The Constitutional Court found No 22 / 2012 Coll.
The Constitutional Court found of 25 October 2011 sp. zn.
Valid
22
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 14 / 09 on 25 October 2011 in plenary composed of Pavel Rychetský (President of the Court), Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivan Janů, Vladimir Krůrek, Dagmar Lastovecká, Jiří Mucha, Jan Musil (Judge of the Rapporteur), Jiří Nykodemí, Miloslav Excellent, Eliška Wagner and Michaela Židická, on the proposal of the Regional Court in Ostrava submitted under Article 95 (2 of the Constitution of the Czech Parliament of the Czech Republic and 2.
as follows:
Motion denied.
Reasons
Recital of the applicant's proposal and argument
1. By a proposal submitted in accordance with Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), which was delivered to the Constitutional Court on 4 June 2009, fulfilling both the content and formal requirements of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), the Judge-in-Office of the Regional Court in Ostrava Mgr. Ondřej Mrákota (hereinafter referred to as "the appellant") requested the annulment of the provisions of § 22 (4) of Act No. 200 / 1990 Coll., on Transfers, as amended, (hereinafter referred to as "the Act on Transfers").
2. Paragraph 22 (4) of the Act on Infringements (valid until 31 July 2011) read:
"The fine from CZK 25,000 to CZK 50,000 and the prohibition of activity from one year to two years shall be imposed for the offence referred to in paragraph 1 (c), (d), (e) (1) and (5), and (h)."
3. The appellant considers that in those cases where the offender is prosecuted in infringement proceedings for offences against road safety and traffic continuity pursuant to § 22 (1) (e) (1) of the law on infringements (as amended by 31.7.2011), which "is committed by a person in traffic on the road... driving a motor vehicle and... does not hold the relevant group or subgroup of driving licences," the penalties provided for in § 22 (4) of the same law are in violation of the constitutional rules.
4. The appellant considers that the penalties thus determined are contrary to the principles of the rule of law enshrined in the preamble and in Article 1 of the Constitution. The sanctions thus firmly and cogentially provided are supposed to infringe the principle of proportionality and are contrary to the prohibition of excessive interference with fundamental rights and freedoms.
5. The violation of the constitutional principle of equality of citizens, enshrined in the preamble to the Constitution, is seen by the appellant in the fact that the contested legislation orders offenders of offences classified as punishable by a more severe penalty than offenders of actually analogous offences classified as criminal offences; the offence is of a type less serious than the offence and would therefore deserve a lighter penalty.
6. This alleged discrepancy is documented by the appellant by comparing the provisions of Paragraph 22 (1) (e) (1) of the Act on Infringements (as in force until 31 July 2011) with the provisions of Section 180d of Act No. 140 / 1961 Coll., the Criminal Act (as in force until 31 December 2009), in which the offence "driving a motor vehicle without a driving licence 'was modified. The definition of criminal conduct, i.e. driving without a driving licence, is said to be identical in both provisions. In particular, the appellant sees that the lower limit of the financial fine is set at CZK 25,000 in the cited provision of the Act on Infringements, whereas according to Section 53 (1) of the Criminal Act the lower limit of the financial penalty is only CZK 2,000. Another apparent disproportion is supposed to consist in the fact that the law on offences always orders to impose cumulatively both a fine and a ban on action, while the criminal law also admits a single imposition of only one penalty.
7. The appellant also considers as a constitutionally relevant defect of the contested legislation that it limits the possibility of administrative discretion when imposing a sanction. It is said that the individualisation of the penalty and the possibility of taking into account the specific circumstances of the case, in particular the seriousness of the offence and the characteristics of the perpetrator, are at risk. This could result in extreme injustice.
8. Finally, the appellant points out that the contested regulation, which allows the prohibition of an activity to be imposed, may give rise to the question of Article 26 (1) of the Charter of Fundamental Rights and Freedoms ("Everyone has the right to freedom of choice and preparation for the profession and the right to engage in other economic activities'). A high financial fine may be such an intense intervention in the individual's property situation that it violates the constitutional protection of property, guaranteed by Article 11 (1) of the Charter of Fundamental Rights and Freedoms. Both the imposition of a fine and the imposition of an operating ban may be" liquidation "for the perpetrators and members of his household. The non-constitutionality of such" winding-up "sanctions is recognised by the appellant from the reasoning set out in the Constitutional Court's finding of 13.8.2002 sp. zn. Pl. ÚS 3 / 02 (N 105 / 27 CollNU 177; 405 / 2002 Coll.).
The course of the previous procedure resulting from the submission of the application
9. From the content of the file of the Regional Court in Ostrava sp. zn. 58 Ca 31 / 2008 requested by the Constitutional Court, it is noted that Mr R. V. was recognised as guilty of an offence against road safety and continuity pursuant to § 22 (1) (e) (1) of the Act on Infringements (as amended by 31.7.2011) by the Municipality of Ostrava on 14 May 2008. He should have committed the transfer by driving a personal car Skoda Favorit on 12 July 2007, although he is not a holder of the relevant driving licence. The licence had previously been withdrawn from it by the Opava District Office decision of 26 April 2001, which imposed a 14-month ban on driving. This previously imposed penalty against the prohibition on driving motor vehicles for 14 months had already been implemented by Mr R. V. on 18 June 2002, but he did not apply in writing for a return of the driving licence, as was his obligation under § 102 of Act No. 361 / 2000 Coll., on road traffic and on changes to certain laws, so that he did not have a valid driving licence at the time of the road inspection on 12 July 2007 and therefore drove without a driving licence. It should be added that the condition for the return of the driving licence after the execution of the sentence or the penalty for the prohibition of activity (which R. V. did not comply), arising from the provisions of Section 102 (5) of Act No. 361 / 2000 Coll., in the then applicable version, was the redemonstration of professional and medical fitness. In accordance with Section 22 (4) of the Act on Infringements, he was fined in the amount of CZK 25,000 and a penalty for the prohibition of driving for 12 months.
10. The decision of the Municipality of Ostrava of 14 May 2008 was appealed against by R. V., which was rejected by the Regional Office of the Moravian-Silesian Region of 24 June 2008 by decision of MSK 93021 / 2008.
11. By an action before the Regional Court in Ostrava on 4 July 2008, R. V. sought the annulment of the decision of the Regional Office of the Moravian-Silesian Region of 24 June 2008, as well as the annulment of the decision of the Municipality of Ostrava of 14 May 2008 or the reduction of the penalties imposed. In the action, he argued that an offence which he did not deny was unconsciously committed by his formal error in not applying for his driving licence. He is aware that he has committed an infringement of the accused act, but he considers the parallel imposition of two sanctions - a fine of CZK 25,000 and a ban on driving motor vehicles for a period of 12 months - to be inadequate and disproportionate. He considers it to be an accumulation of excessively harsh punishments, unparalleled to the social danger of an offence. He pointed out that the law on offences did not distinguish between the perpetrator previously owned or never owned a driving licence and that the level of sanctions was disproportionate compared to the penalties imposed on road accident perpetrators in criminal cases resulting in a death-related injury. He also pointed out that he is currently registered as unemployed at the employment office, does not have a driving licence, which reduces his ability to obtain work; the sanctions imposed on him have serious existential consequences.
12. In this procedural situation, the Regional Court in Ostrava concluded that the provision of Paragraph 22 (4) of the Act on Infringements (as in force until 31 July 2011), which should be applied in the proceedings it has conducted, is contrary to the constitutional order and therefore submitted the case pursuant to Article 95 (2) of the Constitution to the Constitutional Court with a proposal to repeal that provision. By order of 3 August 2009 No 58 Ca 31 / 2008-43, the Regional Court suspended the proceedings in Case No 58 Ca 31 / 2008.
Observations by the parties and other State bodies on the proposal
13. According to Article 69 (1) of the Constitutional Court Act, a copy of the application was sent to both parties. The Presidents of the two chambers of Parliament of the Czech Republic described in their observations the procedure of the legislative process when approving the contested provisions of the law. They have expressed their belief that these provisions are consistent with constitutional rules. They both agreed to waive the oral procedure before the Constitutional Court.
14. At the invitation of the Constitutional Court, the Minister of Justice, Dr. Daniela Kovářová, commented on the proposal. In its observations of 30 September 2009, it admits that the opinions contained in the proposal relate partly to those contained in the case-law of the General Courts. It refers in particular to the order of the Supreme Court of 10 December 2008 in Case 7 Tdo 1529 / 2008, which compares the facts of the offence of driving a motor vehicle without a driving licence pursuant to § 180d of the Criminal Act (as amended by 31.12.2009) and the offence against road safety and continuity in accordance with § 22 (1) (e) (1) of the law on infringements (as amended by 31.7.2011), which states that "the difference between the two offences committed in intentional form lies only in the degree of danger to the company '. The Minister of Justice is attracted to the view that the criminal law provides courts with wider possibilities of individualisation and differentiation of punishments than the law on offences does. However, removing this disproportion would require deeper legislative intervention in the law on infringements; the proposed repeal of the provision of Paragraph 22 (4) of the Infringement Act cannot resolve this problem. The Minister points out that the new criminal code (Act No. 40 / 2009 Coll., the penal code; effective as of 1 January 2010) no longer contains any criminal offence which is identical to the criminal offence under § 180d of the previous criminal law, so that the computation of the two provisions on which the applicant's argument is based is already obsolous.
15. The Minister of the Interior Ing. Martin Pecina, in his observations by the Constitutional Court on 8 October 2010, disagrees with the appellant's arguments and recommends the rejection of the application. It refers to the seriousness of the conduct of driving a motor vehicle without a driving licence; the danger of this phenomenon is also highlighted in European Union documents. The sanctions provided for in the contested provision of the law on infringements fulfil an important preventive role.
16. The Municipality of Ostrava, the Department of Transport Activities, pointed out in its statement of 29 July 2009 the considerable type of social danger of the offence and the "alarming state on Czech roads." The penalties provided for in the contested § 22 (4) of the Act on Infringements meet the general and individual prevention requirements.
17. The Regional Office of the Moravian-Silesian Region, the Department of Transport and the Road Economy, supported, in its observations of 29 July 2009, the proposal to abolish the provisions of Paragraph 22 (4) of the Act on Infringements and agreed with the appellant's arguments. It takes the view that the lower limit of the penalty provided for in the contested provision does not meet the requirement that it be "adequate for all cases to be applied 'and does not, in fact, allow the administrative authority to take due account of the criteria for the assessment of penalties set out in Article 12 (1) of the Code of Infringements. The Regional Authority notes that" in its decision-making practice, the local administrative authority often finds that these sanctions are of a liquidation nature'.
18. On 2 May 2011, the Constitutional Court received a communication from the Supreme Administrative Court showing that there was a different procedure before it under sp. zn. 9 As 88 / 2010, the subject matter of which is analogous to that which is dealt with in this case before the Constitutional Court. In the proceedings before the Supreme Administrative Court, the other perpetrator of a negligent traffic offence (which was caused by a minor injury) also contends that the penalty imposed on him in the infringement proceedings is more stringent than that which could be imposed on him for a criminal offence of malpractice in criminal proceedings. After the Supreme Administrative Court learned that the Constitutional Court in this proceedings, under sp. zn. Pl. ÚS 14 / 09, has dealt with an analogous issue, its proceedings in the case sp. zn. 9 As 88 / 2010 pursuant to § 48 (2) (f) of Act No. 150 / 2002 Coll., the Administrative Rules, as amended by Act No. 127 / 2005 Coll., have been suspended and pending the decision of the Constitutional Court.
Replication of the appellant and its subsequent addition
19. The observations referred to above in Part III of the preamble to the finding were sent by the Constitutional Court to the appellant for an introduction and a possible reply. By a communication dated 12 November 2009, the appellant announced that it did not use the replica rights and agreed to waive the oral hearing before the Constitutional Court.
20. By letter delivered to the Constitutional Court on 13 September 2011, the appellant completed the petition. He stated that there had been a change of legislation at the time of the submission of the proposal, since with effect from 1 August 2011 the provision of Article 22 of the Act on Infringements was repealed by Article III (1) of Act No. 133 / 2011 Coll., amending Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended, and certain other laws. In practical terms, however, the text of the repealed provision § 22 (4) of the Act on Infringements was taken over by Article I (45) of Act No. 133 / 2011 Coll. in the new version of § 125c (4) (a) and § 5 of Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended, effective as of 1 August 2011.
21. It follows from the Constitution that it is the duty of the Constitutional Court to examine the constitutionality of the contested provision of the law, even if it has already been repealed (amended), on condition that the public authority, not the private law body, is the addressee of the alleged reason for the unconstitutionality, and that the contested provision of the law is to be used by the general court to deal with the pending case. It considers that these conditions are met in the present case and therefore proposes that the Constitutional Court declare the unconstitutional nature of the annulled provision of Paragraph 22 (4) of the Act on Infringements in force and effective until 31 July 2011.
Abandonment of oral proceedings
22. The legal issues discussed and all the facts of the case were sufficiently clear from documentary evidence. Since further clarification of the case could not be expected from the oral hearing, the Constitutional Court, with the consent of all the parties, waived it under Paragraph 44 (2) of the Constitutional Court Act.
Review of the grounds for any termination of proceedings
23. Since, with effect from 1 August 2011, the contested provision of Article 22 (4) of the Act on Infringements has been repealed by Article III (1) of Act No. 133 / 2011 Coll., amending Act No. 361 / 2000 Coll., on Road Traffic and on amendments to certain laws (Road Traffic Act), as amended, and certain other laws, the Constitutional Court considered whether the conditions for the termination of proceedings before the Constitutional Court under Paragraph 67 (1) of the Law on the Constitutional Court were met and concluded that it was not necessary to stop proceedings, but it was the duty of the Constitutional Court to decide on the application.
24. The Constitutional Court persists in the conclusions set out in the previous case-law [see for example the find sp. zn. Pl. ÚS 33 / 2000 (N 5 / 21 SbNU 29; 78 / 2001 Coll.), also available at http: / / nalus.ujud.cz]. Interpretation of Article 95 (2) The Constitution of the Constitutional Court concluded that it was entitled and obliged to examine the compliance of the law with the constitutional order even after the law had expired before the termination of the procedure on the control of standards in those cases where proceedings were initiated on a proposal from the Court and the law was to be applied in the pending procedure before the general courts. Such a situation also exists in the present case.
25. The assessment of the compatibility of the contested legislation with the constitutional order is also desirable on the grounds that the legislation contained in the new version of the provisions of Sections 125c (4) (a) and 5 of Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended by 1.8.2011, is identical to the previous (repealed) regulation and its application could raise the same doubts as the previous one.
Constitutional conformity of the legislative process
26. In accordance with Article 68 (2) of the Constitutional Court Act, the Constitutional Court first assesses whether the contested legislation was adopted and issued within the limits of the constitutional competence and constitutional requirements. On the basis of the written evidence submitted to the Constitutional Court by the Presidents of the two chambers of Parliament of the Czech Republic, the Constitutional Court found that the provision in question of the contested law had been given in a constitutional manner.
Content assessment of the contested provisions
27. The objections by which the appellant justifies the alleged unconstitutionality of the contested legal provision can be summarised in three points:
(a) the penalties provided for in the law on offences for committing offences are, in certain circumstances, more stringent than those laid down in the criminal law for the commission of criminal offences in fact; the offence law, unlike the criminal law, does not include the possibility of abnormally reducing sanctions or abandoning punishment; while the criminal order allows for different options of diversion, the legal regulation of infringement proceedings does not provide for such possibility; all this is said to create inequality between perpetrators of offences and offenders of offences;
(b) the fixed range of penalty rates for committing an infringement and the obligation to impose cumulatively both penalties (fine and prohibition of action) would prevent the level of sanctions from being fairly differentiated, taking into account the specific circumstances of the action and the person responsible for the offence; the severity of the offence and the amount of the penalty may result in unjustified disproportion, the penalties imposed may be unfair;
(c) the imposition of such penalties may be "liquidation" for the perpetrator and members of his household.
28. The Constitutional Court notes that none of these objections is justified, has no constitutional legal relevance, nor does it demonstrate the contradiction of the contested legislation with the constitutional order.
29. In particular, the Constitutional Court points out that the legislation on the sanction of offences and offences is in the sole competence of the legislator and is contained in "ordinary '(" sub-constitutional') laws. As regards criminal offences, the principle of nulla poena sine liste is explicitly contained in constitutional regulations (see Article 39 of the Charter of Fundamental Rights and Freedoms: "Only the law determines which conduct is a criminal offence and what punishment, as well as what other damage to rights or property, may be imposed for its commission."). As regards sanctions for offences and other administrative offences, we will not find such an explicit rule in constitutional regulations. The provisions of Article 2 (3) of the Constitution ("Government of State serves all citizens and can be applied only in the cases, within the limits and in the ways laid down by law ') and of Article 2 (2) of the Charter of Fundamental Rights and Freedoms (" Government of State may be applied only in cases and limits laid down by law, in the manner provided for by law') and Article 4 (1) of the Charter of Fundamental Rights and Freedoms ("Obligations may be imposed only on the basis of and within the limits of the law, and only in respect of fundamental rights and freedoms') may the constitutional rule that only law may be laid down.
30. The constitutional rules contain few explicit provisions on sanctions and provide for more than excessive limits on penalties. Such a nature is, for example, the provisions of Article 6 (3) of the Charter of Fundamental Rights and Freedoms ("Death penalty is not permitted ') or the provisions of Article 7 (2) of the Charter of Fundamental Rights and Freedoms (" No one may be tortured or subjected to cruel, inhuman or degrading treatment or punishment').
31. Similarly, the explicit regulation of sanctions in international human rights conventions is sporadic. In the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention '), we will find such a provision in Article 3 (" No one must be tortured or subjected to inhuman or degrading treatment or punishment'). The same provision also includes the International Covenant on Civil and Political Rights in Article 7. Protocol 6 to the Convention contains a death penalty ban in Article 1.
32. Some criteria for the regulation of sanctions can be derived from the general provisions of the Constitution (preamble and Article 1) and the Charter of Fundamental Rights and Freedoms (Article 1), in particular from the principle of equality of citizens in dignity and in rights.
33. In accordance with the constitutional definition of the powers of the Constitutional Court under Article 83 of the Constitution ("Constitutional Court is a judicial authority for the protection of constitutionality '), the Constitutional Court under Article 95 (2) may: The Constitution in this case only assess whether the penalties provided for by the law for committing an infringement are inconsistent with constitutional rules (possibly constitutional principles).
34. Consideration of whether certain malicious acts are to be criminal or impunity (criminalisation or decriminalisation), the definition of the facts of offences (offences, offences) and the determination of the type and amount of sanctions (intensity of criminal and administrative repression) is made conditional on many social determinants changing in the course of historical development. It is not unusual that acts previously without penalty will declare a new legal regulation by the legislator to be criminal (criminalisation of acts), or, on the contrary, previously criminal conduct is decriminalized. The legal categorisation of offenses is rarely changed - earlier offences will be classed as offences by a new regulation, or past offences will become criminal offences. By monitoring the development of legal arrangements over a longer period of time, it is easy to see that the determination of the type and level of penalties for offences committed is also subject to relatively dynamic changes.
35. The legislative regulation of all these issues is in the sole competence of the legislator, which is governed by criminal policy criteria such as the general prevention aspect, the frequency of the occurrence of offences at a given historical time, the intensity of the risk of criminal conduct and the consequent degree of threat to orderly human coexistence ("legal peace"), the transformation into axiological public perception of the importance of individual and social values and legal goods damaged by the criminal behaviour of perpetrators, etc.
36. The Constitutional Court, which respects the constitutional principle of division of power, is not called upon to assess the suitability (effectiveness) of individual types of sanctions, the statutory rates of sanctions (their amount), the possibility of alternative or cumulative imposition of sanctions, etc. The Constitutional Court could intervene in the legal regulation of these issues only if the legislator exceeded the constitutional limits. However, there was no contradiction in this matter between the rules under appeal and the constitutional rules.
37. The Constitutional Court does not share the appellant's view that the unconstitutional nature of the contested provision can be inferred from the fact that the penalties provided for in Article 22 (1) (e) (1) of the Infringement Act (as in force until 31 July 2011) for the offence against road safety and traffic continuity are allegedly more stringent than those laid down for the actual analogous offence of driving a motor vehicle without a driving licence pursuant to Article 180d of Act No 140 / 1961 Coll., criminal law (as in force until 31 December 2009).
38. Such a comparison is not correct already because the criterion of "rigour" is assessed by the appellant only according to the partial elements of the statutory sanctions, namely only according to the lower limit of the cash fine (CZK 2 000 for the offence versus CZK 25 000 for the offence) and according to the fact that the law on offences always orders to impose cumulatively both a fine and a prohibition of action, while the criminal law also allows the separate imposition of only one penalty.
39. In order to accurately compare the rigour of sanctions, the full content and scope of the sanctions provisions for both offences must be assessed in a comprehensive manner:
• a fine of CZK 25 000 to CZK 50 000 was imposed for the offence in question and a ban on activity from one year to two years;
• the offence was punishable by imprisonment for up to one year or by a penalty of between CZK 2,000 and CZK 5 million or by a ban on activity for one year to ten years (these types of penalties could be imposed either separately or cumulatively).
Such a comprehensive comparison of all the elements of sanctions shows that criminal penalties are undoubtedly more stringent than sanctions for a corresponding offence.
40. While criminal penalty systems, on the one hand, and administrative punishment, on the other, are related, they are largely autonomous. It is different in that it protects to a large extent different types of social relations (for administrative offenses it is mainly about protecting the proper performance of public administration; the protection function of criminal offences covers a much wider range of social values).
41. Although, in general, the degree of social hazard (harm) of a crime is generally higher than that of an administrative offence, this is not always the case. Many administrative offenses are highly harmful, on the other hand, there are many bagging offences.
42. The categorisation of criminal offences and administrative offences is also influenced by pragmatic and practical considerations in the legislature, taking into account, for example, the capacities of judicial and administrative authorities, their competence (competence) to deal with the type of offence, the cost of procedural proceedings, etc.
43. In assessing the rigour of sanctions, account should not only be taken of quantitative comparisons of the amount of the penalty rate, but also of qualitative differences between criminal and administrative sanctions. It is generally recognised that the offences and penalties imposed on them are linked to the so-called social judgment and moral defamation and have a diffusing effect (in German teaching, this attribute of crime is referred to as "die Verwerflichkeit" - see Jescheck, H.-H.: Lehrbuch des Strafrechts. Allgemeiner Teil. 5. Aufl. Berlin: Duncker & Humblot 1996, p. 58). In administrative offenses, such condemnation does not exist, they are seen as ethically neutral, their perpetration is not condemned as morally defective in the social environment and generally does not lead to a decrease in the social prestige of the perpetrator. Punishment for a crime also causes other offenders to suffer severe consequences, in particular registration in the Register of Penalties and loss of competence for the performance of certain employment and activities for which integrity is required. Therefore, the mechanical comparison of only administrative and criminal sanctions rates is not accurate to assess their rigour.
44. Nor will the objection of the allegedly "liquidation character" of the financial fine from CZK 25,000 to CZK 50,000 and the prohibition of activity from one year to two years. The imposition of such penalties is generally not eligible (in standard cases) to cause "liquidation 'consequences, i.e. to jeopardise the existence or dignity of man. It goes without saying that imposing such a penalty is unpleasant and difficult for the perpetrators, but such an effect is a natural and even desirable feature of any penalty - if not, the general preventive sense of sanctions would be lost.
45. The Constitutional Court took into account, in its previous case-law, in particular in Case C-367 / 04 Pl. These conclusions, from which there is no reason to deviate now, were, however, expressed in a situation where the law under assessment was the subject of a lower limit of CZK 500,000 or CZK 200,000 for committing an infringement. In the current matter of sanctions for a completely different offence, the lower limit of the fine is CZK 25 000, that is to say, the amount which is in the order of incomparably lower than previously considered. Also, taking into account the current price and earnings ratios, the fixed amount of CZK 25,000 cannot be considered as "liquidation" in general. The current finding does not conflict with the above mentioned findings.
46. The question was also examined as to whether, by establishing the lower legal limit of the fine and the duration of the prohibition of activity, the principle of administrative discretion is not affected if, in a particular case, the determining authority cannot take sufficient account of the social and property ratios of the perpetrator and properly differentiate the scope of the penalty and cannot impose a fine and prohibition of activity below or completely abandon the imposition of the measure. The requirement for differentiation of penalties is expressed, for example, in the Constitutional Court's finding sp. zn.
47. The Constitutional Court concluded that the contested legal rule respects the requirement for differentiation of sanctions by establishing a fine margin of between CZK 25 000 and CZK 50 000 and a prohibition of activity ranging from one year to two years. Constitutional rules do not require the legislature, when setting the penalty rate legally, to always waive the lower limit of the area of sanctions. In general, the type of severity (damage) of a criminal act of a given species may be so high that it does not allow the "zero" value of the penalty scale to be determined individually. The assessment of the lower limit of the penalty rate is essentially a matter for the legislator. The constitutional regulations do not contain any directive on the lower limit issue - however, the order for proportionality between the type of seriousness of the criminal conduct and the level of the penalty rate must be followed. In the present case, the Constitutional Court identified the views expressed by the Minister of Interior and the Municipality of Ostrava, namely that the current state of insubordination of drivers in road traffic, showing, inter alia, a significant occurrence of driving proceedings without a driving licence and a worrying state of traffic accident, authorises the legislator to impose stricter requirements on all drivers without exception and to rule out a "zero 'penalty. This can also achieve secondary positive results - namely the reduction of the interpretative approval of police and administrative authorities in the practical application of regulations and the restriction of corruption in the imposition of sanctions.
48. The same conclusions as at the previous point were reached by the Constitutional Court on whether the principle of differentiation of sanctions and their proportionality had not been infringed by the legislator by ordering the cumulative imposition of two types of sanctions - fines and a ban on action. Even in this way of legal regulation, the Constitutional Court found nothing unconstitutional. The determination of several types of sanctions, whether alternatively or cumulatively, is a very regular regulation of sanctions in both criminal and administrative law. It usually combines the legislator with the repressive and preventive purpose of sanctions: in addition to the obvious punishment of undisciplined offenders, for example, preventing the performance of dangerous and threatening activities and protecting public interests. Nor did the legislator violate the principle of proportionality in this matter.
49. The Constitutional Court also referred to the question whether the contested provision of Paragraph 22 (4) of the Act on Infringements (in the version in force until 31 July 2011) did not infringe the constitutional principle of proportionality by setting the same penalty rate for five different facts of infringement, as described in § 22 (1) (c), (d), (e) (1) and (5) and (h) of the Infringement Act (in force until 31 July 2011). In particular, the following facts are concerned:
• who is driving a vehicle or riding an animal in a state of exclusion of competence, which has been caused by the use of an alcoholic beverage or other addictive substance,
• who, despite a call under a specific legislation, refuses to undergo an examination as to whether, when driving a vehicle or riding an animal, it was not affected by alcohol or any other substance, although such an examination is not associated with a danger to its health,
• who drives a motor vehicle and does not hold the relevant group or subgroup of driving licences,
• who has lost the right to drive a motor vehicle in the Czech Republic as a driver holding a European Community driving licence, a driving licence issued by a foreign State, an international driving licence issued by a foreign State,
• by infringing a specific legislation, it causes an accident in which another person is harmed.
The Constitutional Court notes that the type of seriousness (social danger) of these offences is of such a kind as to be consistent that, by setting the same sanctions, the legislator did not infringe the principle of proportionality or the principle of equality between the perpetrators of those offences.
Obiter dictum
50. The Constitutional Court attracts the appellant's objection that the earlier legal regulation of the offence of driving a motor vehicle without a driving licence pursuant to Article 180d of Act No. 140 / 1961 Coll., the criminal law (as amended by 31.12.2009) was not appropriate in particular because the description of the facts of the offence was in fact identical to that of the fact of the offence against road safety and traffic continuity pursuant to § 22 (1) (e) (1) of the law on infringements (as amended by 31.7.2011). Such a way of legal regulation, in which the legislator gives an identical definition of two facts - both an offence and a criminal offence - contradicts the requirement of legal certainty and the requirement of certainty of the rule of law and causes serious interpretative difficulties in application (there is a risk of applying an application procedure). It is true that the application practice has satisfactorily addressed this problem in the case-law. Top of the quoted resolution of the Supreme Court of 10 December 2008 sp. zn. 7 In accordance with Article 3 (2) of the Criminal Act, the need to differentiate legal qualifications according to the degree of social hazard, which allowed for the provision of Paragraph 3 (2) of the Criminal Act in force at that time ("An act whose degree of danger to society is insignificant is not a criminal offence, even if it otherwise shows signs of a crime."). For example, the criterion of the duration of the offence (one-off or long-term duration), the risk driving, the parallel cause of harmful consequences, the reason for loss of driving licence, etc.
51. The previous legal regulation of the offence of driving a motor vehicle without a driving licence pursuant to Paragraph 180d of the Criminal Act was also inappropriate because it included in one substance a variety of acts of different severity. It also affected those who had never held a driving licence and those who had lost their driving licence by decision of a court or administrative authority (by imposing a penalty or a penalty on the prohibition of activity, suspension of a driving licence as an interim measure), renunciation of the driving licence, etc. This legislation was criticised in the literature as switching criminal repression, contrary to the principle of subsidiary role of criminal law. The validity of these objections was confirmed, inter alia, by the fact that immediately after the inclusion of this substance in the Criminal Act (Act No. 411 / 2005 Coll., amending Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws, as amended, Act No. 200 / 1990 Coll., on infringements, as amended, Act No. 247 / 2000 Coll., on obtaining and improving professional competence to drive motor vehicles and on amendments to certain laws, as amended, and certain other laws; By amendments effective from 1 July 2006), there was a massive increase in the number of crimes prosecuted by tens of thousands - 18 098 acts were prosecuted for this crime in 2007, 18 752 acts were prosecuted in 2008 (source: Evidently Statistical Crime System of the Czech Police). Fortunately, the new penal code did not take over the offence, newly, only cases of motor vehicle driving are punishable after the perpetrator had previously been ordered a ban on driving or had been revoked of the relevant authority (as a criminal offence for obstructing the enforcement of an official decision under Section 337 of the Penal Code). Other (minor) cases of driving a motor vehicle without a driving licence are now being prosecuted as an offence under the provisions of § 125c (4) (a) and § 5 of Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended.
52. The Constitutional Court notes that the way in which the legal regulation previously contained in the provision of Paragraph 180d of the Criminal Act is extremely undesirable and could lead to a conclusion on the unconstitutionality and possible deregation of the Constitutional Court. However, the conditions for such a procedure are not met - firstly, because the provision of Paragraph 180d of the Criminal Act was already annulled on 1 January 2010 after the entry into force of the new Criminal Code (Act No. 40 / 2009 Coll.) and, secondly, because it was not the subject of the present proceedings before the Constitutional Court (it will not be applied by the proposing Regional Court).
53. The Constitutional Court is also aware that the current legislation on administrative offences and administrative sanctions suffers from many shortcomings that are rightly pointed out in the literature (see, for example, Prušková, H.: Administrative punishment. In: Hendrych, D. et al.: Administrative law. General section. 7. Prague: C. H. Beck, 2009; Powder, H.: Background to future legislation on administrative punishment. (Part 1). Legal practice No 6 / 1999; (2) Legal practice No 7 / 1999; Mikul, V.: Comments on Czech administrative criminal law. In: The honor of Prof. JUDr. Oto Novotny for 70th birthday. Praha: Codex Bohemia, 1998; Mazanec, M.: A few comments on the reform of administrative punishment. Administrative Law No 1 / 2002; Vopalka, V.: Targets of administration and administrative penalties. Administrative Law No 1 / 2002]. The Constitutional Court is hopeful that the legislator will respond to this justified criticism by a future comprehensive and more perfect regulation of administrative punishment.
54. It would be desirable for the legislature to impede the observable legislative expansion of administrative criminal liability by limiting crime only to cases of more serious infringements of legal obligations. This can be achieved, for example, by the legislature, in fact, properly defining the material characteristics of the offence, e.g. by respecting the condition that liability is not based on any infringement of another legislation, but only by causing a state of danger or causing a harmful effect. It is desirable to specify and differentiate the facts of administrative offences and sanctions, which will allow a precise distinction between the severity of the criminal conduct and the level of sanctions to be differentiated accordingly. This kind of regulation is better suited to the point of legality and constitutionality.
55. While the current legislation on sanctions imposed as offences can be considered as quite satisfactory, the regulation on sanctions is very poor and chaotic; in particular, the amount of the penalty rates is often not proportional to the type of seriousness of the offence.
56. In the current regulation, some general institutions of administrative punishment are lacking, such as the regulation of collective and collective punishment (sanctions) when committing multiple offences.
57. The Constitutional Court gives the legislature to consider whether de lezferenda should not also be regulated in the area of sanctions for administrative offences (including offences) of general institutions to mitigate sanctions below the lower limit of the rate and to refrain from punishment known in criminal law. However, the Constitutional Court is aware of the differences in institutional and procedural conditions in administrative and criminal proceedings (different levels of judicial control and control by the public, different levels of legal qualifications of administrative and criminal authorities, lack of involvement of the prosecutor in administrative proceedings, different remedies, etc.). In order to prevent the application of such institutes from having any lean, excesses and attempts at corruption practices, specific substantive and procedural arrangements should be chosen to prevent their abuse.
Conclusion
58. In the light of the above, the Constitutional Court did not find the grounds for declaring unconstitutional by means of a proposal of the contested legislative provision. Therefore, the application under Paragraph 70 (2) of the Constitutional Court Act was rejected.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges, Mr Eliška Wagner and Mr Ivan Janů, to decide.
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Regulation Information
| Citation | The Constitutional Court found no. 22 / 2012 Coll., in the case of an application to declare a conflict § 22 paragraph 4 of Act No. 200 / 1990 Coll., on infringements, as amended until 31 July 2011, with constitutional order |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.01.2012 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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