The Constitutional Court found no 22 / 2014 Coll.

Part of Sixth Act No. 494 / 2012 Coll., amending Act No. 200 / 1990 Coll., on Infringements, as amended, Act No. 40 / 2009 Coll., Penal Code, as amended by Act No. 306 / 2009 Coll., and certain other laws, is deleted from the date of the publication of this finding in the Collection of Laws.

1. The District Court of Liberec has made an application to the Constitutional Court for the annulment of Part Six (Efficiency) of Article VI of Act No. 494 / 2012 Coll., amending Act No. 200 / 1990 Coll., on Infringements, as amended, Act No. 40 / 2009 Coll., Penal Code, as amended by Act No. 306 / 2009 Coll., and certain other laws. He stated that, under sp. zn. 4 T 251 / 2012, an application for the punishment of M. K. for an act of obstruction of the execution of an official decision and a declaration pursuant to § 337 (1) (e) of Act No. 40 / 2009 Coll., a penal code, as amended until the date of its entry into force, (hereinafter referred to as "tr. z."), was committed by the fact that, although the judgment of the District Court in Liberec No. 1 T 197 / 2009-128 of 28. 3. 2012 in connection with the resolution of the Regional Court of Lab - a branch in Liberec on 17. 7. 2012 was sentenced to the criminal offence of compulsory nutrition under § 213 (1).

2. The legal qualification in the application for punishment pursuant to § 337 (1) (e) tr. z. is based on the text of the Criminal Code before its amendment by Act No. 494 / 2012 Coll. Act No. 494 / 2012 Coll. was an article In the amended Penal Code in Paragraph 337 (1), "the following point (d) is inserted after point (c): (d) infringes the residence ban imposed under another legislation '. Points (d) to (i) shall be renumbered (e) to (j).'; In Part Six (EFFECTIVE) of Article VI of Act No 494 / 2012 Coll. stated that" This Act takes effect on 1 July 2012. '; In the Collection of Laws, however, this law was published in the amount 186 under the number 494 / 2012 Coll., which was circulated on 31 December 2012.

3. In the case under consideration, the act for which the application for punishment was submitted should be assessed in accordance with § 337 (1) (f) of the Criminal Code, as amended by Act No. 494 / 2012 Coll., since the act should have been committed between 21.10.2012 and 27.11.2012, i.e. after the declared effectiveness of Act No. 494 / 2012 Coll. from 1 July 2012, although the act was only published on 31.12.2012. According to the wording of the Penal Code until the amendment of Act No. 494 / 2012 Coll., the act should be assessed in accordance with § 337 (1) (e) tr. z. and therefore could not proceed as if this clause on the effectiveness of Act No. 494 / 2012 Coll. did not contain and applied the penal code in the previous version. The district court in Liberec was therefore unable to apply the penal code without further action before the amendment of Act No. 494 / 2012 Coll., if the amendment contains an explicit provision on its effectiveness, the date of which precedes the action. At the same time, however, the fact that Act No. 494 / 2012 Coll. was declared only after the action being prosecuted prevents the application of the provisions of the Criminal Code, as amended by Act No. 494 / 2012 Coll.

4. The District Court of Liberec thus found that the provision of the criminal code in question cannot be applied in the criminal case in question, since the provision on the effectiveness of Act No. 494 / 2012 Coll., which provides for the effective date of 1 July 2012, which, however, precedes the publication of the law in the Collection of Laws on 31 December 2012, precludes that provision. Therefore, in view of the contradiction between that provision on the effectiveness of Law No 494 / 2012 Coll. with Article 2 (4) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), Article 52 (1) of the Constitution and Article 2 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), the appellant proposes its annulment.

5. The Prime Minister of the Czech Republic, having regard to the relevant case-law of the Supreme Administrative Court (judgment in sp. zn. 4 Ans 5 / 2007), waived his right to intervene.

6. The President of the Chamber of Deputies of the Parliament of the Czech Republic described in her observations the course of the legislative process and stated that the law was passed by the necessary majority of Members of the Chamber of Deputies. After its rejection by the Senate, the Chamber of Deputies renegotiated the bill and approved the votes of 105 Members. After returning the bill, 101 Members voted in favour of the bill. The approved law was delivered to the Prime Minister on 21 December 2012 and published in the Collection of Laws in the amount 186 under the number 494 / 2012 Coll. The Law in question was declared (in force) on 31 December 2012 and could not therefore have entered into force on 1 July 2012. The President of the Chamber of Deputies has undoubtedly declared that it is highly undesirable, with the need to prevent such a situation. It is therefore up to the Constitutional Court to examine the constitutionality of the contested provision in the context of the proposal by the District Court in Liberec and to give its decision.

7. The President of the Senate of the Parliament of the Czech Republic recap in his observations the course of the legislative process. It states that the Senate discussed the draft law in question within the limits of the constitutional competence laid down by the Constitution in a constitutional manner and rejected the draft law on 25 April 2012, with the Senate hearing of the law largely against the proposal to impose a ban on residence in infringement proceedings. The Senate's examination of the draft law did not affect the regulation of the effectiveness of the law and the Senate is in favour of the inadmissibility of the genuine retroactivity of the effects of each legislation. In conclusion, the President of the Senate leaves the assessment of constitutionality to the full discretion of the Constitutional Court by submitting the contested provision.

8. In his observations, the Ombudsman, who joined the proceedings as an intervener, agreed with the appellant's view on the alleged unconstitutionality of the annulment of the provision. It recalls the view of the Supreme Administrative Court (Case C-4 Ans 5 / 2007) that, if the legislature determines that the legislation is to take effect on the date preceding its publication, such a provision is absolutely inapplicable and should therefore be treated as if the provision on its effectiveness were not to be applied. Among the selected findings of the Constitutional Court, the Ombudsman recalls that the principle of predictability of the law, its clarity and the principle of internal inconsistencies are among the fundamental principles of the rule of law. The rule of law is an improper principle of the predictability of law and a ban on the exercise by public authorities. The principle of predictability of the law as an important attribute of the rule of law is substantially linked to the principle of legal certainty and is a prerequisite for citizens' general trust in law. Paragraph 3 (1) and (2) of Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, (hereinafter referred to as the Law on the Collection of Laws) practically precludes the legal form of the legislation adopted to produce the intended effects before it was declared. Therefore, if the law is retroactive, it is possible to talk about illegality or, where appropriate, unconstitutionality, in particular in relation to the principle of legal certainty (Article 2 (4) of the Constitution and Article 2 (3) of the Charter). This fact is even stronger in this particular case when amending criminal law. With reference to the case law of the Constitutional Court, the Ombudsman underlines the inadmissibility of the retroactivity of legal standards. In the case under consideration, the non-compliance of the provision of legislation with the constitutional order cannot be resolved by choosing a constitutionally conformal interpretation from several possible interpretations and it must be abolished. In the present case, it is irrelevant whether a retroactive law could have been established, for example, by errors in the legislative process (failure by the legislator to vote or lack of knowledge of the material). In the legislative process, the demand for stability, persuasion and the necessity of the legal acts on which the rule of law and, in parallel, the lives of citizens lie at the forefront. However, such acts, as well as the necessary authority of the legislature, cannot be found otherwise than by respect for the rules - the principles of legislative action [finding sp. zl. ÚS 5 / 02 of 2.10.2002 (N 117 / 28 SbNU 25; 476 / 2002 Coll.)]. It is thus entirely up to Parliament (as a whole) and the rules set by it to ensure the adoption of a qualitatively compliant legislation, both in substance and in legislative terms. On the basis of the above, the Ombudsman summarises that Parliament (as "sovereign 'legislator) has adopted a retroactive legislation, which cannot be bridged by a constitutional interpretation. It is therefore solely responsible for the adoption of an unconstitutional law (or part thereof), including the subsequent negative consequences. At the same time, on a general basis, the Ombudsman observes that, in cases where the law of the Constitutional Court is repealed, nothing prevents the legislature from adopting a" new' legislation reflecting the view set out in the annulment. On the contrary, it is Parliament that must not resign from its duty to protect fundamental rights and freedoms and remain dormant if the law or its individual provisions are abolished by the finding of the Constitutional Court [page 1, ÚS 1696 / 09 of 8 February 2011 (N 13 / 60 of the SbNU 127)]. In addition to the above, the Ombudsman attached a brief comment on the legislative process of the law in question, including an opinion on its substance.

9. In particular, the Constitutional Court considered that there was no need to hold oral proceedings in the case, as this would not have brought any further, or better and clearer clarification of the case than it had from the written proceedings of the parties. In view of the provisions of Article 44 of Act No. 182 / 1993 Coll., on the Constitutional Court (with a reminder in this context - as amended by Act No. 404 / 2012 Coll., effective as of 1 January 2013), the Constitutional Court was therefore no longer required to ask the parties whether they agreed to waive the oral hearing and decided without the oral hearing.

10. The formally impeccable proposal was submitted by the District Court in Liberec pursuant to Article 95 (2) of the Constitution and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended. The Constitutional Court shall have jurisdiction to consider the application and shall be admissible.

11. The Constitutional Court was forced to first consider whether it was entitled to review (and, where appropriate, to abolish) the amendment itself of the law or part of it in the present case. According to the settled case law of the Constitutional Court, it is not in principle possible to oppose the amendment, since such legislation does not generally have a separate legal existence; it receives it only as part of a legislative amendment; The Constitutional Court should therefore be referred to the examination of amended legislation [cf., e.g. resolution sp. zn. Pl. ÚS 25 / 2000 of 15.8.2000 (U 27 / 19 SbNU 271), also available at http: / / nalus.ujud.cz].

12. However, this does not mean that a proposal against an amendment to the law or part of it (as is the case in the present case) could not be subject to a substantive review at all by the Constitutional Court. The exception allowing such a review is the verification of the constitutionality of the procedure for the adoption of amending legislation [cf., e.g. the finding of sp. zn. Pl. ÚS 77 / 06 of 15.2.2007 (N 30 / 44 CollU 349; 37 / 2007 Coll.)], the situation in which the transitional provisions of the amending legislation [cf., e.g. the finding of sp. zn. Pl. ÚS 6 / 13 of 2.4.2013 (112 / 2013 Coll.) are also available at http: / / nalus.ujudou.cz]. Such an exception is undoubtedly also a situation which has also occurred in the present case, in which a provision on the effectiveness of the amendment to the law is contested, since the provision in question on the effectiveness of the amending legislation does not normally exist precisely and only as a part of it and does not become part of the amended legislation. In this situation, and taking into account the fact that even the application of the provisions on the effectiveness of the amendment can be intervened in constitutionally guaranteed rights, the Constitutional Court found the deregation proposal negotiable. On the basis of the reasons so set out, the Constitutional Court was able to review the contested provision.

13. The application for annulment of the provisions on the effectiveness of Act No. 494 / 2012 Coll. was lodged by the District Court in Liberec pursuant to Article 95 (2) of the Constitution and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, in connection with the criminal proceedings conducted under sp. zn. 4 T 251 / 2012 in the abovementioned case. This also gives the applicant an active ID.

14. The Constitutional Court, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., is required to assess whether the contested provision (or the law of which that provision is part) has been adopted within the limits of the constitutional competence and in a constitutionally prescribed manner.

15. It was found from the Parliament's press releases and shorthand reports, as well as from the observations of the President of the Chamber of Deputies and the President of the Senate of the Parliament of the Czech Republic that the Chamber of Deputies approved draft law No. 494 / 2012 Coll. in vote No. 103 (Resolution No. 1090) at its third reading at its 36th meeting on 21 March 2012; 179 Members present voted in favour of Bill 94 and against 77 Members. The Chamber of Deputies referred on 2 April 2012 to the Senate Bill, which at its 21st meeting on 25 April 2012 discussed the bill and rejected Resolution 582. The Chamber of Deputies voted on the bill returned by the Senate at the 40th meeting of 5 June 2012, with its vote remaining on the bill; of the 192 Members present voted in favour of Bill 105, against 63 (vote 13). The President of the Republic did not sign the law and returned it to the Chamber of Deputies, which, at the 49th meeting of the Chamber of Deputies, discussed the law, maintained its draft law (Resolution 1438) and voted in favour of Bill 101 and against 78 Members (vote 279). The approved law was delivered to the Prime Minister on 21 December 2012, who signed it. The Act was published in 186 Collection of Laws under No. 494 / 2012 Coll. on 31 December 2012.

16. The Constitutional Court notes that Act No. 494 / 2012 Coll., of which the contested provision is part, has been adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner.

17. The basic question in the present case is the assessment of the provision in question on the effectiveness of Law No 494 / 2012 Coll. in terms of its consistency with the Constitution, and whether the provision in question by virtue of the provision in force on 1 July 2012, as a result (no), results in the retroactive effect of the provision in Law No 494 / 2012 Coll. which is particularly serious in the case of the amendment of the substantive provisions of the Criminal Code and the law on infringements.

18. The Constitutional Court fully respects the principle of division of powers enshrined in Article 2 (1) of the Constitution and the constitutional rule according to which State power can only be exercised in cases, within the limits and in the ways laid down by law (Article 2 (3) of the Constitution). The constitutional rule of the lawful exercise of state power needs to be extended to the legality of the legislative process, including the requirements of legislative and technical.

19. Article 52 (1) The Constitution needs to be declared for the validity of the law. Pursuant to paragraph 2 of this Article of the Constitution, the procedure for declaring a law and an international treaty shall be laid down by law. This law within the meaning of Article 52 (2) of the Constitution is Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, as amended. According to Article 3 (1) of the Law on the Collection of Laws, the laws become applicable on the day of their publication in the Collection of Laws. According to Article 3 (2) of the Act, the date of publication of the law is the date of distribution of the relevant amount of the Collection of Laws referred to in its heading and, in accordance with paragraph 3, if no later effective, the legislation becomes effective on the 15th day following its publication (general vacatio legis). Where an urgent general interest so requires, an earlier start of effectiveness may exceptionally be established, but first on the date of publication. Those provisions of the Constitution and the Law on the Collection of Laws exclude the legal legislative procedure adopted by the legislation from producing the intended effects before it was declared.

20. Act No. 494 / 2012 Coll. was published in the amount of 186 Collection of Laws which was circulated on 31 December 2012. Therefore, if Article VI of Part Six (Efficiency) states that the Act takes effect on 1 July 2012, it is quite clear that the Act is in breach of Article 52 (1) of the Constitution and Article 3 (3) of the Law on the Collection of Laws. Therefore, if Law No 494 / 2012 Coll. provided for its entry into force on the day preceding its publication, it is effective to act before it was declared. The effectiveness of this legislation is preceded by its validity and the legislation provides for binding rules of conduct retrospectively to the time when the law was not published and the addressees of the legal regulation did not even have the opportunity to acquaint themselves with that rule. The obligation of the State to ensure that everyone is familiar with the legal standard (formal publication) was thus not fulfilled. The fact that it is not possible to understand the legal standard excludes the possibility of applying the principle of ignorant legis non excusat, thus does not excuse the principle of ignorance of the law, as this legal principle is based precisely on the assumption of a formal publication. This is also related to the principle of law-making for futur, i.e. the new legislation works in the future, regulates the behaviour of the beneficiaries of the law in the future. In fact, a retroactive provision or retroactive legislation requires the addressees to fulfil obligations which have not yet been imposed on them at all at that time and which does not involve adverse legal consequences. By establishing the effectiveness of Act No. 494 / 2012 Coll. on the sixth day of 1 July 2012, when the Act was published in the Collection of Laws on 31 December 2012, the Act in question thus results in retroactive action, thus representing a state known as genuine retroactivity, in which the law operates even before its validity.

21. The Czech Republic is, pursuant to Article 1 (1) of the Constitution, a sovereign, unified and democratic rule of law based on respect for the rights and freedoms of man and citizen. In a democratic rule of law, which is understood as a material rule of law, the application of the legal provision cannot be permitted in a way which contradicts some of the fundamental constitutional principles [cf. sp. zn. In particular, the definitions of the material rule of law include the principle of legal certainty, which, in particular, underlines the effective protection of the rights of all legal entities and the predictability of the procedure of the State and its authorities vis-à-vis legal entities, in particular as regards the application of sanctions where the legal entity has infringed legislation. Any legislation must express respect for the general principles of law such as trust in law, legal certainty and predictability of legal acts that structure the rule of law of the democratic rule of law, or are deductible from it [see, for example, the findings of the Constitutional Court sp. zn. I. ÚS 287 / 04 of 22.11.2004 (N 174 / 35 of SbNU 331), sp. zn. I. ÚS 431 / 04 of 22.2.2005 (N 31 / 36 of SbNU 347), sp. The value of legal certainty implies the principle of protecting citizens' trust in the law, that is to say, that the right will fulfil the functions for which the Constitutional Court's finding is established [cf. II. ÚS 296 / 01 of 26.11.2002 (N 145 / 28 SbNU 287)]. Part of the principle of legal certainty is also the predictability of the legislator's law-making procedure and the prohibition of retroactivity of legal standards or their retroactive interpretation [cf. sp. zn. IV. ÚS 215 / 94 of 8.6.1995 (N 30 / 3 SbNU 227)]. The importance of the prohibition of retroactivity of legal standards has already been emphasised in its case law by the Constitutional Court of the CSFR in the sp. zn. Pl. ÚS 78 / 92 of 10.12.1992 (Found No 15 of the Reports of the Resolution and Finances of the Constitutional Court of the CSFR, Prague: Linde Praha, a. s., 2011, p. 92), when he emphasised that the principles of the rule of law, legal certainty, which can be derived from the requirement of a democratic state order, require every constitutional principle of retroactivity to establish express verbis in the Constitution or in the law to exclude the possibility of retroactive interpretation of the law.

22. The Constitutional Court dealt with retroactivity issues in a number of its findings. Perhaps he dealt with this issue most extensively in the finding of sp. zn. Pl. ÚS 21 / 96 of 4.2. 1997 (N 13 / 7 SbNU 87; 63 / 1997 Coll.), when he stressed, in addition to the definition of genuine and false retroactivity, that there was a need to distinguish between cases in which compliance with the provisions of the law with the constitutional order can be ensured by its constitutionally conformal interpretation and when it is not possible to do so and to proceed with its abolition. The Court of First Instance is absolutely not bound by the verbatim wording of the legal provision, but may and must derogate from it where, for serious reasons, it requires the purpose of the law, the history of its formation, a systematic link or one of the principles which have its basis in a constitutional legal order as a significant whole. In the present criminal case, when the explicit determination of effectiveness in Act No. 494 / 2012 Coll. precludes this legislation from having the intended effects at all, the possibility of taking an interpretation that is constitutionally consistent is not an option.

23. The prohibition on the retroactive effect of criminal law is recognised in all modern legislation and is considered to be a fundamental principle of criminal law. It means that the offence is criminal only if the criminal offence was established by law before it was committed (Section 1 of the Criminal Code). This prohibition is reflected in the Czech legal order in particular in the so-called temporal scope of the criminal law, as laid down in Article 40 (6) of the Charter and, consequently, Article 2 of the Criminal Code. According to these provisions, the criminal offence is assessed and the sentence is imposed under a law effective at the time the offence was committed (the principle of the legality of criminal law - nullum crimen sine klim, nulla poena sine klim). For other sectors of law whose provisions of Act No. 494 / 2012 Coll. also amended, the prohibition of retroactivity must be derived from Article 1 of the Constitution and the principle of legal certainty [the finding of sp. zn. Pl. ÚS 31 / 94 of 24.5.1995 (N 25 / 3 SbNU 175; 164 / 1995 Coll.)]. The retroactive (temporal) effectiveness of the law is not excluded for legal rules which do not constitute an intervention in legal certainty and are in favor of the persons concerned, as is the case for Article 40 (6) of the second Charter or Article 2 (1) of the sentence behind the semicolon of the penal code, according to which the later law applies if this is more favourable to the perpetrators. This is not the case, however, which could be followed up by the proposal currently under consideration, when, in Act No. 494 / 2012 Coll. the stated effectiveness precedes the validity of this law and its provisions are therefore retroactive from the law and not simply a comparison of two successive legislation. Law No 494 / 2012 Coll. sets out the legal consequences for such factual conditions, which occurred before the date of validity of these provisions. The Constitutional Court is aware that the general courts have already dealt with situations where the legislator has provided for the entry into force of the legislation on the date before its publication. In these situations, the General Courts acted as if the provisions on the entry into force of the legislation in question did not exist (e.g. judgment of the Supreme Administrative Court, sp. zn. 4 Ans 5 / 2007 of 28.11.2008). The Constitutional Court does not intend to revise or reject this procedure by this decision. However, in the case under consideration, this is a special situation, since the error described by the legislator interferes in the criminal field, in which the special constitutional principle contained in Article 40 (6) of the Charter applies. Thus, in the case under consideration, the Constitutional Court accepted the annulment of the contested provision because, with reference to the specific nature of the criminal offence assessment, no constitutional interpretation was possible.

24. In assessing the constitutional consistency of the method of determining the effectiveness of Act No. 494 / 2012 Coll., the Constitutional Court considers that the reasons which led to this error in the legislative process in the Parliament of the Czech Republic and to which none of Parliament's chambers have signed up in their observations. It is entirely up to Parliament and the rules set by it to ensure the adoption of a qualitatively compliant legislation, both in substance and in legislative terms. As stated by the Constitutional Court in the finding in sp. zn. The signature of the President of the Chamber of Deputies as a signature of a public act therefore has not only a notification but also an identification and verification function. Its task, with the help of the other institutions of the House (rapporteurs, verifiers) and apparatus of the Chamber's office, is to ensure that the final expression of the House's will is formulated in accordance with the requirements laid down by law in the conditions of a democratic rule of law (certainty, clarity, clarity, clarity, clarity, clarity, inconsistency, linguistic and stylistic timeliness and respect for the prohibition of retroactivity).

25. It can therefore be summarised that the contested provision of Part Six (Effectiveness) of Article VI of Act No. 494 / 2012 Coll., which provides for the effectiveness of the Act on a day preceding the six-year date of publication of the Act, is not only contrary to the provisions of Article 3 (3) of the Law on the Collection of Laws and Article 52 (2) of the Constitution, which delegates to the Law on the Law on the Procedure of the Law and the International Treaty, but also to the constitutionally protected principles of the prohibition of retroactivity and legal certainty (Article 1 (1) of the Constitution). The determination of the effectiveness of the legislation on the day before its publication causes the retroactive application of the legal provisions of Act No. 494 / 2012 Coll. and makes the provisions of the law absolutely inapplicable. For these reasons, the Constitutional Court complied with the application and the provisions of Part Six (Effectiveness) of Act No. 494 / 2012 Coll. annulled pursuant to the provisions of Paragraph 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., on the date of the declaration of the finding in the Collection of Laws. Article 3 (3), first sentence, of the First Law on the Collection of Laws shall apply by abolishing the provisions on effectiveness in question, according to which, if no later regulation is established, the legislation becomes effective on the 15th day following its publication.