256/2010 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court ruled 8 February. July 2010 in plenary in the composition of František
Duchoň, Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů,
Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jiří Nykodým, Pavel
Rychetský, Miloslav Výborný, Elisabeth Wagner, and Michael Židlická of the
the proposal of a group of 25 Senators to repeal the provisions of section 68, paragraph. 3 and 4
Act No. 114/1992 Coll., on nature and landscape protection,
as follows:
The proposal is rejected.
Justification
(I).
The definition of things and a recap of the proposal
The Constitutional Court received a proposal from a group of 25 Senators to repeal
the provisions of section 68, paragraph. 3 and 4 of Act No. 114/1992 Coll., on the protection of nature and the
landscape (referred to hereinafter as the "law on the protection of nature").
The applicant submits that the contested provisions are contrary to article. 1
The Charter of fundamental rights and freedoms, as they are not in accordance with the principle of
legal certainty, the principle of the protection of the citizens ' confidence in the law and with the principle of
predictability of the consequences of the legislation. The implementation of interventions to
the improvement of the status of the preserved natural environment on the part of the authorities
protection of nature or of third persons referred to in the contested provision does not
conditional on the release of any of the individual administrative act, which
inception was the owner of the land on which the action is carried out,
given the option of a relevant way to assert their rights and to defend their
interests. The law on the protection of nature in the abovementioned provisions provides for the authorities
nature protection only to the owner of the land for the implementation of the intervention
prompt and after expiry of the period for the implementation of intervention (for which the run
they are not in the law on the protection of nature, no criteria, so can
go on the date provided for in the regulations referred to in the hours, days, months, and years) it
inform that the intervention will be carried out by the authority for nature protection
or responsible for the third party. The law does not impose protection authorities
nature or to specify in the call for the implementation of intervention intended
the owner of the land, its scale and form. The challenge for the implementation of the intervention so
will comply with the requirements of the law, even if the owner will, in General,
the literal acceptance of the text of the law, called for improving the status of the preserved
of the natural environment.
The provisions of section 68, paragraph. 3 of the law on the protection of nature cannot be inferred,
what form can the interventions to improve the natural environment have, since
the form of these interventions, nor their scope or the limits within which they may be
not in this or in other provisions of the Act on the protection of
nature even discussed. The law on nature protection only describes the purpose of the
the interventions, which, in its article 68, paragraph. 1 "the conservation of the species
the wealth of nature and maintaining ecological stability ". It is therefore not
excluded that the intervention to improve the natural environment and should take the form of,
that is its actual range will be equal to the expropriation, at the very
a formal conservation ownership.
Although you can argue that the nature conservancy authorities are obliged, even without
explicit legal provisions, the scope and duration of the implementation of the intervention
improvement of the natural environment so that the principle
proportionality, and of the possible forms of intervention to choose only such that
still leads to the fulfillment of the purpose in minimizing the intensity of intervention to
the existing ownership, as the need for their use follows
of the constitutional order. From the standpoint of the principle of legal certainty, however, is
keep the following broad limits for administrative discretion, unacceptable.
Interventions to improve the status of the preserved natural environment by
the nature conservancy authorities or third parties pursuant to section 68, paragraph. 3 the law on the
the nature conservancy are restrictions of ownership rights. The constitutional konformitu
This conflict of private (proprietary rights), and public (protection
nature and landscape) interest is with regard to the content of the article. 11. 4 in the
conjunction with article. 4 of the Charter of fundamental rights and freedoms necessary again
measured by the principle of proportionality, as its content was defined
the extensive practice of the Constitutional Court, in particular its part-
the principle of necessity, according to which it is allowed to use only
most environmentally-friendly-in relation to the fundamental rights and freedoms-of
more possible resources, and the principle of proportionality in a strict sense, according
the injury on the basic law must not be disproportionate in relation to the
the intended target, IE. measures restricting fundamental human rights and
freedom must not, in the case of the collision of the basic rights and freedom with the public
interest, its negative consequences exceed benefits, which
represents the public interest in such measures.
The appellants are in this context, convinced that the intensity with which the
implementation of interventions to improve the natural landscape or environment according to
section 68, paragraph. 3 and 4 of the law on nature protection extends to the title
rights, do not correspond with the need to populate the public interest in maintaining the
the natural landscape and environment, as defined in section 1 of the same law,
as it seeks to maintain, but not to change the status, which
each is already with the public interest in the protection of nature and landscape in accordance
(the purpose of the intervention is to "improve the State of the preserved natural and landscape
the environment ").
Proponents see violations of the article. 11. 4 of the Charter of fundamental rights and
freedoms also in that section, paragraph 68. 3 and 4 of the law on the protection of nature
the nature conservation authorities, the implementation of the compulsory limitation of ownership rights
no current entitlement to the grant of the corresponding refund.
The contested provisions, specifically, section 68, paragraph. 4 of the law on nature protection,
provides owners entitled only to compensation for the damage, which will in the
implementation of interference caused by. Refusal to grant compensation for the restrictions
ownership rights can also be justified by the argument and the other reference
the provisions of § 58 paragraph. 2 of the law on nature protection, the right to
compensation for injury associated with the emergence of a completely different situation than the implementation of the
measures to improve the State of the natural and landscape the environment pursuant to section 68
paragraph. 3 and 4 of the Act, within the part of the sixth systematically act.
In the opinion of the plaintiffs cannot be in defending the constitutional conformity of section 68
paragraph. 3 and 4 of the law on the protection of nature, argue or a link to the article. 11
paragraph. 3 third sentence or a link to the article. paragraph 35. 3 of the Charter of fundamental
rights and freedoms. The non-intervention to improve the natural and landscape
the environment within the meaning of section 68, paragraph. 3 and 4 of the law on the protection of nature, namely the
in no way can be considered as the exercise of ownership rights,
that damage to the environment or could damage, conceptually
and that would count in the collision with the prohibitions contained in the article. 11. 3
and the article. paragraph 35. 3 of the Charter of fundamental rights and freedoms.
II.
Recap the essential parts of the representation of a party to the proceedings
According to § 42 paragraph. 4 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in
as amended, the Constitutional Court of the present proposal
The Chamber of Deputies. In its comments the President of the Chamber of Deputies
The Parliament of the Czech Republic-Ing. Miloslav Vlcek said that, in the general part of the
the explanatory memorandum to the draft law of the Czech National Council No. 114/1992 Coll., on the
nature and landscape protection, inter alia, States that in law is enshrined
General protection of all wild fauna and flora,
that their exploitation or interference against them must be based on the legal
permissions and that the law also regulates the obligation of proof of origin
particularly protected species of plants and animals. In a special section
the explanatory memorandum to the provisions of section 68 provides that, in the context of the active
nature and landscape protection as speech will match the State authorities
protection of nature, or the municipalities, and the owners or tenants of the land you can conclude
the agreement on the ways of improving the State of the natural environment. On these
According to the agreement, the provisions of section 68, paragraph. 2 you can bind the provision of financial
contributions. In accordance with the provisions of section 68, paragraph. 3, however, interventions to improve
the natural environment to perform as a legitimate activity of the authority of the State
protection of nature or by physical or legal persons. This
the provision is a measure of its kind when idle, but not exclusively,
bound to a previous obligation to the State authority for nature conservation to seek
the agreement with the owner or user of the land, that the proposed measures
He carried out himself. The financial contribution is then possible cash incentive to
the execution and delivery of the objectives of the protection of nature, that protection authority
nature didn't have to use their privileges under section 68, paragraph. 3 the law on the
nature and landscape protection. In the original text of the Government's proposal
the provisions of section 68, paragraph. 3 in the context of discussing the draft law put
the words "paragraph 1", the words "if it fails to challenge the authority of the protection
the owner or lessee of land to nature itself "; This suggested
the Constitutional Law Committee of the Czech National Council. The law was 19 May. February 1992
received the necessary majority, i.e. 105 voices members, 3 members were
against and 4 abstentions. The Act was signed by the
respective constitutional factors and properly declared in the amount of 28 Collections
laws, sent out by 25 June. March 1992. Through an extensive amendment to the law
on the protection of nature and the landscape was not his contested provisions of section 68, paragraph.
3 and 4 to this day being amended. In this state of things cannot be than
to express the opinion that the legislature acted in the belief that
the adopted law is in accordance with the Constitution and our legal system. At the same time
the President of the Chamber of Deputies gave its consent with the abandonment of the oral
the negotiations.
According to § 42 paragraph. 4 and section 69 of Act No. 182/1993 Coll., as amended
the rules, posted by the Constitutional Court of the present proposal and the Senate of the Parliament of the Czech
of the Republic. Its President MUDr. Premysl Sobotka said that, with regard to the
the fact that the Senate has begun its constitutional action in December 1996,
so the answer to things that would be based on direct discussion and
the adoption of the provisions of Act No. 114/1992 Coll., on the protection of
nature and landscape, the Senate cannot provide, as the legislative process
associated with the adoption of the law containing the provisions of the
took place even before its establishment. None of the amendments of the
the Bill, which the Senate debated for its existence, did not affect the
the contested provisions. At the same time the President of the Senate gave its consent to the
abandonment of the oral proceedings.
The challenge to the Constitutional Court to the proposal and expressed the Ministry of
environment, which mainly argued that the protection of nature and landscape
without a doubt it is the public interest. The purpose, for which the provisions of § 68
paragraph. 3 and 4 to the Act on nature and landscape protection incorporated, is
nature and landscape protection in cases where the owner of the land
or his tenant despite the challenge of fulfilling its legal obligations, and this is the
endangered species richness of nature conservation or keeping systems
ecological stability. The impugned provisions are in many cases
irreplaceable, and their absence would bring irreversible negative
the consequences for nature and the landscape. As an example (in practice rather
frequent) the necessary measures against invasive species, which is to be
take place in a coordinated manner in a significant extent on the large number of parcels
at the same time (for example, it is a spectacular interventions against bolševníku,
trumpets Japanese and other geographically originating species).
The appellants, that the implementation of interventions, it is directed not to the maintenance,
but a change of status ("improve"), which itself is already a person with the public
interest on nature and landscape protection in accordance. The improvement of the status of the
the preserved natural environment and the landscape is tied to the conservation of
the species richness of nature and maintaining ecological stability, as
therefore clearly an expression of the public interest pursued by the Act on
nature and landscape protection (see section 1). The provisions of section 68, paragraph. 1 of this
the law fully corresponds with the objectives of Council Directive 92/43/EEC of 21 December 1989.
May 1992 on the conservation of natural habitats, wild fauna and
Flora, when this directive is mj. the maintenance or
restoration of favourable conservation status of selected natural habitats and species of
the fauna and flora protection; According to the
article. 3 (3). 3 of this directive, Member States shall endeavour to improve
the ecological coherence of the Natura 2000 network. the development of such
features of the landscape outside of this system, which are of great importance for free
wild fauna and flora. Notice to owner or
the tenant of the land under section 68, paragraph. 4 of the Act on nature and landscape protection
It is in practice carried out a written challenge, on the basis of the negotiations is then drawn up
the Protocol for the consideration of the intent (the form of the results of the internal regulations
The Agency of protection of nature and the landscape of the Czech Republic). Although the implementation of the
interventions the nature conservancy authorities under section 68, paragraph. 3 of the law on the protection of
nature and landscape is not conditional on the release of any individual
administrative act, cannot agree with the opinion of the petitioners, that may occur
the situation, when the owner of the land from the notification about the implementation of the intervention
learns to perform that particular activity was authority for nature protection
actually asked and what kind of intervention and to what extent it will be on his
the plot is carried out. And implementation of interventions to improve the natural and
landscape environment is the Act of an administrative authority, which is covered by
part four of Act No. 500/2004 Coll., the administrative procedure code. It is therefore a
a formalised procedure respecting the constitutional postulate according to which you can
State power only in the cases, within the limits and ways that
lays down the law. The nature protection authority shall specify in the call to
the implementation of the intervention of its scale and form. The provisions of section 68, paragraph. 3 and 4
the law on nature protection are applied in practice in principle, with the consent of
owners or tenants concerned (with the exception of a few rare
cases, it is up to about 5 cases per year). As a result of the application
These provisions of the Act on the protection of nature, therefore in no case
There is a forced restriction of property rights or to store
illegal duties. On the contrary, a series of interventions is carried out for the benefit of
owners or tenants, in particular in the case of measures against invasive
species. Therefore, do not agree with the claim of the petitioner, or by which it is
the injury to his ownership disproportionate to the intended objective of
the intervention. The positive impacts of the intervention on nature and the landscape, in the opinion
the Ministry will certainly outweigh the possible negative consequences for the owner
the plot, if there are any. It is not true that the owner
the land concerned was not able to get adequate compensation for the damage
that would be when the intervention or originated. On the contrary; directly in the
the provisions of § 68 is enshrined, that responsibility to the owners or
tenants shall be borne by the institution of nature protection. To minimize possible injury
the owner contributes to the fact that the cost of implementation of the intervention,
realizes the nature protection authority, shall be borne by that authority, not
the owner.
The plaintiffs said in the reply to the representations of the Ministry of the environment
the following environment. Do not identify with the statement pronounced in
related to the so-called. the principle of the highest value, that the intensity of the constitutional
environmental protection is (along with the constitutional protection of human
life and health) eo ipso is always higher than the protection of other constitutional
policy of protected values and constitutional principles. You cannot (with reference to the
the so-called. the principle of the highest value) to resign, not only for the protection of property rights,
but also on the other constitutional principles and rights, such as. the rights of the
political, moral rights, the right to a fair trial. The contested
the provisions allow the nature conservancy authorities no closer to unidentified and
unlimited way immediately intervened (or any other person allowed
directly intervene) to the ownership of land owners without
any of the previous proceedings, in which the owner of the land
had the opportunity to exercise their rights, and without providing adequate compensation
for a restriction of the right of ownership, and not in the case where you want to
the Elimination of the infringement, or an existing acute threat. The forced
restrictions on ownership, which may be on the basis of section 68, paragraph. 3 and 4
the law on nature protection implemented, is not associated with the right to compensation
under the restrictions of ownership rights; the right to compensation for damage caused during
the implementation of forced intervention is completely different type. In the opinion of
the plaintiffs cannot succeed, the argument that the contested provisions of section 68, paragraph.
3 and 4 of the law on the protection of nature are in practice applied in principle to
the consent of the affected owners or tenants, and it's up to the irrelevant
exceptions represented by about 5 cases per year. In the opinion of the plaintiffs
It is not for the assessment of the constitutionality of section 68, paragraph. 3 and 4 of the law on the protection of nature
applicable, whether and how are the powers which this provision authorities
protection of nature, actually enforced, confer decisive is how, according to the
the actual wording of the relevant provisions could be enforced.
III.
The diction of the contested legislation
The provisions of section 68, paragraph. 3 of Act No. 114/1992 Coll., on the protection of nature and the
landscape, added: "the nature conservancy authorities are authorised to carry out themselves, or
through other interventions to improve the natural and landscape
the environment referred to in paragraph 1, if they do so to challenge the authority of the protection
the owner or lessee of land of nature itself, in particular as regards the protection of the
specially protected parts of nature and significant landscape elements. ".
The provisions of section 68, paragraph. 4 of the Act reads: "the owners and tenants
land are required to submit to an implementation of the interventions referred to in paragraph 3
and enable persons, which is to ensure access to land. Protection authority
nature is required to notify in advance the owners or tenants of the extent and
the time of the intervention. For any damages incurred by the owners or lessees of land in
connection with these interventions corresponds to the nature protection authority, which
the interventions ordered. This is without prejudice to the liability of the persons carrying out these
interventions. ".
IV.
The content of the contested provisions compliance with the constitutional order
IV. A/
The purpose of the challenge according to section 68, paragraph. 3 of the Act on nature and landscape protection is
Act on the owners (and the lessee) of land in order to carry out the activity themselves
in order to maintain the species richness of nature and maintain the system
the ecological stability and to ensure that this activity not the nature conservancy authorities
perform themselves (or through a third party). There is therefore enshrined
subsidiarity of the State, which plays to ingerence if necessary
necessary (when the objective pursued cannot be achieved otherwise). To be able to
to achieve the objective pursued by law at all (i.e., the realization of the activities under the
the purpose of the conservation of the species richness of nature and maintain the system
ecological stability by the owners and tenants of land), the logic of
things must be in the specified form of the call (range) of the desired
intervention; otherwise, the owners (the lessee) of land
in fact, they didn't know what to do, and the challenge would be to lose a reasonable
sense.
The claim of the petitioner-that the law does not impose the nature conservation authorities or
the obligation to specify in the call for the implementation of the intervention of the specified owner
the land of its range (the form of), and that the call for the implementation of the intervention will be
comply with the requirements of the law, even if the owner will, in General,
the literal acceptance of the text of the law, called for improving the status of the preserved
natural environment-is excluded by the nature of things, and also the following
line of argument.
Indeed, the appellant's objection cannot be přisvědčit (as well as the opinion of the
the Minister of the environment), the implementation of interventions to improve health
the preserved natural environment of the nature protection bodies or
third persons referred to in the contested provisions is conditional on the release of any of the
the individual administrative act.
The challenge question is without prejudice to the legal sphere of the owner of the authoritative
(the lessee) of land. As a result of non-execution of the call from the owner of the
(the lessee) of land produces the permission authority for nature protection (or the third
a person) to perform a specific action, and at the same time the obligation of the owner of the
(the lessee) of land the obligation to tolerate the implementation of this measure, and
the obligation to enable persons to ensure entry into the land. Therefore,
is restricted. the property right (since the measures assume that
the grounds will be by nature protection bodies or by their
the designated third parties made edits that otherwise within the meaning of section 123
the Civil Code pertain exclusively to its owner), the right to
the protection of privacy, the inviolability of the dwelling, the autonomy of the will, etc. Also
an obligation arises, inform the owners of the nature protection authority (the tenant)
the scope and the time of the implementation of the measures. Service calls according to the contested
the provisions of the owner (the lessee) of land in the position of the body,
which is imposed by the administrative authority (Conservation Authority) the obligation to
implement specific measures (in order to maintain species richness
nature and maintaining ecological stability). On the actual content and
importance of the above challenges (decision in the material sense) does not change anything
or her legislator (inaccurately) the chosen designation, i.e.. "the challenge" (rather than the
e.g.. "the decision").
In the case of the challenges, therefore, is an individual administrative act. It is so
applying the administrative procedure (including the obligatorních requirements of the decision
the administrative authority, that is. among other things, including the specification of the desired
measures-see. the previous objection), with the owner (tenant)
procedural protection of land rights, while his material eventually comes in
account of the soudněsprávní protection, which corresponds to the basic law
individuals according to the article. paragraph 36. 1 and 2 of the Charter of fundamental rights and freedoms
claim the protection of their rights before a court or other authority, and which
It also corresponds to the article. 4 of the Constitution of the Czech Republic garantujícímu, the basic
the rights of individuals are under the protection of the judicial power (cf. also the consistency with the article.
6 (1). 1 and article. 13 of the European Convention for the protection of human rights and fundamental
freedoms).
IV. B/
Further, the applicant argues that the provisions of section 68, paragraph. 3 of the law on the protection of
nature and the landscape cannot be inferred, what form can the interventions to improve
the natural environment have, since the appearance of these interventions, nor their scope
even the limits within which they may be carried out, not in this or other
the provisions of the law on the protection of nature even discussed. The law on the
the nature conservancy describes only the purpose of the intervention which is according to its
the provisions of section 68, paragraph. 1 "the conservation of the species richness of nature and
maintaining the system of ecological stability ".
The Constitutional Court agrees in principle with the premise, that the provisions of section 68, paragraph. 3
the Act on nature and landscape protection cannot be inferred, what form can
interventions to improve the natural environment have, however it cannot be
find the unconstitutionality. This premise stems from the nature of things, it is
necessary for the achievement of the legitimate objectives of the conservation of the species
the wealth of nature and maintaining ecological stability (cf..
the text below) in this respect it is therefore constitutionally Conformal. In fact, and cannot be
priori formulate (to Act) form of (all) the conceivable measures
the purpose of the conservation of the species richness of nature and maintain the system
ecological stability, that practical life brings. Indeed, on (in the
the principle of) similar methodology is built legislative use
for example, the so-called. vague terms whose specific content fills up
application activity of the administrative authorities without it should mean in the legal
the State of violating the constitutional order (e.g. legal certainty); in the opposite
the case would have been impossible to effectively implement the public administration. In it, the
Indeed, in a sense, reflected a wider ideological basis.
the doctrine of skepticism about the standards; not all the rules of conduct, legal terms
they give for the futuro (exactly) formulate, so for certain types of
cases-due to their nature-zformulují mainly the principles, objectives,
then, the courts and the State authorities of the State in the lives of application activities.
Discretion of the administrative authority, hypothetically displayed in the call,
precedes (and protects against) top-cited argument, which
in the call, the nature of the decision of the administrative authority (the resulting consequences
in the form of e.g.. the obligation to give reasons for the decision, its přezkoumatelnost
in the administrative and management soudněsprávním, respectively, in the proceedings of the constitutional
the complaint) and the obligations to comply with the constitutional order (that is, at the same time.
the principle of proportionality in the solution of the conflict of constitutional values within the meaning of
the established case law of the Constitutional Court, which, moreover, he
the appellant alleges), which must comply with each public authority
in their activities.
If the appellant finally argues that the general wording of the paragraph in section 68. 3
the Act on nature and landscape protection allow you to limit ownership
rights in the intensity of the expropriation, while the mere formal conservation
ownership rights, it is sufficient to point out the article for brevity. 11. 4
The Charter of fundamental rights and freedoms, according to which the expropriation is permissible
in the public interest, on the basis of the law, and for compensation.
IV. C/
The applicant further argues that the intensity with which the implementation of interventions to
improvement of the natural environment or landscape under section 68, paragraph. 3 and 4
Act No. 114/1992 Coll., extends into the title, do not correspond with the
the need for the fulfillment of the public interest in the conservation of the natural and landscape
environment, as defined in section 1 of the same law, as it is directed not to the
conservation, but to change the State, which itself is already with the public
interest on nature and landscape protection in accordance.
However, the Constitutional Court States that the present action is directed to
Conservation (from the point of view of the environment-friendly) State, as from
section 68, paragraph. 1 of the law on the protection of nature, the purpose of the intervention is
"the conservation of the species richness of nature and maintain ecological system
stability ". The appellant gives to the nepřiléhavě kontrapozice the purpose of the Act
nature and landscape protection, expressed in the provisions of section 1 and the purpose that is displayed in
the provisions of section 68, paragraph. 1. In accordance with the provisions of section 1, the purpose of the Act ".
contribute to maintain and restore the natural balance in the landscape, the protection of
the diversity of life forms, natural values and beauties, to accelerate the
management of natural resources, and to create, in accordance with the law
Of the European communities in the Czech Republic, the Natura 2000. ". This
more generally, the purpose of the Act is formulated to be specified by each
the related provisions of the Act on the protection of nature (as to the traditional
legislatively-technical method), and it mj. in section 68, paragraph. 1 of this
the law, which declares the purpose of "maintaining the species richness of nature and
maintaining the system of ecological stability ".
Not so přisvědčit the appellant's objection that the intervention according to section 68 of the
the law is directed only to change the State, which itself is from the
the purpose of the Act on nature and landscape protection considered
matching. If so, the section 68 of the Act on the protection of nature
and the landscape of the reasonable sense. It is logical that they change over time (and other
factors, for example. natural) can gradually cause injury on account
wealth and the system of ecological stability (on the grounds of the owners,
tenants) or even to a threat to their existence, and therefore from the point of view
adverse environmental condition. Therefore, the contested provisions
provides for the obligation of owners and tenants of land improvement (according to their
options) the status of the preserved natural environment and landscape, to (in the
the future) not prejudice the State, which is only from the perspective of the protection of
the environment favourable. As for the plane, but prevention not only of her,
as section 68 of the Act is heading-logically-the more status, when
already there has been a prejudice to the species richness and the system of ecological stability
on land owners and leaseholders (arg. and minori ad maius). This is the
legitimate, constitutionally Conformal aim (public interest) on the protection of the
environment (protection of the environment is as a constitutional value
explicitly declared, for example. in the article. 11. 3 and article. 35 of the Charter of
rights and freedoms).
The claim of the petitioner is also getting into conflict with Council directive
92/43/EEC of 21 December 1989. May 1992 on the conservation of natural habitats, wild
wild fauna and flora: "... conservation,
the protection and improvement of the quality of the environment, including the protection of
of natural habitats and of wild fauna and flora
the plant is a key objective in the general interest of the community, as stated in
Article 130r of the Treaty ... preserving biodiversity can in
certain cases require maintenance or directly support specific
human activities ... should be according to the established timetable
to announce special areas of conservation in order to create a coherent European
the ecological network, in order to ensure the protection or conservation of natural
habitats and species of Community interest in the corresponding status
their protection. The aim of the measures taken pursuant to this directive
is to maintain or restore a favourable conservation status for
natural habitats and species of wild fauna and flora
plants in the interest of the community. The Member States shall, in cases where
they consider it necessary, seek to improve the ecological coherence
Natura 2000 by maintaining, and where appropriate developing, features of the landscape,
which are of major importance for wild fauna and flora
growing plants ... ".
IV. D/
The appellant finally sees the violation of constitutional order in that
the contested provisions allow the authorities of the nature protection implementation of compulsory
restrictions of ownership without the current entitlement to the grant
the corresponding refund. The contested provisions, specifically, section 68, paragraph. 4
the cited law, provides owners entitled only to damages,
that will be caused in the implementation of interventions.
This objection, the Constitutional Court did not find reasonable.
According to the article. 11. 4 of the Charter of fundamental rights and freedoms,
"Expropriation or compulsory restriction of ownership rights is possible in
the public interest and on the basis of the law, and for compensation. " Therefore, if there is
the actual (effective), the limitations of ownership, the owner has
the Basic Law on compensation for him, which fully applies to the case of
investigation of the matter. The purpose of the article. 11. 4 of the Charter of fundamental rights and
freedoms is that if there is a limited right of ownership in the interest of the public,
in the interest of the company (i.e., not exclusively in the interest of the owner), it is reasonable to
and fair to limit ownership was the owner of the
offset by the entity in whose benefit is to the limit
accessed, i.e.. companies (via the State). Cannot reasonably be
require that the "cost" of the company, carrying just the owner, whose legal
(ownership) is restricted.
This requirement, however, the Act on nature and landscape protection suits.
For the implementation of measures within the meaning of section 68, paragraph. 1 of the law on the protection of nature and the
the landscape it is possible to conclude an agreement between the owners of the land (tenants)
and the nature protection authority, on the basis of which the owners (tenants)
undertake to refrain from certain land hinnosti or carry out certain work.
According to section 69 of the Act then it belongs to the owner (tenant) "financial
post "(the text" can provide "should be interpreted in a constitutionally conformally
accordance with article. 11. 4 of the Charter of fundamental rights and freedoms, such as
the need to provide a financial contribution). This "financial contribution" is-
in accordance with article. 11. 4 of the Charter of fundamental rights and freedoms-necessary
considered as (inter alia) compensation for restriction of ownership rights; of which
implies that at least must be replaced with the full amount of the limitation of the ownership
rights, i.e.. all the property damage.
The provisions of section 69 of the Act on nature and landscape protection-thus the need for
to pay a "financial contribution", or compensation for the restrictions of ownership
rights-should be applied to the case where is not closed
a written agreement (envisaged section 68 (2)), but at the same time the owner of the
(the lessee) of land carries out measures within the meaning of section 68, paragraph. 1 cited
the law. Also in this case to limit its ownership
rights; take the appropriate measures (whether actively or passively, i.e. delay
certain activities), while the difference with the previous paragraph is
only in the form-whether there are measures to implement appropriate written
the contract or not. One can even argue a minore ad maius; If
given a claim for compensation in the event of the conclusion of the written agreement and the subsequent
implementation of the relevant measures, must be given a right to a refund
in the case of the measures in the absence of a written agreement
(e.g. the owner of the land will come out to meet the environmental protection authority, will meet his
request, without insisting on its formalization in the form of a written contract
Contracting).
Finally, there remains the potential for restrictions of ownership rights in a situation where
owner-for some reason (e.g. it is not from the subjective or
objective reasons, satisfied with the content of the proposed agreement according to section 68, paragraph.
2 Act No 114/1992 Coll., on nature and landscape protection, as amended by law
No 218/2004 Sb.) -go to the written agreement does not
the appropriate measures without a written agreement; It is, therefore, about the possible case
realization of the competence of the environmental protection authority according to section 68, paragraph. 4 of the law on
nature and landscape protection, execute measures itself or through
another [if the owner (tenant) idle]. Even in this case, however,
legislation meets imperative according to the article. 11. 4 of the Charter of
fundamental rights and freedoms.
Similar to the issues dealt with by the Constitutional Court already for example. the sp in the award.
Zn. IV. TC 652/06 of 21 June. 11.2007 (N 202/47 SbNU 613 ^ *), in which the
He stated that "the legislature may provide for restrictions on the exercise of ownership
the rights and provisions of the Water Act, in that it has done so since the order
owners of land adjacent to the water work obligation to allow entry
on their land to other persons for the purpose laid down. At the same time, however,
drop anchor, that can only happen after prior consultation with them. This
the condition implies negotiations both parties, clearly cannot, however, for all
cases assume reach agreement not only on the manner, time, scope, and
other circumstances of the pass. Can therefore be considered that, in the case of disagreement, the
should any disputes on the basis of action to deal with the Court (if not a
the competence of the Ministry of agriculture or the vodoprávního of the Office within the meaning of
the provisions of § 53 of the water of the Act). From the cited provisions in any
the case does not imply that the entry of a foreign land, and therefore to some extent
their use should be strpěn without compensation "(article 11 (1) envisaged. 4
The Charter of fundamental rights and freedoms).
The provisions of article 11 (1). 4 of the Charter of fundamental rights and freedoms has in
the term "compensation" to mean compensation for any injury caused by owner
by limiting his ownership rights.
According to the Constitutional Court should therefore be constitutionally conformally, IE. in accordance with the
article. 11. 4 of the Charter of fundamental rights and freedoms and in accordance with the previous
nálezovou case law, to interpret section 68, paragraph. 4 the third sentence of the law on
nature and landscape protection, so that it is in addition to the law on compensation for damage
approve the constitutional right of the owner to pay for his
ownership rights.
In the.
You can accept that the proposed cancellation of the contested provisions (mainly
case sub IV. D/) would probably be allowed to formulate new legislation and
so, that should have been removed the ambiguity of the provisions in respect of
for now the issue under consideration. The Constitutional Court, however, in this context, the
must be pointed out that the reason the unconstitutionality of the provisions of the
the legislation fundamentally are not any interpretational problems
the interpretation of the law. If the provisions of the law in some
situations does not provide language-a definite answer, it does not in itself
about itself necessarily unconstitutionality. The space of such interpretation and its significance
There is no doubt greater, where the application of the statutory provisions that
they are not entirely satisfactory, the textuálně but not in essence
nor unconstitutional. The Constitutional Court then, while respecting the principle of
minimize interference, not than repeat what has already been judikoval in its
Award of 3 June. 2. the 1999 SP. zn. PL. ÚS 19/98 (N 19/13 SbNU 131;
38/1999 Coll.) that: "of the many conceivable interpretations of the Act must be in the
any case apply only to one that respects the constitutional principles
(if such an interpretation is possible), and to repeal provisions of the law for
unconstitutionality to proceed only if the provisions in question apply without
would have been violated, the constitutionality of (the principle of minimizing intervention). " (see find
The Constitutional Court of 3 June. 2. the 1999 SP. zn. PL. ÚS 19/98, also available
on http://nalus.usoud.cz).
The Constitutional Court therefore concludes that there is a possibility of a constitutionally consistent
the interpretation of the contested provisions. To ensure legal certainty, as well as to the
the protection of the rights of ownership, the current wording of the contested provisions
It will be sufficient. From the perspective of de lege ferenda would be appropriate clearer
the wording of the contested provision, the Constitutional Court, however, cannot be ignored,
that, de lege lata, because he had zkonstatovat, that
the contested provisions cannot be characterized as unconstitutional, if
their wording does not exclude the interpretation fully constitutionally Conformal.
With regard to the above circumstances, the Constitutional Court did not find the proposal to
annulment of the contested provisions of Act No. 114/1992 Coll., on the protection of nature
and the landscape, the reason, therefore, under section 70, paragraph. 2 of the law on the constitutional
the Court rejected.
The President of the Constitutional Court:
JUDr. Rychetský in r.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 47,
find no 202, page 613
