The Constitutional Court found No 49 / 2007 Coll.
The Constitutional Court found of 13 December 2006 on the application for annulment of certain provisions of Act No. 449 / 2001 Coll., on hunting, as amended by Acts No. 320 / 2002 Coll. and No. 59 / 2003 Coll.
Valid
The Constitutional Tribunal found
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49
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 13 December 2006 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Pavel Holländer, Ivana Janů, Vladimir Krůk, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Excellent and Michaela Židlická on the proposal of 51 Members of the Chamber of Deputies of the Parliament of the Czech Republic and 21 Senators of the Senate of the Czech Republic to the repeal § 9 paragraphs 2 and 3, § 17 paragraphs 6, § 18 paragraphs 4, § 21 paragraph 1 (e), § 26 (1), § 27 (1), § 31 paragraphs 1 and 6 (a), § 55 (a), § 69 (1), § 69, § 69 (1), § 1), §.
as follows:
Motion denied.
Reasons
Circumstances of the case
1. By means of a proposal received by the Constitutional Court on 4 July 2003, supplemented by a submission received by the Constitutional Court on 19 December 2003, the appellants, with reference to Article 87 (1) (a) of the Constitution of the Czech Republic, request that the Constitutional Court annul the rubric provisions of the Law No. 449 / 2001 Coll., as amended by Acts No. 320 / 2002 Coll. and No. 59 / 2003 Coll., as well as that those provisions of the Law on hunting are contrary to the constitutional order of the Czech Republic, namely Article 4 (3) and (4), Article 11 (1) and (4), Article 20 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter of the Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of Appeal," The Constitutional Court of the Constitutional Court of the Constitutional Court of the Constitutional Tribunal, "n. 403 / 2002 Coll.
The proposal affects essentially two problem circuits.
2. The first, more general, is the controversy of the appellants with the assumption that the exercise of the right of hunting, generally perceived as socially beneficial activity, can be considered as a whole activity in the public interest with all the consequences that such a characteristic may have on limiting property rights to land.
3. The second heading concerns the issues of relations between landowners and members of the hunting communities, relations between members of the hunting communities of each other, in particular in relation to the location of hunting equipment on land, restrictions or prohibitions on the entry into the chase, optimisation of the shape of the hunts achieved by adding or replacing land and the conditions for claiming compensation.
Arguments of the applicants
4. The appellants are based on the assumption that the right of hunting or its exercise, as regulated by the contested law, constitutes an intervention in the property rights of individual owners of land for the benefit of persons entitled to exercise the right of hunting - for the benefit of the holders of hunting.
5. They point out that pursuant to Article 11 (4): The Charter may be subject to compulsory restriction only in the public interest, on the basis of the law and for compensation. They interpret the public interest as an interest of general or general benefit and in this context they point out that, in a particular case, it cannot only be a public interest, but also the interest of individuals or groups of persons (however specific and numerous).
6. They base their view, inter alia, on the finding of the Constitutional Court of 28 March 1996 sp. zn. I. ÚS 198 / 95 (Collection of finds and resolutions of the Constitutional Court, Volume 5, Found No 23, p. 193 et seq.), according to which... "not every collective interest can be described as the public interest of the company,... concept, public interest 'must be understood as such an interest that could be regarded as a general or general interest." In this finding, the Constitutional Court also refers to the work of F. A. Hayek Law, Legislation and Freedom. II. part, Prague: Academia, 1991, p. 14, where the author states, "it is often mistakenly suggested that all collective interests are the general interests of the company; However, in many cases, the satisfaction of the collective interests of certain groups may be in complete conflict with the general interests of society'.
7. Furthermore, the appellants argue that the right of hunting, as defined by the Law on hunting, constitutes a complete summary of rights and obligations which do not constitute a compact-homogeneous group, but, on the contrary, at least two essential elements of a diametrically different category.
The fulfilment of the animal's obligation to protect and thus, in a broader context, to protect the environment thus confers a public interest character. However, they point out that, by virtue of the nature of other parts of the right of hunting, for example, in the right of game to hunt, to claim or find dead animals, it is obvious that there is no public interest in the exercise of those rights. Thus, they argue, in their view, that the rights of owners of hunting land are limited in the public interest, as expressed in the judgment of the Supreme Court of 17 October 2002 in Case No 22 Cdo 3006 / 2000 (published in Case No 6 / 2003, Prague: C. H. Beck, 2003, p. 189).
8. Thus, the exercise of the right of hunting, since, among other things, it clearly includes interest, sport and economic and business activity, or business activity, in the appellants' view, it cannot be a whole activity in the public interest.
9. The correctness of this conclusion is underlined by the appellants by referring to the fact that, for example, in France, hunting rights problems have been defined as sport. They refer to the case of Chassagnou and others against France (Overview of the judgments of the European Court of Human Rights No 7- 8 / 1999, p. 148 et seq.), and in their view also mention the generally related finding of the Constitutional Court in the case sp. zn.
On the individual contested provisions of the law:
10. k § 9 (2)
"(2) It is also prohibited to damage or destroy herring, seedlings, feeding, watching and hunting equipment and other hunting equipment. For their construction and location, prior consent of the owner of the hunting grounds is required. If none of the owners of the hunting grounds gives such consent, the authority of the hunting authority shall decide. This is without prejudice to the provisions of specific legislation on the location of herring, waterhole or game-feeding facilities. '
The appellants question the possibility of placing hunting equipment in favour of the game (not to hunt it - so it seems that "certain differences" between the public and private interest were already known by the legislator) on the land without the consent of the owner or directly contrary to his will, although otherwise they accept the existence of the public interest.
At the same time, they reject the construction that the compensation, by law, for the limitation of property rights strictly required, can be regarded as a chase in a particular case, as it is a restriction of ownership rights of a particular, individual owner, not of all owners of land associated with the hunting community. The appellants also point to a specific mechanism for the establishment of a restriction on property rights, which is not the case in this case by the association itself, but only by a decision of the administrative body. In the absence of compensation, as they believe it should be perceived, they see a contradiction with Article 11 (4) of the Charter.
11.
"(3) At the request of a hunting user, the authority of the State Administration of Hunting, in particular at the time of the nesting, laying and rearing of pups or carrying out hunting, may impose appropriate restrictions and restrictions on entry into or parts of the chase, restrictions on riding by horses and towing dogs and restrictions on other sports or interest activities. Those measures shall not apply to the economic activities of owners or, where appropriate, charterers of land for hire. '
Opposition with Article 11 (4) The instruments also see the possibility of the administrative authority, at the request of the user, to impose an appropriate restriction on the owner of the land or to prohibit the entry into the chase and restrictions on other listed activities, inter alia, at the time of the hunting operation. The fact that these restrictions do not apply to the economic activity of the owner or tenant of the land does not consider a satisfactory, acceptable compromise. Whereas the reasons for protecting game in the nesting, laying and rearing of young animals give the nature of the public interest, with reference to the fact that it is not always a planned reduction in the number of game related to the conservation of nature or the environment (it is sufficient to accept compliance with "hunting farming" or the needs of agricultural and forestry production). Repeatedly, they argue in support by referring to the position of the ESLP in the abovementioned case.
12.
"(6) When forming a chase, account must be taken of their shape. It is not possible to create or recognise a chase, which is in the form of a narrow land lane in the widest area only 500 m wide, even if it would achieve a minimum area. This provision does not apply to the marginal parts of the chase. In the same way, it is necessary to prevent the creation of a chase border which would form the interface between agricultural and forest land. To this end, the setting of the hunting boundaries shall be carried out in exchange for or by the addition of hunting grounds. ';
In this legislation, the appellants see interference in the right to bring together citizens, as enshrined in Article 20 of the Charter, as the procedure under this legal provision, which ultimately aims at the automatic demise of membership of the affiliation community, does not take account of the free will of the owners of the individual land.
13.
"(4) The appellant may request that additional continuous afforestation of other owners be added to the land for which the minimum measures are taken, indicating the reasons for the affiliation. If it has agreed to be associated with those owners, it shall attach this Agreement to the proposal. If the applicants of future neighboring hunts agree to exchange hunting grounds which may not be the same in their territory, they shall submit such an agreement on proposals. If the affiliation is carried out by a government authority on its own initiative, it may only be done with the consent of the wanker. The total amount of exchanges and allocations to be made to balance borders shall not exceed 10% of the area of the applicant's own hunting grounds. '
The fact that the affiliation of the land to the neighbouring hunting grounds, forcing the owner of the land to suffer from the exercise of the right of hunting, is a matter for the appellants to point out that the activities relating to hunting law and the use of hunting land in a particular case have, to a large extent, a private interest which cannot be sufficient to restrict the property of the owner of the land.
In the appellants' view, the provision also provides for unfounded discrimination between (forced) land owners, since, while, in the case of hunting, where there is a hunting society, at least they can participate in the exercise of hunting rights, as members, and others, where their land is attached to the hunting of an individual owner, they do not have the option of exercising one of the rights derived from the right to use the land as part of the property right.
According to the appellants, there are no public values which could reasonably justify the different treatment of land owners in the context of the allocation, and therefore, in the procedure provided for by this provision of the Act, they see the infringement of Articles 1 and 4 (3) of the Charter.
14.
"(1) The General Assembly shall:
(e) the decision to accept the owner of the hunting grounds attached to the chase as a member of the hunting community; '
The appellants criticise the fact that it is indirectly apparent from that legal provision that, since decisions regarding membership of the affiliation society fall within the competence of the general meeting, it is not possible to become a member of the affiliation community "otherwise '-" semi-automatic', in the context of the assignment of land, in the manner envisaged by Paragraph 26 (1) of the Hunting Act. They draw attention to the discrepancy between the strict wording of the law and its free interpretation in the form of a comment according to which, but without any support in the law, the construction of automatic membership of the company is acceptable in the case of land affiliation. In the appellants' view, however, this question cannot be addressed by interpretation and in the present regulation by making membership of the affiliation community conditional, in all circumstances, on the approval of the General Assembly, on the expression of an unjustified inequality between the owners and thus the infringement of Article 3 (1) in conjunction with Article 11 (1) of the Charter.
15. K § 26 paragraph 1 of the sentence behind the semicolon
"Membership in the hunting community
(1) If a member of the hunting community transfers ownership of the hunting land which is part of the hunting ground, his membership of the hunting community ceases; the transferee of such land shall become a member of the affiliation society unless, within 30 days of the date of the establishment of its ownership right, he notifies the affiliation community in writing. ';
The appellants argue that the party acquiring the property is obliged to become a member of the company in connection with the procedure relating to the transfer of ownership of the property. If, therefore, there is not the same possibility as the owners of other hunting grounds, there is unjustified inequality between the owners of hunting grounds.
They refer to a 30-day period starting from the date of the establishment of the right of ownership in which the acquirer can declare that he does not agree with the membership of the company. They then criticise the fact that according to the provisions of § 2 (2) of Act No. 265 / 1992 Coll., as amended, the property right is acquired retrospectively - with effects at the time when the application for registration of the property right was filed. Therefore, if the acquirer waits for the time when the relevant cadastral office confirms that (and since) he has become the owner, he will no longer be able to express his opposition to membership of the affiliation society, since in most cases the 30-day period will expire in the meantime.
In this construction, the appellants see a conflict with Articles 3 (1) and 11 (1) of the Charter as well as a violation of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 1 of the Additional Protocol thereto.
16.
"Property of the company
(1) The company is responsible for its obligations with all its assets. The members of the community guarantee the commitment of the community. "
According to the appellants, the fact that the members of the affiliation community guarantee the obligations of the affiliation community, without the extent of their liability being equivalent to the share of the vote, or the extent to which they are effectively - in view of the size of their shareholding - able to influence the decision-making of the affiliation community, creates an unjustified inequality between members, in particular, the fact that members of the affiliation community can become wholly independent of their will.
According to the appellants, Article 1 and Article 3 of the Charter are infringed, and they also object to Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms in conjunction with Article 1 of the Additional Protocol.
17.
"Change and demise of the chase
(1) If the principles of sound hunting management so require, the state authority may allow a change in hunting by balancing borders or by exchanging hunting grounds (hereinafter referred to as "change in hunting '). In the event of a change in the chase, the territorial boundaries of municipalities, counties or counties and the area of the land exchanged may not be taken into account.
(2) The proposal to change the chase is submitted jointly by the holders of the hunting sites concerned, namely the State Hunting Administration, whose territorial area is the largest part of the hunting grounds concerned. If the owners of the wankers concerned fail to submit a joint proposal to change the chase, any of them may submit the proposal. If it is a social chase, it will submit a proposal to the company. "
The appellants deduce that (still) in relation to changes in the chase, namely the incorporation of the land into another chase against the will of its owner, can, only by decision of the administrative authority, result in a forced termination of the membership of the voluntary community. If the owner of the land does not - does not want or cannot become a member of the neighbouring hunting community, he is obliged to suffer on his land the exercise of the right of hunting without any compensation for this restriction. They see a contradiction with Article 11 (4) of the Charter.
18.K § 31 (6) (a)
"(6) Honitba shall cease
(a) the abolition, merger or division of a chase at the request of their holders and the acquisition of new decisions on the recognition of a chase; '
Infringement of Articles 11 (4) and 20 (1) The Charter contends that, in the light of the fact that the once expressed will of the landowners to create an affiliation society cannot be changed in the future without the consent of this affiliation society and the minority owners of the land, or the dissatisfaction with the activities of the affiliation community, who do not wish to continue to do so, they are, contrary to the requirement of freedom of association, being deprived of the possibility of creating a new affluent society and of creating a chase on their territory, moderately forced.
In favour of this structure, the appellants also argue that members from the company are not entitled to compensation under the current regulation for the continuing limitation of their ownership in the exercise of the right of hunting by a third party.
19.
"Application of entitlements
(1) The claim for compensation for damage caused by animals must be claimed by the user of the hunt
(a) for damage to agricultural parcels, field crops and agricultural crops, within 20 days of the date on which the damage occurred;
(b) in the case of damage to forest land and forest areas incurred between 1 July of the preceding year and 30 June of the current year, within 20 days of the end of that period.
(2) At the same time as the claim for compensation for the damage caused by the game, it will quantify the amount of damage suffered. On field crops and agricultural crops where damage can only be quantified at the time of harvest, the damaged shall be quantified within 15 days of the harvest.
(3) The injured and the user of the chase are to agree on compensation for the damage caused by the game. If the user does not make good the damage within 60 days of the date on which the injured party claimed his claim and quantified the amount of the damage or did not enter into a written agreement with the injured party to make good the damage, the injured party may claim his claim for compensation in court within 3 months. '
The appellants argue that the pre-compulsory periods referred to here are excessively short, or that they create significant inequalities between private law bodies, since the claim for compensation has been used for the protection of the rights of the owners of the land - a different, more stringent measure than in the case of the time limits for the exercise of the right to compensation by the holders of the hunt, to which the legislature has left the normal time limits civil. They see a breach of Article 1 of the Charter, namely the principles of equality in rights, as well as Article 11 (1) thereof, the identity of the legal content and the protection of ownership of all owners.
20.
"Transitional provisions
(1) Jerries and disciplines recognised in accordance with existing rules shall remain in place; This also applies to areas of less than 50 ha and to independent pheasants recognised under the existing regulations, which are becoming wanking under this law, even if they do not reach 500 ha. If a chase or a branch recognised under the current rules reaches legal notice under this law but does not meet the other requirements for the formation of a chase, the person who has been recognised under the current rules shall be required to submit a proposal to the hunting authority to bring the chase into compliance with this law by 31 December 2002, otherwise the chase shall expire on 31 March 2003. '
This provision of the law is accused of preserving legal relations in the exercise of the right of hunting. The only way to create a new chase where there has been another (and it has been preserved under the conditions of the new law) is to divide it. However, since this is only possible under the current regulation on the basis of the proposal of the wannabe holder, the appellants consider that a minority of landowners, if they wish to split the chase or cancel it, are thus denied the possibility of participating in the exercise of the right of hunting by creating a community of hotels (according to their ideas and needs). The appellants therefore consider that the current adjustment in this respect is contrary to Articles 11 (4) and 20 (1) of the Charter.
Observations of the parties
A.
Senate of Parliament of the Czech Republic
General
21. In its observations, the Senate has explained in detail the course of the legislative process in relation to the contested provisions of the Hunting Act, recognising the possible doubts of the parties to certain individual provisions in the debate. It confirms that both committees and plenary have widely discussed the issue of property rights in respect of affluent property in relation to the degree of constitutionality of the restriction of that right in favour of hunting rights. The Senate, however, did not find inconstitutionality in the individual bills, so its amendments were only legislative-technical.
22. On a general basis, the Senate stated that, when assessing the contested provisions in the context of the whole hunting law, the fundamental question of defining the public interest established for the exercise of hunting rights is the legitimacy of the specific restrictions on the property rights of owners of hunting grounds. The Senate does not doubt that the need to protect animals in such a way that, in accordance with Article 35 (1) of the Charter, everyone can be guaranteed the right to a favourable environment (it sees a very immediate link), constitutes a public interest.
23. The right of hunting, both from the point of view of its historical development and from the point of view of the present regulation, characterises as a compact summary of the relevant rights and obligations which are interlinked in its implementation and which must therefore be assessed in their respective context. In that context, in the opinion of the Senate, it is also necessary to see game hunting, including the possession of the game caught, as part of an integral animal protection process. From this point of view, therefore, the restriction of property rights to affluent property in favour of hunting rights appears, in the view of the Senate, to be a restriction in the public interest.
The individual contested provisions of the law
24. The Senate noted that the appellants quote them in their submissions before the amendment by Act No. 59 / 2003 Coll.
25. In connection with Paragraph 17 (6) The Senate pointed out that it did not agree with the proposed solution to this provision, which sets out the relevant criteria to be taken into account in the formation of a chase, as regards the suitability of the shape of a chase in relation to the minimum width of the chase, and recommended a substantive adaptation of that provision by an amendment. However, the Chamber of Deputies approved the draft law in this regard, as it was referred to the Senate. Furthermore, in the context of this provision of the Act, the Senate stressed that, when assessing the draft law, it considered sui generis as a legal person under the Hunting Act, which can only be a member of the owners or co-owners of continuous hunting land, and not a company, company or association within the meaning of Article 20 of the Charter.
26. On Paragraph 26 (1) of the part of the sentence behind the semicolon (further contested provision), the Senate states that it is the result of amendments to the Act on hunting implemented by Act No. 59 / 2003 Coll., amending Act No. 449 / 2001 Coll., on hunting, as amended by Act No. 320 / 2002 Coll., and Act No. 128 / 2000 Coll., on municipalities (municipal establishment), as amended. The Senate has unsuccessfully attempted to modify the issue of membership of the hunting community, which would allow owners of all the hunting grounds that are part of a recognised social chase to decide for themselves whether they will become members of the hunting community. Therefore, the Senate proposed an adjustment based on the assumption that a later-adopted de facto adjustment, i.e. the assumption that the owner of the affectionate land which is part of a recognised social chase, would be a member of the affiliation society, if the affiliation society so requests in writing, would be the date on which its application was delivered to the affectionate community.
27. The Senate admits that, in the discussions in committees as well as in the Senate plenary, some senators were concerned about the potential risk of "tunneling" the personal property of those members of the society who, in the context of the social chase, have small scales of land and therefore cannot sufficiently influence the decision-making of the general meeting of the society in the case of loans and loans taken by the community.
28. The proposal of the Committee on Territorial Development, Public Administration and the Environment to delete Article 27 (1), second sentence, has been addressed by the Senate with a different result twice in total. The second time he approved this proposal, but the Chamber of Deputies did not accept it after the debate.
29. In the opinion of the Senate, therefore, the appellants can be attested to this issue, but only in part of their proposal, where they seek the annulment of the sentence of the second provision of Paragraph 27 (1), but not in the first sentence of the obligation of the company to pay the full liability of the company. Such a responsibility is considered by the Senate, in agreement with the appellants, as a very common expression of legal personality.
B.
Chamber of Deputies of Parliament of the Czech Republic
General
30. The Chamber of Deputies stated that the legislature had acted in accordance with the prescribed procedure and in the belief that the adopted law was not contrary to the Constitution of the Czech Republic. In her view, the Hunting Act does not deny or exclude fundamental human rights guaranteed by all the Constitution of the Czech Republic and the Charter. At the same time, it expressed doubts as to whether, following the annulment of the contested provisions, the hunting law would still be applicable.
31. The appellants' legal opinion appears to it to be useful. It clearly challenges the fundamental principles of hunting law, which must, first and foremost, respect the needs of the game (and in its interest it is often necessary not to respect the property boundaries of the land), second and foremost the interests of the game farming and then the interests of the owners of the hunting grounds, tenants of the land, hunters etc.
32. The Chamber of Deputies recalls that the wild game is defined by law as a natural property, which relates to Article 7 of the Constitution of the Czech Republic, according to which the State ensures that natural resources are used in a gentle manner and that natural resources are protected. It then concludes that the right and obligation of the game to protect, to behave with purpose and to hunt must be regarded as a public interest. All the more so because the right of hunting is not by law an interest or sporting activity, but is part of economic activities carried out by man in nature, as well as forest management.
The individual contested provisions of the law
33.
In the opinion of the Chamber of Deputies, the motion for annulment is not justified. In the absence of an agreement on the construction of hunting equipment, the authority of the State Hunting Administration shall decide in administrative proceedings. Each party shall have the opportunity to object or to appeal within its framework. In administrative proceedings - with the same context - a decision to restrict or prohibit entry into the forest is also taken. In addition, it is not only used to allow hunting, but mainly for the care of animals. Moreover, it does not apply to the economic activity of land owners and landowners.
34. On § 17 (6), § 18 (4), § 21 (1) (e), § 31 (1) and (2) and § 31 (6) (a)
The motion for annulment is considered unfounded by the Chamber of Deputies for the reasons set out above. It points out that the owner has the free will to deal with his land, including the right to apply for a declaration of his land as unchaste, and does not have to become a member of the company.
35. on § 26 (retrospectively contested provision)
The motion for annulment, in the opinion of the Chamber of Deputies, is not justified. The legislator's obvious intention was to protect and prefer the new owner of the hunting grounds, who is interested in becoming a member of the company, with the fact that even the general meeting of the society cannot deny him that membership. The owner who becomes a member of the company in accordance with this provision may, at any time, terminate his membership on the basis of a written notification or request the competent administrative authority to declare its land non-profit. In order to make specific arrangements for the acquisition of property rights by decision to authorise its registration in the property register, the Chamber of Deputies notes that already after the signing of the contract of sale, the acquirer may inform the host community of its opposition to membership and bind the effects of this communication back to the time when the application was submitted to the cadastral office. At the same time, the limitation of the deadline by law is also necessary in the Chamber of Deputies' view, because the affiliation society is, among other things, obliged to convene a general meeting, to pay an aliquot of revenues, etc., for which it must have a real up-to-date record of members. According to the Court of the Chamber of Deputies, the reference to Paragraph 30 (2) shows that there is no understanding of the difference between the owners of the hunting grounds who became members of the hunting ground when the hunting ground was established and the owners of the hunting grounds whose land was attached to an existing hunting ground under Section 30 (1) of the Hunting Act.
36. second sentence of Paragraph 27 (1) (retrospectively contested provision)
The Chamber of Deputies disagrees with the cancellation. It considers that, unless the law expressly regulates the liability of individual members of the company for its obligations, it is possible to base it on the provisions of Paragraph 22 (3) - decision-making (and thus responsibility for decision-making) according to the area of the property of individual owners. There is also nothing to prevent the regulation of liability in the internal regulations - the statutes of the company. Any member of the association may also, pursuant to Article 22 (8) of the Hunting Act, request that the court annul the decision of the general meeting of the association.
37.
The motion for annulment is in the opinion of Unacceptable to the House of Deputies as this would end the possibility of an agreement between the injured party and the user of the hunt for damages; the deadlines for claiming compensation are considered appropriate by the Chamber of Deputies in the light of the technical context.
38. With the repeal of Paragraph 69 (1) The Chamber of Deputies also disagrees, since the deadlines laid down in this transitional provision have already been passed, it therefore considers the proposal for its annulment to be irrelevant. Otherwise, it would also be necessary to deal with administrative procedures already initiated and to consider possible discrimination in relation to cases which have already been decisively decided.
39. The Chamber of Deputies stresses in particular that the justification in this case is based on provisions that do not exist in the Hunting Act.
Opinion of the Ministry of Agriculture
40. The Constitutional Court under § 48 (2) and § 49 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, invited the Ministry of Agriculture to comment on the submitted proposal.
General
41. The Ministry of Agriculture (hereinafter referred to as "the Ministry"), in its opinion, agrees that foreign land is used in the exercise of hunting rights. It refuses, however, that this would result in the management and acquisition of foreign land. It points out that, according to our legal order, wild animals - thus also animals - are not considered as part of the land, but, as in many other European countries, "res nullius." Therefore, according to the Ministry, the State has the right to determine who, and under what conditions, can claim such an animal. The State then directly, with reference to Article 7 of the Constitution of the Czech Republic, has the obligation to provide legal conditions for the possibility of protecting game as a natural property, as stated in § 2 (b) of the Hunting Act. The Ministry considers the right and duty of the game to be of public interest to protect, maintain and hunt intentionally. The restriction of property law, which is a possibility to the extent that it is strictly necessary to use hunting grounds for the exercise of hunting rights, is therefore an interest of general or public interest.
42. According to the Charter, property law is not absolute and must not be misused to harm the rights of others or contrary to legally protected general interests and its performance must not, inter alia, harm nature and the environment beyond the scope laid down by law.
43. Therefore, property law is sufficiently respected and protected by the hunting law. The owner of the property may decide whether a particular hunting ground will be part of one of the hunting grounds. If he does not agree to his hunting grounds being part of one of the hunting grounds and thus exercising the right of hunting, the Hunting Act gives him the possibility to exclude those rights on his land by declaring them unprofessional.
44. The authorisation to claim the dead game caught or found, as well as its development stages, is characterised by the Ministry as a "reward of the state" for the care of a part of the natural wealth and to compensate for any negative consequences that the game has caused by its life manifestations on land and crops.
45. The Ministry points out that according to the Hunting Act, owners of hunting grounds are not forced to join the hunting community or to join the hunting association. This decision is entirely voluntary and depends on their will to exercise their right or not.
46. Hunting in our legislation is not and has never been considered a sport, and according to the opinion of the European Commission, which the Ministry has requested with regard to the accession of the Czech Republic to the European Union, the assessment of hunting as such is left to national legislation in the light of (different) cultural and historical traditions of each Member State. It also points out - with regard to the argument relating to the conditions in France - that the substance of the term "hunting" is not the same as "thinking" as is traditionally understood by us and used in our legislation.
47. In the absence of the proposal, the Ministry refers to Paragraph 30 (2) of the Hunting Act, which states that compensation for the affiliation shall be provided for by agreement and, in the absence of an agreement, shall be determined by the Authority.
The individual contested provisions of the law
48. k § 9 (2)
The Ministry considers it appropriate to maintain an amendment to the Act in view of the fact that the decision of the Administrative Office is given in an administrative procedure in which the owner of the land may exercise his rights; all the more so that such a decision is reachable by the court.
49.
On Paragraph 9 (3), the Ministry points out that, contrary to (different) French legislation under our legislation, the owner of a hunting ground, who voluntarily created an affectionate society, has recognised its land as a hunting ground, or has agreed that its land has been assigned to the chase, has also been informed that hunting rights, including hunting and all that is related to it, will be implemented in the pursuit. According to Article 17 (2) of the Hunting Act, other landowners who do not wish to have such a restriction on their property's property rights have the opportunity to submit a proposal to the administrative authority to declare their land to be inhospitable. Restrictions at the time of hunting are intended to enable obliged persons to take measures to ensure that the actual numbers of game in the hunt do not exceed those of a normalised nature, and at the same time other general interest, namely the safety of others.
50.
Although, according to the proposal, the entire provision of Paragraph 17 (6) is to be repealed, the reasoning, which in addition does not correspond to the legislation, is aimed only at its final sentence. According to the Law on Hunting, the hunting community is not a civil association under Act No. 83 / 1990 Coll., on the association of citizens, as amended. The Ministry agrees, however, that in the settlement of the hunting borders by exchange of hunting grounds or by assigning them, it is affected by the already expressed will of the owners of hunting grounds, the situation being addressed by any mandatory consent of the owner to the exchange or assignment of such land.
51.
The Ministry notes that it is not entirely clear what the applicants have in mind. The third sentence refers to the position expressed on Paragraph 17 (6). As regards the allegation of discrimination against owners of hunting grounds associated with the social chase, the Ministry notes that the solution to such a question is not subject to Paragraph 18 (4).
52.
In relation to the proposal to abolish this provision, the Ministry states that, in comparison with the provisions of Paragraph 26 (6), Paragraph 21 (1) (e) of the Hunting Act, the provisions of the Hunting Act appear to be discriminatory in relation to the owners of the hunting grounds attached to the hunting grounds, who have decided to become a member of the hunting community later than the time limit laid down in Article 26 (6) of the Hunting Act or have not been able to do so for some reason or against their legal successors. In this context, the Ministry also points out that § 26 (6) does not always comply with § 19 (1) (a). According to that provision, only owners or co-owners of continuous hunting land may be members of the company. Paragraph 26 (6) may, as a consequence, lead to a member of an association which cannot be a member of an association. Therefore, it is very difficult to import the legislature's intention of Article 26 (6) in view of Article 19 (1) (a). In the Ministry's view, the ability of the company to comment on its extension to additional persons is not generally discriminatory against the person whose land was attached to the hunt and the restriction of its right to associate freely. This position is based on the fact that the affiliation society is not an association under Act No. 83 / 1990 Coll., on the association of citizens, as amended. The Ministry considers that it is necessary to take into account the right of the company to be free to comment on whether or not someone else will become a member of the company, particularly in view of the fact that the members of the company guarantee the obligations of the company.
53. Paragraph 26 (1) of the part of the sentence behind the semicolon (retrospectively contested provision)
The Ministry admits that in many cases the 30-day period is difficult to meet or is not possible at all; It therefore agrees that, in such cases, the ownership rights of those owners who are not interested in becoming members of the company may be restricted. At the same time, however, it points to the legislature's efforts to protect a new owner who is interested in becoming a member of the company and to set the most favourable conditions for it.
54. As regards the second sentence of Paragraph 27 (1) (retrospectively contested provision), the Ministry merely observes that the issues of property liability within the company are not the subject of decision-making or supervisory activities of the authorities of hunting.
55. The Ministry takes the same opinion as it did on Paragraph 31 (1) and (2).
56. On Paragraph 31 (6) (a), the Ministry points out that the arguments in the proposal are not based on the applicable legislation. In this provision, there is not a exhaustive list of all the reasons for the disappearance of the chase, but only one of them. The mere (proposed) deletion of the words "at the request of their holders' could, according to the Ministry's assumption, lead to an unprecedented increase in the number of administrative proceedings (possibly even in litigation) on the basis of proposals made by even entities which are neither owners of the land in the hunting or the holder of the hunting.
57. On Article 55 (1), (2) and (3), the Ministry summarises that the current legislation is based on the specifics of animal damage on agricultural and forest crops. It points out that for agricultural crops, damage after 20 days is already difficult to detect, for forest areas, especially in mountain areas, then the detection of animal damage due to high snow cover is often real over a longer period of time. Experience has shown that a period of one year can be considered as a maximum, after a longer period of time it would probably no longer be possible to identify when the specific damage occurred and to what extent and who (due to a possible change in the user of the chase) is responsible for it.
58. On Paragraph 69 (1), the Ministry points out that the time limits laid down in this transitional provision have already been passed, so it considers that the application for its annulment is irrelevant. Otherwise, the administrative procedures already initiated should be dealt with and possible discrimination should be considered in relation to cases which have already been decisively decided.
59. The Constitutional Court has verified, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, that Act No. 449 / 2001 Coll., on hunting, as amended, the provisions of which are contested for non-constitutionality were adopted and extradited within the limits of the Constitution of the Czech Republic by the designated competence and by the constitutionally prescribed manner.
Nature and nature of hunting law
60. The Constitutional Court notes, first of all, that the principle of the sovereign legislator applies to legal standards in the Czech Republic. From this point of view, it is not for the Constitutional Court to assess the correctness, the idea of balance, the political charge or the substantive appropriateness of the legal regulation adopted, but only - as it corresponds to the constitutional definition of the Constitutional Court's powers under Article 83 of the Constitution of the Czech Republic - compliance with constitutional guarantees.
61. In the context of the present case, the Constitutional Court dealt primarily with the question of the substance of hunting law and, consequently, its assessment from the point of view of the constitutional guarantees invoked by the applicants.
62. Historically, the right of hunting in our cultural and geographical conditions was understood as part of the upper land ownership. In the New Testament, when this concept was no longer acceptable in view of the social emancipation of broad layers, even in the conditions of the Habsburg monarchy, there was a change in the conditions by abolishing the hunting law of 1849 on foreign land. The right of hunting was thus newly understood as part of the ius fruendi, separated from the other components of ownership. Although land ownership was and is an indicator of the body entitled to exercise the right of hunting, it did not express the existing legislation (the laws on hunting of 1947 and 1962) the relationship of hunting rights to land ownership clearly and particularly in practice and the legal consciousness of the addressees of the law was not understood as a special right by its existence independent of property law. It is this fact that the legislation on hunting, the contested provisions of which are the subject of this procedure, is trying to emphasise it (see also the explanatory note to Section 16 of the Hunting Act, House Press 788 / 0).
63. The right of hunting depends directly on the right of ownership to animals or non-hunted animals. A woman who is understood differently across legislation is usually referred to as res nullius, a thing that belongs to no one. This approach is conditional on the fact that the game moves freely, regardless of the boundaries of the land, and it is not possible to identify the ownership of the land on which the game moves with the ownership of the game. The property is therefore not a fruit of the land but a separate object of property law. The state, the sovereign on its territory, is entitled to regulate animal rights for this very reason.
64. The subject of the right of hunting is therefore animals, which, on an abstract level, is primarily the natural wealth that the State has set out to protect. The seriousness and importance of this protection is mainly due to the fact that the protection of natural values has become the subject of regulation directly in the Constitution of the Czech Republic, whose Article 7 states that the State ensures that natural resources are used in a gentle manner and that natural wealth is protected.
65. The current legislation, as implemented by the Hunting Act, distinguishes two categories - hunting and hunting law. The Hunting Act defines hunting [§ 2 (a)] as a set of activities carried out in nature in relation to wild animals as part of an ecosystem and a federal activity aimed at maintaining and developing hunting traditions and customs as part of the Czech national heritage. The law of hunting means the law on hunting [§ 2 (h)] a summary of the rights and obligations of animals to protect, to conduct, to hunt, to take possession of hunted or found dead animals, to its development stages and to drop antlers, as well as to use to the extent necessary for the hunting grounds.
66. It follows from these definitions that the essence of hunting in Czech legislation is primarily aimed at fulfilling the constitutional objective, namely the protection of animals, with an additional objective of protecting hunting as a national cultural heritage.
67. The state sets out a number of conditions or restrictions under which the right of hunting can be exercised. The first, most general, restriction is that hunting rights can only be pursued in a chase and can only be exercised by entities that fulfil the statutory conditions - so they cannot be exercised by anyone and anywhere.
68. However, other attributes that have been granted by law are more important to assess the nature of hunting law in terms of compliance with constitutional guarantees. Hunting is not defined as a production activity or business, but as a relation to wild game forming part of the ecosystem. Thus, the right of hunting cannot be divided into "commercial 'and" non-commercial' parts, on the one hand, because the law sets all the components as integral parts of hunting, but mainly because they are two sides of the same coin; one is the protection and care of the game and the other is a significantly restricted right to hunt, the primary objective of which is to regulate the animal's condition. The Hunting Act implies a mechanism according to which the hunting proceeds should approximately cover the costs arising from the implementation of the obligations imposed by the Law. For this reason, it is also not possible to divide the groups of activities carried out under the right of hunting against those of public interest which do not serve it.
69. In order to achieve its purpose, the Hunting Act lays down a number of obligations, primarily those relating to hunting planning. The basic principle of game farming is to maintain the balance between the occurrence of all animal species within the limits of the so-called minimum condition and the normalised condition (i.e. a condition that corresponds to the quality of the environment and the maintenance of the chase). The new liability for another administrative offence which may be penalised by imposing a fine on failure to comply with or exceeding the plan is also an irrelevant circumstance. The implementation of hunting activity is also subject to supervision in the area of state hunting administration, in which the measures may be imposed to remedy the deficiencies identified. The exercise of the right of hunting on the part of the owner represents a burden on the subject of walking, driving and patient hunting activity; the construction of hunting equipment requires the consent of the owner of the land.
70. In the opinion of the Constitutional Court, the above premises indicate that under the conditions of the Czech Republic, hunting and hunting rights are social activities and the country's problems to protect and develop one of the elements of the environment - game. The Hunting Act does not constitute an adjustment of hunting activity as an interest activity, but in its basis as a dedicated and regulated activity to protect and develop nature.
71. In this context, the Constitutional Court also considers it important to mention the applicability of the conclusions made by the European Court of Human Rights in the above mentioned case by Chassagna and others against France. In essence, the case under consideration is that the complainants, contrary to their ethical beliefs, were forced to include their land in the hunting grounds, or were forced to participate in the Association communales de Chasse agréés (ACCA) and were forced, although non-hunters themselves, to fish on their land. The object of the complaint was therefore the construction of the so-called Verdeille Act, according to which in the various French departments the obligation to participate in ACCA land owners under different conditions was established and this law did not allow for an effective (demanding) means of not participating in ACCA's activities or to exclude its land as non-profit-making land. It was in this context that the French Act on Agriculture also highlighted the mission of hunting as an activity to promote the development of animals and the destruction of harmful animals, the suppression of poaching, the implementation of hunting and hunting associations, while respecting ownership and crops and, in general, ensuring a better technical organisation of hunting to enable hunters to exercise their sport better. This shows a clear distinction between the substance of the Chassagna case and the present case. In particular, it is evident from the later fact that the concept of hunting in Czech law is qualitatively different, because according to Czech regulations, animals are not a means of implementing hunting, but, on the contrary, hunting is a means of achieving optimisation of game farming.
General assessment in terms of the constitutional guarantee of ownership
72. The core of the appellants' argument is that the bulk of the contested provisions is contrary to Article 11 (1) and (4) of the Charter, according to which:
"(1) Everyone has the right to own property. The ownership of all owners has the same legal content and protection. The inheritance is guaranteed."
"(4) Expropriation or forced restriction of ownership is possible in the public interest, by law and for compensation. '
73. The Charter itself does not contain a definition of the content of the property right. The principle set out in the second sentence of Article 11 (1) of the Charter refers to a simple law which sets out the specific content of the property right, which is often different in nuances - given the specificities of the individual legal order in defining the specific content of the traditional ownership triad -. A simple law is intended to determine the content of ownership as a general legal category and the Charter constitutes a constitutional guarantee guaranteeing the unity of the content of that category. The aim of such a provision is that, irrespective of the subject matter and the subject of the property right, there should be a single right of ownership, not of different types, as was the case in the past, when the legislation knew the ownership of the socialist, private and personal, or when the owners were limited to such an extent that their ownership was solely the ownership of the legal, the holistic and its performance was entrusted to the socialist organisation.
74. The legal provision, which provides for the legal content of the property right, is § 123 of the Civil Code, under which "The owner is entitled, within the limits of the law, to hold, use, enjoy and dispose of the property."
75. The essential property of the property right is, as stated above, the limitation of the exercise of the property right within the limits of the law. The constitutional rule defining the content of the property right does not specify the content of the property right itself, but provides it with a reference to Section 123 of the Civil Code and, in conjunction with it, the specific content of the property right can be obtained as a category protected by constitutional order. Part of the legal content of property rights is, in general, that the right of hunting can also be exercised on them under statutory conditions, and that its exercise may be excluded under certain conditions (by declaration of land for non-profit).
76. In the light of the arguments set out above, the provisions of Article 11 (4) of the Charter, which does not imply any inadmissibility of any restriction on the right of ownership or, where appropriate, without compensation, should also be examined. Expropriation or restriction of property rights must only be understood as a restriction which excludes the exercise of property rights either in whole or in so far as it significantly prevents the exercise of ownership rights in one of its constituents.
77. This approach also confirms the extent of the guarantees enshrined in Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention '):
"Any natural or legal person shall have the right to use his property peacefully. No one may be deprived of his property except in the public interest and under the conditions laid down by the law and general principles of international law.
The previous provision shall not prevent States from adopting laws which they deem necessary to regulate the use of property in accordance with the general interest and to ensure the payment of taxes and other charges or fines'. The second sentence of the first paragraph of the provision cited refers to the waiver of property rights (No one shall be deprived..., Niemandem darf... entzogen werden..., Nul ne peut être privè...), which proves that the restriction of property rights must be essential, i.e. "waiving ownership" in order to create a contradiction with the guarantees provided by the Additional Protocol to the Convention.
78. Other provisions are relevant in the context of the case under consideration, on the one hand, the provision referred to in the second paragraph of Article 1 (1) of the Additional Protocol to the Convention and also Article 11 (3) of the Charter:
"Owners commit. They must not be misused to harm the rights of others or in violation of legally protected general interests. Its performance must not damage human health, nature and the environment beyond the standards laid down by law. '
79. However, the aforementioned constitutional limits on the exercise of property rights were not dealt with in any significant way by the appellants. That provision of the Charter is untypical of the fact that it does not provide subjective constitutional rights but obligations. First of all, it expresses the principle that ownership is committed. This principle expresses the fact that - although the right of ownership must be regarded as an absolute right which allows the protection of the owner against all - the right of the owner has limits which may conflict with the legitimate interests of others and society as a whole. Thus, the absolute ownership as a legal relationship is not entirely unlimited and is not "absolute" in consequence. In the spirit of legal-political maxima, "individual law ends where the rights of others begin ', the question of the exercise of property rights must therefore also be interpreted. This principle is then extended by Article 11 (3) of the Charter by two additional sentences.
80. While respecting the particular importance of the protection of property rights, it is also necessary to emphasise the prohibition of the abuse of property rights against the rights of others or contrary to legally protected general interests. These are two prohibitions, one of which is an expression of the general principle of the prohibition of abuse of law and the other measures the exercise of property rights by the interests protected by law.
81. The Constitutional Court has already expressed a positive opinion in the past on the general possibility of the legislature to restrict the right by law to the implementation of Article 11 (3) of the Charter [so that the finding of the Constitutional Court of 16 February 1995 in the case of sp. zn. III. A similar conclusion was reached by the Constitutional Court, for example, in the earlier finding of 23 June 1994 in Case I-ÚS 35 / 94 (Collection of finds and orders of the Constitutional Court, Volume 1, Found No 36, p. 259 et seq.), in which it addressed, inter alia, the issue of the restriction of property law as a result of the protection of cultural values.
82. In assessing the substance of the hunting legislation, as is apparent from the above, the Constitutional Court concluded that it was an activity to carry out a constitutional task of the State (Article 7 of the Constitution of the Czech Republic). Therefore, the fulfilment of a constitutional obligation cannot be regarded as being of general or even public interest.
83. The set of previously stated premises allows the Constitutional Court to express the fundamental principle applicable to the assessment of the present case, namely that the realisation of hunting and hunting rights is, in general, a legitimate restriction of property rights. Should ownership be exercised in such a way as to eliminate hunting and the exercise of hunting rights, the exercise of ownership rights would be contrary to Article 11 (3) of the Charter. The legal regulation of hunting is based on positive historical traditions in our countries. However, the Constitutional Court is aware that, in particular, because of the negative phenomena in the exercise of hunting that are linked to the communist regime, the company has taken place in the previous period and so far there have been shifts in the perception of hunting. In order to achieve the socially desirable purpose pursued by the law, systematic educational activities and consistent fulfilment of the principles of hunting in practical life are needed. In individual cases, the exercise of hunting rights can and can still only slide to the level of entertainment, which gives the impression of activity for the chosen, or the exercise of hunting activity, which affects the status of owners of hunting grounds illegally. However, this fact - abuse of law or the existence of illegal activities - cannot become a justification for understanding the current legal regulation of hunting as unconstitutional; individual offences against hunting and abuse of rights arising from its regulation must be rigorously punished individually, thereby contributing to changing negative views of hunting as an abstract category. The law also provides the owners of hunting grounds with a number of general instruments to protect against excesses by persons who exercise the right of hunting on their land.
84. In particular, in the view of the Constitutional Court, it is necessary to examine in detail whether the restrictions to which the legislature has acceded in a particular case are proportional, in accordance with other constitutional guarantees and whether they are conserving their substance and meaning within the meaning of Article 4 (4) of the Charter (see also the Constitutional Court's finding in the case sp. zn. III. ÚS 114 / 94).
Impact of the exercise of hunting rights on the exercise of the property rights of owners of hunting grounds
85. From the point of view of assessing any conflict with constitutional guarantees under Article 11 (1) and (4) of the Charter, the right of hunting may be characterised by [§ 2 (h) of the Hunting Act] as:
1. activities which lead to the realisation of the rights and obligations of the game to protect, to deliberately breed, to hunt, to claim the hunted or found dead game, to its development stages and antlers,
2. use of hunting land to the extent necessary to carry out the activities referred to in point 1.
86. The activities of sub 1 are primarily a definition of the content of the hunting rights and therefore, in their proper exercise in the light of the conclusions reached above, they cannot in themselves constitute a restriction on the ownership of the owner of the hunting grounds.
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Regulation Information
| Citation | The Constitutional Court found no 49 / 2007 Coll., on the application for annulment of certain provisions of Act No. 449 / 2001 Coll., on hunting, as amended by Acts No. 320 / 2002 Coll. and No. 59 / 2003 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.03.2007 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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