Court sent a proposal pursuant to Article 69 of the Law on the Constitutional Court, as amended, to other parties and interveners and invited them to comment.
A) Expression of the Chamber of Deputies
38. The Chamber of Deputies, in accordance with established constitutional practice, has left an assessment of the compliance of the pandemic law with the constitutional order at the Constitutional Court and has merely summarised the course of the legislative process when presenting and discussing the draft pandemic law to the Chamber of Deputies. The Pandemic Act was published in the Collection of Laws on 26 February 2021 under No 94 / 2021 Coll. The proposal was submitted to the Chamber of Deputies by the Government on 15 February 2021 and was circulated on the same day as the House of Deputies No. 1158 / 0, in which wording the contested provisions of Section 9 did not yet contain. At the request of the Government, the President of the Chamber of Deputies declared a legislative emergency by decision No 96, and on 15 February 2021 he decided that the proposal would be discussed in a brief hearing with the omission of the first reading and ordered it to be discussed by the Health Committee, which discussed it at the meeting of 17 February 2021, and recommended that the resolution (Press No 1158 / 1) interrupt the hearing until it was discussed by representatives of all political parties.
39. The second reading of the draft law took place on 18 February 2021 and, in the context of a detailed debate, several amendments were tabled to Members as House Document 7543. The contested provisions contained a comprehensive amendment by Mr Jan Hamáček, which was sent out as House Document No 7529 and in its original version, was included in Section 8 of the proposal. However, Mr Ivo Vondrak's amendment contained the effective wording of Paragraph 8 of the Pandemic Law, which led the contested provisions to move to Paragraph 9 of the draft Pandemic Law. Another amendment did not contain modification of the compensation adjustment.
40. The third reading was also held on 18.2.2021 and the proposal was approved by Mr Jan Hamáček, as well as by the other amendments, with 132 Members of 167 present and 25 voting against him. On 19 February 2021, the Chamber of Deputies submitted a draft Senate Act, which discussed it at its 6th meeting on 24 February 2021 and returned the amendments to the Chamber of Deputies. The Chamber of Deputies, at its 88th meeting on 26 February 2021, voted on and adopted a bill with amendments to the Senate. The President of the Republic signed the Pandemic Act and on the same day as it was signed by other relevant constitutional officials, it was sent to a publication in the Collection of Laws and declared under No 94 / 2021.
41. The extension of the proposal of 1 August 2021 commented in its observations by the Chamber of Deputies through its President in the same way as the original proposal, namely the recap of the legislative process, with the fact that the contested provisions of Paragraph 2 of the Pandemic Act were part of the original government bill and did not make any changes in the course of the legislative process, and that the legislation of offences was also found in the original government bill, but not in the breakdown of offences with different levels of fines for commercial natural and legal persons on the one hand and for other natural persons on the other.
B) Statement by the Senate
42. Similarly, the Senate, which described the course of presentation and discussion of the draft pandemic law in the Senate, followed in its observations. After referral by the Chamber of Deputies, the proposal was ordered by resolution 44 of the Organising Committee as Senate Press No. 46 to discuss the Committee on Health and the Constitutional Law Committee and set a deadline for them by Wednesday 24 February 2021 until 13.00. On 23 February 2021, by Resolution No 46, the Organising Committee approved a proposal to supplement the 6th Senate meeting in its 13th term of office, in which it was also discussed on 24 February 2021. The two committees recommended that the Senate return the bill to the Chamber of Deputies with amendments, namely the Health Committee by Resolution No 21 and the Constitutional Legal Committee by Resolution No 29. By voting No 3 at this meeting, the motion of Senator Ing. Jan Horník to remove Senate Press No. 46 from the agenda of the 6th session in the 13th term of the Senate was not accepted, as only 14 senators from the 76 were voted for.
43. On its behalf, the Prime Minister asked the Senate to discuss the proposal for a pandemic act in an abridged manner, against which Senate Vice-President Jiří Růžiček spoke, according to which the Senate should not let the Government and the Chamber of Deputies push itself into the abridged act in order to allow the proposal and any amendments to be discussed in due time and politely. The Senate decided positively in vote 5 on the motion for abridged negotiations, with 48 senators out of 76 voting for it. In the course of the debate, the proposal to approve the pandemic bill, as it was referred to the Senate, was not made and the proposal by Mr Jaroslav Doubrava to reject the proposal was not accepted. Following a detailed discussion by Resolution 117 on the basis of vote 24, the Senate returned the proposal for a pandemic law to the Chamber of Deputies with amendments proposed in agreement by the Committee on Health and the Constitutional Legal Committee, none of which concerned the adjustment for damages, which thus remained in the form of amendments approved by the Chamber of Deputies. 58 senators and senators of 70 present were voted against in order to return the bill to the Chamber of Deputies.
44. The Senate further stated that a broad discussion was held during the discussion of the draft law, particularly as regards the need for and compliance with constitutional principles, and reproduced the content of the essential acts of the opponents of the bill (particularly the Senators Jaroslav Chalupski, Jaroslav Doubrava and Lukáš Wagenknecht), expressing doubts about the concept of pandemic law itself, as well as the Senators and Senators, who saw shortcomings in the proposal, but were with some discretion for its adoption, or some amendments (Jiří Čunek, Miloš Vyšl, Martin Číčíčíček, Miroslavíčková Něcová). In particular, Senators and Senators Jan Hurník, Petr Štěpánek, Miloš Horská and Lukáš Wagenknecht had reservations about the speed of the legislative process. In the debate on the limitation of compensation, Senator Lukáš Wagenknecht, who proposed to replace the concept of damage with the concept of injury, spoke in particular.
45. To extend the proposal of 1 August 2021 The Senate, through its President, referred to its comments on the original proposal in the course of the legislative process. In addition to its previous observations, the contested provisions contained in Sections 2, 10 and 11 of the Pandemic Act stated that the Constitutional Legal Committee recommended that the draft Pandemic Act be returned to the Chamber of Deputies with amendments which, inter alia, reduced the upper limit of the penalty for infringements under the Pandemic Act to half and triggered an increase in the penalty in the re-committing of the relevant offences. Furthermore, the Senate's observations contain a brief summary of the discussion on the provisions in question, to which some Senators criticised and disagreed, in particular, with the scope of the obligations which the pandemic law allows to impose and the draconicity of fines; On the other hand, other senators pointed out that the fines which the pandemic law allows to impose are identical to those which the public health law allows to impose. It is further emphasised in the Senate's observations that neither the draft constitutional legal committee nor the amendments concerning the provisions of § 2 of the pandemic law were accepted by the Senate.
C) Government observations
46. In its observations, the Government first briefly described the circumstances of the submission of the draft pandemic law to the Chamber of Deputies. The proposal was submitted by the Ministry of Health to the Government on 15 February 2021 and was granted an exception to the implementation of the inter-ministerial comment procedure, the implementation of the regulatory impact assessment (RIA) and the discussion of the Legislative Council of the Government. In view of the need for the adoption of the law at the earliest possible time, the petitioner proposed the initiation of a lengthy discussion of the draft law in a state of legislative emergency under Section 99 of the Rules of Procedure of the Chamber of Deputies, as amended, and under Section 118 of the Senate Rules of Procedure. In the opinion of the President of the Legislative Council of the Government attached to the proposal, the conditions for this accelerated procedure were met, due to the pandemic and the need to manage it effectively with the proposed instruments. The proposal was approved by the Government on 15 February 2021 by Resolution 162, at which point IV, the Prime Minister, under the authority of the Government, asked the Presidents of the Chamber of Deputies and the Senate to discuss the proposal in an abridged hearing.
47. In its observations, the Government further questioned the appellant's arguments concerning both the shortcomings of the legislative process and the compensation scheme under Section 9 of the Pandemic Law. First, the government ruled against the appellant alleging that the conditions of the legislative emergency were not met. With the support of the case-law of the Constitutional Court, it stated that the defect of unconstitutionality does not give rise to any doubt as to the reason for the state of legislative emergency, but, when the material core of democratic parliamentary debate is concerned with the positions of the debtors themselves, the declaration of a state of legislative emergency is linked to an objective serious situation requesting an immediate response, the Chamber of Deputies has wide discretion, a wide degree of consensus is important and the best available body for assessing the existence of such a situation is the government. The Government already considers the existence of a pandemic to be a legitimate reason for discussing the draft law in a state of legislative emergency, as confirmed by the Constitutional Court in the decision of page Pl. ÚS 21 / 20 of 8.12.2020 (29 / 2021 Coll.) and the Supreme Administrative Court in judgment of 14.3.2021 No. The Government also referred to the earlier findings of the Constitutional Court, in which the debate of the laws was sought within three days in the Chamber of Deputies and nine days in the Senate.
48. The Government referred, at the conclusion of the Constitutional Court, to the finding that the reason for the shortened discussion was disrupted by a draft of a similar law previously put forward, in its opinion that this fact does not imply the unconstitutional state of legislative emergency.
49. According to the Government, a broad consensus was given in the Chamber of Deputies, as for the duration of the legislative emergency before the debate of the 86th meeting on which the proposal for a pandemic law was included, 148 of the 151 Members present were expressed in vote 2 and 133 of 167 Members present in vote 9 in vote 9 in order to comply with the conditions of the proposal for a pandemic law. It was therefore such a broad consensus, which is sufficient in the sense of the Constitutional Court's case law, as it corresponds to the so-called qualified majority necessary for the adoption of the constitutional law.
50. The appellant's objection that the urgent discussion in the Senate took place without the need for the Government to ask for it, was answered by the Government by a communication that, according to the stenographer of the sixth Senate meeting on 24 February 2021, the President of the Senate, RNDr. Miloš, had stated that the Prime Minister had requested, by letter of 9 and 15 February 2021, the Senate, on behalf of the Government, to discuss Senate Prints No 44, 46 and 47 in a short hearing under Rule 118 of the Senate Rules of Procedure. The Senate voted on Senate Press No. 46 (that is, the draft Pandemic Act) in the abridged hearing and approved it by 48 votes out of 76. Pursuant to Rule 118 (3) of the Senate Rules of Procedure, a draft law pending in the abridged hearing must be included in a meeting which will start no later than 10 days after the referral of the Senate Bill and therefore it was not possible to discuss the draft law until the Senate meeting on 17 March 2021, as requested by the appellant.
51. With regard to constitutional requirements for the negotiation of a draft law in the abbreviated procedure under the Senate Rules of Procedure, the Government has stated that they are identical to those laid down for the consideration of the draft law by the Chamber of Deputies in a state of legislative emergency which, according to the Government, is fulfilled in the present case.
52. The Government has also defined against the appellant's objection that the emergency situation or public health law provided sufficient instruments to manage the epidemic. The emergency situation should only be declared for the time necessary and it was impossible to predict how the Chamber of Deputies would stand up to another request for a declaration or extension of the emergency situation at the time of the draft law. The Public Health Protection Act then has limited possibilities, since it was not designed for such a serious situation.
53. The Government also pointed out that, prior to submitting it to the Chamber of Deputies, the draft act was discussed by the Government with representatives of the opposition who also participated in the discussion of the draft law in the committees of both chambers of Parliament and the proposal was approved by a significant ("constitutional ') majority - 132 votes out of 167 in the Chamber of Deputies, 58 out of 70 of 70 of the Senate and 124 of 156 in the Chamber of Deputies after returning the Senate with amendments. According to the Government and when discussing the bill, both in the Chamber of Deputies and in the Senate, the opposition was not denied the possibility of exercising competitive views, leading a rational discourse or discussing its amendments.
54. As regards the appellant's objections to the compensation scheme under Paragraph 9 of the Pandemic Law, the Government, referring to the case law of both the national courts and the European Court of Human Rights (hereinafter "the ECHR '), stated that, when issuing exceptional measures, the State must fulfil positive obligations to protect the most important fundamental rights, balancing the level of protection of the right to life and the right to property ownership. According to the ECHR case-law, a positive commitment to the protection of life takes precedence over the protection of property rights. Nor can this positive commitment impose a disproportionate burden on the State. The State must therefore have the possibility in emergency situations to provide for a different compensation scheme from the general arrangements contained in Act No. 89 / 2012 Coll., Civil Code, as amended (" Civil Code').
55. The Government does not agree with the appellant's conclusion that, in such cases, the compensation scheme should have been based on Article 36 (3) of the Charter, since this article concerns compensation for damage caused by unlawful action, whereas the contested provisions of Paragraph 9 of the Pandemic Law deal with compensation for damage resulting from a causal relationship with the lawful executive procedure. The compensation scheme under Section 9 of the Pandemic Law does not in any way affect the compensation scheme for unlawful decisions or malpractice by public authorities, in which case it does not in any way restrict the extent of compensation.
56. The limitation of compensation for the legal procedure of public authorities in issuing and implementing emergency measures does not, according to the Government, justify the conclusion that the standard of protection of human rights has been reduced, because in the event of exceptional measures, the State must, in accordance with the principle of proportionality, compensate for interference with various competing human rights requirements.
57. The Government further pointed out that, although it is part of the right to property ownership under Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention, as well as the protection of legitimate expectations of the acquisition of assets, according to the ECHR case-law, this does not mean that legitimate expectations apply to any, albeit hypothetical, profit, in addition to Article 1 of the Additional Protocol to the Convention does not provide full compensation. According to the Government, it is not possible to simply compare the compensation regime under the Crisis Act and the Pandemic Act, since the Pandemic Act solves a special and specific situation, while the Crisis Act applies as a general adjustment. This is also based on different assumptions, since, like some other laws (e.g. Act No 116 / 2020 Coll., on Compensation for Injury caused by compulsory vaccination), aims to compensate for the disproportionate burden on individuals in the implementation of a certain public interest.
58. The definition of specific cases and conditions for compensation from public budgets is primarily a matter for the legislator. The Pandemic Law takes account of the specificity of the pandemic and assumes that the same standard adopted by the legislator in other partial cases cannot now be applied, as this would unduly burden public budgets.
59. The Government also argues against the applicability of Article 11 (4) of the Charter to the compensation scheme under the Pandemic Act. It is not as intense an interference in property law as Article 11 (4) of the Charter envisages, but only a regulation of the exercise of property rights, as in the case of the regulation of the exercise of title to firearms, to motor vehicles, etc. The Government also recalls the possibility of similar restrictions on property rights by exceptional measures under the Public Health Protection Act, which contains no provision for compensation.
60. According to the Government, Paragraph 9 of the Pandemic Law does not, according to the Government, destroy the essence of property law, interfere with it in an excellent way and it cannot have a breathtaking effect, since, in conjunction with support programmes, subsidies and aid, the State seeks to ensure that those who cannot carry out economic activities as a result of the pandemic and its management measures are reimbursed for fixed costs and costs which enable legal and factual existence to be maintained, as well as for basic living needs.
61. According to the Government, the appellant is also wrong to bear an objective responsibility based on the principle of full compensation, including loss of profits. The already problematic proof of the amount of profit lost is now even more complicated by the controversy, to what extent the state's measures to mitigate the epidemic contribute to the lower profit and to what extent the downturn in economic activity due to the fear of pandemic activity, far beyond the practical impossibility.
62. The appellant also, according to the Government, interprets the constitutional protection of property rights in such a way that a positive commitment by the State is to ensure continued, uninterrupted and ever-increasing profit for entrepreneurs, which ignores the fact that a risk of loss is part of the right to do business.
63. Finally, the Government also expressed its views on the appellant's alleged rejection of all claims for refunds made in connection with the spring 2020 epidemic by the Ministry of Interior. According to the Government, the key nature of the intervention by the public authority to which the damage was due is the compensation scheme. The compensation for damages under Section 36 of the Crisis Act follows the principle of the so-called "special sacrifice 'and therefore applies only to damage resulting from emergency measures having an individual character and directed towards a particular person or persons. In the case of emergency measures having the nature of the sui generis law, it is not possible to comply with § 36 of the Crisis Act.
64. In addition to the extension of the proposal of 1 August 2021, the Government, referring to the explanatory memorandum to the pandemic law, recalled the reasons for adopting a different regulation from the Act on the Protection of Public Health, limited timeliness and penalty rates for infringements. The need for the adoption of a special law is justified by the Government by the fact that the Public Health Protection Act does not offer all necessary mechanisms for managing the pandemic crisis and, for some of the measures it contains, doubts about their legality have arisen when adopted with national application; the reception procedure has also not been sufficiently modified. Temporary treatment was justified by the need for a prompt response to the recent development of the pandemic, while current scientific knowledge on its management may not be applicable in the future to other similar crises. The maximum penalty rate is then intended to reflect the need for both preventive and repressive functions to be adequately fulfilled, taking into account the various economic forces of the entities to which this obligation may be imposed.
65. The Government also made a detailed statement on the appellant's arguments on the inconstitutionality of the contested provisions of § 2 of the Pandemic Law. It considers that the competence of the Ministry of Health and other public health protection bodies is sufficiently defined in Paragraph 2 (1) of the Pandemic Law, as is the personal and substantive competence that is sufficiently specific. The Government recalls that the law is a general law and that in the case of crises such as the current pandemic, the need for general regulation is increased by the requirement for a flexible response to a specific need. The appellant's idea of the specificity of regulation is absurd, according to the Government, because the legislator would have to think of every conceivable detail and living situation, which is impossible in legislative practice. The government sees the analogy in the relationship between the law and the statutory implementing regulation, with exceptional measures such as general measures resembling legislation to some extent. According to the Government, the basic framework, consisting of the definition of the area and subject matter of restrictive measures, is laid down by the pandemic law, in more detail than the previous situation in which only Article 69 of the Public Health Protection Act could be relied upon.
66. Furthermore, the Government considers that ultra-taxative conditions cannot be laid down in a purely professional field, as the makers of emergency measures must be able to respond to developments with the most appropriate tools in the light of the volatility and the lack of clarity of the situation, with excessive binding of the taxa would lead to an undesirable absence of protection of public and individual health. Paragraph 2 of the Pandemic Law, according to the Government, does not lack the definition of type restrictions and allows public health authorities to take the necessary measures, which are continuously evaluated, on the basis of the current state and available data, on the basis of their expert expertise.
67. The Government is devoted in detail to the appellant's assertion that the pandemic law is not functioning in the application practice, which can be demonstrated by the number of decisions taken in the administrative judiciary which abolish emergency measures. The Government refers to the individual judges referred to by the appellant and commends them individually on the conclusion that the problem was most often a lack of justification, various procedural defects, or a breach of substantive competence, but never an application libel allowed by the inappropriate regulation of the pandemic law, as the appellant contends.
68. At the same time, the government pointed out that the pandemic law itself contained a number of guarantees and restrictive institutes. It is, for example, an obligation to impose emergency measures only to the extent strictly necessary and for the period strictly necessary under Section 3 (1) of the Pandemic Act, an obligation to take account of the current analysis of the epidemiological situation, the specific level of risk associated with the defined characteristics and the proportionality of interference in the rights of individuals under Section 3 (2) of the Pandemic Act, as well as the control mechanisms consisting, for example, of the mandatory prior consent of the Government to the measure under Section 3 (3) of the Pandemic Act, or of the obligation of information to the Chamber of Deputies to review the measure under Section 3 (7) of the Pandemic Act, as well as an obligation to inform the public under Section 5 (1) of the Pandemic Act. It stressed at the same time that the measures granted under the pandemic law were revisable in the administrative justice sector.
69. In relation to the contested provisions of Sections 10 and 11 of the Pandemic Law, the Government stated that the appellant completely omitted the existence of Act No. 250 / 2016 Coll., on Liability for Infringements and Proceedings, as amended, (hereinafter referred to as the Act of Infringement), which also regulates the substantive part common to all cases of administrative punishment. In Part Two, Title VII of the Code of Criminal Procedure, administrative penalties and criteria for their imposition are fully regulated, and these criteria are set out only by a demonstrative list, supplemented by other principles of administrative punishment, by which the administrative authorities are bound, according to the case law of the Supreme Administrative Court and the ECHR. The highest fine, which the pandemic law allows, is an amount of CZK 3 000 000, which may appear to be strict, but only applies to the most serious types of infringements, such as the violation of restrictions on the activities of a commercial or manufacturing establishment, and the increase in the upper limit in the event of recurrence is not, according to the government, disproportionate. The Government pointed out that the contested regulation reflects an exceptional public interest in compliance with anti-epidemic measures.
70. This regulation also corresponds to the penalty margin for a similar offence under Section 92n (1) (b) of the Public Health Protection Act, but compared to this law, the pandemic law differentiates between different categories of offenders and affects non-commercial individuals more moderately. In addition, the extent of the consequences of infringements under the pandemic law must be individualised according to the criteria set out in § 37 et seq. of the law of infringement in order to reflect the circumstances of a particular offence (e.g. the number of potentially endangered persons).
71. According to the Government, the contested regulation of the upper limits of fines does not even create risks of property liquidation for those affected because the pandemic law does not anchor the lower limits of fines. The contested regulation thus allows for the imposition of a very low fine, in addition, another, more moderate administrative penalty may be imposed. Individual misconduct in the application of this law cannot therefore be ruled out, but an administrative authority is bound by the obligation to individualise the sentence, taking into account all relevant circumstances, and is also imposed in administrative proceedings involving guarantees of a fair process, including judicial review. The Government also referred to the moderation authorisation of the court pursuant to § 65 (3) and § 78 (2) of Act No. 150 / 2002 Coll., Administrative Rules.
72. The Government also recalled that similarly high upper limits of fines include other legislation, in particular when it comes to the protection of life and health, e.g. according to Act No. 167 / 1998 Coll., on addictive substances and on the amendment of some other laws, as amended, can be imposed fine up to CZK 10 000 000, as well as the protection of other public goods, e.g. Act No. 17 / 1992 Coll., on the environment, as amended, allows the imposition of a fine of up to CZK 1 000, Act No. 20 / 1987 Coll., on State Memorial Care, as amended, of up to CZK 4 000. Thus, according to the Government, the indication of the upper limits of the penalties for draconian fines is not appropriate compared to other legislation.
73. In addition, the Government pointed out, referring to its case law, that the Constitutional Court leaves the regulation of the sanction of criminal offences and offences to legislators and that it has never abolished the upper limit of the penalty rate. The contested upper limit and the priori cannot be described as liquidation or as having a "suffocating effect," which the Constitutional Court's case-law would not allow, since such a consequence could have only a fine imposed in a particular case, which, however, precludes the obligation to individualise the administrative penalty imposed, inter alia, with regard to the property ratios of the perpetrator of the infringement.
D) Replication of the applicant
74. The appellant used the replica rights to challenge the Constitutional Court. In response to comments from the Chamber of Deputies and the Senate, she stated that, when discussing the draft pandemic law in the Senate, objections to the unconstitutionality of both the legislative process and the compensation regime were raised by the senators. Some senators have expressed express opposition to the speed of the motion. Only 11 days have passed since the submission of the pandemic bill to its publication in the Collection of Laws, which is an extremely short time without the House of Deputies giving reasons for such action. In the appellant's view, the overcapacity of the bill, which is clear from the statements of both chambers of Parliament, cannot be healed by a possible agreement of political representation over the resulting form of the law.
75. The appellant responded to the Government's observations first by repeating her thesis that the inquality of the pandemic law and its unconstitutionality was mainly due to the government's indifference with the timely submission of a good bill, although the epidemic lasted almost a year at the time of the submission of the pandemic law, and a similar bill was submitted to the Chamber of Deputies in May 2020.
76. In order to discuss the draft law in a state of legislative emergency, the appellant stated that it did not consider the formal aspect of the decision to discuss the draft law in that state, but the absence of material reasons for it. The government itself stated that the aim was to set up predictable mechanisms in a situation where citizens of the Czech Republic have long been facing a pandemic. So there was no immediate reaction to the new situation. According to the appellant, the Government's reference to the finding of sp. zn. Furthermore, the appellant repeated several times in various variations its crucial idea that the justification of a state of legislative emergency is excluded by submitting a similar bill more than a year before the draft pandemic law. Furthermore, the appellant denies that the broad consensus expressed by the Government in the vote would be the result of a rational consensus and sufficient opportunity to exercise opposition opinions, but it is precisely the time pressure of the bill. Many legislators took the vote as a necessity, but they were not satisfied with the form of the law.
77. The appellant comments on the Government's argument in favour of the compatibility of the compensation scheme under § 9 of the Pandemic Law with the constitutional order that it is a manifestation of a lack of understanding of the State's liability in the exercise of public authority and its constitutional guarantees. The appellant objected to the requirements laid down at the constitutional level for State liability in the exercise of public authority, that is to say, if the damage is caused by the State's supreme conduct. Neither this responsibility nor its scope can reduce the legislator in any way. Where the Government referred to Article 36 (3) The Charter applies to the State's liability for damage caused by an unlawful decision or by an incorrect official procedure, then omitted that a reference to that provision was made by the appellant only to interpret the concept of "damage 'which cannot be adapted to the substance of the liability claim. According to the appellant, it is decisive that the property of the injured party has been reduced which would not have occurred in the otherwise normal standard of exercise of its rights without public intervention. It is therefore not relevant to the extent of the compensation, according to the appellant, that the pandemic law has the nature of a special law, nor is it relevant to the fact that there is a substantially larger number of victims, nor is it relevant to the impact on public budgets. According to the appellant, it is the public authority that decides the number of persons affected and the duration of the interventions caused by the exceptional measures.
78. The appellant further defines itself against the government's argument by balancing competing interests. According to the appellant, this cannot mean that any interference with property law would have to be sustained in the proportionality test if it is of a competitive interest. The appellant also disagrees with the interpretation of § 36 (1) and (2) of the Crisis Act, since in its view paragraph 2 does not determine the extent of the compensation but the method of determining the amount of one of the separate components of the damage referred to in paragraph 1. The appellant also disputes the non-applicability of Article 11 (4) of the Charter invoked by the Government. According to the appellant, it is quite clear that there is a forced restriction on property rights in the event of emergency measures in the management of the epidemic. In the case of goods intended for business purposes, the right to use and to use is affected. The essence of such things is the use of third parties. The appellant demonstrates this in the example of the owner of the fitness centre, who, in her view, cannot be argued as not limited in its own right to exercise machines, because it can use them itself because it has these training machines for customers.
79. The complexity of the evidence of loss of profit, as pointed out by the Government, is, according to the appellant, irrelevant, in particular in a situation in which the substance of the claim is already established at constitutional level as a responsibility for the damage caused by the exercise of public authority. The appellant also denies that public power could fulfil its positive commitments in disasters and other threats in a way that involves causing damage to individuals without the possibility of compensation. Individuals are not obliged to bear the burden of a positive public health obligation. The appellant does not deny the State's ability to intervene in the protection of public health in the use of property, but it sees the unconstitutionality to exclude full compensation. The Government's reference to the ECHR's case-law on fair balance is considered incorrect by the appellant as it was not compensation for damage caused by exceptional State measures but directly caused by a natural disaster.
80. The appellant also contends against the Government's claim that it is constructing the State's obligation to ensure a lasting profit for entrepreneurs and that it denies that the risk of loss is part of the right to do business. The appellant made no such statement, merely pointing out that even in the event of a restriction on the right to conduct business under Article 26 of the Charter, its substance and purpose must be investigated. The appellant also reiterated some of its original arguments concerning the reduction of compensation for the subsidies granted, the aid and the repayable financial assistance.
81. The appellant made use of that right and, in the reply, first of all stated that the pandemic law does not correspond to the declared purpose in the contested parts and does not eliminate the identified shortcomings in the legislation on public health protection in terms of the requirements of certainty, accuracy and predictability of the legislation on measures to manage the pandemic. In the case of contested fines for selected offences, according to the appellant, the situation is so specific that the general criteria under the law of infringement are not sufficient. If the criteria for assessing the seriousness of the act are not stated directly in the Pandemic Law, the indiscretions of the administrative authorities in imposing fines cannot be prevented.
82. According to the appellant, the contested provisions of Paragraph 2 (2) of the Pandemic Law are problematic because they do not establish sufficiently certain criteria for limiting fundamental human rights and freedoms. The appellant does not scold for taxing or case-law, but considers that, with such a fundamental impact as the pandemic law has, the limits within which the constitutional fundamental rights and freedoms guaranteed may be restricted must be clearly established. This lack also results in non-compliance with the principle of proportionality, as this principle cannot be fulfilled in the absence of closer limitation criteria. In particular, according to the draftsman of Paragraph 2 (2) of the Pandemic Law, the extent of the spread or the level of risk to the various types of measures is lacked, in fact, by virtue of the substantive scope of the Pandemic Act, the public administration is able to restrict fundamental human rights and freedoms without any link to the epidemic situation, even when the danger has already been suppressed. Furthermore, the appellant considers it a fundamental problem that the Pandemic Law does not establish the substantive scope of the administrative authorities in a conditional manner so that they can use their powers only when strictly necessary and to the extent that they are in line with the identified urgent need.
83. Another substantial part of the appellant's reply is the controversy with the Government's observations on individual court decisions, which the appellant has given as examples of the faulty application of the pandemic law and the references to which the Government considers misleading and arguments incorrect.
84. As regards the contested upper limits of certain fines, in its reply, the appellant did not recognise the Government's argument and referred to the extension of the proposal. The appellant does not consider that the government objected to the existence of a general regime of liability for infringements to be sufficient to fulfil the requirement of predictability of the legislation. The regulation of fines imposed under the Pandemic Act for the offences contained therein is too broad, according to the appellant, because it is based only on a general and indefinite definition of powers under Paragraph 2 (1) of the Pandemic Act, but no longer takes into account what specific measure was taken on the basis of it in the individual case. The specific feature here is that these measures provide for obligations that often prohibit activities that would normally have no signs of delinquency.
85. Since it is not generally stated in the measures themselves adopted under the Pandemic Act that the specific letter of Paragraph 2 (2) of the Pandemic Act is issued, it is unpredictable for the addressees of the illegal regulation of the Pandemic Act to what the facts of the infringement actually fulfil their infringement. Individual offences do not distinguish their facts according to the type of conduct and the severity of the consequences associated with it, thus lacking legal basis for determining the nature and gravity of the offence. According to the appellant, the failure to establish the lower limit on the fine does not address the alleged draconicity of the upper limit and, on the contrary, creates another deficit of the contested adjustment consisting of an excessive tariff margin. The comparison with the rates for other offences will not stand up, as in the cases referred to by the Government, acts are intrinsically undesirable and socially unacceptable, with typically adverse consequences, threatening public goods even under standard circumstances. The appellant also does not agree that it is up to the legislator to set the criminal policy, because constitutional limits on legislative power in this area are principles of differentiation and proportionality of sanctions.
86. The appellant also points out that infringements under the pandemic law should only allow for less socially harmful conduct, as more serious cases already fulfil the signs of criminal threats. Despite this, the upper limit of the fine rates is excessively high.
Legislative process and assessment of its constitutional conformity
87. The Constitutional Court first dealt with the contested law from the point of view of the constitutional conformity of the legislative process, since if this process would give cause for deregation, the Constitutional Court would abolish the pandemic law as a whole, and the issue of compensation would be lost.
General considerations
88. In its decision-making activities in the proceedings for the annulment of laws and other legislation pursuant to § 64 et seq. of the Law on the Constitutional Court, as amended, in the exercise of the power to abolish laws or their individual provisions pursuant to Article 87 (1) (b). (a) The Constitutional Court, when assessing the defects of the legislative process, takes the view that even such a defect may establish the unconstitutionality of the contested law, it must be a breach of the essential rules of the legislative process and, at the same time, such errors must reach constitutional dimensions [cf. In this context, the protection of free political competition and the protection of minorities is of particular importance, particularly of the parliamentary opposition [cf., for example, the finding of sp. zn. Pl. ÚS 87 / 20 of 18.5.2021 (232 / 2021 Coll.)]. In cases of formal infringements of the rules of the legislative procedure, the Constitutional Court therefore bases its principle of proportionality on the priority of the protection of the principles of the democratic rule of law, in particular with regard to the protection of the legitimate interests of individuals, legal certainty, predictability of law and legitimate expectations, before [finding sp. zn. Pl.
89. However, the anti-constitutional nature of a law consisting of infringement of the rules of the legislative process, even in specific procedures (e.g. complex amendments, discussion of a draft law in a state of legislative emergency, merging a debate on several bills) is not founded if the law has not been prevented from actually being assessed and discussed with the participation of a parliamentary minority, detracting it from a full opportunity to express its views and subject it to a real debate [finding sp. On the contrary, the lack of one phase of the legislative process can be remedied at another stage [finding sp. zn.
90. In the past, for example, the Constitutional Court did not consider the breach of the Rules of Procedure of the Chamber of Deputies, as amended, of the conclusion of the third reading debate, although other Members were still registered in it, if the repeal of the Act would be contrary to the principle of legal certainty and the principle of the protection of constitutionality [finding sp. zn. Resolution sp. zn. Pl. ÚS 10 / 09 of 24.1.2012 or the finding sp. zn. Pl. ÚS 39 / 08 of 6.10.2010 (N 207 / 59 CollNU 3; 294 / 2010 Coll.)].
91. As regards the state of legislative emergency, the Constitutional Court takes the view that it must not be a normal instrument for limiting legislative procedures by a parliamentary majority, in particular if the parliamentary minority does not agree with this procedure, since the discussion of the draft law with qualified participation of both members of the parliamentary majority and the parliamentary minority ensures in a democratic legal state that Parliament functions in general as well as the parliamentary minority in particular, in particular the supervisory functions of the parliamentary minority and the legitimacy of the political decisions embodied in the law. One of the components of the qualified participation of Members and Senators in the legislative process provided for the possibility of getting familiar with, taking an opinion on the draft law and discussing it is a sufficient time-frame for doing so; This is therefore an exception to the rule for which, in a particular case, a sufficiently serious reason must always be given over the interest in discussing the draft law in a standard manner [cf. e.g. the finding of sp. zn. Pl. ÚS 53 / 10 of 19.4.2011 (N 75 / 61 SbNU 137; 119 / 2011 Coll.)].
92. The state of the legislative emergency provided for in the Rules of Procedure of the Chamber of Deputies, as amended by the Constitutional Court, has already described as an existing Praeter Constitution, since at the level of the constitutional order the expressly shortened discussion of the Government's draft law on security is necessary [Act No. 1 / 10], therefore there must always be an important reason for the state of the legislative emergency which is close to the procedure under Article 8 of the Constitutional Law on Security, with the potential to significantly undermine the fundamental constitutional rights of individuals or to cause significant economic damage to the state [which is not identical to the concept of private law; 269 / 2010 Coll.], which has to be excluded from the ordinary political processes (and which have the potential to significantly threaten with the fundamental constitutional rights of the House of the Constitutional State of the Czech Republic of the Czech Republic of 7. 9.
93. The Constitutional Court has also previously acknowledged that the reason for a state of legislative emergency may not always be only a natural disaster or a comparable unforeseen event, but may also be another extraordinary departure from the normal course of political processes that pose the risk of the abovementioned qualified interests. The state of the legislative emergency did not in the past consider the Constitutional Court as a reason for the unconstitutional nature of the law adopted by it, for example, when there was a temporary distress resulting from a failure of the Government in the preparation of a law responding to the law in respect of the salary of judges by the Constitutional Court with deferred effect, and there was a risk that Parliament would not be able to adopt a new law before the effects of the devolution, and thus the solution of the judges' salaries would be in a legislative vacuum, and the draft of the new law would be dealt with in a state of legislative emergency [finding sp.
Adoption of pandemic law
94. The progress of the legislative process in the adoption of the pandemic law was sufficiently described in Parts III / 1 and III / 3 of this finding at the relevant points and therefore no need to recap it at this point. A dominant element of the appellant's argument in terms of the shortcomings of the legislative process is the adoption of a pandemic law in a short act in a state of legislative emergency in the Chamber of Deputies and in a brief act in the Senate (hereinafter, for the sake of clarity, both processes together are "abridged '), since there are no other errors other than those of this exceptional legislative procedure in relation to the manner in which the pandemic law is adopted and no other possible errors in its proposal or other documents contained in the file.
95. On the basis of its above-outlined case-law bases, the Constitutional Court had to answer the following questions when assessing the constitutional conformity of the legislative process of adopting the pandemic law: first, whether procedural errors occurred in this process; Secondly, whether there was a legitimate reason for a brief discussion of the proposal for a pandemic law outweighs the need to maintain a proper legislative process; Thirdly, whether parliamentary debate and protection of the parliamentary minority have been sufficiently ensured when discussing the draft pandemic law; Fourthly, whether, where appropriate, the defects identified in the previous steps individually or cumulatively reach the constitutional legal plane, including whether and how they have been healed or mitigated at other stages of the legislative process.
A) Whether procedural errors have occurred in the legislative process
96. In its original proposal, the appellant questioned, inter alia, that the relevant proposals under Section 99 (2) of the Rules of Procedure of the Chamber of Deputies and under Section 118 (1) of the Rules of Procedure of the Senate were missing for a brief discussion of the draft pandemic law. However, as is apparent from the observations of the other parties in Part III / 3 of this decision, the Presidents of the two chambers of Parliament have confirmed that the relevant requests of the Government have been made. This, moreover, was not denied in its reply by the appellant, who further focused only on the controversy with a reason for shortened discussion, and the Constitutional Court therefore has no reason to doubt the accuracy of this information. Since, as stated above, other reasons for doubting compliance with the procedural rules in connection with the adoption of the pandemic law have not been established, the Constitutional Court answers the first question in the negative.
B) Whether there was a legitimate reason for a brief hearing
97. The focus of the appellant's controversy with the pandemic law on the plane of the legislative process was precisely the objection that there was no legitimate reason for its brief discussion. On the other hand, the Government stated that the pandemic itself was the reason. The Constitutional Court agrees with the appellant's partial reservation that the very existence of this pandemic eo ipso cannot be a reason for a brief hearing.
98. Even in the case of long-standing or prolonged crises, it is not possible to resign from weighing against each other the constitutional order of protected interests on the capacity of legislative power and on the adequate protection of parliamentary debate and parliamentary minorities, and to blindly shift the balance in favour of the first said interest, and to irrevocably conclude that there is a causal link between the need to respond effectively, in particular in this regard quickly, to the crisis and to the short-lived debate.
99. It is this causal nexus that is the primary requirement of the legitimacy of the ground for adopting the law in a brief discussion. As easily as it can be imagined that, even under normal circumstances, without an acute crisis, a legitimate reason can be given for a brief discussion of the draft law, it can be imagined that even in a period of long-term crisis, draft laws whose proper negotiation will not affect the resolution of the crisis. However, this causal nexus is a prerequisite necessary, not sufficient. If given, further consideration must be given as to whether there is a concrete and timely legitimate reason for a brief discussion at the time of the draft law, and whether that reason is strong enough to limit parliamentary debate and, in particular, the protection of the real participation of the parliamentary minority in it to a constitutional extent.
100. The need for concrete and up-to-date grounds for shortened discussion of the draft law also refutes the view that the legitimate reason for a shorter hearing cannot be given if the same or similar bill has already been tabled in the past but has not yet been placed on the agenda of the Assembly of Deputies. The need for a short discussion of such a bill can only arise later in time, as is the case here, among other things.
101. Since the main purpose of the Pandemic Law is to provide a legal framework with exceptional measures to combat a pandemic, which even the appellant does not dispute, the condition of a causal link between the draft law and the resolution of the crisis is given. As regards the legitimate reason for its shortened discussion, it is not enough in itself to establish the existence of this pandemic, but even in concreto the Constitutional Court considers that this legitimate reason is given.
102. The Constitutional Court is aware of the fact that the situation in which the executive and legislative powers were held at the time of the deliberations of the Pandemic Act (see, in particular, part II of the resolution sp. zn. Pl. Pl. ÚS 8 / 21 of 18.5.2021) was known from the point of view of the legal framework for the management of the fight against pandemic disease by the fact that this framework was mainly conditional on the duration of the emergency state, which, for the purpose of the disagreement of the Chamber of Deputies with its further extension, was due to the end of Resolution No 15.2.2021 Coll. 125 of 14. 2. 2021 No. 59 / 2021 Coll.
103. It is therefore clear that already at the time of the submission of the proposal for a pandemic law by the Government, the continued duration of the emergency situation as a basis for the legal framework for combating a pandemic was highly questionable, and even the Chamber of Deputies, which was mostly represented by the parliamentary opposition, insisted that this legal framework could not be used in the future and that another solution, represented by the pandemic law, had to be chosen. In fact, it was threatened that, in the accelerated failure to adopt the Pandemic Law, public power would at least temporarily find itself without an effective legal framework for managing the fight against pandemic, allowing it to take the necessary emergency measures to do so.
104. As already follows from the case law of the Constitutional Court, the specific and immediate reason for the shortfall of the draft law may not always be directly based on a natural disaster or similar unforeseen event, but also by other exceptional exceptions to the ordinary political processes, including those resulting from some indifference or malpractice of the government or other public authority. It should be added, however, that this conclusion is only valid if all the parameters of the constitutional conformity of the abbreviated draft law are otherwise fulfilled.
105. In the impending legal vacuum of the power to issue the extraordinary measures needed to effectively manage the fight against the pandemic, the Constitutional Court sees a legitimate reason for shortening the draft pandemic law.
106. Moreover, it is not for the Constitutional Court to assess the political strategy of the government or the parliamentary opposition in the fight against the pandemic, that is, whether the regime of emergency measures allowed by the declared emergency state under the Constitutional Security Act or the regime of emergency measures on the basis of a special law, since this issue is mainly political in nature. However, the constitutional relevance is that the shortened negotiation of the pandemic law was due to the power of the majority parliamentary opposition, which did not allow an extension of the emergency situation. The appellant's view that the pandemic law did not need to be adopted in a brief discussion, as the emergency measures allowed for an ongoing emergency situation, does not therefore undermine the view of the government parliamentary minority, which was forced to adapt to the majority parliamentary opinion, but to the opinion of another part of the parliamentary opposition.
107. Although discussions between opposition political forces (i.e. those not part of a government minority or a government majority) are desirable and constitutional protection in a democratic and legal state, such protection cannot ultimately lead to paralysis in the activities of public authorities responsible for combating pandemics by making it impossible, albeit temporarily, to manage this fight effectively on the basis of emergency and pandemic law. This would undoubtedly create a threat to the life and health of a large part of the population. Thus, the need to ensure a legal framework for the effective fight against the pandemic outweighs the need for a standard discussion of the pandemic bill.
C) Whether Parliament's discussion was sufficiently secure in the short discussion
108. Part III / 3 of this finding states that the pandemic law was discussed by Parliament in a short discussion in 12 days (including the day of the circulation of the proposal), including with the renegotiation of the Chamber of Deputies after the Senate has returned the proposal. The Constitutional Court agrees with the appellant that this period is relatively short for such an important piece of legislation, but it cannot be considered to be absolutely insufficient without further ado, as it does not in itself exclude the proposal of Members and Senators from being sufficiently studied, assessed and discussed in substance, including opposition opinions. Indeed, the opposite conclusion, which calls for a certain unbiased minimum time to be discussed, could lead to the exclusion of early adoption of a law, the need for which is accompanied by extreme time pressure.
109. As the Government rightly pointed out, the Constitutional Court had not previously seen the unconstitutionality of the draft law in a shorter period of time, and due to the time constraints described above, the threat of insufficient means of managing the fight against the pandemic is not problematic as far as the negotiation of the draft pandemic law is concerned. If, in this context, the appellant points out that up to now two days of working time are included, then the Constitutional Court states that, in the exceptional circumstances in which this proposal was put forward and discussed, it was not unreasonable to ask the Senators to take account of the exceptional nature of the situation also by familiarising themselves with the proposal on the days of working time, it was also entirely up to them to do so or not, and therefore have adequate time to examine the proposal.
110. It is also apparent from the observations of the parties in Part III of this finding that both the Chamber of Deputies and the Senate have dealt with the draft law in substance and in relation to the request for a shorter hearing. The proposal was submitted to the committees of both chambers represented and members of the opposition, both of which were debated, in which very critical views were also heard in terms of content and the way in which the draft pandemic law was discussed, and a vote was held on the basis of them. If the appellant contends that the relevant minority of Senators did not agree with the abridged hearing, the Constitutional Court points to its above-mentioned caselaw, according to which the opposite angle of view is decisive, i.e. whether a convincing majority has spoken for such action (see paragraph 92 above).
111. In the present case, even the "constitutional" majority of all Members (already 120 votes) and the majority of the senators present have been achieved in all relevant votes. For the duration of the legislative emergency, 148 Members of the 151 who were present voted in favour of the proposal for a pandemic law, 133 of the 167 who were present voted in favour of the extension of the legislative act, and 48 of the 76 who were present in favour of it (the "constitutional" majority of the senators present was therefore 46 votes, with 49 votes being even the three-fifths majority of all senators). The fact that rational discussion and opposition to the proposal for a pandemic law has not been prevented also suggests that the Senate has brought the bill back to the Chamber of Deputies and that the Chamber of Deputies has adopted it in this text. The qualified exchange of views has thus undeniably taken place between the two parliamentary stages of the legislative process.
112. Nor is the objection that, over limited time, pressure has been put on Members and Senators to accept the bill without a more extensive debate in a form they were not satisfied with. First, it complies with Article 26 In addition, it cannot be ignored that, as in the vote on the shortened debate, a significant majority has been achieved in every vote on the own proposal of the pandemic law in favour of each Member and Senator, as well as in any vote on the short term. At the first debate in the Chamber of Deputies in favour of the bill, 132 Members of the 167 were present and 124 Members of the 156 who were present in the Senate's amendments; 58 of the 70 senators were voted in favour of returning the bill to the Chamber of Deputies with amendments adopted by the Chamber of Deputies (a "constitutional" majority of three-fifths thus accounted for 42 votes). The Constitutional Court is thus convinced that such a result reflects a large enough majority to withstand any pressure.
113. In addition, it should be noted that the finding of sp. zn. The negotiation of the pandemic bill fulfils both of these conditions cumulatively, which increases the conclusion that its shortened discussion does not leave the constitutional requirements unaffected.
114. Moreover, in the current case, the protection of parliamentary debate is primarily a matter of constitutional law, while the need for protection of the parliamentary minority is significantly weaker than the classic political distribution scheme of the coalition-opposition. At the time of the proposal for a pandemic law, the parliamentary majority was the opposition, in which various views on the optimal legal framework for dealing with the long-term crisis situation were combined. As the parliamentary minority was thus represented by members of the political forces forming a government coalition, there was no risk that a stable (pro-governmental) parliamentary majority could abuse the simple arithmetic of voices to unduly restrict the rights of a parliamentary minority, which is the main purpose of the special constitutional protection of a parliamentary minority.
115. This does not mean, of course, that even in such a constellation of parliamentary forces, in which neither pro-governmental nor opposition forces have a stable majority secured (i.e. a coalition, established political agreement, long-term voting in agreement, etc.), there could be no abuse of random majorities and that it would not pay for the protection of parliamentary debate and the protection of the parliamentary minority, but this protection may be weaker. In such a distribution of forces, the current parliamentary majority and the minority are created on an ad hoc basis, political actors are forced to negotiate and compromise politically, and none of them is supported by a stable majority of votes that may lead to abuse. If this is a less intensive reason for its own protection, its importance as a criterion of the constitutionality of the legislative process in the event of a brief discussion of the draft law will also fall.
116. The Constitutional Court, having considered all these considerations, finds that, in the legislative process of adopting the pandemic law, a parliamentary debate has taken place and the opposition has been protected in accordance with the constitutional requirements laid down for the discussion of the draft law in a brief discussion in both chambers of Parliament.
D) Whether any defects are of constitutional intensity
117. Since no defects were identified in the previous steps of the assessment of the constitutional conformity of the legislative process of the adoption of the pandemic law in the shortened discussion, the answer to this question is irrelevant.
118. The Constitutional Court thus concludes that the legislative process of adopting the Pandemic Act is not burdened by any defect establishing the unconstitutional nature of the Act as a whole.
Compensation for damage caused by exceptional measures
119. Since the Constitutional Court did not find the reason for the annulment of the pandemic law as a whole for reasons inherent in the shortcomings of the legislative process, it also had to deal with a more narrowly defined proposal for the annulment of the selected provisions of the pandemic law (§ 9 (2), first sentence and § 4).
120. Paragraph 9 of the Pandemic Act reads:
(1) The State is obliged to compensate for damage caused to legal and natural persons (hereinafter referred to as "injured") during a pandemic emergency in the causal link with
(a) exceptional measures pursuant to Article 2; or
(b) exceptional measures under the Act on the Protection of Public Health, the purpose of which is to manage the disease COVID-19.
(2) According to paragraph 1, actual damage shall be recovered. Costs incurred in connection with the acquisition or use of protective, washing, cleaning or disinfection products shall not be considered damage. The state does not pay for the damage if it proves that the victim himself caused it.
(3) The claim for compensation referred to in paragraph 1 may be exercised by the injured party with the Ministry of Finance within a period of 12 months of the date on which he became aware of the damage within 3 years of the occurrence of the damage, otherwise the right to compensation shall cease. The application shall indicate the identity of the injured party, the grounds for the claim and the amount thereof and the evidence showing the existence of the claim, the causal link, the amount of the claim, including the facts referred to in paragraph 4, and the beginning of the period in which the right ceases to exist.
(4) Damage is paid to the extent that the injured party proves that it could not be prevented or prevented. The amount of compensation shall be further reduced by the amount of subsidies, repayable financial assistance and other aid granted to mitigate the effects of the COVID-19 epidemic or the effects of the exceptional measures referred to in paragraph 1.
(5) The application of a claim for damages under this law is a condition for any claim for damages before a court. It is only possible to claim compensation in court if, within 6 months of the date of application, his claim has not been fully satisfied.
(6) In order to assess the claim for damages, if it is necessary to take into account the circumstances to which another public authority has access in the course of its activities, that public authority shall provide the Ministry of Finance or, where appropriate, the court with the necessary synergies.
General considerations
121. The appellant imports the unconstitutionality of the contested provisions of the Pandemic Law for three relatively separate reasons - firstly, for the alleged impossibility of replacing the regime of the Constitutional Law on Security in conjunction with Paragraph 36 of the Crisis Act with the Pandemic Law, secondly, for allegedly unacceptable interference in the right of ownership, which, in its view, is allowed by its substantial limitation without adequate compensation, and thirdly, for the State's liability for damage caused in the exercise of public authority. The Constitutional Court must therefore deal with general grounds for interference and compensation in property law, as well as the State's liability for damage caused by the exercise of public authority, including the relationship between the Crisis Act and the Constitutional Law on Security.
(A) Intervention and compensation for ownership
122. Any interference with the property right guaranteed by Article 11 (1) The Charter is admissible from the point of view of constitutional order only if it is implemented under the law and is in the proportionality test in relation to the competing legitimate constitutional protected interest in which it is exercised. According to the nature of the intervention, the obligation of compensation under Article 11 (4) of the Charter may also be imposed, but this is only if such intervention may be placed under the terms of "expropriation 'or" compulsory restriction of property rights'. If a measure of ownership under these terms cannot be subordinated, the owner of a constitutionally guaranteed public subjective right to compensation for such action does not have and its consistency with the constitutional order is assessed only according to the above conditions, i.e. the aspect of legality and proportionality test in relation to the conflicting interest [cf., the finding of sp. zn. II. ÚS 482 / 02 of 8.4.2004 (N 52 / 33 of SbNU 39), the finding of sp. zn. Pl. ÚS 21 / 18 of 14.5.2019 as amended by the amending Resolution of 3.7.2019 (N 77 / 94 of SbNU 54; 173 / 2019 Sb.), the finding of sp.
123. Article 11 (3) of the Charter allows for an inherent restriction on the right of ownership without compensation for other constitutionally protected interests. This provision, in relation to the general interest, underlines the so-called social function of ownership, which is therefore not merely a legal domain over the matter, but also obliges the owner to behave [cf. The Constitutional Court therefore assumes in its caselaw that not every restriction on property rights, even without compensation, is automatically an expropriation or compulsory restriction on property rights within the meaning of Article 11 (4) of the Charter, but that these terms fulfil either such a restriction which completely excludes the realisation of property rights, or to such an extent as to make it substantially impossible to perform or perform one of its components [the finding of sp. zn. Pl. ÚS 34 / 03 of 13. 12. 2006 (N 226 / 43 SbNU 541; 49 / 2007 Sb.)], for example, by absolute exclusion of the tenant of an apartment lease contract [find sp. III. ÚS 114 / 94 of 16.
124. The distinction as to whether "only" is a restriction on property rights which are affected only by the requirements of Article 11 (3) of the Charter, or whether such restriction has a qualified nature of expropriation or a compulsory restriction on property rights within the meaning of Article 11 (4) of the Charter, must be examined, on the one hand, taking into account whether such a restriction goes beyond the limitation on the right of ownership of all its entities in compliance with the principles of equality, on the other hand, the intensity of the intervention, determined in particular according to the extent of the limitation and duration of the period and / no), on the one hand, in particular the opinion of Sp.
125. It follows that Article 11 (4) of the Charter does not affect situations in which certain restrictions on property rights affect all owners in the same way (that is to say, taking into account the specific conditions of specific owners, which may actually affect different restrictions), that is to say, typically the restriction of property rights by regulating the treatment of certain goods by means of environmental protection, public order, legitimate interests of other persons, etc. (e.g. construction law, handling of dangerous goods such as narcotic and psychotropic substances and poisons, firearms, fissile materials, traffic arrangements on land roads, etc.). Thus, cases of restrictions on ownership by such general regulation are only measured in terms of constitutional order by Article 11 (1) and (3) of the Charter in conjunction with Article 4 (4) of the Charter.
126. The first condition of activation of Article 11 (4) The Charter is therefore that certain restrictions only affect a particular owner or group of owners. Since the unequal protection of property rights without legitimate grounds of different treatment no longer allows Article 11 (1) of the Charter guaranteeing the same content and protection for all owners in conjunction with Article 1 of the Charter and Article 3 (1) of the Charter, which provides for equality before the law and equality in fundamental rights, the expropriation or compulsory restriction of property rights pursuant to Article 11 (4) of the Charter may only be given a legitimate reason for such different treatment consisting of the overriding protection of other constitutionally protected interests. Compensation granted under Article 11 (4) The Charter is specific in that it is compensation for interference with the ownership law of secundum et intra constitutionon ac legem, that is to say that the damage caused is not the result of unlawful action by public authorities, contrary to the cases targeted by Article 36 (3) of the Charter.
127. It is therefore, in principle, a compensation for such interference in property law, which results in the need for the social distribution of burdens required to achieve different public interests (although they may ultimately consist in the need to protect the interests of purely individual interests, for example in the case of the establishment of the service of the necessary journey under Paragraph 1029 (2) of the Civil Code), which is randomly created in individual cases or groups of them (i.e. in contrast to the requirements of general public law which burden any owner who is already his or her addressee only from the ownership of a particular object or the exercise of a particular activity with it) and which is essential to fulfil the public interest in the relevant parameters, which outweighs, etc.).
128. Expropriation or forced restriction of ownership within the meaning of Article 11 (4) The Constitutional Court therefore found, for example, the obligation of the owner of the land adjacent to the water works on 29 / 08 / 2009] to allow the general use of public purpose communication on land owned by the individual [cf. sp. zn. IV. ÚS 268 / 06 of 9.1.2008 (N 2 / 48 SbNU 9)] and the obligation of the owner of the apartment to provide a replacement apartment for persons who lived without legal justification [finding sp. zn. II. ÚS 1607 / 11 of 25.4.2012 (N 89 / 65 SbNU 203)].
129. No. 9 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 05 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 05 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 05 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 05 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01 / 01
(B) The liability of the State for damage caused by the exercise of public authority
130. The State's liability for damage or damage [cf., for example, the finding of sp. zn. II. ÚS 1191 / 08 of 14.4.2009 (N 85 / 53 SbNU 79)] is governed by Article 36 (3) of the Charter. Its precondition is the illegality or illegality of a decision or other procedure of a public authority [cf., e.g. the finding of sp. zn. Pl. ÚS 1 / 19 of 30.6.2020], the responsibility being objective [cf., e.g. the finding of sp. zn. III. ÚS 124 / 03 of 11.12.2003 (N 144 / 31 of SbNU 281)].
131. The liability of the State is relatively wide because it cannot be waived and can be caused by damage caused only by the error or error in the activity of the public authority caused by technical failure [the finding of sp. zn. II. ÚS. ÚS.
132. Nevertheless, the scope of Article 36 (3) cannot be met Extend the instruments so that they could also apply to the damage caused by the lawful exercise of public authority [cf., for example, the finding of sp. zn. II. ÚS 596 / 02 of 5.5.2004 (N 64 / 33 SbNU 141)]. Typically, the liability under Article 36 (3) of the Charter does not give rise to the results of Parliament's legislative activities [cf., for example, the opinion of plenary sp. zn. Pl.
133. The regime of compensation for the limitation of property rights and compensation for damage caused by the crisis management procedure includes Sections 35 and 36 of the Crisis Act. This compensation scheme shall also apply to restrictions on ownership or damage caused by the bodies referred to in Article 3 of the Constitutional Emergency Safety Act, the state of danger or the state of war when applying this Constitutional Law. Neither the Constitutional Law on Security nor any other part of the Constitutional Code contains a specific obligation to compensate for interference with the property rights of an individual in qualified emergency situations by qualified public authority procedures (or other entities carrying out tasks imposed on them by public authority) to mitigate or eliminate them. Therefore, where, under such conditions, there is a need to expropriate, restrict or cause damage, compensation for such interference in the right to property shall be subject only to the general arrangements of Article 11 (4) of the Charter and Article 36 (3) of the Charter.
For damages pursuant to Section 9 of the Pandemic Act
134. Following the reference to the contested provisions, the Constitutional Court concluded that the compensation scheme provided for in Article 9 of the Pandemic Law could not be considered as compensation for damages contained in Article 11 (4) of the Charter or Article 36 (3) of the Charter.
(A) To Article 11 (4) of the Charter
135. For the assessment of the applicability of Article 11 (4) The Charter for the Damage Compensation Scheme under Section 9 of the Pandemic Act is a key definition of the concept of "compulsory restriction of property rights' as defined above in section V.1.A) of this finding. In order to define this concept and its limits, the relationship between Article 11 (3) of the Charter and Article 11 (4) of the Charter must be addressed. As mentioned in paragraph 123 above, Article 11 (3) of the Charter, in particular its second and third sentences, admits a constitutional restriction of ownership and enforcement in relation to the legitimate interests of others and other protected interests, while neither the Charter nor any other part of the constitutional order providing that any compensation should be granted to owners.
136. The rule of law foresees a number of situations in which public or private regulation effectively limits the owner in the exercise of his right to property without the need to compensate the owner for that restriction under Article 11 (4) of the Charter. As already pointed out in point 127 above, in view of the scope of the protection provided by Article 11 (1) of the Charter, i.e. whether or not the compensation provided for in Article 11 (4) of the Charter is part of that protection, there is a substantial difference between whether a State intervention is directly directed against a particular case and directly limiting the exercise of the right of ownership (e.g. withdrawal under the Emergency Law for the purposes of dealing with an emergency situation) and whether the restriction of another fundamental right leads to the owner being indirectly limited in the exercise of his property right.
137. In accordance with the caselaw cited in section V.1.A above, this finding is thus "compulsory restriction of property rights' pursuant to Article 11 (4) The acts of exceptional measures referred to in § 9 (1) of the Pandemic Act cannot be considered and therefore the compensation scheme under § 9 of the Pandemic Act cannot be regarded as a legal provision of the concept of" compensation 'under the same provision.
138. In addition, the Constitutional Court states that, in order to assess the constitutional conformity of these provisions, it is sufficient that they are not generally directed towards specific items or owners, but constitute a broad legal framework for the management of the pandemic, far beyond the scope and scope of the above-mentioned condition of application of Article 11 (4) of the Charter. This applies to all exceptional measures under Section 2 of the Pandemic Act. On the own examination of the constitutionality of the contested amendments to certain exceptional measures under § 2 (2) (a) to (f) of the Pandemic Act, see below part VI of this finding. Even where those exceptional measures exceptionally regulate the operation of, for example, a particular establishment or establishment (e.g. a specific business centre), the Pandemic Law does not, in the case of § 9 (1) for compensation for the compulsory restriction of property rights within the meaning of Article 11 (4) of the Charter, as it will be distributed below (see in particular paragraph 148).
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Regulation Information
| Citation | The Constitutional Court found no. 4 / 2022 Coll., concerning the application for annulment of Act No. 94 / 2021 Coll., on emergency measures in the outbreak of disease COVID-19 and on the amendment of certain related laws, possibly some of its provisions |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 14.01.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
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