The Constitutional Court found no 60 / 2007 Coll.
The Constitutional Court's finding of 13 December 2006 on the application for annulment of Article 21 (2) of Act No. 449 / 2001 Coll., on hunting
Valid
The Constitutional Tribunal found
Text versions:
28.03.2007
60
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 13 December 2006, as amended by the corrigendum of 14 March 2007 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Pavel Holländer, Ivan Janů, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Dobrný and Michaela Židlická, on the proposal of the District Court of Břeclav to abolish Article 21 (2) of Law No. 449 / 2001 Coll., on hunting,
as follows:
Motion denied.
Reasons
By application of 9 December 2004, registered at the Constitutional Court on 16 December 2004, the District Court of Břeclav, pursuant to Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), proposed the annulment of Article 21 (2) of the Law No 449 / 2001 Coll., on hunting, in the context of the pending proceedings on the application for annulment of the decisions of the Committee of the Economic Communities (hereinafter referred to as "the Law on the Constitutional Court '), which were brought before that court under Article 9 C 931 / 2004. The appellant points to Article 22 (8) of the Hunting Act, according to which if a member of the association considers the decision of the general meeting to be illegal or contrary to the statutes, he may, within 15 days of the date on which he became aware of the decision, but not later than 3 months after the general meeting, request that the court annul the decision of the general meeting, otherwise his right shall cease. The contested provision of Paragraph 21 (2) of the Hunting Act allows decisions on the use of social hunting, including the conclusion, amendment or termination of a contract of hire, that is to say, decisions entrusted to the General Meeting under Paragraph 21 (1) (c) of the Hunting Act, to be transferred to the Committee of Hunters by decision of the General Meeting. Therefore, if the general meeting decides how to use the hunt, a member of the company may request the annulment of the decision. However, if the General Assembly has jurisdiction over the Committee of the Economic Community, there is no legal possibility to seek annulment and the decision of the Committee of the Economic Community. The appellant therefore considers that the majority of the general meeting, which decides to delegate its powers to the Committee, may thus deny its members the opportunity to challenge the Committee's decision. In his view, the delegation of powers is expressly provided for by law and is neither illegal nor contrary to the statutes in itself. For the reasons set out above, it considers that the legislature has failed to allow a member of the society to challenge both the court and the decision of the committee of interest is in breach of the right of any member of the society to transfer certain decisions belonging to the general assembly of the community to the committee of interest. It considers the contested provision to be contradictory to Articles 10 (2) and 36 (1) of the Charter of Fundamental Rights and Freedoms (" the Charter') and proposes its repeal.
The Constitutional Court, in accordance with Section 69 of the Law on the Constitutional Court, sent a motion to open proceedings to the parties - the Chamber of Deputies and the Senate of the Parliament of the Czech Republic and requested the opinion of the Ministry of Agriculture.
In the Chamber of Deputies' observations, the contents of the proposal for the annulment of the contested legal provision and, consequently, the legislative process leading to the adoption of that provision are initially recap. The amendments adopted did not affect the contested provision. According to the legislature, the hunting law was passed after a properly implemented normative process, while the Chamber of Deputies acted in the belief that the law was in line with the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and the Charter.
According to the Chamber of Deputies, the interpretation of the appellants as regards the right to protection against unauthorised interference in private and family life (Article 10 (2) of the Charter) can be considered to be very restrictive and particularly advantageous only for individuals. The community is a civil society that exists under the relevant regulations and is based on democratic principles enabling its members to exercise their rights under the law on the association of citizens and the statutes of the association. The delegation of powers of the General Assembly to the Committee on Budgets does not consider the Chamber of Deputies to be illegal or contrary to the statutes; is only the second option given to the choice of the host community to make its activity effective when deciding how to use a social chase, including the conclusion, modification or termination of a hunting contract. However, a member of the company may discuss the decision of the committee at the general meeting of the association. In accordance with Article 22 (8) of the Hunting Act, if it considers its decision to be illegal or contrary to the Statutes, it may, in accordance with Article 22 (8) of the Hunting Act, seek annulment of the decisions of the General Assembly established by procedure before an independent and impartial court under Article 36 of the Charter. For the sake of completeness, the Chamber of Deputies stated that the same principle had already been applied in Act No. 225 / 1947 Coll., on hunting, in § 10 (3).
In his observations, the Senate of Parliament of the Czech Republic also recited the course of the legislative process before the second Chamber of Parliament. He stated that the issue of the judicial review of decisions taken within the framework of the company was discussed in the Senate bodies in particular in the Committee on Territorial Development, Public Administration and the Environment. As a result of the discussion, the amendment of the Committee recommending to the Senate plenary was to supplement the provisions of Section 22 (8) of the Hunting Act on the authorisation of members of the Economic Community to seek judicial review of decisions taken by members of the Economic Community outside the General Meeting (Section 22 (7) of the Hunting Act), which the Senate approved. Paragraph 21 (2) of the contested provision in the context of Paragraph 22 (8) of the Hunting Act did not raise constitutional objections and therefore the Senate did not approve any amendments in this respect.
According to the Senate, it is certainly true that, if the Hunting Act explicitly provided for the right of members of the community to seek the annulment of a decision of the Committee on Social Hunting, there would be no doubt as to the limitation of the rights of those persons, including the question of the constitutionality of the contested provision. However, even in the absence of such an adjustment, the appellant's view cannot be accepted. In the opinion of the Senate, decisions made by the Committee on Social Hunting under Paragraph 21 (1) (c) of the Hunting Act can be considered as decisions carried out by the Committee on Hunting not within its own competence but within the scope of the General Meeting which temporarily transferred that competence to it. The Hunting Act of the General Assembly shall in no way prevent its decision to delegate jurisdiction from being revoked and to exercise that competence again in the context of its own decisions. If, by interpretation, it can be concluded that decision-making of the Committee of Excellence within its scope is actually a temporary exercise of the competence of the General Meeting, there is no reason why, at the same time, it is not analogous to deducting that the decisions of the Committee of Excellence issued under that scope are also subject to the provisions of Section 22 (8) of the Hunting Act. If the right to interpret a proposal by constitutionally conformal interpretation for the benefit of the members of the society, the Senate does not appear justified.
Furthermore, the Senate recalled that the appellant, in connection with the proposal to abolish Paragraph 21 (2) of the Hunting Act, failed to propose, for annulment, also a reference to that provision contained in Section 22 (5) of the Hunting Act.
By letter dated 2 June 2005, the Minister for Agriculture opted for the application for annulment of the contested provision and agreed with the appellant's arguments.
The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, dealt with the question of whether a law with which the unconstitutional nature of the contested provision is objected was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
It is the Act No. 449 / 2001 Coll., on hunting, as amended (Act No. 320 / 2002 Coll., Act No. 59 / 2003 Coll. and Act No. 444 / 2005 Coll.). In this respect, the Constitutional Court found that the Chamber of Deputies approved the bill at its proper meeting on 21 September 2001, the Senate discussed the proposal at its meeting on 26 October 2001 and returned it to the Chamber of Deputies on 30 October 2001. The bill approved by the Senate was adopted by the Chamber of Deputies at its meeting on 27 November 2001. After the signing of the President of the Republic and the Prime Minister, the Act was published in the Collection of Laws in 168 under the number 449 / 2001 Coll. Thus, the law in question was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. The amendments to the law adopted did not affect the contested provision, so the Constitutional Court did not deal with them.
Following this finding, the Constitutional Court took the view that the content of the contested provision of the law was consistent with the constitutional order of the Czech Republic [Article 87 (1) (a) of the Constitution].
The whole provision, part of which is contested by the appellant, reads as follows:
General meeting of the society
(1) The General Assembly is responsible for:
(a) the choice and withdrawal of the Mayor, who is also chairman of the Committee, the Deputy Mayor and other members of the Committee;
(b) approve proposals by the host mayor or committee on financial management and the use of net revenue;
(c) to decide on how to use a social chase, including the conclusion, modification or termination of a contract for the hire of a chase;
(d) the Decision amending the Statutes;
(e) the decision to accept the owner of the hunting grounds attached to the chase as a member of the hunting community;
(f) decisions on other matters, if provided for by this law or by the General Meeting.
(2) The General Meeting may delegate the powers referred to in paragraph 1 (c) to the Committee on Budgets. "
In so doing, the appellant requests the repeal of paragraph 2 of the provision cited above: "The general meeting may delegate the powers referred to in paragraph 1 (c) to the Committee on Budgets. '
The application for annulment of the contested provision is justified only by one objection: the delegation of the competence of the general assembly of the affiliation community, against which a member of the association may object in court, to a committee whose decision is not countervailable in a court of law, may, by a majority, deny a member the right to challenge the decision of the general assembly concerning the method of use of the chase, or to make a disposition with it. In this procedure, the appellant sees an infringement of Articles 10 (2) and 36 (1) of the Charter.
The Constitutional Court does not agree with this view.
The Constitutional Court recalls that Article 10 of the Charter is protected by the right to the protection of private and family life, which in particular means the privacy of a person who cannot be interfered with without the consent of the person concerned or without the express provision of the law. Such privacy shall mean, in particular, the integrity of the family and family cohabitation, the integrity of the dwelling, the protection of letters or professional secrecy. According to paragraph 2 of this Article, everyone has the right not to interfere with his or her private and family life, namely that the State grants guarantees to the person for the protection of his or her rights.
The Constitutional Court has already dealt with the nature of the right of hunting and its legal regulation, namely the finding of full court of the Constitutional Court, sp. v. Pl. ÚS 34 / 03 (ref.: declared under No 49 / 2007 Coll.), when it stated that its substance was the protection of animals as well as the protection of hunting as a national cultural heritage. Thus, hunting is legally defined as a relationship with wild game forming part of the ecosystem and its performance is linked to the approved hunting territory.
However, the exercise of the right of hunting, or participation in an association which aims to exercise the rights and obligations associated with hunting, goes far beyond what can be collectively described as privacy from a constitutional legal point of view. Although legal regulation does not constitute a regulation of hunting activity, but as a deliberate and regulated activity for the protection and development of nature, there is a clear aspect of interest in the construction of the regulation of the society, its membership base is built on a voluntary basis with the possibility of any termination of membership, so it can be seen as an individual's interest activity - it is a social activity that is designed by the state to protect and develop one of the elements of the environment - the game.
In the case at hand, the appellant appears to consider that the interference with the right to privacy is precisely the lack of protection for the interests of the individual within the association (association) of which he is a member. If this is the case, then the appellant's view in this regard may be considered above all acceptable narrowing and giving priority to the absolute protection of individual interests over the interests of the association itself. The fact that a person voluntarily applies his or her interest within an association of persons of the same, specific interest, which is the exercise of the right of hunting and the associated obligation to protect animals, by entering such an association or community alone, does not indicate that he or she will be promoted by the community as a whole on behalf of his or her members. Even if the collective is organised in such a way that the will of the majority, or even the qualified majority of its members, decides on its matters, the principle of association is precisely the possibility of promoting the interests of individuals together as a whole. If this whole has at least the basic internal mechanisms corresponding to democratic principles, which are, in fact, based on the principle of decision-making according to the will of the majority, it is not possible to speak of a breach of the right to privacy at a general level. By contrast, putting the individual's interest in absolute preference over the democratically expressed interest of the majority in this whole would be contrary to the principle on which the right of assembly is based. Moreover, the right of hunting cannot be regarded as a personality right of an individual, it is a right designed and regulated by public law for the protection of a certain part of the environment which is not dependent on the personality or activity of a particular person. Therefore, the Constitutional Court considers that the contested provision does not conflict with Article 10 (2) of the Charter.
As regards the alleged infringement of Article 36 (1) of the Charter, it should first be noted that the affiliation society is not subject to an interest association established under a special law, namely the Law on hunting and regulated by the Act, namely the regulation of the General Act on pooling (Act No 83 / 1990 Coll., on pooling of citizens, as amended), it is still primarily the expression of the constitutionally guaranteed right of everyone to be associated freely in associations, societies and other associations within the meaning of Article 20 (1) of the Charter, if these companies, associations or associations are based on democratic principles. One of the fundamental principles on which any association is based is the principle of self-administration of such an association, that is to say the principle that the association has the right to organise its own decisions and events within the association arbitrarily, which is generally partly regulated by law for reasons of public interest within the meaning of Article 20 (3) Documents where deemed necessary by the State for reasons laid down by the Charter (State security, protection of public security and public order, prevention of criminal offences or protection of the rights and freedoms of others).
The company is also such an interest association sui generis, established under a special law for the effective exercise of the right of hunting, which is protected by this law. This is also the case with the basic legal principles on which it is based, including the right to regulate its internal affairs, while respecting the legal framework separately, without the State's independence. This freedom, while regulation, is reflected in the obligation of the host community to establish and approve the statutes of the community which are submitted for its registration and to establish the minimum mandatory content of these statutes. Although the law lays down the basic framework of the internal organisation of the company and defines the necessary powers of its institutions, it still leaves in the statutes the detailed organisation of the community in the framework arrangements laid down by law.
The affectionate community is a legal entity established under the Hunting Act, which can only be a member of which only the owners or co-owners of continuous hunting land, the area of which totals the area required by the Law for the creation of a social hunting activity [set of continuous hunting grounds of one or more owners, as defined in the decision of the State hunting authority in which the hunting activity law can be implemented under that Act - § 2 (i) of the Hunting Act], and which ensures the exercise of the right of hunting, hunting, or renting of a hunting activity under that law [§ 19 (1) (a) and (b) of the Law on hunting, while the law defines the law itself as a summary of the hunting grounds [§ 2 (i) of hunting and the obligation to protect animals]. Under Section 21 of the Hunting Act, the basic decision-making body is the general meeting of the Hunting Society, which is to decide on the organisational issues of the Society, as well as the exercise of the very right of hunting and the conditions under which it is carried out. However, the general meeting does not appear on behalf of the community on the outside, and in the current regulation of the law it is an authority which does not meet at regular or short intervals (pursuant to § 22 (1) of the Hunting Act, the general meeting of the host mayor usually calls once a year), but only as required. The precondition for its assembly is a legal mechanism, which foresees not only that the members of the community will learn about the general meeting in advance, but also that it can be called up (Section 22 (1) of the Hunting Act) and that they will have a sufficient 15-day period to prepare for the general meeting programme, which is notified to the members in the specified manner (see Section 22 (1) and (2) of the Hunting Act). Although the law allows the general meeting to decide the matter per roll (Section 22 (7) of the Hunting Act), without being physically convened, this process also requires a certain time reserve and preparation. There is also another body in all the homely communities, which is the homely mayor. Pursuant to Article 23 (1) and (4), it shall represent the foreign society as well as shall procure all matters relating to the community, unless they are reserved for the general meeting; it is obliged to follow the instructions of the general meeting if they comply with the laws and regulations.
The Constitutional Court has no doubt that, here, as is the case with other legal persons, regardless of the legislation under which they are established (the law on the association of citizens, the Civil Code, the Commercial Code or any other provision), for the internal administration of each legal person whose primary body is not flexible enough to decide, there is also a need for a host community with a greater number of members, the existence of another body whose decision would be more flexible, and yet it is consistent with the majority opinion of the members of the community, while this requirement is not met by the mayor as a single body. Therefore, the Act creates an obligation for companies with more than 10 members to create a so-called "hunting committee '(Section 24 of the Hunting Act). It is clear from the provisions of Section 24 of the Hunting Act that, to a certain extent, the decision-making of the General Assembly on the matters of the Society (the provision on the convening of the General Assembly applies mutatis mutandis), despite the fact that the Committee exercises the so-called residual power in the matters of the Society, which otherwise belongs to the Mayor who presiding over the Committee, except for the sole one - representing the Economic Community on the outside. The Committee is thus an executive body of communities that have a larger membership base, and where one representative - the mayor of the country - is not enough to manage them internally, and the decision-making of the general meeting would be inflexible and insufficient for the administration of the community. The Committee of Honeys is elected from among the members of the collective at the general meeting of the collective, with the approval of three-quarters of the members present in the collective to be elected (in agreement with the election of the host mayor). A three-quarter quorum is also necessary for the decision to delegate the powers of the general meeting under the contested paragraph 2 of Section 21 of the Hunting Act. In both cases, that is to say, both for the election of the Committee on Budgets and for the delegation of powers referred to in paragraph 2, the statutes may determine the higher number of votes to be cast.
Further details are not provided by the law, leaving it up to the host community to set up additional control mechanisms within its internal organisation, such as in the form of a higher quorum for the decision of the General Assembly on the delegation of its powers, the conditions under which such a decision may take place, or the conditions under which the Committee may exercise delegated powers, including, where appropriate, the possibility of challenging its decision before the general meeting. In this respect, the will of the company is autonomous, only subordinate to the framework arrangement under the Hunting Act, which cannot be deviated from, but which does not mean that, within the framework of the statutes, such arrangement cannot be completed according to the needs and size of a particular community.
The transfer of competence of the General Assembly itself to the Committee on Budgets under the contested provision is of purely practical importance, as stated above. Therefore, this does not mean that the majority will of the general meeting would result in the termination of a legally designed remedy against its decision, including a decision under Paragraph 21 (1) (c) of the Hunting Act, namely a decision on how to use a social chase, including the conclusion, amendment or termination of a contract of hire. This decision can continue to be considered as a decision within the competence of the supreme body of the company, the general meeting, although it is from the decision of that body that another body of the company of the company exercises it in a particular case. If, by decision of the General Assembly of the Economic Community, it has been transferred to another body of the Community - the Committee of the Communities - that the power of decision is transferred, as well, since legal protection in the form of an appeal to the Court is established against decisions of the General Assembly, corresponding not only to the nature of the decision-making body, but also to the gravity of its decision-making for the company as a whole. This legal protection does not disappear by temporarily delegating jurisdiction to another internal body of the community, without the nature of the decision being devoid of its gravity for the community.
Although the Law on hunting does not explicitly provide for an appeal against a decision of the Committee on Budgets, it is precisely in view of the nature of the decision under paragraph 1 (a). (c) Paragraph 21 of the Hunting Act, its gravity and the nature of the transfer of competence of the General Assembly to the Committee of Honors in this decision gives the possibility of a constitutional interpretation in conformity with the provisions of paragraph 1. (c) Paragraph 21 of the Law on Hunting is designed against such a decision by a law of appeal to the court, whether or not that decision was made by a general meeting of the hunting community or whether or not it has jurisdiction to make such a decision (the use of a social chase, including the conclusion, amendment or termination of a contract of hire), the general meeting has transferred to the Committee of Hunters and this decision has been made by the Committee of Hunters. However, the reason for the annulment of the court remains only the illegality of the decision or its contradiction with the statutes, for other reasons the annulment does not allow the law.
It is precisely the subject matter of the power which can be delegated to the Committee in accordance with point (c) of Article 21 (1) of the Hunting Act that is decisive for that conclusion. Deciding how to use the chase is, if we take decisions on the internal affairs of the community (i.e. the adoption of statutes and the choice of members of the committee and the choice of the mayor), an essential feature of the life of the society. According to the Hunting Act, the membership base is composed only of owners or co-owners of hunting grounds, the area of which allows the creation of a social chase (§ 19 (1) of the Hunting Act) and the hunting society is created for the purpose of recognising hunting, subsequently exercising the right of hunting in it or renting a social chase. If the hunting community manages to chase itself, it is required to take all measures imposed on it by the hunting law to preserve the type of animal (§ 4 of the hunting law), to protect hunting (§ 8 of the hunting law), and to respect the obligations of the hunting user (§ 11 of the hunting law). Such an activity also corresponds to the term used in Paragraph 21 (1) (c) of the Hunting Act, which is a method of using a chase, but contains a whole range of factual actions aimed at fulfilling legal obligations, often having the form of immediate or rapid intervention (care of wounded animals, rescue, measures to save animals, feeding animals, etc.). Although both the hunting community and its committee are bound, not by emergency measures, by a hunting plan, this plan only binds it in a framework way, and in others, the use of hunting and decision-making of its use must be flexible and adaptable to circumstances, which is not always imaginable when deciding the general meeting of the hunting community. However, the Constitutional Court does not consider it serious enough that only the general meeting of the community could decide on it without further action, but also when negotiating the form of a contract, its amendments, or the conditions for its termination or termination, there must be some flexibility and adaptability to the situation given to the Committee as a smaller group of persons (according to the hunting law, there is a maximum of six members). The conclusion and termination of the contract are then regulated by the Act by certain conditions (Sections 32 and 33 of the Hunting Act), allowing the General Assembly to impose conditions on others when deciding on the delegation of its powers in this respect, which may result in the withdrawal of powers.
Thus, a member of the company continues to have sufficient opportunities, while preserving all democratic principles, to protect its interests and its rights. However, it is also clear from this, among other things, that not every decision taken by the internal bodies of a legal person, whether it be an association or any other form of association, the object of which is the transfer of competence to another of the authorities of that person, automatically means the transmission of an appeal against that body's decision, if it is legally designed. Such an interpretation is possible precisely and only where, in terms of the nature of the delegated competence, it can be established that it is a transfer from the top authority of that person to that body functionally subordinate (by choice, establishment or appointment), while at the same time it is a transfer of decision-making competence to the top authority of the latter, which is legally recognised and so important that such a decision has a fundamental and undeniable effect on the organisation, essential object of the management and functioning of the legal entity as a whole or all its members for a long time in the future, analogically as is the case for decisions on the use of the chase, i.e. the sole object of the functioning of the company.
The Constitutional Court therefore considers that the contested provision does not contradict Article 36 (1) of the Charter.
On the basis of these considerations, the Constitutional Court concluded that there was no reason to comply with the application for annulment of Paragraph 21 (2) of Act No. 449 / 2001 Coll., on hunting and therefore rejected it.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 60 / 2007 Coll., on the application for annulment § 21 paragraph 2 of Act No. 449 / 2001 Coll., on hunting |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.03.2007 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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