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Airport Prague Ruzyně, is repealed on the date of publication of this finding in the collection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