Found at the Constitutional Court of the Czech Republic No. 34 / 1994 Coll.
The Constitutional Court of the Czech Republic found on 19 January 1994 in the case of the application for annulment of the Act of the Czech National Council No. 39 / 1993 Coll., on fines and bonds for non-compliance with the laws governing the transformation of agricultural cooperatives and the correction of property injustices in the area of property relations with land and other agricultural property
Valid
34
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 19 January 1994, in plenary, in the case of the appellant - group 41 Members of the Chamber of Deputies of the Parliament of the Czech Republic and the party to the proceedings - the Chamber of Deputies of the Parliament of the Czech Republic on the proposal for the annulment of the Act of the Czech National Council No. 39 / 1993 Coll., on fines and coupons for non-compliance with the laws governing the transformation of agricultural cooperatives and the correction of property injustices in the area of property and other agricultural property, as follows:
Motion denied.
Reasons
(substantial part)
A group of 41 Members submitted an application for annulment of the Act of the Czech National Council No. 39 / 1993 Coll. to point out that there is a gross discrepancy
1. between the provisions of Paragraph 2 (1) of the Act and Article 3 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter") in the context of Article 26 (3) of the Charter,
2. between the provisions of Article 2 (1) of the Act and Article 4 (3) of the Charter,
3. between the provisions of Article 3 of the Act and Article 26 (1) of the Charter.
The Constitutional Court examined the proposal and reached the following conclusions:
On the proposal to repeal the law in general
In general, the explanatory memorandum to the draft law states that the law is part of the whole complex of rules governing the restitution and privatisation of agricultural assets. Restitutions in this area - and this is widely known - are taking place very slowly and are faced with considerable resistance. This view is shared by the Constitutional Court, as this clearly results from the number of complaints and actions by citizens addressed to the competent national authorities and the general courts. The slowdown in the transformation of agricultural assets and the slow settlement of the related restitution claims also means delaying the course of economic reform in agriculture. This situation is not in accordance with the meaning and spirit of the Constitution, which defines the Czech Republic in Article 1 as, inter alia, a democratic state based on respect for the rights and freedoms of man and citizen, and it is not in accordance with the Charter, which includes the right to own property among fundamental human rights and freedoms and provides in Article 2 that the State is based on democratic values. The further construction of a democratic state on the threshold of its development necessarily also implies the existence of an economic basis of democracy, i.e. in Czech conditions the completion of economic reform, including the transformation and privatisation of agriculture, including the restitution of illegally withdrawn property. It is therefore up to the Constitutional Court to protect this process in the framework of the protection of constitutionality (Article 83 of the Constitution). The completion of economic reform (including in agriculture) is one of the guarantees to prevent a potential reversal of a emerging democratic society back to a paternalist system, and thus a totalitarian state, based on a collective understanding of the economy. From this point of view it is therefore necessary to approach the law as a whole.
In the case under consideration, the fact that neither Act No. 229 / 1991 Coll., on the treatment of property relations with land and other agricultural assets, nor Act No. 42 / 1992 Coll., on the treatment of property relationships and the settlement of property rights in cooperatives, is liable to the persons to whom legal obligations are imposed if such obligations have actually been infringed by them. For both laws, legal persons are the addressee of legal obligations. In view of the frequency of cases of non-compliance with the legal time limits and the explicit refusal to comply with a number of legitimate claims at all, the intention was therefore fully justified to fill the penalty gap in the applicable legislation. Indeed, the clear initial notion of the legislator that imposing explicit sanctions is superfluous has not been fulfilled, and that the obliged entities will voluntarily comply with those provisions of the above-mentioned laws which impose timely and proven claims to deal with the agreement and only the cases of clearly questionable and doubtful leave to the judgment of the court. The contested law thus compensates to some extent the de facto unequal status of authorised and compulsory persons, since the absence of sanctions has given rise to a significant advantage to obliged persons, for whom the conduct of unnecessary litigation and the consequent obligation to compensate for the costs of legal proceedings have been negligible.
The application itself alleges infringement of Articles 3 (3), 26 (3), 4 (3) and 26 (1) of the Charter. It is true that, specifically for these articles (with the exception of Article 26), there are no other explicit provisions which would restrict their application (cf. Article 17 (4) of the Charter). However, those provisions of the Charter should be interpreted throughout the context of the protection of fundamental human rights and freedoms. In the practice of constitutional courts, there is often a need to address the real or apparent contradiction of two constitutional rights of protected interests, the often interest of the entity affected by State intervention and the interest of the State in exercising the powers necessary in a democratic society, for example in the interests of national security, the economic well-being of the country, property, the protection of the rights and freedoms of others and so on. The Convention on the Protection of Human Rights and Fundamental Freedoms and the Practice of the European Court of Human Rights and a number of national constitutional courts is built on these ideas. It is therefore always necessary to compare the allegedly violated provision on the protection of fundamental human rights and freedoms (whether protected by the Charter or by an international treaty pursuant to Article 10 of the Constitution) with other constitutional standards protecting the interest of the other Party or of third parties, to consider whether there has even been a restriction on fundamental rights and freedoms and, if so, whether it has occurred to the extent permitted by the constitutional provisions. From these points of view, the contested law must then also be assessed.
In examining the constitutionality of this law, it is also necessary to assess whether it is a public law standard or a private law standard. This is important given the different legal status of the entity concerned in public and private relations. From this point of view too, it is necessary to evaluate the criteria of the constitutionality of the law at all.
As far as the contested law is concerned, it must be based in particular on the following:
(a) The law is of a constitutional nature as it establishes a new liability legal relationship.
(b) This legal relationship serves the protection of the public interest. While this does not in itself make the legislation a public norm, it is important for the overall view of the norm. In this respect, it is not a fault that the law also protects the private interests of citizens - the restituents.
(c) There is an inequality of the bodies in the public relations. This is also the case with the contested law, according to which a public authority imposes a fine or obligation to deposit bail and the natural person referred to in the law bears under threat a subjective responsibility for the breach of obligations governed by the law.
For these reasons, it is therefore clear that the contested law is a standard of public law. The Constitutional Court therefore approaches it as such in assessing its constitutionality.
On its own motion to repeal the law individually
On point 1 of the proposal:
It cannot be concluded from the contested law and from the content of the proposal that the law is detrimental to someone's rights for the application of his fundamental rights and freedoms (Article 3 (3) of the Charter), as the appellant contends. If there is a breach of the law within the meaning of Article 2 (2) of the Act of the Czech National Council No. 39 / 1993 Coll., then it is not about the application of the fundamental rights and freedoms of the disabled person, but rather about the denial of the rights of the beneficiaries by impeding the restitution process. It is also not a breach of the fundamental right to obtain funds for the purposes of its living needs by works pursuant to Article 26 (3) of the Charter. This right must not constitute a denial of the fundamental rights of other persons protected by the Charter, in the case at hand of persons entitled to claim repayment of illegally withdrawn agricultural property. Article 26 (3) The Charter is not applicable in the context of Paragraph 2 of the contested law and its meaning is undoubtedly quite different from that of the appellant. This can also be inferred from the second sentence of paragraph 3 of this Article, where it is stated that citizens who (i.e., obtain funds for their living needs by working) cannot carry out this right without their fault, the State provides the right to a reasonable extent. Therefore, the right to obtain funds for its living needs is just one of the important economic and social rights enshrined in the Charter, but which does not, however, affect the provisions of Paragraph 2 (1) of the Act and does not deny that right to natural persons who are legally responsible.
The appellant is also mistaken if it considers that the provisions of Paragraph 2 (1) of the contested law also concern citizens who represent obliged persons on the basis of power of attorney. Such an interpretation would be unacceptable. That provision affects, in particular, individuals in statutory functions for legal persons, although it cannot be ruled out - if it were an employment relationship - neither the responsibility of other employees of the organisation who are authorised as bodies of the organisation to act on behalf of the organisation as a legal act resulting from their functions provided for by the rules of organisation (Section 9 (1) of the Labour Code).
The Constitutional Court does not consider the appellant's view that both the employer (represented) and the employee (representative) may be in good faith when issuing orders. With regard to subjective aspects, the law is designed on the principle of responsibility for fault, even negligence is sufficient (§ 2 (1) last sentence of the law). This legal protection of a potentially responsible natural person is fully sufficient and corresponds to democratic legal principles. Accordingly, the argument that the law should have been based on the principle of intentional fault cannot be accepted if the person responsible is a natural person.
There is another reason of a fundamental nature for this opinion. Paragraph 2 (1), 2 of the Act introduces a new administrative offence in our legal order, the perpetrator of which can only be the natural person mentioned in that regulation. This administrative offence is not an offence within the meaning of the Czech National Council Act on Infringements No. 200 / 1990 Coll. Pursuant to Article 2 (1) of the Act, the offence is a guilty act which violates or threatens the interest of the company and is expressly referred to as an offence in that or other law, unless it is another administrative offence punishable by specific legislation or criminal offence. The conditions of this provision are not fully fulfilled in the present case, since the offence within the meaning of Paragraph 2 (1), 2 of the contested law is not expressly referred to as an offence in the law. This is an offence punishable by a special standard, which is the law of the Czech National Council No. 39 / 1993 Coll. However, the other features of an administrative offence are identical to those of an offence, since in both cases it is a guilty act which violates or threatens the interest of society and is not a criminal offence. Therefore, if Article 3 of the Act on Infringements states that negligence is sufficient to be responsible for the offence, unless the law expressly states that intentional wrongdoing is necessary, there is no reason not to apply that principle to administrative misconduct. This is also the case with the construction of liability for fault in the contested law. (As a rule in administrative law in general, in contrast to criminal law, negligence is sufficient.)
The contested law and the content of the proposal do not indicate the appellant's view that the law is prejudicial to someone's rights for the exercise of his fundamental rights and freedoms, provided that he "transfers" responsibility from obliged persons to physical persons (Article 3 (3) of the Charter, Article 2 (1) of the Law). It is difficult to accept that the law imposes sanctions on such persons for legal gainful conduct in the interests of obliged persons (or legal persons within the meaning of Paragraph 2 (1) of the Act). In fact, if there is an infringement pursuant to § 2 (1), (2) of the Act, it is a natural person who acts as a obliged person or should have acted and who, by its action, infringed the provisions of Act No. 229 / 1991 Coll. and other laws referred to in § 1 of the Czech National Council Act No. 39 / 1993 Coll. The conduct of responsible natural persons pursuant to § 2 (1), (2) of the Act infringes the fundamental rights of authorised persons protected by the Charter (in particular the right of ownership within the meaning of Article 11 of the Charter), such conduct must be guilty and the penalty imposed is therefore not a penalty for the legal professional conduct of such persons. The element of legality in these cases is missing for the reasons given.
For the same reasons, it is not appropriate to resort to the argument that acting natural persons should only be liable for damages caused by the intentional damage to the rights represented, that the persons represented should be responsible for their conduct and that they should therefore be treated in accordance with the general rules, namely the Labour Code, the Civil Code and the Commercial Code. First of all, it must be noted that the general liability of the worker towards the organisation is recognised by the intentional and negligent fault (§ 172 et seq. of the Labour Code). According to Section 420 (2) of the Civil Code, damage is caused by a legal or natural person when it was caused by those who used it in their activities. These persons themselves are not liable for damage caused under this law; their liability under labour law is not affected. According to the Constitutional Court, however, it is hardly possible to mechanically import the unconstitutionality of the contested law from these provisions, since it guarantees a stronger interest in protecting the constitutional rights of beneficiaries to mitigate the injustices suffered during the totalitarian regime, while at the same time guaranteeing the social interest of further rapid privatisation and transformation of agriculture. These elements fully justify a different procedure from those laid down in the general rules. After all, the Constitutional Court does not know a constitutional law or an international treaty within the meaning of Article 10 of the Constitution which prohibits the imposition of a personal fine on a natural person who, while acting as a person, has acted as another person but has itself caused infringement of the law by his own actions. This is certainly true of the contested law, according to which the statutory bodies of the organisation, or members of the collective statutory bodies (cf. Section 20 (1) of the Civil Code) will normally act as the responsible (natural) persons, who generally also have a wide functional responsibility for the managed organisation and the increased risk associated with it is balanced by higher financial evaluation. However, the liability of these persons is not designed by the contested law as a functional (objective) liability, but as a subjective responsibility for guilty conduct, even in the form of negligence.
After all, the existence of a personal financial penalty on individuals who have committed a breach of law while acting as another person is not new and exceptional in our legal order. A similar legal structure is enshrined in the provision of Section 6 of the Act on Infringements, according to which the infringement of an obligation imposed on a legal person under that law is the responsibility of the person who acted or should have acted for the legal person and, if the action is on order, the person who gave the order for the action. The provisions of § 6 (2) of Act No. 174 / 1968 Coll., on State expert supervision of safety of work, § 9 (1) of the Act of the Czech National Council No. 64 / 1986 Coll., on Czech Trade Inspection, § 17 (2) of Act No. 28 / 1984 Coll., on State supervision of nuclear safety of nuclear installations, and § 10 (3) of Act No. 88 / 1987 Coll., on State Energy Inspection. In all these cases, the competent State authority shall be entitled to impose financial penalties on the worker of the audited organisation for the alleged breach of the obligations referred to in which law. Therefore, even from a comparative point of view, there is no reason to prevent the exercise of the personal material liability of natural persons as the contested law prescribes it.
These conclusions are also indicative of experience in administrative and judicial practice, which shows the frequency of infringements of Act No. 229 / 1991 Coll. and other laws (the infringement of which is subject to fines under the contested law) on the one hand, and the frequency of penalties imposed (fines) on the other.
In fact, it was established that 2966 complaints by citizens within the meaning of Article 2 (2) of the Act were registered with the Ministry of Agriculture on 22 October 1993 and 241 fines were imposed pursuant to Article 2 (3) of the Act. The courts decided or discussed on 30 September 1993 under the same Law 8570; Although these are mostly so-called other disputes, they are also subject to the scheme of Paragraph 2 (2) of the contested law, since its list is demonstrative. In principle, it can therefore be concluded that only registered cases of complaints and actions in connection with the infringement of Act No. 229 / 1991 Coll. (the respect of which is protected by the contested law) is more than 10 000 (about 11-12,000 cases), while fines were imposed on individuals over 200, i.e. quantities on a national scale. However, it goes without saying that these data are only informative and documentaries and absolutely cannot deny the obligation of the competent authorities to decide on the individual liability of a natural person only on the basis of a proper examination of a particular case, only if the responsible person has caused the breach of protected laws.
Concerning paragraph 2 of the proposal:
The appellant further contends that Article 4 (3) The Charter, pointing out that the law only affects a certain number of entities and ignores other entities which can also commit an infringement within the meaning of Article 2 (2) of the Act (land registration authorities, land authorities, Land Fund), thus creating an unequal position for those entities before the law.
In general, the contested law is intended to protect the process of agricultural transformation and, within it, the process of correcting the injustices committed on citizens who were deprived of agricultural property during the totalitarian regime. The law therefore regulates the typical negotiations which prevent this process. It is precisely the conduct of natural persons as standardised in the provisions of § 2 (1), (2) of the Act that can be classified among these typical negotiations. The fact that these negotiations are of a typical nature is also evidenced by the quoted report of the Ministry of Agriculture, according to which 2966 complaints were made by citizens within the meaning of Article 2 (2) of the Act, but only 129 complaints concerning Act No. 229 / 1991 Coll. were directed against land offices, the Land Fund and the property registration authorities. Complaints against these authorities therefore account for only about 4.16% of the total number of complaints registered.
Notwithstanding this, however, the potential infringements of the land authorities and others in the draft institutions are reflected in the legal order. As regards the land authorities, it follows from the provisions of § 9 (2), (3) of Law No 229 / 1991 Coll. that the land office is approved by the Land Authority in the form of a decision given in administrative proceedings and its decision not to approve the agreement will be reviewed by the court on the application of the party. Paragraph 49 (1), (2) of Law No 71 / 1967 Coll. provides for a specific time limit for the decision, usually 30 days. There is therefore another legal mechanism which protects citizens' rights in relation to land offices, since compliance with the obligations of these authorities is ensured by rules other than the contested law. It is therefore not an unequal position of the persons responsible within the meaning of Paragraph 2 (1), (2) of the Act, compared with that of the land authorities (and other state bodies in a different place) which the appellant refers to. After all, the Constitutional Court of the CSFR, in its finding of 8 October 1992, sp. zn. Pl. ÚS 22 / 92, has already ruled that modern institutes have, under the term "equality" in mind, equality relative, which only requires the removal of unjustified differences. However, the difference between the position of the persons responsible under the contested law and the position of the land authorities and other authorities is justified; These authorities are state bodies which, in principle, no longer have a personal interest in delaying the process of transformation and privatisation of agriculture and whose activities in that process are provided by other legal means than the contested law.
The comparable situation also exists with regard to the other state bodies referred to by the appellant.
Therefore, neither the Constitutional Court nor this objection by the appellant can attest.
On point 3 of the proposal:
In addition, the Constitutional Court dealt with the alleged contradiction of Article 3 of the contested law with Article 26 (1) of the Charter, according to which everyone has the right to free choice of profession and to prepare for it, as well as the right to engage and pursue other economic activities.
In general, we can say that the sensitive provision introduces another interim measure of sui generis, namely bail, into our legal order (if we ignore the provision of Section 73a of the Penal Code on a monetary guarantee for custody). The persons required to deposit are legal persons (§ 2 (1), § 3 (1), 2 of the contested law). For the assessment of compliance of Article 3 of the Act with constitutional laws and international treaties within the meaning of Article 10 It is necessary to consider whether the relevant provisions on fundamental rights and freedoms concern legal persons at all.
The Charter does not express itself explicitly in this regard. However, a declaration by the former Czech and Slovak Federal Republic in the ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms, which recognises the power of the European Commission for Human Rights to receive complaints from persons, NGOs or groups of persons deemed to be damaged as a result of violations of the rights conferred by the Convention (cf. Communication of the Federal Ministry of Foreign Affairs No 209 / 1992 Coll.). From this, the willingness of the State to provide protection for legal persons with regard to fundamental rights and freedoms can be inferred. In this regard, the provisions of Section 72 (1) of Act No 182 / 1993, Coll., which states that a constitutional complaint is entitled to be lodged by a natural or legal person, may be invoked if it claims that the intervention of a public authority infringes its fundamental right or freedom guaranteed by a constitutional law or an international treaty under Article 10 of the Constitution.
After this conclusion, it is possible to further examine the compliance of Article 3 of the contested law with Article 26 (1) of the Charter.
The appellant contends that the provision of bail to secure the rights of beneficiaries endangers the economic activity of the obliged persons, who are obliged by the Transformation Act to create an asset reserve to satisfy the restitution claims, so that it is in fact another penalty. However, this argument is not appropriate either. First of all, it should be noted that bail serves as a specific means of motivating the obliged person to settle the legitimate rights of the restituents from the point of view of the contested law, since after that settlement, the Land Fund of the Czech Republic will return bail to the debtor. This is the purpose of bail in this case, so it is not a sanction, that is to say, a breach of the rule of law. As regards the so-called reserve to satisfy restitution claims, it follows from the provisions of § 7 (2) (a), (b) of Law No 42 / 1992 Coll. that the net worth of the cooperative is deducted from the amount which will be used to satisfy any other restitution claims, in the case of agricultural cooperatives equal to the amount of claims which may be claimed under the special rules..., in the case of other cooperatives equal to 5% of the net worth. It is clear from this definition (arg. "possible," "may") that cooperatives are a reserve created by an estimate that cannot form a safe provision of individual restituents' claims. It is therefore a provision of a general, preventive nature. By contrast, the contested law regulates bail-out as a specific form of securing the rights of a specific beneficiary, so that it is a legal relationship between the beneficiary, the State and the debtor. It is therefore not a duplicate provision of restitution entitlements for specific, individually designated beneficiaries.
Moreover, it is clear from the classification of the provisions of § 3 (1), (2) of the Act (arg. "may be imposed") that the legislator intended to use the institution of bail only if the rights of the beneficiary could be threatened by the behaviour of the debtor in particular. In this case, however, the competent administrative authority (district office) is obliged to examine whether the entitlement of the beneficiary is duly substantiated (arg.
In this context, it is clear that Article 3 of the contested law does not affect the Charter in any way. This article, as the Constitutional Court has already stated, lays down the right to free choice of profession and preparation for it, as well as the right to undertake and pursue other economic activities. For the above reasons, the Constitutional Court has not concluded that the values protected by this Article would be infringed by Article 3 of the contested law.
For all these reasons, the motion of a group of Members for the annulment of the Act of the Czech National Council No. 39 / 1993 Coll. was rejected as the Constitutional Court, after the procedure, concluded that the grounds for the annulment of the Act were not given (§ 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court).
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 34 / 1994 Coll., on the proposal for the annulment of the Act of the Czech National Council No. 39 / 1993 Coll., on fines and bonds for non-compliance with the laws governing the transformation of agricultural cooperatives and the correction of property injustices in the field of property relations to land and other agricultural property |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.02.1994 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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