3/1997.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided on 5 July 2004. November 1996 in plenary in
the Senate draft 6 of the High Court in Prague to repeal § 90 para. 1
the first sentence in the words "§ 5 para. 6 "the Czech National Council Act No.
114/1992 Coll., on nature and landscape protection,
as follows:
The provisions of § 90 para. 1 the first sentence in the words "§ 5 para. 6 "law
The Czech National Council No. 114/1992 Coll., on nature and landscape protection, in
as amended, is repealed on the date of publication of the finding in the collection
laws.
Justification
Senate 6 and the High Court in Prague (hereinafter referred to as the "High Court") in the proceeding
in accordance with part five of the head first and the second code of civil procedure (hereinafter referred to as
"o. s. l.") on the action against the decision of the administrative authority [letter
The Ministry of environment of the Czech Republic (hereinafter referred to as
"The Ministry") of 26 March 2004. October 1994 no. PPE/4616/94] came to the
the conclusion that the provisions of § 90 para. 1 the first sentence in the words "§ 5 para. 6 "
Act No. 114/1992 Coll., which should be used in solving the case, it is in the
contrary to the constitutional order of the Czech Republic, in particular with the provisions of
article. 2 (2). 3 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), which
provides that State power is used for all citizens and can be exercised only in the
cases, within the limits and in the manner provided for by law and with the provisions of article 8(1).
2 (2). 2 of the Charter of fundamental rights and freedoms ("the Charter"), which
It has the same content. In support of its conclusion, the Supreme Court stated that the
the impugned legislation excluding the administrative procedure from the application to the
the issue of permits for the import and export of endangered plants and animals
protected under international conventions to which the Czech Republic is bound (§
5 (3). 6 of Act No. 114/1992 Coll.), created a situation in which the administrative
the authority [in the case the Ministry, see § 79 para. 3 (b)) of the law No.
114/1992.] can completely arbitrarily deny the permit issue, even
I refuse to choose at all, without the applicant should thank the United edit
administrative justice--the fair opportunity to obtain judicial protection.
The absence of other statutory procedural adjustments which could fell, has
According to the High Court, next to the already mentioned the arbitrariness, another major
consequences, and specifically, that the administrative authority is not bound by law to protect the
the rights and interests of citizens; nor is it obliged to work conscientiously and
responsibly, is not obliged to deal with the matter in a timely manner and without undue delay, it is not
also to take care to ensure that the decision was based on the reliably
the observed State of affairs, and on the contrary, the person whose rights in the management of it, does not have the
the possibility that such rights or to defend itself to the substrate
decision. Likewise, neither many other obligations and rules
the High Court observes, for example, in this process, nor is any
a party to proceedings, a case can decide such a worker of the administrative
the body which is the outcome of personal or material interest,
You may not be allowed access to the file, it may not be the decision of the
notified and the less served, indeed, may not even be drawn up in writing,
There is no requirement for the decision of the necessary documents, is not
There were prejudicielní the question of linking of the time limits for the issuance of
the decision do not exist, it is also against the decision cannot be appealed,
illegal decision cannot be cancelled or renewal of management according to §
65 administrative procedure and decisions shall not acquire or formal legal power. Further
The High Court concludes that in a situation where the administrative authority has no control
no legal obligation, does not violate the law or logically, by any
the decision issued, either indifference or an explicit denial at all things
to deal with. The one whose rights it cannot in this case contact
or the Administrative Court, because it meets the basic requirement of the proceedings, namely the
illegal decision as an act of power, which is the higher way
without prejudice to the position of the person to exercise their rights to such a need.
Furthermore, the High Court in its proposal again notes that the total exclusion of
Code of administrative procedure of deciding on the rights and responsibilities of citizens in
a situation where there is no applicable treatment, you would governing body
He was obliged to respect, is in conflict with the constitutional order, namely with
article. 2 (2). 3 of the Constitution and corresponding provisions of article 8(1). 2 (2). 2
Of the Charter, in which it is adjusted the constitutional obligation of the administrative authority
proceed lawfully. If there's such a constitutional obligation and
at the same time the substantive use of the Act excludes prescription this procedure
governing, is such a lockout by the High Court in conflict with
The Charter and the Constitution. In other parts of its application to the High Court
recapping the contents of your file SP. zn. 6 and 1/95, in which the plaintiff w.
H. seeks the annulment of an administrative Act-Ministry-letter of 26 March 2004.
October 1994 no. PPE/4616/94, which the defendant--Ministry-
said that the export and import of animals and plants, especially of protected
The Convention on international trade in endangered species of wild
animals and plants and by law No. 114/1992 Coll., is generally prohibited, and
that is allowed outside of the administrative procedure, there is no legal claim to it and, therefore,
It is also not obliged to issue a "negative opinion". The applicant then argues that the
The Ministry requires, first, that the conditions which go beyond the
cited by the Convention, and further concludes that the letter of 26 March 2004. October 1994 no.
PPE/4616/94 is naříkatelným decision before the Administrative Court, although
does not have a normal form, primarily because it is an individual administrative
by the Act. Next, the applicant concludes that the issue of the permit is not a matter
free reflections and that after that the conditions should be issued.
Ministry as a defendant, it continues in the High Court, in its observations
in particular, that the plaintiff was the letter
rejected, and on the contrary, stated that the letter contained only the expression of opinion,
that if the plaintiff proves facts specified in an earlier
merge, the permission is granted with the understanding that the other side is not
on the issue of the permit a legal claim. The High Court then stated that the animal
raised by the applicant is in terms of Civil Affairs, and therefore
the subject of proprietary rights. The owner of the thing within the meaning of article 3(1). 11 of the Charter
may dispose of the thing (ius disponendi) and is subject to a restriction, the
the Foundation lies in paragraph 3 of that article of the Charter. This limitation, however,
must be made only by law. One of these restrictions is, as stated in
The High Court, the need to obtain official authorization to export or import
According to § 5 para. 6 of Act No. 114/1992 Coll., which falls within the competence of
the respondent Ministry [§ 79 para. 3 (b) to) Act No. 114/1992
Coll.], but in the form of consent. From this fact, the superior court
dovolovací concludes that the Act cannot add any Ministry
terms and conditions. As well, adds to the High Court, the owner of the thing
a business, i.e. realize their other basic rights according to art. 26 of the Charter.
The High Court further held that, on the issue of the permit is legally entitled,
but the things are missing prerequisite management, namely the decision of the
administrative authority, within the meaning of § 244 paragraph. 3. with the row when the contents of the file
It follows that the Department clearly decided yet and the request for the issue of permits
case. Because the United States does not know the law or action Institute
against the Administration for inaction, or institute proceedings for the imposition of
the obligation of the administrative authority to issue a decision or an action for a declaration of
administrative authority illegally denying decide it according to the High Court of
the case of the denial of administrative jurisdiction, which may remedy the de lege lata
The Constitutional Court said that public authority intervention into the basic
human rights and, in future, such action is disabled.
The Chamber of deputies of the Parliament of the United Kingdom in its letter of 16 December 2004.
September 1996, signed by its Chairman ing. Milos Zeman expressed
so that it referred to the explanatory memorandum to the draft law No. 114/1992
Coll., where in the general part States that the law is embodied in General
protection of all species of wild fauna and flora, that their
use of or interference against them must be based on legal rights and that
the law also regulates the obligation of the proof of origin of specially protected
plant and animal species. In a special section to section 90 States that
This provision precludes the legislation of administrative procedure for certain types of
decisions under this Act and that are excluded from the administrative procedure
activities that have the character of the business, notification, registration,
planning or are an expression of State sovereignty (the approval of export,
and imports of certain specially protected parts of nature). To your own
design of the High Court the Chamber of deputies of the Czech Parliament
It stated that the interpretation of the High Court is based on the General editing of administrative
only one management by law, administrative regulations, but that the complexity and
the diversity of the public administration also requires the existence of specific arrangements. Therefore,
also in the legislation of administrative law are contained questions
procedural nature which govern how often other than administrative
of procedure. Specifically, in the case of section 90 of the Act No. 114/1992 Coll. then infers
Although it provides that does not flow under the provisions of the administrative code, which
at the same time, however, does not mean that such a procedure was not an administrative procedure.
While the fact that the cited law provides special procedural
the rules, means that it must be based on the General principles of the administrative
the proceedings, which further implies that the law provides that the administrative authority
allows import and export of endangered plants and animals, provides at the same time
the duty to decide in a particular case. Does not flow if the competent
administrative body in this manner, it is not a lack of legal
editing but about misconduct in the activities of this body. In conclusion, it is stated that
It is up to the Constitutional Court, in the context of the examination of the proposal to assess the
the constitutionality of the contested act and issued the appropriate decision.
From těsnopisecké news on 31. a meeting of the Czech National Council of 18. --
February 21, 1992, shows that Act No. 114/1992 Coll. was on 19. February
1992 received the necessary majority, the votes of the members, three members of the 105
they were against and four abstentions (article 102 et seq.
Constitutional Act No. 143/1968 Coll., on the Czechoslovak Federation). Referred to
the law was signed by the respective constitutional officials, and declared in the amount
28 laws, sent out by 25 June. March 10, 1992. For discussion and adoption
the Act was based on the Government's proposal-House print 497 and common
reports of committees-House print to it, 579. It can therefore be assumed that the law
was adopted and issued within the limits of the Constitution laid down the competence and constitutionally
in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll., on the constitutional
of the Court).
Whereas it is for the still ongoing proceedings under part five
the first and second head of the row before the ordinary court, and possibly even
the following proceedings before the Constitutional Court in accordance with § 2 et seq. Law No.
182/1993 not only to resolve the question of whether the letter of the Ministry of 26 March.
October 1994 no. PPE/4616/94 is a decision reviewable in proceedings
as part of the fifth, first and second head of the row, but also by decision
According to § 5 para. 6 of Act No. 114/1992 Coll., on which it is or is not
entitled, the Constitutional Court has restricted its examination only to that portion of the design that
ústavností deals with section 90 para. 1 the first sentence in the words "§ 5 para. 6 "
Act No. 114/1992 Coll., which provides that the General rules on administrative
the proceedings do not apply to proceedings under section 5 (3). 6, § 6, § 11 (1) 3, §
17, 18, 24, 27, 38, 40, § 46 para. 2, § 52, 53 and 69 of this law. In §
5 (3). 6 of Act No. 114/1992 Coll., States that export and import
endangered plant and animal species protected under international conventions,
which the Czech Republic is bound by the nature protection authority permits.
According to § 79 paragraph 2. 3 (b). k) Act No. 114/1992 Coll. is that authority,
By the Ministry. The Constitutional Court in assessing the constitutionality of the contested
the provisions of § 90 para. 1 the first sentence in the words "§ 5 para. 6 "the CZECH NATIONAL COUNCIL Act
No. 114/1992 Coll., came out of the article. 2 (2). 3 of the Constitution, which States: "the State
power serves all citizens and can be exercised only in cases and within the limits of
ways provided for by law. " Meet the postulátu referred to in the first
part of the cited provisions of the Constitution sets out the requirement that it had happened
only in the cases, within the limits and the methods which are determined by law. In the request
referred to in the second part is then built not only guarantees against abuse
State power, but also the need for a legal basis for its
implementation, whether in the form of administrative procedure or a separate
norm. Also the article. 2 (2). 2 of the Charter regulates this guarantee as well as the need to
legal provisions for the exercise of State power. Because § 90 para. 1 sentence
the first in the words "§ 5 para. 6 "that excludes the application of the General
regulations on administrative proceedings, the absence of legal bases as the substrate, so
the limits and the methods of application of State power by the Ministry in connection with the
authorisation of exports and imports of endangered plants and animals protected
international conventions, is due to the lack of other legislation
This procedure (cf. section 90 (1) of the first sentence in the words "on the management of
According to ... ") in breach of article. 2 (2). and article 3 of the Constitution. 2 (2). 2 of the Charter.
This exclusion of the application of the General rules of administrative procedure in the
the absence of other established and at the same time conflict with the article. paragraph 36. 1
Of the Charter, which stipulates the right of every person to set out the procedure for redress
their rights.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.