Communication from the Constitutional Court No 4 / 2023 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 29 November 2022 (Pl. ÚS- st. 57 / 22) on the effects of the annulment of the Constitutional Court of 11 February 2020 (Pl. ÚS 38 / 17) on legal relations
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COMMUNICATION
The Constitutional Court
On 29 November 2022, the Plenum of the Constitutional Court was adopted by President Pavel Rychetský (Judge-Rapporteur) and Judges Ludvik David, Josef Fiala, Jan Filip, Jaromír Jirsa, Tomáš Licenčník, Vladimir Sládeček, Radovan Sukánek, Pavel Šámal, Vojtěch Šiměl, Milada Tomková, David Uhlář and Jiří Zemánek, on a proposal from the Second Chamber of the Constitutional Court under Article 23 of the Law No 182 / 1993 Coll., on the Constitutional Court, in respect of his legal opinion on proceedings under Spanish law. II. ÚS 1877 / 22, which deviates from the legal opinion of the Constitutional Court of the Constitutional Court of the Constitutional Court of 18 October 2022.
the following opinion:
I. The finding of the Constitutional Court of 11 February 2020 sp. zn.
II. By virtue of Article 13 (3) of the First and Second Rules on Conflict of Interest, namely free of charge through the public data network without prior request to the extent provided for in § 14b (1) (a) to (c) of the Act on Conflict of Interest, the right of those public officials to the State to compensation for non-material damage caused by maladministration within the meaning of § 13 (1) of the Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority or maladministration, and on the amendment of the Act of the Czech National Council No. 358 / 1992 Coll.
Reasons
Definition of the subject matter of the proceedings on a constitutional complaint
1. The Constitutional Tribunal received a complaint from the Constitutional Court on 12.7.2022, the complainant Dalibor Pavlát proposed the annulment of the judgment of the Municipal Court in Prague ("the Municipal Court") of 21.4.2022 No. 30 of the Co 118 / 2022- 96 of the part which was decided to confirm the judgment of the District Court for Prague 2 ("the Circular Court") of 6.1.2022 No. The proceedings for a constitutional complaint shall be conducted under point II.II of ÚS 1877 / 22.
2. The complainant is the Mayor of the Municipality of P. and was also the Mayor of P. during the period prior to 31 December 2020 when the registration of the notification of activities, the notification of assets and the notification of revenue and liabilities pursuant to § 13 to 14c of Act No. 159 / 2006 Coll., on conflicts of interest, as amended as from 30 June 2018 ("the Act on Conflict of Interest ') was effective, i.e. after the entry into force of the amendments implemented by Act No. 14 / 2017 Coll. and Act No. 112 / 2018 Coll. As a public official under § 2 (1) (q) of the conflict of interest law, the complainant was obliged to submit a notification of other activities carried out, a notification of the property which he held on the date before the commencement of his duties and the assets acquired during the performance of his duties and a notification of revenue, gifts and liabilities. According to Article 13 (2) of the Act on Conflict of Interest, these notices were entered in the register of notifications of activities, notifications of assets and notifications of revenue and liabilities (hereinafter referred to as the" Notice Register'), in which, pursuant to Article 13 (3), the first and second sentences of the Act on Conflict of Interest were made available to each of them free of charge through a public data network without prior request to the extent of the information provided for in Article 14b (1) (c) of the Act on Conflict of Interest.
3. The Constitutional Court's finding of 11.2.2020 sp. zn. In this finding, the Constitutional Court stated that the obligation to provide notification to the extent defined by the Conflict of Interest Act is not in itself unconstitutional and constitutes an adequate interference with the right of privacy also for public officials under § 2 (1) (q) of the Conflict of Interest Act (including the unreleased officials of small municipalities). At the same time, however, he stressed that the subsequent "automatic 'publication of this information via the Internet, without any request from a third party, would no longer stand the proportionality test. The reason for the annulment of that legal regulation was, in short, that the possibility of anonymous consultation of the register of notifications via the public data network and not of consultation on a request containing the applicant's identification data does not provide sufficient assurance against the misuse of the information thus obtained on the property ratios of public officials and is contrary to the fundamental right to protect against unauthorised disclosure of personal data guaranteed in Article 10 (3) of the Charter. The Constitutional Court justified the postponement of the enforceability of the finding by creating" sufficient time for legislators to adopt legislation that is already constitutionally consistent'. In this context, he also stated that the inconstitutionality was found "solely in the non-anonymous and completely undifferentiated electronic disclosure of property notices to all politicians', not to the extent of the information provided ', since" there is no compelling reason for distinction between different groups of public officials' pursuant to Paragraph 2 (1) of the Conflict of Interest Act (paragraph 158 of the quoted finding).
4. Although the finding of sp. zn. Pl. ÚS 38 / 17 was announced in the Collection of Laws on 8.4.2020, in view of the postponement of enforceability, access to information on individual public officials was then maintained to the same extent. The Ministry of Justice (hereinafter referred to as "the Ministry ') only restricted this approach on 6.11.2022 in response to the Supreme Administrative Court judgment of 29.10.2020 No 9 As 173 / 2020-32. It is in the possibility of anonymously viewing the register of notices, which was the reason for the inconstitutionality of Article 14b (1) (a) to (c) of the Act on Conflict of Interest, that the complainant sees a breach of his right to privacy. By actions against the Czech Republic - The Ministry of Justice therefore sought apologies and payment of the amount of CZK 30,000 with accessories as compensation for non-material damage. This action was dismissed by the judgment of the Circular Court of 6 January 2022 No 47 C 222 / 2021-72, which was subsequently confirmed by the judgment of the Municipal Court of 21 April 2022 No 30 Co 118 / 2022-96.
5. The Circuit Court concluded that the Ministry had not committed maladministration within the meaning of Article 13 (1) of Act No. 82 / 1998 Coll., on liability for damage caused in the exercise of public authority by decision or by maladministration and amending the Act of the Czech National Council No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended by Act No. 160 / 2006 Coll., hereinafter referred to as the Act on liability for damage caused in the exercise of public authority. The Ministry cannot be accused of acting under a valid and effective law. In contrast to the court, the administrative body may not file an application with the Constitutional Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and is bound by the law. In the period prior to the declaration of the finding in the Collection of Laws, the Ministry could not assess the constitutionality of the legislation in question. In the period after the publication of the finding in the Collection of Laws until 6 November 2020, the Ministry had knowledge of imconstitutionality, but in view of the postponement of enforceability, it could continue to proceed in the present way. The reason for the postponement of enforceability was precisely that the public would not be completely denied access to this public control mechanism until the adoption of the new legislation. Although the Ministry followed effective, even though the Constitutional Court already declared non-constitutional legislation, it intervened in the constitutionally guaranteed right of the complainant to privacy in vertical relations (state prosecutor) up to 6.11.2020, but in horizontal (prosecutor-public) relations it fulfilled the main objective of the law, which is to control the public.
6. In its assessment, the District Court also took into account the case-law conferring retroactive effects on the findings of the Constitutional Court published in the Collection of Laws which have deferred enforceability. In its conclusions, the Supreme Administrative Court also came to the conclusion in sp. zn. 9 As 173 / 2020, in which it concluded that the declared inconstitutionality of the legal regulation governing the disclosure of notices in the notification register prevented the imposition of an administrative penalty. According to the Circular, the fundamental difference between the interpretation by the Court of First Instance, in the absence of social malpractice, of an obligation to impose an obligation to infringe fundamental rights and freedoms and the interpretation by which the administrative procedure under the repealed legislation would be postponed from the date of the declaration of annulment by the Constitutional Court in the Collection of Laws by an incorrect official procedure establishing the State's liability for damage. In the present case, the Constitutional Court itself expressed the will that the current regulation should still apply for a certain period of time.
7. In conclusion, the District Court pointed out that, even after the Constitutional Court found, data under the Act on Conflict of Interest should, despite the different means of delivery (i.e. whether anonymously or by address) be given to anyone who requests them. The degree of intensity of the intervention, in conjunction with the key importance of the notifications submitted, is not sufficient to conclude that the State is responsible for the breach of the right to privacy and the right to information self-determination for the non-material damage to be incurred by the applicant in connection with the ministerial procedure under effective legislation. Although the complainant does not link its damage to the adoption of an unconstitutional law, it is the adoption of that law that is the primary cause of its damage, since without this, the Ministry would not have made its notification public and would not have suffered any harm. According to the Circuit Court, the Ministry is not responsible for the normomaking process and therefore there is no causal link to the complainant's imported injury.
8. In the judgment under appeal, the Regional Court identified itself with the legal conclusions of the District Court on the absence of a title of responsibility. It was not possible to see maladministration in the ministerial procedure. In this respect, he referred to the conclusions of the Opinion of the plenary of the Constitutional Court of 14 December 2010, sp. zn. Pl. ÚS-st. 31 / 10 (ST 31 / 59 of the SbNU 607; 426 / 2010 Coll.), according to which "the State authorities do not give the right to apply the legal consequences of the annulment findings of the Constitutional Court in their decisions before such findings have become enforceable '. The Ministry as a public administration has in accordance with Article 2 (3): The Constitution is obliged to act within the limits and methods laid down by the law and it is not justified to assess the conformity of legislation with the Constitution, since that body is solely the Constitutional Court within the meaning of Article 83 of the Constitution. On the contrary, the Ministry would have committed improper administration by failing to comply with the Conflict of Interest Act and would not have made the information communicated to the public without a request. This conclusion does not alter either the fact that on 6.11.2020 the Ministry began to provide information to a limited extent. In fact, the subject of the assessment is whether it was entitled to publish the notification in an existing manner, which was possible by 31 December 2020.
9. According to the Regional Court, the Ministry's practice was correct in terms of the purpose for which it was intended. The main purpose of the Conflict of Interest Act is public control over the transparent exercise of public administration, namely the exclusion of the possibility of abuse of power in the private interest, as well as ensuring public confidence in the activities of public authorities. Another objective of the Act is to check the content of the notifications submitted by the registration authority. The Constitutional Court found in sp. zn. However, the notification itself cannot be found to be disproportionate as certain restrictions may be envisaged when entering a public office. The degree of intensity of the complainant's alleged intervention is significantly limited by the degree of responsibility of each public official for the performance of his or her duties, which corresponds to the control of his or her property ratios by the public. It can thus be expected to be more resilient to its right to privacy by publishing sensitive data from its privacy in order to fulfil the purpose of the conflict of interest law. The intensity of the intervention compared with the purpose and objective of the notifications submitted is not sufficient to conclude that the State is responsible for the breach of the right to privacy guaranteed in Article 7 (1) of the Charter and the right to information self-determination guaranteed in Article 10 (3) of the Charter for the non-material damage suffered by the complainant in the context of the ministerial procedure under the legislation effective during the relevant period.
10. According to the Regional Court, the State's liability would be taken into consideration if, in an activity linked to the exercise of the powers of a public authority or as a consequence, the rules prescribed by the legislation governing the conduct of the Ministry were infringed, but this did not happen. The State is not responsible for the adoption of a law which was subsequently found to be unconstitutional, that is to say, a legislative act which is not an official procedure within the meaning of the Act on Liability for Damage caused by the exercise of public authority.
11. The complainant points out in the constitutional complaint that the Ministry, which allowed anonymous access to the register of notifications, infringed its fundamental rights as guaranteed in Articles 7 and 10 (3) of the Charter. It contends that the General Courts have interpreted the postponement of the enforceability of the finding, sp. zn. Pl. ÚS 38 / 17 in a manner which empties the contents of the constitutionally guaranteed fundamental rights and freedoms and underpins them without further legal regulation. According to the complainant, the enforceability of the finding was postponed precisely for the purpose of replacing Parliament with an unconstitutional regulation within the time limit laid down by the Constitutional Court and not for other authorities of the State to be able to violate the constitutionally guaranteed fundamental rights and freedoms until the last day of deferred enforceability. The State must be held liable if the individual concerned decides to call his or her constitutionally guaranteed right despite explicit legal regulations. The term "maladministration 'should also include cases which may comply with the rules at the time of injury. As this procedure has caused damage or non-property damage, it must be objectively considered as incorrect in its effect.
Legal opinion expressed in the find sp. zn. IV. ÚS 579 / 22
12. The complainant's constitutional complaint is one of several dozen similar constitutional complaints made by representatives of the municipalities in the capacity of public office pursuant to Article 2 (1) (q) of the Law on Conflict of Interest, which are directed against decisions of the General Courts rejecting their actions for apology and compensation for non-material damage (at the time of the interruption of the proceedings on the complainant's constitutional complaint, this number was approximately 120 constitutional complaints, each of which was assigned as Judge to the Rapporteur; These constitutional complaints are discussed and decided in all chambers of the Constitutional Court).
13. A total of 27 of these constitutional complaints were decided by the Constitutional Court in joint proceedings by the finding of 18 October 2022 sp. zn. IV. The Court of Justice of the European Union ("the Court of Justice ') decided on the basis of the judgment of the Court of Justice of the European Union on the application for compensation for non-property damage. In the remainder, they were rejected for inadmissibility as early (before the decision of the Supreme Court on appeals).
14. For the purposes of assessing the case, the IV Chamber considered it decisive that Paragraph 14b (1) (a) to (c) of the Act on Conflict of Interest was abolished for a content conflict with constitutionally guaranteed fundamental rights and freedoms (for material inconstitutionality) and not for any other reason, such as for defects in the legislative process. The Eighth Chamber stressed that the Constitutional Court had postponed the enforceability of the finding in order to give the legislator sufficient time to adjust the law when the submission of the notice itself to a public official was not contrary to the constitutional order. However, the suspension of the enforceability of the annulment of the decision cannot be seen as an order by public authorities to continue the non-constitutional infringement of the constitutionally guaranteed rights of complainants by publishing such notices on the Internet without being requested at all (FTC 579 / 22, paragraph 28). On the contrary, the public authority acts unconstitutionally when applying the provisions of the law to which the Constitutional Court has been established, albeit with the deferred enforceability of the annulment of the decision, its contradiction with the constitutional order which guarantees some of the constitutionally guaranteed fundamental rights and freedoms in such a way as to interfere with the fundamental right or freedom of the addressee of a legal act to the extent that the Constitutional Court's possible intervention in proceedings for a constitutional complaint pursuant to Article 87 (1) (d) of the Constitution. According to the external form of its act (s), an unlawful decision or maladministration (point 29 of the cited finding) may be taken.
15. According to the Fourth Chamber, such a situation occurred with the addressees (including the complainants at the time) § 14b (1) (a) to (c) of the Act on Conflict of Interest. This legal regime has caused a breach of their fundamental right to protection against unauthorised disclosure of personal data pursuant to Article 10 (3) of the Charter. The intervention should have been such as to justify the appeal of the Constitutional Court even in proceedings on a constitutional complaint. The Ministry had an obligation not to apply this legal regulation, or to use it in the most restrained manner, so that it would no longer be violated by the constitutionally guaranteed fundamental rights and freedoms of complainants. In turn, the General Courts were required to examine in detail whether the Ministry had complied with this requirement and whether it did not proceed even after the declaration of the finding of Sp. zn. Pl. ÚS 38 / 17 in the Collection of Laws unconstitutionally and, therefore, whether this procedure of the State fulfilled the criteria of maladministration under § 13 (1) of the Act on Liability in the exercise of public authority (FTC 579 / 22, paragraph 29).
16. In the procedure and arguments of the Ministry (as discussed by both the Circular and the Municipal Court) of its obligation to apply the unconstitutional legal regulation without further delay, the IV Chamber sees an internal contradiction, if the Ministry admits, at the same time, that from 6.11.2020 (i.e. prior to the enforceability of the annulment of the decision of the Court of First Instance) it has started to provide the public with the notifications in question exclusively on request. This procedure was not directly bound by the judgment of the Supreme Administrative Court of 21 December 2020 No 8 As 283 / 2019-27 (the reference is likely to refer to the earlier judgment of the Supreme Administrative Court No 9 As 173 / 2020-32), which addressed (not) the possibility of administrative sanctions by public officials for not submitting a notification, rather than the publication in detail of these notices. Since the declaration of the finding sp. zn. Pl. ÚS 38 / 17 in the Collection of Laws, the Ministry had, on the other hand, the obligation to acquaint itself with the case-law of the Constitutional Court and to take possible measures to remedy it, as is apparent from Sections 22 and 24 of the Act of the Czech National Council No. 2 / 1969 Coll., on the establishment of ministries and other central bodies of the state administration of the Czech Republic, as amended by Act No. 272 / 1996 Coll. It is these provisions that the ministries undertake to examine the social issues within their scope, analyse the results achieved and take action to address the current issues, take care of the proper regulation of the matters within their competence, ensure that the lawfulness (most importantly, constitutionality) is maintained within their scope, and "take the necessary measures under the laws to remedy them." However, this obligation was not fulfilled by the Ministry in the period since the publication of that finding in the Collection of Laws on 8 April 2020 until 5 November 2020 (the finding sp. zn. IV. ÚS 579 / 22, paragraph 30). The case-law of the Constitutional Court also admits "not to apply the law to the facts which occurred at the time of its effectiveness if the Constitutional Court found that such a law was contrary to the constitutional order and application of that law in a vertical legal relationship, i.e. the legal relationship between the State and the individual, or exceptionally in horizontal relations, would lead to an infringement of the fundamental right of the individual '[see the finding of 19.4.2011 sp. zn. Pl. ÚS 53 / 10 (N 75 / 61 SbNU 137; 119 / 2011 Coll.], paragraph 146, the finding of sp.
17. IV. The Chamber concluded that the City Court, when issuing the contested decisions, had acted in contravention of the abovementioned bases, in the end violating the right of the complainants to judicial protection under Article 36 (1) of the Charter. The argument of the municipal court, according to which the publication of the notice on the Internet was an appropriate intervener, is, moreover, in direct conflict with the annulment of the finding of page Pl. ÚS 38 / 17, since it was in the form of (flat) publication of the notice that the legislation was found to be unconstitutional. The IV Chamber therefore annulled the contested judgments of the Municipal Court in the relevant part (Case C-579 / 22, paragraph 33). It questioned the basis of the contested decisions of the municipal court, according to which the Ministry acted in accordance with the rule of law, and therefore it is not for the complainants to obtain adequate satisfaction for maladministration. The IV Chamber did not, however, address the question of what particular form of possible satisfaction is appropriate, i.e. whether a finding of infringement and an apology is sufficient, or whether a cash refund should be made, or to what extent (point 34 of the cited finding). At the same time, it was noted that the complainants were not required to bring an action for protection before the application to the Circuit Court before the action was brought, by order or by an administrative authority pursuant to § 82 et seq. of Act No 150 / 2002 Coll., the Administrative Rules, as amended, since the Act on Liability for Damage caused by the exercise of public authority did not provide for such a condition (point 35 of the cited finding).
Conditions for deciding on a draft opinion of the plenary
18. According to Article 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Senate will raise a question for the examination of the plenary if, in the context of its decision-making activities, it comes to a legal opinion derogating from the legal opinion of the Constitutional Court as expressed in the decision-making. The Chamber shall be bound by the opinion of the plenary in its further proceedings.
19. Since, as far as the legal assessment is concerned, the complainant's case is comparable to that in which the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the basis of the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the decision on the basis of the decision on the decision on the decision on the decision on the decision on the decision on the decision on the basis of the decision on the decision on question, is subject, However, it does not agree with this legal view. According to the Second Chamber, the Constitutional Court has decided to defer the enforceability of the finding of sp. zn. Pl. ÚS 38 / 17 precisely for the purpose that the Ministry may, until 31 December 2020, apply the provisions of § 14b (1) (a) to (c) of the Act on Conflict of Interest. In such a procedure, the maladministration provided for in Paragraph 13 (1) of the Act on Liability for Damage caused by the exercise of public authority cannot be seen.
20. Since that legal opinion deviates from the legal opinion of the Fourth Chamber, as set out in the decision of the Fourth Chamber of 5 79 / 22, the Second Chamber decided by order of 21.11.2022 No. II. At the same time, to assess the plenary, the question of whether the finding of sp. zn. That is the question of whether the maladministration under Paragraph 13 (1) of the Act on Liability for Damage in the exercise of public authority was involved.
21. The hearing of the draft opinion of the plenary does not preclude the fact that the complainant withdrew the constitutional complaint by means of the submission of 28 November 2022. The subject of the application for a full opinion under Article 23 of the Law on the Constitutional Court is the examination of the question submitted in order to depart from the legal opinion expressed in the finding. Although this issue is always raised in the context of a specific procedure, it cannot be overlooked that the plenary proceedings also serve to unify the legal views of individual chambers. This helps to fulfil the so-called objective function of the constitutional complaint procedure, consisting of clarifying the interpretation of constitutional rules and the way in which they are reflected in the application of sub-constitutional law or the resolution of important social legal issues which may strengthen legitimate expectations as an important part of the legal certainty of individuals in future uniform judicial decisions in similar cases, even where it is not only about protecting the subjective right of the complainant himself [cf. § 75 (2) (a) of the Constitutional Court Act; also the finding of 18.9.2014 sp. zn. III. ÚS 3101 / 13 (N 171 / 74 SbNU 481), point 7; the finding of 28.6.2019 sp. zn. IV. ÚS 1527 / 19 (N 123 / 94 SbNU 427), point 30.
22. This concept is consistent with the established procedural procedure of the Constitutional Court, the Chamber of which, when submitting the application for the plenary opinion, always decides to stay the proceedings from which the application was brought [starting with the Resolution of 10.5.2017 sp. zn. III. The proceedings for the application for a full opinion shall also be conducted under a separate file mark throughout the existence of the Constitutional Court. Article 23 of the Law on the Constitutional Court defines the preconditions for a decision on the application for an opinion of the plenary and is assessed at the date of the application. If they are fulfilled, then it depends on the decision of the plenary whether or not to adopt a draft opinion. In the absence of a plenary opinion, since the application for its adoption did not receive the prescribed number of votes of nine Judges present under Paragraph 13 of the Constitutional Court Act, the procedure for the application for the opinion of the full is hereby terminated. Paragraph 77 of the Law on the Constitutional Court, which provides for an obligation to suspend proceedings on a constitutional complaint, shall not apply in this proceeding if the constitutional complaint has been withdrawn.
23. In a situation in which a decision on several dozen constitutional complaints currently pending before the Constitutional Court depends on the examination of a question submitted by the Second Chamber, the plenary of the Constitutional Court has no doubt that the hearing and decision on the draft opinion go beyond the complainant's own interests. At the same time, this procedure does not adversely affect the position of the complainant. The withdrawal of a constitutional complaint will be taken into account in the proceedings on a constitutional complaint after the reason for its interruption has been rejected.
Self-assessment
24. The Plenum of the Constitutional Court finds reasons for deviating from the legal opinion of the Fourth Chamber as set out in the sp. zn. IV. ÚS 579 / 22.
25. The examination of the question referred by the Second Chamber requires a general interpretation of the effects of the Constitutional Court's finding that the law has been annulled or that its inconstitutionality has been pronounced on legal relations arising at the time of the application of the unconstitutional legislation. The question is whether such a law remains applicable or whether general courts or other public authorities may not use it as unconstitutional in their decisions. In the Chamber's legal opinion, the finding of sp. zn. According to plenary of the Constitutional Court, however, such a consequence in the complainant's case cannot be inferred, although the reason for the inconstitutionality of that provision was a contradiction with the constitutional guaranteed fundamental right. In its conclusions, the Plenum came out of the extensive caselaw in which the Constitutional Court expressed its views on the effects of the annulment in many ways.
In general, the effect of the cancellation decision on legal relations
26. The Constitution provides in Article 87 (1) (a) for the power of the Constitutional Court to rule on the annulment of laws or their individual provisions if they are contrary to constitutional order. The repeal of the Law means the expiry of its validity by the enforceability of the decision of the Constitutional Court, which pursuant to Article 89 (1) of the Constitution and Article 58 (1) of the Law on the Constitutional Court, is the date of the declaration of the finding in the Collection of Laws, unless the Constitutional Court provides under Article 89 (1) of the Constitution and Article 70 (1) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., that the finding becomes enforceable on another date which should be substantially later. Exceptionally, the Constitutional Court decided on the enforceability of the finding on the date of its public announcement [e.g. the finding of 22.6.2005 sp. zn. Pl. ÚS 13 / 05 (N 127 / 37 SbNU 593; 283 / 2005 Coll.)]. However, in view of the constitutional requirement of legal certainty, which is a requirement of a democratic rule of law under Article 1 (1) of the Constitution, enforceability has never set a date prior to the public declaration of the finding.
27. The annulment of the law by the Constitutional Court does not mean that the repealed law has never been a valid and effective part of the rule of law. In the context of objective law, the repeal of the law has taken place since the date on which the finding became enforceable (ex nunc), the legal consequences in the past of the legal facts found continue to depend on the repealed law; This is not a declaration of invalidity of the annulled law from the outset (ex tunc) [cf. Opinion of Plenary sp. zn. Pl. ÚS-st. 31 / 10, paragraph 18]. In assessing whether the law currently repealed applies to the legal facts before the annulment of the Constitutional Court, the general rules for dealing with the conflict of time of application of the old and new legislation (intertemporal rules), which protect the legal certainty of the addressees of the law and their trust in law, shall apply, unless otherwise provided. These rules include a ban on the retroactive application of legislation (a ban on retroactivity). Article 71 (4) of the Constitutional Court Act remains unaffected.
28. The application of the law which was repealed by the Constitutional Court's finding or - if it has already been annulled - part III; the finding of 10.1.2001 sp. zn. The constitutional order is not merely a formal expression of a summary of legal standards with a higher legal force than the law which must comply with them. In its entirety, it also expresses the fundamental untouchable values of the democratic rule of law, which must be subject to the interpretation and application of any legal standards [the finding of 21.12.1993 sp. zl. ÚS 19 / 93 (N 1 / 1 SbNU 1; 14 / 1994 Coll.)], including the protection of fundamental rights and freedoms. If it is to be fulfilled, it cannot be denied in a particular case only because the violation of fundamental rights or freedoms was a result of the application of an unconstitutional law. A different interpretation would lead to the fact that an individual in such cases will never be able to effectively protect his fundamental rights and freedoms, or that such protection will depend on the legislator's decision [finding of 3 February 2016 sp. zn. I. ÚS 3599 / 15 (N 24 / 80 SbNU 285), paragraph 18; from paragraphs 19 to 27 of this Opinion, further reasoning of this opinion is made).
29. The possibility of excluding the application of a non-constitutional law or direct application of a constitutional standard, in a particular case, is also apparent from Article 95 (2) of the Constitution [cf. the finding of 7 April 2009 sp. zn. The General Court submits to the Constitutional Court for consideration the question of the compliance of the law with the constitutional order, whether in the form of a proposal for annulment of the law, or - if it has already been annulled - to express its unconstitutionality, always in order to ensure that it does not have to be used in the legal assessment of the case and, in so doing, to decide otherwise [cf. paragraph 26]. In cases where the application of an unconstitutional law would lead to a breach of the fundamental right or freedom, it may, moreover, be the only way in which the general courts may fulfil their obligation to provide protection within the meaning of Article 4 of the Constitution.
30. However, the very fact that the Constitutional Court has decided to abolish the law or declare its inconstitutionality does not mean that any use of it constitutes an infringement of fundamental rights and freedoms or any other unconstitutional consequence. On the contrary, there may be reasons for which, from the constitutional point of view, it could not be precisely the non-application of such a law. The basis for any reasoning in this regard must be the specific reason for the inconstitutionality of the law, which was expressed in the supporting parts of the preamble to the finding of the Constitutional Court [cf. the finding of 18.12.2007 sp. zn. IV. ÚS 1777 / 07 (N 228 / 47 SbNU 983), paragraph 22].
31. The provisions of the law may, first of all, express more legal standards, some of which are unconstitutional (and therefore cannot be applied for that reason only), which however does not change the need for its annulment as a whole, in the light of the wording of that provision (e.g. the finding of 8.7.2010 sp. zn. Pl. ÚS 15 / 09 (N 139 / 58 CollNU 141; 244 / 2010 Coll.), paragraph 55; the finding of 29.9.2010 sp. zn. Pl. ÚS 32 / 08 (N 204 / 58 CollNU 809; 341 / 2010 Coll.)]. In other cases, the inconstitutionality of the law does not have to relate at all to the legal relations which it regulates [in particular, if it consists in infringement of the constitutional rules of the legislative process; cf.
32. It should also be noted that the exclusion of the application of a non-constitutional law, or the direct application of a constitutional standard, is only applicable in the legal assessment of past facts, provided that, in relation to the individual concerned, it does not entail more interference in his subjective rights than would have occurred if that law had been applied [cf. First of all, the protection of fundamental rights and freedoms could not be seen in the non-application of the law simply because the extent of the rights which it grants to the person concerned is smaller than the requirements of the constitutional order if the non-application of the law would result in the non-recognition of those rights at all [cf. In some specific cases, the removal of the unconstitutional consequence without the "positive" intervention of the legislator may not be possible or very difficult [cf. the finding of 28 February 2006 sp. zn. ÚS 20 / 05 (N 47 / 40 SbNU 389; 252 / 2006 Coll.)].
33. The exclusion of the application of a non-constitutional law, or direct application of a constitutional standard, in order to protect the fundamental rights and freedoms of an individual is not even considered in a situation where it would lead to undue interference with the fundamental rights and freedoms of other persons acting in confidence in the law. Such a provision of protection would, in essence, create a new unconstitutional consequence. Consideration should always be given to whether such an intervention could be considered appropriate in view of the values involved in a particular legal relationship and whether, on the contrary, legal certainty should not be given priority (maintaining the situation). It is also based on this view that the distinction between the legal effects of the Constitutional Court's finding that the law has been annulled or that its inconstitutionality has been expressed, depending on whether it is vertical legal relations, the State as a public authority and individual, or horizontal legal relations, the participants of which are individuals. To put it simply, the exclusion of the application of a law which has been abolished or found to be unconstitutional by the Constitutional Court is, in principle (but not without exception), accepted in the case of vertical legal relations (when it comes to the burden of public authority), whereas in the case of horizontal legal relations, the legal certainty of their participants is essentially (although again not without exception) excluded [cf. The application of the unconstitutional law, despite its involvement in fundamental rights and freedoms, could justify, depending on the reason for its unconstitutionality, the constitutionally and addressed public interest pursued by that law [cf. the finding of 10 July 2014, sp. zn.
34. In order to exclude the application of the non-constitutional law, it is irrelevant whether the procedure for the annulment of the law in respect of the applicant's person (and the associated conditions of active legitimacy) had the nature of an abstract or specific check of constitutionality. In both cases, the enforceability of the enforceable finding of the Constitutional Court under Article 89 (2) of the Constitution in respect of all public authorities is applied in the same way. The different legal consequences of the finding, depending on the nature of the procedure, are not foreseen by the Law on the Constitutional Court [cf. the finding of 3.11.2020 sp. zn. Although the Constitutional Court noted in the past that it was in the proceedings on a constitutional complaint, which resulted in a proposal for the annulment of the law, which was granted in a particular control of the standards, the exception to the principle that the annulment found by the Constitutional Court only operates in the future (Opinion of the plenary of the sp. zn. However, that exception is not provided for in constitutional law and, in the context of the above-mentioned case law of the Constitutional Court, which admits the non-application of an unconstitutional law in order to protect fundamental rights and freedoms, it does not stand the conclusion that it is a certain benefit relating only to that single complainant. In accordance with the principle of equality, the repeal of the law must be reflected in the same way in all pending procedures, if the reason for the inconstitutionality is so (cf. Nor does compliance with the application for annulment of the law, which was filed together with a constitutional complaint, necessarily mean that this constitutional complaint will subsequently be found to be justified [e.g. the finding of 27.11.2001 sp. zn. I. ÚS 102 / 2000 (N 179 / 24 SbNU 335), the finding of 11.7.2006 sp. zn. Pl. ÚS 18 / 06 (N 130 / 42 SbNU 13; 397 / 2006 Coll.), the finding of 18.9.2012 sp. zn. II. ÚS 2371 / 11 (N 159 / 66 SbNU 373) or the resolution of 2.12.2013 sp.
35. The Constitutional Court also assesses the possible consequences of the repeal of the Act for its applicability in relation to the legal facts which have already arisen when deciding to postpone the enforceability of its finding. The postponement of enforceability means that in the meantime the repealed law will continue to be a valid and effective part of the legal order, which will also apply; otherwise the postponement would lack meaning (cf. Opinion sp. zn. However, if the reason for the inconstitutionality of the law is to conflict with the constitutionally guaranteed fundamental rights and freedoms, it is the duty of the Constitutional Court to take into account the consequences of the temporary retention of such a law against the individuals concerned when deciding to defer enforcement. However, if the Constitutional Court decides to defer enforcement, the law is further applicable [cf. sp. zn. I. ÚS 102 / 2000, part VI; it must be added, however, that in the past the Constitutional Court has not treated this issue uniformly, see sp. zn. I. ÚS 3599 / 15, paragraphs 29 and 30]. However, the exception that the Constitutional Court explicitly stated in the past in the finding was only a situation in which the wording of the contested provision did not allow for the separation of its non-constitutional part and its immediate abolition as a whole, that is to say also in the parts in which the unconstitutionality is not given, points 39 and 40, for the purpose of the contested provision, would not be acceptable [e.g. the finding of 19 January 2010 sp. zn. Pl. ÚS 16 / 09 (N 8 / 56 CollU 69; 48 / 2010 Coll.), points 39 and 40; the finding of sp. In later decision-making activities, these situations were also addressed in the form of a range statement [e.g. the finding of 14.7.2005 sp. zn. Pl. ÚS 34 / 04 (N 138 / 38 SbNU 31; 355 / 2005 Sb.); the finding of 23.8.2016 sp. zn. ÚS 16 / 15 (N 154 / 82 SbNU 439; 334 / 2016 Sb.)].
36. Those conclusions concerning the exclusion of the applicability of the repealed Act or its provisions are also relevant to the interpretation of Article 71 (2) of the Constitutional Court Act, which regulates the consequence of the annulment decision against the final decision already taken. According to that provision, final decisions given on the basis of a law which has been annulled (with the exception of a judgment given in criminal proceedings with which, pursuant to Paragraph 71 (1) of the Law on the Constitutional Court, recovery is possible) remain unaffected; However, the rights and obligations under such decisions may not be exercised. The prohibition of enforceability resulting from this provision should be interpreted as applying only in cases of the application of non-constitutional legislation affecting the grounds for non-constitutionality set out in the statement of reasons for its finding [cf. Therefore, the conclusion on the inenforceability of the decision does not apply without further ado. the mere fact that the law or its provisions have been abolished is not sufficient. It is essential whether the reason for its annulment or the statement of its inconstitutionality calls into question - after consideration of all other relevant aspects, including the proportionality of such consequences, in the light of the fundamental rights and freedoms of other persons or of any constitutionally challenged public interest - the constitutionality of decisions of public authorities given on its basis. The consequence foreseen in Article 71 (2) of the Constitutional Court Act is therefore only applicable where the General Court or any other public authority could not apply the non-constitutional legislation if it had taken a decision on the case only after a binding legal opinion had already been given in the grounds for the finding of the Constitutional Court (cf. Notice of the Constitutional Court of 30 April 2013 No Org. 23 / 13 on the finding of Pl. Pl. ÚS 25 / 12, published under No 117 / 2013 Coll.).
37. It follows from this that, if a general court is to apply a law the inconsistency of which has been established by the Constitutional Court in its proceedings for the annulment of a law or an individual provision thereof, or a proposal to declare the inconstitutionality of an already repealed law [Article 87 (1) (a), Article 95 (2) of the Constitution], it must always consider whether its application prevents its involvement in the fundamental rights and freedoms of the individual. In this respect, it is bound by a binding legal opinion concerning the reason for its inconstitutionality, which the Constitutional Court expressed in the statement of reasons for the finding by which the law was annulled or by which its inconstitutionality was expressed. The exclusion of the application of a non-constitutional law, or the direct application of a constitutional standard, in a particular case must not entail greater interference in the rights of the individual concerned or disproportionate interference in the fundamental rights and freedoms of other persons or other constitutionally challenged public interest, thus leading to another non-constitutional consequence which would exclude such a procedure. In the practice of the Constitutional Court, it is not unusual that such an assessment, at least in the general sense, is already part of the justification for its annulment finding and thus part of the binding legal opinion contained therein [e.g. the finding of 27.11.2012 sp. zn. Pl. ÚS 1 / 12 (N 195 / 67 SbNU 333; 437 / 2012 Sb.), paragraphs 388 to 390, or the finding of 11.9.2018 sp. zn. Pl. ÚS 24 / 17 (N 152 / 90 SbNU 463; 235 / 2018 Sb.), paragraphs 73 to 75]. This assessment may also be carried out by the Constitutional Court by deciding to defer the enforceability of the annulment.
K (no) legality of the Ministry's procedure with regard to the finding of sp. zn. Pl. ÚS 38 / 17
38. Those grounds were not respected by the Fourth Chamber. First, it will not be concluded that the Constitutional Court has decided to defer the enforceability of the finding, sp. zn. Pl. ÚS 38 / 17, only in order to provide the legislator with sufficient time to adjust the law, without having been able to apply the annulled legal regulation for its inconstitutionality in the period from the publication of the finding in the Collection of Laws until the date of its enforceability (see point 14 of this Opinion).
39. It is appropriate to recall the wording of Section 13 (3) of the Act on Conflict of Interest (as effective from 1.9.2017 to 30.6.2022): "Everyone has the right to consult the public data network free of charge within the scope of this Act in the notification register. The notices of the public officials referred to in Paragraph 2 (1) shall be made available without prior request. The notification of the public officials referred to in Paragraph 2 (2) may be consulted upon request. 'This provision is followed by Article 14b of the Conflict of Interest Act, which defined the scope of the data made available for each group of public officials. The obligation of a public office to disclose information about its person who is part of the notification submitted by it is thus expressed in both of those provisions, which constitute the applicable legal arrangements for consultation in the register of notifications. It is for this reason that the inconstitutionality found, even though the method of consultation itself was only regulated in Paragraph 13 (3) of the Act on Conflict of Interest, also covered § 14b (1) (a) to (c) of the Act on Conflict of Interest (cf.
40. If the Ministry could not, after the declaration of the findings of the sp. zn. Paragraph 13 (3) of the First and Second Rules on Conflict of Interest, which were not contested by the proposal by any of the groups of Senators and were therefore not the subject of that procedure, would, while allowing everyone to see without prior request, but would not be defined by the scope of the consultation and would therefore not be subject to any reference. It is not clear at all how important, according to the Fourth Chamber, the suspension of enforceability in this situation would not allow for this, albeit unconstitutional, legal regulation for a transitional period.
41. Perhaps the only possible meaning of such a solution could be to prevent the immediate abolition of Article 14b (1) (a) to (c) of the Act on Conflict of Interest from leading public officials under Article 2 (1) of the Act on Conflict of Interest to allow access to all the information contained in the register of notifications, including those whose disclosure of the repealed legislation did not allow. However, such an interpretation would no longer be possible because Article 13 (3) of the Act on Conflict of Interest required a specification of the scope of the admissible consultation (see page Pl. ÚS 38 / 17, paragraph 142). Moreover, it is generally known that this interpretation was not taken into account by the Ministry, which, after 31 December 2020, when the finding of sp. zn. Pl. ÚS 38 / 17 became enforceable, the information from the register of notifications with a view to the non-adoption of the new legal regulation ceased to be provided (the inaccessibility of data for such a case was also foreseen by the finding of sp. zn. Pl. ÚS 38 / 17, paragraph 144; the new legal regulation was adopted only with effect from 1.7.2022 of the amendment to the Act on Conflicitation of Interest by Act 180 / 2022 Coll.).
42. The reason for the suspension cannot be seen in the very creation of a time-frame for adopting a new legal regulation. The finding of the Constitutional Court does not oblige Parliament to ensure the compliance of the legal regulation with the constitutional order within the prescribed period. In fact, its inconsistency was removed by the Constitutional Court by abolishing the unconstitutional provision of the law. In the postponement of enforceability, this is not the equivalent of a period of six months from the declaration of the Constitutional Court of the Czech and Slovak Federal Republic in the Collection of Laws, during which the law, whose inconstitutionality was declared by this finding, was not effective, but only valid, and the Federal Assembly was to remove that inconstitutionality (Article 3 of Constitutional Act No. 91 / 1991 Coll., on the Constitutional Court of the Czech and Slovak Federal Republic; previously Article 90 of Constitutional Law No. 143 / 1968 Coll., on the Czechoslovak Federation, as effective until 31.3.1991; cf. also different opinion of Judge Jan Filip on the finding of the sp. zn. IV. ÚS 579 / 22).
43. If the Constitutional Court underlines the necessity of creating a time-limit for legislators when deciding to defer enforceability, this is so that, despite the unconstitutional nature of the legislation, there is no undesirable situation after its annulment, where there is no legal regulation. In general, the postponement of enforceability ensures that, in the meantime, the existing legal arrangements can be applied temporarily, and its length is determined in such a way that the adoption of any new legal regulation, if the postponement of enforceability follows this purpose, is possible, in view of the complexity of its preparation and the rules of the legislative process (e.g. the finding of 30 May 2017 sp. zl. ÚS 3 / 15 (N 89 / 85 CollU 503; 231 / 2017 Coll.), paragraphs 147 to 149).
44. At the same time, the Board of Appeal does not agree with the conclusion of the Fourth Chamber that the application of Paragraph 14b (1) (a) to (c) of the Act on Conflict of Interest at the time after the publication of the decision in the Collection of Laws 38 / 17 was not possible because of the annulment of that provision, which was a breach of the constitutional order, namely a conflict with the fundamental right to protect against unauthorised disclosure of personal data guaranteed in Article 10 (3) of the Charter.
45. Paragraph 14b (1) (a) to (c) of the Act on Conflict of Interest in view of the admissibility of the intervention by the latter in those fundamental rights was reviewed by the Constitutional Court. The provision referred to resulted in an obligation for public officials to have an anonymous view of their property notification (essentially the publication of such notices) in the notification register. That obligation, while intervening in the fundamental rights of these persons, was an intervention which pursued a legitimate objective "in order to prevent or prevent the exercise of public office in the private interest at the expense of the public interest in breach of Article 3 of the Conflict of Interest Act '(point 121 of the cited finding). In addition, it was able to achieve the legitimate objective pursued, not only if it was about the possibility of easier identification of potential conflicts of interest, but also the possibility of prevention, including public control, enabling or facilitating the transparency of public office property ratios. The public availability of information on property ratios may lead to a higher degree of restraint for public officials in relation to the preference of private interest to the detriment of public interest (point 124 of the quoted finding).
46. However, the contested provision did not stand in the assessment of its necessity, that is, in the assessment of whether the legislator chosen a solution in the pluralism of possible - and comparatively effective - solutions are the most favourable to the fundamental rights in question. The Constitutional Court concluded that "even the very way in which specific information on the public office's assets is made available to the public has an impact on the protection of its privacy '. In doing so, it considered the provision of data at the request of a specific non-anonymous entity which could, depending on other circumstances, further publish it" (point 129 of the quoted finding) to be more prudent than the "disclosure of data without further." "If the aim is to consult the register to prevent or detect conflicts of interest, or to increase public confidence in the activity of public authority, not merely to satisfy personal curiosity, or even to detect information for purposes of unlawful or otherwise inadmissible, a formal barrier in the form of an individual application cannot be considered as an obstacle to the fulfilment of that purpose. (...) At the same time, the provision of data from the registry upon request is sufficiently fulfilled by the preventive data disclosure function, i.e. the knowledge of public officials about the possibility of anyone identified, the detection of data from the notification registry and any conflict detected. In fact, by deleting the possibility of anonymous access without a formal request, nothing changes the obligation for public officials to submit a notification of the property, so that the possibility of public scrutiny remains.' (paragraph 132 of the quoted finding). The Constitutional Court stated that" the form of non-anonymous request (...) reduces the likelihood of the potential misuse of the data obtained on the assets of public officials or their acquisition for a purpose other than that pursued by the law '. Although this form cannot fully eliminate all risks, it is true that "even a reduction in the risk of abuse is an argument to the conclusion that the consultation of a register conditional on non-anonymous requests ensures a stronger protection of the right to privacy of the persons concerned than the anonymous consultation of any person, i.e. the disclosure of data without further' (point 133 of the quoted finding).
47. Although "transparency of property ratios is always, by nature, lower in the provision of data on request than in their publication ', this transparency is not a purpose in itself (point 134 of the cited finding). Control of governance should not be hypertrophic in a system in which persons will not be involved or will be discouraged from entering it simply because they will not be comfortable with their privacy (and the privacy of their loved ones) being violated beyond what is necessary. The exercise of public functions is primarily a public service, and the public control of persons performing such a service, however desirable, must not be based on aprioral suspicion, scandalisation, mistrust and overall negative (point 135 of the cited finding). In assessing the legitimacy of the disclosure of data from the privacy of specific persons, it is necessary to take into account not only the status of the person concerned as a person of public interest but also the importance of the information to which it contributes to the public interest debate. While information on public office property ratios is a prerequisite for their truthfulness, this does not imply a public interest in their publication without further action. It always depends on the context of the use of this information and other circumstances of its publication (point 136 of the cited finding). In addition, this information may concern third parties, typically creditors of public officials, and therefore the public interest in their publication must also be assessed in relation to them. The provision of information on request would create" a certain intermediate step between the disclosure of information to a particular individual and its further publication to an indefinite number of addressees, e.g. in media, on the Internet, etc.', which would ensure that "the existence and intensity of the public interest in disclosure may be considered before the disclosure of privacy information itself '(point 137 of the cited finding).
48. It follows from that summary of the statement of reasons for finding sp. zn. Pl. ÚS 38 / 17 that the legal arrangements for consultation into the register of notifications did not meet the requirements which, in view of the proportionality of the intervention, resulted from the fundamental right of the public officials concerned before the unauthorised disclosure of personal data pursuant to Article 10 (3) of the Charter. The non-constitutionality of § 14b (1) (a) to (c) of the conflict of interest law has manifested itself for every public official referred to in § 2 (1) of the conflict of interest law by allowing his property notification to be consulted anonymously through a public data network without prior request. However, it cannot be inferred from the finding that the public should not have the right to consult the register of notifications and thus to be familiar with the information on the assets of public officials. Even before its enforceability, the right to consult the register of notifications did not mean that the information obtained could be used in any way. If someone had used the data obtained in this way illegally, the official concerned could have claimed the protection of his personal rights against him.
49. These facts were the reason for which the Constitutional Court did not abolish § 14b (1) (a) to (c) of the Act on Conflict of Interest on the date of the declaration of the finding, sp. zn. Instead, he used his authorisation under Article 89 (1) of the Constitution and Article 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., and provided for the enforceability of the finding by 31 December 2020. In maintaining the legal regulation which he found unconstitutional, for a transitional period in force and effective, he took into account not only the degree of interference in the fundamental rights of public officials guaranteed in Article 10 (3) of the Charter but also the purpose of the unconstitutional legal regulation, which is to prevent and detect conflicts of interest. The Constitutional Court has in the past held that the obligation of a democratic rule of law under Article 1 (1) The Constitution is not only to create conditions for a public official to perform a proper public function linked to the obligation to act in the public interest, but also to prevent him from using the power conferred on him to promote his own (personal) interests at the expense of the public interest, but also of other participants in political or competitive competition, as well as public confidence [finding of 11.2.2020 sp. zn. ÚS 4 / 17 (N 21 / 98 SbNU 163; 148 / 2020 Sb.), paragraph 89]. It is for this constitutionally designed purpose that public officials are obliged to make notifications and to have the right to consult each of them to the extent specified. Since the immediate abolition of Paragraph 14b (1) (a) to (c) of the Act on Conflict of Interest would make it impossible for the public to see these notices indefinitely, the Constitutional Court concluded that it is appropriate to temporarily give priority to that public interest, by way of suspension of enforceability, without unduly affecting those fundamental rights and freedoms of public officials. The Constitutional Court could not itself ensure that the full disclosure regime was changed to the disclosure regime on request and defined the requirements for its submission, since it does not constitute, or is not, an amendment, merely abolishes the rule of law (point 144 of the sp. zn.
50. Deferred enforceability is not a denial of effective protection of fundamental rights and freedoms. In the present case, the reason for the inconstitutionality of § 14b (1) (a) to (c) of the conflict of interest law, which, while justifying the annulment of that provision, did not, however, mean that any individual public official whose assets were disclosed under § 13 (3) of the first and second sentences of the conflict of interest law was denied effective protection against unauthorised disclosure of personal data within the meaning of Article 10 (3) of the Charter. The condition for the consultation of applications was intended to prevent any misuse of information or its use illegally. However, such a consequence did not occur without further action for each public office concerned, it is not claimed by the complainant and from the finding of sp. zn. IV. It is not apparent that any of the complainants whose constitutional complaints have been decided by it are alleged. In addition, all these complainants claimed that the intervention had lost the legal basis on the date on which the finding was enforceable, by which the Ministry was no longer entitled to allow such consultation. By that date, this intervention did not even last. In fact, the Ministry ceased to make the notification available in this form on 6 November 2020, even if it could (and should have) proceed differently until 31 December 2020.
51. The Ministry did not therefore infringe its obligation and did not act illegally if the register of notifications provided for in Article 13 (3) of the first and second sentences and Article 14b (1) (a) to (c) of the Act on Conflict of Interest ("Conflict of Interest Act") was to be consulted in accordance with Article 13 (3) of the Rules of Procedure and Article 14b (1) (a) to (c) of the Act on Conflict of Interest ("Opinion I of the Opinion").
52. Not only during the period of suspension of enforceability, which temporarily maintained the obligation for the Ministry to comply with those provisions, but also during the period prior to the publication of that finding in the Collection of Laws, it was not a procedure by the Ministry that could be regarded as an maladministration within the meaning of Article 13 (1) of the Act on Liability for Public Rights (operative part II of the Opinion). This conclusion is already hampered by the fact that, pursuant to Article 71 (4) of the Constitutional Court Act, the finding of a Constitutional Court which has been annulled as a non-constitutional act does not result in the additional creation of the right to compensation for non-material damage for an official procedure which was in accordance with the repealed law at the time when it was valid and effective. Article 36 (3) of the Charter does not give rise to the right to compensation for damage caused by the exercise of Parliament's legislative power. The consequence of exceeding the legislature's limits may be the repeal of the law or the declaration of its inconstitutionality. Such intervention "may, in certain circumstances, affect the rights of individuals who have been affected by such a law or a loophole in the law (e.g. the inapplicability of the law to a particular case), but do not give individuals a claim to compensation '[Opinion of 28 April 2009 in sp. zl. The Constitutional Court has no reason to change that conclusion in the present case.
Conclusion
53. For all the above reasons, the plenary of the Constitutional Court found that there was a reason to deviate from the legal opinion of the Fourth Chamber as set out in the decision of page IV of the Rules of Procedure 579 / 22 and the draft of the Second Chamber under Section 23 of the Law on the Constitutional Court accepted the legal opinion set out in the operative part of that opinion.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Josef Fiala, Vladimir Sládeček and Radovan Suchanek, and by Judge Jan Filip for his reasons.
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Regulation Information
| Citation | Communication from the Constitutional Court No 4 / 2023 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 29 November 2022 sp. zn. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.01.2023 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
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