2009/03/17 - Pl. ÚS 24/08: Public Interest - Airport Ruzyně

17 March 2009

HEADNOTES

The

declaration by law of a public interest in a specifically designated

matter is incompatible with the principles of the law-based state, in

particular with the principle of the separation of powers, and also

restricts the right to court review; it is thus in conflict with Art. 1,

Art. 2 paras. 1 and 3, and Arts. 81 and 90 of the Constitution of the

Czech Republic, as well as with Art. 36 and Art. 37 para. 3 of the

Charter of Fundamental Rights and Freedoms.


The

provisions of a statute laying down (for a specific construction

project) an unjustifiably divergent procedural regime violates the

principle of equality in rights, as well as Art. 11 para. 1, second

sentence of the Charter of Fundamental Rights and Freedoms, which

provides that the property rights of each owner shall have the same

content and enjoy the same protection.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 

On

17 March 2009, the Constitutional Court, in its Plenum composed of the

Court’s Chief Justice, Pavel Rychetský, and Justices Stanislav Balík,

František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,

Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,

Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická,

on the petitions of a group of Senators of the Parliament of the Czech

Republic, proposing the annulment of Act No. 544/2005 Sb., on the

Construction of the Runway for Take-Off and Landing 06R – 24L of the

Prague- Ruzyně Airport, with the participation of the Assembly of

Deputies and the Senate of the Parliament of the Czech Republic as

parties to the proceeding, decided as follows:


Act

No. 544/2005 Sb., on the Construction of the Runway for Take-Off and

Landing 06R – 24L of the Prague- Ruzyně Airport, is annulled on the day

this Judgment is published in the Collection of Laws.

 


REASONING


I.
 

1.

On 24 June 2008 the Constitutional Court received delivery of the

petition of 17 Senators of the Parliament of the Czech Republic, to

which a further Senator, namely Karel Schwarzenberg, subsequently added

his name (hereinafter „the petitioners“), proposing the annulment of Act

No. 544/2005 Sb., on the Construction of the Runway for Take-Off and

Landing 06R – 24L of the Prague- Ruzyně Airport (hereinafter „the

contested Act“), due to its conflict with Art. 1, Art. 2 paras. 1 and 3,

and Arts. 81 and 90 of the Constitution of the Czech Republic

(hereinafter „the Constitution“) and due to its conflict with Art. 11

and Art. 36 of the Charter of Fundamental Rights and Freedoms

(hereinafter „the Charter“).

2. The petitioners first of all make

the argument that the contested Act is in conflict with the principle

of the separation of powers and the rules of the democratic, law-based

state under Art. 2 para. 3 of the Constitution. In the petitioners‘ view

the principle of the separation of powers is the basic foundation stone

of the democratic, law-based state. It follows from the Constitution

(Art. 2 para. 3) that individual powers should not encroach upon each

others‘ competences. According to Art. 15 of the Constitution, the

legislative power falls to the Parliament, and activity meeting the

demands of this Article cannot be understood to be anything other than

the formation of legal enactments, statutes. A statute should be such an

act of public power which generally regulates the class of relations to

which it applies. The Constitutional Court has already dealt with, for

ex., in its Judgment No. Pl. ÚS 55/2000 of 18 April 2001 (N 62/22 SbNU

55; 241/2001 Sb.)*, the issue that one of the fundamental

characteristics of a legal norm is its generality. The Act on the

Construction of the Runway for Take-Off and Landing 06R – 24L of the

Prague- Ruzyně Airport exhausted its effects in an instant (the

completion of the specific construction job). For the legal regulation

of this matter, the legislature selected such an approach which entirely

violates the accepted principles for the creation of law. In its

essence, then, the approach of the Parliament of the Czech Republic

undermines the principles of the democratic, law-based state. Such an

approach would perhaps be justifiable in a period of historical turning

points in the societal development, not however under the conditions of a

stable free society. The impermissibility of such a solution is

particularly exposed through a reductio ad absurdum conception of other

similar legal enactments. The general nature of a legal norm is defined

in the theory of law creation as generality as in relation to the

subject of the legal norm as well as to the addressees of the legal

norm. Generality in terms of the subject of the legal rule is understood

to mean that the legal norm defines the relevant factual elements

generally. A legal enactment may not be used to resolve specific

individual cases, rather it lays down rules for repeated processes or

occurrences. The subject of the contested Act is defined in § 1 in

relation to a singular issue, not generally; all questions resolved

therein affect only a specific runway for landing. That legal act

thereby losses the characteristics of a statute and conceptually gains

the attributes of an individual legal act, typically of a decision. Of

course, such a decision can be issued solely by the executive, not by

the legislature, which follows from, among other things, the

constitutional principle that state authority may be asserted only in

cases, within the bounds, and in the manner provided for by law. This

prohibition directly defined on the constitutional plane, in addition,

projects into concrete administrative – expropriation – proceedings.

Expropriation may be done solely on the basis of law, in this cases for

the objectives set down in § 170 of Act No. 183/2006 Sb., on Territorial

Planning and the Construction Procedure Code (the Construction Act),

and under the conditions contained in Act No. 184/2006 Sb., on the

Deprivation or Restriction of Property Rights in Plots of Land or in

Structures (The Act on Expropriation). It is provided in § 3 para. 1 of

the last cited act that expropriation is permissible only if the public

interest in attaining the objective of expropriation outweighs the

maintenance of the existing rights of the expropriated person. Pursuant

to § 4 para. 2 of Act No. 184/2006 Sb., the public interest in an

expropriation must be demonstrated in an expropriation proceeding. In

the case of the approach under the contested Act, however, the

administrative body has no leeway for its administrative discretion. By

its construction of § 1, in conjunction with § 2 para. 5 of the contest

Act, the legislature has already de facto expropriated the land parcels

found within the area needed for the construction of the runway for

take-off and landing. Sec. 2 para. 5 of the contested Act then provides

that, in expropriation proceedings, the public interest in the

expropriation of land, structures and rights pertaining thereto for the

construction of a runway for takeoff and landing shall be demonstrated

by reference to this Act. However, the weighing of the public interests

is one of the essential components of an expropriation proceeding and is

the exclusive authority of the expropriation office, an executive body.

By introducing this legal construction, the Parliament of the Czech

Republic has arrogated to itself the exercise of the authority of an

expropriation office and thus has, in essence, placed itself in the role

of a superior executive body, which it is not and, according to the

Constitution, cannot be.

3. The petitioners further argue that

the contested Act is in conflict with the right to judicial review (Art.

36 of the Charter), with Arts. 81 and 90 of the Constitution and also

in conflict with Art. 11 of the Charter. Sec. 2 para. 4 of the contested

Act forbids the administrative office to suspend a proceeding on

grounds of resolving a civil law objection or resolving other

preliminary issues. Usually if such an objection materializes, the

construction or the expropriation office suspends the proceeding and

call upon the parties to bring an action. Although the contested Act

does not directly forbid court review of civil law objections, still it

de facto renders unfeasible either court review or its minimal

effectiveness. Before a court reaches a conclusion and issues a

judgment, the runway for take-off and landing will already be at least

in construction and the property rights of effected real property owners

will have been irrevocably trampled upon. The specific decision on

expropriation is contestable on the basis of law (§ 28 para. 3 of Act

No. 184/2006 Sb.), by bringing an action with suspensive effect.

Nonetheless, not even this solution would necessarily guarantee

sufficient judicial protection of property since, precisely because of

the unclarified property relations, the injured party would not

necessarily have standing to bring an action. A further problem which

arises in the case of court review of decisions issued on the basis of

the contested Act, is the issue of the extent of such review. In view of

the fact that the legislature made a determination, beyond the scope of

its competence, that the runway for take-off and landing is a public

interest, an administrative court will not deal with the issue of

whether the administrative body strayed from the bounds placed upon the

exercise of administrative discretion, thus whether it correctly

evaluated the prevalence of the public interest over the interests of

specific owners. The decision’s harmony with the law is thus established

merely by the administrative organ making reference to the contested

Act, without the need to assess the matter in the given specific case.
 


II.
 

4.

In its 3 March 2009 statement of views, the Assembly of Deputies of the

Parliament of the Czech Republic merely described the procedure for the

adoption of the contested Act, adding that it had been adopted

following a duly performed legislative process, signed by the

appropriate constitutional officials and promulgated in the Collection

of Laws.

5. In its 26 February 2009 statement of views, the

Senate of the Parliament of the Czech Republic declared that its

guarantor committee, its Committee on National Economy, Agriculture and

Transport, as well as its Committee on Legal and Constitutional Affairs,

recommended that the bill be rejected. Both committees accentuated the

view that, by introducing a special procedure in relation to owners of

the plots of land affected by the construction designated in the Act,

the legal enactment under adjudication is not entirely in conformity

with Art. 11 para. 1 of the Charter. The property rights of these

subjects thus take on a different content and protection than the

property rights of other subjects. The rights of parties to proceedings

will be dramatically modified in comparison with the rights of parties

to proceedings concerning “ordinary” transport construction, which will

be conducted in accordance with general enactments. One can deduce

therefrom a weakening of the principle of equality of citizens before

the law in accordance with Art. 1 of the Charter. The committees also

found a violation of the constitutional separation of powers between the

legislative power and the executive, as they are delimited in Chapters

Two and Three of the Constitution. The Act provides that the given

construction is being carried out in the public interest, although, in

accordance with general enactments, such prospective conclusion should

be the outcome of an individualized assessment of all interest in the

territory on the part of the competent administrative bodies. Procedures

long-established in the legal order are thereby eliminated; also

excluded is the opportunity for review of administrative discretion by

an independent court in the administrative judiciary, whereby is

restricted the right to judicial protection guaranteed in Art. 36 of the

Charter. The Senate leaves to the Constitutional Court‘s discretion the

consideration of the contested Act‘s possible conflict with Art. 1

para. 1, Art. 2 paras. 1 and 3, and Arts. 81 and 90 of the Constitution,

as well as with Art. 11 and Art. 36 of the Charter.
 


III.
 

6.

In view of the fact that the parties to the proceeding agreed to

dispense with an oral hearing and the Constitutional Court is of the

view that further clarification of the matter cannot be expected from a

hearing, the requirements have been met for the Constitutional Court to

make a decision in the given matter without holding an oral hearing (§

44 para. 2 of Act No. 182/1993 Sb., on the Constitutional Court).



IV.
 

7.

In harmony with § 68 para. 2 of the Act on the Constitutional Court,

the Constitutional Court assessed whether the Act, whose provisions are

assessed in terms of their constitutionality, was adopted and issued

within the confines of the powers set down in the Constitution and in

the constitutionally-prescribed manner

8. The Constitutional

Court has ascertained, from Assembly documents and stenographic records,

as well as the statements of parties, that on 26 October 2005 at its

48th Session the Assembly of Deputies approved, with the requisite

majority of votes of Deputies, the Assembly Bill on the contested Act

from Assembly Document No. 160. The bill then advanced to the Senate,

which did not adopt any resolution concerning it. Thereafter the

contested Act was signed and duly promulgated in the Collection of Laws,

in Part 186 as No. 544/2005 Sb.; it entered into effect on 30 December

2005. The contested Act was thus adopted in the

constitutionally-prescribed manner and within the confines of the powers

set down in the Constitution while observing the rules laid down in

Art. 39 paras. 1 and 2 of the Constitution.

9. The Constitutional

Court affirms that the petition meets all the requirements laid down by

the Act on the Constitutional Court and nothing prevents its

consideration by the Constitutional Court Plenum.
 


V.


10. The contested statute, in its currently valid wording, contains the following text:

»544/2005 Sb.
ACT
of 2 December 2005
on the Construction of the Runway for Take-Off and Landing 06R – 24L of the Prague- Ruzyně Airport,
Parliament has enacted this Act of the Czech Republic:
§ 1
Public Interest
The

runway for take-off and landing 06R – 24L of the Prague- Ruzyně

Airport, corresponding in its placement with the currently valid

territorial plan of the Capitol City of Prague and the currently valid

territorial plan of the City of Hostivice, and further all construction

which will in the field of technical infrastructure ensure its operation

(hereinafter „runway for take-off and landing“), constitute a public

interest.1)
 

§ 2
(1) In

matters of administrative proceedings relating to the construction of

the runway for take-off and landing, the time-limit for the proceeding

as laid down in separate legal enactments2) shall be cut in half. If the

time-limit in question is of an odd number of days, it shall terminate

at the end of the day following the day upon which the mid-point of the

time-limit falls.
(2) In all administrative proceedings, as well as

in the course of other activities relating to the construction of the

runway for take-off and landing, the competent administrative bodies

shall not require opinions from those affected offices which submitted

their opinions in previous phases of the preparation for the

construction of the runway for take-off and landing.
(3) Administrative proceedings concerning the construction of the runway for take-off and landing cannot be suspended:
a) on the grounds laid down in § 137 paras. 1 and 2 of the Construction Act;
b) on the grounds laid down in § 64 para. 1, lit. c) of the Administrative Procedure Code; or
c) pursuant to § 64 paras. 2 and 3 of the Administrative Procedure Code.
(4)

Should the adjudication of a civil law or other objection pursuant to a

separate legal enactment3) or the adjudication of a preliminary issue

pursuant to the Administrative Procedure Code, about which the competent

court has not made a final decision, otherwise constitute grounds for

suspending the administrative proceeding, then the competent

administrative office shall prepare an opinion of its own on the issue,

without consideration of the possibility to submit a motion to institute

a proceeding before a court or other body, and shall decide on the

objection without delay. An appeal filed against such decision shall not

have suspensive effect.
(5) In a proceeding on the expropriation of

parcels of land, structures and rights pertaining thereto necessitated

by the construction of the runway for takeoff and landing, it shall be

considered that no agreement has been reached in accordance with a

separate legal enactment4) if an agreement has not been reached within

30 days of the delivery of an offer with a proposal for compensation at a

price that is customary in the location and time. In expropriation

proceedings, the public interest in the expropriation of land,

structures and rights pertaining thereto for the construction of the

runway for takeoff and landing shall be demonstrated by reference to

this Act.

§ 3
Transitional and Final Provisions
(1) §§ 1

and 2 apply analogously to the manner of issuing opinions and statements

of view on the construction of the runway for take-off and landing

which are not subject to an administrative proceeding.
(2)

Administrative proceedings instituted prior to the day this Act enters

into force shall be completed in accordance with the current legal

rules.
(3) Unless this Act provides otherwise, a special act5), the

Construction Act, and the Administrative Procedure Code shall apply to

proceedings in matters concerning the construction of the runway for

take-off and landing.

§ 4
Entry into Effect
 This Act shall enter into effect on the day of its promulgation.

Zaorálek [signature]
Klaus [signature]
Paroubek [signature]                                                                   
____________
 
1) Art. 11 para. 4 of the Charter of Fundamental Rights and Freedoms.

§ 108 para. 2, lit. a) and f) of Act No. 50/1976 Sb., on Territorial

Planning and the Construction Procedure Code (the Construction Act), as

subsequently amended.
2) For example, Act No. 500/2004 Sb., the Administrative Procedure Code, and Act No. 50/1976 Sb., as subsequently amended.
3) § 137 of Act No. 50/1976 Sb., as subsequently amended.
4) § 110 para. 1 of Act No. 50/1976 Sb.
5)

Act No. 49/1997 Sb., on Civilian Aviation and on Amendments and

Additions to Act No. 455/1991 Sb., on Trade Entrepreneurship (The Trade

Licensing Act), as subsequently amended.«.


VI.
 

11.

In order to be systematic, the Constitutional Court first of all

assessed the constitutional conformity of § 1 of the contested Act.
 

The

Constitutional Court has already previously dealt with an analogous

problem, specifically in its case no. Pl. ÚS 24/04 [judgment of 28 June

2005 (N 130/37 SbNU 641; 327/2005 Sb.)], in which was contested § 3a of

Act No. 114/1995 Sb., on Domestic Navigation, as subsequently amended,

which provided: „It is in the public interest to develop and modernize

the waterway delimited by the watercourse of the Elbe from the riverain

km 129.1 (Pardubice) to the borders with the Federal Republic of Germany

and by the watercourse of the Vltava from the riverain km 91.5

(Třebenice), including the navigable canal Vraňany – Hořín after the

confluence with the watercourse of the Elbe, including the watercourse

of the Berounka after the harbor of Radotín.“ In the cited judgment, the

Constitutional Court annulled this provision while asserting, among

other things, the following: »The demonstration of a public interest is

indispensable in the case of expropriation or mandatory limitation on

property rights under Art. 11 para. 4 of the Charter and the provision

related thereto of § 108 of Act No. 50/1976 Sb., on Territorial Planning

and the Construction Procedure Code (the Construction Act), as

subsequently amended. In view of the original wording of the contested

provision it is further appropriate to cite § 43 of Act No. 114/1992

Sb., on the Protection of Nature and the Countryside, as subsequently

amended: „By its decision in each individual case, the Government allows

for exceptions from the prohibition in specially-protected terrain,

pursuant to §§ 16, 26, 29, and 34, and § 35 para. 2, § 36 para. 2, and

§§ 45h and 45i, in cases where the public interest decidedly outweighs

the interest in the protection of nature.“ The contested provisions of §

3a of the Act on Domestic Navigation thus exclude the administrative

body from ascertaining, in an administrative proceeding, the public

interest in the development and modernization of the watercourse in

question, as that has already been determined ex lege. The

Constitutional Court considers unconstitutional such a solution whereby

the declaration of a public interest in a specifically designated matter

is made by statute . . .  The public interest in a specific matter is

ascertained in the course of an administrative proceeding on the basis

of a weighing of the most diverse particular interests, after

consideration of all conflicts and observations. It must then distinctly

appear from the reasoning of the decision, the central point of which

is the question of whether a public interest exists, why the public

interest outweighed a host of private, particular interests. One cannot

ascertain, from the contested provisions of the act, the grounds upon

which the legislature accorded the status of a public interest to the

development and modernization of a specifically-defined watercourse,

whether it investigated possible competing interests, or how it dealt

with those it found. It is otherwise evident that it could not even

ascertain these circumstances, as the legislative process is not endowed

with means allowing for the assessment of individual cases in all of

their complexity and consequences . . .  The contested provision

resulted not only in an encroachment by the legislative power upon the

executive power, but it also restricted the right to court review.

Perspective administrative decisions (for ex., on expropriation) made in

connection with the planning and modernization of the watercourse in

question, would be reviewable by a court within the framework of the

administrative judiciary, but the issue of whether there is a public

interest would be excluded from such review, as that has already been

laid down in a statute, by which ordinary courts are bound pursuant to

Art. 95 para. 1 of the Constitution. Were the contested provision not to

exist, then ordinary courts would be able to review whether

administrative bodies, in applying the indeterminate legal concept of

„public interest“ to a specific situation, did not exceed the bounds of

the statutorily-prescribed limits of administrative discretion (cf. § 78

para. 1 of the Code of Administrative Justice); however, the contested

legal rule de facto eliminates that possibility . . . Although the

contested provision does not entirely exclude court review, the

restrictions thereupon are to such a degree consequential that the

conclusions expressed in the cited judgment fully apply as well to the

case under adjudication. In view of the above-stated arguments, the

Constitutional Court is of the view that the contested provisions of §

3a of the Act on Domestic Navigation are incompatible with the

principles of the law-based state, in particular with the principle of

the separation of powers, and is in conflict with Art. 1, Art. 2 paras. 1

and 3, Art. 81 and Art. 90 of the Constitution, as well as with Art. 36

of the Charter. Accordingly, in view of the indicated constitutional

standards, the petition proposing the annulment of § 3a of the Act on

Domestic Navigation appears well-founded.«.

12. In view thereof,

the cited arguments and conclusions apply analogously in relation to § 1

of the contested Act, and since the Constitutional Court find no

grounds to depart therefrom, in the interests of brevity it suffices to

refer to the cited judgment and express the conclusion that § 1 of the

contested Act is incompatible with the principles of the law-based

state, especially with the principle of the separation of powers, and is

in conflict with Art. 1, Art. 2 paras. 1 and 3, and Arts. 81 and 90 of

the Constitution, as well as with the right to judicial review in

accordance with Art. 36 of the Charter. It thus found that the petition

proposing its annulment is well-founded.

13. The Constitutional

Court observes in this respect that, when Parliament was considering the

contested Act, its attention was drawn to the Act‘s

unconstitutionality. Judgment No. Pl. ÚS 24/04 (see above) was already

known at the time the Act was adopted; in the first reading of the bill

on the contested Act, Deputy Jiří Pospíšil alerted the Deputies about it

and, in the second reading, reproduced the content of the cited

judgment, concluding that § 1 of the contested Act, among others, was

unconstitutional. Deputy Eva Dundáčková made similar contributions to

the debate. Otherwise, the Government had already, in its negative

opinion on the bill for the contested Act, made reference to the

unconstitutionality of § 1, among others. However, in the course of the

debate none of the Deputies in essence even attempted in a relevant

manner (that is, on the constitutional plane) to deal with the arguments

that led the Constitutional Court to adopt the conclusions it did in

the cited judgment. Thus, for ex., one cannot deduce that in this case

there would be „merely“ a diverse constitutional law view that can be

defensibly argued as grounds for non-adherence to the cited

Constitutional Court judgment.
 

Despite

all that has been indicated, the Senate did not then adopt a resolution

on the contested Act, although its Committee on National Economy,

Agriculture and Transport adopted a resolution which recommended that

the Senate reject the proposed contested Act.
 

The

President of the Republic did not make use of his right to return the

adopted Act to the Assembly of Deputies, as is provided for in Art. 50

para. 1 of the Constitution, and signed the contested Act.

14.

The Constitutional Court calls upon the legislative power pro futuro

more rigorously to take into consideration the constitutional conformity

of legislative bills it is considering, especially in situations where

there is existing Constitutional Court jurisprudence which has even been

brought to its attention in the course of the legislative process.
 


VII.
 

15.

The line of argument cited in the preceding point and the conclusion on

§ 1 of the contested Act apply analogously to § 2 para. 5 in fine,

according to which the following holds true:  in expropriation

proceedings, the public interest in the expropriation of land,

structures and rights pertaining thereto for the construction of a

runway for takeoff and landing shall be demonstrated by reference to

this Act. Accordingly the Constitutional Court annulled as

unconstitutional this provision of the contested statute as well.
 


VIII.
 

16.

As far as the remaining provisions are concerned, the necessity to

annul them as well follows from their accessory nature in relation to

the annulled provision in § 1 of the contested Act, which alone

sufficiently specifies the construction to which the contested Act

should apply, as their very normative existence would lose any rational

sense, and would not be applicable in practice. Their consequent

unconstitutionality also leads to their annulment.

17. The common

denominator of these provisions is that the preceding arguments on the

merits and the conclusions (that is, as regards the statutory definition

of a specific legal public interest) do not apply to them, for a

statutory declaration of public interest in a specifically designated

matter is not contained in them. They are „merely“ rules laying out

certain procedural rules diverging from the general procedural rules

laid down in the administrative law enactments.

18. The

petitioners make the argument that the given provisions of the contested

Act, diverging from the general rules, govern a singular case, which

also deviates from one of the fundamental substantive characteristics of

the concept of a statute, which is its general nature. In the

petitioners‘ view, this should, in and of itself, entail such a

statute‘s unconstitutionality.

19. Should the Constitutional

Court accept the petitioners‘ line of argument, that would mean that it

would be unconstitutional to make any legal rule for a singular case.

However, the Constitutional Court has already in its jurisprudence [cf.

Judgment No. Pl. ÚS 12/02 of 19 February 2003 (N 20/29 SbNU 167; 83/2003

Sb.)] formulated the prerequisites for exceptions which, if fulfilled,

would allow for deliberation on the constitutionality of a statute

governing a singular (that is, specific) case; thus, through fulfilling

the prerequisites that the statute relating to a singular case not

represent a violation of the principle of equality. The aspect which

must be tested first is the criterion of the constitutionality of the

state of affairs established by non-accessory inequality: „the principle

of equality does not, however, place any sort of actual restriction on

statutes relating to a singular case, precisely because they enable us

to deal with something singular and exceptional, corresponding to its

special nature. The question is whether the given case actually is of

such a special nature, that a general disposition would appear arbitrary

and prescription for a singular case appears appropriate. To the degree

that a statute relating to a singular case is the expression of ratio –

not of mere voluntas – then it is incorporated into the organized

structure of the law-based state.“ (H. Schneider, Legislation

[Gesetzgebung], 2nd edition, Heidelberg 1991, p. 31). If the adoption of

a statute relating to a singular case is not an expression of voluntas

(arbitrariness), there must be rational arguments in favor of it. Yet,

it is not part of the Constitutional Court’s authority to adjudicate the

degree of this rationality. The second aspect is represented by the

criterion of assessing the constitutionality of the state of affairs

established by accessory inequality; such inequality is impermissible if

it would result in a constitutional right or freedom being affected.

20.

From the perspective of the designated constitutional maxims, the

petition to annul as well § 2 paras. 1, 2, 3, 4 and 5 appears

well-founded.

 

With

these provisions the legislature has established unjustified

inequality, taking into consideration only non-accessory inequality, as

it lacks an objective explicitly stated by the legislature, or even one

implicitly contained in the normative rule, which it would be possible

to consider as an expression of ratio. Thus, it does not provide any

rational arguments in support of the conclusion as to exactly why a

divergent legal regime, that is, divergent procedural norms (in

comparison with the general legal rules), should be laid down for

proceedings on the construction (governed by the contested Act) in view

of its specific character. If the legislature had in mind, as the reason

for the divergent treatment of the singular case reviewed here, the

public interest in speeding up the completion of the construction at

issue by abbreviating the administrative proceeding, all the same that

argument could be advanced in relation to other construction projects,

including „standard“ transport construction projects, thus even of the

same type (airports), or other construction projects in the public

infrastructure, where one would proceed in accordance with the general

regulations. Even in such cases it would be possible, within the

framework of specific proceedings, to find a public interest in their

completion, in consequence of which an interest in the speeding up of

the completion might be declared. In addition, the above-stated

conclusion applies, that concerning the unconstitutionality of declaring

a public interest in the construction governed by the contested Act; it

must be ascertained in a constitutionally conformable manner – only in

the context of an administrative proceeding, the logical consequence of

which is that neither is it possible to accept even a public interest in

the speeding up of the realization of this public interest (cf. the

Explanatory Report: „That means that not only the construction is in the

public interest, but the speeding up of its completion is also in the

public interest.“).
 

The

cited provisions of the contested Act do not pass muster even when

employing the criterion of accessory inequality, as they create an

inequality which results in a fundamental right or freedom being

affected, specifically Art. 11 para. 1, second sentence, of the Charter,

according to which the property rights of each owner shall have the

same content and enjoy the same protection. As an effect of the

abbreviation of the deadline in the administrative proceeding, by

excluding certain standard procedural institutes (for ex., the

suspension of the proceeding) and by modifying the general manner of

proceeding in expropriation proceedings, the property rights of the

subjects affected by the construction gained different protection than

those enjoyed by other subjects whose property rights are not affected

by the construction.
 


IX.
 

21.

The Constitutional Court concludes that the contested Act is in

conflict with Art. 1, Art. 11 para. 1, the second sentence, Art. 36 and

Art. 37 para. 3 of the Charter, as well as with Art. 1, Art. 2 paras. 1

and 3, and Arts. 81 and 90 of the Constitution. The Constitutional Court

has found the petition to be well-founded, and has therefore annulled

the contested Act.