The Constitutional Court found No. 299 / 2013 Coll.
The Constitutional Court found of 30 July 2013 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
27.09.2013
299
FIND
The Constitutional Court
On behalf of the Republic
On 30 July 2013, the Constitutional Court decided under sp. z. pl. Pl. ÚS 37 / 11 in plenary, composed of the President of the Court of Pavel Rychetský and Judges Jaroslav Fenyk, Vlasta Formánková, Már Güttler, Pavel Holländer, Ivana Jana, Dagmar Lastovecká, Jan Musil (Judge of the Rapporteur), Jiří Nykodemí, Vladimir Sládečka, Milady Tomková and Michaela Židlická, as party to the Czech Republic as party to the proceedings and to the Czech Republic as party to the declaration of the unconstitutional of part of the provisions of Act No. 135d (1) (1) (2003) Coll.
as follows:
Motion denied.
Reasons
Recital of the proposal
1. On 22 December 2011, the Constitutional Court received a proposal from the Regional Court in Pilsen (hereinafter referred to as "the appellant ') of 19 December 2011 to abolish part of the provisions of Section 135d (1) of Act No 353 / 2003 Coll., on excise duties, in words" or tobacco products or spirit drinks secured by inspection under Section 134'. It follows from the classification of the contested provision that the appellant challenges the provision of § 135d (1) of Act No 353 / 2003 Coll., on excise duties, as amended by Act No 217 / 2005 Coll.
2. In its submission of 24 July 2013, the appellant amended the petition to the effect that, rather than abolishing the part of the legal provision cited, it proposed that the Constitutional Court should decide by finding that that part of the legal provision was contrary to constitutional order. The reason for the change of the petition is that Act No 407 / 2012 Coll., amending Act No 353 / 2003 Coll., on Excise Taxes, as amended, and other related laws, was amended by Paragraph 135d (1) of the Excise Tax Act with effect from 1 January 2013 (replaced by a completely different text), so that the reason for the annulment of that provision by the Constitutional Court was dropped. However, the provisions of Section 135d (1) of the Excise Tax Act in force between 1 July 2005 and 31 December 2012 will need to be applied to the case before the Regional Court in Pilsen.
3. The original application of 19 December 2011 for the annulment of the contested provision was made pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and under the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) in connection with the decision-making activities of the General Court. The amended proposal of 24 July 2013 to declare the unconstitutional nature of the contested provision is based on the direct application of Article 95 (2) of the Constitution.
4. Before the Regional Court in Pilsen, proceedings were brought in the administrative justice system under point 57 Ca 85 / 2009 by the applicant - commercial company 4 VIP, s. r. o., IČ 27968693, with the registered office of Karlovy Vary, Mattoni's waterfront 204 - seeking the annulment of the decision of the defendant of the Customs Directorate Pilsen of 20 August 2009 No 6889-02 / 09-1601-21. Following the decision of the Supreme Administrative Court, the proceedings before the Regional Court in Pilsen are pending under sp. e 57 Af 41 / 2011.
5. The appellant makes a proposal in the belief that the contested provision of Act No 353 / 2003 Coll., on excise duties, as amended, (hereinafter referred to as "the Consumer Tax Act ') was contrary to Article 11 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), which guarantees the protection of property rights, and to Article 4 (4) of the Charter.
Previous conduct of administrative and judicial proceedings
6. The primary administrative decision of the Customs Office of Karlovy Vary of 27 May 2009 No 4592-3 / 2009- 086100-021 stated that the company 4 VIP, s. r. o., committed an administrative offence by violating the legal obligations laid down in § 133 (1) of the Excise Tax Act in the manner set out in § 135c (2) of the Act cited at that time. This administrative offence was committed by a legal person by selling on 25 March 2009 a total of 16949 spirits in consumer packaging, 13300 g tobacco in consumer packaging and 302 352 pcs cigarettes in a non-residential area with the name SP02 and a tin container in the SAPA wholesale market, at Libusská 319, Prague 4 - Libush, where the premises are not designed to sell goods or provide innkeeper services. The company was fined in the amount of CZK 200,000 for this act. It was also decided to be forfeited on the basis of Article 135d (1) of the Excise Tax Act (in the then applicable version) of 16949 spirit drinks in consumer packaging, 13300 g tobacco in consumer packaging and 302 352 pcs of cigarettes secured by the Prague Dl Customs Office by decisions on interim measures No 4389- 3 / 2009- 176800- 032 and No 5004- 3 / 2009- 176800- 032. The Czech Republic is the owner of failed items.
7. On the appeal of the company 4 VIP, s. r. o., against the decision of the Customs Office of Karlovy Vary, the Customs Directorate of Plzeň decided by decision of 20 August 2009 no. 6889-02 / 09- 1601- 21 by confirming the first instance decision with the change that the fine imposed was reduced to CZK 100,000.
8. The company 4 VIP, s. r. o., brought an action against the decision of the Customs Directorate of Pilsen, brought by the Regional Court of Pilsen by judgment of 22 December 2010 No 57 Ca 85 / 2009-59 by rescinding the decision of the defendant of the Customs Directorate of Pilsen of 20 August 2009 No 6889-02 / 09- 1601-21 and returned the case to the defendant for further proceedings.
9. The defendant, the Customs Directorate of Plzeň, lodged a complaint against the above decision of the Regional Court of Pilsen, which was decided by the Supreme Administrative Court by judgment of 23 September 2011 No. 7 Afs 30 / 2011-105, in that it annulled the judgment of the Regional Court of Pilsen of 22 December 2010 No 57 Ca 85 / 2009- 59 and brought the case back to the Regional Court for further proceedings.
10. The Regional Court of Pilsen, by order of 19 December 2011 No 57 of Af 41 / 2011-126, suspended the action pursuant to Paragraph 48 (1) (a) of the Administrative Rules of Procedure and brought the case before the Constitutional Court with a motion under Article 95 (2) of the Constitution.
Arguments of the appellant
11. The appellant states that Paragraph 135d (1) of the Excise Tax Act implies that the administrative authority responsible for dealing with an administrative offence is obliged to impose the forfeiture of "tobacco products or spirit drinks secured by an inspection pursuant to § 134," if the perpetrator of the administrative offence is the perpetrator of the administrative offence and has been used or intended to commit the administrative offence. It is necessary to understand the control of compliance with the prohibition on the sale of spirits and tobacco products under Section 133 of the Excise Tax Act. Under Section 133 (1) of the Excise Tax Act, unless otherwise provided for by that Act, the sale of spirit drinks and tobacco products is prohibited in stalls, marketplaces (marketplaces) or places which do not meet the technical requirements for the territorial, special purpose and construction solutions of buildings and which are not subject to a collapse for sale of goods or services.
12. By the verbatim interpretation of § 135d (1) in conjunction with § 134 and § 133 (1) of the Excise Tax Act, it can be concluded that the administrative authority responsible for dealing with an administrative offence is required to ensure all tobacco products or spirit drinks which are sold at the time of the inspection in stalls, marketplaces (markets) or places which do not meet the technical requirements for the technical, technical and construction solutions of the buildings and which are not linked to the sale of goods or the provision of innkeeper services and subsequently impose a penalty on the forfeiture of all such secured goods, regardless of whether or not the obligation to pay excise duty. The Excise Tax Act does not, in § 135d (1) of the Excise Tax Act, refer to "unmarked" tobacco products and spirits, but to tobacco products and spirits in general. This interpretation was based on the defendant (and subsequently the Supreme Administrative Court). However, the appellant does not agree with the interpretation of § 135d (1) in conjunction with § 134 and § 133 (1) of the Excise Tax Act.
13. The Regional Court in Pilsen first attempted, in accordance with the settled case law of the Constitutional Court [e.g. the finding of sp. zn. Pl. ÚS 44 / 03 of 5.4.2005 (N 73 / 37 SbNU 33; 249 / 2005 Coll.), available in the same way as all other decisions of the Constitutional Court cited here also at http: / / nalus.ujud.cz] on a different, constitutionally conformal interpretation of the relevant section of Section 135d (1) of the Excise Tax Act and concluded that the provision in question could be interpreted in accordance with the constitutional law and therefore there is no reason for its annulment.
14. The Regional Court in Pilsen, in its first judgment of 22 December 2010 No 57 Ca 85 / 2009- 59, stated that, inter alia, the interpretation of Article 135d (1) of the Excise Tax Act 'cannot be ignored either by Article 134 of the Excise Tax Act. In accordance with the second paragraph of this provision, where spirit drinks and tobacco products are identified in accordance with Article 133 when carrying out checks on compliance with the prohibition on the sale of spirit drinks and tobacco products, the control authority shall take a decision on an interim measure providing for the provision of such products. The text of the provisions cited could give rise to an idea of the kind of automation of the decision to forfeit goods secured by an inspection under Section 134 of the Excise Tax Act, "that is to say, the notion that if the administrative authority detects spirits and tobacco products during the inspection, they must ensure and then decide on their forfeiture. However, such an interpretation is wrong in the view of the Regional Court in Pilsen.
15. The Regional Court in Pilsen therefore took the view in its judgment of 22 December 2010 that "the legal conclusion that tobacco products and spirits for which tax obligations were met could also be secured is... incorrect. Paragraph 135d (1) and § 134 (2) of the Excise Tax Act cannot be interpreted in isolation from the remaining provisions of the same law, in particular the first part, marked, general provisions'. The general provisions of the Excise Tax Act also contain the provisions of Section 42 marked, secured, forfeited and prevented selected products and means of transport '. This provision of Section 42 of the Excise Tax Act provides for a general framework determining the range of goods subject to security. Therefore, if the Excise Tax Act speaks in some of its provisions on" collateral', as is the case with Paragraph 134 (2), products other than those referred to in paragraphs 42 (1) and 42 (2) of the Excise Tax Act cannot be provided. The administrative authorities did not claim that the goods they had decided to forfeit were those defined in Section 42 (1) or (2) of the Excise Tax Act. They did not even compare the applicant's claim that the goods were subject to tax. In this situation, there can be no other conclusion than that the administrative authorities were not entitled to provide such goods at all, let alone decide subsequently to forfeit them.
16. Although the Regional Court is convinced that the guarantee institute referred to in § 42 (1) and (2) of the Excise Tax Act is binding, due to its speciality for customs authorities, even if they have acted in accordance with Act No. 337 / 1992 Coll., on the administration of taxes and charges, as amended, (hereinafter referred to as "the Law on the Administration of Taxes and Taxes'), it also considers it necessary to point out that the administrative authorities were not authorised to secure the products under the Tax and Charges Act. The Regional Court stated that it did so in view of the fact that the defendant, in the statement of reasons for the contested decision, stated that" it must be pointed out that, in the present case, when the control was carried out in the context of tax administration, the procedure for securing the case in tax administration was applied in the course of the proceedings, i.e. that the procedural regulation was the law on tax administration and charges. 'In the Law on the Administration of Taxes and Fees, the Insurance Institute is regulated in § 15 (7). According to that provision, the tax administrator's staff may also provide for cases where their failure to provide them could result in the possibility of additional proof of the facts needed in the tax proceedings. The Regional Court considers that if, in the present case, the goods for which there was no doubt of the fulfilment of tax obligations could not be secured. For the same reason, the Institute was also not applicable to the payment of the tax due or not yet fixed (Section 71 of Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended).
17. The Regional Court did not initially refer the case to the Constitutional Court for the annulment of Section 135d (1) of the Excise Tax Act from the point of view of the above conclusions, but interpreted this provision in a way which it considered to be constitutionally conformal. On the basis of that interpretation, the contested decision was annulled by the Customs Directorate Plzeň and returned the case to the defendant for further proceedings. However, after the Supreme Administrative Court did not agree with this interpretation and, by judgment of 23 September 2011, No 7 Afs 30 / 2011-105, the judgment of the Regional Court in Pilsen was annulled and the case was brought back to it for further proceedings, the Regional Court in Pilsen is now bound by the view of the Supreme Administrative Court that the Excise Tax Act gives the competent authorities the power to ensure and, at the same time, to forfeit all the spirit drinks or tobacco products that have been sold in ineligible space, regardless of whether or not the excise duty has been paid.
18. The Regional Court in Pilsen is convinced that part of § 135d (1) of the Excise Tax Act, provided for by the words "or tobacco products or spirit drinks covered by the examination provided for in § 134 ', is contrary to Article 11 (right to own property) in conjunction with Article 4 (4) of the Charter. In this context, the Regional Court in Pilsen was said to have no choice but to refer the case to the Constitutional Court for annulment of the section of Section 135d (1) of the Excise Tax Act.
19. The Regional Court in Pilsen considers that the automatic imposition of a sanction on the forfeiture of a case provided for in the contested section of Section 135d (1) of the Excise Tax Act is contrary to constitutional order. The principle of differentiation and proportionality of sanctions outlined by the Constitutional Court's finding of sp. zn.
20. If the Constitutional Court finds that, in the case of a penalty, the Constitutional Court has reached the conclusion that, in the case of a penalty, the requirement for differentiation of penalties is respected by establishing a fine margin and, in the case of a penalty, the term of the sentence is set by a penalty, then in the case of a penalty for forfeiture under Article 135d (1) of the Excise Tax Act, there is no such thing. Without examining other conditions, the forfeiture of all spirits and tobacco products at the point of sale is always imposed.
21. According to the appellant, the possibility of taking into account the nature and severity of the administrative offence committed, the personal, family, property and other circumstances of the offender, the existing life and the possibility of rectification of the offender, the behaviour of the perpetrator after the act, the effects and consequences that can be expected from the punishment for the future life of the offender, the attenuating and aggravating circumstances, etc., as is typical of criminal law (§ 39 of Act No. 40 / 2009 Coll., Criminal Code, as amended by Act No. 193 / 2012 Coll.). The administrative authority may not take into account the seriousness of the administrative offence, the manner in which it was committed and the consequences thereof, the circumstances in which it was committed, etc., as is typical of the infringement law [Paragraph 12 of Act No. 200 / 1990 Coll., on misconduct, as amended, hereinafter referred to as "the law on infringements'].
22. In this situation, the appellant finds it difficult to talk about the fact that the principle of differentiation of sanctions could be fulfilled at all. There is no differentiation of the penalty in the automatic imposition of forfeiture. The amount of the penalty is always equal to the quantity of spirit drinks and tobacco products at the point of sale, irrespective of, for example, the danger of an act to the company. It may be easy to see that, in the event of a minor act, the perpetrator will be affected disproportionately more than in the case of a very dangerous act.
23. The Regional Court concluded that the purpose of Paragraph 135d (1) of the Excise Tax Act is the interest of the State that the construction works are used only for the purpose for which they are intended by the construction technical character and for which the construction technical purpose for the required purpose has been verified by the construction office. The ban on the sale of tobacco products and spirits on the spot which has not been approved for the sale of goods or the provision of innkeeper services is a special provision in relation to the general obligation laid down at present in Section 119 of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act), as amended by Act No. 350 / 2012 Coll.
24. The Regional Court states that § 119 of the Building Act is an expression of the principle that the construction can only be used for the purpose for which it is intended by its construction technical character and for which the construction technical destination for the required purpose has been verified by the construction office. The purpose of this principle is certainly to prevent damage which could be caused by incorrect use of buildings. It cannot be ignored that this principle is of particular importance when the construction is used by a large number of people, although it was not intended for such mass use, since any damage to the lives and health of persons must be considered to be the most serious damage.
25. According to the appellant, if the tax administrator carries out the administration of excise duties, it is logical that, for example, in a local investigation or tax control, the tax administrator can make both the findings relating to the fulfilment of the tax liability and the findings relating to the fulfilment or breach of the sales bans referred to in Section 133 of the Excise Tax Act. It can therefore be understood that the legislature, for the sake of the efficiency of the administration, has entrusted the excise authorities with powers in the scope of Sections 132 to 134 in conjunction with Sections 135c and 135d of the Excise Tax Act. The adjustment of these two powers in one law is then a logical consequence of this intention.
26. However, illogical and disproportionate, in relation to the legally protected interest, the Regional Court appears to have the obligation of the administrative authority to ensure that all things are in an area which is not intended, by its structural technical nature, for activities with such things or for the presence of things in it. A building bill in a similar administrative offence does not provide for a forfeiture penalty. The damage to people's lives and health can arise from an ineligible building, not from goods sold in that building.
27. The Regional Court in Pilsen, in relation to the principle of differentiation of sanctions, states that it is not excluded that an offender selling tobacco products and spirits in an area that is not formally technically approved for the sale of goods but, if the necessary formalities have been completed, could be redeemed without any building modifications, more times than the perpetrator selling those goods in an area that is directly threatening the life and health of buyers.
28. If the Constitutional Court has stated in the decision of the Constitutional Court in sp. zn. The confiscation penalty shall be determined cumulatively in accordance with Paragraph 70 (3) of the Penal Code only if the offender is in breach of another law or other property value referred to in paragraphs 1 and 2 in respect of which the forfeiture of the case or other property value may be imposed. The Act on Infringements does not contain a cumulative determination of the forfeiture penalty for any of the facts of the offences. It might be possible to accept the forfeiture of tobacco products and spirits for which the excise duty has not been met, but not the tobacco products and spirits for which the tax duty has been met. These things are not held against the law. In the appellant's view, if these things are to be forfeited, the penalty for forfeiture is clearly disproportionate.
Observations of participants
29. In accordance with Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., the party to the proceedings shall also be the one who has issued the law or other legislation whose annulment is proposed. Pursuant to Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., the Constitutional Court requested the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as parties to the application.
30. The President of the Chamber of Deputies of the Parliament of the Czech Republic Miroslav Nemcová stated in their observations, the Constitutional Court of the Czech Republic delivered on 7 March 2013, and the President of the Senate of the Czech Republic, Milan Štěv in his observations, the Constitutional Court of the Parliament of the Czech Republic, stated that the contested provision of § 135d was in Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, Incorporated by Act No. 217 / 2005 Coll., amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended by Act No. 265 / 1991 Coll., on the Jurisdiction of the Bodies of the Czech Republic in the Price, as amended Regulations, and several other laws, and were amended three times by Act No. 575 / 2006 Coll. Both described in detail the course of the legislative process and stated that none of the amendments adopted concerned Article 135d. The approved proposal was published in the Collection of Laws as Act No. 217 / 2005 Coll., of 3 May 2005 amending Act No. 353 / 2003 Coll., on Consumer Taxes, as amended, Act No. 265 / 1991 Coll., on the Jurisdiction of the Bodies of the Czech Republic in the Price Field, as amended, and certain other laws; It became effective on 1 July 2005.
31. Both parties state that the contested legal text has been discussed and approved in a constitutional manner and according to the standard rules of the legislative process. The assessment of the constitutionality of the draft contested provision leaves to the consideration of the Constitutional Court.
Observation of the intervener
32. By the letter of 7 March 2013 No 2442 / 2013-KMV, Head of the Cabinet Section of the Minister and Chairman of the Legislative Council of the Government of the Constitutional Court, he informed the Constitutional Court that the Prime Minister of the Czech Republic, in accordance with the provisions of Article 77 (1) The Constitution decided that the Government would exercise its right under Paragraph 69 (2) of the Law on the Constitutional Court to accede to the application in question, while, by letter dated 6 March 2013, having authorised the Minister of Finance to prepare and submit, on behalf of the Government of the Czech Republic, observations on the proposal in question.
33. In his observations, the Minister of Finance, registered at the Constitutional Court on 20 March 2013, stated that the provisions of the Law were misinterpreted several times in the Regional Court's proposal. The Regional Court contends that the provisions of § 135d (1) and § 134 (2) of the Excise Tax Act cannot be applied on their own or by virtue of which it is not possible to ensure and subsequently impose the forfeiture of tobacco products or spirit drinks which are evidenced to have been taxed. The Regional Court is based on § 42 (1) and (2) as a general provision and § 135d and § 134 (2) as a special provision. Furthermore, the Regional Court in Pilsen concludes that Article 42 of the Excise Tax Act is the only provision in that Act which defines the goods which can be secured by the Customs Office or the Customs Directorate and subsequently the forfeiture. In the applicant's case, the goods were taxed and therefore, according to the Regional Court, the authorities which provided the tobacco and spirits on the spot did not have the power to do so.
34. According to the Minister for Finance, this conclusion of the Regional Court cannot be identified. It can be accepted that the provisions of Section 42 (1) and (2) of the Excise Tax Act define certain conditions under which the selected products or means of transport can be secured. However, this list does not constitute a general framework, it is not a comprehensive provision for ensuring and forfeiting the case in the Excise Tax Act and therefore does not provide a list of all the facts in which the products can be delivered under the Excise Tax Act. Explicit are other facts expressed in Section 134 (2) in conjunction with Sections 134 (1) and 133 (1) of the Excise Tax Act. Spirituous beverages and tobacco products can be secured pursuant to Section 134 (2) of the Excise Tax Act because, when carrying out a check pursuant to Section 134 (1) of the Excise Tax Act, spirits and tobacco products are sold in places where it is prohibited by law.
35. The Minister of Finance also stated that the purposes of the two provisions are not the same. Paragraph 42 (2) of the Excise Tax Act refers to the situation of securing selected products in the event that these products are not taxed or considered not to be taxed. On the contrary, Paragraph 134 (2) of the Excise Tax Act focuses on situations where tobacco products or spirits are sold in stalls, marketplaces (marketplaces) or places which do not meet the technical requirements for the technical, purpose and construction solutions of buildings and which are not subject to a collapse for the sale of goods or the provision of innkeeper services and where their sale is therefore prohibited (cf. Section 133 (1) of the Consumer Tax Act). Both Article 134 (2) and Article 133 (1) refer to tobacco products or spirits, whether or not they have received excise duty. The purpose of this scheme is not primarily to assess the fulfilment of the tax obligations of a tax entity, but to monitor and ensure products which, by their nature, may be harmful to human health in places not intended for sale of those products.
36. The Minister of Finance stated that the conclusions of the Regional Court on the purpose of the contested provisions of the Excise Tax Act cannot be reconciled. The legitimacy of sanctions is directly derived from the public interest to protect the provision. This public interest justifies the degree of intervention of sanctions in the individual sphere of individuals. Therefore, in order to determine whether a penalty is constitutional, the question must be answered first of all whether the penalty is justified in view of the public interest it protects. The public interests protected by the provisions of the Excise Tax Act are, on the one hand, the public interest in the proper collection of excise duty, but also in the protection of the health and life of the population. However, this protection of the life and health of the population is a protection against damage caused by the consumption of disabled and / or illegally produced products, and not perhaps because of "the use of buildings for a purpose other than that for which they are intended by the construction of a technical character," as is incorrectly stated in the regional court's proposal.
37. Therefore, according to the Minister of Finance, it is clear that the provision of the Excise Tax Act prohibits and sanctifies the sale of spirits and tobacco products in markets and markets because of the difficult controllability of such products by the authorities responsible for verifying compliance with the prohibition on the sale of spirits and tobacco products. The result of a lack of control is an increased risk of sales of untaxed, disabled and / or illegally produced products. As the so-called 'methanol affair' has shown recently, the risk of damaging the public interest in protecting the life and health of the population is very strong as a result of illegal trade in selected products. The prohibition on the sale of selected products in premises which were not of a structural technical nature and for which the construction technical destination for the required purpose has not been verified by the construction office is entirely intentionally applied to products taxed and not taxed. Their sale is sanctioned under unsatisfactory conditions and not by non-payment of excise duty. Where non-taxed spirit drinks or tobacco products are identified, they shall be treated in accordance with the provisions governing the administration of excise duty, irrespective of the solution to the question of the sale of the products concerned on the spot where their sale is prohibited. Transparent sales of selected products in places designated and suitable for this is a condition for an effective verification of compliance with tax obligations while at the same time verifying compliance with the obligation to protect the health and life of the population. Therefore, the relationship between the contested provisions of the Excise Tax Act and those governing offences under the Construction Act cannot be described as a special relationship.
38. The Minister of Finance does not agree with the claim made in the Regional Court's proposal that the rule on the possibility of cumulative imposition of a sanction does not apply to the forfeiture of the case, since Law No 200 / 1990 Coll., on infringements, as amended, does not contain this possibility of cumulation in any factual sense. This cannot be agreed with, as the law on infringements (cf. § 18) provides for this possibility. In any event, the fact that it is not contained in a particular factual substance does not preclude the subsidiary application of this rule for offences governed by other laws, since the subsidiary application of the law on infringements is foreseen by the legislator in such cases. Moreover, any law may lay down obligations beyond the scope of another law. Therefore, it does not mean that, if a measure of cumulative imposition of a penalty to forfeit a case with another penalty (in particular a fine) did not allow itself to do so, it would not be possible for another law (such as the Excise Tax Act) to provide for such an option for its own needs if the legislator respected the insurmountable courts of constitutional law. The rational legislator is guided by relevant reasons (protection of the public interest, the limits of European Union legislation, the historical development of the regulation or the requirements of practice) for the concrete establishment of the sanction mechanism. It is therefore impossible to say without further ado that it would be his discretion.
39. The Minister of Finance does not agree with the view of the Regional Court that any penalty must be differentiated, which is erroneously imported by the appellant from the finding of the Constitutional Court sp. v. Pl. ÚS 38 / 02 of 9.3.2004 (N 36 / 32 of the SbNU 345; 299 / 2004 Coll.), which states that the fine as a penalty should be differentiated. The nature of the case is not effective, nor is it possible that any penalty should always be bound by the requirement of differentiation, in particular this is not possible in the case of a penalty for forfeiture of cases (in this case forfeiture of a selected heading of matter).
40. The reason for the forfeiture of spirits or tobacco products found at the place where the ban on their sale is not and priori the attempt to punish the offender (the penalty here is the imposition of a fine), but to prevent the continuation of the infringement of the ban on sales, which follows the above public interest in protecting the life and health of the population. This is achieved by depriving the person who infringed the prohibition of sale of the ownership of the selected products located in the place where the prohibition of sale was infringed, as there is a real risk of continuing this prohibited sale. This continuation must be avoided in the light of the public interest, regardless of the number of products that are covered by the forfeiture and the ownership ratios of the perpetrator of the administrative offence. The Minister of Finance adds that the penalty for forfeiting a particular type of item that can be imposed together with a financial fine is a relatively common penalty for an administrative offence. It can be found, for example, in Act No. 146 / 2010 Coll., on Labelling and Traceability of Explosives for Civil Use, as amended by Act No. 18 / 2012 Coll., (Note: Act No. 146 / 2010 Coll. has been repealed and replaced with effect from 5 April 2013 by Act No. 83 / 2013 Coll., on Labelling and Traceability of Explosives for Civil Use), Act No. 228 / 2005 Coll., on Control of Trade in Products Restricted in the Czech Republic for Safety Reasons, and on Amendment of Certain Acts, as amended.
41. In conclusion, the Minister of Finance contends that the regional court's proposal to abolish the contested legal provision is being rejected and proposes rejecting the application.
The Ombudsman's observations
42. The Ombudsman indicated to the Constitutional Court that he did not exercise his right of entry under Paragraph 69 (3) of the Constitutional Court Act.
Abandonment of oral proceedings
43. In accordance with Article 44 of the Constitutional Court Act, if the motion was not rejected in the absence of an oral hearing without the parties present, the Constitutional Court will order oral hearing, if it can expect further clarification of the matter from that hearing. Oral proceedings shall be ordered whenever the law so provides or the Constitutional Court carries out the taking of evidence. In the present case, the Constitutional Court considered that further clarification of the case could not be expected from the hearing, so the oral hearing was abandoned.
Active legitimacy of the appellant and assessment of the jurisdiction of the Constitutional Court to discuss the application
44. The Constitutional Court first addressed the question of whether the appellant - Regional Court in Pilsen - is entitled to make a motion to declare the unconstitutional nature of the contested law or its individual provisions, and reached a positive conclusion. Such an application shall be entitled to be lodged by the General Court in the context of its decision-making activities under Article 95 (2) of the Constitution, which has been fulfilled in this case. In the case-law of the Constitutional Court, it was repeatedly stated that the application to declare the unconstitutionality of the Law was entitled to be submitted by the General Court to the Constitutional Court even in cases where the law had already expired, but in the case under trial it was intended to be applied [see the findings of sp. zn.
45. The Constitutional Court is called upon to accept and discuss such a proposal. The following legal opinion was already expressed in the finding in sp. zn. At this conclusion, the Constitutional Court persists in the present case.
Constitutional conformity of the legislative process
46. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in addition to assessing the compliance of the contested law with the constitutional laws, ascertains whether the law was adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner.
47. In the present case, the appellant did not object to a defect in the legislative process or to a breach of the legislature's constitutional competence. The Constitutional Court, after verifying the accuracy of the data resulting from the observations of the Chamber of Deputies and the Senate, concluded that the contested provision was adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure.
Legal text to be assessed
48. The contested provision of § 135d of Act No 353 / 2003 Coll., on excise duties, as amended by Act No 217 / 2005 Coll., marked by the heading "Fail and prevent tobacco or spirit drinks covered," between 1 July 2005 and 31 December 2012, read:
"(1) The administrative authority responsible for dealing with an administrative offence shall deposit the forfeiture of unlabelled tobacco products secured by an inspection under § 115 or tobacco products or spirit drinks covered by an inspection under § 134 if:
(a) belong to the perpetrator of the administrative offence; and
(b) have been used or intended to commit an administrative offence. "
To declare unconstitutional, the part of the text highlighted in the preceding section in bold letters is proposed.
49. Some other provisions of the Excise Tax Act in force between 1 July 2005 and 31 December 2012 are also relevant for the assessment of the case:
Paragraph 115 (3) read:
"Where unlabelled tobacco products are identified when carrying out the check referred to in paragraph 2, the control authority shall take a decision on a provisional measure providing for the provision of such products... ';
Paragraph 133 (1) read:
"Save as otherwise provided in this Act, the sale of spirit drinks and tobacco products shall be prohibited in stalls, markets (markets) or places which do not meet the technical requirements for the technical, specific and construction technical solutions of buildings and which are not listed for sale or provision of innkeeper services. '
Paragraph 134 (2) read:
"Where spirit drinks and tobacco products are found when carrying out the check referred to in paragraph 2, the control authority shall take a decision on a provisional measure providing for the provision of such products... '
50. As mentioned above, there was an amendment to the contested legal text at the time of the application by the Regional Court in Pilsen. On 1 January 2013, Act No 407 / 2012 Coll., amending Act No 353 / 2003 Coll., on Consumer Taxes, as amended, and other related laws became effective. This law contains a completely different wording of Paragraph 135d of the Excise Tax Act and concerns a different kind of offence ("Infringement against a prohibition on buying at a price below the price for the final consumer ').
51. The content of a similar provision, in line with the former provision of § 135d (valid from 1 July 2005 to 31 December 2012), is now contained in § 135zzc ("Profit of spirits and tobacco products"). The constitutionality of this new provision was not assessed in the present proceedings before the Constitutional Court (no such application was submitted). However, it can be assumed that, given the content of the new provision with the provision currently under consideration, the conclusions on constitutionality would be identical.
Evaluation of the Constitutional Court
52. According to Article 95 (2) of the Constitution, "if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court '. In the present case, the Constitutional Court found no contradiction between the contested provision and the constitutional order.
53. In particular, the Constitutional Court reiterates its steady view that the legislation on the sanction of offences and offences is in the sole competence of the legislator and is contained in "ordinary '(" sub-constitutional') laws. The Constitutional Court, which respects the constitutional principle of division of power, is not called upon to assess the suitability (effectiveness) of individual types of sanctions, the statutory rates of sanctions (their amount), the possibility of alternative or cumulative imposition of sanctions, etc. The Constitutional Court could intervene in the legal regulation of these issues only if the legislator exceeded the constitutional limits. This view was already expressed by the Constitutional Court in the above mentioned finding sp. zn.
54. In that finding, the Constitutional Court further stated that the principle of differentiation and proportionality of sanctions is not infringed by the law ordering the cumulative imposition of multiple types of sanctions; There is nothing unconstitutional about this kind of legal regulation. The determination of several types of sanctions, whether alternatively or cumulatively, is a very regular way of regulating sanctions in both criminal and administrative law. As a rule, the legislature combines the repressive and preventive purpose of sanctions, inter alia, in the fact that, in addition to the obvious punishment of undisciplined offenders, the perpetrators are prevented from continuing or repeating offences. In the light of the foregoing, it can be concluded that, even in the case under trial, the legislature did not infringe constitutional principles by imposing several types of sanctions.
55. However, the Constitutional Court admits that the legislation on sanctions could exceptionally be contrary to constitutional rules if it did not respect the principle of differentiation and proportionality of sanctions, or if it was extremely disproportionate to interfere with other constitutionally protected values. In the case of property sanctions, such unconstitutional interference in the property rights of the delinquent could, in particular, occur if the penalty for the property of the delinquent would have a liquidation or "choking" effect [cf. sp. zn.
56. The appellant's fundamental objection, which is intended to justify the unconstitutionality of the contested provision, is an alleged breach of the principle of differentiation and proportionality of sanctions. By ordering "automatically 'the legislature to impose a penalty on the forfeiture of spirits and tobacco products identified and secured at the place where their sale is prohibited (in the present case, in the stands, markets and markets or places which do not meet the technical requirements for the territorial, special purpose and construction technical solutions of the buildings and which are not subject to a collapse of the sale of the goods), the administrative authority imposing the penalty cannot take into account the nature and gravity of the administrative offence committed, the personal, family, property and other circumstances of the perpetrator, the achievement of his life and the possibility of rectification, the conduct of the offender after action, the effects and the consequences that can be expected from the penalty for the future life of the perpetrator, the mitigating and aggravating circumstances, etc. This makes it impossible for the legislator to comply with the principle of differentiation and proportionality of sanctions when applying the standard.
57. The Constitutional Court does not consider this objection to be entirely appropriate in the present case. First of all, it should be noted that neither legal regulation nor the imposition of a sanction on the forfeiture of a case (whether in criminal or administrative law) makes it possible to differentiate that penalty in the sense of its different quantitative assessment. Penalties for forfeiture shall always apply to all items (or other property values) which are related to the offence committed, for example because the case was used or intended to commit the offence, were obtained by a delicacy or as a reward for it, or the perpetrator acquired it for a delicacy obtained. In this aspect (quantitative differentiation), the penalty for forfeiture differs from the monetary penalty, in respect of which the requirement for differentiation is typically raised and which can be easily differentiated in size. On the other hand, the only real way to differentiate between imposing a penalty for forfeiture would be to allow an alternative binary option - either to impose or not to impose a penalty. However, such a form of regulation, should it not be supplemented by the setting of additional criteria for the choice of such alternatives, would not meet the requirement of a certain legal standard and would open up the scope for application.
58. As is apparent from the settled case-law of the Constitutional Court, property penalties, which are of the nature of a public law obligation to bear the loss of ownership and its transfer to the State, are, however, interference with the property substrate and hence the property right of the compulsory body, but in itself does not constitute an infringement of the property right which is constitutionally guaranteed in Article 11 of the Charter or Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms [page Pl. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 SbNU 165; 512 / 2004 Coll.)]. In general, the assessment of whether such penalties will be admissible depends on compliance with certain conditions. First of all, such penalties, even in the case of an administrative offence, must be laid down by law, which is fulfilled in the present case (cf. While the legal arrangements in question must be consistent with the proportionality test, they are not applied in full form in such a case. The reason for this is the nature of the sanction measure.
59. The Constitutional Court, when assessing the question of the admissibility of an intervention in a particular fundamental right, normally assesses whether the measure in question pursues the legitimate (constitutionally addressed) objective of its limitation and, if so, whether the measure is appropriate to achieve that objective (requirement of suitability), whether this objective cannot be achieved in any other way which would be more proportionate to the fundamental law (requirement of necessity) concerned and, finally, whether, if those conditions are met, the interest in achieving that objective within a certain legal relationship outweighs the fundamental law (proportionality in a more narrow sense).
60. The application of this test in the event of a restriction on the right of ownership by the granting of a property penalty leads to the conclusion in the case at hand that such a sanction pursues a legitimate objective of preventing infringements of the legal obligation in question. It is also a means capable of achieving this objective. The purpose of the legislation in question is to prevent the sale of tobacco products and spirit drinks in places not intended for sale of such products, as their sale in such places makes it difficult to control the payment of excise duty and to check the hygiene and health of the goods. The forfeiture of tobacco and spirit drinks covered may be an instrument capable of achieving this intended and legitimate objective, since the risk of a possible severe penalty reduces the "economic advantage" of the infringement and has a general preventive effect. As the so-called 'methanol affair' has shown recently, the risk of damaging the public interest in protecting the life and health of the population is large as a result of the illegal trade in selected products. For this reason, the Constitutional Court considers that the intervention in question is capable of meeting its objective.
61. The answer to the question of the need for a penalty as such (in the sense of the type of penalty) or the related question of the intensity of the public interest protected, but no longer can be made by a judicial interpretation. These are issues of a political nature, the solution of which is in the sole competence of the legislator, who ultimately generally has legislative provisions on whether or not certain acts should be criminal, defining the facts of offences (offences, offences, other administrative offences) and determining the type and level of sanctions. It is in its discretion that the legislator may take into account individual criminal-political aspects, such as the general prevention aspect, the intensity of the risk of criminal conduct and the resulting degree of threat to orderly human coexistence or transformation into an axiological view of the public of the importance of individual and social values and legal goods damaged by the delinquency of perpetrators (sp. zl. ÚS 14 / 09, paragraphs 29, 34 and 36).
62. Although the result of these considerations, which includes the determination of the type and amount of the penalty for committing a particular offence, may continue to be examined by the Constitutional Court within the limits of its competence, the scope for any intervention is very narrow. In principle, it can therefore examine whether the property penalty in question would stand in the light of the test of the exclusion of extreme disproportionality, namely whether the involvement in the constitutionally guaranteed property right led to such a fundamental change in the property situation of the entity concerned, which would mean "the destruction of the property base itself ', i.e." the destruction of the property base' (the finding of the sp. zn. However, its review may also be made in respect of compliance with the constitutional principle of equality, both accesoric within the meaning of Article 3 (1) of the Charter, which prohibits the discrimination of persons in the exercise of their fundamental rights, as well as non-accesoric, enshrined in Article 1 of the Charter and consisting of the exclusion of the legislature in the differentiation of the rights of certain groups of entities [cf. sp. zn. Pl. Pl. Pl. Pl. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 SbNU 165; 512 / 2004 Sb.), find sp. If such limits of discretion are maintained, the final word shall be reserved by the legislator in relation to the effectiveness of the property penalty.
63. The appellant seeks the declaration of inconstitutionality of the sanction for the forfeiture of the case because it does not consider the administrative offence to be serious enough to justify the "automatic" imposition of that sanction. However, the Constitutional Court is not called on to examine such an abstract review. The adequacy of the contested property penalty within the meaning of the contested objection could only be examined by the Constitutional Court in the context of abstract scrutiny in the light of its possible liquidation or "choking 'effect.
64. The reason for the Constitutional Court, in the framework of the abstract control of the rule of law, to establish the unconstitutional nature of a property penalty of a particular kind, would only be given if the type of penalty in question had always, in any factual circumstances, a liquidation or "choking 'effect.
65. However, this liquidation or "choking 'effect does not generally have a penalty for forfeiture; Nor does it have a special penalty for" forfeiture of tobacco products or spirits' contained in the contested provision of Paragraph 135d (1) of the Excise Tax Act. There is therefore no reason for the Constitutional Court to make a statement on the unconstitutional nature of the contested provision.
66. Where the imposition of a "forfeiture of tobacco products or spirits' penalty would have a liquidation or" choking 'character in relation to a specific offender, the competent administrative authority shall, in each individual case, retain the possibility of taking into account, in addition to the gravity of the offence and the circumstances of the offence, the property situation of the responsible body and, where appropriate, not imposing such a penalty.
67. The obligation to consider the effects of a penalty in relation to the property of the responsible entity arises directly from the constitutional order, since any imposition of a property penalty is always an interference with its property right under Article 11 of the Charter and must therefore, in each individual case, be consistent with the abovementioned constitutional criteria for the review of sanctions. Account must also be taken of whether the imposition of a particular sanction does not effectively interfere with the substance and meaning of the right to conduct business under Article 26 (1) of the Charter, or whether it does not have a liquidation effect in relation to that right, which is not the purpose of that sanction.
68. The fact that Paragraph 135d (1) of the Excise Tax Act does not mention the possible consequences of the penalty in relation to the property of the responsible body cannot be interpreted in a way that the administrative authority does not have to or may not even take account of them. This conclusion does not alter either the fact that this provision does not explicitly define the limits of administrative discretion for imposing a forfeiture penalty and the obligation to take account of the ownership ratios of the responsible entity and does not include an explicit reference to the possibility of waiving the imposition of that penalty. In particular, the absence of the possibility of administrative discretion and the possibility of abandoning the imposition of a sanction for forfeiture in the Excise Tax Act is a negative consequence of the continued fragmentation and inconceptual regulation of administrative punishment. This absence cannot be interpreted as meaning that the legislature intended to exclude the obligation of administrative authorities to respect the constitutional fundamental rights of citizens through administrative discretion; Such an interpretation could not be regarded as constitutionally conformal.
69. The imposition of a penalty for forfeiture could be unconstitutional in a particular case. The administrative authority itself, or the general court, is entitled to assess the unconstitutionality of the application of this sanction in a particular case from the above aspects. The absence of explicit regulation of such an option in the law is not in itself a reason for the intervention of the Constitutional Court, nor for the Constitutional Court to express the unconstitutional nature of this gap in law.
Conclusion
70. The Constitutional Court notes that the contested part of the provision of § 135d (1) of Act No 353 / 2003 Coll., on excise duties, as amended by Act No 217 / 2005 Coll., in the version effective from 1 July 2005 to 31 December 2012, in the words "tobacco products or spirits secured by inspection under § 134" was not contrary to the constitutional order of the Czech Republic.
71. The Constitutional Court therefore rejected the application to declare the unconstitutionality of the contested part of the Act pursuant to Article 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No 299 / 2013 Coll., on the application to declare the unconstitutionality of Section 135d (1) of Act No 353 / 2003 Coll., on excise duties, as amended by Act No 217 / 2005 Coll., in the words "or tobacco products or spirit drinks secured by inspection pursuant to § 134 '. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 27.09.2013 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0