The Constitutional Court found No 312 / 2020 Coll.
The Constitutional Court found of 26 May 2020 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
08.07.2020
312
FIND
The Constitutional Court
On behalf of the Republic
On 26 May 2020, the Constitutional Court decided under sp. zn.
as follows:
I. Proposals for the annulment of § 138 paragraph 1 of Act No. 40 / 2009 Coll., Criminal Code, in the words "Damage not minor means damage amounting to at least CZK 5,000" is rejected.
II. The remainder is rejected.
Reasons
Definition of the case
1. The District Court in Liberec (hereinafter also "the appellant"), pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter "the Law on the Constitutional Court"), has proposed the annulment of Article 138 (1) of Act No. 40 / 2009 Coll., the Criminal Code, as from 31 December 2019.
2. The appellant stated that he was in charge of criminal proceedings against the accused H. P. (sp. zn. 5 T 144 / 2018), on the basis of a motion for punishment filed by the District Attorney's Office in Liberec to blame her for the misconduct of theft pursuant to § 205 (1) (a) of the Criminal Code. This was to be done (in short) in the form of three partial attacks by which she took possession of foreign goods, causing damage to foreign property in total for CZK 7 525.60.
3. The District Court of Liberec concluded that the provision of Paragraph 138 (1) of the Penal Code, which must be used in the resolution of that criminal case, is contrary to the constitutional order, namely Article 40 (6) of the Charter of Fundamental Rights and Freedoms ("the Charter '). For this reason, by order of 10 December 2018, the Court of First Instance suspended the prosecution of the accused pursuant to Paragraph 224 (5) of the Criminal Code and brought the case before the Constitutional Court with a motion for annulment of Paragraph 138 (1) of the Criminal Code.
Arguments of the appellant
4. The appellant submits that, for the sake of simplification, its argument is only related to the limit of damage not minor, but can be analogous to the other limits of damage contained in Paragraph 138 (1) of the Criminal Code. It points out that the existing limits of individual categories of damage have already been introduced by amendment of Act No. 140 / 1961 Coll., the penal law, as amended, implemented by Act No. 265 / 2001 Coll., with effect from 1.1.2002. It recalls that, in the explanatory memorandum to that amendment, the legislator expressed its intention to amend the legal provisions defining the definitions of the levels of damage applicable to the legal classification of facts in such a way that these amendments correspond to inflation developments in the Czech Republic. However, this assumption was not fulfilled, and those limits of damage did not change either by adopting the Penal Code, which adopted those limits without change.
5. The appellant is of the opinion that the provision of Paragraph 138 (1) of the Criminal Code has now been in direct conflict with Article 40 (6) of the Charter, due to the rise in the standard of living and price levels in the Czech Republic. This claim is evidenced by tables showing the development of the average wage, the limit of damage not minor and the share of damage not negligible to the average wage, based on data from the Czech Statistical Office. In particular, the table shows that the damage ratio was 43% in 1992, 13,9% in 2001, 35% in 2002 and 15,7% in 2018. Following this data, it states that the theft of financial cash of CZK 5,000 in 2018 will not affect the average victim as clearly as in 2002, since this cash is only about half of its value.
6. The appellant also states that the calculation of the real damage is not negligible, i.e. the evolution of the level of that damage in relation to the increase in consumer prices. In this calculation it is based on the so-called basis index, i.e. inflation rates expressed by the addition of the consumer price index to the base period of 2015 by the Czech Statistical Office. On the basis of these figures, it points out that between January 2002 and July 2018 there was an inflationary development where the value of the same thing increased from CZK 3,662 to CZK 5,000, thus increasing by almost 30 percentage points. It points out that this was not reflected in any way in the determination of the injury margin, not in a slight way. The appellant then demonstrates the problem on the example when he states that the theft of food worth CZK 5,000 in 2018 results in the criminal liability of the perpetrator of such an act, whereas the theft of the same food in 2002 would only cause damage to CZK 3,662, thus such an act would only be considered an offence.
7. The search carried out in the internal system of the District Court in Liberec shows that the aspect of the damage is not negligible, as one of the characteristics of the facts of the five offences against property, had to be taken into account in a total of around 15,6% of the criminal cases which occurred in that court in 2017. It concludes from this that setting the limit of damage not minor is very significant.
8. Contrary to § 138 (1) of the Criminal Code with Article 40 (6) The Charter is based on the fact that the criminal offence of property offences is effectively assessed over time and the rise in the average wage (standard of living) in accordance with a law that becomes more stringent for the perpetrators in a sneaky way and without further action. Thus, as a result of inflation and the rise in living standards, criminal repression affects an increasing range of perpetrators of property offences. In his view, this tightening has the same effect as if there had been a legislative amendment to Paragraph 138 (1) of the Penal Code in which the limit of damage would have been reduced, but the rule on the use of more favourable legislation would not have been maintained.
9. The appellant is convinced that the fixed limits laid down in Section 138 (1) of the Criminal Code cannot be bridged or broken by the application of the principle of subsidiarity of criminal repression. Similarly, he believes that the means of criminal law should be used by the State in a restrained manner only in cases where the resources of another legal sector are no longer sufficient. It also points to the cost of criminal proceedings and to the question as to whether the damage of about one-seventh of the average monthly earnings (i.e. 5 000 CZK) is necessary from the point of view of the State, so as not to choose the path of less costly infringement proceedings.
Observations of the parties
10. The Constitutional Court pursuant to Section 69 of the Law on the Constitutional Court sent the proposal to the chambers of Parliament of the Czech Republic as parties to the proceedings and to the Government and the Ombudsman as authorities entitled to intervene as interveners.
11. The Chamber of Deputies stated in its observations that the provision of § 138 (1) of the Penal Code was approved by Act No. 40 / 2009 Coll., the Penal Code which the Chamber of Deputies discussed in the 5th parliamentary term as House Press No. 410. That provision was part of the original government proposal submitted to the Chamber of Deputies and remained unchanged in the Chamber of Deputies.
12. The Senate stated in its observations that the draft penal code referred to the Senate by the Chamber of Deputies in December 2008 was mostly positively evaluated as a whole in the Senate negotiations. As part of the draft penal code, the Senate agreed to the provision of Paragraph 138 as a formal definition of the various categories of damage. However, the Senate's examination of the Criminal Code did not explicitly affect the incriminated issue of regulation of categories of damage pursuant to Paragraph 138 (1). The Senate approved the draft Penal Code in the version referred to it by the Chamber of Deputies, discussed it within the limits of the Constitution established competence and in a constitutional manner and agreed to this proposal in a majority belief that it is in line with the constitutional order of the Czech Republic and its international obligations.
13. The Government has indicated that it is entering the proceedings and has proposed a refusal or, where appropriate, a rejection of the application. It has empowered the Minister of Justice to draw up the Government's observations on the proposal and, at the same time, to entrust it with representation in this proceedings.
14. The Government stated in its observations that the appellant's contested legislation fulfils all the constitutional requirements resulting from the principle of nullum crimen sine lege. The boundaries of the different categories of damage determined by the provisions of § 138 of the Criminal Code constitute a sufficiently certain definition of the conditions of criminal liability. While there is some rigidity to this solution, it does not reach the level of unconstitutional. The Government noted that the provisions of Section 138 of the Criminal Code should be seen in conjunction with other criminal law institutes, particularly those which ensure the subsidiarity of criminal repression. This is in particular a material correction of the formal definition of a criminal offence contained in Section 12 (2) of the Criminal Code and a procedural correction of the possibility of stopping a criminal prosecution for ineffectiveness pursuant to Section 172 (2) (c) of the Criminal Code or Section 223 (2) of the Criminal Code. Those provisions provide sufficient scope for the interpretation of the formal characteristics of individual offences.
15. According to the Government, the appellant's argument that Paragraph 138 (1) of the Penal Code would be contrary to the rule resulting from Article 40 (6) of the Charter, as it is not a later rule of law for the legal situation or facts that occurred before it is effective. The fact that a rule laid down by law may have a stricter impact on the perpetrators than it should have a few years ago does not, in principle, constitute retroactivity, and therefore not unconstitutional. The government is convinced that it is up to the legislator to set the limit for the calculation of the damage and thus the state's criminal policy. If the legislator has decided not to update the boundaries, this is expressed in his approach to the level of punishment issues. The Government therefore considers that the appellant's contested legislation is in accordance with the constitutional order of the Czech Republic and does not constitute constitutionally inadmissible, i.e. non-discriminatory interference with the fundamental rights and freedoms of the individual, since the amount of damage is set by law for the purposes of criminal liability, in a form which is understandable, not allowing analogy and retroactivity. The Government therefore proposes that the Constitutional Court reject the proposal as manifestly unfounded or reject it.
16. The Constitutional Court sent the observations received to the appellant for a possible reply, but they did not react within the prescribed time limit.
17. The Ombudsman stated that she did not intervene in the proceedings.
Oral proceedings
18. The Constitutional Court, in accordance with Article 44 of the Law on the Constitutional Court, considered that there was no need for oral proceedings in the case, since it would in no way contribute to a further or more profound clarification of the case than the way in which it became aware of the written acts of the appellant and the parties. The fact that the Constitutional Court did not consider it necessary to carry out the taking of evidence justifies the failure of oral proceedings.
Dedication and context of the contested provision
19. The contested provision of Paragraph 138 (1) of the Criminal Code reads:
"Damage not minor means damage of at least CZK 5,000, damage not small means damage of at least CZK 25,000, greater damage means damage of at least CZK 50,000, considerable damage means damage of at least CZK 500,000 and damage of a large scale means damage of at least CZK 5,000."
20. Paragraph 138 (1) of the Penal Code defines the tiered limits of the amount of damage caused by the offence, thus specifying the different types (categories) of damage. On the basis of Paragraph 138 (2) of the Criminal Code, the same amounts as those which determine the categories of damage shall also be used mutatis mutandis to determine the amount of benefit obtained by the offence, the costs to eliminate the consequences of environmental damage and the value of the case. For property, economic and other offences, Paragraph 138 (1) is of fundamental importance, since it distinguishes offences from corresponding offences and also provides an interpretation for circumstances which make the application of a higher criminal rate conditional on them.
Terms and conditions of the formal assessment of the proposal
21. The Constitutional Court first examined whether all the legal procedural conditions for the examination of an application under Article 87 (1) (a) and Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court were met. The proposal clearly fulfils all the formal requirements laid down by the Constitutional Court Act.
22. The Constitutional Court then first examined the question whether the appellant is entitled to apply for annulment (in whole) of § 138 (1) of the Criminal Code. 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 for consideration. The provisions of Paragraph 64 (3) of the Law on the Constitutional Court further extend this provision, according to which the application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution. In order for a general court to question the constitutionality of a particular law, or its individual provision, and the case to be brought before the Constitutional Court, its real application is necessary, and not only its hypothetical use, or other broader context [cf. sp. zn. In other words, it must be a law (part of it) that impedes the achievement of the desired (constitutional) outcome. If not removed, the outcome of the ongoing proceedings would be different [cf. sp. zn.
23. Therefore, the key question is whether or not the provision of Paragraph 138 (1) of the Criminal Code was actually used by the appellant in the legal case in question, or to what extent. As stated above, in the case dealt with by the appellant, the prosecution was brought for the offence of theft pursuant to § 205 (1) (a) of the Criminal Code, whereby the defendants of foreign property were to cause damages totalling CZK 7 525.60. In this case, it was therefore merely a matter of assessing whether the damage in question showed signs of damage not negligible. In other words, the way in which the Penal Code defines in § 138 (1) additional (higher) limits on property damage (i.e. damage not small, greater damage, significant damage and damage to large scale), in this particular case discussed by the appellant, was of no importance.
24. In the present case, therefore, in the case of the part of Section 138 (1) of the Criminal Code, which consists of the words "damage not small" means damage amounting to at least CZK 25,000, greater damage means damage amounting to at least CZK 50 000, significant damage means damage amounting to at least CZK 500 000 and damage of a large scale means damage amounting to at least CZK 5 000 ', this was not part of the provision which would constitute a legal basis for the decision of the court, nor did this part directly affect the conduct of the proceedings conducted by the appellant. Therefore, even in the extensive interpretation of the "application of the law in the resolution of the case' (cf. sp. zn. Pl. ÚS 33 / 09), that part of the provision in the present proceedings is not to be applied.
25. The Constitutional Court thus concludes that only part of § 138 (1) of the Penal Code, expressed in the words "Damage not insignificant, means damage amounting to at least CZK 5,000," is a legal expression of the rule to be applied by the appellant, whose inconstitutionality is claimed by him. It is precisely this part of the contested provision that is decisive in assessing whether the action for which the prosecution has been brought shows the characteristics of a theft offence under Paragraph 205 (1) (a) of the Criminal Code. The remainder of the proposal did not fulfil the condition of the application of the law in the resolution of the case under Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act, as a result of which the appellant was not entitled to file it.
26. It remains to be added that, in so far as the application for annulment of the contested provision has been lodged by the applicant, the application was not inadmissible or no reason to terminate the procedure was given.
Assessment of the constitutional conformity of the legislative process
27. In the procedure for checking the standards, the Constitutional Court pursuant to the provisions of Section 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first assesses whether the contested law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. In the case at issue, the Constitutional Court found, from the observations of the parties and from the House of Prints publicly available (at https: / / www.psp.cz), that the contested provision of the Criminal Code had been adopted within the limits of the Constitution established competence and in a constitutional manner. Moreover, the appellant did not object to the legislative procedure.
Substantial assessment of the proposal
28. It follows from the proposal that the illegality is seen in breach of Article 40 (6) of the Charter, namely according to the appellant, the contested regulation is consistent with the prohibition of retroactivity, i.e. with the principle that the crime is assessed and the punishment is imposed according to the law effective at the time when the act was committed, and that later law applies if it is more favourable to the perpetrator.
29. The point of the appellant's argument is that the damage limit referred to in § 138 (1) of the Criminal Code (and until 31.12.2009 in § 89 (11) of the Criminal Act) has not changed since 1.1.2002, with a significant increase in both the standard of living (expressed in average wage) and the inflation rate from this time up to now. As a result of these economic changes, criminal penalties for property (but also other) offences have been effectively intensified, as criminal liability (or more stringent criminal liability) is now also affected by conduct which, by its gravity and consequences for the injured persons, corresponds to acts previously, i.e. after the introduction of those harm limits, considered to be a criminal offence or were more punishable.
30. The Constitutional Court finds no grounds for denying this fundamental argument to the appellant. Indeed, it is clear that the imposition of criminal law on setting the limits of individual categories of damage in conjunction with the development of the above economic factors results in a gradual expansion or tightening of criminal repression. The statistics provided by the appellant demonstrate in a rather concise manner that this extension and tightening of criminal repression is not negligible. It is also a reminder, if any, that the phenomenon described also results in an increase in the costs of the State, since the conduct of criminal proceedings in these bagging cases is undoubtedly more costly than if the offences were dealt with in the infringement proceedings.
31. On the other hand, however, the Constitutional Court must recall its previous caselaw, which makes it clear that it is not in principle for it to assess the extent of the boundaries of criminal criminalisation of certain types of conduct, unless it is to duplicate or substitute the constitutional role of the legislature [cf. The facts of the offence are always a formal expression of such conduct, which is considered by a majority company when voting in the legislature to be so socially harmful that it must be declared as a specific type or type of conduct separately, and defined as a separate substance of the offence [cf. This conclusion can undoubtedly also be related to setting the limit on categories of damage, which is essential for interpreting the characteristics of a number of facts of the crime.
32. Although the appellant does not object to the fact that the tightening of criminal repression as a result of the non-alteration of the boundaries of the various categories of damage and economic development would be the non-discriminatory purpose of Paragraph 138 (1) of the Criminal Code, or the purpose of the relevant facts, the Constitutional Court considers it appropriate to recall that, under the current legislation, criminal proceedings against property which did not cause any damage may also be penalised. These include, for example, the offences of insurance fraud (cf. § 210 of the Criminal Code), credit fraud (cf. § 211 of the Criminal Code) and subsidy fraud (cf. § 212 of the Criminal Code), a special form of criminal offence of damage to foreign property pursuant to § 228 (2) of the Criminal Code, but also a criminal offence of theft pursuant to § 205 (1) (b) to (e) and § 205 (2) of the Criminal Code. The facts of three of those offences have already been tested for constitutionality, and the Constitutional Court has always rejected the application for the annulment of them (for insurance fraud, the finding of Pl. Pl. ÚS 5 / 2000, the offence of credit fraud, the finding of Pl. ÚS 631 / 05 and the specific form of criminal offence, the resolution of Pl. ÚS 4 / 03).
33. Thus, all the more so, it is not possible to conclude on the unconstitutional nature of the level of criminalisation where, as a result of the above-mentioned phenomenon, it is sufficient to impose criminal liability in fact less than that which was a precondition for criminal liability 10 or 15 years ago. Nor can it be forgotten that, in some cases, where the damage caused by the perpetrator's actions is only slightly above the harm limit, i.e. the limit of CZK 5,000, the imposition of criminal liability may be prevented by the application of one of the correctors of criminal liability, whether it is a substantive correction in the form of the principle of subsidiarity of criminal repression under Section 12 (2) of the Criminal Code, or by a correction in the form of a possibility to stop criminal prosecution for ineffectiveness under Section 172 (2) (c) of the Criminal Code, if this is justified by the other circumstances of the case.
34. The Constitutional Court does not share the appellant's view that the described gradual tightening of criminal repression as a result of inflationary developments, the rise in the standard of living and the inconsistency of the rules on the limit of categories of damage conflicts with Article 40 (6) of the Charter. The quoted provision of the Charter expresses the prohibition of the retroactivity of the law on the liability of the perpetrator and orders that the offence be assessed and the punishment imposed under the law effective at the time the offence was committed and that the later law should be applied where this is more favourable to the perpetrator.
35. The appellant itself admits that Article 40 (6) The Charter aims at situations where there has been a legislative amendment of the law, not to make it more effective, and the Constitutional Court agrees with that statement. The rule contained in the cited provision of the Charter (and also reflected in Section 2 (1) of the Criminal Code) is based on the idea that an individual in the rule of law must live in certainty when considering whether the conduct which he is carrying out or intends to take place does not give rise to the activation of the instruments of criminal law [cf. This security must be based on the wording of the law establishing the conditions of criminal liability and must not be distorted by the legislator's accession to a legislative change that could give rise to criminal liability retroactively, i.e. past actions taken prior to such a change.
36. The Constitutional Court cannot attest to the appellant that the de facto changes to the economic character described above have essentially the same effect as if there had been a legislative amendment to Paragraph 138 (1) of the Penal Code in which the limit of damage would have been reduced but the rule on the use of more favourable legislation had not been maintained. In view of the prohibition on retroactivity as set out in Article 40 (6) of the Charter (and Article 2 (1) of the Penal Code), the state of play at the time of the act is decisive. This is also true in relation to the determination of the amount of damage caused by the action, since according to Section 137 of the Criminal Code, when determining the amount of damage is essentially based on the price at which the case which was the subject of the attack is normally sold at the scene of the crime and at the time of the crime. Thus, a change in the value of a particular thing that occurs only after the act has been committed does not affect the assessment of the criminal liability of the perpetrator, and this also applies in cases where it could benefit the perpetrator (e.g. due to a significant discount on a particular thing after the act has been committed). Less so (in view of the possible breach of the prohibition of retroactivity provided for in Article 40 (6) of the Charter), a similar factual change which took place between the moment when the legislation took effect and the moment when the act was committed.
37. The Constitutional Court concludes that the tightening of the conditions of criminal liability resulting from the long-term preservation of the legislation determining the limits of damage in conjunction with economic growth and the development of inflation does not constitute a contradiction with the principles set out in Article 40 (6) of the Charter. Those circumstances have no effect on the fact that, at the time of the act, the perpetrator knows (or may know) both the legislation itself under which his action will be assessed and the decisive circumstances (i.e. the value of the matters which are the subject of his action) which directly affect the application of that legislation.
38. The Constitutional Court also considers it appropriate to point out that even if it did not find any contradiction in the applicable wording of Section 138 (1) of the Criminal Code with Article 40 (6) of the Charter or with other provisions of the Constitutional Code, described above, the de facto tightening of criminal repression resulting from the fact that the boundaries of the different categories of damage since 2002 have not been changed, it may legitimately be seen as a significant problem of the state's current criminal policy and has already been rightly criticised [cf. e.g. GRIVNA, T. Decriminalisation and depenalisation - theoretical exits and their reflection in legislative practice. In GRIVNA, T., ŠIMAN, H. (eds.). Criminal law and rule of law. Plzen: Aleš Čenek, 2018, p. 103- 104). While the Government stated in its observations on the proposal now under discussion that, if the legislator decided not to update the boundaries, it expressed its approach to penalising issues. However, the question arises as to whether legislative passivity in this respect is actually a product of a well-considered correction of criminal policy and of the legislator's approach to the level of punishment, or rather of some unwanted omissions.
39. However, the Constitutional Court did not overlook the legislative initiative of a group of Members in the form of a draft amendment to the penal code currently under discussion (Chamber of Deputies 2019, Press No. 466), which is aimed, inter alia, at increasing the existing limits of property damage. Such a proposal only confirms that this is a matter for the legislator and not the Constitutional Court. In this respect, it is recalled that, when considering the increase in the limits of property damage referred to in Section 138 of the Criminal Code, that is to say, the shift in the limit separating responsibility for a number of offences from responsibility for corresponding offences, it is necessary to assess, inter alia, the consequences that would result from such action and which would, inter alia, probably take the form of a significant increase in the burden on the authorities in the area of the infringement agenda. After all, similar doubts were shared by the government in its comments when it adopted a neutral position. It can then be noted that after the abolition of the district authorities (in 2002), where the professional apparatus was exclusively active, the new arrangements can cause both professional and personnel problems with the competent authorities of the municipalities.
Conclusion
40. On the basis of the above, the Constitutional Court concluded that the contested provision of § 138 (1) of the Penal Code in the part consisting of the words "The damage is not negligible" means damage amounting to at least CZK 5,000 "does not conflict with the constitutional order or Article 40 (6) of the Charter and therefore, pursuant to Article 70 (2) of the Law on the Constitutional Court, it has decided to reject the application for annulment of the contested provision in that part (operative part I). In the rest, he rejected this proposal under Paragraph 43 (1) (c) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll., as submitted by a person manifestly unjustified (operative part II).
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Jaroslav Fenyk, Pavel Šámal and Kateřina Šimáková to justify the decision.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found No. 312 / 2020 Coll., on the application for annulment of § 138 paragraph 1 of Act No. 40 / 2009 Coll., Criminal Code |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.07.2020 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0