In The Matter Of The Application For Revocation Of The Provisions Of Section 44 Of The Act No. 20/1987 Coll.

Original Language Title: ve věci návrhu na zrušení ustanovení § 44 zákona č. 20/1987 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60189&nr=240~2F2005~20Sb.&ft=txt

240/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 26 April. April 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, JUDr. Elisabeth Wagner and JUDr. Michael April on the proposal

The Supreme Administrative Court for annulment of the provision of section 44 of the Act No. 20/1987

Coll., on State heritage preservation, in part expressed by the term "3,"



as follows:



The provisions of § 44 of law No. 20/1987 Coll. on State heritage preservation, in the

expressed by the term "3.0", the date of publication of this finding in the collection of laws

repealed.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court was on 15. April 2004 served the Supreme

Administrative Court for annulment of the provision of section 44 of the Act No. 20/1987 Coll., on

State heritage preservation, in part expressed by the term "3".



The appellant did so according to § 64 para. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, and that once in the

connection with his decision-making activities in accordance with art. 95 para. 2

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution") concluded that

the provisions of § 44 of law No. 20/1987 Coll. on State heritage preservation, in the

expressed by the term "3.0" is in breach of article. 2 (2). 3 of the Constitution, article. 2 (2).

2 and article. paragraph 36. 1 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter").



In that case, SP. zn. 6 and 102/2001 is the highest administrative court

decided on the action O. M., which seeks the annulment of the decision

The Ministry of culture of 17 May. September 2001 No. 5381/1998 of the Declaration

file drawings and prints from the assets of the plaintiff as a cultural

keepsake. In the grounds of the decision states that the procedure for

the Declaration file of movable assets – a cultural monument was initiated at the

the basis of the proposal, National Gallery in Prague, which has identified a set of drawings and

prints from the so-called. M. Collections for valuable works that cannot endanger the

export. Agreement with the Declaration of a cultural monument by the City Hall expressed

the city of Prague and the State Department of historic preservation, with the applicant

to the proposal within the prescribed period. On the basis of the

the documentary materials of the Ministry of culture came to the conclusion that the selected

works from a file meets the criteria of cultural monuments, are

representative components of historical collections and an important

document the development of Czech and European artwork and graphics in the period from 16. to

the 19th century, have been declared a cultural monument.



In the application to the administrative decision on the unconstitutionality of said.

section 44 of the Act on State protection, according to which the management of the

saying things behind the cultural monuments regulations on administrative proceedings

do not apply. In the absence of this sees the unconstitutionality of the participant's options

the administrative procedure to appeal, as well as in the absence of a review, the independent

and impartial body in full jurisdiction, since at the time of making the application

(before the entry into force of a court order administrative) to the courts of the

review of the legality of administrative decisions only. In addition, the Prosecutor's Office said

even a contradiction of the law on national heritage preservation with the article. 11 of the Charter, i.e.. conflict with the

constitutionally guaranteed protection of property rights. He suggested further that the

the General Court considered the presentation of the case to the Constitutional Court, since according to his

belief in his case was decided on the basis of the law, which is in the

contrary to the constitutional order.



The Ministry of culture within the defence pointed to constitutional

Court SP. zn. I. TC 35/94 [collection of findings and resolutions of the Constitutional Court

(hereinafter referred to as "ECR") volume 1, finding no. 36], from which it derives

confirmation of the constitutional conformity to the law on State heritage preservation. Letter dated 9 April

also on the decision of the High Court in Prague, SP. zn. 7 and 13/99, according to the

which cannot be inferred a contradiction of the law on national heritage preservation with the constitutional

policy just for that reason that this law does not allow dvojinstančnost

control. Draws attention to the possibility of further consideration of the case by an independent authority

According to the article. 6 to the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to

"the Convention").



The thing about the M in the High Court in Prague according to § 246 para. 2 of the code of

Code of civil procedure, in the version in force before 1 January 2005. in January 2003, then according to § 132

court order administrative of the Supreme Administrative Court. In the framework of its

discussion of the Supreme Administrative Court has delivered an opinion, according to which the provisions of §

44 of law No. 20/1987 Coll. on State heritage preservation to be in

things to use, is in contradiction with the constitutional order if it provides that the

the procedure for declaring goods for cultural monuments are not covered by the General

regulations on administrative proceedings.



The Supreme Administrative Court considered that the exclusion of common rules on the

the administrative procedure [which is meant to Act No. 71/1967 Coll., on administrative proceedings

(administrative code)] You cannot, without further considered unconstitutional, if this is

the exclusion of creating the file, offset by the special rules, for the

better control type (as is the case for example in the case of Act No.

337/1992 Coll., on administration of taxes and fees, in the wording of later regulations).

The justification for the existence of a special administrative procedure establishes in

the complexity and diversity of public administration. But if the law excludes

the General rules of administrative procedure, without replacing the other, according to the

the petitioner's opinion, the unconstitutionality of such adjustments. The consequence of the

the absence of other statutory procedural adjustments which could fell, then

According to him, the fact 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, or

You may not care about it, that decision was based on the reliably detected

the State of things; on the contrary, the person whose rights in the management of it, does not have the ability to

such rights to defend herself or to comment on the background to the decision. As well

so in this case, according to the Supreme Administrative Court does not pay series

other obligations and rules: for example, in this procedure is neither

any party to the proceedings, a case can decide such a worker

the Administration, which has on the result of the management of personal or material interest,

Anyone may not be allowed access to the file, it may not be

the decision shall be notified and the less served, indeed, may not even be in writing

drawn up, there is the linking of the decision prejudiciální the question of time limits

for the issuance of the decision do not exist, there is no appeal against the decision,

illegal decision cannot be cancelled or renewal of management according to §

65 administrative procedure and decisions shall not acquire or formal legal power.



In this situation, the applicant considers that the determination of the rules of the decision-making

the procedure entirely within the competence of the competent administrative authority. Referenced in

this context, the opinion of the doctrine, according to which in such cases

only by analogy to apply some of the institutes of the administrative code and

or even the General principles of administrative law (d. Hendrych and al., Administrative

the right. General part. 4. ed., Prague 2001, p. 247). The arguments of the administrative

the authority, which would have relied on the constitutionality of its procedure, with the understanding that it

founded on the analogue of the administrative code and application on the principles of administrative

law but insufficient. Some of these policies can be

found in the introductory provisions of the administrative code, more can be based on the

the provisions of other laws, and again others may be generalizing, administrative or

adjudication. Their enumeration is not mandatorily laid down and is so

left to the discretion of the administrative authority, that from a set of generally

accepted principles will honour when making its decision.



In this connection, the Supreme Administrative Court refers to the constitutional

Court SP. zn. PL. ÚS 14/96 (ECR, volume 6, find # 114;

promulgated under no. 3/1997 Coll.), which according to his convictions fully falls on

the thing in question, and in which, inter alia, stated that the exclusion of

application of the General rules of administrative procedure in the absence of other

both violated the guarantee of the legal basis for the exercise of State authority in the

meaning of article 87(1). 2 (2). 3 of the Constitution and article. 2 (2). 2 of the Charter and, secondly, it is the

based conflict with the article. paragraph 36. 1 of the Charter, which stipulates the right of every

to set out a procedure for redress of their rights.



For those with the Supreme Administrative Court considers that the complete exclusion of

Code of administrative procedure of deciding on the rights and obligations of natural and

legal persons in a situation where there is no applicable treatment,

you would governing authority was obliged to respect, is in contradiction with the

the constitutional order, namely with article. 2 (2). 3 of the Constitution and the corresponding

the provision of article. 2 (2). 2 of the Charter, as well as with the article. paragraph 36. 1 of the Charter,

therefore proposed to the provisions of § 44 of law No. 20/1987 Coll., on State conservation area

care, in part expressed by the term "3.0."



II.



Recap the essential parts of the representation of a party to the proceedings



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the proposal from the Chamber of Deputies. In

its observations of 24 April. February 2005 the President of the Chamber of Deputies


Parliament of the Czech Republic, PhDr. Lubomír Zaorálek introduction refers to the

the procedure of the Ministry of culture in the case of the applicant, under which he was

in writing shall be informed of the lodging of the Declaration file of movable assets

a cultural monument and it was allowed to him within the meaning of § 3 para. 2 of the law on

State heritage preservation on the draft comment, of which the appellant

before the Constitutional Court concludes respecting the basic principles of the administrative

control. The statement also notes that the law on the State heritage preservation

Although it does not allow an appeal when saying things behind the cultural

memory, but still cannot be inferred from that conflict with the Constitution or

international treaties by which the Czech Republic is bound. Option

discuss the case by an independent authority as a party to proceedings, the law on

State heritage preservation does not exclude.



The President of the Chamber of Deputies as well as to the argument of Highest points

Administrative Court, referring to the legal opinion contained in the judgment of the Supreme

Court of Prague of 30 May. August 2001 No. 7 and 13/99-28, concerning the

the provisions of section 44 of the Act on State heritage preservation and exclusive use

of the administrative code for saying things behind the cultural monuments, to

himself the Supreme Administrative Court confirms the acceptance of the view that the administrative authority

in these proceedings, must observe the basic principles of administrative procedure.



The President of the Chamber of deputies also confirmed that law No. 20/1987 Coll. was

approved by the necessary majority of the Czech National Council on 30 November. March

in 1987, he was signed by the respective constitutional officials, and declared in the collection

laws.



In conclusion, the expression then notes that it is up to the Constitutional Court, in

the context of the examination of the proposal to repeal the provisions of § 44 of Act No.

20/1987 Coll. on State heritage preservation, in part expressed by the term "3,"

to assess the constitutionality of this Statute and issued by the competent

decision.



According to § 42 para. 4 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Czech

of the Republic. At the outset of its observations of 22 October. February 2005 by its Chairman

Mudr. Přemysl Sobotka States that law No. 20/1987 Coll., on State

heritage preservation, the Czech National Council was adopted on 30 November. March 1987,

even at the time before the establishment of the Chamber, none of his amendments to the

did not cover the contested provisions of section 44, the Senate is unable to submit

observations, which would be based on consideration of the provision

the Bill in the Senate.



With regard to the provisions of § 44 disputed unconstitutionality of Act No. 20/1987

Coll., to the argument of the applicant points out the Party on some

aspects related to the issues of:



In matters relating to a declaration for cultural monuments (according to § 3

the Act on State protection) isn't a definite exclusion

the General rules of administrative procedure, without any legal process

editing. Certain procedural rules about saying things behind the cultural

monuments provides just § 3 of the law No 20/1987 Coll., as well as section 1 of the

Decree No. 66/1988 Coll., as amended by Decree No 538/2002 Sb.

point of view, therefore, in this case, in the opinion of the President of the Senate, rather than

the argument about the lack of other legislation was necessary to deal

with the content of paragraph 3 of that law, whether and for what reasons, this can be a legal

therefore be regarded as so inadequate that in relation to it can be

the provisions of § 44 in part expressed with "3.0" law on State

heritage preservation can be considered as unconstitutional (and even with regard to an earlier

the decision of the courts in similar cases, for example. The High Court in Prague from

on 30 November. August 2001 No. 7 and 13/99 or the Supreme Administrative Court of

28 June 1999. April 2004 No. 6 and 106/2002). However, according to the party

submitted the proposal does not make, and the whole argument is based on the principle that the

on this matter there is no other applicable adjustment, which would be

the administrative authority shall be obliged to respect that.



At the conclusion of his observations of the President of the Chamber notes that it is the Constitutional

Court to the constitutionality of the proposal of the contested provisions of § 44 of Act No.

20/1987 Coll. on State heritage preservation, to examine and to decide.



III.



The abandonment of an oral hearing



According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., the Constitutional Court may be

the consent of the participants of the oral proceedings, to refrain from it cannot be

expect further clarification of the matter. Due to the fact that all of the participants,

i.e.. the appellant in the submission of 6 April 2005. April 2005 and in the interested parties

remarks by President of the Chamber of deputies of the Parliament of the United Kingdom of

on 12 June 2006. April 2005 and President of the Senate of the Parliament of the Czech Republic of

April 8, 2005, agreed to drop from the oral proceedings and

the Constitutional Court considers that, since the meeting cannot be expected for more

clarification of the matter, it was from the oral proceedings in the case dropped.



IV.



The diction of the contested legislation



According to the provisions of § 44 of law No. 20/1987 Coll. General provisions of administrative

the proceedings do not apply to proceedings under section 3, 6, 8 and § 21 para. 2 and 4 ",

with the provisions of section 3 of the Act, as amended

regulations, is regulated by saying things behind the cultural sights.



In the.



The conditions of the locus standi of the applicant



Application for annulment of the provision of section 44 of the Act No. 20/1987 Coll., on State

heritage preservation, in part expressed by the term "3," was given the highest

the administrative court according to the provisions of § 64 para. 3 of Act No. 182/1993 Coll., on

as amended.



As was already mentioned in naraci, SP. zn. 6 and 102/2001

Supreme Administrative Court decided on the action O. M., which seeks

annulment of the decision of the Ministry of culture of 17 May. September 2001 j.

5381/1998 on the Declaration file of drawings and prints from the assets

the plaintiff a cultural monument. The Supreme Administrative Court, once in

connection with his decision-making activities in accordance with art. 95 para. 2

The Constitution came to the conclusion that the provisions of section 44 of the Act No. 20/1987 Coll., on

State heritage preservation, in part expressed by the term "3," to be in the

the solution things SP. zn. 6 and 102/2001 applied, is in breach of article. 2 (2). 3

Constitution, article. 2 (2). 2, and article. paragraph 36. 1 of the Charter, in its resolution of 5 June 2003.

April 2004 No. 6 and 102/2001-37 according to § 48 para. 1 (b). and) of the Court of

the order of the administrative procedure in the matter and submitted to the Constitutional Court

the present proposal on control standards.



A procedural condition for the locus standi of the General Court according to § 64 para. 3

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

is such a link to the cancellation of the proposed law. his individual

provisions, to the subject of tribal control, which establishes for the adjudication of the matter

by the General Court of the reasons for the decision. Under section 75, 76, 78, § §

Code of civil procedure of the administrative part of the examination of the contested decision

an action against a decision of an administrative authority is to review

complaints of defects in the administrative procedure, with the provisions of section 44 of the Act on

State heritage preservation is for such assessment in the present proceedings

the basic starting point. For these can be on the side of the applicant

clear fulfillment of its locus standi on the procedures for

control standards.



Vi.



Constitutional competence and conformity of the legislative process



According to § 68 para. 2 Act No. 182/1993 Coll., as amended,

The Constitutional Court in proceedings for the annulment of laws and other

legislation assesses the content of these regulations in terms of their

accordance with the constitutional order, or laws, if it is about another

legislation and discovers that they have been received and issued within the limits of the Constitution

set out competences and constitutionally prescribed way.



If the Constitutional Court under the control of standards of competence shall be assessed the constitutionality of

the regulatory authority and the constitutionality of the regulatory process, is based on the

the provisions of section 66 paragraph 1. 2 of the Act on the Constitutional Court, according to which the proposal in the

the revocation of laws and other legislation of the inadmissible

If the constitutional law or an international agreement to which they are referred to in

the design of the legislation, which expired before delivery of the proposal

The Constitutional Court of the validity of. It follows that legislation

issued prior to the entry into force of the Constitution of the Czech Republic No. 1/1993 Coll. is

The Constitutional Court shall be entitled to examine only the content of their compliance with the

the existing constitutional order, but not the constitutionality of the procedures of their

creation and compliance with regulatory competence [see findings SP. zn. Pl. ÚS

Collection of decision 9/99, volume 16, finding no 135; promulgated under no.

289/1999 Coll.), pl. ÚS 10/99 (ECR, volume 16, finding no.

150; promulgated under no. 292/1999 Coll.), pl. ÚS 7/2000 (a compilation of decisions

Volume 19, finding no. 106; promulgated under no. 261/2000 Coll.), pl. ÚS 40/02

(A collection of decisions, volume 30, finding no. 88; declared under no. 199/2003

SB.].



In this case, the Constitutional Court, after completion of the findings, therefore, limits the

on a finding that the law No. 20/1987 Coll. on State care monument,

entered into force on 1 January 2000. January 1988, at a time before the entry into force of

The Constitution of the Czech Republic No. 1/1993 Coll., none of the amendments

did not cover the contested provisions of § 44.



VII.




The content of the contested legal provisions compliance with the constitutional order

(the constitutionality of the exclusion of the General rules of administrative procedure)



Legal opinion of the constitutional aspects of the issue of the exclusion of the General

regulations on administrative proceedings, the Constitutional Court expressed in finding SP. zn. PL.

TC 14/96. Noted that the fulfillment of the constitutional postulátu, according to which the

State power can be exercised only in cases, within the limits and ways that

determined by law (article 2, paragraph 3, of the Constitution, article 2, paragraph 2, of the Charter),

represents a guarantee against the abuse of State power, and it comes from the need to

the legal basis for its implementation (in the present case whether in

the form of the code of administrative procedure, or other individual norm). The exclusion of the use of

the General rules of administrative procedure in the absence of other bases

at the same time according to the Constitutional Court and the conflict with the article. paragraph 36. 1 of the Charter, which

regulates the right of every person to set out a procedure for redress of their rights.



Act No. 20/1987 Coll. on State heritage preservation, as already

noted, was adopted by the Czech National Council on 30 November. March 1987,

entered into force on 1 January 2000. January 1988, none of the amendments after

the fall of the Communist regime did not cover the contested provisions of § 44.



According to the explanatory memorandum to § 44 of the Government's draft law of the Czech National Council on

State heritage preservation (press # 8, the Czech National Council 1986-1990):

"statement of things as a cultural monuments shall be without prejudice to specific rights

their owners, and therefore there is no reason for the application of the administrative code. In addition to the

There are dictated by the special interests of the socialist society

the preservation of cultural monuments and on their cultural and political application,

which cannot be made subject to the opinion of the owners and their personal

aspects. However, even with the exclusion of the General regulations of the administrative

proceedings in the relevant provisions of the Act provides the permission owners

things to design or to the initiative in their declaration for cultural

monuments to express. "



The whole concept of the law on State protection, reflecting the period

ideological axioms, is based on the absolute prevalence of public (State)

interest and the denial of the protection of the rights of the individual, in that context, then

protection of the rights of ownership. This approach then resultovalo i

contradictory opinion, according to which the statement of affairs as a cultural

monuments, which is associated with a limitation of disposition and usage permission

owner, "is without prejudice to specific rights owners", then

the legislature constituted a reason for application of administrative procedure in the present

control. Another argument the former concept, which is in contradiction with

the first argument, according to which the restrictions of use

owner permissions cannot be without prejudice to its rights of ownership, it is then

the argument clear dominance "of special interests of the Socialist

the company "that" cannot be made subject to the opinion of the owners and their

personal aspects ".



The purpose of the provisions of the section thus conceived 44 of the law on national heritage preservation

not be considered contradictory with the constitutional protection of property rights

According to the article. 11 of the Charter and article. 1 of the additional protocol to the Convention.



The Constitutional Court is yet aware of constitutional protection's cultural wealth in the

the meaning of the protection of the public good (article 34, paragraph 2, of the Charter). In a number of their

the decision expressed the view that while a collision in the plane

constitutional law occurs not only between the fundamental rights and freedoms of each other,

But even among the fundamental rights and freedoms and other constitutionally protected

values-public goods [(SP. zn. PL. ÚS 15/96 (ECR,

Volume 6, finding no. 99; promulgated under no. 280/1999 Coll.), SP. zn. III. THE TC

256/01 (ECR, volume 25, finding no. 37)]. The assessment of this

the collision is the result of the application of the proportionality principle, the necessary

the component is the maximum of the resulting from the article. 4 (4). 4 of the Charter, according to which even

the case of the restrictions on fundamental rights and freedoms arising from the priority with him in

the collision with the ocitajícího public good must be preserved nature

and the meaning of.



It follows that, in section 44 of the Act on State protection as enshrined

the exclusion of the General editing of the administrative procedure when making a decision about the Declaration

things for cultural monuments is at odds with the consequences which arise for

assessment of the legal provisions, the principle of proportionality and of article. 4 (4).

4 of the Charter.



The party then in favor of the constitutionality of § 44 of law No. 20/1987 Coll.

the two arguments. The first is the voucher of the case law of general courts and

The Constitutional Court, the other claims, according to which the exclusion of General editing

the administrative procedure when making a decision about the Declaration things for cultural relics

does not result in a complete absence of statutory procedural modifications, as

the provisions of § 3 of the law No 20/1987 Coll., as amended,

as well as section 1 of Decree No. 66/1988 Coll., as amended by Decree No 538/2002 Coll.

in this context, certain clauses shall specify.



Where reference is made in the Senate on the Constitutional Court, SP. zn. (I).

TC 35/94, it must be pointed out that the subject of that decision was

the assessment of material compliance declaration for Cultural Affairs

memory with the article. 11 of the Charter, but not the question of the exclusion of the General editing

the administrative procedure without its replacement by editing the special.



The High Court in Prague in its judgment of 30 March 2004. August 2001, SP. zn. 7 and

13/99 concluded, according to which "from the fact that law No. 20/1987

Coll., on State heritage preservation, does not allow when saying things behind

cultural attractions, an appeal against this decision (§ 3 and §

44 of the Act), you cannot even deduce a contradiction of this law with the Constitution or with

international treaties, in particular with article 6 of the Convention ", since

"the opportunity to discuss the matter to an independent body, according to that article 6

The Convention (in the Czech Republic by a court), moreover, Act No. 20/1987

Coll. does not exclude ". In General, then, for the proceedings for a declaration of Cultural Affairs

Monument the Court held conclusion, according to which "even though the provisions of § 44

Law No. 20/1987 Coll. on State care monument, for the management of

saying things behind the cultural monuments (§ 3 of the law) the use of the administrative

code, the administrative authority in that management ensure the fundamental principles of

the administrative procedure. "



The Supreme Administrative Court in its judgment of 28 June. April 2004 sp.

Zn. 6 and 106/2002 to the opposition, the applicant, according to which legislation statement

things a cultural monument is very fragmentary and excludes the use of the administrative

the order, to refer to the legal opinion contained in the judgment in the High Court in

Prague of 30 May. August 2001 No. 7 and 13/99-28. In Mr. things because

He considered relevant, not the very fact that the defendant

(Ministry of culture) followed by the code of administrative procedure, but whether

respect the rights of the owner of the House (i.e. the applicant)

located in support the basic principles of the administrative procedure. In this

the direction of the Supreme Administrative Court found that the defendant the plaintiff in writing

understand about the filing of the application for a declaration of the House for the cultural heritage (§ 3

paragraph. 2 of the law on national heritage preservation), enabled him to exercise his

arguments and present evidence that subsequently in duly coped,

therefore drew the conclusion that the defendant respecting the basic principles of administrative

control.



The Constitutional Court in its case-law was also to the question of the constitutionality of

the system of appeals. In finding SP. zn. PL. ÚS 15/01 (collection

the decision, volume 24, finding no. 164; promulgated under no. 424/2001 Coll.) in

this context, said: "the system of review of instances is the result

measurement on the one hand, efforts to achieve the rights of estates, on the side

Second, the efficiency of decision making and legal certainty. " The Constitutional Court therefore

shares the opinion of the High Court in Prague, according to which the absence of the two

instance in the administrative procedure when by reason of judicial review without further

does not constitute a contradiction such procedural adjustments with kautelami contained in the article.

and in article 6 of the Convention. 36 of the Charter (illustrations of this in the field of legal maxims

control is the unconstitutionality of the so-called. surprising decision that the exclusion of

dvojinstančnosti deprive parties of the facts and legal rights

argue [see findings SP. zn. III. TC 139/98, SP. zn. I. ÚS 336/99,

SP. zn. III. TC 377/01, SP. zn. II. TC 532/02, SP. zn i. TC 220/04

(A collection of decisions, volume 12, finding no. 106; volume 25, finding no 5;

Volume 24, finding no. 197; volume 34, finding no. 129) and others]. From

opinion, according to which the absence of dvojinstančnosti of the administrative procedure

the unconstitutionality without further does not constitute, imply but the conclusion, according to which the

conflict with the constitutional order as a result of such a finding shall not constitute

or exclusions of General provisions of administrative procedure related to the absence of

special legislation. The reason for this distinction is the fact that the absence of

dvojinstančního procedure without further does not result in the unconstitutionality of the

If an explicit edit of the administrative procedure, and subject to

the present case is the constitutionality of the absence of an explicit modification of the administrative procedure

in its entirety.



In both of those judikátech is further noted, according to which in

the absence of an explicit modification of the administrative procedure is the administrative authority

must consider the basic principles of administrative procedure, and these are

traceable not only of the doctrine, but also the aposteriorně of the case law


review the decision of the administrative court proceedings.



The argument is based on the ideas of the unwritten modifications of the complex

procedural law. This concept, however, is contradictory with the constitutional maximou, according

which State power can be exercised only in a manner that lays down the law (article 2

paragraph. 3 of the Constitution, article. 2 (2). 2 of the Charter). The maximum legal basis for

the exercise of State authority, and the written procedural law does not exclude its

completion of the case-law. the decisions of the administrative authorities,

but the absence of an explicit constitutional reasonableness statutory procedural

Edit in its entirety.



The absence of procedural adjustments to the administrative procedure to the decision-making activities

the administrative authorities and the case-law of the courts to compensate for the use of the analogy.

The doctrine takes but a very ambiguous in this context to the opinion.

Petr Průcha analogy in generality refuses to: "for the application and interpretation of the

standards of administrative law, the use of the analogy for them is not an option

account, which, in a way shows directly from their nature. " (P.,

Administrative law. General part. Brno 2003, p. 70). Reticent attitude to

analogy in administrative law holds and Petr Hajn: "analogy as

legal Institute is used to blocking out the gaps in the law and, in particular, shall apply in

Law Act. In the public law and in the administrative procedure in applying

This Institute we need to store a great deal of reservation. " (P. Hajn,

The analogy as a legal Institute and as a way of reasoning. A few comments

the analogy in law (not only) administrative. A lawyer, no 2, 2003, p. 123). With

regard to the article. 2 (2). 3 of the Constitution and article. 2 (2). 2 of the Charter of Milan Kindl

formulates the principle according to which "the analogy in the public law cannot be used in

detriment of the person who the executor is not a "public authority, implying

that "can be used in its favour" (m. Kindl, a little reflection on the analogy of the

in the public law. A lawyer, no 2, 2003, p. 133). A similar opinion

as Vladimir Sladecek: "it may seem that space for use

analogy in the administrative or public law is hopelessly limited or

rather completely emptied by enshrining the constitutional principles-limits

the application of the public (State) can (particularly article 2, paragraph 3, of the Constitution, article 2

paragraph. 2 and article. 4 (4). 1 of the Charter)..., it does not mean the bare the inability of

its applications, though would probably not be the phenomenon of frequent use.

analogy analogy of law or rights in administrative law (whether tangible

or procedural) comes into account when bring a (unique)

benefit of a party or a legal relation of administrative law. " (In the.

Sládeček, general administrative law. Prague 2005, p. 130). According To Vladimir

Vopálky "If the adjustment is insufficient, have no choice but to lean by

analogies and some institutes of administrative procedure, unless the nature of the

the matter does not preclude, and about the General principles of administrative (procedural) law (D.

Hendrych et al., administrative law. General part. 5. vyd., Prague, 2003, s.

359).



Even from the outlined list of opinions, in all of their doktrinárních

the ambiguity can be inferred, according to which if permitted at all

the doctrine of the use of the analogy in the scope of the administrative procedure, then only for

restrictive conditions-only for limited purposes, with a view to filling out

procedural gaps and further editing only in favour of the protection of the rights of participants

the administrative procedure. Cannot be of such opinions inferred, but according to the

which can be considered as acceptable by using analogy

create the procedural arrangements for the administrative procedure, in all its completeness.



The legal opinion of the Constitutional Court in sentencing the already award SP. zn. Pl. ÚS

14/96 is therefore matches well with the General implications of the advice doktrinárních.



The appellant finally argues against the proposal of the highest merits test

Administrative Court, claiming, according to which the exclusion of General editing of administrative

When deciding on a management statement of affairs for the cultural heritage does not

results in the complete absence of statutory procedural modifications, since the provisions of the

§ 3 of the law No 20/1987 Coll., as amended, as well as section 1 of the

Decree No. 66/1988 Coll., as amended by Decree No 538/2002 Coll., in this

the context of the specific clauses shall specify.



According to § 3 (2). 2 of the State Ministry of culture heritage preservation

shall notify the owner in writing things about making an application for a declaration for

cultural heritage, or that it intends to declare the matter a cultural monument

on its own initiative and allow him to comment on the proposal or initiative. In

paragraph 4 of that statute is provided for the obligation to

The Ministry of culture about the Declaration in writing things for cultural heritage

its owner, regional office, municipal office municipality with extended

the competencies and professional organization for State historic preservation and

Archaeological findings also inform the Academy of Sciences of the Czech Republic; This

the obligation for the Ministry also applies in this case, the neshledalo reasons

for things as a cultural asset. The following paragraph 5

establishes an obligation on the owner of the synergies in the provision of

relevant information to the Ministry for the purpose of saying things behind

cultural monuments and, eventually, paragraph 6 the provisions of the law on State

heritage preservation includes a link to more detailed procedural adjustment

a general law. For such a participant sees the provision of section then

1 of Decree No 66/1988 Coll., as amended by Decree No 538/2002 Coll., according

the Ministry of culture declares the immovable and movable property,

where applicable, their files for the cultural heritage of its own or other

initiative, prior to the Declaration of the matter as a cultural asset in addition to may's

representation according to § 3 (2). 1 of the request and the opinion of the expert,

Scientific and artistic organizations and laid down in it are

for details on the required synergy owner according to § 3 (2). 5 of the law on

State heritage preservation.



However the provisions of § 3 of the law on national heritage preservation includes some

procedural standards, from the perspective of the overall content of the adjustment of the administrative procedure as

only on the torso, so the minimum part of this edit, which in

any way cannot claim completeness (with any ambition

the presence of certain spaces). The provisions of § 1 of Decree No 66/1988 Coll., on

amended by Decree No 538/2002 Coll., then it does not meet the requirement arising from article.

2 (2). 2 of the Constitution and article. 2 (2). 2 of the Charter regarding the legal force of the legal

the regulation, which sets out how the application of State power.



Therefore, since even fragmentary editing that is contained in the provisions of § 3 of the law on State

heritage preservation does not alter the fundamental absence of special editing control in

deciding on the Declaration things for cultural monuments (after excluding

the scope of the General editing administrative procedure), it is not this fragmentary legal

Edit with it to reverse the finding of a violation of the provisions of section 44 of the Act No. 20/1987

Coll., in part expressed by the term "3.0" with the article. 2 (2). 3 of the Constitution and article. 2

paragraph. 2 of the Charter.



On the basis of the following reasons, landed should be considered as the exclusion of the General

Edit the administrative procedure when making decisions about things as a cultural statement

sights in rozpornou with article. 11 (1) 1 and article. 1 of the additional protocol to the

The Convention in conjunction with article. 4 (4). 4 of the Charter, as well as with the article. 2 (2). 3

Of the Constitution and article. 2 (2). 2 of the Charter.



For the Constitutional Court on the date of publication of this finding in the collection of laws

the provisions of § 44 of law No. 20/1987 Coll., in part expressed by the term "3.0"

set aside.



The President of the Constitutional Court:



JUDr. Rychetský v.r.