In The Matter Of The Application For Revocation Of Section 34 Of Act No. 128/2000 Coll., On Municipalities

Original Language Title: ve věci návrhu na zrušení § 34 zákona č. 128/2000 Sb., o obcích

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60136&nr=211~2F2005~20Sb.&ft=txt

211/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 22 November. March 2005 in plenary in the composition of JUDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav

Excellent and JUDr. Elisabeth Wagner in the matter of the proposal of the Group of members

The Chamber of deputies of the Parliament of the Czech Republic to repeal section 34 of the Act

No. 128/2000 Coll., on municipalities (municipal establishment), and to repeal section 4 (4). 2

Act No. 564/1990 Coll., on local charges, as amended

the laws of the



as follows:



I. procedure for the proposal of the Group of members of Parliament

The United States on the repeal of section 4, paragraph 4. 2 Act No. 564/1990 Coll., on

local fees, shall be terminated.



II. the proposal of the Group of members of Parliament of the United

States to abolish section 34 of Act No. 128/2000 Coll., on municipalities (municipal

establishment), is rejected.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 21. August 2002 served a group of MPs

The Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as "the appellant")

the repeal of section 34 of Act No. 128/2000 Coll., on municipalities (municipal establishment), and section

4 (4). 2 Act No. 564/1990 Coll., on local charges, in the then

as amended.



The Rapporteur carried out a contents section 34 of Act No. 128/2000 Coll.

He stated that this provision establishes and defines the enumeration, demonstrativním

What is meant by the term public ground. This legal provision is

new, in previous adaptations of the municipal law, a similar provision was missing.

In section 4, paragraph 4. 2 Act No. 564/1990 Coll., on local charges, was on the day

submission of the proposal defined public space for the purposes of the so-called. Special

the use of public spaces.



The contested provisions conflict with the constitutional order sees the applicant in

their collision with the article. 11 (1) 2 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter"). Both the contested provisions pursuant to the claimant's distinctive

way affect ownership rights guaranteed the Czech Constitutional

policy. The definition of a public ground in the law on municipalities and in the Act

on local fees, your rapporteur considers it too broad, since

He admits that he was declared to be a public space and private

the plot, if it satisfies the conditions laid down by law, and that even without

the consent of the owner of the land. According to the applicant, such

Declaration of private land for public space should the character

protiústavního limitation of ownership rights. The right of ownership is based on

the plaintiff the law which must not be violated in any way. According to the article. 11

paragraph. 4 of the Charter is the expropriation or compulsory restriction of property rights

can be in the public interest, on the basis of the law, and for compensation.

Declaration of the land for public space is not, of course, with no replacement

associated. The appellant referred to the fact that under the law on

local fees the municipality itself for the purposes of charges for the use of public

the area will determine the place having the nature of public spaces, which in

the village shall be subject to the fee for the use of public spaces.



The provisions of § 4 para. 1 Act No. 564/1990 Coll., as amended (Note: at the time of

submission of proposal) provides for a general obligation to pay a fee for the so-called.

specific use of public ground. Designation of places from which the

Special use fee obligation arises, is solely at the village.

Because the owner of the land designated by municipalities as public space is not

from the fee for special use of such land is not liberated,

excluded that the obligation is incurred, and the fee to the owner,

the public space itself uses as provided for the so-called.

Special use. "If the owner is obliged to pay from

their land use fee for the village, which has set itself the

This is a public space, it would be probably a very absurd

situation. "



The provisions of § 34 of Act No. 128/2000 Coll., the applicant shall be deemed for the

unconstitutional because it violates the principle of equality of ownership

rights. According to the Charter has the ownership of the same statutory content and

the protection. Because the municipality may establish for the public space. "other

spaces ", is given by the village of large and disproportionate discretion. In view of the

the fact that a municipality may do so freely, it is possible that similar

the land for the space of one side will be declared, and the other not.

In addition, this may be based on the applicant also infringed the right to entrepreneurship,

Since private land for public spaces were

users are forced to pay a fee, while on other grounds not.



In conclusion, the appellant pointed out that the contested provisions of § 34 of the law on

the municipalities was adopted as a group of the amendment, that is, it was not a

the legislature's intention to cause significant interference with the right of ownership.

Therefore, he proposed to the Constitutional Court finding the contested provisions set aside for

their conflict with the article. 11 of the Charter.



II.



Recap the essential parts of the representation of the parties



The challenge of the Constitutional Court brought an action pursuant to § 69 para. 1 Act No. 182/1993

Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court "), the representation of the Chamber of deputies of the Czech Parliament

the Republic and the Senate of the Parliament of the Czech Republic as parties to the proceedings.



According to the Chamber of deputies of the Parliament of the United Kingdom is

the definition of public ground contained in section 34 of Act No. 128/2000 Coll.

("the law of municipalities") in the previous municipal establishment

Shire. The intention of the legislature in adopting this provision was

delete a space, consisting in the absence of a definition of the term public

open space. This term is used in approximately 138 legal

the regulations occurring, without definition, whether or not in the previous

the municipal establishment [Act No. 367/1990 Coll., on municipalities (municipal establishment)].

The contested edit is by limiting the ownership of the owner of such

space. A special mode of public ground operates in principle against the

third parties to whom for example. stores or prohibits certain conduct, modifies the

payment of local tax from its use, removal of municipal

the waste from these space etc. The law on municipalities was approved by the Chamber

the Chamber of deputies of the Parliament of the Czech Republic on 8 June 1998. in March 2000, and the Senate

The Parliament of the United Kingdom on 12 April. April 2000, he was signed by the competent

constitutional factors and duly promulgated in the collection of laws. Legislature

has adopted this Act in the belief that it is in accordance with the constitutional order

Of the Czech Republic.



From the observations of the Czech Senate shows that, in the course of the

the general debate in the Senate was discussed a number of the provisions of the law on

municipalities, but the plaintiff contested the constitutionality of section 34 has not been

called into question. The draft law on municipalities was approved on 12 April. April 2000

the votes of senators from the present 42 69. Own Act No. 564/1990 Coll., on

local charges, was approved by the Czech National Council in 1990,

Therefore, in the time before the establishment of the Senate of the Parliament of the Czech Republic. To the content

the design of the Senate said that the definitions contained in section 34 of the Act on municipalities

defines the concept of public space for the needs of the exercise of competences,

that are entrusted to the municipalities law. It is, for example, decisions of municipalities in

connection with the labelling of public spaces, the permission to save, on the

the basis of the generally binding decrees the obligation to protect the local

a matter of public policy, to environmental protection and

keeping, as well as permission to impose fines for administrative offences

related with the maintenance of order in public places. The village here

acts not as a legal person in private law, but as a

corporation governed by public law within the meaning of article 87(1). paragraph 101. 3 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution"), whose mission is to protect the interests of its

citizens and the public interest. The essence of these competences is a legal regulation

the behavior of people in areas which are accessible on the territory of the municipality of each without

restrictions, and that in cases where, in accordance with the law, is on this

regulating in the public interest. Identification of the parcel as a public open space is not

left to the discretion of the municipality. To mark the land as a public

spaces cannot be decisive ownership relationship, but only its

the nature of allowing de facto access to the land to anyone because of the absence of

restrictive interventions on the part of the owner. Only when this condition

by law, are filled with characters of public ground. The preference of

the individual interests of the owner of the public open space would lead to the

substantial disfigurement, or obstructs, legal regulation of social relations,

where is the public interest, and so to limit the performance of local authorities

guaranteed by the Constitution. The words "and more accessible without restriction"

contained in the contested provision cannot be interpreted otherwise than that it's not about

any premises, IE. "other spaces", but that it is an open space

having a similar character as "square, marketplace, the roads, the local

communication, parks and public green areas ".



The purpose of the fee for the specific use of public open space that has


its historical roots, is to ensure through economic pressure

the special municipalities, i.e.. limited use of public ground was not

preferred over the use of the General. However, it must be admitted that

If the owner of the public open space for its own use

public space in a special way, paying the fee would

not appear to be "wholly fair". But even the owner of such land would be

He had a special way of use of the land freely accessible to any limit on

as long as necessary or in accordance with the law of change

the character of the land to other measures. On payment of a fee by the

owner of the site can also be viewed as an obligation to pay "special

property tax ", from which it can be under the conditions laid down by Decree

municipalities within the meaning of § 14 para. 2 Act No. 564/1990 Coll. taxpayer exempt

or he may be granted relief. It is for consideration whether such an exemption

or relief should not be given directly by the law.



III.



The diction of the contested provisions of § 4 para. 2 Act No. 564/1990 Coll., on

local fees, and stop the proceedings on an application for its annulment



The appellant has challenged the constitutionality of § 4 para. 2 Act No. 564/1990 Coll., on

local fees. At the time of this proposal, the provisions of paragraph 4. 2

of the Act: "public space under this Act

in particular, square, marketplace, roads, local roads, parks and

public green areas, as well as other spaces available to anyone without restrictions. "



This provision was repealed by Act No. 228/2003 Coll., which came into

force on 1.1.2004. The third paragraph is, starting from 1.1.2004,

marked as the second paragraph. At the time the decision of the Constitutional Court

the provisions of § 4 para. 2 Act No. 564/1990 Coll., therefore:



"(2) the fee for the use of public ground applies the physical and

legal persons that use the public space in the manner specified in the

paragraph 1. "



Paragraph 1 of that provision then read as follows:



"(1) the fee for the use of public spaces for special

the use of public ground, 4b) which means the implementation of the

earthwork, the location of temporary structures and equipment used for

providing sales and service for the location of the building, or advertising

equipment, facilities, circuses, amusement parks and similar attractions

the location of landfills, reserving a permanent parking space and use of this

open space for cultural, sports and advertising events or needs

making film and television works. From events organized for the public

the area, whose proceeds is determined by the charitable and public

beneficial purposes, the fee does not apply. "



Note No. 4b) refers to the definition of public ground contained in the

section 34 of the Act No. 128/2000 Coll., on municipalities (municipal establishment).



As a result of the development of the legislation after the application has been the provision of section 4

paragraph. 2 Act No. 564/1990 Coll., amendment to the law on the local derogováno

fees no 229/2003 Coll., the purpose of this amendment was to apply, starting with the

its efficiency, definition of public ground, contained in § 34

the law on municipalities and the law on local charges.



Pursuant to section 67 para. 1 of the law on the Constitutional Court, if the law or its

individual provisions, whose annulment is sought, shall

force before the end of the proceedings before the Constitutional Court, the proceedings

stops. In this case, the provisions of § 4 para. 2 Act No. 564/1990 Coll.

on local charges, was dropped before the merits of the decision

Of the Constitutional Court. The current provision of section 4, paragraph 4. 2 of the Act is

the provisions of a completely different. The Constitutional Court therefore proceeded under section 67 para.

1 of the law on the Constitutional Court and the procedure for this part of the proposal stalled.



Other proceedings before the Constitutional Court therefore reduced merely to the management

on the constitutionality of § 34 of Act No. 128/2000 Coll., on municipalities (municipal establishment).



IV.



The conditions of the locus standi of the applicant



The petition was filed by a group of forty-three members of the Chamber of Deputies

The Parliament of the United Kingdom, and is therefore in accordance with the terms contained

the provisions of § 64 para. 1 (b). (b)) of the Act on the Constitutional Court. On the side of the

the appellant, therefore, are subject to the conditions of locus standi.



In the.



The constitutional conformity of the legislative process



The Constitutional Court is obliged, in accordance with the provisions of § 68 para. 2 of the law on

The Constitutional Court, in proceedings for review of the standards in particular to assess whether the

the contested act was adopted and issued within the limits of the Constitution laid down the competence

and constitutionally prescribed way.



According to the Chamber of deputies of the Parliament of the United Kingdom, public

accessible on the sides of the Chamber of Deputies

(http://www.psp.cz), was the draft law on municipalities submitted to the Chamber of Deputies

the House of the Government of the United Kingdom on 17. November 1999. During

discussion of the draft law was mj. submitted Amendment members

L. W., which was inserted into the draft law, the provisions of § 34. A proposal from the

the law was approved by the Chamber of Deputies no 868 of 8 June.

March 2000. Of the 184 members of the boat design and 149 30

MPs were against. The draft law on municipalities was approved on 12 April.

April 2000 votes 42 senators present 69 senators (resolution No. 333)

and signed by the President on 4 December 2002. May 2000. The Bill was

published in collection of laws as no. 128/2000 Coll., Act No. 128/2000 Coll.

including the contested provisions of § 34 of this Act was adopted and issued

in the prescribed manner.



Vi.



The text of the provisions of section 34 of Act No. 128/2000 Coll., on municipalities (municipal establishment),

proposed to cancel the



The contested provisions of section 34 of the Act on municipalities:



"Public space are all square, street, Bazaar, sidewalks,

public green areas, parks and other facilities available to anyone without restrictions,

therefore used the general use, regardless of the ownership of this

space. "



VII.



The content of the contested provisions compliance with the constitutional order



The arguments of the applicant concerning the unconstitutionality of section 34 of the Act on municipalities can be

divided into two basic groups. First, the appellant argues,

the definition of public ground in the law on municipalities was too wide

as in breach of article. 11 (1) 2 of the Charter acknowledges that the public

the area was declared a private plot of land without the consent of its owner.



The second group of arguments is the possibility that the municipality shall determine pursuant to section 4, paragraph 4. 1

Act No. 564/1990 Coll., on local charges, the obligation to pay

the fee for the so-called. specific use of public ground also itself

the owner of the area, which was declared to be a public space.



VII./a



The first group of opposition



The contested provisions of section 34 of the Act on municipalities provides that public

open space is a space that meets the specified characters "regardless of the

the ownership of this area "(para. 34 in fine). Form of ownership is

Thus the statement squares, streets, markets, pavement, public green spaces,

the Park and additional space for public space is irrelevant. Basic

the only condition is that these spaces are accessible to everyone without

restrictions, and thus serves the general use. A substantial part of public

the area is generally owned by the municipalities (cf. Hendrych (D) and

Al., administrative law, 5. Edition, c. h. Beck, Prague 2003, p. 266).



Characteristics of a space as a public open space is

significant with regard to the concept of General (public) use. Public

(General) use is a traditional, very old legal Institute, whose

importance has been neglected, in particular after 1948, as a result of strong

zestátňovacích tendencies. In this context, can point out the content of the concept of

General use, which was especially in the pre-war theory devoted to the

considerable attention.



General use (usus publicus) can be used to understand the use case corresponding

its destination and use of the other (the same nonexclusive Dictionary

public law, vol. II. Brno, 1932, p. 991).



The previous civil codes, as well as a valid civil code

do not include a definition of the term "public thing" or "thing in general use '.

The General Civil Code (hereinafter referred to as "O.Z.O.") defined in § 287 "stuff

free "," municipal or public good "and" State property ". The thing loose he could

take ownership of each, for a general or public good, consider those things,

which was made possible by their use, rather than appropriating (eg.

the road and the river). The State capital was made up of what had been intended to cover

the State needs (e.g. Sterling or rack). Similarly, section 288

O.Z.O. has defined the terms "General farm" and "municipal property". General farm

were things that, according to the municipal establishment served to use each

a member of the municipality, and the municipal assets have been things that have revenue generating

intended to cover municipal expenditure.



According to comments to the Csl. the General Civil Code (f. Rouček, J.

Sedláček, part i., Prague 1935, pp. 17 et seq.). Therefore, the public have been

farm real estate, that regulations (the Act or statement

competent authority) were intended for public use. It was the

public water and public roads (roads, streets, bridges, squares, set, and

jinaké path), IE. things belonging to the public territorial corporations, i.e.,

a public good in the strict sense of the word. For the public good in a broad sense


the words were seen as things as described above (i.e. belonging to the public territorial

corporations), but also things that were in the possession of a firearm.

General use was for the owner of the public good by limiting

the public. In its ownership remained the whole thing, if statement

the competent authority has ceased to be a public good. About whether the thing is

public good, what belongs to the general use and whether the establishment of a

the law is not limited to general use, ruled administrative offices.



According to the case-law, the period of § 287 O.Z.O.: "That is, the public,

does not preclude private law on real estate, since the ownership of the

General use of limited land when it stops working if this general use. "

(decision of the Supreme Court (GL. u. 12.856. GL. U. N. F. 6006).

Comment to O.Z.O., above, p. 12. Then-Supreme Administrative Court

held that: "the fact that the land is owned by the road

privately, is not an obstacle to-if there are assumptions-municipal

the City Government neprohlásilo the path in the path of the public. " (Boh. 3614/25-

see comment above, p. 13).



When it comes to contemporary case law § 288 O.Z.O., point out that:

"The fact that the road is open to the public, does not rule out private property to

the real estate. " (Supreme Court of Gl 12.856.). According to another judikátu

Supreme Court No. 11.290: "square is a communal farm in the sense of §

288 O.Z.O. Use the municipal farm and handling are not governed by the law of the

private, but public law, and the Village Act not as

private owner, but as the nobility when gave the property to the

operation of public enterprises and collected special benefits. " (see the same

comment, page 19).



From the above historical exkursu, from legal theory and practice

It follows that the public use covered the material goods in

private property even before the effective date of Act No. 128/2000 Coll. (cf.

for example. Hendrych, d. et al., administrative law, 5. Edition, c. h. Beck, Prague

2003, p. 267). As regards the additional literature, generally to the public

use: the accomplice, r., guide to public administration, ISV, Prague 1999.

138. more specifically, then on this issue, in particular, the analysis in the article on.

David, j. Zacharias: charges for use of public ground,

Lawyer No 2/98, p. 161 et seq., where the authors conclude that the public

space may also be private land owner. Similar views

There are traditionally in the Czech legal science (cf. in General on the issue of

public use eg. J. Hoetzel, Czechoslovak administrative law,

General area, Prague 1937, pp. 296 et seq.).



Current legal theory and practice understands under the term "public use"

the use of universally accessible material goods in advance unlimited

audience. Such use shall be that corresponding to the nature and

the purpose of the object and which does not exclude the use of a single farm of like other,

even a potential user. If a user exceeds these

boundary and excludes or restricts the use of the farm, it is necessary to other users

on this use, viewed as a use of the special, it's not even about

illegal activity. There are two types of public use, and

This use of generic and specific use. Both types of users have

public-law nature of the will of the owner plays no role here. General

the use does not require any decision of an administrative authority, it is therefore not for them

need any permits, the audience is unlimited. The user may be

Anyone who meets the specified requirements. By contrast, the specific use

It arises on the basis of an administrative decision and only for users in this

the decision indicated, in other words the special use is always on

permits (cf. Hendrych, d. et al., cited work from above, p. 261, and

seq.).



According to the theory are public spaces as a material one of the farm

possible objects of public use, which include in particular. water, ground

communication, landscape, forest, air, some types of energy and frequency

spectrum (Hendrych and al., cit., p. work 265 et seq.).



With regard to a certain archaičnost of the Institute of general use is

State that arose generally customary manner, IE. the long-term

the use of a particular material. In this way you can, to a certain

extent, rely, in respect of public spaces, the historical memory

the population of the municipalities, who are usually fixed in position the use of those goods

"from time immemorial", which refers to private owners and potential of these

goods, their attitude evinced acceptance of this General

the use of the space, that is owned by them in public space

consider. As regards the status of the owner, an older theory was based on the

"the presumption of dedication", i.e., that for example. public road shall be given to the owner of the

General use and he cannot (that is, general use) be withdrawn

private law aspects (cf. vlastníkovou. A dictionary of public law,

from above, pp. 999 et seq.).



For public spaces can thus be considered every space that is

accessible to all without restrictions, you can use the general use and it is public

area specified in the Ordinance of the Ordinance of the municipality. According to § 14 para. 2

Act No. 564/1990 Coll., on local charges, the municipality shall determine in General

a binding Decree places in the village are subject to the fee for the use of

public open space. This is a decision that is in a separate

the scope of the municipality within the meaning of section 35 of the Act on municipalities. This decision-making

is a village not only bound the definition of public ground contained in § 34

the same Act, but the entire system of spatial planning and construction management

under the specific legislation. The owner of the right to defend itself against the general use of

its assets private way (action for the General Court) is not

also not limited. The ability of the owner to defend "action negatoria"

Admittedly, even pre-war legal theory (cf. cited Dictionary

public law, p. 994). In the light of this it can be concluded that the

owners have the option to defend themselves against arbitrary decisions of the municipality of

public area.



The definition of public ground, contained in section 34 of the Act on municipalities cannot be

in the opinion of the Constitutional Court regarded as too broad. How

He said the Senate in its observations, which identifies itself as well as the constitutional

the Court, the words "and more accessible without restriction" contained in this

the provisions must be interpreted as meaning that it is not about any premises, IE.

"other spaces", but that it is an open space with a similar character

as "square, marketplace, roads, local roads, parks, and public

foliage ".



Space, satisfying the legal characters of public ground is a public

area ex lege. Removing the space owned by private entities

and fulfilling the legal characters of public ground of public service

mode of public ground would led to a substantial disfigurement, or

freeze-out of legal regulation of social relations, on which the village as

public corporation public interest. For example. would it negatively hit

decisions of municipalities in connection with labelling of public spaces,

permission to save based on generally binding decrees the obligation to

the protection of local matters of public order, to the protection of

the environment and the maintenance of cleanliness, as well as permission to impose fines for the

administrative offences related to keeping order on the public

spaces. A number of aspects of this public service regulation, moreover,

no strain on the owner, but on the contrary, his legal status as

the owner of such land improves [e.g. public protection

against pollution of public space under section 10 (b). (c)) and § 58

the law on municipalities, ensuring public order pursuant to section 10 (b). and)

CIT Act etc.].



Charging for special use of public ground may not be applicable,

and usually doesn't, all public spaces, but only

those are for the purposes of fees for specific use

defined by generally binding Ordinance, issued according to § 14 para. 2

Act No. 564/1990 Coll., on local charges. The rights and obligations

the owner of such a space are not his declaration for the public

directly in no way affected. Designation of private property for the

public space generally binding Ordinance cannot, therefore, be

are placed on a par with the expropriation or compulsory restriction of ownership rights in

meaning of article 87(1). 11 (1) 4 of the Charter, as the petitioner.



The basic thesis of the petitioner is the assumption that the right of ownership is

the law, which "shall not be infringed in any way." From the text of the article. 11 (1) 3

Of the Charter, it follows that the right of ownership is not an absolute and infinite

the legal dominion over things, but it has to meet, and at the same time also performs other

function. According to the article. 11 (1) 3 Charter ownership committed to, must not

be misused to the detriment of the rights of others, or in violation of the law protected

general interests. If the private owner of the land that meets the

all of the characters according to the statutory definition of public ground, it is necessary to

whether or not to accept the possibility that such land be declared a municipality public

areas (article 14, paragraph 2, of Act No. 564/1990 Coll., as amended, section


paragraph 84. 2 Act No. 128/2000 Coll., as amended).

The relevant generally binding Decree of the village so just declares the existing

status. The Constitutional Court in this aspect of the opinion expressed by the jabbers

in the Senate of the Parliament of the Czech Republic, according to which a municipality in

this case stands out in the meaning of article 87(1). paragraph 101. 3 of the Constitution of the United

States as a public corporation whose mission is to protect the interests of the

of its citizens and the public interest. One of the functions of the obligation to pay

special fees for the use of public ground is to ensure

through economic pressure to specific, i.e.. necessarily

limited and other users of the exclusive use of public spaces,

was preferred over the use of the General.



As already expressed in its case law, the Constitutional Court, it is necessary to respect the

instantiating a social binding force within the meaning of article ownership. 11 (1) 3

Of the Charter and article. 1 (1). 2 of the additional protocol to the Convention on the protection of

human rights and fundamental freedoms, according to which the right to the protection of assets

does not preclude the right of a State to enforce such laws as it deems necessary to

control the use of property in accordance with the general interest. Such a legislative

editing is also valid in the Czech Republic, even if the restriction of the use of the assets do not

-and given the diversity of circumstances, nor can they have-the nature

concretized the obligations individually, inventory but duties while

generally formulated, but reasonable to interpret [see find

The Constitutional Court, SP. zn. PL. ÚS 11/01, famous under no 141/2002 Coll. and the

published in the collection of the findings and resolutions of the Constitutional Court (hereinafter referred to as

"The decision"), volume 25, finding no. 25].



Similarly, the applicant's argument does not stand up, or breach of equality

owners as defined in article 4(1). 11 (1) 1 second sentence of the Charter.

The Constitutional Court points to consider in finding SP. zn. PL. ÚS 15/99,

According to which article 11 as well as article 26 para. 2 of the Charter are

an expression of the overall concept of the rule of law in the Czech Republic. Even if the

explicitly in any constitutional document, the Czech Republic does not represent a

"social law", in fact as well as in a number of

Western European countries, all of its constitutional and legal system is based on the one hand,

the principle that ownership is restricted by law and protected

general interests (article 11, paragraph 3, of the Charter), both from the State

intervention for the treatment of property rights in the public or general interest.

If such an editing occurs in the public interest, it is not an interference with the

equality of different owners. Constitutional system and legal order of the Czech Republic

refuses to different value classification and different degree of legal protection

What was the totalitarian regime known as "the various types and forms of

ownership ". The Czech legal order according to the cited award is based on the

one of the universal concept of ownership, which is subject to adjustment by law

protected the general interest (see find SP. zn. PL. ÚS 15/99,

promulgated under Act No. 80/2000 Coll. and published in the ECR, volume

17, finding no. 38). In this sense, is not and cannot be unconstitutional, if

mode of public ground are also subject to some facilities owned by the

by private persons, but the consistent implementation of

the universal concept of ownership of indiscriminate owners

private and public nature.



Finally, the appellant's claim fails to pass or that the municipality may determine the

public open space to do whatever you want. The village is bound by a legal

the definition of public ground in the relevant provisions of the Act,

the obligations to comply with legal regulations of the Czech Republic, as well as the requirement of

constitutionally consistent interpretation of General (podústavního). In addition, in the

the Czech legal order there is sufficient to check that the municipality

does not exceed its competence. The Constitutional Court in this refers to the article. 87

paragraph. 1 (b). (b)) of the Constitution, according to which shall be decided by the Constitutional Court to cancel

other legislation, including the generally binding decrees of municipalities

issued in their separate scope, if they are in conflict with the constitutional

by law, the law or international agreement under article. 10 of the Constitution. Cancellation

the whole provisions of § 34 of the law on municipalities by the plaintiff alleged

the will could not limit, but on the contrary, in the absence of any statutory

the legislation would give the village a much wider diskreci in determining the

public space, than how is the current, the applicant challenged,

the legislation.



If the appellant argues article. 11 (1) 2 of the Charter, the provisions,

that the contested provisions of the Act on municipalities clearly does not apply.

According to this provision of the Charter: "the law stipulates that the assets necessary

to the needs of the whole society, the development of the national economy

and the public interest may only be owned by the State, municipalities or intended

legal entities; the law may also provide that certain things can be

only owned by citizens or legal persons based in the United

Republic. ". On public spaces, as is apparent, moreover, from the

the above analysis cannot be viewed as assets necessary to

securing the needs of the whole society, the development of the national economy and

the public interest. Also because there is no law that would

the ownership of the public spaces restricted; the application section of this

provisions for a semicolon then does not come into consideration at all.



VII./b



The second group of opposition



In the second circle of opposition the applicant argues that the contested legal

editing raises the unconstitutional consequences, because it allows the owner of the

area municipalities designated as public space was forced to pay

special fees for the use of public spaces.



The Constitutional Court many times in its case-law stated that "in theory, you can

of course, each of the provisions of the legislation applied incorrectly, thus

contrary to the constitutional provisions, which in and of itself cannot be

the reason for the cancellation of the following respectively applicable incorrectly

prescription. " (find SP. zn. PL. ÚS 8/98, promulgated under Act No. 300/1998 Coll. and

published in the ECR, volume 12, finding no. 141). In other

words, if the law can be interpreted in several ways, of which only a

one of them is unconstitutional, it is necessary to choose the interpretation of constitutional

Conformal (find SP. zn. PL. ÚS 48/95, promulgated under no. 121/1996 Coll., and

published in the ECR, volume 5, finding no. 21). These premise

they are also the starting point for the following arguments.



The purpose of the procedure for the General control of the standards does not solve all of the individual

hypothetical situations that have not yet occurred, even if perhaps sometimes occur

can. If the Constitutional Court thus proceeded, crossed her

a function that he belongs in the framework of general control standards, and would replace the

the protection of fundamental rights, which nature of things must provide general and

administrative courts. The complainant in this circuit problems landed a variety of

hypothetical examples and situations in which he contested

the provision sparked unconstitutional consequences. The following conclusions of law

the appellant, however, are not the only and necessary interpretative result

the law on municipalities and the law on local charges. In other words, the conclusion that the

fee obligation for specific use of the public area

also apply to the owners of such public spaces, not necessarily from the

the contested provisions or any other provisions of the Act on municipalities or

the law on local charges, it does not.



The legal conclusion, according to which he was the owner of the land shall pay the

special fees for the use of their land, which was as public

spaces marked with a generally binding Ordinance, would be, according to the

circumstances, in violation of the constitutional protection of property rights. In such a

when charging occurred would exercise of ownership rights

the public authorities. Therefore, to places such as. the owner of the land designated as

public space on your land ad device (which is one of the

examples of the so-called. Special use of public ground, referred to in

an exhaustive enumeration of § 4 para. 1 Act No. 564/1990 Coll.), should not in principle

be subject to fees for the specific use of the public

open space. In the Constitutional Court gives the right to the legal conclusions

expressed by some of the authors of the legal theory (cf. for example. David, O.,

Zacharias, j.: charges for use of public ground, a lawyer for no.

2/98, p. 161 et seq.), so the objections referred to in the comments of the Senate

Parliament of the Czech Republic. In the present case, therefore, is not in place

derogatory intervention of the Constitutional Court. In contrast, the protection of the rights of the owners will be

the subject of any proceedings before the administrative courts, which take account of

all the relevant circumstances of the individual case and, depending on

distinguish the performance of property rights from its eventual exploit.



VIII.



The abandonment of an oral hearing



According to the provisions of § 44 para. 2 of the Act on the Constitutional Court, the Constitutional Court may

with the agreement of the participants to refrain from oral proceedings, if, from this

the negotiations expect further clarification of the matter. That provision can be

applicable to proceedings in the case, therefore, the Constitutional Court has requested from the

the parties ' observations, whether departing from the oral proceedings


agrees. Communication of 19 January 2005 expressed in petitioner's

consent to the abandonment of the oral proceedings. MSC. I. L. In a letter dated

January 25, 2005, then spoke with the abandonment of the oral proceedings the consent

the President of the Chamber of deputies of the Parliament of the United Kingdom and by letter of

on 26 April. January 2005, and the President of the Senate of the Parliament of the Czech Republic.



Having regard to the above arguments, the Constitutional Court stopped the proceedings for

the proposal of the Group of members of Parliament of the United Kingdom

the repeal of section 4, paragraph 4. 2 Act No. 564/1990 Coll., on local charges,

pursuant to section 67 para. 1 of the law on the Constitutional Court. The proposal to repeal section 34

Act No. 128/2000 Coll., on municipalities (municipal establishment) then dismissed pursuant to section

70 paragraph 1. 2 of the Act on the Constitutional Court because it concluded that they are not

reasons for its cancellation.



The President of the Constitutional Court:



JUDr. Rychetský in r.