The Constitutional Court found No 206 / 2021 Coll.
The Constitutional Court found of 27 April 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
26.05.2021
206
FIND
The Constitutional Court
On behalf of the Republic
On 27 April 2021, the Constitutional Court decided under sp. zn. Pl. ÚS 98 / 20 in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Lichůčník, Vladimir Sládek, Radovan Suchánek, Pavel Šámal (Judge of the Rapporteur), Catherine Šimáková, Vojtěho Šimíček, Milady Tomková, David Uhlíř and Jiří Zemánek as a party to the proposal of the District Court in Chrudim, and what amount is greater than small in the words "greater than small ', § 285 (1) and (3).
as follows:
I. Paragraph 289 (3) of Act No. 40 / 2009 Coll., the Penal Code, in words "and how much is greater than small within the meaning of § 285" shall be deleted from the date of the publication of this finding in the Collection of Laws.
II. At the same time, Article 2 and Annex No 2 of Government Decree No. 455 / 2009 Coll., establishing, for the purposes of the Criminal Code, which plants or fungi are considered to be containing a narcotic or psychotropic substance and what their quantity is greater than that of the Criminal Code, as amended by Government Decree No. 3 / 2012 Coll., on the date of the publication of this finding in the Collection of Laws.
III. The rest is rejected.
Reasons
Definition of the case
1. The Constitutional Court was served on 1 October 2020, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 et seq. of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as" the Law on the Constitutional Court') with the proposal of the District Court of Chrudim (hereinafter referred to as "the applicant ') to abolish the parts of § 284 (1) of Act No 40 / 2009 Coll., the Criminal Code, as amended, (hereinafter referred to as" the Criminal Code', in words "greater than small ', Article 285 (1) and (3) of the Penal Code in words" greater than small' and "to a greater extent ', and Article 289 (3) of the Criminal Code in the words'.
2. The appellant points out that he is dealing with two indictments of offences relating to sown hemp, which in one case have been held (possession of a narcotic and psychotropic substance and poison according to § 284 (1) of the Criminal Code) and cultivated in the other (the offence of illicit cultivation of plants containing a narcotic or psychotropic substance pursuant to § 285 (1) and (3) of the Criminal Code), for which the defendants are to be penalised, although the law, in conjunction with the case law, does not specify in advance the limits of punishments with the necessary degree of certainty, which the appellant considers contrary to constitutional order.
3. The appellant contends that the facts of the offences referred to in § 284 (1) and § 285 (1) and (3) of the Criminal Code do not fulfil, in conjunction with the case law, the requirement for a degree of certainty, which was last expressed in full by the Constitutional Court of 26.5.2020 sp. zn. It states that criminal law practices establish the nature of the criminal offences of the relevant conduct (i.e. whether the specified substances have been kept or grown in quantities greater than small or to a greater extent), a complex expert whose results cannot be predicted by the addressee of the provisions concerned with an appropriate degree of certainty. Such a procedure, according to the appellant, is contrary to the constitutional order, which includes Article 39 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter '), according to which" only the law determines which conduct is a criminal offence and what punishment and what other damage to rights or property may be imposed for its commission'.
4. The appellant also contends that Paragraph 289 (3) of the Penal Code states that the mandate enshrined in it corresponds to the mandate contained in the original version of § 289 (2) of the Penal Code, which the Constitutional Court of 23 July 2013 sp. zn.
5. The appellant therefore contends that the Constitutional Court should abolish Article 284 (1) of the Penal Code in the words "greater than small ', Article 285 (1) and (3) of the Penal Code in the words" greater than small' and "to a greater extent ', as well as Article 289 (3) of the Penal Code in the words" greater than small', and what is their quantity greater than small within the meaning of Article 285 ', by abolishing the Constitutional Court of the relevant parts of the Law in order to do so with an effectiveness postponed by at least one year in order to be able to find a constitutional compatible limit of crime.
Arguments of the appellant
6. The appellant points out that the law enforcement authorities must determine the type of social damage associated with the cultivation or possession of cannabis in the application of § 284 and 285 of the Penal Code by means of a complex procedure, at the end of which there is an exact knowledge of the amount of tetrahydrocanabinol (hereinafter referred to as "THC ') contained in held or cultivated matter. Only then is it decided whether the criminal record in the form of cultivation or possession of a narcotic or psychotropic substance has been fulfilled in quantities greater than or to a greater extent.
7. The appellant notes that the use of relatively indeterminate terms is not common in material law. The law is unlikely to do without such terms, because of the need to meet the radically contradictory requirements of both the stability of the law and its applicability to changing reality. Nor is it unusual that the specific fulfilment of a relatively indeterminate character describing criminal conduct is determined only on the basis of a specialist survey (expert). However, according to the appellant, from the point of view of the requirements imposed by the rule of law on the definition of criminal penalties, it is doubtless true that the addressee of criminal law, that is to say, "everyone who ', must have the idea in advance at least in the rough that, if he or she is guilty of any conduct, he or she is a criminal or a qualified criminal. The facts of the offences referred to in Sections 284 and 285 of the Criminal Code are currently unable to comply with such a requirement. Criminal law practice identifies the signs of crime by complex expertise, the results of which the addressee of these legal standards cannot predict with an appropriate degree of certainty.
8. In the next part of the proposal, the appellant refers to the finding of the full court of the Constitutional Court sp. zn. Pl. ÚS 13 / 12 (already mentioned), which repealed part of § 289 (2) of the Criminal Code and at the same time expired § 2 and Annex No 2 of the Government Regulation No. 467 / 2009 Coll., which sets out for the purposes of the Criminal Code what is regarded as poisons and what is greater than small for narcotic substances, psychotropic substances, preparations containing and poisons, as amended by Decree No. 4 / 2012 Coll. According to the appellant, the Constitutional Court, in this finding, offered a case-law-based finding of more generally applied criminal liability limits (criminal offences), but in the case-law of Pl.
9. In order to justify the application for annulment of Section 289 (3) of the Criminal Code, the appellant points out the grounds for the finding, sp. zn. Pl. ÚS 13 / 12, according to which it is not possible for the substance to be effectively supplemented by a substatutory rule and that such a procedure would be contrary to the principle of nullum crimen sine interestu enshrined in Article 39 of the Charter. The appellant contends that § 289 (3) of the Criminal Code was not subject to review at the time of the hearing of the decision of the sp. zn.
10. Finally, the appellant adds that substantive criminal law consists of laws defining the fields of free conduct and conduct associated with the certainty that it is not criminally punishable. If there are uncertain limits to legal requirements, i.e. legitimate expectations based on law are not respected, freedom is also uncertain. Therefore, protecting legitimate expectations is an integral part of the rule of law. The order to protect legitimate expectations is one of the principles of the rule of law and as such follows from Article 1 (1) of the Constitution of the Czech Republic, according to which the Czech Republic is a democratic legal state based on respect for the rights and freedoms of man and citizen. From the point of view of legitimate expectations based on the law, the boundaries of criminal offences, expressed by a material character, must not be so low that, because of the number of acts which are criminal at a given criminal threshold, the prosecution of a person of accident or rather arbitral selectivity, rather than systematic combating of criminal conduct, is not criminal. Such application of the law contradicts the proportionality of criminal repression [see the finding of 18.11.2008 sp. zn. II. ÚS 254 / 08 (N 197 / 51 SbNU 393)].
Observations of the parties
11. The Constitutional Court pursuant to Article 69 of the Law on the Constitutional Court has sent the proposal to the chambers of Parliament of the Czech Republic as parties to the proceedings, as well as to the Government and the Ombudsman as authorities entitled to intervene as interveners.
12. The Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies") states in its observations that the valid wording of Sections 284 (1), 285 (1) and (3) of the Criminal Code (hereinafter referred to as "the Chamber of Deputies"), and Article 289 (3) of the Criminal Code (hereinafter referred to as "the Chamber of Deputies"), was approved by Act No. 40 / 2009 Coll., the Penal Code, which was discussed by the Chamber of Deputies in the 5th term as the House of Deputies No. 410. The bill was approved in the Chamber of Deputies at the third reading on 11 November 2008 (out of 152 Members present voted 120 in favour, 23 against), after approval by the Senate of the Parliament of the Czech Republic (Senate) (as approved by the Chamber of Deputies), the adopted law was signed by the President of the Republic. Subsequently, the law was duly declared in the Collection of Laws. Paragraph 284 and 285 of the Penal Code were partially amended (not in the contested parts) by Act No. 86 / 2015 Coll., which adapted the terminology of the Penal Code to the new terminology of the Civil Code in those provisions. The application of § 284, 285 and 289 of the Penal Code was substantially influenced by the finding of the Constitutional Court sp. zn. Pl. ÚS 13 / 12.
13. The Senate states in its observations that the proposed contested provisions have been part of the Criminal Code since its adoption. Although the provisions of § 284 (1) and of § 285 (1) have come to a minor change as a result of the amendment of Act No. 86 / 2015 Coll., amending Act No. 279 / 2003 Coll., on the exercise of property and property security in criminal proceedings and on the amendment of certain laws, as amended, and other related laws, it was a purely legislative and technical regulation of the used terminology in accordance with the new Civil Code, which is not relevant in the light of the proposal under consideration. The Chamber of Deputies passed on the draft Senate Penal Code on 12 December 2008. The deadline of 30 days for the Senate to discuss the draft law pursuant to Article 46 (1) of the Constitution therefore expired on 12 January 2009. The Senate approved the draft penal code as referred to it by the Chamber of Deputies at its third meeting in its seventh term of office by Resolution No 78 of 8 January 2009. In vote 4, 74 of the 76 senators present in favour of approving the draft penal code. Against it was one senator and one of the senators present abstained. The bill was therefore adopted by the Senate within the limits of the Constitution and the constitutional procedure. The question of the certainty of establishing the facts of the offences in question was not discussed in the Senate's deliberations on the draft penal code. However, this issue was discussed in the debate on the draft law published as Act No. 112 / 1998 Coll., amending and supplementing Act No. 140 / 1961 Coll., Criminal Act, as amended, and Act No. 200 / 1990 Coll., on Infringements, as amended. That law included, inter alia, Paragraph 187a, which established the law on the possession of a narcotic or psychotropic substance or poison, through paragraph 1. The subject of the debate in the Senate was, above all, the question of the appropriateness of criminalising the possession of drugs itself, so to speak for its own use (although this phrase was not part of the provision cited, unlike the applicable and effective § 284 (1) of the Criminal Code), the speeches of some Senators and Senators were, however, directly concerned with the question of insecurity of the concept of "quantity greater than small." Finally, the Senate approved the bill in the version referred to it by the Chamber of Deputies at its second meeting in its first term of office by Resolution 25 of 18 March 1998. 40 of the 71 senators have been elected to approve the bill. There were 21 senators, 10 abstentions.
14. By order of 30 November 2020 No 1237, the Government approved its entry into the proceedings and authorised the Minister of Justice, in cooperation with the Minister of the Interior and the National Drug Coordinator, to draw up a statement on the proposal.
15. In its observations, the Government first expresses its doubts about the applicant's active legitimacy to submit the application, since it considers that the 1. The provisions under appeal can be interpreted in a constitutional manner; 2. A possible derogatory ruling by the Constitutional Court would not lead to a different outcome in the legal assessment by the appellant of the defendant's actions, and 3. The appellant's practice is contrary to the principle of predictability of judicial decisions and the protection of the legitimate expectations of the parties to the proceedings, and hence the right to judicial protection under Article 36 (1) of the Charter.
16. Furthermore, the Government does not share the appellant's conclusions on the contradiction of the parts of the provisions of the Code of Criminal Procedure which are contested by him. It does not agree with the proposal to abolish § 289 (3) of the Criminal Code in words "and how much is greater than small within the meaning of § 285 ', as it believes that the contested legislation meets the limits of the sublegal norm as formulated by the Constitutional Court in a number of its decisions. Thus, the First Regulation must not derogate from the legal limits and, with the express consent of the legislator, the Government is not entitled to regulate matters outside the scope of the implementing act [cf. the finding of 9.2.2010 sp. zn. Pl. ÚS 6 / 07 (N 20 / 56 SbNU 207; 66 / 2010 Sb.)], the 2nd Regulation should be kept within the limits of at least the purpose and meaning of the law, the 3rd legislator should show in the law the principle of the fundamental rights and obligations (cf. Article 4 (1) of the Charter), or the limits of the fundamental rights and freedoms (cf. 4 (Article 4 (2) of the Charter) [cf. The Government notes that, although it accepts the underlying reasons for the finding, Pl. ÚS 13 / 12 is an integral part of the principle of nullum crimen sine klim, the principle of nullum crimen sine tikscript, which the legislature must also reflect (and in the contested legislation, the Government also considered it). It reminds of the commentary literature on the principle of nullum crimen sine, and in particular the different opinions of the judges Jan Musil and Vladimir Krárek on the finding of sp. zn. Pl. ÚS 13 / 12, with which it is identified. The Government believes that, through the criminal code of the legislature, certain limits are laid down by the legislature to distinguish whether or not the conduct is to be regarded as criminal (thus complying with the principle of zero crimen sine klim), while at the same time ensuring, by expressly authorising the Government to issue the regulation, a uniform assessment of this criminal character throughout the territory of the Czech Republic and thus the maximum possible level of legal certainty and predictability (Article 1 (1) of the Constitution, Article 2 (2) of the Charter) for the addressees of the legal standard.
17. The Government does not support the proposal to abolish § 284 (1) of the Penal Code in the words "greater than small" and § 285 (1) and (3) of the Penal Code in the words "greater than small" and "to a greater extent." It does not agree with the appellant's assertions that the use of relatively indeterminate terms in Sections 284 and 285 of the Penal Code is not appropriate, as it leaves the addressee of the penal rule unsure, nor does it mean that the use of indeterminate terms in substantive law (criminal law) is not common. On the contrary, it considers that the use of indeterminate terms is necessary in law and that the legislator makes use of this possibility relatively often (including in criminal law), in particular in order to respond to dynamically changing conditions and variability in life situations. It refers to the finding of 25.9.2018 sp. zn. Otherwise, it would be impossible to effectively implement public administration. According to the Government, it is clear that the contested legislation allows a constitutionally conformal interpretation of indefinite legal terms, which is also accepted by the Constitutional Court itself in the finding of the Pol. The Constitutional Court has already concluded that it does not consider it necessary, from a constitutional legal point of view, to adopt new legislation, since even the decision-making practice of the general courts itself can further make the criminal law standard predictable to its addressees, without thereby being regarded as indefinite and thus contrary to the principle of nullum crimen sine, The Government stresses that it is an undeniable task of the courts to take on the interpretation of indeterminate legal concepts, thus disputing any remaining doubts, which are also doing so (with the exception of the appellant).
18. Finally, the Government points out that compliance with the proposal would not only make the legislation contained in the contested provisions of the Criminal Code incomprehensible, but would also lead to a de facto substantial tightening of the state's policy on drug crime and addictive behaviour caused by the use of illegal addicts. In her opinion, by complying with the proposal for any possession of cannabis drugs, cannabis resin or psychotropic substances containing any tetrahydrokanabinol, isomer or its stereochemical variant, and illicit cultivation of cannabis plants, it would be criminal, or a criminal assessment would be dependent on individual decisions of the Czech Police, the Public Prosecutor's Office and the courts, which is a constitutionally conformant state, but from the perspective of citizens' legal certainty. Another (negative) consequence of compliance with the proposal would, according to the Government, be the de facto overlapping of the facts of offences and offences in the field and a further substantial reduction in the level of legal certainty.
19. For the reasons set out above, the Government proposes that the Constitutional Court reject the application, stating that if it had concluded that the annulment of the contested parts of the provisions of the Criminal Code is necessary for their contradiction with the constitutional order, it would have been appropriate, at the same time, to defer the time limits for the deregation effects of such a finding.
20. The Constitutional Court sent the observations received to the appellant for a reply. The appellant used this right and, in reply, stated that it agrees with the Chamber of Deputies that the finding of Sp. zn. Pl. ÚS 13 / 12 had substantially influenced the application of Sections 284, 285 and 289 of the Criminal Code. On the basis of his active legitimacy, he pointed out that the facts of § 284 and 285 of the Penal Code should be applied in the criminal matters in question. The constitutionally consistent interpretations offered by Sections 284 and 285 of the Penal Code are based on contradictory bases which are incompatible with each other, which he finds unacceptable, as this, inter alia, contradicts the requirement of harmony of the rule of law and equality before the law. It added that, if the Government offered the General Court the procedure laid down in Article 95 (1) of the Constitution, that is to say, the possibility of not applying the Government regulation, that is to say, the procedure used to interpret the facts of the offences, would further increase the uncertainty of the addressees of the legal standards. The uniform standards applicable to the territory of the whole State, in its view, result in results that indicate a wide spread of the boundaries of criminal and skilled crime and raise the question of whether, from the point of view of the addressees of the facts concerned, interpretation has been sustained in uncertainty, even though all decisions are carefully justified on a case-by-case basis. On the proposal for the annulment of Paragraph 289 (3) of the Penal Code, he again referred to the finding of Sp. v. Pl. ÚS 13 / 12 and to the use of relatively indeterminate terms, he noted that he was aware that the use of these terms was a common method of legal regulation, even in criminal law material, but that the addressee of criminal law must have the idea, at least in gross terms, that it would be a criminal act if it were committed. The facts of the offences referred to in paragraphs 284 and 285 of the Penal Code are, in his view, unable to comply with such a requirement. The appellant is convinced that his proposal is neither aimed at reducing legal certainty nor at tightening up legal regulation, although the government makes the opposite.
21. The Ombudsman, at the request of the Constitutional Court under Paragraph 69 (3) of the Law on the Constitutional Court, stated that he would not exercise his right and would not intervene in the proceedings in this matter.
Oral proceedings
22. The Constitutional Court has considered, in accordance with Article 44 of the Law on the Constitutional Court, that there is no need to conduct oral proceedings in the case, since it would in no way contribute to a further or more profound clarification of the case than it has been aware of from the written acts of the appellant and the parties. The fact that the Constitutional Court does not consider it necessary to carry out the taking of evidence also justifies the failure of oral proceedings. Neither the parties nor the intervener requested the oral hearing to be held.
Derogation of the contested provisions
23. Paragraphs 284 (1), 285 (1) and (3) and 289 (3) of the Criminal Code read:
Possession of a narcotic and psychotropic substance and poison
(1) Those who, for their own use, misstore in quantities greater than a small narcotic substance cannabis, cannabis resin or psychotropic substance containing any tetrahydrocarbinol, isomer or its stereochemical variant (THC) shall be punished by deprivation of liberty for up to one year, prohibition of activity or forfeiture of the cause. '
Illegal cultivation of plants containing a narcotic or psychotropic substance
(1) Unjustly grown for their own use in quantities greater than a small hemp plant will be punished by deprivation of liberty for up to six months, by punishable money or by forfeiture.
(3) By deprivation of liberty for up to three years or by penalty of money, the offender shall be punished if the offence referred to in paragraph 1 or 2 is committed to a greater extent. ';
Common provision
(3) The Government of the Regulation provides which plants or fungi are to be considered as containing a narcotic or psychotropic substance pursuant to Article 285 and which are greater than small within the meaning of Article 285. '
24. If the term "quantity greater than small 'is used in § 284 (1) and § 285 (1) of the Criminal Code, it defines the limits at which the possession of the narcotic substance of cannabis, cannabis resin or psychotropic substances containing any tetrahydrocanabinol, isomer or its stereochemical variant (THC) for its own use or illicit cultivation of cannabis plants for its own use is already a criminal offence. The legal character in these provisions is of substantial importance, as it distinguishes these offences from corresponding offences. Similarly, the term" to a greater extent' in Section 285 (3) of the Penal Code, which is a circumstance which makes the use of a higher criminal rate conditional on the application of a higher criminal rate, distinguishes the legal assessment of the offence of illicit plant cultivation containing a narcotic or psychotropic substance according to the qualified facts provided for in Section 285 (1) and (3) of the Penal Code from the basic facts of that offence under Section 285 (1) of the Penal Code.
25. In accordance with the contested section of Section 289 (3) of the Criminal Code, plants and fungi containing a narcotic or psychotropic substance for the purposes of the Criminal Code and their quantities greater than or equal to those laid down in Annex 2 to Government Regulation No 455 / 2009 Coll., which, for the purposes of the Criminal Code, determine which plants or fungi are considered to be plants and fungi containing the narcotic or psychotropic substance and which are more than small in the meaning of the Criminal Code. This Decree of the Government was amended by Government Decree No. 3 / 2012 Coll., which did not, however, amend Annex 2 by setting values determining quantities greater than small for plants and fungi containing narcotic or psychotropic substances for the purposes of the Criminal Code.
Terms and conditions of the formal assessment of the proposal and of the active legitimacy
26. The Constitutional Court first examined whether the appellant was entitled to file an application for annulment of the contested provisions of the Criminal Code. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. In addition, Article 64 (3) of the Law on the Constitutional Court provides that the application for annulment of the Law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution. In order for a general court to question the constitutionality of a particular law, or its individual provision and the matter to be submitted to the Constitutional Court, its real application is necessary and not only its hypothetical use or other broader context [cf. the findings of 29.9.2010 sp. zn. Pl. Pl. ÚS 33 / 09 (N 205 / 58 SbNU 827; 332 / 2010 Sb.), of 6.9.2011 sp. zn. Pl. It must therefore be a law (part of it) which prevents the achievement of the desired (constitutional) outcome. If not removed, the outcome of the ongoing proceedings would be different [cf. the finding of 28.1.2014 sp. zn. ÚS 49 / 10 (N 10 / 72 CollNU 111; 44 / 2014 Coll.)]. The Constitutional Court considers the conditions of Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Law in the present case to be fulfilled, as they are provisions of the law relating to the decision-making activities of the appellant and which are to be used immediately in the resolution of the case. It is thus a concrete check of the constitutionality of the provisions of the law, as follows from the preamble to the factual and legal basis of the matter.
27. The appellant concludes that the contested parts of Sections 284 (1) and 285 (1) and (3) of the Criminal Code which will be applied in the proceedings in question are contrary to the constitutional order and therefore proposed to the Constitutional Court to decide on their annulment. Article 68 (1) of the Law on the Constitutional Court in the proceedings for the annulment of laws and other laws states that, if the application has not been rejected and there are no grounds for termination of proceedings in the course of proceedings, the Constitutional Court is obliged to discuss the application and decide on it without further proposals. This type of procedure before the Constitutional Court is therefore governed by the principle of formal [cf., for example, the finding of 14.5.2019 sp. zn. In this context, the conditions laid down in Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court under which the Tribunal may file a motion for annulment of the Law have been fulfilled and the application for annulment of the contested provision has been made by a legitimate appellant.
28. The application for annulment of Section 289 (3) of the Penal Code is a provision of the law authorising the Government to enact and, as a consequence, ordering its application. The General Court is obliged under Article 95 (2) of the Constitution to refer the case to the Constitutional Court on the question whether the legislator is entitled to what, in the view of the General Court, is to be the subject of a law to be applied by the Court to the Government (cf.
29. The Constitutional Court notes that the application complies with all the formalities laid down in the Constitutional Court Act. The proposal of the District Court was submitted by an actively legitimate body (Article 64 (3) of the Law on the Constitutional Court in conjunction with Article 95 (2) of the Constitution), the Constitutional Court is competent to discuss that proposal [Article 87 (1) (a) in conjunction with Article 95 (2) of the Constitution]. The proposal is not inadmissible (Section 66 of the Law on the Constitutional Court) and there is no reason to proceed under Section 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
Assessment of the constitutional conformity of the legislative process
30. In the procedure for the control of the standards, the Constitutional Court pursuant to § 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first assesses whether the contested law was adopted and issued within the limits of the Constitution established competence and by the constitutionally prescribed method.
31. It follows from the relevant parliamentary press, the data on the course of the vote and the observations of the two chambers of Parliament that the valid versions of Sections 284 (1), 285 (1) and (3) of the Criminal Code (in the contested parts) were approved by the Chamber of Deputies at the third reading of 11 November 2008 at the 42nd session (vote 39, resolution 948). The Senate approved the bill as referred to it by the Chamber of Deputies at its third meeting in its seventh term of office by Resolution No 78 on 8 January 2009. The President of the Republic signed the Act on 27 January 2009 and after the signature of the Prime Minister the Act was published in the Collection of Laws in the amount of 11 under No. 40 / 2009 Coll. Where Articles 284 (1) and 285 (1) of the Criminal Code have been amended by Act No. 86 / 2015 Coll., amending Act No. 279 / 2003 Coll., on the Enforcement of Assets and Matters in Criminal Procedure and amending certain laws, as amended, and other related laws, the amendment of the contested parts of those provisions did not affect, as it was merely a change in the name of the forfeiture penalty.
32. The contested provisions of the Criminal Code were therefore adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. After all, even the appellant raised no objections to the legislative procedure.
Substantial assessment of the proposal
A) The application for annulment of § 284 (1) of the Penal Code in the words "greater than small" and § 285 (1) and (3) of the Penal Code in the words "greater than small" and "to a greater extent"
(a) general bases
33. It follows from the case-law of the Constitutional Court that, in principle, it is not in itself for the Constitutional Court to assess the breadth of the limits of criminal criminalisation of certain types of conduct, unless it is to duplicate or substitute the constitutional role of the legislature [cf., for example, the finding of 20 February 2001 sp. zl. ÚS 5 / 2000 (N 31 / 21 SbNU 273; 127 / 2001 Sb.)]. The nature of the offence is always a formal expression of such conduct, which is considered by a majority company when voting in the legislature to be sufficiently socially harmful, that it must be declared as a specific type or type of conduct individually criminal and defined as a separate substance of the offence (cf.
34. The rule contained in Article 40 (6) of the Charter (also reflected in Article 2 (1) of the Criminal Code) is based on the idea that an individual in the rule of law must live in confidence when considering whether the conduct which he or she intends to conduct does not give rise to the activation of the instruments of criminal law [cf. the finding of 2. 8. 2016 sp. zn. IV ÚS 2975 / 14 (N 143 / 82 SbNU 277)]. In other words, the basic principles of the rule of law include the legal certainty of the addressees of the rule of law as to what is its content. According to the case law of the Constitutional Court, linguistic correctness, clarity, accuracy, stability and clarity are the essentials of legal terms and legal stylistics. Of course, adhering to these requirements must not, however, turn into an unreasonable requirement which is necessary wherever the concept in the legislation used in the same regulation is defined, with the false assumption that such a procedure is necessary to eliminate its alleged uncertainty. In fact, a degree of uncertainty is a necessary feature of each legal standard. Only indeterminity excluding the disclosure of its normative content using the usual interpretation procedures makes the legal standard contradictory to the constitutional requirement of legal certainty [cf. finding of 23.4.2013 sp. zn. ÚS 28 / 12 (N 63 / 69 CollNU 187; 176 / 2013 Coll.)]. The use of so-called indeterminate terms by the legislature is based on the fact that their specific content only fulfills the application activities of public authorities without this in the legal state of violation of constitutional law (e.g. legal certainty). Otherwise, it would be impossible to exercise the law effectively by courts and public authorities. It is, in a sense, a manifestation of a wider ideological starting point - the so-called doctrine of skepticism about standards. Not all rules of conduct, legal concepts can be formulated for futuro (exactly). For certain types of cases, due to their nature, the principles, objectives which the courts and the public authorities then put into life the application activities [cf. found on 8.7.2010 sp. zn. ÚS 8 / 08 (N 137 / 58 SbNU 115; 256 / 2010 Coll.]]. In this context, however, the Constitutional Court must stress that the unconstitutional nature of the rule of law does not in principle create any difficulty in interpreting the law. If the provision for certain situations does not provide a clear language answer, this does not in itself mean its unconstitutionality (cf. sp. zn. Pl. ÚS 18 / 17).
35. It can be recalled that the indefinite legal terms "in greater quantities" and "in quantities greater than small" or "in significant quantities" or similar indefinite terms of the legislature have used in many facts of criminal offences, such as in the case of the criminal offence of illegal weapons pursuant to § 279 (1) and (3) (a) and (b) of the penal code, the term "to a large extent" and "to a large extent" in the case of a criminal offence of protected industrial rights pursuant to § 263 (1), (2) (c), paragraph 3 (b) of the penal code, "or" to a large extent "and" in large extent "in the case of criminal offences and environmental damage pursuant to § 269 (1), paragraph 2 (c), paragraph 3 (b) of the criminal law.
36. In the light of the case under consideration, it is essential that the use of indeterminate terms is necessary in law and that the legislator makes use of this possibility quite often, both in defining the essential facts of the offence and in describing the circumstances which make it conditional on the application of a higher criminal rate (particularly aggravating circumstances). This is particularly so that it is possible to respond to dynamically changing conditions and variability in life situations, even criminal law is no exception in this respect. Therefore, on the basis of this general basis, it cannot be accepted that the use of relatively indeterminate terms is not normal in material law. Finally, the appellant himself states in the proposal that "[p] rávo is not likely to do without such terms, thanks to the need to meet the precarious requirements of both stability of law and its applicability to changing reality. Nor is it unusual that the specific fulfilment of a relatively indeterminate character describing criminal conduct is determined only on the basis of the expert survey (expert)" (see paragraph 10 of the proposal).
(b) a substantive review of the proposal
37. According to the appellant, the contested parts of the text constitute indeterminate legal terms, whereby the fact that the character of the criminal offence referred to in Articles 284 (1) and 285 (1) and (3) of the Criminal Code consists of a certain amount of cannabis, cannabis resin or psychotropic substances containing any tetrahydrokanabinol, isomer or its stereochemical variant (THC) or a certain quantity of cannabis plants (quantity greater than small) or consisting of committing an act to a greater extent, according to the appellant is ascertained retroactively on the basis of a complex expert, which is allegedly contrary to the principle of predictability of law, does not comply with the principle of nulum crimen sine sine, the requirement of legal certainty and the principle that only the law determines what is a criminal offence. Furthermore, the appellant considers that the finding of a full court of the Constitutional Court, sp. zn. Pl. ÚS 13 / 12, was not sufficient, since although the interpretation of the indefinite concept of "quantity greater than small 'in the case-law had stabilised, still leaves the addressees of the standard in uncertainty where the boundaries of crime lie.
38. Following the above general grounds, the Constitutional Court cannot attest to the appellant's view that the use of indeterminate terms in criminal law is not common and that the use of relatively indeterminate terms in Sections 284 (1) and 285 (1) and (3) of the Penal Code leaves the addressee of the criminal law unsure.
39. In order to define the indefinite concept of "quantity greater than small" in the context of Articles 284 (1) and 285 (1) of the Criminal Code, there is already an extensive and established case-law of the General Courts on the basis of which a constitutional interpretation of that concept can be made. In this context, the decisions of the Supreme Court, which issued several decisions on the matter and subsequently adopted an opinion of 13 March 2014, sp. zn. hereinafter referred to as "Opinion sp. zn. Tpjn 301 / 2013 '), in which it established indicative values determining" quantities greater than small' for each narcotic substance, psychotropic substances and preparations containing them for the purposes of the Criminal Code to the extent set out in the Annex to this Opinion, on the basis of current judicial practice and in particular the case-law of the lower courts. Similarly, the concept of "greater scope 'in § 285 (3) of the Criminal Code is also the case.
40. Prior to the adoption of the above opinion and under the effectiveness of Act No. 140 / 1961 Coll., the criminal law, in general, was considered to be a quantity greater than small in accordance with § 187 (1) of the Criminal Act, such a quantity of drugs which, according to the threat to the life and health of people from the harm of individual substances, exceeded the normal dose of the average consumer (for methamphetamine ten times). The Annex (table) to the guideline on the general nature of Attorney General No 6 / 2000, also used in the practice of the courts, indicated indicative values corresponding to the wording of § 187a (1) and (2) of the Criminal Act for the most frequently occurring drugs (e.g. judgments of the Supreme Court of 12.7.2000 sp. zn. 4 Tz 142 / 2000 and of 19.4.2001 sp. zn. 3 Tz 56 / 2001 etc.).
41. The Criminal Code (effective as of 1 January 2010) in the joint provision of Paragraph 289 (2) on so-called "drug offences" authorised the Government to specify the concept of "quantity greater than small" for narcotic substances, psychotropic substances, preparations containing them and poisons which, by virtue of this authorisation, are provided for by Government Decree No 467 / 2009 Coll. The Constitutional Court, however, found plenary sp. zn. In the cited finding, the Constitutional Court found, inter alia, that the contested regulation does not fulfil the principle that the law referred to in Article 39 of the Charter must be formulated with a sufficient degree of certainty for its addressees (lex certa), and that it needs subsequent completion through interpretation by the power of the court in the decision on specific cases, with the fact that the law referred to in Article 39 of the Charter may again be of importance to the former judicates which adequately define small and larger than small quantities of narcotic or psychotropic substances (cf. Thus, the Constitutional Court concluded that it did not consider it necessary, from a constitutional point of view, to adopt new legislation, but, on the contrary, considers it relevant to the subsequent completion of the Penal Code through an interpretation carried out by the power of the Court of Justice, since even the actual legal practice of the General Courts can further make the criminal rule foreseeable to its addressees, without thereby being regarded as indefinite and thus contrary to the principle of nullum crimen sine klim.
42. In order to unify the existing case-law in the field of the Supreme Court penal college in the above-mentioned Opinion, Sp. Tpjn 301 / 2013 has, inter alia, defined and clarified (in the legal sentence I and II) the concept of "quantity greater than small 'under § 284 (1) and (2) of the Criminal Code. It stated that there is a quantity of drug or psychotropic substance, or personal poison (exclusively for the perpetrator of this crime), which, according to the threat to human life and health from the harmful effects of individual substances, exceeds the normal dose of the usual consumer. In the preamble to the Supreme Court's penal college, the Court stated that since the starting amount is the normal dose of a normal consumer, which may evolve over time and also develops because it depends on many factors, such as the effectiveness of the normal dose, the popularity of the drug, the number of primary consumers, so-called experimentators or addicts, etc., it cannot be established that the amount of the normal consumer is greater than a small limit in terms of the assessment of the criminal liability in a particular case of a crime under Section 283 or 284 of the Criminal Code, whether downwards or upward, especially when two values are normally indicated in the relevant tables, namely the quantity greater than the quantity of the active substance. In view of this, in the view of the Supreme Court's criminal college, these values should be considered as indicative and, in a particular case, when determining whether the quantity is greater than small, it is also necessary to take into account, at the same time, other circumstances relating to the perpetrator's person, in particular whether they were the primary consumer or users of these substances at an advanced stage of dependence and, where appropriate, other factors affecting the level of risk to the life or health of the user. On the other hand, it is not possible to take into account other circumstances characterising the behaviour of the perpetrator, in particular the manner in which the offender handled the scheduled substances, the period during which he did so and, where appropriate, other facts taken into account in determining the extent (large, large, large).
43. The Annex to the opinion contains indicative values determining "quantities greater than small 'for each narcotic substance, psychotropic substances and preparations containing them. This Annex is divided into five columns. The first column contains the so-called drug type, the second column contains the international non-proprietary name in the Czech language, the third column contains the quantity greater than the small, the fourth column contains the active psychotropic or narcotic substance and the fifth column contains the smallest quantity of the active psychotropic or narcotic substance, which must contain the substance labelled as a drug in order to consider its quantity to be greater than small. The determination of a value considered" quantity greater than small' at the same time constitutes the starting point for the next penal code of the envisaged boundaries. The "larger range 'is, according to case law, ten times the size of the larger than the small range, the" large range' is ten times the size of the larger range so determined, and the "large range 'is ten times the size of the larger range so determined. In this regard, the opinion of Sp. Tpjn 301 / 2013 was based on the existing case-law, in particular the expressly mentioned resolution of the Grand Chamber of the Supreme Court of Criminal College of 27 February 2013, sp. zn. 15 Tdo 1003 / 2012 (No 44 / 2013 Reports of Judgments and Opinions, part of the criminal case-law) in which the Grand Chamber stated that the basis for that determination should be a multiple of the quantities of active substance (drugs) defined as being greater than small. However, the scope (large, large, large) of the offence of illicit manufacture and other treatment of narcotic drugs and psychotropic substances and poisons cannot be reduced only to the amount of the drug which the perpetrator illegally manufactured or otherwise handled within the meaning of § 283 (1) of the Criminal Code, but other circumstances apply in its determination (see Decisions No 1 / 2006 and 12 / 2011 of the Reports of Judgments and Opinions, part of the Criminal Code). Therefore, in a particular case, if these other circumstances also justify it, it is not excluded that the relevant legal (quantification) character, which makes the use of a more stringent legal qualification and expresses the extent of the offence, should be fulfilled even if the offender has produced, imported, exported, offered, offered or otherwise handled the relevant legal (quantification) character that does not correspond to the full 10 times the required amount but has already approached it sufficiently, or, on the contrary, may not be fulfilled, if the amount of the drug exceeded only an unsignificantly fixed 10 times the applicable to that range. Therefore, it cannot be accepted by the appellant's claim that the Supreme Court did not address the question of the quantification of grown hemp" to a greater extent', except to mention the auxiliary criterion ten times the size of the larger than small, as a sign of a larger scale (see paragraph 23 of the proposal), since the case-law, including that opinion, cannot be used separately but always in connection with one another.
44. The Supreme Court, following the Opinion in Sp. Tpjn 301 / 2013 and referring to the previous case-law, also stated that the fulfilment of the intentional form of wrongdoing in a criminal offence pursuant to § 284 (1) and (2) of the Criminal Code in relation to the legal character "for its own account 'is not excluded by the fact that the perpetrator has not verified the amount of active substance which he may carry (e.g. laboratory analysis for his own account), but must be based mainly on the total quantity of the illicit substance retained, the experience of the perpetrator using it, from the circumstances of his action, the normal quality of the substance (see resolution of the Supreme Court of 26 August 2015 in Case No 11 Tto 811 / 2015;
45. If the general courts follow the criteria set out in the opinion of the Supreme Court and subsequent case-law in their decision-making, this is also the method adopted in the decisions of the Constitutional Court (cf. Resolution of 17.12.2019 sp. zn. I. ÚS 3656 / 19, of 31.8.2015 sp. zn. II. ÚS 2003 / 15, of 29.11.2017 sp. zn. IV. ÚS 3186 / 17 etc.). Finally, the appellant himself, referring to the specific decisions of the General Courts (see paragraphs 37 and 38 of the proposal), observes that, on the basis of the study of their justification, it is necessary to conclude that in all these cases the conditions of criminal liability are carefully considered and, in each case, the conclusion on the basis of criminal liability is properly individualised and the reasoning is convincing.
46. The contested legislation provides for a constitutionally conformal interpretation of indeterminate terms, as can be seen from the above-mentioned finding of the Constitutional Court sp. v. Pl. ÚS 13 / 12, according to which, if the legislator did not agree to define a quantity greater than small in psychotropic substances, it may leave the definition of that concept to be considered, taking into account all the circumstances of the case, to the general courts. It is therefore the role of the courts to address any doubts by interpreting indefinite legal concepts, which was also the aim of the Supreme Court, which has already adopted the above opinion, in particular, in Case T-301 / 2013, in which it established indicative values determining "quantities greater than small 'for individual narcotic drugs, psychotropic substances and preparations containing them for the purposes of the criminal code to the extent set out in the Annex to this Opinion, on the basis of current judicial practice, in particular the case of lower courts. It must be stressed that these are indicative values and will always depend on the specific circumstances of each case under consideration.
47. It cannot be overlooked that the caselaw of the General Courts on the definition of indeterminate terms in the context of Sections 284 and 285 of the Criminal Code is even referred to cumulatively by the appellant. It refers to the boundaries of the criminal offences under Articles 284 and 285 of the Penal Code with reference to numerous decisions of the Supreme Court (e.g. decisions in cases sp. v. 11 Tdo 1072 / 2019, 11 Tdo 1108 / 2017, 11 Tdo 681 / 2017, 11 Tdo 1335 / 2019, 4 Tdo 1264 / 2014, 11 Tdo 1067 / 2017 etc.), whereas the courts have carefully and convincingly justified their decisions (see paragraph 45 above) have decided on the guilt of the accused on the basis of different amounts of the narcotic or psychotropic substances found, which they consider to be insufficient to determine the facts of the offences. However, this view cannot be attested to in the light of the above. As has already been mentioned, it is clear that quantities greater than small, larger, significant or large quantities cannot be determined as they are only indicative. Therefore, in any particular case, when determining whether such quantities are greater than small, it is necessary to take into account at the same time other relevant circumstances relating to the person responsible, in particular whether they were the primary consumer or users of these substances at an advanced stage of dependence and, where appropriate, other factors affecting the level of risk to the life or health of the user. On the other hand, from the point of view of this limit, it is not possible to take into account other circumstances characterising the behaviour of the perpetrator, in particular the manner in which the perpetrator handled the scheduled substances, the period of time for which he did so and, where appropriate, other facts which are taken into account when determining the extent (large, large, large). In so doing, these limits determined by the terms of quantities greater than small, larger, large and large scale create, in the light of a certain range of fulfilment of these circumstances, and therefore, it cannot be assumed that in specific cases they could be filled with quantities other than the different quantities of narcotic or psychotropic substances found, taking into account all relevant criteria of the quantity within the relevant range given by these concepts (e.g. between quantities greater than or greater than small and larger ranges).
48. If it is insufficient for the appellant to comply with a relatively indeterminate character of the type describing the offence only on the basis of expert examination (expert), the Constitutional Court states that this is a normal procedure which is applied not only in cases of assessment of compliance with those concepts in the caselaw referred to above, but also in similar cases in other facts. For example, it is similar to the determination of a state of exclusion of the ability induced by ingestion of an addictive substance (e.g. alcohol) in a criminal offence under the influence of an addictive substance under Section 274 of the Criminal Code. Other examples may include expert statements by a doctor or expert opinion on the extent of the injury suffered in the case of health-related offences, whether for the purpose of determining injury or serious harm to health (cf. § 122 (1) and (2) of the Criminal Code), or the expression of a legal or natural person operating a particular trade or business activity, or expert opinion on the price of goods or other goods in terms of the amount of damage caused (cf. § 138 (1) of the Criminal Code) for property offences (cf. § 205 et seq. Even in such cases, the defendant in advance does not know the exact extent of his influence with an addictive substance caused by the injury to the injured person or the exact amount of damage caused by the offence (if not by a person known in the area or if he does not carry out, where appropriate by pre-available means, certain necessary findings, such as available tests for alcohol or an expert opinion given by him). It is clear that for narcotic and psychotropic substances it would hardly be possible to decide on criminal liability for their possession or cultivation without the results of laboratory examination, which determines the amount of active substance. Laboratory analysis shall specify the quantity of active substance on which the legal qualification is then carried out. In such a procedure, the Constitutional Court finds no violation of any constitutional principles. In particular, when the Supreme Court has set criteria for how to proceed also in terms of the subjective aspect of the crime. The primary criterion for determining the extent is the quantity of active substance in the drug concerned. If this cannot be ascertained, the extent is determined using the total amount of drug the offender has been wrongfully handling (so-called secondary criterion). For values that are borderline with regard to the determination of the extent, the amount of money that the perpetrator has received for the distribution of the drug, the intensity of the damage that he or she threatened or actually experienced with drug consumers, the time of committing a crime and others [see the resolution of the Grand Chamber of the Supreme Court of 27 February 2013, sp. zn. 15 Tdo 1003 / 2012 (No 44 / 2013 Reports and opinions, part of the criminal proceedings), the resolution of the Supreme Court of 16 April 2014 sp. zn. 7 Tdo 407 / 2014 and of 26 January 2017 sp.
49. Also to Section 285 of the Criminal Code The Supreme Court found in the case-law that, in the question of whether, in a particular case, the characteristics of the substance of the case referred to in paragraphs 1 and 3 as regards the quantity of the drug could be based on the criteria defined in the resolution of the Grand Chamber of the Supreme Court, sp. 15 Tdo 1003 / 2012 and in the opinion of sp. zn 301 / 2013. It follows from that resolution of the Grand Chamber of the Supreme Court of Criminal College that the characteristics of the infringement of illegal cultivation of plants containing a narcotic or psychotropic substance pursuant to § 285 (1), (2), (3) and (4) of the Penal Code to "greater extent" and "to a significant extent" can be derived from a number of such quantities of cultivated cannabis plants (paragraph 1), fungi or other plants containing a narcotic or psychotropic substance which can be described as "quantities greater than small." In particular, "larger range 'is considered to be 10 times the quantity larger than small. In doing so, however, account should be taken of other circumstances characterising the behaviour of the perpetrator, in particular the manner in which the perpetrator handled the scheduled substances, the period of time for which he did so and, where appropriate, other facts which, according to case law, are taken into account in determining the extent of the substance. Those conclusions were addressed by the Supreme Court and were addressed, for example, in resolutions of 15 October 2014 (sp. zn. 4 Tdo. 1264 / 2014) and 29 November 2017 (sp. zn. 11 Tdo. 1067 / 2017).
50. Last but not least, the fact that the possession of less than a small quantity of narcotic drugs and psychotropic substances does not comply with the rule of law also testifies to the maintenance of the contested parts of § 284 and 285 of the Criminal Code. However, the social damage of such conduct is seen as being lower, to which it is not necessary to apply the standards of criminal law, and in the spirit of the principle of subsidiarity of criminal repression, the application of administrative, specifically criminal, standards is sufficient. Illegal possession of substances and illicit cultivation of cannabis plants, if they do not reach the prescribed limits of criminal liability, is an offence under Act No. 167 / 1998 Coll., on addictive substances and amending certain other laws, as amended. The abolition of the terms would thus result in the abolition of the border between criminal offences and offences, or the overlapping of the facts of criminal offences and offences in this area, which would lead to a substantial reduction in the level of legal certainty.
51. In conclusion, the Constitutional Court summarises that the concepts that the law uses should undoubtedly be clear and unequivocal from the point of view of legal certainty, but at the same time they must be sufficiently abstract to be able to capture the widest possible range of eventualities that exist or may occur in the future. Therefore, the Constitutional Court considers the use of indefinite legal terms where the legislator intends to limit the scope of criminalisation of certain acts (conduct or omission), or to establish a lower quantitative limit on criminal offences, for the reasons set out above, to be constitutional, and therefore does not find the appellant to be a contentious contention with the constitutional order of which Article 39 of the Charter is included. However, the role of the General Courts (especially the Supreme Court) will continue to properly interpret the indeterminate legal concepts in question, thus dispelling any remaining doubts in their interpretation.
B) The application for annulment of § 289 (3) of the Penal Code in words "and how much is greater than small within the meaning of § 285"
(a) general bases
52. Standard competence by means of a government regulation is a separate power of order under Article 78 of the Constitution. In such a case, the Government is entitled to issue regulations for the implementation of the Act and within its limits and does not require any specific legal authorisation. In accordance with the principles of the democratic rule of law, explicit legal authorisation of the government to issue regulations is also possible. In such cases, the constitutional condition is that the framework specification of such authorisation must be directly in the law [cf. the finding of 21.12.1993 sp. zn. Pl. ÚS 19 / 93 (N 1 / 1 CollNU 1; 14 / 1994 Coll.]]. If a government regulation is not foreseen, the law is silent (which may not mean that it cannot be implemented and within the limits of the government regulation). In any event, a government regulation cannot deviate from the legal limits - it cannot be contra legem (contrary to the law) or praeter legem (beyond the law, above the law) - and must be kept within the limits of the law which are either expressly defined or resulting from the meaning and purpose of the law [cf., e.g. the finding of 14.2.2001 sp. zn. ÚS 45 / 2000 (N 30 / 21 SbNU 261; 96 / 2001 Coll.)]. The Government is not entitled to exercise the normative power of another authority under Article 78 of the Constitution [cf. found on 8.3.2006 sp. zl. ÚS 50 / 04 (N 50 / 40 CollNU 443; 154 / 2006 Coll.]].
53. The derived standard of execution (including government regulations) must therefore respect the sphere of legislative power and the power of executive must not compete with legislators. While legislative power is endowed with general powers to legislate, power is limited by the legislature only to the creation of derived secondary legislation, while it is the legislator that sets the powers of the executive framework and the content limits of its legislator. One of the fundamental constitutional aspects is the formal admissibility of the substatutory regulation in terms of its legal power, as the government can only regulate what does not fall under the rule of law. Nor does the legislator, in the form of ordinary laws, create this power of executive power. On the contrary, the principle of division of power is consistent with the fact that the constitutional scope of power sets limits on both executive and legislative authorities. The concept of the rule of law, which is established in Article 1 of the Constitution, implies that neither the legislator nor the executive can handle the forms of law, i.e. the sources of the law, arbitrarily, but must follow the aspects of the legislator, as well as other aspects, in particular transparency, accessibility and clarity [cf. the finding of 23.5.2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 SbNU 135; 167 / 2000 Coll.]. This is a key issue of the division of power between legislative and executive powers in the field of standardisation. It is never entirely free to consider an executive because it is always limited by the Constitution, international treaties and general legal principles (cf.
54. As early as the beginning of the construction of a democratic republic in the country, it was noted that a legislative act containing, in fact, a delegation of legislative powers against the government would change the constitutional charter by adding to it an incomplete reservation that the legislative power was exercised by the National Assembly only as long as it was not delegated to the Government (cf. the Constitutional Court of the Czechoslovak Republic found no.
55. It follows from the foregoing that the constitutional definition of the derived standard of execution is based on the following principles: the regulation must be issued by a competent authority, cannot interfere in matters reserved for the law and the legislator's will to regulate above the legal standard must therefore be opened up to the scope of the regulation. The Government's regulation, like any other statutory regulation, can only specify in more detail the issue covered by the basic features already under the law itself [cf. e.g. the finding of sp. zn. Pl. ÚS 45 / 2000, the finding of 16.10.2001 sp. zn. Pl. ÚS 5 / 01 (N 149 / 24 SbNU 79; 410 / 2001 Sb.) etc.].
(b) a substantive review of the proposal
56. The appellant contends that § 289 (3) of the Criminal Code in words "and how much is greater than small within the meaning of § 285 'is contrary to constitutional order, referring to the Constitutional Court's findings. Paragraph 289 (3) of the Penal Code was not reviewed and is still part of the Penal Code at the time of the examination of the finding. The appellant must be testified that this provision, or the contested part thereof, is based on the same foundations as Section 289 (2) of the Penal Code, which was abolished for inconstitutionality.
57. The problem is, as in the finding of sp. zn. In the present context, it should be stressed that Article 95 (1) The Constitution allows a judge to assess the compliance of a government regulation with the law, and the penal code cannot therefore prohibit it. The ruling court can assess its own problem, i.e. whether the quantity is greater than small, alone.
58. As mentioned above, a government regulation cannot deviate from the legal limits - it cannot be contra legem or praeter legem - and must be kept within the limits of a law which is either expressly defined or resulting from the meaning and purpose of the law. The constitutional definition of the derived standard of execution must be issued by a legitimate body, cannot interfere in matters reserved for the law, and the legislator's will to regulate above the legal standard must therefore be opened up to the scope of the regulation. The Government's regulation, like any other substatutory regulation, can only specify in more detail the matter covered by the basic features already under the law itself (cf.
59. By the appellant referred to in sp. zn. Pl. ÚS 13 / 12 The Constitutional Court annulled § 289 (2) of the Criminal Code in words "and what is greater than small for narcotic substances, psychotropic substances, preparations containing them and poisons', and at the same time Article 2 and Annex 2 of the Government Decree No. 467 / 2009 Coll., which sets out for the purposes of the Criminal Code what is considered to be poisons and what is greater than small for narcotic substances, psychotropic substances, preparations containing them and poisons, as amended by Decree No. 4 / 2012 Coll. In this finding, the Constitutional Court stressed, inter alia, that it cannot be allowed that the sphere of protection of fundamental rights and freedoms is under the authority of an executive who is not entitled to do so. According to Article 39 of the Charter, the definition of conduct as a criminal offence is entrusted only to the law to which the Parliament of the Czech Republic is competent pursuant to Articles 15, 41 (1) and 45 to 48 of the Constitution. It is precisely in view of the fact that the legislator entrusted the competence to define the facts of the offence exclusively to the law, in other cases the possible and desirable secondary regulation of things unforeseeable at the moment of the adoption of the law, subject to frequent changes, details of a particularly technical nature, where the legal basis may contain only the most important (cf. Opalka, V. The sources of administrative law, in Hendrich, D. and kol. Administrative law, General Part. 9th edition. Praha: C. H. Beck, 2016, p. 70; Kopecký, M. Administrative law, General section. Issue 1. Praha: C. H. Beck, 2019, p. 27 to 28.). According to the Constitutional Court, if the legislature considered it essential to define precisely what, for the purposes of the legal qualification of the facts of the offences, the quantity is greater than the small for psychotropic substances, it could only do so by law (cf.
60. The fundamental starting point in the case at hand, as in the case at hand, is the interpretation of Article 39 of the Charter, which lays down the principle of nullum crimen sine, which is further developed in such a way that the law (lex) also complies with the principles under which only the law must be the source of the law (script - prohibition of ordinary law), is prohibited by analogy against the perpetrator (stricta), is prohibited by retroactivity (praevia), and certain criminal rules (certa) are required. For the legal term "quantity greater than small 'plants and fungi containing a narcotic and psychotropic substance, if the law empowers the government to issue a government decree in § 289 (3) of the Penal Code, the requirement for a legal source of law (script) and the certainty of the law (certa) is not fulfilled, since the government has determined this quantity by Decree No 455 / 2009 Coll. As a result, the prohibition on interfering in matters reserved for the law resulting from the constitutional definition of the derived standard of execution was infringed (see paragraph 55 above). In the past, the Constitutional Court has explained in the context of the legislation of another area that it cannot be allowed that the sphere of protection of fundamental rights and freedoms is under executive authority which is not entitled to do so [cf. for example, the finding of sp. zn. According to Article 39 of the Charter, the definition of the conduct which is a criminal offence is entrusted only to the law in which the Parliament of the Czech Republic is competent. It is precisely because the legislature entrusted the authority to define the substance of the offence exclusively to the law, thus excluding, in other cases, possible and desirable secondary regulation of matters unforeseeable at the moment of the adoption of the law (see paragraph 59 above). In the present situation, the regulation in question by the Government's regulation would therefore still be acceptable if the international regulation, which the Czech Republic is bound by Article 1 (2) and Article 10 of the Constitution, was thus clarified or made more accessible to the domestic addressees of the legislation, or was to be specified in the legal standard governing the issue at least in the essential features. That's not the point. The international obligations give rise to wide discretion as to the limits of the quantities of legally held substances [Articles 3 (2), 4 (a), 5 (3) and 7 (b) of the Convention on Psychotropic Substances - designated under No 62 / 1989 Coll., 33 of the Single Convention on Narcotic Substances - issued under No 47 / 1965 Coll., Article 3 (1) (c) (ii) of the United Nations Convention against Illicit Trade in Narcotic Drugs and Psychotropic Substances - issued under No 462 / 1991 Coll.]. The" empowerment' provision in question does not lay down any criteria at all and therefore the Government does not specify anything on its basis, but the two essential facts of the offence in accordance with § 285 (1), (2) of the Penal Code are directly supplemented (see sp. zn.
61. The Constitutional Court also persists on that conclusion in the present case, since the contested § 289 (3) of the Criminal Code in words "and how much is greater than small within the meaning of § 285 'stands on the same bases as the repealed § 289 (2) of the Criminal Code. In doing so, the Government directly complements § 285 (1), (2) of the Penal Code when fulfilling the content of such an important concept, which is crucial for determining the lower limit of criminal liability for the basic facts of the offence of illicit plant cultivation containing a narcotic or psychotropic substance under § 285 (1) and (2) of the Penal Code. In doing so, it must be assumed that the protection of fundamental rights and freedoms relating to this cannot be allowed to come under the authority of an executive who is not entitled to do so.
62. Following the acquisition of the enforceability of the finding sp. zn. As has already been detailed above, in order to define the indefinite concept of "quantity greater than small 'in Sections 284 and 285 of the Penal Code, there is already an extensive and stable case-law of the General Courts on the basis of which a constitutional interpretation of that concept can be made. In addition, it can be assumed that even after the repeal of Paragraph 289 (3) of the Penal Code in the words" and how much is greater than small within the meaning of Article 285', the Supreme Court will proceed in a similar manner to that of the sp. zn.
63. At the same time, however, it should be pointed out that the subject of protection from the point of view of criminal law is the fulfilment of obligations arising not only from laws, but also from implementing legislation, which is issued on the basis of the authority of the legislator which meets the above requirements. Therefore, it is not in itself excluded from the scope of Article 39 of the Charter to specify a certain obligation or concept in the implementing regulation or a more detailed specification of the facts of the offence. However, this should always be fully controlled by the legislator. It is therefore necessary to exclude the possibility for the Government to "implement" the provisions of the Criminal Code (specification or specification of the substance of the offence), although it is necessary, on the basis of the express authority of the legislator, but without the legal regulation, to define the fundamental features and criteria which the Government's regulation would only specify, and, moreover, in an area which falls under the reservation of the law, which the repealed part of Paragraph 289 (2) of the Criminal Code did not comply with and similarly does not meet even Article 289 (3) of the Criminal Code in the contested scope, since there are no limits to assess the maintenance of the laws.
64. It is essential that the conclusions relating to the contested part of Paragraph 289 (3) of the Penal Code (as was the case in Section 289 (2) of the Penal Code) do not have to apply to the definition of other facts or to the legal provisions authorising the adoption of a government regulation governing other concepts following the Penal Code and therefore such empowerment provisions or references to other legislation (but also, for example, sectoral established concepts, good manners, decency, technical standards etc.) are not necessarily excluded. The requirement of Article 39 of the Charter, which is one of the essential elements of the democratic rule of law, will be fulfilled when the addressee of the prohibition contained in a specific provision of the Criminal Code or other provision knows how to behave in order not to commit a crime, while ensuring that the democratic legislator identifies the character of the offence directly or on the basis of a well-defined mandate of the Government to issue a government regulation with a statutory framework definition of basic features and criteria, which the Government's possible regulation will only specify, and its knowledge will be facilitated by the Collection of Laws. The border of a lawful and illegal person in a democratic rule of law must be defined by the legislator for the addressees of the standards in an understandable way, while general courts should, in principle, only find out whether such a threshold has been exceeded and not determine where it lies. Their task is the right to wait (all illegal behavior cannot be defined in all the details in the law), not to create.
Conclusion
65. On the basis of the above, the Constitutional Court concluded that the contested provision of § 289 (3) of the Criminal Code in words "and what is greater than small in the meaning of § 285" is contradictory to Article 39 of the Charter in conjunction with Article 78 of the Constitution and is therefore annulled pursuant to Article 70 (1) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll. Since he did not find the relevant reason for the postponement of the derogation, he decided to cancel the date of the declaration of the finding in the Collection of Laws (operative part I). In the light of that provision, the Constitutional Court also stated, in accordance with Paragraph 70 (3) of the Law on the Constitutional Court, that Article 2 and Annex 2 of the Decree of the Government No 455 / 2009 Coll., laying down, for the purposes of the Criminal Code, which plants or fungi are considered to contain a narcotic or psychotropic substance and which is greater than a small quantity within the meaning of the Penal Code (operative part II) expires on the same date. It did not find the inconstitutionality of the other contested provisions of the Criminal Code and therefore, in the remainder, under Paragraph 70 (2) of the Law on the Constitutional Court, it decided to reject the application (operative part III).
66. The intertemporal effects of the adopted finding must be seen as having developed ex nunc, i.e. only from the date on which the finding will be declared in the Collection of Laws. The reasons for this finding can therefore only be applied to futuro (in the future), not to the Court of First Instance's ruling on the actions which took place during the duration of the contested legislation [cf., for example, the opinion of plenary of 14.12.2010 sp. zn. In fact, the opposite approach to open and already closed matters would not lead to a higher level of legal certainty for the addressees of the repealed provision, contrary to the purpose of that finding [cf. the finding of 18.9.2012 sp. zn. II. ÚS 2371 / 11 (N 159 / 66 SbNU 373)].
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 206 / 2021 Coll., on the application for annulment of Parts of § 284, 285 and § 289 (3) of Act No. 40 / 2009 Coll., Criminal Code |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.05.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Administrative law
Health
The regulation text is for informational purposes only.
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