Cancellation Of Part Of The Ust. § 90 Para. 1 The Act. On Nature And Landscape Protection

Original Language Title: Zrušení části ust. § 90 odst. 1 zák. o ochraně přírody a krajiny

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=44722&nr=3~2F1997~20Sb.&ft=txt

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as amended, is repealed on the date of publication of the finding in the collection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.