In The Matter Of An Application For Annulment Of Law No 544/2005 Sb.

Original Language Title: ve věci návrhu na zrušení zákona č. 544/2005 Sb.

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124/2009 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 17. March 2009 in Parliament consisting of the President of the

Paul Rychetského and judges of Stanislav Duchoně, František Bumpkin, Vlasta

Formánkové, Vojena Güttlera, Paul Holländera, Ivana Janů, Vladimir

The Crust, Dagmar Lastovecké, Jiří Mucha, Jan Musil, Jiří Nykodýma,

Miloslav Excellent, Michaela Wagner and Elizabeth Židlické of design

a group of Senators Senate of the Parliament of the Czech Republic for annulment of the law No.

544/2005 Coll., on the construction of runway 06R-24 l Airport

Prague Ruzyne Airport, with the participation of the Chamber of Deputies and the Senate of the Czech

States as parties to the proceedings,



as follows:



Act No. 545/2005 Coll., on the construction of runway 06R-24 l

Airport Prague Ruzyně, is repealed on the date of publication of this finding in the collection

laws.



Justification



(I).



1. On 24. 6.2008 the Constitutional Court was instituted 17 Senators Senate

Parliament of the Czech Republic, which is later joined by the other

Senator, Karel Schwarzenberg (hereinafter referred to as "appellants"), on the abolition of

Act No. 545/2005 Coll., on the construction of runway 06R-24 l

Prague Ruzyne Airport (hereinafter referred to as "the contested act"), for his conflict with the

article. 1, art. 2 (2). 1 and 3, article. 81 and article. 90 of the Constitution, article. 11 and article. 36

The Charter of fundamental rights and freedoms ("the Charter").



2. first, the appellants argue the nature of the contested act with

the principle of the separation of powers and rules of the democratic rule of law pursuant to art. 2

paragraph. 3 of the Constitution. According to the plaintiffs, the principle of the separation of powers is an essential

the building block of a democratic rule of law. The Constitution (article 2, paragraph 1.

3) shows that the individual would be able to get into their scope should

to intervene. The legislative power falls under art. 15 of the Constitution, the Parliament and the

activities fulfilling this article cannot be understood as anything other than the creation of

legislation, laws. The law should be such an act of public authority,

that generally governs relationships on which circuit turns out. The issue of

the generality of the rule of law as its base character, is no longer a constitutional

the Court dealt with, for example. in finding SP. zn. PL. ÚS 55/2000 of 18.4.2001 (N

62/22 SbNU 55; 241/2001 Coll.) ^*. The law on the landing and take-off runway,

runs out in an instant (the realisation of specific buildings). The legislature

chose such an approach to legislation that completely undermines the principles of

recognized for the creation of rights. In essence, then, to Parliament

undermines the principles of the democratic rule of law. Such a procedure would be

Perhaps at the time justified the historical fault lines of social development,

but not in terms of a stable free society. Inadmissibility

such a solution is especially revealing when taken ad absurdum vision

other similar legislation. Generality of law in theory

making the law defines as the generality of what the legal standards in the subject line and

the addressees of the legal standards. Obecností in the subject of legislation is

means that the legal standard defines its offence in General. Legal

a prescription may not address the specific individual cases, but to lay down

rules for repeated procedures or going on. The subject of the contested act in section

1 is defined uniquely, not in General, all the issues addressed in it

fall only on a specific runway. By this Act,

losing the characters Act and the requirements of the individual conceptually gets

Act, typically the decision. The decision, however, can only issue

the Executive, not the legislature, which, inter alia, of the constitutional principles,

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

provided by law. This direct inadmissible interference on the constitutional level

In addition, also reflected in a specific administrative procedure-national.

Expropriation is only possible on the basis of the law, in this case, for the purposes of

referred to in § 170. No. 183/2006 Coll. on territorial planning and building

procedure (construction law), and in accordance with the Act. No 184/2006 Coll., on

the withdrawal or restriction of ownership rights to the land or the building (law

of expropriation). Last cited the law in ust. § 3 para. 1 provides that

expropriation is permissible only if the public interest in achieving the purpose of

expropriation outweighs maintaining the existing rights of the vyvlastňovaného.

According to the provisions. section 4, paragraph 4. 2 of the Act. No 184/2006 Coll., on public interest must be

expropriation expropriation proceedings shown in. However, the administrative authority in the

the case of the procedure according to the contested act does not have for its administrative discretion

no space. The legislature structures § 1 in conjunction with § 2 (2). 5

the contested law is already the de facto vyvlastnil property located in

area needed for the construction of a runway. The provisions of §

2 (2). 5 the contested act then provides that the public interest in

the expropriation of land, buildings and rights thereto for the construction of the runway and

the runway is in the expropriation proceedings by reference to this

the law. Weighing the public interest in the expropriation proceedings is but his

essential part of the exclusive powers of the national Office and, therefore,

the Executive authority. Known legal structures, the Parliament's atrahoval

the performance of the national authority's powers and so essentially to

the role of the superior executive body, but not according to the Constitution and be

cannot.



3. The appellants also argue the nature of the contested act, the right to

judicial review (article 36 of the Charter), art. 81 and article. 90 of the Constitution, and also

contradiction with article. 11 of the Charter. The contested law in § 2 paragraph 1. 4 bans

administrative authority proceedings in order to resolve civil law objection

other questions or solutions. The Office building or expropriation

interrupts, if such objection, and asks the participant to

bringing an action. The contested Law's judicial review of the civil

the opposition does not prohibit, but de facto judicial review or at least its

efficiency makes it impossible. The Court comes to the conclusion and judgement, the

no longer takeoff and landing strip at least under construction and ownership

of the property owner irrevocably have trampled underfoot. Specifically,

the decision on expropriation is an actionable claim with suspensive effect of

the Act (section 28 (3) of Act No. 184/2006 Coll.). However, even this solution

may not afford sufficient legal protection of property rights, as

Thanks to unclear ownership conditions may not be affected to the

actively open to the bringing of the action. Another problem, which in the case of

judicial review of a decision made on the basis of the contested act

the question is the scope of this review. Due to the fact that

the legislature beyond its powers by establishing the take-off and landing

the track for the construction in the public interest, it does not deal with the Administrative Tribunal of the

the question of whether the administrative authority of the nevybočil framework for administrative

discretion, therefore, correctly assessed the superiority of public interest over the interest of the

a specific owner. The consistency of the decisions of the law is given only

the fact that the administrative authority referred to the contested Law, without the thing

the judge in the particular case.



II.



4. The Chamber of deputies in its observations of 3 November. 3.2009 only describe

procedure for adoption of the contested act that was adopted after duly

completion of the legislative process, signed by the respective constitutional

agents and proclaimed in the statute book.



5. The Senate in its observations of 26 July. 2.2009 stated that the Committee on the

economy, agriculture and transport, such as the Committee of guarantee, and the Committee

recommended by the Constitutional Chamber rejected the Bill. The two committees

was accented by the view that the legislation under consideration by the introduction of the Special

the procedure against the owners of the land affected by the law designated buildings

is not fully compliant with article. 11 (1) 1 of the Charter. The right of ownership of such

operators will take other content and protection than the right of ownership

the bodies of others. The rights of the parties, will be significantly modified in the

comparison with the rights of the parties to the proceedings relating to the "normal" traffic

buildings, where it will be proceeded according to the General regulations. From this can be

draw the weakening of the principle of equality of citizens before the law under article. 1

Of the Charter. The committees also found violation of the constitutional separation of powers between the power

legislative and Executive, as defined in the second and third head of the Constitution.

The law States that the works are carried out in the public interest and

When any such conclusion should be based on the General rules to the result

individual assessment of all interests in the territory by the competent

of the administrative authorities. By the established legal order are eliminated

procedures, while the excluded the possibility of a review of the administrative

the discretion of the an independent court in administrative justice, čímže is limited and

the right to judicial protection guaranteed by article. 36 of the Charter. The assessment of the possible

contrary to the contested law with article. 1 (1). 1, art. 2 (2). 1 and 3, article. 81, and

article. 90 of the Constitution and article. 11 and article. 36 of the Charter leaves it to the discretion of the Senate

Of the Constitutional Court.



III.



6. In view of the fact that the parties have agreed to drop from the

an oral hearing, and the Constitutional Court considers that, since the meeting cannot be expected

further clarification of the matter, the conditions were met to the Constitutional Court in the


the case decided without oral proceedings (section 44 (2) of law No.

182/1993 Coll., on the Constitutional Court).



IV.



7. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the Act on the constitutional

Court to assess whether the law, whose provisions is assessed in terms of

constitutionality, was accepted and published within the limits of the Constitution laid down the competence and

constitutionally prescribed way.



8. From the Council prints and těsnopiseckých messages, as well as the observations of the

Parties to the proceedings, the Constitutional Court found that the Chamber of Deputies approved the

He contested the law proposal by the House to print no 160 on your

48. the meeting on 26 April. 10.2005 the necessary majority of votes of the members. A proposal from the

the Bill was referred to the Senate, which did not adopt a resolution to it. He was then

the contested law signed and duly promulgated in the collection of laws on the amount of 186

under no 544/2005 Sb.; effectiveness has acquired on 30 April 2005. 12.2005. The contested Law

so was received constitutionally in the prescribed manner and within the limits of the Constitution

provided for competencies in compliance with the rules laid down in article 4(1). paragraph 39. 1

and (2) of the Constitution.



9. The Constitutional Court notes that the proposal meets all the requirements

provided for by the law on the Constitutional Court and nothing to prevent its consideration of a Chamber of

Of the Constitutional Court.



In the.



10. The contested act, as amended, contains this text:



"545/2005 Coll.



LAW



on 2 December. December 2005



on the construction of runway 06R-24 l Airport Prague Ruzyne



Parliament has passed the following Act of the United States:



§ 1



The public interest



Takeoff and landing runway 06R-24 l Prague Airport Ruzyně

corresponding to its location to a valid zoning plan of the capital city

Prague and spatial plan of the city of London force, and all of the construction,

that will be in the area of technical infrastructure to ensure its operation

(hereinafter referred to as "takeoff and landing strip"), are the public interest ^ 1).



§ 2



(1) in matters of administrative proceedings concerning the construction of the runway and

the runway, the limit for the procedures provided for by a specific legislative

regulations ^ 2) reduce by half. If the period is given by an odd number of days,

shall expire on the day following the date on which the accounts for half of the

the time limits.



(2) in all administrative proceedings, as well as other activities related to the

construction of the runways and do not require the competent administrative authorities

opinions from those of the concerned authorities that have submitted their views in

earlier stages of the preparations for the construction of the runway.



(3) the administrative procedure concerning the construction of the runway cannot be

break



and) for the reasons referred to in § 137 of paragraph 1. 1 and 2 to the building Act,



(b)) for the reasons given in § 64 para. 1 (b). (c)) of the administrative code,



(c)) under section 64 para. 2 and 3 of the administrative code.



(4) if it would otherwise be a reason for discontinuation of the administrative procedure assessment

civil or other objections under a special legal regulation ^ 3)

or assessment of the preliminary ruling according to the code of administrative procedure, which legally

the competent authority shall take a decision yet about them a competent administrative authority

own judgment without regard to the possibility of initiating proceedings in the

the Court or other authority, and on the opposition without delay. Filed by

appeal against a decision does not have suspensory effect.



(5) in proceedings for compulsory purchase of land, buildings and rights to them needed to

the construction of the runway for the failure to achieve agreement in accordance with

special legal regulation ^ 4) considers its absence within 30 days from

date of receipt of the offer with a proposal for compensation for compulsory purchase for the price in and

the usual time. The public interest on the expropriation of land, buildings, and rights

them for the construction of a runway in the expropriation proceedings

demonstrated by reference to this law.



§ 3



Transitional and final provisions



(1) the provisions of paragraphs 1 and 2 shall apply mutatis mutandis to the procedures for issuing

opinions and observations to build runways and that

are not subject to administrative proceedings.



(2) the administrative proceedings initiated before the date of entry into force of this Act

shall be completed according to the existing legislation.



(3) unless otherwise provided for in this law shall apply to the proceedings in the

matters of building runways and a special law ^ 5), construction

law and administrative regulations.



§ 4



The effectiveness of the



This Act shall take effect on the date of its publication.



Fort Worth Star Telegram in r.



Klaus r.



Paroubek in r.



1) Article. 11 (1) 4 of the Charter of fundamental rights and freedoms.



§ 108 paragraph. 2 (a). a) and f) of Act No. 50/1976 Coll., on urban planning

and the building code (the building Act), as amended.



2) for example, Act No. 500/2004 Coll., the administrative code, Act No. 50/1976 Coll.

in the wording of later regulations.



3) § 137 of Act No. 50/1976 Coll., as amended.



4) § 110 paragraph 2. 1 Act No. 50/1976 Sb.



5) Act No. 49/1997 Coll., on Civil Aviation, and amending and supplementing

Act No. 455/1991 Coll., on trades (Trade Act),

as amended. "



Vi.



11. The Constitutional Court due to scheme of the first assessed the constitutional

§ 1 of the law conformity.



Similar to the issue with the Constitutional Court already dealt with, specifically in the

things SP. zn. PL. ÚS 24/04 [find of 28.6.2005 (N 130/37 SbNU 641;

327/2005 Coll.)], in which it was challenged by the provisions of § 3a of Act No.

114/1995 Coll. on inland navigation, as amended, by

which was true: "the development and modernization of the waterway as defined by water

the Elbe flows from RKM 129.1 (Pardubice), on the border with

The Federal Republic of Germany and the water flow of the Vltava River from RKM 91.5

(Score from 19 reviews), including the Canal Vraňany-Hořín after confluence with water

the Elbe flows including the výústní part of the water flow of the Berounka river after the port

Radotín, is in the public interest. " The Constitutional Court finding this feeling.

provisions set aside, with mj. the Court held that "the demonstration of the public

interest is necessary in the event of expropriation or compulsory restrictions

of proprietary rights according to art. 11 (1) 4 of the Charter and of the follow-up

the provisions of § 108 of Act No 50/1976 SB. the building Act, as amended by

amended. Having regard to the original text of the contested provisions

It is also also appropriate to cite the provisions of § 43 of Act No. 114/1992 Coll., on the

nature and landscape protection, as amended: "exceptions to the

the prohibition on specially protected territories according to § 16, 26, 29, 34, § 35 para.

2, § 36 odst. 2, § 45 h and 45i in cases where public interest in significantly

outweighs the interest of nature protection permits in each individual

the case of its decision to the Government ". The contested provisions of § 3a of the Act on

IWT therefore excludes, to the administrative authority in the administrative procedure

He found the public interest in the development and modernisation of the waterways in question,

Since this is already specified by this law. Such a solution, IE.

declaring the public interest in the particular case, the law specified

The Constitutional Court ruled unconstitutional ... The public interest in a particular case, it is

discovered during the administrative procedure on the basis of measurement

various vested interests, after considering all the contradictions and

of the comments. Of the reasons for the decision, whose focal point is the question of

the existence of public interest, then it must clearly demonstrate why public

the interest of a number of private, prevail over vested interests. Public

interest is to be found in the process of deciding on the specific question (typically

for example. about dispossession) and cannot be in a particular case to lay down a priori.

For these reasons, the public interest discovery in a particular case

Typically, the powers of the Executive, not the legislative. Of the contested

provisions of the Act could not determine the reason for which the legislator admitted

the development and modernisation of the specifically defined the status of public waterways

interest whether he found any conflicting interests and their

the existence of a settled. It is clear that these circumstances neither figure

You cannot, as the legislative process is not equipped with a means of assessing the

individual cases with all their contexts and consequences ...

By the contested provision, not only for the intervention of the legislative power to be able to

It was powerful, but limited the right to judicial review. Any

administrative decisions (e.g. on expropriation), made in the context of the

the construction and modernization of the waterway, will

subject to review by the Court in the context of the administrative judiciary, but out of this

the review will be excluded the question of the existence of public interest, as it is

already established by law, which are the general courts pursuant to article 95 para. 1

The Constitution bound. In the absence of the contested provisions, General

the courts may have to examine whether the administrative authorities in the application of fundamental theorems

the legal concept of "public interest" in a particular situation does not exceed the law

set out the limits of administrative discretion (cf. § 78 para. 1 of the code of civil procedure

administrative); However, the contested legislation excludes de facto-Although

judicial review of the contested provision does not completely eliminated, it is his

restriction severe enough that the conclusions expressed in the cited award fully

impact also on the case. Given the above arguments is

The Constitutional Court considered that the contested provision § 3a of the Act on Inland


navigation is incompatible with the principles of the rule of law, in particular with the principle of

separation of powers, and is in breach of article. 1, art. 2 (2). 1 and 3, article. 81 and article. 90

The Constitution, and also article. 36 of the Charter. From the perspective of the indicated constitutional technique

It seems, therefore, the proposal to repeal the provisions of § 3a of the Act on Inland

voyage of reason. "



12. With regard to the argument and conclusions that turn out Similarly

in the case of § 1 of the Act, while the Constitutional Court did not find the reason

departed, for brevity, it is sufficient to refer to the judgment and

to the conclusion that paragraph 1 of the contested act is incompatible with the principles of

the rule of law, in particular with the principle of separation of powers, and is in breach of article. 1,

article. 2 (2). 1 and 3, article. 81 and article. 90 of the Constitution, as well as with the law on the Court of

review pursuant to art. 36 of the Charter. A proposal for its abolition therefore found

reason.



13. the Constitutional Court notes that Parliament was when discussing

the contested law to be notified of its unconstitutionality. Find SP. zn. PL.

TC 24/04 was already known at the time of its adoption, and already in the first reading

the design of the contested act were alerted to it members of the Knesset

Jiří Pospíšil, which reproduce at second reading the content of the cited

findings and concluded that mj. Article 1 of the contested act is unconstitutional. Similarly,

She appeared in a debate and MEP Eva Dundáčková. Indeed, the Government already in

your negative opinion on the proposal of the contested act referred to

the unconstitutionality of mj. its section 1. With the arguments leading to the Constitutional Court

the conclusion in that finding, however, none of the members of the essentially

nor did not attempt to relevantly (i.e. in a constitutionally legal plane) in the debate

deal, therefore you cannot. concluded that there was "only" a different

erosion of constitutionally defensible legal opinion as a reason or disobey any is

cited findings of the Constitutional Court.



The Senate then over everything indicated to the design of the contested act did not adopt

the resolution, with its Constitutional Committee and the Committee for economy,

Agriculture and transport have adopted a resolution which recommended the Senate

rejection of the application of the contested act.



President of the Republic has not used the law of return adopted by the Institute of law

The Chamber of Deputies, as the article predicts. 50 para. 1 of the Constitution, and the affected

the law he signed.



14. The Constitutional Court of appeals to the legislative power to make up for



futuro

more consistently addressed the constitutional souladností this case, bills, and

especially in a situation of an existing case-law of the Constitutional Court, which is

even in resolutions during the legislative process.



VII.



15. In the previous point of argument and cited the conclusion of section 1 of the

the law turns out Similarly also to § 2 (2). 5 in fine, according to which:

"The public interest on the expropriation of land, buildings and rights thereto for the construction

runway in expropriation proceedings by reference

to this law. " Therefore, the Constitutional Court annulled as unconstitutional and this

provisions.



VIII.



16. As regards the remaining provisions from their incidental nature

in relation to the cancelled the provisions of section 1 of the contested Law, which as

the only sufficiently instantiates the construction, on which the contested Law

the need to apply their repeal, as their mere

the canonical existence would lose a reasonable sense, it would not be in practice

applicable. For their abolishment also leads the following

the unconstitutionality.



17. The common denominator of these provisions is that the previous substantive

argumentation and conclusions (i.e. a specific anchorage legal aspect

public interest) on their case doesn't work, because they are not

public-interest declaration contained in specifically designed things by law. It comes

"only" about certain procedural rules derogating from the General

the procedural rules laid down in the legislation correctly.



18. The appellants argue that the provisions of the contested

law derogating from General editing, modify a unique case, which

out at the same time from one of the fundamental character of the concept of material

the law, which is universality. That in itself should have according to the plaintiffs in

effect of the unconstitutionality of such law.



19. If the Constitutional Court accepted that argument of the complainants,

It would mean that any legislation the unique case

imply unconstitutionality. However, the Constitutional Court in its case-law

[cf. find SP. zn. PL. ÚS 12/02 dated 19.3.2003 (N 20/29 SbNU 167;

83/2003 Coll.)] to formulate the conditions for exceptions that must be met

would be possible to consider the constitutionality of the law governing unique (IE.

particular case, therefore) meeting, provided that the law relating to the

the unique case does not constitute a breach of the principle of equality. Point of view,

that should be tested first, the criterion of assessment of the constitutionality of the State

neakcesorickou-based inequality: "the principle of equality, however, does not offer

bland real limitation laws relating to the unique case,

because it allows you to make something unique and exceptional

be treated to suit its peculiarities. The question is whether, in a given

If there really is such a peculiarity that seems to the General

the arrangement of the arbitrary and regulation for the unique case of reasonable. To the extent that

that is the law relating to the unique case expression ratia-no

the mere



voluntas

-to be included in the organized structure of the rule of law. " (H. Schneider,

Gesetzgebung, 2. Auflage, Heidelberg 1991, p. 31). If the adoption of the law

concerning the unique case is not the term voluntas (will),

Therefore it must be the rational arguments. It is not part of the

the powers of the Constitutional Court to assess the degree of rationality. Point of view

the second is represented by criterion assessment of the constitutionality of State based

incidental inequalities; It is the inadmissibility of inequality, which has

result in prejudice to the constitutional rights and freedoms.



20. From the perspective of the indicated constitutional maxim appears to be an application for revocation and

the provisions of § 2 (2). 1, 2, 3, 4 and 5 of the reason.



The legislature based them unjustified inequality, and has

view neakcesorické inequality, as she meets by the legislature

explicitly or implicitly expressed in the operative adjustment included

the purpose that could be regarded as an expression of ratia. Does not pick up as follows

no rational arguments in support of the conclusion, why just for the management of

(in the contested law regulated) building with regard to own one

specific character is to be given a different legal regime, i.e.. different

procedural standards (in comparison with the General arrangements). If the legislature

mean as a reason for a different control from the top of the analysis of the unique

the case in the public interest to accelerate the implementation of pertinent construction

through the shortening of the administrative procedure, as well could be

argued in relation to other construction, including the "normal" traffic

buildings, even of the same species (airports), or other public buildings

infrastructure, where it was but proceeded according to the General regulations. (I)

in such cases, it would be possible within a particular control to find

public interest in their implementation, which could be due to

declared an interest in speeding up their implementation. In addition, the above applies

that conclusion about the unconstitutionality of declaring the public interest by the contested

the law regulated the construction work, he may be constitutionally tested up to souladně

in the administrative procedure, which the logical consequence is that you cannot accept

nor in the public interest to accelerate the implementation of the public interest (cf.

the explanatory memorandum: "This means that not only the construction of the VPD is in itself

the public interest, but it is in the public interest and a significant acceleration of its

realization. ").



The cited provisions of the contested act fails to pass or criterion

incidental inequalities, as they give rise to inequality, which has resulted in a

prejudice to the fundamental rights and freedoms, specifically the article. 11 (1) 1 the second sentence

Of the Charter, according to which the right of ownership of all owners has the same legal

the contents and protection. Influence of shortening the time-limits in the administrative procedure, the exclusion of

some common procedural institutes (e.g. interruption of proceedings) and

modification of the General procedure national procedure title

the right structures of the parties concerned will take as a result of other protection than that of the

the right of ownership entities other buildings untouched.



IX.



21. The Constitutional Court concludes that the contested act is in breach of article. 1, art.

11 (1) 1, second sentence, article. 36 and article. 37 para. 3 of the Charter, as well as with the article.

1, art. 2 (2). 1 and 3, article. 81 and article. 90 of the Constitution. The Constitutional Court found

proposal for a reason, and therefore annulled the contested law.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 22, find

# 62, page 55, under no. 241/2001 Coll.

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