265/2008 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 22 November. January 2008 in the plenary, consisting of the President of the
Paul Rychetského and the judges of the Court of Stanislav Duchoně, Bumpkin, Franz
Vlasta Formánkové, Vojena Güttlera, Ivana Janů, Vladimir Crust, Dagmar
Lastovecké, Jan Jiří Musil, Nykodýma, Miloslava Excellent and
Michaela Židlické on the proposal for a group of Senators of the Senate of the CZECH REPUBLIC,
represented by JUDr. Vladimir Jirouskem, a lawyer based in Ostrava,
on the cancellation of part of the provisions of § 37 para. 5 of law No 44/1988 Coll., on
the protection and utilization of mineral resources (Mining Act), as amended by
Act No. 386/2005 Coll., amending Act No. 44/1988 Coll., on the protection of
and the use of mineral wealth (the top Act), as amended
regulations, and Act No. 61/1988 Coll. on mining activities, explosives and
the State Mining Administration, as amended, with the participation of
The Chamber of deputies of the Czech Parliament, the Senate, and as
the parties,
as follows:
The proposal is rejected.
Justification
(I).
The definition of things, and the argument of the appellants
1. A group of Senators of the Senate of the Czech Republic presented the Constitutional Court
the proposal to repeal section of Act No. 44/1988 Coll., on the protection and use of
mineral resources (hereinafter referred to as "top Act"), and in particular its
the provisions of § 37 para. 5, the second and third sentences of this Act that contains
how you can determine the amount of reimbursement of mining damage. The impugned legislation
in cases where the organization performing the mining
the owner of the damaged stuff on how the compensation has been agreed, to establish
the amount of the compensation expert opinion, with the calculated amount of not
begun about the marketability of the coefficient is less than one. The appellants
consider that the contested legislation is contrary to the content of the Charter of fundamental
rights and freedoms ("the Charter"). According to them, specifically infringes
the principle of equality contained in the article. 1, and the principle of the same statutory content
of property rights contained in the article. 11 (1) 1 of the Charter, and also
does not respect the rules of fair trial enshrined in article. 36 et seq.
Of the Charter.
2. The petitioner contested form of § 37 para. won 5 the Mining Act in
as a result of the amendment made by Act No. 386/2005 Coll., which varied
Act No. 44/1988 Coll., on the protection and utilization of mineral resources (upper
Act), as amended by later regulations, and Act No. 61/1988 Coll., on
mining activities, explosives and the State Mining Administration, as amended by
amended (hereinafter "law no 386/2005 Coll.). The appellants
point out that the contested legal text in the governmental draft Bill
got as a group of the amendment and the Senate have already criticized it in
during the legislative process. Act No. 386/2005 Coll. also returned
The Chamber of Deputies with amendments, among other things, a proposal to
deletion now contested text. The Chamber of Deputies, however, continued to
originally approved wording.
3. first, the appellants are reminiscent of the opposition against the
the provisions at issue raised during the discussion of the draft law in the
The Senate. The Senators pointed to the editing of nesystémovost
the obligation to establish the amount of the compensation expert opinion. In the first place was
omitted reference to the legislation, according to which there should be such a
the opinion drawn up, when Act No. 151/1997 Coll., on the valuation of assets and
on amendments to certain laws (hereinafter the ' law on the valuation of assets "), with
regard to the first sentence of his diction § 1, which reads "the law regulates ways
the valuation of goods, rights and other assets (hereinafter referred to as "property"), and
services for the purposes provided for by specific provisions ". Compared to the
the previous legislation regarding the method of compensation envisaged
the agreement of the organization performing the mining, and the owner of the
object without any obligations of the expert valuation, has been abandoned
the autonomy, as a basic principle of private law, and in addition, it also
by limiting the options of the observed prices of Horten coefficient of merchantability. The concept of
"coefficient of merchantability" then it is not even in the top Act at all
defined. The contested legislation by the Senate while avoiding increasing the
protection of property rights of the owners whose property is in the territory of
mining areas.
4. now follow the appellants referred to the reservation in a specific
no constitutional argument.
5. Interference with the principle of equality in the following.
Originally a mining damage compensation no special scheme should not;
unless the operator of mining activities with the victims, on the
compensation for damages in civil court proceedings, without, however, was limited
in the choice of evidence leading to determine the amount of damages and
their reviews, as is the case in the contested new law.
New legislation has established a privileged way of remedying only for
some concerned owners, because § 37 para. the top 5 of the Act applies to
damage to buildings or premises situated in the territory of the construction or
in the territory, where they can continue to manifest themselves over the long term effects of mining
activities, and construction or equipment, therefore, cannot be brought to the previous state.
These owners have a more advantageous position compared with those whose damaged
the case lies outside the building closure or in the territory where the effects of mining
activity to take effect only once or in the short term. It is also not the reason
discriminate between the owners of the affected mining activities compared to those who damage
caused the other operating activities. Unconstitutional inequality also creates
the exclusion of the use of the coefficient of merchantability, where it would lead to
reduce the price of the destroyed or damaged belongings. Used the term "coefficient
the marketability of "according to the plaintiffs ' does not conform to the traditional requirement
on the quality of the laws that should use the terms commonly known content and
explain any unfamiliar terms. The concept of "coefficient of merchantability"
does not match, because only the standard lower legal force-Decree of the Ministry of
Finance no 540/2002 Coll.-stipulates the amount and content basis, the
In addition, only not very clearly. Contested statutory provisions
assume that the coefficient is adjusted price calculated opinion, in
but expert must take account of the factors already in the determination
the price of things. Finally, the contested adjustment coefficient ignores how, MERCHANTABILITY
It is applicable only in the valuation of construction cost manner and cannot be
apply to the valuation performed by the way yield or a comparison.
6. Mandatory, requiring an expert opinion is in accordance with the
contrary to the rules of a fair trial. Without a rational reason,
by requiring the expert's report as evidence, which must be in control
for example, excludes the option is executed, decide the dispute for damages
judgment for the judgment or judgment for recognition, or the ability to
the Court satisfied itself only with professional representation of the amount of damages.
7. Artificial increase in the protection of property rights to some owners
(owners of the things on the territory of mining areas) to create differences
in the content and the intensity of the protection of ownership of individual entities. It is in the
contrary to how to Institute the ownership and protect accesses
The Charter.
II.
And substantial portions of the expression) Recapitulation of the parties
8. the constitutional court proceedings in accordance with the provisions of the
section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "law on the Constitutional Court"), the parties-
The Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
9. in its observations the Senate recalled that when discussing the draft
the amendment to the Act disagreed with the modification of the existing regime
refund of mining damage. The newly proposed solution at that time, the Senate considered
for non-system and the special purpose, which means, in effect, unacceptable
increasing the protection of property rights of the owners of the affected mining
activities. The Senate also pointed out that the amendment does not address how
compensation (in cash or in kind), but only to its size. Reproached
also, since there is inconsistency, who has the duty to ensure
preparation of the expert opinion and his remuneration. Referred to reservations
against the contested provision is of the Senate to continue, with the current
the appellants ' argument, with the following reservations with regard to a large extent
matches. Its assessment, however, leaves on the Constitutional Court.
10. The Chamber of deputies in the comments after a brief recap of the circumstances
consideration of the amendment to the Act stated that the Act No.
386/2005 Coll. was properly approved, signed by the competent
constitutional factors and properly declared. The aim of the contested provision was
strengthening the protection of owners of real property in a specific situation.
The petitioner explained the amendment so that it would not continue to take
the unequal status of the property owner and mining private
the company that its activities threatens the functionality of
real estate, in the case of demolition as the aftermath of mining
activity is the owner of the offered price of only a few dozen
percent of its estimated price, since the coefficient of merchantability. To
the alleged interference with the right to a fair trial, the Chamber of Deputies
States that require mandatory expert opinion to invoke cannot.
Disagree with the statement that neither the amendment unconstitutionally interferes with the content and
protection of property rights. On the contrary, new legislation on the protection of
for all owners of property rights, even if only in respect of certain laws
situations, increases. The impugned legislation does not distinguish between owners,
but between the legal situations in which the owners of the same
real estate find themselves. Its abolition would be the legal status of any
the owner did not improve, but some would have only made things worse, and for the other
remained unchanged. Therefore, the Chamber of Deputies for the consideration and
approval of the amendment to the Act in question has acted in the belief that
is in line with the constitutional order of the Czech Republic.
(B)) the opinion of the Czech Mining Authority
11. The Constitutional Court considered it appropriate to request the opinion delivered by the
the design of even the Czech mining Office (hereinafter referred to as "the authority"), as the Central
authority of State administration in the field of mining.
12. the Office first pointed out that the text of the contested provisions did not suggest,
and to the Mining Act was inserted as a result of initiatives in
discussing the Government's proposal for its amendment. In General, said the objections
the appellants, as it itself is also of the opinion that the provisions in question is in
contrary to the Charter and the law governing compensation for damage
raised by the nature of operational activities. Furthermore, the Office in brief
characterized the legal treatment of mining damage and liability rules
their replacements. In its view, there is no constitutionally Conformal
reason that the owners of the assets calculated in the provisions of § 37 para.
5 the Mining Act had a more advantageous position in the calculation of compensation for damages
than other bodies. The contested provision constructs inequality between
bodies of the victims of mining activities and bodies of victims of the activities of the
another, and, secondly, the conditions for the calculation of the refund less advantageous in
cases of damage incurred outside the territory of construction closures and territories where
influence of mining activity occurs only in the short term. To objections against
eliminate the possibility of use factor of merchantability is attached. As well
so the Office agrees with the applicant that the mandatory, requiring an expert
opinion is unwarranted interference in the exercise of judicial power. In this section,
considers the law unclear, because it is not specified which of the parties has
preparation of the expert opinion to ensure and to bear the associated costs.
13. Overall, the Bureau supported the proposal to have the Constitutional Court pointed to part of the law
set aside.
III.
The diction of the contested provisions
14. The contested part of the provisions of § 37 para. 5 of law No 44/1988 Coll., on
the protection and utilization of mineral resources, as follows:
"If both parties agree on the method of compensation, its
the amount of expert opinion. The amount of compensation thus calculated may not be
has been reduced by the factor of merchantability if its value is less than 1. "
IV.
Terms of locus standi of the petitioner, the constitutional conformity
the legislative process
15. a proposal for the cancellation of part of the provisions of § 37 para. 5 the Mining Act was
filed by a group of 17 Senators of the Senate of the Parliament of the Republic of Heské, and
Therefore, in accordance with the conditions contained in the provisions of § 64 para. 1 (b).
b) Act No. 182/1993 Coll., on the Constitutional Court, as amended
Regulations (hereinafter referred to as the "law on the Constitutional Court"). In this case, you can
Therefore the fulfillment of conditions of locus standi on the side
the petitioner.
16. The Constitutional Court is in accordance with the provisions of § 68 para. 1 of the law on
The Constitutional Court in proceedings for review of laws or other legislation
required to assess whether the legislation was adopted and issued
constitutionally prescribed way.
17. The contents of the proposal, the contents of the observations of the parties, as well as Web
pages of both houses of Parliament of the Czech Republic, it was found that the proposal
the amendment to the Act presented the Chamber of deputies of the Czech Government
of the Republic. The original Government proposal text, whose constitutional conformity is now
attacked, did not contain. Was included in the amendment of the MEP
Jaroslav Gongola. This amendment, designated as the D3, adopted
the lower Chamber during the hearing of the draft amendment to the Act in the third
reading on 24. 6.2005 92 167 MEPs from most of those present. By resolution of the
# 1753 approved the same day, the Chamber of Deputies and a private novel
the Mining Act, a majority of members from the present 160 167 against
the proposal did not vote no one.
18. The Senate forwarded a proposal discussed by the 28 June. 11.2005 and in resolution No.
most of the 57 181 66 present senators called for his return
The House of representatives with amendments.
19. The Chamber of Deputies returned the Bill discussed on 19 December. 8.
2005. A draft law in the version approved by the Senate, as it was not accepted for
It voted from 176 only 39 MPs, against the proposal then 58.
The lower Chamber then voted on the Bill, as amended by the Senate, a transferred
and so was mostly MEPs from 176 171 present adopted;
No one voted against the proposal.
20. the President of the Republic signed the Act on 9 April. 9.2005.
21. On 1 May 2004. 10.2005 was promulgated in the collection of laws on the amount of 133
under the number 386/2005 Sb.
22. The Constitutional Court notes that the adoption of the proposal and the issue of the contested
the statutory provisions has occurred in the prescribed manner.
In the.
Your own review
23. Prior to the actual assessment of the legislation still is needed to mention
the following fact. The Constitutional Court with discussion of the design and decision
He waited about him with regard to the communication from the President of the Chamber of Deputies,
made in the context of the answer to the proposal, according to which the Chamber of Deputies
currently discussed further government proposal to amend the Mining Act. To
the proposal was submitted to the amendment, which proposed the abolition of the same
the provisions of the Mining Act, that are now the subject of the examination of the constitutional
the Court. About other legislative developments no longer lower House Constitutional Court
did not inform. Since the text of the relevant provisions remained the top
the law unchanged, approached the Constitutional Court to the actual review.
24. the subject of the examination of the constitutional conformity, the appellants have made above
cited part of the provisions dealing with questions of compensation, and the amount of discovery
mining damage.
25. the Act regulates the issue of Top mining damage and compensation in the
their ninth section, paragraphs 36 and following. Mining damage are
in § 36 odst. 1 the Mining Act is defined as damage caused to the material
property search and exploration of the bearings, if mining is carried out
parts, mining deposits, through the establishment, provision and
disposal of mines and quarries, including their equipment, odvalovým,
výsypkovým and kept by the sludge holding organization, editing and enhancement
minerals, carried out in the context of their exploitation, as well as damage
caused by special interventions in the Earth's crust. According to the second paragraph of the same
provisions for them and a loss of surface water and groundwater,
a substantial reduction of the richness of their resources and the deterioration of its quality,
If it was as a result of the activities listed above. According to paragraph
the third principle for mining damage, except for specified exemptions, corresponds to the
the Organization, whose activities damage was caused; top law organizations
means the legal or natural person in the course of its business
activities carries out prospecting, exploration or mining of deposits
or other mining activity (Section 5a). The responsibility here is constructed
as an objective, the organisation is liberuje only if he proves that the damage was
due to circumstances not having origins in any of the activities identified above
in the first paragraph. The provisions of § 37a of the Mining Act then establishes the
the obligation of organizations to create financial reserves to ensure the settlement of the
mining damage and provides the details of this obligation. Materie
compensation is concentrated in § 37 of the Mining Act. His first paragraph
First, it defines the settlement adjustment of mining damage as special to the General
the legislation on compensation. The second paragraph addresses compensation for losses
water, a substantial reduction of the richness of its resources or deterioration in its
the quality. The third paragraph deals with the replacement of effective preventive
measures, paragraph fourth then cases and context of damages
only implied. According to the fifth paragraph (whose part is designed to
cancellation) is an organization required to carry out a provisional securing of object
If you cannot build or device to the previous state because it is
in the territory of the building closures, or on territory where continue to
in the long term to show the effects of the activities referred to in section 36. At the same time has
the Organization agreed with the owner of the object, whether the compensation shall be made in
the money or the provision of a replacement object and on the amount of compensation. If
both parties agree on the method of compensation, its amount shall be determined
expert opinion. The amount of compensation thus calculated may not be withheld on
coefficient of merchantability if its value is less than 1. To a refund
damage includes the movable property that becomes as a result of the provision of
the replacement object unusable. The sixth paragraph gives the participants the possibility of
the replacement of mine damage agree otherwise, if it is not contrary to the
by law, the seventh paragraph sets out the cases in which the Organization, compensation
does not provide.
26. The appellants complain that the legislation in the first place that, based
inequality, both between the upper bodies of the activities of damaged,
and the inequality of the responsible organizations in relation to entities
providing compensation in other areas of human activities; on
an uneven approach to the protection of property rights is built, and other
no constitutional objection to the appellants concerning the principle of the same
the content of title.
27. The ideological and legal basis of the category of equality expressed by the Constitutional Court has already
in a number of its findings. In finding SP. zn. PL. ÚS 4/95 [collection of findings and
the resolution of the Constitutional Court (hereinafter referred to as "the decision"), volume 3,
find no 29, declared under no. 169/1995 Coll.], expressed the opinion that
category of equality, enshrined in article 1 of the Charter of fundamental rights and
freedoms, belongs to those basic human rights which, by their very nature are
the social values of the konstituujícími value of the order of the company. In
social process performs the function of these values rather just ideally typical
categories representing the destination ideas, which could not fully cover
the social reality, and you can achieve just aproximativním way.
Equality should, therefore, become universal, each social form and
the phenomenon is affecting the principle of only in the objectives of social and
historical development. As part of this development can be, however, for her consistent
compliance with the appeal only within certain limits. There is no
the rule to determine what should be straight. While it is clear that
egalitarian universalism would necessarily evoked a deeply dysfunctional social
effects. Each equality in society can therefore be only equality
"on the March", the shape of the continuous development, the oscilování in the field
the continuum of tension between the drive for total equality and efforts to total
inequality substitutes the custom destination idea. Equality, therefore, can
cover with reality only in certain basic data, otherwise relative to the
tendencies of its extensive and intensive efforts to increase its
establishment may be on the border, which can be overridden only for the price
violation of such as. freedom. As one of the basic conditions of social and
historical process is so completely to put equality follow
relation to the freedom with which each other makes and finds himself on the basis of how
mutual support, as well as conflict. As an extremely egalitarian
the requirements threaten the very essence of freedom, and vice versa. Therefore,
The Constitutional Court assessed as inadequate the tendency to squeeze every effort to
achieving equality in the framework of the establishment of fundamental human rights. If it is to
inequality affect basic human rights must reach the
the intensity of the Manhunt, at least in a certain direction, already the very essence of
equality. So is usually done when there is a violation of the equality
linked to violations of other fundamental rights, for example. the right to own
assets according to the article. 11 of the Charter, one of the political rights according to art. 17
and subs. Of the Charter, etc. While the content is given freedom in fact directly
the essence of the individual, requires equality usually "see" session
to other social value. Also other decisions (e.g. find SP. zn.
PL. ÚS 38/93, ECR, volume 1, no. 9, promulgated under no.
86/1994 Coll. find SP. zn. PL. ÚS 15/02, ECR, volume 29,
finding # 11, proclaimed No 40/2003 Coll., and others) shows that equality
should not be understood as an abstract category, but as a relative equality,
that requires the removal of unjustified differences. Legal distinction in
access to certain rights may not be a sign of arbitrariness, however, you cannot
concluded that each would have to be granted any right. In
finding SP. zn. PL. ÚS 5/95 (ECR, volume 4, finding no 74,
competition no 6/96 Coll.), to the question of equality, the Constitutional Court expressed the
so that equality as a constitutional institution has always been and is category
rather than an abstract (absolute), but only relative, and cannot be understood
mechanically and egalitářsky. Emphasized in compliance with a decision of the constitutional
the Court of the CSFR, published under no. 11/1992 collection of resolutions and findings
The Constitutional Court of CZECHOSLOVAKIA (Editor's Note: the finding of the Constitutional Court of the CSFR, SP. zn.
PL. ÚS 22/92, published in the the amount of 96/1992 Coll.) it is for the State to
to ensure their functions, decided that a certain group will provide less
benefits than others. Even here, however, must not proceed arbitrarily. For
as the case is not without importance there decision SP. zn. Pl. ÚS
47/95 ((a collection of decisions, volume 5, finding no 25, promulgated under no.
122/1996 Coll.), in which the Constitutional Court expressed the view that it cannot be argued
inequality, where the law provides for all subjects, that can be
under the personal scope of the legislation, the same entitlement conditions.
That the legislature could do otherwise, cannot in itself be regarded as
for the advantage or disadvantage certain groups of citizens.
28. that excursion, the Constitutional Court is directed to the conclusion that specific legal
the adjustment, which favours one group or category of persons from other,
It cannot be itself without further identified as violations of the principle of
equality. The legislature must have some leeway to consider whether such
the preferential treatment will mandate. Must ensure that the concessive
approach was based on objective and reasonable grounds (a legitimate aim
the legislature), and between this objective and the means to achieve
(the legal benefits) existed the relationship of proportionality. To a breach of the principle of
equality occurred, several conditions must be met: with different actors,
that are in the same or comparable situations shall be treated
differently, without objective and reasonable grounds existed for the
taken a different approach. Otherwise, it is for the State to decide that certain
the group will provide fewer benefits than others. Must only demonstrate that it is
in the public interest and for the public good. From this point of view also, now
The Constitutional Court examined the contested part of the Mining Act.
29. From the foregoing brief for your own reviews of legal
the text. The Constitutional Court had to determine whether the challenged legislation at all
some of the bodies. And if so, whether the following inequality-based
It is constitutionally valid by the effort to settle the legal status of the persons
affected by the negative effects of human activity-specific, or is it just
factually unfounded privilege Group of property owners. In other
words, whether there is a legitimate reason for such a legislative
solution and whether it conforms to the principle of proportionality. Relatively separately is
According to the outlined criteria to be evaluated both the contested points; requiring
an expert valuation of the damaged stuff and the exclusion of the use of the coefficient of
of merchantability.
30. The part of the proposal, which is directed against the enshrinement of the obligation to provide for
the amount of compensation, unless otherwise agreed by the parties on the method of compensation,
expert opinion, assess the Constitutional Court as unfounded.
31. Did not find that this rule would be in effect in any way
a category of persons benefited of damaged mining activities, or business owners
responsible for the damage. The reservations of the appellants, who talks about the
"the fundamental intervention in the principle of equality", certainly not on the spot.
The legislation in question responds to the situation, when the Mining Organization
If the owner failed to agree. From a legal point of view it
means the emergence of a dispute in the ordinary storyline will be called upon to decide
the General Court. Top law only governs, respectively. the following general rules
the court proceedings so that to determine the amount of damages is to be drawn up
an expert opinion. Valuation of damaged things the appraiser, nota bene in the case of
the property is in the consciousness of the realness, expertise and experience
the expert, in principle, the most objective procedure. In addition the procedure generally
permissible, or even the regular, as well as for disputes relating to compensation for damage outside the area
the upper right; make the proposal of evidence in order to determine the amount of the
damages, any party to the proceedings, regardless of whether the dispute has triggered
damage caused by mining, or any other activities. In the framework of the management
can a disgruntled participant znaleckými the conclusions argue, can
submit to the Examiners ' expert reports, or request revision processing
the expert's report. These rules apply to any proceedings in which the
need to check for the amount of the damage suffered. By itself, the fact that compensation must
identify the expert, generally does not move to its size upwards or downwards.
It is only his more accurate and authoritative enumerations. Edit
the rules under which are investigating the amount of compensation, does not affect
the scope and the conditions of protection of property rights. Laid down procedure is not
to persons injured by the top activities more responsive and in respect of persons
the victims other than mining operations less fair. It is therefore not
the reason for it.
32. the Constitutional Court is of course aware of the nature of a certain subject
diction, which mixes up the way with his amount of compensation; instead of as a result of
disagreement about how whether the compensation in this case gets
prefer natural restitution or cash compensation will be provided,
formulates the rules of procedure, the contested provision equal to
determine the amount of damages. Stylistic irregularities or offences against the
the rules of logic, of course, are not and cannot be a reason for derogačním.
Here it should be recalled that the Constitutional Court in the context of an abstract
control honored, i.e. the doctrine of restraint arrangements the maximum efforts to
minimize interference with the activities of other public authorities, the power
legislative. It is also reflected in highlighting the advantages of the
constitutionally, a conforming interpretation of legislation before its derogations.
Thus, even in the case that the text also appears to be Constitutional law
Court as problematic, is attempting to find before his interference such
an alternative interpretation, which would be in line with the constitutional order.
However, the uncertainty of the law itself to conclude its neústavnosti
It is not sufficient, as is clear from the finding SP. zn. PL. ÚS 9/95 (ECR,
Volume 5, no 16, declared under # 107/1996 Coll.). Here, the Constitutional Court
the Court held that "the uncertainty of any of the provisions of the legislation
to be considered rozpornou with the requirement of legal certainty, and thus
the rule of law (article 1 of the Constitution of the CZECH REPUBLIC) only if the intensity of the
the uncertainty principle excludes the possibility of determination of the normative content of the
provisions as well as by using the usual interpretation. " In this case,
but the interpretation is unambiguous and there is no any problem in the context of the
the whole provisions of § 37 para. 5 the Mining Act legislative inconsistency
interpretation of to overcome. Even if it wasn't stated explicitly,
should a general method for relutární compensation, which corresponds with the
General Civil (§ 442 paragraph 2 of the civil code in the
conjunction with § 37 para. 1 the Mining Act). However, even if in this direction
the second sentence under review § 37 para. 5 top law appeared Constitutional Court
as an extra, in accordance with the principle of law
superfluum non nocet
would cancel it couldn't, because redundancy provisions of legislation
in itself a legal ground to its derogation is not (cf. find SP. zn.
PL. ÚS 43/97, ECR, Volume 10, no. 48, promulgated under the
No. 119/1998 Coll.).
33. As described above, the Constitutional Court applied the scale i
the constitutional exclusionary rule conformity in clearly defined cases
application of the coefficient of the marketability of a lower value than the one.
34. The coefficient of merchantability is used in the valuation of the Institute.
Ways of valuing things, rights and other assets and services
modifies the law on the valuation of assets. The claim of the appellants that this standard
on the valuation of damage according to the contested provisions cannot be used because
does not contain a direct reference to it does not hold water. The law on the valuation of assets in the
the first sentence of section 1 (1). 1 merely says that it make arrangements
the valuation of assets out there that "for the purposes set out the specific
the legislation ", i.e. does not require special legislation contained a direct
(explicit) reference to the law on the valuation of assets, but may contain
indirect reference (the default), which can be from the diction of the contested provisions
inferred. Indeed, the law contains instruments of measurement, which are also in the
legal relations undoubtedly considered applicable. Things, rights and
other assets and are stated at their open market value service, unless the law
on the valuation of assets does not provide for a way another (§ 2 para. 1). In the following ways
are the cost, revenue, comparison, as well as other listed
ways (§ 2 (3)). If not otherwise specified, or part of a building
is valued at cost, yield, or comparative way, or their
by combining the use of which for each species of the Buildings Decree lays down the
(§ 4 para. 1). In the valuation of construction cost in the manner in
pricing and practices take into account the influence exerted on the level and
price structures in the market session (§ 5 para. 2). Mathematical expression of these
the effects are the coefficients of, among other things, whether or not the coefficient of merchantability, with whom
Decree of the Ministry of finance is working no 540/2002 Coll., which
implementing some provisions of Act No. 151/1997 Coll., on the valuation of
assets and amendments to certain acts (the Act on the valuation of assets); This
in the annex to Decree No 36 characterizes the way that expresses the relationship of prices
real estate purchase contracts and negotiated by their prices recorded
According to the Decree, adapted to the same price level. The same annex then
includes a table, where the buildings are allocated to the coefficients of merchantability
based on their location within the territory of the Republic and the number of inhabitants of the village, where
they are located.
35. It follows that, if the legislature operates in the contested
the provisions of the concept of "coefficient of merchantability", then this is clearly
and clearly defined in the above mentioned implementing decree, and
his enshrinement into the legal order has a foothold in the Act on the valuation of assets
itself. With legislative technical caveats (the impugned the appellants '
the legislation does not use the terms generally known), therefore, cannot be identified.
36. on the other hand, it is true that, in contrast to the above, the investigation
Discovery rules compensation here establishing inequality owners
of the affected asset cannot be doubted. The Constitutional Court, however, is that
the opinion that the reason that led to this disproportion of the legislature, is the reason
legitimate. The aim of the legislator had obviously been to empower
owners of the affected real property against organizations engaged in mining
activity that is clearly against the real estate risk and hostile.
The result of the legislation is to benefit the selected category
damaged owners, however, a category that is, in the opinion
specific performance of mining activities, the legislature threatened more or
more directly, than is the case for other real estate owners.
37. From the perspective of the Constitutional Court, it is significant that the contested examined
the provisions established the condition when the level of guarantees of the rights of property owners
situated in the territory of the construction and in the territories, where the effects of the
mining activities will manifest itself in the future, in some respect,
without in any way negatively impact on the standing of victims
other owners. Inadmissible Constitutional Court would on the contrary, he considered,
If the generic standard guarantees of ownership rights.
38. The Constitutional Court shall be reported to the European legal culture and its constitutional
traditions. The constitutional provisions, in particular the Charter of fundamental rights and freedoms,
interprets the spirit of the General principles of law, which are not in
written law explicitly included, but in the European legal culture be without
the rest of the apply. One such unwritten constitutional rules,
which in its case law the Constitutional Court applies, is the principle of
principle of proportionality (see, e.g. find SP. zn. PL. ÚS 33/97,
the decision, Volume 9, finding no 163, proclaimed under no. 30/1998 Coll.).
Such an approach is also reflected in the interpretation of the individual legal
the rules, in this case, the contested provisions of the Mining Act. Means
assess the appropriateness, necessity and balance adjustments, which interferes with the
equal status in the protection of property rights. The impugned legislation properly
reflects the specificities of mining activities and its impact to the sphere of the rights of other
subjects. It seems fair to the person that has been negative
impacts of mining activities affected, had the possibility to either raise
alternative compensation, or to achieve full remediation of damaged things. Cannot be
disregard neither the fact that the potential prejudice to the mining activities is manifested
already in the very setting of the coefficient of merchantability. The owners of the assets
situated in the respective territories of would be entrepreneurs
carrying out mining activity harmed twice. The Constitutional Court, after considering the
These factors came to the conclusion that the legal advantage in the form of restrictions
the applicability of the coefficient is proportional to the objective pursued of merchantability
objectives, namely to strengthen the legal position of the entities of damaged mining operations,
that are in a weaker position in relation to the operators.
39. the same applies, Mutatis mutandis, in relation to the organizations (as defined in §
5a of the Mining Act) compulsory to pay compensation. In addition to the factors above
listed is the need to take into account the fact that mining activities listed in
section 36 of the Mining Act, which operates mining damage, are no longer carried out with
business plan and targeted solely for profit. On their implementation
as this is not in the public interest, which would to some extent be legitimized
interference with the fundamental rights bodies, which of the following activities do not
no benefit. In this respect, the appellants ' comparison with lags
approve property owners concerned the construction of industrial
zones, linear structures and similar devices, where it is either. interest in
companies (e.g. for the construction of roads), or the interest of the unspecified
the categories of persons-public (for example, the population of the village).
40. the Constitutional Court also rejects that the provisions of the Mining Act in its
the contested part of the power of the judiciary to the effect that the
mandatory, requiring an expert opinion was contrary to the rules
the fairness of the process, as it guarantees the article. 36 of the Charter. In the Czech Republic
the legal system does not apply the so-called. legal theory movement, requiring that
a certain fact was demonstrated only a specific type of evidence.
By contrast, according to the provisions. section 125 of the row as a general rule, that "the evidence
It can serve all the means by which you can determine the State of things ". According to the
UST. § 132. "the Court shall assess the evidence according to their reasoning, and that each
evidence individually and all of the evidence in their mutual context; in doing so,
carefully take into account everything that came out for the show management, including what
According to participants ". The applicant contested provision although it operates with
expert opinion, thus turning the attention of the parties in the non-judicial hearing
This resource, however, in the case of a dispute, it is clear that, although
It can be expected that the Court also uses this resource, no doubt
What I said above is not just limited to it. On the other hand, however,
the Court restrict the ability to perform further evidence and all it
made by the evidence, including expert evidence freely. Simply
This provision, while the Court said the evidence of this, but
does not provide for any conditions, as it has to evaluate. Does not infringe the
free evaluation of evidence, and shall not prevent the application of the provisions of section 136 or
Code of civil procedure in the case of proven venture
misuse of the contested legislation.
41. as regards the relationship of the expert opinion to guarantee equal access to
the parties can then be used to refer to the reasons set out in paragraph 31 of the
justification.
42. The Constitutional Court also notes that the right to a fair trial is
the right structure, comprising a number of separate subjective
fundamental rights, formulated as specifically (e.g., the public, and
the speed of the proceedings, or an independent and impartial tribunal), and in General (in particular
"the right to a fair hearing). The right to a fair
consideration of the case is the notion of vague, open, and precisely
neohraničeným. Its content includes not only all the other guarantees in the
The Charter expressly referred to, but also the ones that explicitly listed in it
they are not, but they have been drawn from the case law. (Not only) in relation to the taking of evidence
so were defined principles, which are an integral part of the concept of
the fairness of the process. In particular, the principles of equality of arms and
audi alteram partem. This means that the dispute takes place through
inter partes discussion, where the parties to the dispute must have "equal weapons", IE.
the same opportunity to speak and defend "his" truth. It does not necessarily
absolute, mathematical equality; as to the concept of relative, especially in that
the sense that it cannot completely wipe off the difference in the process and in particular the de facto
position of the parties arising from their different options. Unlike
the principle of equality zhastníků in proceedings before the Court in the plane of the constitutional law
the question of who in the civil process is to bear the burden of proof, or as
by the evidence to be examined shall set out the facts,
It is not expressly regulated. Taking of evidence as such, even though it is a substantial,
If not the most important, part of the proceedings, on the constitutional level is not adjusted.
Of course, it does not cost "outside" the constitutional situation of the plane, but his treatment is
totally exclusive matter of the law. Therefore, if the legislature's channel
evidence for a particular range of disputes by laying down the obligation to
some of the survey showed a specific evidentiary facts
means, equality of arms of participants is not affected. Indeed, the same
for example, the legislature voted for the path in the field of legal
capacity (even if it's not about controlling the disputed); in § 187 para. the code of civil
the order is embodied the obligation to hear about the status of the investigated always
expert.
43. Unacceptable is the claim that the contested act in the form of top
interferes with the exercise of judicial power makes. The Constitutional Court here to the reflection
above rozvedeným adds that the determination of the rules of procedure is the responsibility of the
the legislature, which corresponds to the principle of the separation of powers (article 2, paragraph 1, of the Constitution
The Czech Republic). Therefore, it is not a judicial power, which would identify such
the rules will control the process. The claim of the appellants, as in this
the direction of the intended, would have taken ad absurdum must logically lead to the conclusion that the
any procedural rules the unacceptably interfere with the exercise of judicial power.
44. In proceedings on the abstract principle of projednací control does not apply, and
The Constitutional Court is not bound by the reasoning of the proposal, but is obliged to
examine the contested provisions and in terms of compliance with other
ústavněprávními provisions for which it is to attack the plaintiffs.
A breach of any other rules, of course, did not.
45. those reasons, the Constitutional Court concluded that the proposal is under consideration
According to the § 70 para. 2 of the Act on the Constitutional Court completely rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
