The Constitutional Court found No. 313 / 2017 Coll.
The Constitutional Court found on 18 July 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
25.09.2017
313
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 2 / 17 on 18 July 2017 in plenary composed of the President of the Court of Paul Rychetský and Judge Louis David (Judge Rapporteur), Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovana Suchánek, Kateřina Šimáková, Milady Tomková, David Uhlíř and Jiří Zemánek, on the motion of the Group of Members of the Parliament of the Czech Republic, for which Mr Martin Plíšíšíšek, represented by the Doctor, Dr Zdenek Koudelka, Ph.D., the lawyer, with the seat of Oppátov 46, Brno, on the annulment of the motion of the Czech Parliament of the Czech Republic.
as follows:
Motion denied.
Reasons
Content of the proposal to repeal the provisions of the law
1. A group of 41 Members of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the Group of Members" or "the Propostor") proposed to the Constitutional Court that, in Act No. 201 / 2012 Coll., on Air Protection, as amended by Act No. 369 / 2016 Coll., (hereinafter referred to as "the Air Protection Act"), Article 17 (2), Article 23 (1) (j) and Section 23 (2) (a) in the provisions of (j) '. The first contested provision gives the municipality with extended scope the possibility to intervene in the right of its operator to be inviolable in accordance with Article 12 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) in order to control the combustion stationary source. The second contested provision contains the substance of the infringement of the obligation to allow the controller to access the combustion stationary source, its accessories and the fuels used. In the event of the fulfilment of this fact, the offender is liable to a fine of up to CZK 50 000 under the third contested provision.
2. The appellant points out that the Charter allows for a judicial search only for criminal proceedings, not in the case of a procedure under the Air Protection Act. It is only possible to limit the integrity of dwellings for taxiously defined reasons which cannot be extended by ordinary law. One of these reasons is to protect the lives or rights and freedoms of others. This was explicitly invoked in the explanatory memorandum by the Government as the legislator. However, those grounds for limiting the integrity of the dwellings do not affect the contested provisions. It must be about protecting the lives or health or the rights and freedoms of specific people. It is not sufficient to make a comprehensive claim on the protection of health and the rights of non-specific persons indefinitely. There must always be a direct link between entering the dwelling and saving a person, property or fulfilling another undisputed goal.
3. In this case, the possibility of interference with the integrity of the dwelling is based on health protection and the right to a favourable environment. However, there is no direct link between entering the dwellings and these allegedly favourable results. Therefore, interference with the integrity of homes on the basis of imaginary protection of life, health and the rights of other persons cannot be accepted. The contested provision of the law allows the public authority to control housing not used for economic activity. It therefore enables public administration tasks to be performed. However, the Charter foresees that, in such a case, the law will regulate the intervention into a dwelling used for business or other economic activity. A similar restriction cannot be applied to dwellings not used for economic activity. An ordinary law cannot extend the possibility of interference to all dwellings. Since the intervention in the inviolability of dwellings where economic activity is not carried out does not cover any constitutionally protected value which would justify the restriction of such freedom, a classical proportionality test cannot be applied. Its use is only considered where there is a conflict of multiple rights or protected values.
4. The contested provision of Paragraph 23 (1) (j) of the Air Protection Act, which regulates the facts of the infringement consisting in the failure to control the combustion stationary source, does not make any distinction as to whether the space in question is used directly by its owner or by someone else, such as the tenant. In that case, the owner shall not have the right to intervene in the inviolability of the tenant's residence. However, the legislator formulated the facts of the infringement in such a way as to enable it to affect the owner, who may not be a user of the premises concerned and cannot influence the fulfilment of the required obligation. In a democratic rule of law, the public punishment of non-entrepreneurs is based on fault, that is, subjective responsibility. It is therefore not legitimate to penalise someone who cannot carry out a protected obligation either. Even if, in general, the possibility of checks on the plants were accepted, the Constitutional Court should abolish the possibility of penalising the owner of the premises. If the owner is simultaneously a user of space, then he can be affected as a user. If there is no space, it cannot be punished for the actions of another (actual) user. If the Constitutional Court had not abolished both the primary obligation and the infringement penalty, a group of Members would have proposed that the words "owner or" be deleted from the provisions of Paragraph 23 (1) (j) of the Air Protection Act.
Observations of participants and interveners on the content of the proposal
5. The Constitutional Court, pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, called upon the Chamber of Deputies and the Senate as parties to the proceedings and the Government, together with the Ombudsman, as interveners, to comment on the content of the application. The Minister of the Environment also requested comments on the proposal under Section 48 (2) of the Constitutional Court Act.
6. The Chamber of Deputies and the Senate have spoken on the proposal. Their comments are summarised below in Parts II (a) and II (b).
7. However, the Constitutional Court had to clarify the procedure of the Government and the Minister of the Environment. On 20 February 2017, the Government adopted Resolution No 136 approving its entry into this procedure and proposed rejecting the motion of a group of Members. It also authorised the Minister of the Environment to represent the Government in proceedings before the Constitutional Court. However, it then imposed on the Minister for Human Rights, Equal Opportunities and Legislation to draw up, in cooperation with the Minister for the Environment, a detailed statement by the Government within the time limit of the Constitutional Court (without authorisation to represent in this procedure).
8. On 23 February 2017, the Minister for Human Rights, Equal Opportunities and Legislation sent the Government's observations to the Constitutional Court. On 2 March 2017, the Minister for the Environment sent a further statement to the Constitutional Court, which differs in substance from that sent by the Minister for Human Rights, Equal Opportunities and Legislation. It expressly states that it is to be served as a member of the Government responsible for representing the Government in proceedings before the Constitutional Court. There is no statement from either of them that both ministers will work it out in cooperation. The first one was therefore sent by an impotent member of the Government, who was responsible for preparing the statement in cooperation with the Minister for the Environment and (without authorisation) sent to the Constitutional Court. The second one was sent by the authorised (and also by the Constitutional Court) member of the Government who was to cooperate in the observations. The ideal solution would be for the Constitutional Court to receive only one comment from the Government from the Minister of the Environment, who was the only one who had the authority to appear before the Constitutional Court. However, the Constitutional Court did not intend to approach this situation formally and summarised both observations in Part II (c) as Government observations.
9. The Ombudsman did not intervene.
Observations of the Chamber of Deputies
10. The Chamber of Deputies merely described in its observations the course of the legislative process of adopting the contested regulation. The government bill was distributed to Members as Press No. 678 on 22 December 2015. The provisions in question are based on the original draft law. The amendments tabled by Members in the second reading were not accepted by the Chamber of Deputies. The bill was approved on 7 September 2016. Of the 178 Members present, 115 voted in favour of the bill, 48 opposed. Consent to the bill was made in a constitutional manner.
Statement by the Senate
11. The Senate approved the Government draft amendment to the Air Protection Act as approved by the Chamber of Deputies on 19 October 2016. Some of the provisions of the Air Protection Act referred to by the Constitutional Court have been debated. Several senators criticised the proposed breach of the principle of inviolability of dwellings in the control of heating sites in family houses, apartments or buildings for family recreation, which serve private purposes. However, the Senate as a whole has opted to accept the passed bill without amendment. In the final vote, no senator voted against.
Government observations
12. The Government justified the submission of a proposal which resulted in the adoption of the contested provisions on a significant scale of the Czech territory. The total level of pollution has a major impact on domestic resources. These findings are confirmed by all existing strategic documents on the air protection section. The Czech Republic is also subject to infringement proceedings at European Union level. It is subject to the contested failure to fulfil obligations under Directive 2008 / 50 / EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe.
13. The contested scheme constitutes a reaction to the permanent exceeding of the limit of imitation laid down in Annex 1 to the Air Protection Act for fine dust particles in the air and for benzo (a) pyrene which binds to particles. These particles penetrate the respiratory tract where they are stored and cause respiratory diseases and the risk of other diseases. Dust particles and benzo [a] pyrene affect human health even at very low concentrations. Benzo [a] pyrene is also a proven carcinogen. One of the most important sources of fine dust particles and benzo [a] pyrene are the combustion sources for solid fuels used to heat households. The reason for the emission performance of local space heaters is not only a large representation of outdated combustion plants (70 to 80% of which are burning and burning boilers), which do not meet stricter emission parameters but in particular the incineration of unauthorised fuels, including waste. Local space heaters are located all over the country and emit pollutants due to their chimney height directly into the human respiratory zone (industrial resources are mostly located in industrial zones separate from residential buildings). The effect of substances that are emitted by local space heaters on the health of the population and the improper situation in the Czech Republic is therefore significantly higher compared to other sources of pollution.
14. Act No. 201 / 2012 Coll., on Air Protection, as amended, already contained instruments to regulate emissions from domestic combustion sources prior to the adoption of the contested regulation. Air protection authorities have received repeated complaints about emission releases involving illegal fuel. However, without the possibility of direct control of combustion sources, the operator of which clearly does not comply with the requirements of the law, they could not demonstrate that these requirements were not met. In the infringement proceedings, it was not possible to gather sufficient evidence to impose corrective measures. When citizens complained about smoke and odour from local space heaters around their homes, air protection authorities often referred to very difficult private-law solutions. The Air Protection Act therefore allowed for control of combustion stationary sources operated in a family house, apartment or building for family recreation, not for premises used for business activities. The air protection authority shall be authorised to enter in the event of repeated reasonable suspicion of the operation of a combustion stationary source contrary to statutory obligations. If they have reasonable suspicion for the first time, they shall only notify the operator in writing of the suspected breach of obligations. It shall inform him of the obligations associated with the operation of the combustion source and of the consequences of repeated suspicion, including possible direct control. If there is a second reasonable suspicion, the air protection authority shall be authorised to carry out a source check. Control is governed by the rules set out in Act No. 255 / 2012 Coll., on Control (Control Regulations).
15. In order to assess the constitutionality of the contested provisions, the Government stated that the fundamental right to the integrity of dwellings was not unlimited. The contested legislation fulfils the conditions of legality (the restriction of the freedom of dwellings provided for by law), legitimacy (the entry into dwellings is justified by ensuring the protection of the health and the protection of the rights and freedoms of others) and proportionality (the control of boilers makes it possible to ensure compliance with legal obligations by their operators, which prevents the damage to the health of the population). There is no other way to prove infringement than by direct control. Other measures (e.g. measurement of smoke darkness or possible use of drones) do not allow reliable and unquestionable evidence of breach by the source operator. In addition, the source operator has an obligation to allow the control authority only access to the stationary source, its accessories and the fuel used. The inspection authority may not enter premises other than those in which a stationary source, its accessories and the fuel used are located. By doing so, the contested legislation ensures the privacy of stationary source operators.
16. The Government referred in its observations for comparison to the breach of the integrity of the homes in certain other legislation and similar legislation in Germany. It also referred to the finding of the Constitutional Court (IV ÚS 652 / 06 of 21 November 2007 (N 202 / 47 of the SbNU 613), in which the Constitutional Court gave a positive assessment of the constitutionality of the provisions of § 60 of Act No. 254 / 2001 Coll., on water and on the amendment of certain laws (Water Act), which enshrined the obligation of the owner of the land to allow entry to the land. It also refers to the judgment of the European Court of Human Rights of 2 October 2014 in Delta Bakárny, a.s., v Czech Republic (complaint No 97 / 11; "Delta Bakárny '). According to the Government, the person concerned must, in each individual case, have sufficient guarantees against abuse of law and access to judicial protection. In case of application of Section 17 (2) of the Air Protection Act, these conditions are fulfilled.
Replication of the applicants
17. The Constitutional Court sent all the above observations to the representatives of the appellants for a reply.
18. The appellants stated that the government justifies the right to intervene in privacy by protecting others' life and health. In their view, however, it is necessary to give priority to narrowing the interpretation that it is possible to intervene in constitutionally guaranteed rights in order to save the life of specific people at a particular moment, if it is reasonable to assume that people are at risk in their homes, they cannot abandon them and seek help. However, this is not the case at all. In fact, the government merely conceals that it imposes an obligation to control public authorities which it could impose on the dwellings of entrepreneurs engaged in economic activity in their homes, but not on the dwellings of all people. The Charter contains a special provision allowing the public administration to intervene in certain premises of the residence where the economic activity is carried out; However, this adjustment cannot be applied to all dwellings.
Active procedural legitimacy and management conditions
19. Pursuant to Article 64 (1) (b) of the Constitutional Court Act, a group of at least 41 Members has the right to apply for annulment of the law or its individual provisions. This proposal has been tabled by a group of 41 Members. In accordance with Article 64 (5) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it also attached to it a signature document to which each of them individually confirmed that it was attached to the application. The applicants therefore comply with the condition of active legitimacy.
20. The proposal contains all the legal requirements required and is admissible within the meaning of the provisions of Section 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. At the same time, there are no grounds for terminating the procedure under the provisions of Paragraph 67 of the same Law. The Constitutional Court ruled on the application without regulation of oral proceedings as it did not carry out the taking of evidence within the meaning of the first sentence of § 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended. Further clarification could not be expected from the hearing.
Legislative procedure for the adoption of the contested provisions
21. The Constitutional Court in the Intentions § 68 paragraph 2 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., examined whether the contested provisions of the Act on Air Protection were adopted and issued within the limits of the Constitution of the Czech Republic by the prescribed competence and in the prescribed manner. It concluded that there is nothing to blame the legislator in this regard. Moreover, the parties and the intervener do not mention any legislative deficit. For the sake of clarity, the Constitutional Court refers to a summary of the legislative process in the statements of the Chamber of Deputies and the Senate.
Derogation of the contested provisions
22. The Constitutional Court for the purpose of clarifying and supplementing the necessary context lists all the directly related provisions of Act No. 201 / 2012 Coll., on Air Protection, as amended, highlighting the provisions or parts thereof which were inserted into the Act on Air Protection pursuant to Act No. 369 / 2016 Coll. and which is challenged by the appellant:
Obligations of the stationary source operator
(1) An operator of a stationary source shall:
(a) to put into service and operate a stationary source and activities or technologies related to the operation or operation of a stationary source that affects the level of pollution, in accordance with the conditions for the operation of that stationary source laid down by this law, its implementing legislation, the manufacturer and the supplier;
(...)
(2) Where there are reasonable grounds for suspecting that an operator of an incineration stationary source located in a family home, apartment or building for family recreation, not involving premises used for business activities, has infringed one of the obligations referred to in paragraph 1, but this breach cannot be demonstrated without carrying out a check on the combustion stationary source, its accessories or the fuels used, the municipal authority of the municipality with an extended activity of the operator shall draw the attention in writing to this fact and inform him of the obligations of the combustion stationary source operator set out in paragraph 1 and of the following repeated reasonable suspicion of the infringement in the form of an inspection. Where there is repeated reasonable suspicion that the operator continues to or is in breach of any of the obligations referred to in paragraph 1, the controller shall be entitled to enter his residence for the purpose of checking compliance with the obligations under this law. The owner or user of such premises shall be obliged to allow the controller to access the combustion stationary source, its accessories and the fuels used.
Transfers
(1) A natural person commits an offence by:
(...),
(b) as an operator of a stationary source in breach of Article 17 (1) (a), it shall not put into service or operate a stationary source and / or technology related to the operation or operation of a stationary source which affects the level of pollution in accordance with the conditions for the operation of that stationary source laid down by this Law, its implementing legislation, producer or supplier;
(c) as an operator of a stationary source, does not comply with the permissible darkness of smoke referred to in Article 17 (1) (b);
(d) as an operator of a stationary source, in breach of Article 17 (1) (c), burn in a stationary fuel source not specified by the manufacturer of the stationary source;
(e) as an operator of a stationary source, shall not submit to the competent authority on request the information referred to in Article 17 (1) (d);
(...),
(g) as an operator of a stationary source contrary to Article 17 (1) (g), operates a stationary source not meeting the requirements of Annex 11 to this Act;
(h) as an operator of a stationary source in breach of Article 17 (1) (h), by means of a competent person every two calendar years, does not carry out a check of the technical condition and operation of that combustion stationary source or submit, on request, to the municipal authority of the municipality with an extended scope of the certificate of carrying out that check;
(j) as owner or user of the space in which the combustion stationary source is operated, in breach of Article 17 (2), it shall not allow the controller to access the combustion stationary source, its accessories or fuel used to check compliance with obligations under this law (...)
(2) A penalty may be imposed in respect of an offence:
(a) 50 000 CZK if the offence referred to in paragraph 1 (a), (b), (c), (d), (f), (g), (i), (j) or (k) is committed;
(...).
Meritorious review of the proposal
(a) Background to the review of the contested regulation - fundamental rights concerned, the law quality test and the legitimate objectives pursued
23. The exercise of the control provided for in Article 17 (2) of the Air Protection Act directly affects constitutional standards guaranteeing the protection of the integrity of dwellings, namely Article 8 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and Article 12 (1) of the Charter. Article 12 (2) The Charter, in its sense and purpose, concerns only the home inspection institute in criminal proceedings as more intensive interference in the integrity of homes than control under the contested legislation. This provision is therefore not applicable in the present case. On the contrary, the Constitutional Court must apply Article 12 (3) of the Charter, according to which so-called other interventions in the integrity of dwellings may be permitted by law only if it is necessary in a democratic society to protect the life or health of persons, to protect the rights and freedoms of others or to avert a serious threat to public security and order. The Charter adds that, in cases where dwellings are also used for the business or business of other economic activities, such interventions may be permitted by law, also if necessary for the performance of public administration tasks.
24. The non-touchability of dwellings as a constitutionally guaranteed right under Article 12 of the Charter is, by its nature and importance, among fundamental human rights and freedoms. Together with personal freedom and other constitutionally guaranteed rights, it completes the individual's personality sphere, whose individual integrity as a condition for the dignified existence and development of human life must be respected and consistently protected. A breakthrough in this protection, which is allowed by the constitutional order in the case of so-called other interventions in the integrity of homes, is to be understood as an exception which requires a restrictive interpretation of the statutory preconditions for its admissibility [see the Constitutional Court's finding sp. zn. I. ÚS 2024 / 15 of 15 December 2015 (N 215 / 79 SbNU 461), paragraph 12]. The most generally stated - the purpose of the fundamental right to the integrity of dwellings is to respect and guarantee the right not to be disturbed in the private (spatial) sphere. The right to spatial privacy is a function of freedom (status of negativus) and is undoubtedly a value decision of the Constitution. Therefore, all acts of public authority (legislative, executive, judicial) must respect the high value of spatial privacy. The legislators derive from the protection function of Article 12 The Charter of the obligation to adopt adequate legislation relating to the various aspects of housing, which will protect the content of that right. The protection function of this right must influence the creation and interpretation of relevant legal standards (including private law) so that the material content of the right to spatial privacy is respected and protected. There is also a requirement from the protection function of fundamental law addressed to the legislator, which must ensure that the spatial private sphere is protected from interference by third parties (see Wagner, E. Article 12 (Privacy in the spatial dimension). In: Wagner, E., Šimělek, V., Langášek, T., Pospíšil, I. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s., 2012, p. 330-331].
25. The above-mentioned Article 8 of the Convention also protects home freedom. According to the official Czech translation, the right of everyone to respect "dwellings." However, as the commentary literature states, it is not a precise translation of the authentic language version of the terms "home" used in English and "domicile" in French. The personal link between the individual and the place also outlines the concept of "home," which states for the same terms the official Czech translation of Article 17 (1) of the International Covenant on Civil and Political Rights (closer to Kratochchchul, J. Right to respect for private and family life (Article 8 of the ECHR). In: Kmek, J., Košák, D., Kratočíl, J., Bobek, M. European Convention on Human Rights. Comment. Issue 1. Praha: C. H. Beck, 2012, p. 874-875). In general, it is a spatial understanding of the life sphere that the individual has acquired; if it has been deprived of its general accessibility, this sphere falls within the material content of the right to privacy (cf. Wagner, E., commentary cited above, p. 332).
26. The European Court of Human Rights defines home as "a place, physically defined territory where private and family life is developing" (see the judgment of the European Court of Human Rights of 2 November 2006 in the Giacomelli case against Italy, Case No 59909 / 00, § 76). Whether or not it is a home within the meaning of Article 8 of the Convention will depend on the facts and the existence of "sufficient and continuing link to the site '(see, for example, the judgment of the European Court of Human Rights of 18.11.2004 in the Prokopovich case against Russia, Case 58255 / 00, paragraph 36). The term" home' must be interpreted extensively (see, for example, the judgment of the European Court of Human Rights of 31 July 2003 in the Demades case against Turkey, Case No 16219 / 90, § 33). The home may not be a fixed dwelling; that concept includes mobile homes, such as caravans (see the judgment of the Grand Chamber of the European Court of Human Rights of 18.1.2001 in the Chapman case against the United Kingdom, Case No 27238 / 95, § 73-74).
27. The Constitutional Court adds that from the point of view of the Convention, the form of the right to the housing in question does not matter. Article 8 The Convention does not make a distinction between the home owned or leased by the complainant (Decision of the European Commission on Human Rights of 1 July 1998 in Khatun and Others v United Kingdom, complaint No 38387 / 97, paragraph 1) or where he resides for reasons of family ties (see Judgment of the Grand Chamber of the European Court of Human Rights of 28.11.1997 in Case No 23186 / 94, § 73). Even the article in the Convention protects housing on an illegal basis (see the judgment of the European Court of Human Rights of 29 September 1996 in the Buckley case against the United Kingdom, Case No 20348 / 92, § 54). The place to which its population does not have a valid legal title may also be the home (see the judgments of the European Court of Human Rights of 13.5.2008 in the McCann case against the United Kingdom, Case No 19009 / 04, § 46; and Case No 21.4.2016 in the Ivanova and Cherkezov case against Bulgaria, Case No 46577 / 15, § 49; see also Kratochchčl, J., cited above, p. 875).
28. The content of the right to respect for home is primarily the right to use it. This right goes further than the possibility of physical use itself: "The individual has the right to respect for his home, which means not only the right to the physical area itself, but also to the peaceful use of the area. The infringement of the right to respect for home is not limited to specific or physical disturbances such as unauthorised entry into the home, but also includes those which are not specific or physical, such as noise, emissions, odours or other forms of intervention. Serious disturbances may lead to a breach of his right to respect for his home if he is prevented from enjoying the facilities of his home." (see Giacomelli against Italy, cited above, § 76). Thus, any interference which adversely affects its proper and peaceful use will be a breach of the right to respect for home (see the judgment of the European Court of Human Rights of 20 June 2006 in the Babylonian case against Slovakia, complaint No 69146 / 01, § 51; also Kratochchul, J., cited above, p. 877).
29. The contested legislation concerns the scope of the fundamental right to the integrity of dwellings pursuant to Article 12 of the Charter and Article 8 of the Convention. In specific cases, it may constitute a basis for interference with this right, as foreseen by Article 12 (3) of the Charter and Article 8 (2) of the Convention. The Constitutional Court must therefore examine whether the contested regulation as a "legal basis' for the restriction of home freedom fulfils the constitutional requirements resulting from those provisions. Article 12 (3) of the Charter lays down in particular the formal condition that the legislation on the basis of which interference in the integrity of the dwelling may take place must be contained in the Act as an act of Parliament [see the findings of the Constitutional Court sp. zn. Pl. ÚS 36 / 11 of 20.6.2013 (N 111 / 69 SbNU 765; 238 / 2013 Coll.), paragraph 38; sp. zn. Pl. ÚS 43 / 13 of 25.3.2014 (N 39 / 72 SbNU 439; 77 / 2014 Sb.), paragraph 32; sp. The restriction of fundamental law may not provide for any subject matter.
30. At the same time, legal legislation must meet the material conditions of Article 8 of the Convention, from which the European Court of Human Rights has provided a so-called test of the quality of the law. It consists of three components: 1. availability requirement, 2. predictability requirement and 3. sufficient guarantees before arbitrary application. In order to meet the criterion of availability, the publication in the official collection of the laws will be sufficient (cf., for example, the judgment of the Grand Chamber of the European Court of Human Rights of 4.5.2000 in the Rotar case against Romania, Case No 28341 / 95, § 54). As regards the requirements of the predictability criterion, the European Court of Human Rights stated that the law must be formulated "with sufficient precision to allow, if necessary with appropriate assistance, to anticipate, to the extent that the circumstances of the case are determined, the consequences which the conduct may have '(see judgment of the Grand Chamber of 17 February 2004 in Gorzelik and Others v Poland, Case No 44158 / 98, § 64). In other words, individuals must have a reasonable opportunity to deduce how to behave in order to respect the law. In the context of the review of the safeguards against the insolence of the European Court of Human Rights, the Contracting Parties require that, where the law leaves the competent authorities a discrepancy -" sufficiently clearly defined [ly] the scope of the discrepancy conferred on the relevant authorities and the manner in which that discretionary power is exercised' (see the judgment of the Grand Chamber of the European Court of Human Rights of 14 September 2010 in the case of Sanoma Uitgevers B. V. v the Netherlands, Complaint No 38224 / 03, § 82; cf. Rotara v Romania, cited above, § 57- 62; on all things closer to Kozar, D., cited above, p. 107-109).
31. According to the Constitutional Court, the contested legislation will stand on a formal basis in the intentions of the test used. It is contained in the Act as an Act of Parliament, which was declared in the Collection of Laws, thus fulfilling the formal requirement of Article 12 (3) of the Charter as well as the criterion of availability in the sense of the first component of the law quality test under Article 8 of the Convention. The legislation also undoubtedly allows the combustion stationary source operator to anticipate how it should behave to prevent the control of the combustion stationary source, its accessories or the fuels used. Paragraph 23 (1) (j) of the Air Protection Act then regulates with sufficient precision, according to the Constitutional Court, the nature of the infringement which may be committed by an operator of an internal combustion source if it is not possible to carry out an inspection. For the addressees of the contested provisions, due to their text, there can be no doubt as to the moment at which their obligation arises to allow control or, where appropriate, the moment at which their liability for the offence is imposed by a penalty of up to CZK 50,000.
32. Paragraph 17 (2) of the Air Protection Act also contains a certain tiered application mechanism which prevents air protection authorities from acting arbitrarily. The air protection authority first has an obligation to notify in writing the operator of the combustion stationary source that it has taken reasonable suspicion of its failure to comply with any of the obligations under Section 17 (1) of the Air Protection Act (e.g. on the basis of the unacceptable darkness of smoke, video or photo documentation, etc.). That authority shall be obliged to justify its suspicion. It may call on the operator to provide proof of the technical condition check of the source, the inspection of the flue gas routes and, where appropriate, to submit additional documents (e.g. proof of purchase of fuel). At the same time, the contested legislation obliges him to inform the combustion stationary source operator of the consequences of repeated reasonable suspicion in the form of an inspection. Thus, only in the event of further suspicion that the same operator is in breach of one of the obligations under the provisions of § 17 (1) of the Air Protection Act can the controller enter the operator's residence and check compliance with those obligations. It is an extreme solution (see Jančářová, I., Vodíčka, J. Short reflection on direct controls of combustion stationary sources located in family houses, apartments and buildings for family recreation. Czech environmental law, 2 / 2016, p. 46). However, the legislator did not go far enough to establish under the terms of Paragraph 17 (2) of the Air Protection Act that the operator of the source would be deemed to be in breach of the obligations laid down in Article 17 (1) of the Act cited in the case of failure to control the combustion stationary source.
33. The explanatory memorandum on the government bill on the basis of which the contested legislation was adopted describes what control might look like in practice. The controller should first request documentation on the stationary source and fuel (if not submitted earlier). They shall then verify the correct installation of the stationary source and the connection to the combustion routes. It shall then perform an optical inspection of the combustion source (check the cleanliness of the exchanger surfaces, the technical state of the external sheathing; if the source is not in operation, the control of combustion chambers and heating flaps, inlet and cleaning holes, air and fuel inlet routes and waste gas disposal). It shall also check the functionality of the regulatory elements and the way the source operates. It should then focus on the fuel used, including whether the fuel specified by the combustion source manufacturer is used. If necessary, it may take samples of ash, deposits in the combustion routes (in the case of wood burning) or fuel to carry out subsequent analyses (see also Dídina, P. Air protection at local level - Issue of local heating control. In: Damohorsky, M., Snopková, P. Role of municipalities in environmental protection from the point of view of law. Prague: Charles University in Prague, Faculty of Law, 2015, p. 137). The inspection shall be accompanied by a report to which the operator may object. In addition, the whole control is governed by Act No. 255 / 2012 Coll., on Control (Control Regulations), as amended by Act No. 183 / 2017 Coll. The operator will therefore be able to oppose the control either by objecting to the bias of the controlling person or invited person (Section 6 of the Control Regulations) or by objecting to the control findings set out in the Control Protocol.
34. The Constitutional Court does not, from the point of view of the test of the quality of the law, consider the contentious or contentious design of the provision § 23 (1) (j), which allows the owner of the combustion stationary source or user to be penalised by the space where the source is located, for not allowing control. The provision in question must be interpreted as follows: if the owner is simultaneously an operator of a combustion source not operated by another user, he will be affected as owner. If the owner is not simultaneously an operator of the combustion source in areas used by someone else, the law provides for an alternative to the user of the space in question.
35. Thus, the applicable legislation in its entirety limits the discretion of air protection authorities in the control of the obligations arising from the provisions of Section 17 (1) of the Air Protection Act and sets out the detailed conditions for such control, which it allows only as a last resort. Another guarantee against insolence is the related regulation in Act No. 255 / 2012 Coll., on Control (Control Regulations), as amended by Act No. 183 / 2017 Coll. The Constitutional Court therefore summarises that the contested legislation complies with the formal and in terms of the legality test as well as with the material conditions for the law, which allows the limitation of the right to the inviolability of dwellings in a particular situation.
36. From Article 12 (3) of the Charter and Article 8 (2) Furthermore, the Convention requires that legal arrangements (including subsequent specific interventions) limiting the integrity of dwellings (homes) pursue any of the legitimate objectives foreseen by these provisions. Article 12 (3) of the first Charter defines as legitimate objectives the protection of the life or health of persons, the protection of the rights and freedoms of others and the deterrence of a serious threat to public security and order. The second provision shall be supplemented by: "Where a dwelling is also used for the business or business of other economic activities, such intervention may be permitted by law, also if necessary for the performance of public administration tasks. 'Article 8 (2) The Convention, as possible objectives of limiting the right to respect for home, identifies national security, public security, the country's economic well-being, the prevention of unrest and crime, the protection of health or morality, or the protection of the rights and freedoms of others.
37. The contested legislation will also stand up to its legitimacy. As stated by the Government, citizens often complain about smoke and odour from local space heaters around their homes. These complaints repeatedly draw attention to cases of emissions that should have used illegal fuel. Both the Charter and the Convention foresee the possibility of interfering with the integrity of homes for the protection of the rights and freedoms of others. This right is in particular the right to a favourable environment, which in Article 35 (1) The Charter also guarantees persons affected by any breach of obligations under § 17 (1) of the Air Protection Act. Emission from an illegally used stationary combustion source undoubtedly also affects the health of these people. The right to health protection is guaranteed by the first sentence of Article 31 of the Charter. In the context of the already mentioned Article 35 of the Charter, paragraph 3 cannot be omitted, according to which no one may threaten or harm the environment, natural resources, species wealth of nature and cultural monuments above the level laid down by law in the exercise of his rights. In the same spirit, the expression of the social function of ownership, in particular by providing for a ban on such activity, or the exercise of property rights, which would harm human health, nature and the environment to the standard laid down by law (Article 11 (3) of the Charter in Fine).
38. The rights of persons affected by emissions from the combustion stationary source may also be derived from Article 8 of the Convention, the interpretation of which leads to a higher standard of protection in this respect than is the case immediately with Articles 31 and 35 of the Charter (cf. Article 41 (1) of the Charter). In its case-law, the European Court of Human Rights has previously stated that environmental negative phenomena, including emissions or odours, also affect the health and quality of life of a person and, therefore, his home and his private and family life (see Case No 16798 / 90, paragraph 51). From the point of view of the Convention, the environmental impact of these phenomena is not as significant as that of people (see Cook, K. Environmental Rights as Human Rights. European Human Rights Law Review, 2 / 2002, p. 196). Thus, the Convention also implies an obligation for the Czech Republic to take appropriate measures to protect the homes of the people from these phenomena, regardless of whether their health is at risk or not. Serious air pollution affects the right to respect for private and family life and home already in itself (see López Ostra v Spain, cited above, § 51; Case No 67021 / 01 Tatar v Romania [2009] ECR 107). In environmental cases, the European Court of Human Rights examines whether the State "has taken reasonable and proportionate measures to ensure the rights of complainants' (judgment of the Grand Chamber of 8.7.2003 in Hatton and Others v United Kingdom, Case No 36022 / 97, § 98).
39. The contested legislation therefore pursues the legitimate objective of protecting the rights and freedoms of others, which is protecting their right to a favourable environment, as well as the legitimate objective of protecting the health of persons who may be affected by emissions from illegally used combustion stationary sources. Both legitimate objectives are foreseen by Article 12 (3) of the Charter and Article 8 (2) of the Convention. By adopting the contested legislation, the State fulfilled its positive commitment under the case law of the European Court of Human Rights under Article 8 of the Convention, which consists in adopting legislation enabling the right to respect for private and family life to be implemented effectively, which implies the right to a favourable environment. In view of this perspective, the Constitutional Court cannot agree with the appellants that there is no direct link between entering and protecting the right to a favourable environment and that those constitutional provisions foresee only the immediate protection of the lives or health or rights and freedoms of persons in specific situations. If the State is to fulfil its positive obligations in the form of the adoption of legislation enabling the effective implementation of the rights under Article 8 of the Convention, it corresponds to the fact that such legislation (led by the legitimate objective of protecting the rights and freedoms of others) will constitute a legal basis for the possible limitation of another right such as the inviolability of homes in this case.
(b) Proportionality of the contested regulation
40. Therefore, at the last stage of the review of the compliance of the contested legislation with Article 12 (3) of the Charter and Article 8 (2) of the Convention, the Constitutional Court remains to examine whether the contested regulation fulfils the requirement of necessity in a democratic society in both provisions. The Constitutional Court recalls that this concept presupposes an urgent social need for the existence of a given regulation and, in particular, the relationship of proportionality to the legitimate objective pursued. In other words, the Constitutional Court must focus on whether the legislator respected the principle of proportionality and reached a fair balance between competing interests. The proportionality test, which includes three criteria, can traditionally be used for this. The first is the assessment of eligibility to meet the legitimate objective pursued (suitability criterion). It is established whether a specific measure can achieve the intended objective of protecting a non-limited basic right or protecting a public good. Another criterion is the assessment of necessity. It examines whether the most favourable means for limited fundamental law have been used in the selection of the appropriate means. The last to assess proportionality (in a narrower sense), i.e. whether the injury to the fundamental right is disproportionate in relation to the legitimate objective pursued. Measures limiting fundamental human rights and freedoms must not, by their negative consequences, exceed the positives that bring a conflicting interest in taking such measures.
41. The Constitutional Court has already established above what legitimate objectives the contested legislation pursues. There is no doubt that it could not achieve them. Allowing for control of the combustion stationary source at its operator's residence and possible findings of an infringement of the Air Protection Act by its operator is intended to remedy, at the same time as ensuring increased protection of health and the favourable environment of persons affected by emissions from that source. The legislation in question therefore fulfils the condition of its suitability.
42. In the second step of the proportionality test, it is examined whether the legislator could have chosen a solution which would have been more friendly to the home freedom of combustion operators. However, such a more friendly solution would also have to achieve the legitimate objectives pursued at the same or at least comparable level. If only partially fulfilled, it cannot be regarded as a real alternative which should lead to the conclusion that the contested legislation is not necessary.
43. The Government stated in its observations that other measures, not including entry into the home of the operator of a stationary source (e.g. measuring the darkness of smoke or the possible use of drones) do not allow reliable and unquestionable proof of breach of the obligations of the source operator. The explanatory memorandum to the Government Bill No. 369 / 2016 Coll., amending Act No. 201 / 2012 Coll., on Air Protection, as amended, and Act No. 634 / 2004 Coll., on Administrative Charges, as amended, adds that other possible instruments to reduce the total emissions from combustion sources used for domestic heating are already being used. These are administrative instruments of the Air Protection Act, consisting of regulating the combustion market and prohibiting certain fuels and sources. The administrative instruments are combined with the economic instrument of positive stimulation in the form of subsidies to promote the exchange of obsolete solid fuel combustion sources, which in 2015 were up to 80% of the total of 660 000 (see Jančářová, I., Vodice, J., cited above, p. 44). The Operational Programme Environment provides additional system measures which, in addition to the subsidies for the exchange of boilers mentioned, include a gradual ban on the sale of boilers of the 3rd emission class (as at 1.1.2018), the 4th and 5th emission classes (as at 1.1.2020) and the 1.9.2022 on the use of boilers of the 1st and 2nd emission classes (see Horák, J., Hopan, F., Krpec, K. and Kubesa, P. What must meet the new boiler for solid fuels after 2020? Comparison of emission requirements for boilers up to 300 MW [online]. TZB-info, 29. 6. 2015. See also http: / / goo.gl / f7F8Jr. For the exchange of old boilers there is 9 billion 'on the website of the Operational Programme Environment, available at https: / / goo.gl / tjYmfK).
44. In view of the construction of their arguments, the appellants raised no argument as to the necessity of the contested scheme. The Constitutional Court must take account of respect for the division of power and, when assessing the step of necessity in the proportionality test, it must show greater restraint towards the legislative elections which it has made more informed by the legislator of possible other solutions. It cannot, especially in the absence of arguments from the appellants, consider alternatives by the legislator of the chosen solution and assess whether they would actually achieve the legitimate objectives pursued at a similar level. The argument put forward by the Government shows that other additional instruments have been used in the past and continue to be used. However, they do not achieve the necessary effectiveness. The expert literature from the investigated area also suggests some other possible solutions [ad hoc incentive exemption from the tax on buildings and units pursuant to § 9 (1) (r) of Act No. 338 / 1992 Coll., on real estate tax, as amended; the correct setting of charges for waste associated with citizens' education; entrustment of power to control the technician of the combustion routes; see Jančářová, I., Vodice, J., cited above, pp. 46-47]. However, the Government argues that other (by its essence) solutions are not sufficient to achieve the legitimate objectives pursued at the same level as the contested legislation. The reliable and undeniable demonstration of the breach of the obligations of the source operator cannot be achieved otherwise. The Constitutional Court has no reason to disagree with these arguments of the Government.
45. This conclusion is also confirmed by adequate technical literature, which already stated before the adoption of the contested legislation: "It could be argued that the burning of unsuitable materials will also affect the darkness of smoke, which can be detected (...) even without entering the dwelling (...). Measurement of the permissible smoke darkness in practice is not an appropriate way of checking obligations, whether for limited use (only under ideal conditions and in light) or for evidence difficulties and subjectivity manifested in this method. (...) At present, the Czech legal order does not contain an effective tool to detect breaches of the obligations of the operator, the current methods are not sufficiently exact, conclusive or conclusive. The regulation of controls would not mean simplification, but would at all allow for the detection of infringement and therefore the possibility of action against it, effectively and quickly. The entrance to the dwellings can therefore be found to be needed." (see Grey, P., cited above, p. 139). The comment on the Air Protection Act (issued immediately after the entry into force of the Act) adds: "Entry into dwellings for the purpose of air protection could be considered necessary both for the protection of the health of persons and for the protection of the rights of others, in view of the actual heating situation of households. (...) It should be noted that the possibility of entering private dwellings in order to check compliance with the air protection law, directly related to the protection of the health of persons, which may be significantly affected by the inappropriate behaviour of the stationary source operator (e.g. by burning inappropriate or even prohibited fuel or other materials), is quite common in the surrounding modern democratic countries." (see Morávek, J., Tomášková, V., Bernard, M., Vícha, O. Air Protection Act. Comment. 1. Prague: C. H. Beck, 2013, p. 224).
46. It is the foreign air protection regulations that can be referred to in this context. According to the explanatory memorandum to the Government's draft law, containing an extremely large comparative passage, for example, it follows that in Germany compliance with the emission limits of local space heaters is monitored, in addition to regular checks by comminers and self-checks by operators on the basis of an official regulation, also through controls carried out by the authorities under Section 52 of the Federal Immissionsschutzgesetz. The prior consent of the owner to carry out this check is not necessary. Under Paragraph 52 (2) of the BIMSchG, owners and operators of all combustion plants, including solid fuel combustion plants, as well as owners and holders of land on which such plants are operated are obliged to allow the staff of the competent authorities and other authorised persons to access those plants and to allow them to be inspected. In case of urgent need to avert a danger to public safety or order, these owners are also required to allow entry into other residential areas (see Jarass, H. Bundes- Immissionsschutzgesetzes: Kommentar. 11. Paragraph 1 (3) of the Commercial Craft Act (Gesetz über das Berufsrecht und die Versorgung im Schornsteinfegerhandwerk; SchfHwG) adds that the owner of the land and the space in which the combustion plant is operated is obliged to allow the chimney holder, who is the holder of the relevant authorisation, to enter the dwelling when the statutory conditions are fulfilled. The latter shall be authorised to carry out revisions in its perimeter if there are facts justifying the presumption that harmful emissions are directly derived from a particular installation.
47. In Austria, the admission to private premises at the federal level is enshrined in § 26 (1) of the Federal Air Protection Act (Immissionsschutzgesetz - Luft; IG-L) or § 5 (1) of the Bundesluftreinhaltegesetz (BLRG). The Earth's adaptations also entrust authorities with the right to enter private buildings in order to control the heating equipment. The Vienna Act on Heating and Climate Equipment (Wiener Heizungs- und Klimaanlagen gesetz 2015; WHKG), which lists the individual obligations of the heating plant operator in § 20 and also provides for the operator to make the heating equipment available to the inspection authorities in order to demonstrate compliance with these obligations. According to Article 34 of that Law, a fine of up to EUR 21 000 is at risk of infringement of the obligations laid down in Article 20. All checks on heating installations in Austrian households shall be carried out by members of the comminers' professional guilds. All check dates are reported in advance and the owner of the property must allow the control authority access to the facility. German and Austrian law therefore considers it essential to protect health and the right to a favourable environment to limit the inviolability of the home of local fuel operators. Neither of those rules also requires prior authorisation from the court to carry out a check (see paragraph 51 below).
48. Air protection in Poland is primarily addressed by the 2001 Environmental Protection Act (Prawo ochrony środowiska) and the 2012 Waste Act (Ustawa on waste). In the event of the prevention of control by the fuel operator, the authorities of the municipality or the officials of the authorities shall authorise the inspection which, pursuant to Article 379 of the Environmental Protection Act, includes the entry into the terrain of the property from 6 to 22 am (together with experts and the necessary measuring equipment) and the execution of the necessary inspection operations. Yet it is difficult in Poland to prove violations of the law. In essence, only those who are directly caught burning illegal waste can be punished by a fine. This is practically impossible in case of combustion in boilers in a private building of a natural person, as the owner of the property may not allow entry into it. In the event of suspicion, therefore, the check is carried out indirectly and in particular it is established whether the person concerned has a contract for the shipment of waste. Otherwise, it is indicated that the waste is disposed of in an unauthorised manner. The inspection authorities do not have technical installations to analyse flue gas. The existing laws and regulations nevertheless provide for similar tests, the costs of which are to be borne by the controlled person. However, the problem is to obtain a reliably documented sample of the waste currently incinerated.
49. The Constitutional Court therefore summarises, with reference to all the above, that the legislation which the appellants challenge fulfils the criterion of necessity in the second step of the proportionality test.
50. It remains to be assessed whether the legislation allowing control of the combustion stationary source at the operator's residence is appropriate to strict sense. As regards inspections and checks similar to those provided for in the contested legislation (see paragraphs 32-33 above), the European Court of Human Rights has repeatedly stressed, in assessing their proportionality, that if States consider it necessary to apply similar measures to ensure material evidence of the infringement, the legal system as a whole and the related practice in the field in question should provide adequate and sufficient guarantees to prevent the administrative authorities from taking arbitrary measures affecting the rights of complainants to respect their homes [see the judgment of the European Court of Human Rights of 25 February 1993 in Case No 10828 / 84, paragraph 57; Société Canal Plus and Others, complaint No 29408 / 08, § 54 in fine; See also the judgment of the European Court of Human Rights of 26.4.2007 in the Dumitra Popescu case against Romania (No 2), Case No 71525 / 01, § 65; Delta Bakárny judgment, cited above, § 84.
51. Where national law authorises administrative authorities to carry out an inspection without a court order, the European Court of Human Rights shall be more prudent, despite the discretion it grants to the Contracting States in this area. However, in cases relating to the protection of individuals against arbitrary interference by public authority in the rights guaranteed by Article 8 of the Convention, it has confirmed several times that the lack of a search warrant can be offset by effective judicial control carried out ex post in fact (see European Court of Human Rights judgment of 15 February 2011 in Case Heino v Finland, complaint No 56720 / 09, § 45; or European Court of Human Rights judgment of 7 June 2007 in case Smirnov v v Council v Russia, complaint No 71362 / 01, § 45 in fine). Therefore, the Convention does not require a prior judicial authorisation in such cases. Nor does this requirement arise from Article 12 (3) of the Charter. However, it is necessary that subsequent judicial checks be effective under specific circumstances (Smirnov against Russia, cited above, § 45 in fine). In practice, this means that the persons concerned can obtain effective judicial control of the measure and its conduct, both in fact and in law. If a procedure has already been found to be incorrect by the court, then the appeal or remedies available must enable the person concerned to obtain an adequate remedy (Mutatis mutandis judgment of the European Court of Human Rights of 21 February 2008 in the Ravon and Others case against France, Case No 18497 / 03, paragraph 28; Société Canal Plus and others, cited above, § 40). There must therefore be a means to accentuate the proper conduct of the intervention itself in the right to respect for home and to challenge the conduct of the check.
52. For the Czech Republic, the ruling of the European Court of Human Rights in Delta Bakárny is important in this aspect. This concerns local investigations carried out by the Competition Authority pursuant to Article 21 (4) of Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain laws (Competition Protection Act), as amended. The European Court of Human Rights found on this matter that, in connection with the inspection of Delta Bakárny's premises, its right guaranteed by Article 8 of the Convention was violated. It came to the conclusion that ex post judicial control of the administrative judiciary at the time (before 1.1.2012; see paragraph 53 below) did not provide Delta Bakárny with sufficient guarantees against indiscretions and therefore the intervention in its rights could not be regarded as strictly appropriate to the legitimate objective pursued (see paragraphs 89-94 of the judgment cited). The judgment of Delta Bakárny concerns a commercial company and competition law. However, its supporting general principles are based on the caselaw cited above, which addresses the interference in the home freedom of natural persons, as well as the case law of the European Court of Human Rights, which followed the judgment of Delta Bakárny (see, for example, Case No 38898 / 04 Rozhkov v Russia (No 2), paragraph 122). Therefore, the principles of Delta Bakárny and, in particular, of the complaint against (not) the existence of sufficient procedural safeguards for the protection of the law under Article 8 of the Convention can be based on constitutional law.
53. According to the Constitutional Court, the Czech legal order now offers sufficient procedural guarantees to protect the integrity of homes in cases affected by the contested regulation. The main one will be in particular the so-called intervention action pursuant to § 82 et seq. of Act No. 150 / 2002 Coll., the Administrative Rules of the Court, as amended by Act No. 303 / 2011 Coll. A check under the provisions of Paragraph 17 (2) of the Air Protection Act may constitute an unlawful interference, like other local investigations or checks known to our administrative law (cf. Judgment of the Supreme Administrative Court of 20 August 2008 No 1 Aps 1 / 2008-59; order of the enlarged Senate of the Supreme Administrative Court of 31 August 2005 No 2 Afs 144 / 2004-110, published under No 735 / 2006 Coll. NSS; see also paragraph 62 below). Since 1. 1. 2012, after the amendment of the Rules of Procedure is the administrative procedure implemented by Act No. 303 / 2011 Coll. Moreover, it is possible to defend ourselves not only against interventions that threaten or persist directly and directly, but also against those that are closed. Paragraph 82 of the Act No. 150 / 2002 Coll., Administrative Rules, as amended by Act No. 303 / 2011 Coll., provides for the possibility of seeking protection from unlawful interference with the determination that the action already taken was unlawful. In addition to this change in the concept of an intervention action, the commentary document states: "[C] the aim was to extend the conditions for bringing an action against unlawful interference and to allow the courts to establish the illegality of the action which has already been withdrawn, in view of the possibility of seeking compensation for damage or non-property damage '(see Comfort, L., Šiměl, V. et al. Administrative Rules of Procedure. Comment. Praha: Leges, 2014, p. 806). According to the administrative court order, it will therefore be possible to challenge the control of the combustion stationary source at the residence of its operator if it threatens or persists immediately and directly, but even after it has been concluded by a proposal to declare its illegality.
54. When reviewing the proportionality of the intervention by the European Court of Human Rights in Delta Bakárny, it stressed that the criteria of suitability, duration and scope of the local investigation (§ 91 of the judgment cited) should be subject to judicial review. This has already been followed up by the administrative courts which, in their related case-law, created a "Delta Test 'in which, when assessing the criterion of the scope of the investigation, they focus on whether" there is a proportional relationship (literally, an equation') between the scope of the suspected infringement, the scope of the local investigation mandate and the scope of the investigation itself. If there is no case, it is necessary to examine the extent to which such a situation has materially manifested itself in the course and outcome of the local investigation to the detriment of the applicant '(see the judgment of the Regional Court in Brno of 23 March 2017 No 62 A 236 / 2016-91, the conclusions of which were confirmed by the subsequent judgment of the Supreme Administrative Court of 24.5.2017 No 6 As 113 / 2017-82).
55. The Constitutional Court accepts the above-mentioned concept and adds that, in the proceedings for an action for protection against unlawful interference which will be directed against the control of the combustion stationary source at the residence of its operator, the administrative courts will have to focus, when assessing the adequacy of the control, on the first suitability of the control (in the sense of the adequacy of the use of this procedural institute due to specific circumstances), on the second length of the control and on the third scope of the control. (a) the existence of a proportional relationship between the extent of suspected breach of obligations under Article 17 (1) of the Air Protection Act and the scope of the control itself. If there is no such relationship, then the administrative courts must (b) examine the extent to which this situation has materially manifested itself in the course and outcome of the check to the detriment of the applicant.
56. Sufficient procedural guarantees for the protection of the constitutionally guaranteed right of residence as provided for in Article 12 (3) of the Charter and Article 8 of the Convention may be found in Czech law in the event that the air protection authority finds the operator of a stationary source guilty of an infringement pursuant to Article 23 (1) of the Air Protection Act for a breach of the obligations imposed on him by Article 17 (1) of the same law, that is to say, if the air protection authority does not comply with its legal obligations as an operator of a stationary source of combustion. The air protection authority can fine him for that. This fine may be challenged by the source operator in an administrative court by an action against a decision under Paragraph 65 (1) of the Administrative Rules.
57. The Constitutional Court concludes that the Czech legal order undoubtedly complies with the procedural conditions arising from Article 8 of the Convention and the case law of the European Court of Human Rights, since it guarantees sufficient procedural guarantees to the operators of combustion stationary sources to protect home freedom.
58. At the last stage of the review of the constitutionality of the contested legislation, the Constitutional Court also assessed whether this legislation achieves a fair balance between conflicting interests and materially (see paragraph 40 above). In particular, it is a conflict of home freedom between the operators of combustion stationary sources (Article 12 of the Charter and Article 8 of the Convention) and the protection of health and the right to a favourable environment of other persons (Articles 31 and 35 of the Charter, together with Article 8 of the Convention). It was necessary to assess whether the level of limitation of the first of that interest was in line with the level of satisfaction of the second of that interest and therefore whether the restriction of the first of that interest was appropriate.
59. On the scale of the gravity of the limitation of the fundamental right "substantial - moderate - low" (see for example Košák, D. Collections of fundamental rights in the case-law of the Constitutional Court of the Czech Republic. Jurisprudence No. 1 / 2008, p. 16), the contested legislation according to the Constitutional Court represents a slight restriction on the integrity of homes. The control that it introduces, as well as the related misdemeanor liability, is not such an intensive intervention as is the case with, for example, the home inspection institute in criminal proceedings under Article 12 (2) of the Charter. In the case of a house search, the intervention in the form of entry into a residence cannot be prevented and must be sustained by the individual concerned. However, the control provided for in Article 17 (2) of the Air Protection Act constitutes a more moderate restriction on the integrity of dwellings, since the operator of the combustion stationary source can prevent it (under the threat of a fine) from intervening in its privacy. If it occurs, the control authority shall have access only to the stationary source, its accessories and the fuel used. It cannot enter areas other than where a stationary source, its accessories and fuel is located. The inspection and entry into the accommodation may also take place only in the event of a repeated suspicion of a breach of the obligations of the combustion stationary source operator, which, after the first notification to the air protection authority, has the possibility of responding to the suspicion, to fulfil obligations within the meaning of Section 17 (1) of the Air Protection Act, thereby preventing control. Therefore, the very existence of the contested legislation does not, in general, constitute a substantial restriction on home freedom. Indeed, significant interference with it may be considered in the case of specific checks which would not meet the above-defined conditions of suitability, length and extent.
60. Contrary to the slight restriction of home freedom, there is a substantial satisfaction (on the same scale) of the interest in protecting health and the right to a favourable environment for others. The legislator responded to the urgent social need to establish an effective mechanism by which it could protect the interests of other persons who may be adversely disrupted by an operator of an incineration stationary source which does not fulfil its obligations. The provision in question constitutes a reflection of the positive obligations arising from Article 8 of the Convention which the legislator has fulfilled by adopting the contested legislation. As a result, the State has set up new legislation in such a way that it is able to reduce the overall level of air pollution in order to protect health and the right to a favourable environment, while increasing its quality, if it can effectively penalise operators who violate their obligations in the use of domestic combustion resources. In addition to the existence of sufficient procedural guarantees for the protection of domestic freedom, the Constitutional Court does not find this restriction of home freedom to be disproportionate. The contested legislation limits it only slightly, but at the same time it substantially satisfies the interest in protecting the health of others and their right to a favourable environment. This concern does not outweigh the protection of the integrity of the homes of combustion stationary sources operators. The legislation contained in the provisions of Sections 17 (2), 23 (1) (j) and 23 (2) (a) of the Air Protection Act therefore stands in the proportionality test.
61. The right to inviolability does not constitute a "one-way" guarantee of home freedom. From the point of view of the activities carried out by an individual in his / her residence, he / she also contains external commitments. Activities that otherwise protect the right to respect for private life must not unduly endanger the health and lives of other persons and, after all, the user of the premises. Therefore, operators of combustion stationary sources must maintain the necessary level of solidarity towards other persons in the sphere of their right to a favourable environment and, in particular, to health protection. It cannot be overlooked that the consequences of air pollution are also reflected in the costs of the public health insurance system resulting from the damage to the health of all the persons concerned. It is not merely a hypothetical and theoretical consideration. Moreover, as the Government stated in its observations in this proceeding, the combustion sources for solid fuels used to heat households are one of the most important sources of fine dust particles and benzo [a] pyrene, which is even considered a carcinogen. These substances create a real threat to respiratory diseases and the risks of other diseases. Therefore, if there is a reasonable suspicion that a combustion stationary source operator, for example, is burning unauthorised fuel (typically waste), although the air protection authority had previously brought it to its attention and informed it of its possible consequences, then its home freedom must give way to the rights of persons who may not be taken into account by that operator in order to enable the air protection authority to establish for sure whether the source operator has infringed its legal obligations or not.
62. It should be added that the appellants' view of the issue and their arguments are very narrow. The fact remains that Czech administrative law knows several similar checks and local investigations or interventions linked to the possible limitation of the right to respect for private life. In addition to the above mentioned local inquiry of the Office for the Protection of Competition, this concerns access to land and buildings pursuant to the provisions of § 172 (3) of Act No. 183 / 2006 Coll., on Territorial Planning and Construction Regulations (Construction Act); control of the public health authority in the exercise of state health surveillance pursuant to the provisions of § 88 (1) of Act No. 258 / 2000 Coll., on the Protection of Public Health and on the amendment of certain related laws, as amended; local inquiry in tax proceedings pursuant to the provisions of § 81 paragraph 1 of Act No. 280 / 2009 Coll., Tax Code; entry into dwellings, other premises or land pursuant to the provisions of § 40 of Act No. 273 / 2008 Coll., on the Police of the Czech Republic; a visit to an employee of a social protection body pursuant to the provisions of § 53 (2) (c) of Act No. 359 / 1999 Coll., on the Social Protection of Children, as amended by Act No. 320 / 2002 Coll.; or for example on access to land pursuant to the provisions of § 60 of Act No. 254 / 2001 Coll., on water and on the amendment of certain laws (Water Act), as amended by Act No. 150 / 2010 Coll. If the Constitutional Court were to agree with the appellants' argument in this case, it would in general also call into question the constitutionality of many of these institutes, which are also potentially in conflict with the protection of the integrity of homes or, more generally, the protection of the right to respect for private life. In this context, as the Government has argued, the constitutionality of the land entry pursuant to Article 60 of the Water Law has already been discussed by the Constitutional Court in the past and the Court has already addressed in the findings of section IV of ÚS 652 / 06 of 21.11.2007 (N 202 / 47 of the SbNU 613), which included an interest in environmental protection (paragraphs 14-21).
63. In addition to the above, the Constitutional Court adds that the contested provisions will also stand in the context of administrative punishment. It cannot be ignored that the burden of proof to prove that the conduct fulfilling the nature of the offence has been committed by the accused of the offence is naturally borne by the administrative authority (see, for example, judgment of the Supreme Administrative Court of 24.5.2006 No 2 As 46 / 2005-55). On the contrary, the accused of the offence may not be guilty of anything and prove that he has not committed the act (see Bohadlo, D., Zášil, L., Potpošil, J. Administrative punishment in terms of practice and case law. 1. Prague: C. H. Beck, 2013, p. 142). It follows from the case law of the European Court of Human Rights in general that the transfer of any part of the burden of proof to the defendant would constitute an infringement of the right to a fair trial within the meaning of Article 6 of the Convention (see judgment of 20 March 2001 in Telfner v Austria, Complaint No 33501 / 96, § 15; or of 8 February 1996 in John Murray v United Kingdom, Case No 18731 / 91, § 54). In its crystallized pure form, the principle of investigation is applied, which commands the administrative authority to do whatever is necessary to establish the facts properly, regardless of the degree of procedural activity or the indifference of the party to the proceedings (see, for example, judgment of the Supreme Administrative Court of 27.11.2012 No 1 As 136 / 2012-23, paragraph 15). In this distribution of the evidence obligations, it is perfectly legitimate for the air protection authority, which must bear the full burden of proof in the infringement proceedings, to have at its disposal an adequate and effective instrument to meet this public objective at all (see also paragraphs 43-48 above). Thus, the contested regulation does not constitute a disproportionate remedy even in terms of administrative criminal law.
64. In conclusion, the Constitutional Court summarises that the contested legislation, which constitutes a restriction of the fundamental right to the integrity of dwellings pursuant to Article 12 (3) of the Charter and Article 8 of the Convention, fulfils the formal and material conditions for the lawful limitation of that right and pursues legitimate objectives for the protection of the health of persons and the protection of the rights and freedoms of others, while being proportionate to those legitimate objectives.
Conclusion
65. For all these reasons, the Constitutional Court found no grounds for the annulment of the contested provisions of Act No. 201 / 2012 Coll., on Air Protection, as amended by Act No. 369 / 2016 Coll., as they do not lead to a breach of the fundamental right to the integrity of dwellings.
66. The Constitutional Court therefore rejected, pursuant to § 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, the application for annulment of the provisions of § 17 (2), § 23 (1) (j) and § 23 (2) (a) in the text of the "j)" of the Air Protection Act in its entirety.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Jaroslav Fenyk took a different position on the decision of the plenary.
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Regulation Information
| Citation | The Constitutional Court found No. 313 / 2017 Coll., on the application for annulment of certain provisions of Act No. 201 / 2012 Coll., on Air Protection, as amended by Act No. 369 / 2016 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.09.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Administrative law
Environment
The regulation text is for informational purposes only.
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