DECISION
OF THE CONSTITUTIONAL COURT AND
CONSTITUTIONAL COMPLAINT
http://nalus.usoud.cz/Search/GetText.aspx?sz=3-1793-20_1
My
note:
The
Constitutional Court of the Czech Republic decided
without the presence of the participants on 23 July 2020 in the matter
of my constitutional complaint File no. III.
ÚS 1793/20 to reject this constitutional complaint and the
related proposal to repeal the provisions of the Veterinary Act.
Most
important, however, is the following opinion of the constitutional
court, which has the nature of a binding precedent,
which in my opinion is a crime against humanity, because it de facto
legitimizes contemporary murders of tens of millions of farm animals
for each month also in the territory of the Czech Republic.
According to this decision of the Constitutional Court „in
addition, it is for the lessor to determine what goods are to be
offered at the market and to determine the conditions for their sale. The
rejection of the complainant's application for the lease of a market
place justified on the grounds that his intended sale of carrion meat
(even fresh and perhaps also with a veterinary certificate) is in
conflict with veterinary regulations, compliance with which is required
by the Market rules, represents“
allegedly „a completely legitimate procedure on
the part of the town of Hustopeče.“
The
Constitutional Court states that it is allegedly not another
intervention of a public authority, although the
issue of the Market rules of the municipality is regulated by public
Section 18 of Act No. 455/1991 of Collection the Trade Licensing Act.
According to this decision of the Constitutional Court „concluding
of the contract for the lease of a market place in the market operated
by the municipality is“
(so allegedly) „a
purely private matter (in the case of the
municipality it is done independently) and none of the potential
contracting parties can be forced to enter into a contractual
relationship.“
According
to my constitutional complaint,
the above-mentioned refusal of the
town of Hustopeče to lease me a market place for the sale
of my above-mentioned assortment was a lasting intervention of a public
authority other than an
administrative decision, because it was
partly independent and on the
contrary partly delegated (i.e. administrative, i.e. public) competence
of the
town of Hustopeče and of the administrator
of the market, because it exceeds
the scope of delegated competence
according to the public Section 18 of Act
No. 455/1991 of Collection the
Trade Licensing Act (hereinafter also "Trade Licensing Act") regulating
the issuance of Market rules in municipal regulation, virtually its
implementing Operating rules of town market on Dukelské
square
in Hustopeče (see its paragraph 1). Therefore, my lease of marketplace
on this market involved the unconstitutional performance of the public
service
only partially within the independent, i.e. private competence
of the town
of Hustopeče and of the market administrator. Although the town
of Hustopeče and the market
administrator are entitled
to determine the conditions of sale
on their market in the
Market and Operating rules,
but they are then obliged to comply with these legal Acts and they must
perform this public service in a non-discriminatory way neither in a
purely administrative or private discretion according to below
mentioned Article 2 paragraph 3 of the Constitution of the Czech
Republic without unconstitutional discrimination in relation to all
persons in this market during the sale agency
of, among other things, fresh,
chilled or frozen meat, which
is allowed here according to the Operating rules
and happens here in my personal experience. In addition, my assortment
was not excluded from sale at
this market as unsuitable (see paragraph 1 of Operating rules) but for
violation of the veterinary act (see paragraph 9 of Operating rules).
Rejection of my assortment by the town of Hustopeče and by market
administrator for violation
of the public veterinary act (see paragraph 9 of Operating rules) in
this matter is according to my constitutional complaint the
unconstitutional performance of public service and performance of
measure or other intervention of a public authority within Section 72
paragraph 5 of the Act no 182/1993 of Collection on the constitutional
court (hereinafter also “act on the constitutional
court“). Therefore,
this unconstitutional lasting intervention of a public authority is not
a purely private law relationship,
and therefore the jurisdiction of the Constitutional Court is also
given.
Because
I want to pay my living costs from
this sale of my relatively expensive assortment and to exercise it as
my main profession, this unconstitutional lasting intervention of a
public autority is a refusal of an
administrative permission
in connection with the requirements for the exercise
of my profession*, thus among other
things a dispute over civil rights and obligations and the substantial
harm according to the Article 6 Right to a fair trial
in conjunction with Article 35 paragraph 3) letter b) of the
European CONVENTION
ON THE
PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS,
as amended by Protocols No 11 and No
14.
*Benthem
v. The Netherlands, No. 8848/80, October 23, 1985, Series A No. 97,
§ 36
I
confirm that I have used all
available and effective remedies in the given State (Czech Republic),
namely a letter with the data message
of the town
of Hustopeče and the market
administrator: Organizational
unit of the town of Hustopeče Administration and maintenance of
buildings dated
25 June 2020 reference number: MUH/37082/20/433, file reference:
MPO/7131/20/433. To the
exhaustion of all domestic remedies
against this unconstitutional lasting intervention of the town of
Hustopeče, I state the following. This lasting intervention of a public
autority goes beyond the independent, i.e. private competence
of the town
of Hustopeče due to the regulation of the issued
Market and Operating rules of its market within
the public Section 18 of the Trade
Licensing Act and so it is unconstitutional
performance of public service
only partially within the public (i.e. administrative competence). Due
to the partially independent, i.e. private competence
of the town
of Hustopeče in this matter, it is
not possible to proceed here according to Act No. 500/2004 of the
Collection on the Administrative Procedure Code and Act No. 150/2002 of
the Collection on the Administrative Procedure Court Code. Therefore,
it is the
execution of measure, virtually other intervention of a public
authority within the meaning
of Section 72, Paragraph 5) of the Act on the
Constitutional Court, against which there
were no other remedies than the
above-mentioned constitutional
complaint and against which this constitutional
complaint was not inadmissible.
III. ÚS 1793/20
CZECH REPUBLIC
RESOLUTION
Of
the Constitutional Court
The Constitutional Court ruled in a
senate composed
of the President Jiří Zemánek (
Judge-Rapporteur) and
Judges Radovan Suchánek
and Vojtěch Šimíček on the constitutional
complaint of JUDr. Dalibor
Grůza ,
Ph.D. , apartment
Mírová 1098/4, Hustopeče, represented
by JUDr. Miroslav Moltas , LL.M., lawyer,
registered office Střední 933/10, Hustopeče, against another
intervention of a public authority, connected with a proposal to repeal
§ 3
par. d), § 5 par. 1 let. h), § 18,
§ 21 par. 1, § 27a par. 1
let. b) and par. 3, § 39 par. 2 and par. 3,
§ 39a to § 41 and § 42 par. 2
and par. 3 of Act No.
166/1999 Coll., on veterinary
care and on the amendment of some related
acts ( Veterinary
Act), as amended, as
follows:
The
constitutional complaint and the related proposal are rejected.
Justification:
1.
By a submission received
by the Constitutional Court on 27 June 2020 and supplemented
by a submission dated 30
June 2020, the applicant objected to the communication from the Town
of Hustopeče
dated 24 June 2020 File
no. MUH / 37082/20/433, which did not grant his request for
the lease
of a market place in the
market operated by the town of Hustopeče for the purpose
of "sale unprocessed after veterinary autopsy of fresh meat
of poultry carrions (hens) from own breeding
for human consumption" due
to discrepancy of this application with legal regulations
[specifically with Act No. 166/1999 Coll., on Veterinary
Care and on
the Amendment
of Certain
Related Acts (
Veterinary Act
), as amended
later regulations]. It demands that the
Constitutional Court prohibit the town
of Hustopeče and the market
administrator (Administration
and maintenance of the buildings of
the town of Hustopeče, organizational
unit) from preventing it from selling
such meat. In the submission, he also proposed the repeal of
the provisions
of the Veterinary
Act listed in the title.
2.
In the conduct of the Town
of Hustopeče, which refused to conclude a contract with it
for the lease
of a market place, the complainant sees another intervention of a
public authority against which there
is no procedural means of protection.
The admissibility of a constitutional complaint is derived
from § 75 para. a) of the
Act
III. ÚS 1793/20
No.
182/1993 Coll., on the
Constitutional Court, as amended (hereinafter the “Act on the
Constitutional Court”), as its significance substantially
exceeds the applicant's own interests and was filed within
one year.
3.
Before the Constitutional Court proceeds to the factual assessment of
the constitutional
complaint, it is obliged to examine
whether it meets all the
requirements required by law and whether the conditions for its hearing
set by Act No. 182/1993 Coll.,
On the Constitutional Court, as amended, are given, below only
the “Constitutional Court Act”). He did
not reach such a conclusion in the present case.
4.
A constitutional complaint
pursuant to Article 87
para. d) The Constitution
of the Czech Republic (
hereinafter the “
Constitution”) constitutes a procedural means for the
protection
of the subjective
fundamental rights and freedoms of the
individual complainant, which are guaranteed by the constitutional
order. According to the Act on the
Constitutional Court, a
natural or legal person is entitled to file a constitutional complaint
against a final decision in proceedings in which he or she was
a party, measure or other intervention of a public authority violating
his or her fundamental right or freedom guaranteed
by constitutional order.
5.
The complainant sees another intervention
of a public authority in the fact that
the town of Hustopeče refused to conclude a contract with him for
the lease of a market place. However,
a public authority intervention (other than a final decision),
which is usually interpreted as a one-off, illegal and at the same
time unconstitutional attack by public authorities on constitutionally
guaranteed fundamental rights and freedoms, it cannot be considered at
all in this case.
Concluding
a
contract for the lease of
a market place in the market operated
by the municipality is a purely private matter (in the case of the
municipality it is done independently)
and none of the potential contracting
parties can be forced to enter into a contractual
relationship. In addition, it is for
the lessor to determine what goods are to be offered at the
market and to lay down the conditions for their sale.
The complainant's refusal to rent a market place is
justified by the fact that his intended
sale of carrion
meat (albeit fresh and possibly also with a veterinary
certificate) is contrary to veterinary rules. whose observance
is also required
in the Operating rules of the
Market, represents a completely
legitimate procedure on the part of the
town of Hustopeče.
6.
If the Constitutional Court did not find another
intervention of a public authority in the rejection of the
applicant's application for the lease
of a market place, then his
constitutional complaint must be assessed
in the light of this conclusion.
According to § 43 par. 1
let. d) of the Act
on the Constitutional Court, the Judge-Rapporteur
outside the oral proceedings without the presence of the participants
shall reject the
motion by a resolution if it is
a motion for the hearing of
which the Constitutional Court does not have
jurisdiction. Non-jurisdiction means a situation where the
complainant demands something to which the Constitutional
Court is not entitled, namely that he is not at all capable
of conducting such proceedings. Therefore, if the complainant
demands the issuance of a decision
prohibiting the town of Hustopeče and the market administrator from
preventing the complainant from selling meat
(carrions), the Constitutional Court does not have jurisdiction
to hear such a motion. By
hearing such a proposal, the Constitutional Court would deviate
from the limits of its
competence arising from Article 2
para. 3 of the
Constitution and Article 2
para. 2 of the Charter of Fundamental Rights and Freedoms.
7.
With regard to the fact that
the Constitutional Court is not at
all competent to hear the complainant's
petition, his arguments deriving the admissibility
of the constitutional
complaint from § 75
para. a) of the Act on the Constitutional
Court are not also relevant.
2
III. ÚS 1793/20
8.
For the above-mentioned reasons, outside the oral proceedings without
the presence of the participants, the Constitutional Court rejected the
constitutional complaint by a resolution as a motion for the
hearing of which the Constitutional
Court does not have jurisdiction [§ 43
para. d) of the Act on the Constitutional
Court].
9.
Given that the accessory petition
for annulment of the legal
regulation [provisions of the Veterinary
Act mentioned in the title] submitted
on the basis of § 74 of the
Act on the Constitutional Court shares the fate
of the constitutional
complaint, it had to be rejected, pursuant
to § 43 para. b) of the Act on the Constitutional
Court.
Instruction:
An appeal against
a resolution of the Constitutional Court is not admissible.
Done
at Brno, 23 July 2020
Jiří
Zemánek vr
President
of the
Senate
For
the correctness
of the making:
Monika
Zbořilová
3
Registered
seat: AK Střední 933/10, 693 01 Hustopeče
branch:
AK Kupkova 380/2 690 020 Břeclav
phone:
+420 605 757 673
email: akmoltas@email.cz
JUDr. Miroslav
Moltas,
LL.M. CAK:
50103, IC: 16350715
LAWYER
Constitutional Court of
the Czech Republic
Joštova 8
660 83 Brno
Reference
number of the
Constitutional Court:
III.ÚS 1793/20
Of the Town
of Hustopeče reference number
: MUH/37082/20/433, file
reference: MPO/7131/20/433
Draftsman:
JUDr. Dalibor Grůza
Ph.D., born January 29, 1973, permanent address
Mírová 1098/4, 693 01 Hustopeče, tel.
534008871, delivery address
- data box
ID: ztxswqa, Type of box:
Natural person, Name: Dalibor GRŮZA (Authorized
person)
represented
by: JUDr. Miroslav
Moltas, LL.M., lawyer with
the registration number of the
Czech Bar Association: 50103, ID: 16350715, address: Střední
933/10, 693 01 Hustopeče
Other participants:
1. Town of Hustopeče, ID: 00283193,
with its registered office at Dukelské square 2/2, 693 01
Hustopeče (hereinafter
also " Town of
Hustopeče " )
2 . Market adm
inistrator: Organizational unit of the town
of Hustopeče Administration
and maintenance of buildings, with its registered office at
Dukelské square 2/2, 693 01 Hustopeče (hereinafter
also "market
administrator")
Supplement to the
constitutional
complaint together with the motion
to repeal the provisions of the Act
filed on 27 June 2020 without
the legal representation of the petitioner by his lawyer
Triplicate
Evidence: files of the Town
of Hustopeče reference number:
MUH/37082/20/433, file reference: MPO/7131/20/433
Enclosures:
- My data
message
to the Town of Hustopeče and the market
administrator from
17 May 2020 with a delivery
note from 18
May 2020 (message
ID 785135987 - here as a forwarded attachment to my data message from
19 June 2020 below ) with attachments:
1. JUDr. Dalibor Grůza
Ph.D., Summary of the Philosophy of Balance (4 pages), copyleft May 14,
2020, see www.spvzt.cz
2. My application for the lease
of one market place at the market on Dukelské square
in Hustopeče
- My data
message
to the Town of Hustopeče and the market
administrator from
19 June 2020 with a delivery
note from 22
June 2020 (message
ID 795999584 )
with
attachments:
3. Pre-litigation letter to comply with Section
142a of the
Code of Civil Procedure
4. Preliminary wording of
my constitutional complaint
(reported to the Town of Hustopeče and the market administrator)
5. Old as amended on 22 May 2012 and
new as
of 4 June 2020 Operating rules of the
market on Dukelské square in Hustopeče
6. My
supplementary
data message to
the
Town of Hustopeče and the market administrator
from
24 June 2020
with a delivery
note from
24
June 2020 (message
ID 797332749 )
7. Data
message
of the Town of
Hustopeče and the market administrator
of 25 June 2020
with a delivery
note of 25
June
2020 (message
ID 797890842) on
the exclusion of my poultry carrions
from sale at the market for
the contested provisions of the
Veterinary Act
Power
of Attorney
dated June 30, 2020
Content of the
complaint:
I. Facts of the complaint…
page 2
II. Description
of legal facts… page 2
III. Fundamental
rights and freedoms which the complainant
alleges have been violated… pages 2 to 10
IV. Compliance
with the admissibility requirements of the complaint…
page 10
V. Required legal protection if the
Constitutional
Court decides in my favor… pages 10 to 11
VI. Prayer of the
constitutional complaint… pages 11 to 17
VII. Supplementing my
constitutional complaint… pages 17 to 18
On my express instruction,
I wish that all of my lawyer's
submissions and all of my submissions in this case and that my
constitutional complaint be considered as a whole.
I.
The facts of
the complaint
1. I am a small poultry
breeder
in my garden with a cellar
on Habánská Street in Hustopeče and I asked
the Town of
Hustopeče and the market administrator (
see Enclosure
No. 5 ) to
rent one market
place on the market with
a data message dated 17 May
2020 delivered on 18 May 2020 on Dukelské square in
Hustopeče for sale in
small quantities unprocessed after veterinary autopsy of fresh (meat)
poultry carrions, namely hens from
my own small farm (breeding activities), especially to ethical
vegetarians (people and by them represented /breeded/ their animals
that do not survive completely without eating meat and thus would
consume a minimum amount of this contemporary most merciful meat (i.e
carrions) which do not endanger their health (see
Enclosure
No. 2 ).
If the listed
public authority did not decide on my application within 30 days of its
submission,
I sent him a
pre-litigation letter pursuant
to Section 142a of the
Code of Civil Procedure within at least 7 days
before filing the
motion to initiate this procedure with my data message from 19. June
2020 delivered to it on 22 June 2020 (see
Enclosure
No. 3 ).
This authority responded to this letter with its
data message of 25 June
2020 (see Enclosure
No. 7 ) that
it was forced
not to rent me a market place (see Enclosure
No. 5 ) for
the above-mentioned assortment of poultry
carrions due to the law and the Operating rules.
According to provisions of the Veterinary
Act contested by me as amended.
II.
Description of legal facts
2.
According to the
rules of operation of the
market the market administrator should not exclude
as unsuitable from sale after
assessing of my above sale assortment the this sale assortment or its
portion
and to prevent from sale ad I. of this
constitutional complaint
through not concluding a contract for the lease with me (or
reservation according
to the new Operating rules of the Market, my note) of
one market place in the market on
Dukelské square in Hustopeče (see Enclosure
No. 5 )
despite my fruitless pre-litigation
letter ad
I. of this constitutional complaint, for the following
reasons and for reasons of constitutionality
(see below) . This
is a permanent
other intervention, partly in its own
right of the town of
Hustopeče than the administrative decision.
III.
Fundamental rights and
freedoms, the violation
of which the complainant alleges
3. Against
the
above-mentioned lasting
measure, or other
intervention of a public authority (ad II. of this constitutional
complaint), I submit
within the meaning
of Section 72 paragraph 1 letter a) and Section 74 of Act
No. 182/1993 of the Collection on the Constitutional Court (hereinafter
also “
Act on the Constitutional Court”) this
constitutional
complaint
together
with a proposal to repeal the provisions of the
Act ,
which justifies the
violation of
Articles 3, 6, 7, 26 and 36 of
the Charter of Fundamental Rights and Freedoms (Resolution No. 2/1993 of
Collection Resolution of the Czech National
Council on promulgation of the Charter of Fundamental Rights and
Freedoms as part of the constitutional
order of the Czech Republic) (hereinafter
also the "Charter" ) and Article
2 of Constitutional
Act No. 1/1993 of the Collection of the Constitution
of the Czech Republic (
hereinafter also the “Constitution”) .
4.
Pursuant
to Article
2 of the Constitution (3) State power serves all
citizens and may be exercised only
in cases, within the limits and in the manner provided
by law. (i.e. it also serves
me and /Czech/ animals, which have basic rights and legal personality
according to Czech law, see below, my note)
According to Article
26 of the Charter (1)
Everyone has the right to freely choose a profession and prepare for
it,
as well as the right to do business and to engage
in other economic activities., (2) The law can set conditions and
restrictions for the performance of certain professions or activities.,
(3) Everyone has the right to obtain funds for their vital needs by
work.(which also applies to my abovementioned economic
activity in the abovementioned market place, where
the following legal restrictions or other unconstitutional
discrimination against other persons in that market market in the sale
of fresh, chilled or frozen meat should
not apply to it because
of the by me objected unconstitutionality which is allowed here
according to the Operating rules /
see Enclosure
No. 5. / even according
to my personal experience, it usually happens
here, my note)
5.
Also the Charter (1)
Fundamental rights
and freedoms shall be guaranteed to all without distinction
of sex, race, color, language, religion or belief, political
or other opinion, national or social origin,
membership of a national or ethnic
minority, property, clan or other status.
Article 6 (1)
Everyone
has the right to life. Human life is worthy
of protection before birth. (4) It is not a violation of the
rights
under this article if someone
has been deprived of life in connection
with conduct that is not criminal
under the law., Article
7 (1)
The inviolability of a person… is guaranteed. It
can be limited only in cases stipulated by law. (2) No one
shall be subjected
to torture or to cruel, inhuman or degrading treatment
or punishment. ("All",
i. e.human fundamental
rights and freedoms as well as fundamental rights and
freedoms of animals,
which according to Czech law have the
legal personality of animals /see below
paragraph 18 of this constitutional complaint/, I mean in
particular the right to life and protection of bodily
integrity of humans and animals, with the
exception of the legal restrictions
mentioned above.
6. The petitioner is
convinced that
the measure or other intervention
of a public authority ad II.
deviated from the
limits of constitutionality and the protection of fundamental
rights and that it violated its
by Charter guaranteed right
to a fair trial, as enshrined in
Article 36 and other
provisions of the
Charter guaranting the right to a due process, in which all principles
of right decisions
in accordance with law and constitutional principles are applied.
Ad Article 2 of the
Constitution and Article 26
of the Charter:
7. I
am aware that
according to the
Czech Act No.
166/1999 of the Collection
on Veterinary Care in its
current version (here also the
"
Veterinary Act "):
Section 3 (1) For the
purposes of
this Act,
letter d) animals
for slaughter
shall mean
farm animals which
are intended for slaughter and slaughter processing and whose meat is
intended
for human consumption. Section
5 (1) The livestock
farmer is also obliged to
supply point (h) to the
slaughterhouse only animals for slaughter
with truthfully and completely stated information on the food chain in
accordance with Annex II, Section III of Regulation (European
Community) No 853/2004 laying down special hygiene
rules for food of animal origin;
the specified period within the meaning
of point 3 (c) of Section III of Annex II to Regulation (
European Community) No 853/2004 means 60 days before
the date of delivery of
the animal for slaughter to the slaughterhouse. Section
18, (1) Animal products must
be letter b) safe and safe from
the point of view of protection
of human and animal health, in particular they must not be
a source of risk of spreading diseases and diseases transmissible from
animals to humans, letter c)
must meet microbiological
criteria and must not contain residues and contaminants substances in
quantities which, according to scientific evaluation, pose a danger to
human health, (4) Animal products
for which there are reasonable doubts about compliance
with obligations or requirements to ensure their health
safety may be used or
further processed only with the
consent of the regional veterinary
administration and under its conditions (5) Foods
of animal origin which are not harmful to health are considered edible,
or edible after
special treatment or further processing.
Foods of animal origin that do not meet the health
requirements are considered
inedible. Section
21 (1) Unless otherwise
provided, animals for slaughter must
be slaughtered in a slaughterhouse under the conditions laid down by
this
Act, special legal regulations and European Union
regulations.
Section 27a (1) A breeder
may sell in small quantities point
(b) fresh poultrymeat,
fresh rabbit meat or fresh
nutria meat, originating from poultry, rabbits or nutrias from his own
holding and slaughtered on that holding, on his holding, in a market or
at a market located in the Czech Republic, directly to the consumer, or
to supply them to a local retailer;
poultrymeat need not be graded by quality
and weight, (3)The
animal products referred to
in paragraph 1 must come from healthy
animals and must be healthy and safe for the
protection of human and animal health, in particular (this
is an illustrative
list, see Section 18 above, my note)
must not be a source of disease and animal-to-
human diseases.
The animal products referred to in paragraph 1 may not be placed
on the market by mail order
by the local retail operator. Sections
39 (2) and (3), Section 39a
to Section 41, Section 42
(2), the second and third developed sentence objects
consider dead animals
as cadaver and as such include
them under the broader term „animal by-products“
which, unlike animal products, are not intended for human
consumption, but for disposal, removal or further processing
(not processing into food intended for human
consumption). As part of
the placing on the market of meat
and meat products for human consumption,
the Veterinary Act only works
with the variant of slaughter, i.e. killing, of
animals (in slaughterhouses). (All
the above Sections in this paragraph also
refer to the "
contested provisions")
Section 3 (1) For the
purposes of
this Act,
letter n) the
raw material of animal origin, namely all parts
of animal bodies, especially meat means animal
products.
Section 12 (2) (a) of
the bodies o
f dead, premature,
stillborn or slaughtered animals (
hereinafter referred to as "
cadavers").
8. However
, in the case
of carrions of
animals after veterinary autopsy, "
if they are heat-treated
for 5 to 6 minutes at 121 degrees Celsius, the vegetative forms of the
micro-organisms as well as the spores are destroyed" [ 1].
This is possible
by boiling in a pressure cooker or under
a lid, for example in several waters (
see below) or
by heat treatment of canned meat
of carrions after a veterinary autopsy.
Notes to paragraph 8:
[1] "Canned
and semi-preserved meat products are meat products hermetically sealed
in tin or
other suitable packaging and heat-treated to ensure their long-term
shelf-life. - Canned meat
- the market includes meat in its own
juice, ready meals without side
dishes and with side dishes, pâtés
and hashes. They are heat
treated for 5 to 6 minutes at 121 degrees Celsius. Heat
treatment
destroys vegetative forms of microorganisms,
but also spores.“, Page 9 of 17, Secondary
Vocational School
Domažlice, Teaching material,
Food and Nutrition, cited
on 18 May 2020, see https://www.soudom.cz/maso-a-masne-vyrobky.html
9. Therefore
I consider the contested provisions of the Veterinary Act
as a whole as unconstitutional, because at present
in the Czech Republic these legal conditions essentially prevent
the free sale of meat naturally died animals on principle of the old
age even after veterinary autopsy. However, such a sale would
make it possible to keep the animals until their natural death,
essentially in old age, and then to sell their meat freely to people,
especially ethical vegetarians, after a veterinary autopsy, because
according to the generally accepted opinions of the medical community
in the Czech Republic, some people, especially I mean pregnant and
breastfeeding women and young children, as well as some pets such as
dogs and cats ( except vegetarian animal feed yarrah for dogs [2], or
amicat with necessary taurine against blindness for cats, taurine is a
protein that can be produced without the need to kill animals [3]) can
not do without eating meat and because they would consume a minimum
amount of today's most merciful meat (i.e. carrions) that do not
endanger their health [4 ]. This meat was also eaten in antiquity:
Bible (Bible of Kralice), Deuteronomy 14, verse 21 No dead (understand
"no carrion" according to the Czech Ecumenical Translation) you will
eat, and to the incoming, that is in your gates, you will give it and
he or she will eat it (it is directly the command
of Biblical Torah to non- Jews to eat carrions,
my note), or you will sell to foreigner (it is directly the command of
Biblical Torah for Jews, my note) (apparently
here both were proven experience of many years, which was a mistake
leaving completely, my note)
... The Roma also used an ingenious recipe for eating animal carrions,
"carrions were boiled in several waters" [5], at a time when no one had
yet heard of the sterilization of surgical instruments.
Notes to paragraph 9:
[2] Breeding
supplies bitiba.cz - All for low prices,
Yarrah Bio vegetarian and vegan
dry dog food [online], [cited
May 21, 2020], Available from: https://www.bitiba.cz/shop/
feed_for_psy
/ granule_pro_psy / yarrah
/ adult / 483455
[ 3] AmiCat 7.5
kilograms
- Twiko, Cat food only from plant and mineral raw
materials [online],
Copyright © Twiko.cz, [cited May 21, 2020], Available from: https://www.twiko.cz
/ ami-cat-7-5kg /
[ 4] From 1 July
2003, a
ban on feeding cadavers (carrions)
was incorporated into feed legislation
(Decree No. 544/2002 of the Collection, which amends Decree
No. 451/2000 of the Collection, which implements Act
No.
91/1996 of the Collection on Feed), virtually animal carrions
for livestock nutrition .
See Meat Bone Meal - Wikipedia,
[online],
[cited March 17, 2019], available from: https://en.wikipedia.org/wiki/Meat Bone
Meal. I consider this legal regulation,
not only for herbivores, but also for omnivores, or carnivores such as
pigs or poultry , if the feeding
of meat after
veterinary autopsy or boiled in several
waters under legal conditions is concerned. "
Obiter dictum" also as unconstitutional
for the same
reasons.
[5] "Meat
rarely appeared on the table. Women obtained it in three ways,
namely
by buying it in a shop, stealing it or
buying inferior meat in a slaughterhouse.
Sometimes they dug up carrions. ( Carrions
were boiled in several waters. According to the old Roma, carrions are
cleaner meat because
the animal did not die a violent death
. )
”, Pages 30 to 31 of 142, Higher Vocational School and
Secondary Medical School, MILLS, ltd.,
Čelákovice, Prepared by: Tereza Rosecká , Leader:
ThDr. and Mgr. Ladislava
Marešová, Čelákovice, 2010, The Life
of
the Roma Minority - PDF Free
Download. Documents
Professional Platform - PDF Download Free
- ADOC .TIPS [online],
Copyright © 2020 ADOC.TIPS,
All rights reserved, [cited may 20 2020 available fromhttps://adoc.tips/ivot-romske-meniny.html
Ad
Articles
3, 6, 7 of the
Charter :
10.
I base this my
opinion
on the unconstitutionality of the impossibility
of free sale even after a veterinary
autopsy of the meat of
naturally dead animals on the current trend in Czech law, which
fundamentally changes the view
of animal rights in our society. Roman law placed
animals, as well as slaves, in the legal regime
of the thing.
The status of the
animal as a slave in terms of Roman law defined
by the principle of "servus nullum caput habet" (
slave has no "head", has
no legal personality, that is, the slave
is a living thing) is
changing to the position of
the
animal as a Hebrew slave within the meaning
of the Bible, the Old Testament, Torah. In Jewish
law, the slave
remained a human being and was a subject of law,
that is, a bearer of rights.
The law of
Moses protected the slave against
arbitrary mutilation and prosecuted his death by the slave master (Exodus
21, verses 20 to 21, my note).
If the master damaged
the slave's eyes or teeth,
he or she was obliged to release him or
her as compensation (Exodus 21, verses
26 to 27). [6] (See the
provisions of the amendment to the Criminal Code
below, my note)
Aristotelian philosophy also defined a clear distinction between animal
and human. In
it, the animal is only a vegetative
and sensual living being endowed with
the ability to move, a human is
a rational and social being, spiritual, moral, and therefore has an
immortal soul.
Christianity has fully adopted this concept
since the High Middle Ages.
11. Some approaches give
animals the
ability to have rights (currently in Czech
law it is
a legal personality, my note
) , but not the ability
to perform legal acts (currently in
Czech law it is a question of
legal capacity, my note), which is a status
similar to a small child , or
ranks them in the category of
"sentient things" [7], both
of which are the current trend in Czech law (see
below). See, for example, Article
20a of the German Constitution ,
Article
80 and Article 120 of the Swiss
Constitution, Section 285a of the Austrian
Civil Code ABGB, Section
90a of the German Civil Code BGB, Article 641a of the Swiss
Civil Code, Article 137 of the new
Russian Civil Code and the same rule in Article 1 (1) of the Polish
Animal Welfare Act or
the American so-
called abolitionist /
historically in the United States anti-slavery/ approach in the concept
of "animal liberation" /see for example Peter Singer in his main book
Animal Liberation/ by means of judicial order
„Habeas Corpus“ to
reach protection of animals precisely
by convincing the court that the
term of person includes not
only humans but also a certain animal [8], see also
the explanatory memorandum to Sections 494, virtually 487 of the Czech
New Civil Code, which also state that
this "provision",
following the example of other
European legislations, eliminates dogma of Roman law on "roaring
instruments" and the legal concept of
animals as things in the legal sense. As
a Roman Catholic Christian, I am grateful
for efforts to correct the above-mentioned
Aristotle Christian heresy
about animals in the light of
the ecological
encyclical Laudato Si (
Be Praised) of
2015 (see
here “Prayer for
Our Earth” and “
Prayer for Christians
and All Creation”, pages
151 to 153, publishing house Paulínky,
2015, my note) of the current Pope
Francis.
12. Non-human
persons.
There are several cases where the
court ruled on recognizing the status of person for intelligent
animals, so-called non-
human persons: In July 2013, the
Indian Ministry of Environment and Forestry decided to upgrade the
status of intelligent
cetaceans to non-human persons and ban aqua centers, water
shows and similar facilities where cetaceans were kept in captivity and
purely for entertainment.
[9] [10] In December 2014, a New York City court ruled
negatively
to grant the status of a
person to a chimpanzee, Tommy, who
was trained for simple tasks
and even starred in several films, virtually chimpanzees in
general. The court's reasoning was based roughly
on the fact that these primates could not bear the duties or
be responsible for their actions.
(This is more a question of legal capacity
than a question of legal personality, but for example the
dog is, according to my personal experience, aware of obligations and
is also responsible
for his or her actions, my note
) .
The Non human Project in New York
State sought to grant
status. [11] In March 2015, a court in Buenos Aires,
Argentina, ruled
that a female Sumatran orangutan who had spent the last 20 years at the
zoo was granted non-
human person
status (with
the right to liberty) and decided to move her to a Brazilian national
park. [12] [13]
13.
If the Constitutional
Court's decision on the
unconstitutionality of the ban
on the
free sale of carrion meat under
conditions guaranteed by law, this would
be another but apparently turning
point in the fight against animal slavery,
if slaughter is
not absolutely necessary,
and this constitutional complaint is one
of the steps
in this struggle, which in the fight
against human slavery lasted practically from antiquity (the Qin
dynasty ruling in China from 221 to 206 BC abolished human slavery for
the
first time) practically until 1865, when the 13th Amendment
to the Constitution of the United States
of America was adopted, which banned the slavery
of people throughout the United States of America.
Notes to paragraphs
10 to 13:
[6] Slavery
- Wikipedia,
[online], [cited May 20, 2020], Available
from: https://en.wikipedia.org/wiki/
[7] Animal - Wikipedia,
[online], [cited May 21, 2020], Available
from: https://en.wikipedia.org/wiki/Animals
[8] pages 13
to 14, 28 to 31, Houdek, Pavel. Benefits and risks of
introducing
the legal subjectivity of animals in Czech law. Prague,
2017. Diploma thesis. Charles University, Faculty of Law,
Department of Environmental
Law. Thesis supervisor Stejskal,
Vojtěch. [online], [cited May 26, 2020], Available from: https://dspace.cuni.cz/handle/20.500.11956/1860
[9] India
Declares
Dolphins "Non-Human Persons", Dolphin shows BANNED / translation see
the following note
of this constitutional
complaint /. Daily Kos
[online]. Jason Hackman, Community,
Tuesday, July 30, 2013, 5:00 PM 29 minutes. Copyright
© Kos Media, LLC [cited June 22, 2020] .
Available from: https://www.dailykos.com/stories/2013/07/30/1226634/-India-Declares-Dolphins-Non-Human-Persons-Dolphin-shows-BANNED
[10] India
declares
dolphins "non-human persons", show with dolphins banned
| Dôležite.sk,
important information, daily news, current
news. Wayback Machine [online]. Jason Scott
Hackman, translation:
Miroslav Pavlíček, source: dailykos.com, Asia, February 25,
2020. Author: ac24 #
HaqeVimo24 [cited June 22, 2020]. Available
in the archive taken on March 5, 2014
from: https://web.archive.org/web/20140305092621/http://www.dolezite.sk/India-vyhlasuje-delfiny-za-nelidske-osoby-show-s
-delfiny-zak-ydX.html
[11] Apeus
corpus. Chimps not human,
says New York court.
Chimpanzees are not humans, says a court in New York, my translation /,
RT USA News.
Rt Breaking news,
shows, podcasts
[online]. Barbara J King (@bjkingape), December
4, 2014, 09 AM 27 minutes / Update 5 years ago. Copyright
© Autonomous
Nonprofit Organization [cited june 22 2020 available from https://www.rt.com/usa/211639-chimpanzee-court-rights-newyork/
[12] Argentine
court extends human
right to freedom to
orangutan / Argentine court
extended human right to freedom to orangutan, my
translation /, Rt WorldNews. RT Breakingnews, shows, podcasts
[online].
Lyndsay Farlow (@LyndsayFarlow),
22 December 2014, 03 AM 27 minutes
/ Update 5 years ago. Copyright © Autonomous
Nonprofit Organization [cited June 22,
2020]. Available from: https://www.rt.com/news/216551-orangutan-argentina-human-right/
[13] Person - Wikipedia. [online],
[cited June 22, 2020]. Available
from: https://cs.wikipedia.org/wiki/Osoba
[14] Slavery
- Wikipedia, [online],
[cited May 20, 2020], Available
from: https://en.wikipedia.org/wiki/Slavery
14.
With regard to this new
legal
approach to animals, this is Act
No. 114/2020 of the Collection, i.e.the Act amending Act
No. 40/2009 of the Collection, the Criminal Code, pursuant to
this amendment to the Criminal Code,
Section 302 Cruelty to animals (3)
and If this act has a lasting effect on health or cause death of the
abused animal, the offender will be
punished by imprisonment
from two to six years (
Increasing the current upper sentence from five to six
years now it means that in this case, except
for juvenile offenders, conditional cessation of criminal
proceedings is not possible or the approval of
a settlement in criminal proceedings.
this criminal act with a stricter
punishment, it could even be
fulfilled by an unjustified slaughter of the animal., my note) and
according to this amendment to the Criminal Code
a completely new
Section 302a
Breeding animals in inappropriate conditions (4)
and if this act causes permanent (
health) consequences or death of
a larger number of animals, the
offender will be punished by imprisonment for five to
ten years.
15.
ODS Member of
Parliament Marek Benda states that "
there will be
a tendency for some activists to start using the new
provision" of the crime of
intentional animal breeding
in inappropriate conditions
with a ten-year prison sentence, possibly "
against ... large farms" (because most
farms in the Czech Republic
which are factory farms for the
slaughter of animals is very unfair, for example, from
birth the farm animals are restricted free movement to a
very small space so as not
to lose their weight by this movement, they are fed in such a way as to
gain slaughter weight as quickly as possible, and where, shortly, that
is, no later
than a few months after their
birth, after this great suffering
from birth, they are also cruelly
killed, that is, slaughtered in a slaughterhouses, for example in
the Czech Republic with about 10 million
inhabitants there are about half a million
murders of broilers (it means
hen chickens) per day, my
note [15] ) .
This amendment to the Criminal Code
primarily affects the so-called reproduction
breedings for dogs and cats. 133 of the 159 present
deputies voted in favor of the
proposal, and the law had massive support across
political parties in Parliament. "
It's a big moment," said the chairwoman of the Top 09 and co-author of
the
tightening of the criminal code
due to animal cruelty,
Markéta Pekarová Adamová. "I
am glad that those
who abuse animals will be punished
more," SPD President Tomio Okamura said in the Chamber of
Deputies. "I just voted
in favor of a significant tightening of penalties for
animal cruelty. I like
animals and I hate it when it
hurts them, "
commented Prime Minister and Chairman of the
Ano Andrej Babiš on Twitter. [16]
Notes to paragraphs
14 and 15:
[15] time 30 to
60 seconds of recording, broadcast date: 29 August 2018, 22 PM 45
minutes,
Week according to Jaromír
Soukup | Barrandov.tv, Barrandov Television - We Have Fun
[online], Copyright ©
2008 [cited May 20, 2020], Available
from: https://www.barrandov.tv/video/134367-tyden-podle-jaromira-soukupa-
29-8-2018
[16] "Za chov zvířat v nevhodných
podmínkách bude hrozit až deset let vězení"/ For
breeding animals in unsuitable conditions will be up to ten years in
prison, the date of
the article March 3, 2020 [cited 20 May 2020]
Available from: https://www.idnes.cz/zpravy/domaci/snemovna-
tyrani-zvirat-trestni-zakonik-chov-v-inappnych-podminkach-mnozirny.A200303_182737_domaci_kop : Author Josef Kopecký
16.
Furthermore, it is Act
No. 89/2012
of the Collection /New/ Civil Code (hereinafter
also NOZ").
17.
Under
Section
8 of the NOZ, a manifest
abuse of rights does not enjoy legal protection. (these
are the traditional principles and principles of modern law
"neminem laedere"/not harming anyone/ and the criterion of
the freedom of the individual
that the freedom of one
ends where the freedom of
the other begins, which could
also apply to "abusus iuris" /abuse of law/, that is,
cruelty to animals by their unjustified slaughter, in my opinion it is
a tort
according to Section 2909
NOZ Violation of good morals or
Section 2910 NOZ Violation of the law
/namely the criminal act Cruelty
to animals according to the Criminal Code,
see above/, my note)
18.
According to Section
494 of the Civil Code, the
living animal has a special meaning and value as a living creature
already gifted with the senses. A
live animal is not a thing
and the provisions on things apply to a live animal similarly only to
the extent that
it does not contradict its nature. (In my opinion,
the legal
personality of animals
follows from this
provision, because the animal is not a thing, i.e.the
NOZ stipulates here that the animal is a living
creature
gifted with senses and if g
enerally accepted scientific evolutionary theory applies, animal reason
is only
a developmental question in
time /according to this scientific theory is man only
more evolutionarily perfect
animal/, and therefore a kind
of borderline status of the animal between
the thing and the legal personality as if the definition
of the exact
legal status of the animal the valid NOZ does not even demonstratively,
unlike the original
draft of NOZ, contain, but
in fact the animal has very
limited /monkey [17] /
or almost none
/snake/ legal capacity
/ that is, reason / and needs
custody and representation
by a person as a small child
(see above) in the performance of his duties and the rights granted to
him or her under
Czech law /for example, see the
above provisions of the Criminal
Code/, but it is true that
all living
creatures should have in our
society rights recognized
in a just manner by the laws of the
state, my note)
Notes to paragraph 18:
[17] The richly
developed social life led by monkeys necessitates mutual
communication.
The monkeys just have to be able
to talk. List of apes
who have learned sign language.
Chimpanzees: Washoe, Chimp Nimsky, Sarah, Loulis, Panzee, Lucy Temerlin
(they all learned sign language), Lana (she used so-called lexigrams to
communicate with - keys with
symbols), Ai (she used a computer).
Bonoba (another kind of chimpanzee):
Panbanisha and her son Nyota,
Kanzi. Orangutans: Chantek, Azy.
Gorillas: Koko, Michael. How
did the monkeys
learn to speak? Ábíčko.cz.
Entertainment, nature, science
and technology Ábíčko.cz
[online]. Copyright © 2001 [
cited May 21, 2020]. Published
in ABC 23/2009. November 18, 2009, 6:00 AM Author: Zdena
Martinová, available
from:https://www.abicko.cz/clanek/precti-si-priroda/9425/jak-se-opice-naucily-mluvit.html
19.
They are
also
Section 2 of the NOZ (3)
the prohibition of cruelty (also to animals, my note) Section
3 of the NOZ (1)
the prohibition of causing unjustified
harm to others (
i.e. also to animals,
my note), (2) letter a) everyone has the
right to protection of their life
and health, letter f) no one can deny what he or
she rightfully belongs (see above also animal rights,
for example,
according to the criminal Code, my note), (3)
Private law stems also
from other generally recognized principles of justice (
that is probably
good manners, my note) and law.
20.
Czech expert
commentary literature
also shares
this approach to animals, which relatively largely comments Section
494 NOZ in details and adoption
of this Section
494 explains as "a manifestation
of the legislative
phenomenon of so called dereization (out of things)
of animals and is associated with
the reflection of the overall
changes of human relationship to nature (the subjugating
relationship changes to a symbiotic-use relationship)” and
respects the starting points indicated in the explanatory
memorandum. To do this,
compare P. Lavický and
collective: Civil Code 1, General
part (Sections 1 to 654), Commentary, 1st edition, CH Beck,
Prague 2014, page 1746 et seq.,
and further compare F. Melzer, P. Tégl and collective: Civil
Code - big commentary, volume 3, Section 419 to 654, Leges,
Prague 2014, page
228 et seq. Some of the commentary
literature, on the other hand, approaches these questions very briefly,
compare J. Švestka, J. Dvořák, J. Fiala and
collective: Civil Code, Commentary, Volume 1, Wolters Kluwer, Prague
2014, pages 1166 to 1167.
21.
This
professional
literature states that in Czech law there has been a significant shift
in the value of animals,
which is embodied in Section 494 of the Civil Code. "The
provision is primarily
about value meaning and accents
the living animal
as a human companion, acknowledges the existence of an
emotional
bond between them and protects the elementary
principles of
humanity." (Compare J. Křiváčková, K.
Hamuľáková, T. Tintěra and collective
The concept of a human and thing in new private
law, CH Beck, Prague 2015, page
197.)
22.
“The extent
to which the application of the provisions
on things does not contradict the nature of the
animal (sc. as a living creature) will always be necessarily
individual. For the purpose of
understanding the rule, it is possible
to point out, by way of example, to certain general groups of type
cases in which the facts are in fact the same,
and therefore the same value conclusion
will be justified. It
is essential that, as a result of the mechanical
application of the provisions on objects, the living
animal is not exposed to feelings of anxiety
or fear, that it is
not pained, that it is not stressed
(for example by being separated from its owner),
that it
is not damaged or even killed and
the like ... ”(See
F. Melzer,
P. Tégl and collective: Civil
Code - The Great Commentary, Volume 3, Sections 419 to 654, 1st
edition,
Leges, Prague 2014, pages
233, 234.)
23.
“The
meaning and value of an animal is
related to the fact that a living
animal is a creature gifted with the
senses and able to perceive pain.
For this reason,
it is not possible to treat it in the same
way as other material objects. It is therefore necessary
to respect the nature of the
animal as a living creature
and animal integrity.” [Compare
P. Koukal
in P. Lavický and collective: Civil Code, Commentary,
General Part (Sections 1 to 654), CH Beck, Prague 2014, page 1748.]
24.
"Unlike inanimate and
insensitive objects, animals can no longer be
disposed of without considering their feelings and nature. The
owner of the
animal must tolerate adequate interference with the right to use
property, which follows the welfare
and interests of the animals.
Restrictions on legal treatment were intended by the authors primarily
with regard to animals that are highly emotionally attached to humans - although dogs
are explicitly mentioned in
the explanatory memorandum,
these rules can be expected to apply to less common
species for which there is a strong
mutual relationship and emotional ties. ”(Compare
I. Prouza: The Animal at the
Interface between Person and Thing,
Legal Perspectives No. 1/2017,
page 13)
25.
For
more details,
see the order of the
Supreme Court of 29 October 2019, file number 22 Cdo 1722/2018. In
assessing
the merits of an action
for the extradition
of an animal (dog), the nature of
the animal as a living creature must also
be taken into account;
even an action
for the extradition
of a dog filed by its owner can
be rejected for abuse of rights. In
the present case, however, the finding
of abuse of rights was based
on the relationship between the animal and the de facto master - the
defendants. [18]
Notes to paragraphs
20 to 25:
[18] Home
page Czech Bar Association
[online]. Advocacy Bulletin 5/2020, pages 51 to 53. Copyright
©, [cited
11 June 2020]. Available from: https://www.cak.cz/assets/komora/bulettin-advokacie/ba_5_2020_web.pdf
Ad Article 36 of the
Charter:
26.
Preventing me from my
above-mentioned sale of fresh (meat)
of poultry carrions excluding this my assortment from sale and even
not concluding a private contract for the lease with me (or
reservation according to the new Operating
rules of market, my note) of market place (see
Enclosures No. 5 and 7),
against which there are no other remedies than the
constitutional complaint,
are from here given reasons the
expression of essential arbitrariness of the municipality as a
public authority, when I complied with all
statutory deadlines and gave her preliminary text of my constitutional
complaint and philosophical reasons against it (see
Enclosure
No. 4, 6 and 1).
IV.
Compliance with the
admissibility requirements of the complaint
27.
By me
exhausted remedies
under Section 75 paragraph 2) letter a) of Act No. 182/1993 of Collection
on the Constitutional Court are my aforementioned application to rent
a market place of 17 May 2020 and the
fruitless pre-litigation letter of 19 June 2020 ( see
Appendices
number
2 and 3. ) .
28. Preventing
me from above-mentioned
sale of fresh
(meat) of poultry carrions through excluding this my assortment from
sale and even not concluding a private contract for the
lease with me (or reservation by the new Operating
rules
of market, my note)
of market place (see
Enclosures No. 5 and 7),
that is all obviously due to the above-mentioned
unconstitutional contested public
provisions of the Veterinary Act, go beyond the scope of
delegated competence under Section 18 of Act No. 455/1991 of
Collection the Trade
Licensing Act and it is an
illegal public service partly within the
private (not only administrative) competence of the Town
of Hustopeče and the administrator of market, therefore it is
the execution of measures, or
other intervention of a public authority in the sense of
the Act on the Constitutional Court Section 72 paragraph 5) of Act No.
182/1993 of the Collection on the Constitutional Court, against
which there are no
remedies other than a constitutional complaint and
against which this constitutional
complaint is not inadmissible.
29.
This
constitutional complaint also, in the sense of
Section 75 paragraph 2) letter a) of the
Act on the Constitutional Court, significantly exceeds the
complainant's own interests and was filed within
the prescribed period of 1 year, because
in the case of
permitting free sale of carrion meat
under legally guaranteed
conditions it would probably be a turning point
in the practical fight against slavery
currently in the slaughter factory farms of the
most mass scale imprisoned, tortured and murdered farm animals,
i.e.the above-mentioned
non-human persons (in the
Czech Republic, for example,
there are about half a million murdered broilers per a day, which
is only in the Czech Republic with about 10 million
inhabitants a terrible number
of about 30 million murders of broilers, it
means hen chickens /it is baby-animals/
in two months /slaughtered in factory farms at the
age of about
1 month from birth according to experience from my "shelter" for
broilers/ and our State power is probably
not interested in it, which is a kind of
new holocaust[15],
my note).
Therefore, this constitutional complaint is not inadmissible, even
if the Constitutional Court comes to the conclusion
in this case that I have not exhausted all procedural remedies.
V.
Legal protection required
if the
Constitutional Court rules in my favor
30.
Contested
provisions of the Veterinary
Act from
all the above
reasons negate in a major extent the core
of my constitutionally guaranteed right of economic engagement
in commercial and other economic activity and behind this obvious
legal regulation of economic right
is hidden infringement of fundamental rights of animals (
protection of fundamental
rights to life and health of animals
and their equality before law
and a due process, the animals have legal personality in accordance
with the Charter of fundamental rights and also according to applicable
NOZ, see above, my note)
which are apparently otherwise unrelated to this economic
right (
it should be
a reason
for
stricter constitutional test
of proportionality not only of rationality,
my note). Therefore,
the contested provisions of the
Veterinary Act are unconstitutional and because their application has
obviously led to the fact (i.e. preventing
the above-mentioned sale of fresh /
meat/ of poultry
carrions) which is the subject
of this constitutional
complaint and the system established by them not to sell carrion meat
cannot
be tolerated,
they should be annulled as a whole for conflict
with the constitutional order by the Constitutional Court of the
Czech Republic. This expires 12 months after the publication
of this finding
in the Collection of Laws, so that the Parliament
of the Czech Republic has time to adopt an
amendment to these legal provisions allowing the free sale of
meat of animal carrions under conditions guaranteed by law.
31. It would be a kind
of precedent to allow
such free and commercial sale
of carrion meat. See Section 11 of the
Act on the Constitutional Court (2) in plenary the Constitutional
Court decides letter (i) about the opinion on the legal opinion
of the Senate,
which deviates from the legal
opinion of the Constitutional Court expressed in the
judgment. And also see Section
13 of the NOZ Anyone seeking legal protection can reasonably expect
that his or her legal case will be decided
in the same way as another legal case which has already been decided
and which coincides in essence with his or her legal case;
unless the legal
case is decided otherwise, anyone seeking legal protection
has the right to a convincing explanation of the reason
for this derogation.
VI.
Prayer of the
constitutional
complaint
I am therefore forced
to invoke legal protection before the Constitutional Court and to
propose to that court that
Judgment:
1) grants this my
constitutional complaint and, in the sense of
Section 82 paragraph 3 letter b) of Act
No. 182/1993 of the Collection on the Constitutional Court, prohibited
the Town of Hustopeče, IČO: 00283193
and the market administrator:
Organizational unit of the Town of
Hustopeče Administration and maintenance
of buildings, both with seat
on the Dukelské square 2/2, 693 01 Hustopeče to prevent me
from selling after veterinary autopsy in small quantities
unprocessed of fresh
(meat) carrions of poultry, namely
hens from my own small farm
(breeding activities), by
not renting according to the old Operating rules
as amended by May 22, 2012, or by non-reservation according to the new
Operating rules
effective from July 1,
2020 of one market
place or by excluding my sale assortment from sale according
to both of these Operating rules, all at the
market place on Dukelské square in Hustopeče, postal code
693 01 in the Czech Republic .
2) grants this my
constitutional complaint, and within the meaning
of Article 87 paragraph 1) letter a) of the Constitution
in conjunction with Section 74 of Act
No. 182/1993 of Collection on the
Constitutional Court
repeals parts of
the Act No. 166/1999 of Collection on veterinary care as
amended (i.e. current version from 15 January 2020 to 30 June
2020), namely the part of the provision
of Section 3,
namely its whole paragraph 1 letter d), the
part of the provision
of Section 5,
namely its whole paragraph 1 letter h),
the
whole provision of Section 18,
the part of the provision of
Section 21, namely
its whole paragraph 1, the part
of the provision
of Section 27a, namely its whole paragraph
1 letter b) and its whole paragraph 3,
the part of the
provision of
Section 39, namely its whole paragraph 2 and
its whole paragraph 3, all
provisions of
Section 39a to Section 41 and the
part of the provision of
Section 42, namely
of its paragraph 2, second and third developed
sentence objects,
all after expiration of a period of 12 months from
the publication of this judgment
in the Collection of Laws.
- The exact text of part
of this
provision of
Section 3, namely its whole
paragraph 1 letter d)
of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"(d) slaughter
animals means farm animals
intended for slaughter and slaughter processing and the meat of which
is intended for human consumption,"
- The exact text of part
of this
provision of
Section 5, namely its whole
paragraph 1 letter h)
of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"(h) to supply to
slaughterhouses only animals for
slaughter with truthfully and fully food chain information in
accordance with Section III of Annex II to Regulation (EC) No
853/2004 laying down specific hygiene rules for food of animal
origin;
a specified period within the meaning
of point 3 (a) of Section III of Annex II. (c) Regulation
(EC) No 853/2004 means 60 days
before the day of delivery
of the animal for slaughter to the slaughterhouse,"
- The exact
text of this
whole provision of Section 18
of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
„§18
(1) Animal products
must
a) comply with the
requirements for their production, processing, storage, transport
and marketing set out in this
Act, special legal regulations 3) and
European Union regulations 14d),
b) be healthy and
safe from the
point of view of the protection
of human and animal health, in particular it must not be
a source of risk of the spread of diseases
and illnesses transmissible
from animals to humans,
c) meet
microbiological criteria and must not contain residues and contaminants
in quantities which, according to scientific evaluation, pose a danger
to human health 14e
) ,
d) be, unless
otherwise
provided for by this Act or
regulations of the European Union, provided with a health mark in the
prescribed manner or, if
the use of the health mark
is not stipulated, with an identification
mark 14f ) .
(2) Animal products
intended for human consumption
must be obtained
from animals which:
a) meet the
veterinary
requirements for animals of the
relevant species laid down by this Act,
special legal regulations 14g) and
European Union regulations 14d
) ,
(b) do not come from
a holding,
establishment, territory or
part of a territory subject to restrictive or prohibitive veterinary
measures applicable to the animals and their products concerned and
adopted in accordance with the rules
laid down by this Act or
special regulations 14h)
due to foot-and-
mouth disease , classical swine fever, swine vesicular
disease, African swine fever, rinderpest,
Newcastle disease, avian
influenza or small ruminant plague, or due to the
occurrence of diseases of aquatic
animals, fish and molluscs referred to in special legislation 14h) ,
(c) has not been
slaughtered, in the case of meat
and meat products, in an establishment where, during the slaughter
and production process, animals infected or suspected of
being infected with point (b) or bodies or parts
of bodies of those animals
were present until such suspicion is ruled out,
(d) in the case of
aquatic
and aquaculture animals, comply with the
requirements laid down in special legislation 14i ) .
(3) The Regional
Veterinary
Administration may, subject to the measures for the
control of diseases referred to in paragraph 2 letter b) authorize,
under specified animal health conditions, the production, processing
and placing on the market of animal products intended for human
consumption originating in the territory or
part of the territory subject to the restrictive or prohibitive
veterinary measures referred to in paragraph 2 letter b), but not from
a holding
where is one of the diseases
referred to in paragraph 2 letter b) or which is suspected
of having such an infection.
(4) Animal products
for which
there are reasonable doubts about compliance
with obligations or requirements to ensure their health
safety, and food of animal origin 15),
which
were for this reason returned
from the commercial network, may be used or
further processed only with the
consent of the regional veterinary
administration and under the conditions laid down by it.
(5) Foodstuffs of
animal origin which are not harmful to health shall be considered
edible or edible after special
treatment or further processing.
Foods of animal origin that do not meet the health
requirements are considered
inedible.
(6) Implementing
legislation
(a) provides
1. animal and
public health requirements for the special
treatment and use of animal
products referred to in paragraph 3 and intended for human consumption,
as well as food of animal origin for use after special treatment
or further processing,
2. the method of
labeling meat originating in the territory or part of the territory
referred to in paragraph 3,
3. which foods of
animal origin are edible
and which are inedible,
(b) may lay down,
where required by European Union legislation, details concerning the
special treatment
or further processing and use of minced meat, meat
preparations, meat products, milk products and egg products. "
- The exact text of part
of this
provision of
Section 21, namely
its whole paragraph 1 of
Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"(1) Unless otherwise
provided, animals for slaughter must
be slaughtered in a slaughterhouse under the conditions laid down by
this
Act, special legal regulations 6) and
European Union regulations 17c
) ."
- The exact text of part
of this
provision of
Section 27a, namely its whole
paragraph 1 letter
b) of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"(B) fresh
poultrymeat, fresh rabbit meat
or fresh nutria meat, originating
from poultry, rabbits or nutria
from their own holding and slaughtered on that holding, on their
holding,
in a market or in a market located
in the territory of the Czech Republic; directly to the consumer or to
supply them to a local retailer;
poultrymeat need not be graded according
to quality and weight 52) ,
"
- The
exact text of part of this provision
of Section 27a, namely its whole paragraph
3 of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
'(3) The animal
products referred to in paragraph 1 must come from
healthy animals and must not be harmful
to health and they must be safe from the point of view of
the protection of human and animal health, in particular they must not
be
a source of diseases and illnesses transmissible from animals to
humans. The animal products referred to in paragraph 1 may not
be placed on the
market by mail order by the
local retail operator.
"
- The exact text of part
of this
provision of Section 39, namely its whole
paragraph 2 and its whole paragraph
3 of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"(2) Veterinary
sanitation activities referred to in paragraph 1 may be performed only
on the basis of a permission from the State
Veterinary Administration.
(3) Animal
by-products which are not suitable for animal feed or further
processing must be disposed of
without delay by burial in a designated place or by incineration, or
disposed of
in another manner specified in this Act and European
Union regulations 9b ) .
"
- The exact
text of this
whole provision of Section 39a of
Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
„§
39a
(1) Principles of
classification
of animal by-products, veterinary and hygiene rules for collection,
transport, labeling, storage,
disposal, use and further processing of animal by-
products of individual
categories, as well as for the presentation
of these products and products from market, trade and import, transit
and export shall
be governed by European Union rules 9b).
(2) If the
regulations
of the European
Union 9b) require that animal
by-products be disposed of
or further processed, the operator of an
approved establishment, plant or
other establishment is obliged, unless otherwise specified, to dispose
of or
further process these
animal by-products in an
establishment, plant or other
establishment which has been
approved by the State Veterinary Administration for the disposal and
further processing of animal by-products of the relevant
category and registered under the assigned
veterinary approval number. The conditions for approval and
suspension, or withdrawal of
approval, are set out in European Union regulations 9b
) .
(3) Operators of
approved
undertakings, businesses or other facilities
referred to in paragraph 2,
proceed in the disposal and processing of animal by-products and the
control of
their own health conditions such activity under this Act and the
regulations of the European Union 9b
) .
(4) Official
veterinarians in approved establishments, plants or other
establishments referred to
in paragraph 2 shall proceed in the performance of state veterinary
supervision in accordance with this Act
and the regulations of the European
Union 9b ) .
"
- The exact
text of this
whole provision of Section 40
of Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
„§
40
(1) Breeders and
persons handling animal products are obliged to ensure the safe
disposal
of animal by-products that arise in connection
with their activities or in their facilities;
this also applies
mutatis mutandis to operators of airports,
ports and other points of entry
into the Czech Republic, in
the case of imported animal products or other veterinary
goods seized in accordance with European Union regulations 21) and
destined for disposal, or kitchen
waste from means of transport in international
transport. Unless
otherwise stated, they are required
(a) immediately
report the presence of animal by-products to the person who carries out
their
collection and transport. The
breeder or the person handling animal products is not obliged to report
if he has agreed with the
person who has been authorized to perform veterinary sanitation
activities on a regular (
rotating) collection of confiscations of animal origin,
b) sort,
label, safely store and, if necessary, treat
animal by-products until
transport for disposal in places approved by the regional veterinary
administration, so as not to steal
them, endanger human or animal health or environmental
damage,
(c) keep commercial
and other documents relating to animal by-products handed over for
transport for at least 2 years and, in the case of cadavers of
animals individually marked in accordance with special
legislation
9d),
ensure that such cadavers are handed over for
transport, including identification
resources,
(d) hand over the
animal by-
products to the person who carries them
out (collection) and
transport (collection), provide
him with the necessary cooperation
and assistance, in particular
when approaching cadavers to places accessible to means of transport
and loading them, and pay him
for transport; and harmless
disposal and further processing of animal by-
products at the
agreed price.
(2) Breeders and
persons handling animal products, in whom confiscations of animal
origin usually occur, are further obliged
a) set up
impermeable, easily cleanable, disinfectable and closable rendering
boxes for the
short-term storage of confiscations of animal origin, clean and
disinfect them after each
emptying,
(b) locate the
rendering
boxes appropriately, both in terms of
their separation from other premises
and in terms of the handling and transport of animal by-products.
(3) The person who
owns or manages
the place of discovery of animal by-
products has a reporting obligation
under paragraph 1 letter a) where the keeper or
person handling the animal products referred to in paragraph 1 is not
known.
(4) Unless the State
Veterinary Administration decides otherwise for health reasons,
the breeder himself may safely
remove the carrion of animals in hobby breeding on his own land,
provided that this
cadaver does not come from an
animal belonging to ruminants
or pigs, or from an
animal ill or suspected infection.
Disposal in this case means burial in a place suitable for the
protection of human and animal health and the environment, to a depth
of at least 80 cm using disinfectants.
The carrion of horse in hobby breeding
may be disposed
of by the breeder himself on his own land only
with the consent of the
regional veterinary administration and under the conditions laid down
by it;
The breeder is
also obliged to mark the place of burial of
the carrion of the horse
in the manner specified by the implementing legal regulation and to
keep this marking for
a period of 10 years.
(5) An entrepreneur
who treats animal products, with the approval
of the District
Veterinary Administration
and under the conditions laid down by European Union
regulations 9b)
process in-house animal by-products
arising in connection with its activities.
"
- The exact
text of this
whole provision of Section 41 of
Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
„§
41
(1) A person who has
been authorized
to perform veterinary sanitation activities is obliged to perform
it in such a way that there is
no threat to human and
animal health, animal cruelty
or damage to the environment. A person whose
object of activity is the
collection, transport, disposal
and further processing of animal by-products (
hereinafter referred to as the "remediation company") is obliged further
(a) to ensure the
continuous
receipt of reports of the
occurrence of animal by-
products and collect them within 24 hours of being
notified of their occurrence, in cases of public interest without delay,
b) to collect and
safely remove or further
process all animal by-
products from the
designated territorial district (collection area) whenever these
products have not been
disposed of or
otherwise processed in
accordance with this Act and European
Union regulations 9b) and
demand payment for it in the
amount of the price agreed
according to a special legal regulation 24) ,
c) to deal with the
control of a dangerous disease or disease transmissible
from animals to humans and their consequences in accordance with the
prescribed
protective and control measures,
d) to draw up the
operating
rules and submit them to the regional
veterinary administration for approval before
commencing their activities,
e) to comply with the
veterinary and hygienic requirements for the disposal and further
processing of animal by-products laid down by this
Act and European Union regulations 9b),
as well as procedures based on hazard analysis and critical control
points (HACCP),
f) to carry out its
own inspections of compliance with
veterinary and hygiene requirements for the disposal and further
processing of animal by-products laid down in this
Act and European Union regulations 9b),
keep records of the results
of these inspections, keep them for
at least 2 years and submit them to the official veterinary
office upon request. doctors,
g) to create
conditions, including the free provision of suitable
space for the performance of pathological-anatomical autopsies
of cadavers (
hereinafter referred to as "
veterinary prosector activity") by the regional veterinary
administration,
h) in the case of
cadavers
of animals individually marked in accordance with special legal
regulation
9d),
not to remove
or take out the
means of identification before the actual disposal
or further processing of these cadavers.
(2) Confiscations of
animal origin taken over
by a sanitation company for disposal or
further processing may no longer leave
the premises of this company
without the consent of the
regional veterinary administration, unless it is their
transfer to another sanitation
company.
(3) A place
designated for the harmless disposal
of animal by-products by burial (hereinafter referred to as "burial
ground"), facilities intended for the
harmless disposal and further processing of animal by-products or a
place intended for storage or
incineration of cadavers of animals in hobby breeding shall
be established after the opinion
of the regional
authority, municipal office
or district office and regional veterinary administration on the spot,
(a) which is
sufficiently
distant from the places where
the farm animals are kept,
(b) where the
activity
will not disturb the environment.
(4)
Equipment intended for the harmless
disposal and further processing of animal by-
products must be
equipped and maintained in
such a way as to enable safe work and safe
disposal and processing of these products or the placing
on the market of such products that do not contain unacceptable amounts
of harmful
substances or pathogenic microorganisms.
Products intended for human nutrition may not be produced in this
establishment.
(5) Implementing
legislation may provide, if
required by European Union acts,
(a) more detailed
veterinary and hygiene requirements for the labeling,
collection, transport, disposal
and further processing of animal by-products, the layout and equipment
of the holding, plant or other establishment for the disposal
and further processing of animal by-products, to burial grounds and to
facilities (places) intended for the
storage or incineration of cadavers of pet
animals, unless these requirements are laid down in European Union
regulations,
b) details concerning
the performance of the own control
of hygienic conditions of harmless
disposal and further processing of animal by-
products by the operators of establishments,
plants or other facilities referred to in Section 39a, paragraph 2.
- The exact text of part
of this
provision of
Section 42, namely
of its
paragraph 2,
second and third developed
sentence objects of
Act No. 166/1999 of the Collection
on Veterinary Care, as amended,
which should be repealed in this way only as a part of the Act by
judgment
of the Constitutional
Court, it is as follows:
"As well as the
collection
and disposal of cadavers of animals in hobby breeding,"
VII.
Supplementing my constitutional
complaint
In
addition to paragraph
18 in conjunction with paragraph 11 of my above - mentioned constitutional
complaint about the enactment of
the just rights of living beings
by the State, I cite, for example, The
Great Ape Project (GAP)
(see Home - GAP Project
[online]. June 2020] Available from: https://www.projetogap.org.br/en/ )
represented by the above-mentioned Peter Singer (who
is a professor at the University of Melbourne and Princeton
University and specializes in bioethics
and whose book Animal Liberation of 1975 became the impetus
of the worldwide
movement).
1) Namely,
the
Austrian
Law
on Animal Experiments (Tierversuchsgesetz)
of 2012 federal law, consolidated version of 28
June 2020,
inspired by this Great Ape Project:
My Czech translation:
Inadmissible animal experiments
Section 4. In any case, an
animal
experiment is inadmissible if:
5. Animal
experiment on
(a) all species and
subspecies of chimpanzees (Pan troglodytes), bonobos (Pan paniscus) and
gorillas (Gorila gorila spp), as well as all species and subspecies of
the
Orangutan (Pongidae) and Gibbon (Hylobatidae)
families,
to be carried out
Original version:
Unzulässige Tierversuche
§ 4. Ein
Tierversuch ist jedenfalls unzulässig, wenn
... 5. der
Tierversuch an
a) allen Arten und
Unterarten
der Schimpansen (Pan troglodytes),
Bonobos (Pan paniscus) und Gorillas (Gorilla
gorilla spp), sowie an allen Arten und Unterarten
der Familien OrangUtans (
Pongidae) und Gibbons
(Hylobatidae) ...
durchgeführt
werden soll,
...
(see https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008142 )
2) Furthermore,
namely by this Great Ape Project inspired, on the contrary, experiments
on apes not completely excluding Directive 2010/63 /EU
of the European
Parliament and of the Council of
22 September 2010 (Existing
consolidated version of 26 June 2019) on the protection of animals
used for scientific purposes (18) The use of apes,
i.e species closest to
human and having the most developed social and behavioral abilities,
should only be
allowed for conservation research. of these species, provided that it
is
guaranteed that the measures are related to conditions which endanger
human life or
weaken a human, and if the use of
other animal species or alternative methods is not sufficient to
achieve the objectives
of the procedure. A
Member State which claims that
such a need has arisen should provide the Commission with the
information
necessary to enable it to take a
decision. (see https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1593342693962&uri=CELEX:32010L0063 )
In my opinion,
medical experiments on living creatures cannot be completely excluded
if there is causing the
least possible death and pain. That is, in human and
veterinary medicine I on principle admit only one, that
is, a unrepeated necessary experiment on one least
possible evolutionarily perfect
healthy animal, at the following place on a healthy human during
their life, preferably not a child, at the following place a
baby-animal, for the development and production of medicaments of
serious humanic,
at the following place animalist diseases, which should always
be supported by a court decision in a dispute with the
participation of (advocate) defender of or also (advocate) defenders of
human, at the following place animal rights, which should
always determine the number, type of the animals, at the following
place the people, the method of experimentation
and fair compensation for suffering. damage in principle in money
intended
for an experimental
person, at the following place an experimental animal, namely
for their subsequent
treatment and further life of this
person, at the following place breeding of this animal. (
see page 354 et seq. in my book the Philosophy of Balance
on: http://www.spvzt.cz/Filosofierovnovahyknihacela.pdf ).
Sincerely, and with hopes for
justice
In Hustopeče,
30 June 2020
JUDr. Dalibor
Grůza
Ph.D.
represented
by JUDr. Miroslav Moltas, LL.M., lawyer