The Constitutional Court found no 241 / 2009 Coll.
The Constitutional Court found of 26 May 2009 on the application for annulment of Decree No. 23 / 2008 Coll., on technical conditions for fire protection of buildings, and the alternative proposal for annulment of certain provisions of Decree No. 23 / 2008 Coll., on technical conditions for fire protection of buildings
Valid
The Constitutional Tribunal found
Text versions:
31.07.2009
241
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 26 May 2009 in plenary of the President of the Court of Pavel Rychetský and Judges Stanislav Balík, František Duchona, Vlasta Formánková, Már Güttler, Pavel Holländer, Vladimir Krorka, Dagmar Lastovecký, Jiří Much, Jan Musil (Judge of the Rapporteur), Jiří Nykodmi, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Ombudsman JUDr. Otakar Motál on the abolition of Decree No. 23 / 2008 Coll., on the technical conditions of the fire protection of the buildings, alternatively, on the application for the annulment of parts of Decree No. 23 / 2008 Coll., on the Technical Conditions of Fire Protection of the Construction of the Interior
as follows:
I. The proposal to repeal Decree No. 23 / 2008 Coll., on the technical conditions of fire protection of buildings, is rejected.
II. The application for annulment of the provisions of § 2 (1) (e), § 2 (2) (b), § 3 to 9, § 10 (1), (2) and (6), § 11 (1) and (2), § 12 to 14, § 15 (1) and (5), § 16, § 17 (1), (7) and (9), § 24 (1), (2) and (4), § 26 (2), § 28 (2), § 30 (2), (4) and Annex No 1, 4, 5, 7, 8 and 9 of Decree No 23 / 2008 Coll, § 26 (2), § 28 (2), § 30 (3), (4) and (10), § 31 and Annexes No 1, 4, 7, 8, 8, 8 and 9 of Decree No 23 / 2008 Coll.
Reasons
Recital of the proposal
1. The Constitutional Court received the motion of the Ombudsman, JUDr. Otakar Motěl, under the provisions of § 64 (2) (f) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') on the annulment of Decree No. 23 / 2008 Coll., on the technical conditions for fire protection of buildings (hereinafter referred to as" the contested Decree') as a whole for its non-compliance with the constitutional order of the Czech Republic and with Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Treaties, as amended (hereinafter referred to as "the Act on the Collection of Laws'). Alternatively, the Ombudsman makes an application for annulment of the provisions of § 2 (1) (e), § 2 (2) (b), § 3 to 9, § 10 (1), (2) and (6), § 11 (1) and (2), § 12 to 14, § 15 (1) and (5), § 16, § 17 (1), (7), (9), § 18 (1), (2), (5) and (6), § 19 (1), (2), (3) and (9), § 30 (2), (3) and (4), § 31 and Annexes 1, 4, 5, 7, 8 and 9 to Decree No 23 / 2008 Coll.
Arguments of the appellant
2. The Ombudsman states in his proposal that the contested decree generally regulates the technical conditions of fire protection for the design, implementation and use of the construction. In the vast majority of the provisions, the contested decree refers to Czech technical standards (whether those are technical standards listed in Annex 1 or Annexes 4, 5, 7 and 8).
3. In the provisions of Paragraph 13 (1), the contested decree also provides for the number of portable fire extinguishers in the reference standard (these are then further detailed in Annex 4). Annex 4 determines the number of fire extinguishers in general and specifically in individual types of buildings (family houses, housing houses, accommodation facilities, etc.).
4. In Paragraph 14 (3) of the contested Decree, the obligation on the owners of selected buildings to equip the construction of the autonomous detection and signalling equipment listed in Annex 5. In other provisions (§ 15 (5), § 16 (2), § 17 (7), § 18 (5)), the contested decree again regulates the obligation for owners to equip the buildings with detection equipment, which, according to the various types of construction, determines the location of such equipment. The question of the definition of an autonomous detection facility is then set out in Annex 5 to the contested decree.
5. The Ombudsman states that he has repeatedly met with the fact that the legislator uses a reference to Czech technical standards to establish binding rules of conduct. Such a procedure in itself does not find it to be defective, but it is problematic that these technical standards are not normally available to the public, but above all they are not available free of charge. The addressee of the legal standard is obliged to order the technical standard at the Office for Technical Standardisation, Metrology and State Testing for a significant amount of money to determine the content of the binding rule of conduct instead of looking at publicly (and above all free of charge) accessible Collection of Laws. Although it is envisaged that technical standards be gradually electronically (i.e. to be made available via the Internet with full text search) are gradually to be electronic as of 1 January 2009, it is no longer expected that the technical standards referred to in the relevant legal standards should be made available free of charge (only 50% of the discount on the current situation is envisaged). The Ombudsman submits that the practice of the State in this respect is contrary to the fundamental principles of legal standards, namely that generally binding rules of conduct are to be accessible to everyone without restriction in such a way that it can adjust its behaviour in a legally and discussed manner and avoid possible legal sanctions. The legal standards (and thus the technical standards which have been properly addressed) must, by their very nature, be accessible publicly and free of charge because access to their content cannot be dependent on the financial income and social status of the individual. Otherwise, one of the fundamental principles of the democratic rule of law - i.e. "equality before the law '- would be infringed [Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter)]. In addition to the requirement for public and free access to legal standards, the very nature of the democratic rule of law is also apparent. In the Constitution and the Charter, the people express a clear requirement that obligations be imposed only by law or by law, in the manner provided for by the law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter), while maintaining other conditions (prohibition of discrimination - Article 4 (3) of the Charter, examination of the substance and meaning of fundamental rights and freedoms - Article 4 (4) of the Charter, etc.).
6. The appellant points out that Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Treaties, as amended, which regulates the publication of legislation, does not know where a certain part of the legal standard (in concreto the rule of conduct, which is defined by the legal standard referring to the Czech technical standard) would not become a material part thereof, which is publicly and freely accessible in the manner provided for by the Act (provisions § 12 (1) and (2) of the Law on Collection of Laws).
7. For the reasons set out above, the Ombudsman considers that Decree No 23 / 2008 Coll. is contrary to both Articles 1 and 2 of the Constitution and Articles 1, 2 and 4 of the Charter and the Law on the Collection of Laws. Any provision of legislation of a regulatory nature must be made publicly and free of charge. If the State refers to a technical standard in the legislation, it is then obliged to ensure the public and free availability of such a standard. Otherwise, it is not a matter of establishing a legal obligation in a constitutional manner.
8. Since the contested decree refers, in the vast majority of its provisions, to Czech technical standards and its independent existence without them is irrelevant, the Ombudsman makes a proposal, in particular, for its complete abolition, since the link between the contested decree and the technical standards is so strong that it is not only relevant to abolish its partial provisions.
9. In the event that the Constitutional Court does not agree with its view on the connection of the contested decree to technical standards, the Ombudsman makes an alternative proposal to abolish those provisions of the contested decree, which directly refer to Czech technical standards or which find JUDr. Motìl problematic for other reasons.
10. In addition to contradicting the basic rules of the norm, the Ombudsman sees a contradiction in certain provisions of the contested decree and in other constitutional principles. It is mainly a contradiction between the provisions of Sections 13, 14 (3), 15 (5), 16 (2), 17 (7) and 18 (5) of the contested Decree with the principle of proportionality or proportionality in the wider sense.
11. The Ombudsman points out that while the State has the right by law (or by means of a decree, if there is explicit legal authorisation) to impose obligations on its citizens, he must not do so arbitrarily, there must be a legitimate and reasonable reason for establishing the obligation, and the legislative means chosen to achieve the desired objective must be appropriate, proportionate and, at the same time, the ratio chosen between interference in fundamental rights and freedoms and the public interest must be "optimal" in the sense of Article 4 (4) of the Charter.
12. The appellant submits that in practice it also meets the concept of public interest on the basis of which various legal or statutory prohibitions or restrictions are laid down, in some cases private property interests are actually hidden. This approach must also be rejected, in the appellant's view, since, although the legislator is entitled in general to limit the rights of some in favour of the rights of others (typically cases of protection of the weaker party in private law - i.e., for example, protection of tenants, consumers, authors, etc.), such a measure must be legitimate in the sense that it pursues generally accepted principles of equality, non-discrimination, solidarity, etc., and that this objective is achieved by appropriate means.
13. In the light of the foregoing, the Ombudsman considers that the contested provisions derogate from the limits given by the Constitution and the Charter by the legislators to determine the obligations of the addressees by the legal standard.
14. The Ombudsman contends that the contested provisions lay down obligations for the owners of buildings which, as a result, fall within their sphere of property. In one case (Paragraph 13 in conjunction with Annex 4 to the contested Decree) is the obligation to purchase a fire extinguisher and the obligation to carry out (or order) its regular revision, in the other case the obligation to install so-called autonomous detection equipment (i.e. re-compulsory expenditure). Therefore, the fundamental right that is affected in this case (Article 4 (4) of the Charter) is the right of ownership. In both cases, the imposition of the obligation at first sight can, of course, be justified by the public interest in the protection of property and health from the dangers of the creation, development and spread of fires. The legitimate objective therefore appears to be met.
15. Whereas, in the case of the obligation to install an autonomous detection device, according to JUDr. Motěl, the legitimacy of the target can be accepted (the problem is more likely to see the proportionality of such a measure in the narrower sense), this is not the case in the case of the obligation to purchase a fire extinguisher, as private property interests are hidden under the guise of public interest.
16. In the case of the number of fires, killed and injured persons, no statistically proven negative trend is evident. In the case of the "direct damage 'sub-category, this is a statistically relatively small conclusive element because, contrary to the other items under consideration, it is burdened with a number of subjective factors (the main problem is the relative estimation of the amount of damage that is derived from the abovementioned policy holders for the purposes of insurance claims, not from an objective assessment carried out, for example, by an expert). The appellant considers that the increase in the number of fires, deaths and damages is not alarming.
17. On the basis of the available data, the Ombudsman concludes that setting the obligation to purchase fire extinguishers in newly built buildings actually benefits the interests of those persons who will benefit from the obligation to make a financial profit. Indeed, the author of the contested decree does not hide this fact when, in the explanatory memorandum to the contested decree (p. 2), he openly states: "The decree will have a positive impact on the activities of small and medium-sized entrepreneurs in terms of their use in the manufacture, revision and repair of certain types of products used to secure fire protection in construction (e.g. fire alarm devices, fire extinguishers), which are newly expected to be placed in smaller buildings."
18. The Ombudsman takes the view that, while the State is entitled to lay down specific obligations to prevent the damage from happening, it can only do so if the imposition of a specific legal obligation is actually justified. The appellant is of the opinion that this requirement is not fulfilled in the event of an obligation to equip the relevant buildings with fire extinguishers (Paragraph 13 of Annex 4 to the contested Decree).
19. Even if we accept the thesis, the Ombudsman states that in both cases the requirement of a legitimate objective is met, he believes that the relevant provisions do not meet the requirement of suitability or subsidiarity in terms of the existence of alternative means to achieve the desired objective.
20. The Ombudsman states that it is primarily a matter for the citizens themselves to protect their health and property. In this connection, the Civil Code (Act No. 40 / 1964 Coll., Civil Code, as amended) provides for everyone to have a general prior obligation, which generally imposes a clear order "to do without harm to health, property, nature and the environment" (§ 415). However, the choice of the means to be used in the fulfilment of this legal obligation already depends primarily on each of the addressees of this legal standard. In the opinion of JUDr. Motìl, the objectives of preventive damage prevention can be achieved by other methods that typically fall within the field of private law, such as more favourable insurance conditions. For example, it will be the case for insurance companies to provide for smaller premiums for citizens who equip their buildings with fire extinguishers (a similar approach is applied without problems to the various types of emergency insurance for motor vehicles with which the owner of the motor vehicle is financially favoured if the car is better protected against theft by various security measures).
21. According to the Ombudsman, a fire extinguisher is an effective means, but it assumes a wide range of expertise and skills for its activities. In order for a fire extinguisher to perform its function, the person who uses it must be trained in the ways in which it is used and, above all, know in which cases it should be used. Otherwise, the extinguisher may even be dangerous. For example, the contested decree recommended powder extinguisher 34 It is not possible to safely use F-class fires (plant or animal oil and fat fires used in kitchen appliances) which are among the most common in households. The determination of the obligation to equip the relevant fire extinguishers without periodic training by the owners of such structures in the fire safety and use of individual types of fire extinguishers is an inappropriate device for the declared target. For the reasons set out above, the Ombudsman finds it inappropriate to impose an obligation to equip the relevant buildings with fire extinguishers (on the contrary, it is said that it can sometimes cause more damage than good to the layman's use of the fire extinguisher).
22. As regards the obligation to equip the relevant buildings with autonomous detection facilities (§ 14 (3), § 15 (5), § 16 (2), § 17 (7), § 18 (5) and Annex 5 to the contested decree), this is also a means which must be considered inappropriate without any further details being laid down. In particular, there is no provision in the contested decree requiring the equipment to provide a certain safety standard. The autonomous sensor, if necessary, should therefore be multi-functional (it must distinguish normal smoke from carbon monoxide), must have a built-in auto-test and must not be powered only from a battery battery.
23. At the same time, the contested decree, in the appellant's view, improperly obliges the owners of family houses to install autonomous detection devices in the "east section" of the family house. It would be logical to install equipment in a sleeping room, as the sensor can effectively fulfil the purpose for which it serves.
24. In order to assess the professional aspects of the case, which are essential for the assessment of proportionality of the provisions of Sections 13, 14 (3), 15 (5), 16 (2), 17 (7), 18 (5) and Annexes 1, 4 and 5 of the contested Decree, the appellant proposes, as evidence of the examination of Ing. F. P., who is an expert in fire protection and the creator of a number of technical standards, which should, where appropriate, comment on the compatibility of the contested Decree with technical standards, the practical consequences of the contested provisions and the possibility or impossibility by means of choice of achieving the declared objective of protection of property, life and health.
25. Since, in both cases (both fire extinguishers and autonomous detection equipment), these are technically simple equipment and their installation is possible without the need for major reconstruction of building buildings, the Ombudsman considers that the requirement to install such equipment only into new buildings (Paragraph 32 (3) of the contested Decree) is discriminatory (contradictory to Article 4 (3) of the Charter). Should the State really want to protect citizens' property and health, there is no legitimate reason not to impose an obligation to install fire extinguishers and autonomous detection devices in all the buildings mentioned in the contested provisions. The appellant is convinced that in both cases it is easy to install, but the owners of "new houses' are obliged to spend money on the equipment of their properties on the corresponding facilities compared to the owners of" old houses'. The number of fires in older real estate exceeds several times the number of fires in new buildings. Therefore, should the legislator already want to improve the level of fire protection, it should impose an obligation rather on those owners who are more likely to be at risk of fire. The position of the two owners should be equal in that regard, i.e. the obligation (whose meaning the appellant otherwise doubts) should be established without distinction.
26. In conclusion, the Ombudsman states that the contested decree is contradictory, for the reasons set out above, both with the constitutional order of the Czech Republic and with the Law on the Collection of Laws, and therefore proposes that the Constitutional Court should decide on the petition as defined above.
Observation of the tenderer
27. According to the provisions of Section 69 (1) of the Law on the Constitutional Court, the Constitutional Court requested a statement from the Ministry of the Interior as a party to the proceedings.
28. The Minister of the Interior, MUDr. Mgr. Ivan Langer, in his observations to the Constitutional Court, served on 2 March 2009, pointed out that, in the interests of unification and by agreement with the Ministry of Regional Development, the approved provisions of the implementing regulation, namely Decree No. 137 / 1998 Coll., on the general technical requirements for construction, as amended, were taken over in order to address the fire safety of buildings. The decree to replace the existing Decree No. 137 / 1998 Coll. is currently under notification procedure under the European Directive. The draft new decree addresses fire safety as one of the essential requirements for construction only by reference to Decree No. 23 / 2008 Coll. Therefore, if Decree No. 23 / 2008 Coll., or parts thereof as proposed, were to be repealed, the technical conditions for fire protection of buildings would not have been legally addressed at all. Legal uncertainty would be created for project documentation processors, but also for citizens in the event of a disagreeable opposition to this documentation, or for other building documents.
29. The Minister of Interior pointed out that Decree No. 23 / 2008 Coll., on the technical conditions for fire protection of buildings, is the implementation of the authorisation contained in the provision of § 24 (3) of Act No. 133 / 1985 Coll., on fire protection, as amended by Act No. 186 / 2006 Coll., hereinafter referred to as "the Fire Protection Act." The purpose of this legislation is to lay down in one legislation the technical conditions of fire protection in the design, construction and use of buildings. The technical conditions for the fire protection of buildings are set out here, which have only been partially established so far, in several legislation, in particular in the field of building law. Decree No 23 / 2008 Coll. responds to the harmonisation of fire safety requirements with European regulations, in particular Council Directive 89 / 106 / EEC and Interpretative Document No 2, in which fire safety is dealt with as one of the essential requirements for construction products. It is desirable that all the basic requirements for the construction that our legal system contains be adapted comprehensively. Therefore, it should be considered appropriate that the regulation of fire safety, as one of the essential requirements for construction, should be dealt with by a separate regulation and a harmonious whole of the rules should be established. Other regulations that must be respected when addressing the technical conditions for fire protection of buildings are the relevant decisions of the European Commission. The Minister of the Interior pointed out that Decree No. 23 / 2008 Coll. is a "technical" legislation which sets out, for the most part, the conditions for the design of buildings (§ 2 to 28). The problem of designing buildings can only be addressed by eligible persons, as is apparent from the provisions of Section 158 of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act). These persons must obtain an authorisation under Act No. 360 / 1992 Coll., on the pursuit of the profession of authorized architects and on the pursuit of the profession of authorized engineers and technicians active in construction, as amended. The design of buildings (design) can be carried out as business entities, which implies that they have to incur certain costs related to this activity to carry out this activity. These costs include the acquisition of technical standards for the amount of CZK 500 + VAT per calendar year. In Annex No. 1 to Decree No. 23 / 2008 Coll. the list of technical standards for fire safety of buildings is then clearly specified. The other annexes provide details of certain provisions of the contested decree.
30. To the Ombudsman's objection that technical standards are not commonly available to the public, especially available free of charge, the Minister of the Interior states that the Czech technical standards which deal with fire protection of buildings and are listed in Annex 1 to Decree No. 23 / 2008 Coll., are available for inspection on working days by the fire department of the regions (regional directorates, territorial departments). For a minimum fee, all these standards can be seen in some technical libraries of regional cities. Access to the Czech technical standards listed in Annex No 1 to Decree No. 23 / 2008 Coll., is public and free of charge and is therefore not in breach of Act No. 309 / 1999 Coll. For this reason, Decree No 23 / 2008 Coll. is not contrary to Articles 1 and 2 of the Constitution or Articles 1, 2 and 4 of the Charter.
31. It is a public service and free of charge, or for a minimum fee, and therefore there is no breach of the fundamental principle of a democratic state, i.e. equality before the law (Article 1 of the Constitution, Article 1 of the Charter), there is no breach of Law No 309 / 1999 Coll. and Decree No 23 / 2008 Coll. is not even contrary to Article 2 of the Constitution or Articles 2 and 4 of the Charter. In addition, the Minister of Interior points out that without the ownership of basic standards in the field of fire safety (CSN 73 08xx), an authorized technician or engineer assessing the technical conditions of fire safety cannot do his job. The Minister for the Interior considers that there is no breach of the fundamental principle of a democratic state, i.e. equality before the law (Article 1 of the Constitution, Article 1 of the Charter). The principle of public and free access of the Czech technical standards mentioned in Decree No. 23 / 2008 Coll. is not violated as the condition of public and free access of technical standards to citizens is ensured with the state institutions, i.e. fire rescue services of the regions.
32. The Ombudsman's objection that obligations may be imposed only by law or by law, in the manner provided for by the law (Article 2 (3) of the Constitution, Article 2 (2) of the Charter), while maintaining other conditions (prohibition of discrimination - Article 4 (3) of the Charter, examination of the substance and meaning of fundamental rights and freedoms - Article 4 (4) of the Charter), the Minister of Interior states that rights and obligations are imposed by law. Decree No. 23 / 2008 Coll. was processed on the basis of the authorisation of § 24 (3) of the Fire Protection Act. The legal way is thus laid down (see Section 24 (3) of the last sentence of the Fire Protection Act) more detailed definition of the technical conditions of fire protection by using the values and procedures established by the Czech technical standard or other technical document governing the conditions of fire protection of buildings. Therefore, there is no breach of Article 2 (3) of the Constitution and Article 2 (2), Article 4 (3) and (4) of the Charter.
33. The Minister of Interior recalls that § 99 of the Fire Protection Act provides that an authorized engineer or technician who has been granted authorisation for the fire safety of buildings is entitled to apply a procedure different from that provided for in the Czech Technical Standard or other technical document governing the conditions of fire protection when implementing the technical conditions of fire protection of buildings laid down by the implementing legislation issued under § 24 (3) of the Fire Protection Act. However, using such a different procedure, the authorised person must achieve at least the same result as would have been achieved by the procedure under the implementing legislation issued pursuant to Article 24 (3) of the Fire Protection Act. The technical standard is a public document based on the consent of stakeholders to the essential issues of the solution. It is not generally binding (Paragraph 4 (1) of Act No. 22 / 1997 Coll., on technical requirements for products and amending and supplementing certain laws, as amended by Act No. 71 / 2000 Coll.) and its application is based on the principle of voluntary nature. It also follows from Act No 22 / 1997 Coll. that compliance with the technical standard is one of the ways in which the requirements of the legislation can be met. It is therefore a technical expression of the general legal requirement, which can, however, be met by other means, which is recognised by the Fire Protection Act in Paragraph 24 (3). In the implementing regulation of this Act, i.e. in Decree No. 23 / 2008 Coll., Annex No. 1 contains a clear list of standards of fire safety of buildings by which the technical conditions of fire safety of buildings can be met. This form was chosen on the recommendation of the legislative bodies of the government. The Minister of Interior states that the reference to technical standards is also chosen in other legislation, e.g. Decree No. 369 / 2001 Coll., on general technical requirements for the use of buildings by persons with reduced mobility, as amended by Decree No. 492 / 2006 Coll., Decree No. 137 / 1998 Coll., on general technical requirements for construction, as amended, Decree No. 163 / 2002 Coll., laying down technical requirements for selected construction products, as amended by Decree No. 528 / 2005 Coll., on physical safety and certification of technical equipment, as amended by Decree No. 19 / 2008 Coll., etc. On the basis of that justification, the Minister for the Interior shall indicate that Article 2 (2) of the Constitution, Article 2 (3), Article 4 (3) and (4) of the Charter have not been infringed. In view of the scope of the fire safety standards listed in Annex 1 to Decree No 23 / 2008 Coll., it was not possible to proceed that those standards could be included in the full version of the annex which would subsequently be annexed to the Decree No 23 / 2008 Coll. and subsequently published in the Collection of Laws and made publicly available at the places referred to in the provisions of Section 13 of Act No 309 / 1999 Coll.
34. The Minister of the Interior notes that it is completely without reference to Czech technical standards in Decree No. 23 / 2008 Coll. and it is not possible to delete them because these standards contain almost all the details concerning the conditions of fire protection of buildings. The law cannot go into the details (ways of calculating different values, etc.) given on many pages of the standards. The legislation lays down only basic conditions, referring to the relevant Czech technical standards, thereby informing the persons eligible for the design of the buildings and the solution of the technical conditions of fire protection of the buildings (authorized engineer and authorized technician) where they will find a detailed solution to the problem. It is a "device" without which this activity cannot be carried out, not because an eligible person (an authorized technician, an authorized engineer) must not use any other way of dealing with the technical conditions of fire protection, but because of the extent of the problem, Czech technical standards make it easier for him to do so.
35. The Minister of Interior states that the number of portable fire extinguishers for initial fire intervention is laid down in Section 13 of Decree No 23 / 2008 Coll. with reference to Annex 4. This annex sets out, inter alia, the equipment of the fire department of the family house with a portable fire extinguisher with a specific fire extinguisher capability of 34 A and the installation in a single garage of one portable foam or powder extinguisher with a fire extinguisher capability of 183 B for each separate compartment (standing). The conclusion of the text in Annex No 4 states that the procedure under this Annex need not be maintained if the fire safety processor proves that the level of fire safety is maintained. The individual garage always (before the validity of Decree No. 23 / 2008 Coll.) had to be designed as a separate fire station and had to be equipped with a portable fire extinguisher with a powder or foam device containing at least 6 kg (or litres). From the perspective of the new European standards, i.e. since 1997, and by specifying the Decree No. 23 / 2008 Coll. this requirement corresponds to a portable fire extinguisher with a fire extinguisher capable of 183 B, either foam or powder. Paragraph 15 (2) of Decree No 23 / 2008 Coll. adopted a new solution according to which the construction of a family house can form a common fire station with a single garage or shelter for personal, delivery or single-track conductors. In view of the fact that in most cases both the garage and the family house form one building and universal equipment is available on the market, so the equipment of this common fire station, i.e. the family house and individual garages, a portable universal fire extinguisher for extinguishing all types of fire (not only solids but also electrical equipment, flammable liquids) is met by the requirement of the decree. This extinguisher is also suitable for use as an appropriate means of initial intervention. This solution saves the citizen for financing fire separation structures, which include a fire door worth about CZK 3,000 and other expenses related to their use. Therefore, in the case of portable fire extinguisher, it is not a newly introduced obligation, only to equip the construction of a family house, including a garage, with another type of fire extinguisher. This solution reduces expenditure on fire separation structures, which are most often fire doors and the protection of supporting ceiling structures. The basic principles of ownership under the Minister of Interior are not affected because it is not a new imposition of an obligation which did not exist before the Decree No 23 / 2008 Coll. was effective, only to specify the improvement of the quality of the modification and protection of the owner. The new solution according to the provisions of § 15 (2) of Decree No. 23 / 2008 Coll., i.e. by merging the previously separate fire department of the family house and the separate fire section of the individual garage into one section, does not lead to an increase in costs, but rather a cost investigation, which is in the interests of the owner as well as to strengthen the preventive function of protecting the property against the damage suffered. By imposing new technical conditions, safety is increased and preventive action in the context of fire is strengthened, which is the interest of the state, i.e. public interest. In view of the above, the Minister for the Interior notes that this requirement to achieve the chosen objective is legitimate, proportionate and optimal between interference with fundamental rights and freedoms and the public interest within the meaning of Article 4 (4) of the Charter.
36. Paragraph 14 (3) of Decree No 23 / 2008 Coll. lays down a requirement for early detection of fire to equip construction (referred to in Sections 15 to 18 and 28) with simple detection equipment. This is a new global trend of introducing simple, affordable equipment into spaces where we spend a lot of time. This autonomous detection device will detect the occurrence of a fire in a timely manner, and will alert the fire alarm and allow the early escape of persons from the space and thus the rescue of human life. The purchase price in the order of CZK (from CZK 250) compared to the amount for the family house in the order of CZK million and with the value of the health and life of a person is incomparable. For example, the United States of America shows a reduction in mortality after the use of domestic fire detectors by nearly half. In view of the above, the Minister for the Interior considers that this requirement to achieve the chosen objective is legitimate, proportionate and optimal in dealing with the conflict between interference with fundamental rights and freedoms and the public interest within the meaning of Article 4 (4) of the Charter.
37. The Minister for the Interior stated that between 2004 and 2006, when Decree No 23 / 2008 Coll. was being prepared, the statistics were clearly referring to the increasing number of persons killed and injured, and this was therefore considered a substantive and serious argument. In a later period, in 2007, the number of persons killed but not injured was reduced compared to the previous period. However, this fact cannot be regarded as a coherent and justifiable argument as set out in the Ombudsman's proposal. It is clear from the statistics on domestic fires between 1979 and 2008 that there have been very adverse developments in domestic fires, in particular as regards the number of injured persons and the level of damage. The requirement to equip a fire extinguisher and autonomous detection and signaling of a family house, to equip an autonomous detection and signalling facility for apartments in residential houses, spaces where people with reduced mobility (social care facilities) move and spend their time, and smaller hotels, is intended to contribute to increasing the safety of people in these areas. According to the Home Secretary, the main objective is to ensure the fire safety of citizens, in a standard way, in response to the new requirements resulting from membership of the European Union and the new global trend. The obligation to equip fire detection buildings and fire extinguishers with reference to technical standards is also governed by legislation in other Member States of the European Union, such as Finland and Romania. Installation of autonomous detection and signalling equipment is a global trend. For example, in Denmark, the autonomous smoke detector is 75%, in Finland 98%, in Norway 97%, in the United Kingdom 75% and in the US 95% of all households. To remind the Ombudsman that preventive damage prevention can be achieved by more favourable insurance conditions, the Minister of the Interior states that this comment is not appropriate in relation to the question of the possible repeal of Decree No. 23 / 2008 Coll., because the authority of the State - Ministry of the Interior - cannot impose on insurance companies how to take into account the "technical conditions of fire protection of buildings' under the general conditions of contracts relating to insurance of property and persons.
38. The Minister of Interior also states that Decree No. 23 / 2008 Coll. provides for the obligation to equip the buildings mentioned in Sections 15 to 18 and 28 with autonomous detection and signalling equipment, which is a technical condition for fire protection in the design phase of the construction. Decree No. 23 / 2008 Coll. also states that the construction is to be used in accordance with the technical conditions of the fire protection of the buildings under which it was designed, implemented and started to be used. For previously built buildings, there was no obligation to equip additional premises of existing buildings with autonomous detection and signalling facilities, since the retroactivity of the legislation is considered to be an unacceptable legislative technique which is contrary to the requirement of legitimate expectations and legal certainty. The retroactive effects of the legislation would be in breach of the principle "the construction is to be used in accordance with the technical conditions of fire protection of the buildings under which it was designed, carried out and started to be used ', i.e. on-site and time. For the reasons set out above, there is no discrimination and contradiction with Article 4 (3) of the Charter.
39. The Minister of the Interior adds that in recent years, the fire brigade uses another (and can be argued as well as a proven) means of "fire prevention." The dissemination of awareness about the importance of fire protection, the obligations of individuals when using the building, the procedure for detecting fire, how to extinguish etc. takes place in the form of preventive education, especially for children and youth. The fire protection information is also provided on the website of the fire brigade of the regions and the professional public is informed in the form of seminars and courses. It must be noted that this form brings results and citizens themselves are already (optional) purchasing autonomous detection facilities for existing flats.
40. In conclusion, the Minister of Interior states that by repealing Decree No. 23 / 2008 Coll., or part of it, there would be no legislation in the Czech Republic dealing with fire safety of buildings. On the basis of the above, the Ministry of the Interior notes that the Decree No 23 / 2008 Coll. and its individual provisions do not contradict the Constitution or the Charter and therefore proposes that the Constitutional Court reject the proposal as unfounded.
Abandonment of oral proceedings
41. According to the provisions of Paragraph 44 (2) of the Constitutional Court Act, the Constitutional Court may, with the consent of the parties, refrain from oral proceedings if it cannot be expected to further clarify the case. Since both the appellant and the Minister of the Interior have expressed their agreement to abandon oral proceedings and since the Constitutional Court considered that further clarification could not be expected from the hearing, the oral proceedings in the case at hand have been abandoned.
Active ID of the applicant
42. The Constitutional Court first addressed the question of whether the appellant - the Ombudsman - is entitled to file an application for annulment of the contested legislation or its individual provisions. He reached a positive conclusion as, pursuant to the provisions of Paragraph 64 (2) (f) of the Law on the Constitutional Court, an application for the annulment of another law or its individual provisions, if contrary to the constitutional order or the law, is entitled to be filed by the Ombudsman in accordance with Article 87 (1) (b) of the Constitution.
Constitutional conformity of the legislative process
43. The Constitutional Court notes that the contested legislation was adopted and issued in accordance with the Constitution and declared in accordance with Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, as amended. Under Article 68 (2) of the Law on the Constitutional Court, when deciding on the content of a law or other law, the Constitutional Court assesses the content of the law or other legislation in terms of its compliance with the constitutional laws and, in the case of other legislation, the laws are also in place to determine whether or not they have been adopted and issued within the limits of the constitutional competence and in the constitutionally prescribed manner.
44. The Constitution provides that ministries may legislate on the basis and within the limits of the law if they are empowered by law to do so. The contested Decree No. 23 / 2008 Coll., on technical conditions for fire protection of buildings, was issued by the Ministry of the Interior on the basis of the legal authorisation contained in the provision of Section 24 (3) of the Fire Protection Act.
45. For the sake of completeness, it is necessary to cite the provisions of Section 24 (3) of the Fire Protection Act, which states: "The Ministry lays down implementing legislation on technical conditions for fire protection for the design, construction or use of buildings, in order to limit the development and spread of fire and smoke in construction, to limit the spread of fire to neighbouring buildings, to evacuate persons and animals in the event of a fire hazard or to allow effective and safe intervention of fire protection units. For more detailed definition of these conditions, the values and procedures established by the Czech technical standard or other technical document governing the conditions of fire protection of buildings may be used. '
46. The contested Decree was published in No 10 / 2008 of the Collection of Laws and became effective on 1 July 2008. This decree has not yet been amended, as has not been amended or repealed by the provisions of the Fire Protection Act, which are a benchmark for the abstract control of the constitutionality and legality of this decree. The proposal was therefore found admissible.
Evaluation of the Constitutional Court
A) The application for annulment
47. In its proposal, the Ombudsman proposes, first of all, the repeal of Decree No 23 / 2008 Coll. as a whole, on the ground that the contested Decree refers in a number of its provisions to Czech technical standards, which are not available publicly and free of charge, thereby violating Article 1 of the Constitution and Article 1 of the Charter.
48. The nature of Czech technical standards can be described as follows: Czech technical standards are a specific type of standards, in which very specific requirements are adapted - they contain a technical description of the parameters of products, structures, materials and more complex units of these parts. Technical standards shall include information on generally accepted technical solutions, basic legal requirements for design, material, fire, hygiene or health and environmental safety. Technical standards cover almost all areas of human activity.
49. Act No. 22 / 1997 Coll., on technical requirements for products and amending and supplementing certain laws, as amended, in § 4 defines Czech technical standards as follows:
"(1) The Czech Technical Standard is a document approved by an authorised legal person (Section 5) for repeated or permanent use under this Act and marked by the letter" ČSN, "the issue of which was notified in the Bulletin of the Office for Technical Standardisation, Metrology and State Testing (hereinafter referred to as" Office Bulletin "). The Czech technical standard is not generally binding.
(2) The name of the Czech technical standard and the letter designation CSN must not be used to indicate other documents.
(3) The Czech Technical Standard provides for the general and repeated application of rules, directives or characteristics of activities or their results aimed at achieving an optimal degree of arrangement in a defined context. "
50. Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts, as amended, provides nothing about technical standards.
51. It is clear from the above mentioned positive legislation that Czech technical standards are not generally binding. Technical standards are considered qualified recommendations (not orders) and their use is non-binding, only voluntary.
52. However, there are many cases where compliance with specific Czech technical standards is required by law or decree. The obligation to conduct certain activities in accordance with Czech technical standards may arise mainly on the basis of the provisions of a law which stipulates that the Czech technical standards must be complied with in the relations covered by this legislation. In such cases, certain binding requirements can already be discussed. Technical standards are therefore not generally binding, but in certain cases they will become generally binding if the specific legislation explicitly refers to them.
53. References to the technical standard in the legislation may take the form of an exclusive (compulsory) or (indicative) reference from the point of view of their strength. The exclusive reference determines compliance with the technical standard referred to as the only way to comply with the relevant provision of the legislation. The technical standard thus complements the incomplete legal requirement and thus becomes part of the legislation. This creates an obligation to comply with the provisions of the relevant standard for those entities covered by the legislation. Even if, in this case, it is not generally a matter of general commitment, it can be said that in relation to compliance with the requirements of the relevant regulation, the reference standard or part thereof becomes binding. In the case of an indicative reference, compliance with the standard is one of the possible ways of complying with the legal requirements. However, the general requirement of the legislation may be fulfilled by other means. The form of indicative reference is applied in the provision of § 4a of Act No. 22 / 1997 Coll., as regards harmonised or specified standards.
54. Technical standards complement an incomplete legal requirement. References to technical standards aim to specify the requirements contained in legal standards in order to protect public interest and security. The purpose of fulfilling detailed legal requirements is primarily the quality of products, the protection of human health and life, the safety of work and technical equipment, fire protection, the creation and protection of the environment, the protection of property and other interests. These requirements often result from international agreements which bind the Czech Republic. They have recently come mainly from the European Union.
55. In accordance with practice in the European Union, the concept of a harmonised standard is introduced. The harmonised Czech technical standard is a standard which, in relation to a specific technical regulation containing a general definition of technical specifications, contains an adjustment which will be considered to comply with the requirements of the technical regulation.
56. Compliance with technical standards is, in many cases, a crucial condition for market application. The question of why standards are used, even if they are not legally binding, could be answered by the fact that their use is advantageous because it facilitates the production and exchange of goods, communication between producers and customers, creating confidence between the manufacturer and the consumer, helping to reduce production costs, removing market barriers, etc. These are also the main reasons for developing technical standards at corporate, national and international level.
57. The appellant argues in its proposal that, by referring to Czech technical standards, Decree No 23 / 2008 Coll., the requirement that obligations may be imposed only by law and by law is not met by the Constitution and the Charter in the manner provided for by law (Article 2 (3) of the Constitution, Article 2 (2) and Article 4 (3) and (4) of the Charter). That objection cannot be accepted. The contested Decree No. 23 / 2008 Coll. was issued on the basis of the authorisation contained in the provision of § 24 (3) of Act No. 133 / 1985 Coll., on Fire Protection, as amended, which states: "The Ministry lays down technical conditions of fire protection for the design, construction or use of buildings in order to limit the development and spread of fire and smoke in the construction, to limit the spread of fire to neighbouring buildings, to evacuate persons and animals in the event of a fire hazard or to allow effective and safe intervention of fire protection units. For more detailed definition of these conditions, the values and procedures established by the Czech technical standard or other technical document governing the conditions of fire protection of buildings may be used. '
58. It follows from the above mentioned text of the law that this law does not only contain a mandate to issue the decree in question, but also provides for the possibility of using the values and procedures contained in the Czech technical standards. Annex 1 to Decree No. 23 / 2008 Coll. lists the standards for fire safety of buildings. Article 2 (3) of the Constitution, Article 2 (2) of the Charter or Article 4 (3) and (4) of the Charter were therefore not infringed.
59. The contested Decree No. 23 / 2008 Coll. contains in its Annex No. 1 a exhaustive list of standards of fire safety. In view of the scope of the fire safety standards listed in Annex 1 to Decree No 23 / 2008 Coll. it was not appropriate that those standards be included in the Annex in full, which would subsequently be annexed to that scope to Decree No 23 / 2008 Coll. and subsequently published in the Collection of Laws.
60. The existence of technical standards and the reference to them in the legislation are necessary to ensure that the legislation of the Czech Republic is not unduly burdened with a number of detailed legal requirements. The law cannot go into the details (ways of calculating different values, etc.) given on many pages of the standards. The legislation lays down only basic conditions, referring to the relevant Czech technical standards, thereby informing the persons eligible for the design of the buildings and the solution of the technical conditions of fire protection of the buildings (authorized engineer and authorized technician) where they will find a detailed solution to the problem.
61. Paragraph 99 of the Fire Protection Act states that "an authorised engineer or technician who has been authorised for fire safety of buildings (hereinafter referred to as the" authorized person ") is entitled to apply a procedure different from that provided for in the Czech technical standard or other technical document governing the conditions of fire protection when implementing the technical conditions of fire protection of buildings laid down in the implementing legislation issued pursuant to Article 24 (3). However, when using such a procedure, the authorised person shall achieve at least the same result as would have been achieved by the procedure under the implementing legislation issued pursuant to Paragraph 24 (3). ';
62. That provision therefore takes into account cases where the designer (authorised person) invents a more appropriate, innovative or cheaper solution than the standard.
63. The appellant's objections regarding the absence of public and free access to Czech technical standards can be addressed as follows: technical standards can be seen on working days at the district fire department (regional directorates, territorial departments) or for a fee in the technical libraries of regional cities.
64. Czech technical standards can also be purchased from the Office for Technical Standardisation, Metrology and State Testing, where citizens can also contact to provide basic information. Czech technical standards can be further purchased at the contact points of the Chamber of Commerce throughout the Republic. Since 2009, the printed form of technical standards has been half-discounted. The average price of Czech technical standards is (and was even before they were discounted) lower than the average in the European Union.
65. Access to all applicable technical standards in electronic form is also possible via the Internet, where it is possible to download these standards for a fee (for one user, the service is worth CZK 1,000 for 12 months, for an increased price even print).
66. However, it should also be noted that technical standards are not primarily intended for ordinary consumers, although one of the tasks of technical standards is its protection, but primarily for professionals. The technical standards in the field of fire safety are mainly equipped with authorized technicians and engineers, assessing the technical conditions of fire protection (which use them in their work), which is another possibility of access and consultation. The problem of designing buildings can only be addressed by eligible persons, as is apparent from the provisions of Section 158 of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act). These persons must obtain an authorisation under Act No. 360 / 1992 Coll., on the pursuit of the profession of authorized architects and on the pursuit of the profession of authorized engineers and technicians active in construction, as amended. The design of buildings (design) can be carried out as business entities, which implies that they have to incur certain costs related to this activity to carry out this activity. These costs may include the acquisition of technical standards.
67. It can therefore be concluded that access to the Czech technical standards listed in Annex 1 to Decree No 23 / 2008 Coll. is public and free of charge. The principle of public and free access to the Czech technical standards mentioned in Decree No. 23 / 2008 Coll. is not violated, as the condition of public and free access to technical standards for citizens is ensured with the state institutions, i.e. fire-fighting rescue services of the regions. The fundamental principle of a democratic state, i.e. equality before the law (Article 1 of the Constitution, Article 1 of the Charter) is therefore not infringed as a result of the existence of references to the technical standards contained in the present decree.
B) The alternative proposal by the appellant to abolish the above mentioned provisions of the Order
68. According to the Ombudsman, the contested provisions of the Decree impose obligations on the owners of the buildings which, as a result, fall within their property sphere by imposing on them, on the one hand, the obligation to purchase fire extinguishers and the obligation to carry out (or order) their regular revisions, and, on the other hand, the obligation to install so-called autonomous detection equipment, which means the compulsory spending of funds. The fundamental right which is contested in this regard is the right of ownership.
(Ba) Objection to breach of the principle of proportionality
69. The Ombudsman contends that the provisions of § 13, § 14 (3), § 15 (5), § 16 (2), § 17 (7) and § 18 (5) of Decree No 23 / 2008 Coll. are contrary to the principle of proportionality in the wider sense. Those provisions provide for compulsory fitting of fire extinguishers and autonomous detection and signalling equipment.
70. After the Constitutional Court identified the possible interference with property law, it accepted to examine the proportionality of the intervention in that fundamental right. The implementation of the proportionality test requires the search for and identification of the objective of a provision limiting fundamental rights; This objective is, in the present case, a public interest in protecting the life and health of persons and their property from the occurrence of a fire.
71. In the Found of 13 August 2002 sp. zn. The Constitutional Court, referring to the preamble and Article 1 of the Constitution, adopted one of the fundamental rules governing the functioning of State power, which is the principle of proportionality (proportionality) and the prohibition of abuse of law. The Constitutional Court noted that in cases of conflicts of fundamental rights or freedoms with public interest or with other fundamental rights or freedoms:... "the purpose (objective) of such intervention in relation to the resources used should be assessed, the criterion for this assessment being the principle of proportionality (proportionality in the wider sense), which may also be called a ban on excessive interference in rights and freedoms" [cf. also the finding of the Constitutional Court of 9 October 1996 sp. zn. ÚS 15 / 96 (N 99 / 6 SbNU 213; 280 / 1996 Coll.]. This general principle includes three principles or criteria for assessing the admissibility of intervention.
72. The first is the principle of eligibility for the purpose (or suitability) which includes consideration of intervention in view of the possible fulfilment of the intended purpose. According to this principle, the measure must at all be able to achieve the intended objective of protecting another fundamental right or public good. If the intervention is not capable of achieving the objective pursued, it is a manifestation of insolence which is considered contradictory to the rule of law.
73. It is also a principle of necessity which monitors the analysis of the pluralism of possible means in relation to the intended purpose and their subsidiarity in terms of restrictions on the Constitution of a Protected Value - a fundamental right or a public good. If the purpose pursued is to achieve alternative means, the constitutionally conformist is the one that limits the constitutional value to the minimum. According to this principle, the use of only the most gentle - in relation to the fundamental rights and freedoms concerned - is permitted by multiple means.
74. The third principle is the principle of proportionality (in the narrower sense), which is to measure the conflict of standing constitutional values. Accordingly, the principle of injury to the fundamental right must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms, if there is a conflict of fundamental law or freedom of public interest, it must not exceed, by its negative consequences, the positive effects which constitute a public interest in those measures [see also the finding of the Constitutional Court of 13 May 1998 sp. zl. ÚS 25 / 97 (N 53 / 11 SbNU 25; 159 / 1998 Coll.]].
75. The proportionality test is one of the standard legal instruments of both European constitutional courts and international and transnational courts [cf. numerous decisions of the European Court of Human Rights; The European Court of Justice, of course, also uses its version of the proportionality test - see also the finding of the Constitutional Court of 8 March 2006 sp. zn.
76. In view of the principle of eligibility for the purpose (suitability), according to which the measure in question must at all be able to achieve the intended objective of protecting another fundamental right or public good, it can be concluded that the proposed measure is capable of ensuring the achievement of the intended objective. Compulsory security of fire-fighting equipment and autonomous detection and signalling equipment shall be capable of protecting the lives and health of persons and their property against the harmful effects of fire. However, it is not only about protecting the rights of the owner of the building, but also about protecting the interests of people living in the neighbourhood and, in fact, the interests of the whole society. The public interest in protecting these values is a priority and takes precedence over the protection of ownership of individual owners. The public interest in the safety and protection of life, health and property outweighs the individual owner's interest in saving funds for the purchase of fire protection equipment. However, it should be noted that it is primarily in the interests of the owner himself to strengthen the preventive function of the protection of property against imminent damage.
77. From the point of view of the principle of necessity, according to which the use of only the most gentle - in relation to the fundamental rights and freedoms in question - from several possible means, it can be concluded that there is a rational link between the objective and the means chosen to enforce it in the present case. The means used to achieve the goal are gentle and necessary.
78. In the light of the third principle of proportionality (in the narrowest sense), according to which the damage to the fundamental right must not be disproportionate in relation to the intended objective, i.e. measures limiting fundamental human rights and freedoms, where there is a conflict of fundamental right or freedom with a public interest, their negative consequences may not exceed the positive effects which constitute a public interest in those measures, it can be concluded that, in the present case, the measures chosen are proportionate in relation to the intended objective. The required measures do not unduly burden the construction owner.
79. The obligation to procure fire extinguishers and automatic detection and signalling devices shall be imposed by the contested decree in order to protect the public interest in the protection of the life and health of persons and their property and in order to improve the safety of buildings, and shall be a negligible expense compared to the value of the built-up which these fire-fighting facilities are intended to provide. The acquisition of these facilities will not make the owner of the building particularly difficult. The amount in the order of hundreds of crowns compared to the amount spent on the purchase of a family house in the order of millions of crowns is not comparable, especially if its acquisition is imposed to protect the life and health of people. As regards the appellant's objections regarding the suitability of the technical parameters of the fire extinguishers and the autonomous detection equipment, the Constitutional Court states that this argument does not reach a constitutional level and therefore did not address these issues in more detail.
80. In view of the above, it can be concluded that the requirement for the acquisition of fire extinguisher and autonomous detection equipment is appropriate, necessary and proportionate (optimal) in relation to the ratio between interference with fundamental rights and freedoms and the public interest within the meaning of Article 4 (4) of the Charter to achieve the desired objective of protecting persons and things from fire.
81. In addition, it can be said that the owner of the construction has the right to choose when processing the project documentation, thus having the possibility of not using the procedure set out in Annex 4 to Decree No. 23 / 2008 Coll., if the processor of the fire safety solution (authorized technician or engineer) proves that the fire safety level which it has chosen has been maintained.
82. It can therefore be concluded that the ownership of owners of new (or reconstructed) buildings - including with regard to the proportionality test carried out - is not affected.
Bb) Objection to infringement of the principle of equality in rights
83. To the appellant's objection that imposing an obligation to install fire extinguishers and autonomous detection devices only into new (or reconstructed) buildings is discriminatory and thus infringes the principle of equality in rights enshrined in Article 4 (3) of the Charter, the following should be noted:
84. By Decree No. 23 / 2008 Coll. the requirement to equip certain buildings (§ 14 (3)) with autonomous detection equipment and signalling is a technical condition for fire protection at the design stage of the construction. Decree No. 23 / 2008 Coll. provides for an obligation to equip the buildings referred to in Sections 15 to 18 and 28 with autonomous detection and signalling equipment. The Constitutional Court finds that the contested legislation cannot be regarded as discriminatory.
85. From a general point of view, the constitutional principle of equality cannot be considered absolutely, as an abstract category, only relative. The equality of individuals before the law is not understood as an abstract category, but is attributed to a certain legal standard, it is taken in a relationship between different subjects, etc. The relative equality, as all modern institutions mean, allows for specific equality criteria for special cases, as the general principle of equality does not set such precise limits as to exclude any derogation, only requires the elimination of unjustified differences.
86. As regards the objection to the infringement of equality or non-discrimination, as guaranteed by the Charter in Articles 1 and 3, the Constitutional Court notes that the content of the constitutional principle of equality has been interpreted in a number of its decisions [e.g. the findings of the Constitutional Court sp. zn. Pl. Pl. ÚS 16 / 93 of 24.5.1994 (N 25 / 1 SbNU 189; 131 / 1994 Coll.), sp. zn. Pl. ÚS 36 / 93 of 17.5.1994 (N 24 / 1 SbNU 175; 132 / 1994 Sb.), sp. Pl. Pl. ÚS 5 / 95 of 8.11.1995 (N 74 / 4 SbNU 205; 6 / 1996 Sb.), sp. It identified in them the understanding of the constitutional principle of equality, as already expressed by the Constitutional Court of the CSFR in its decision of 8 October 1992, Pl. ÚS 22 / 92 (Collection of Resolutions and Finances of the Constitutional Court of the CSFR, Volume 1, Found No 11, p. 37), which stated that "it is for the State to decide, in order to safeguard its functions, that it would provide a group with less benefits than others. But even here, he must not go any further... If the law determines the benefit of one group and thereby imposes disproportionate obligations on another, it may do so only by referring to public values. 'The Constitutional Court has thus moved the content of the principle of equality into the area of constitutional acceptance of aspects of the distinction between entities and law. The first aspect, however, sees the exclusion of a forbearance; the second point of view arises from the legal opinion expressed in the judgment in the case under point Pl ÚS 4 / 95 of 7.6.1995 (N 29 / 3 SbNU 209; 168 / 1995 Coll.), which states:..." inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity challenging, at least in a certain direction, already the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter of Fundamental Rights and Freedoms, one of the political rights referred to in Article 17 et seq., of the Charter of Fundamental Rights and Freedoms, etc.'. The second point of view in assessing the unconstitutionality of the law allegedly establishing inequality is therefore the fundamental right or freedom.
87. The Constitutional Court understands equality as a relative category which requires the removal of unjustified differences. The principle of equality in rights must therefore be understood as meaning that a legal distinction in access to certain rights or in the imposition of obligations between legal entities must not be an expression of pleasure, but it does not imply that any right or all of them must be granted the same obligation.
88. This conclusion is also based on the adaptation of Articles 1 to 4 of the Charter. Article 1 of the Charter, the infringement of which is expressly objected, cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but must be understood as a single whole. It is clear from the adaptation of this general provision that the basic protected values listed in Article 1 of the Charter did not devise the Constitution as absolute. The same is reflected in Article 4 of the Charter, which directly foresees the existence of statutory obligations and restrictions, but also in Article 2 (3) of the Charter, which foresees the possibility of imposing certain obligations or restrictions. Also, international human rights instruments and many decisions of international control bodies are based on the fact that not every unequal treatment of different entities can be classified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to other entities. In order for a breach to occur, several conditions must be met: different entities in the same or comparable situation are treated differently without objective and reasonable grounds for different approaches being applied.
89. The Constitutional Court notes that the different arrangements for the obligations of owners of new buildings compared to those of old buildings are based on reasonable and acceptable reasons.
90. Higher costs associated with the purchase of fire extinguishers and detection equipment are compensated by higher levels of fire safety of buildings in the future. It is not an inequality if this obligation was not imposed on a group of owners who own older houses, while a group of owners who built new houses (or reconstructed old houses) is imposed, especially in their interests. For these reasons, neither discrimination nor conflict with Article 4 (3) of the Charter is involved. Finally, it can be pointed out that it is in the interests of the owners of the older buildings themselves to ensure that their buildings are protected against fire by those security devices, even though the legislation does not impose this on them.
91. The Constitutional Court did not consider it necessary to supplement the taking of evidence by carrying out the interviews of the experts proposed, as clarification of technical problems would go beyond the framework of constitutional review.
92. When summarising the above, the Constitutional Court did not find the contradiction of the contested decree with the constitutional order of the Czech Republic or with the law and therefore rejected the proposal for the annulment of the contested decree, as well as the alternative proposal for the annulment of its individual provisions, pursuant to the provisions of Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 27, Found No. 105, p. 177, published under No. 405 / 2002 Coll.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 241 / 2009 Coll., on the application for annulment of Decree No. 23 / 2008 Coll., on technical conditions for fire protection of buildings, and on the alternative proposal for annulment of certain provisions of Decree No. 23 / 2008 Coll., on technical conditions for fire protection of buildings |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.07.2009 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0