The Constitutional Court found No 54 / 2020 Coll.
Findings of the Constitutional Court of 4 February 2020 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
26.02.2020
54
FIND
The Constitutional Court
On behalf of the Republic
On 4 February 2020, the Constitutional Court decided, under point Pl.
as follows:
Paragraph 112 (2) of the First Law No. 250 / 2016 Coll., on liability for and proceedings for offences, shall be deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Application for annulment of a part of the law and the jurisdiction of the contested legal provision
1. The applicant - Municipal Court in Prague (hereinafter referred to as the "Municipal Court") - requests pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as the "Constitution") and § 64 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the "Law on the Constitutional Court") that the Constitutional Court annul § 112 (2) of the First Law No. 250 / 2016 Coll., on Liability for Infringements and Proceedings on them (hereinafter referred to as the "Act on Liability for Infringsments."). The contested provision is included in Part Four of the Law entitled Common, Transitional and Final Provisions and contains a transitional provision of the following wording: "The provisions of the existing laws on time limits for dealing with an offence or other administrative offence, time limits for imposing a fine for an offence or other administrative offence and time limits for the cessation of liability for an offence or other administrative offence shall not apply from the date of entry into force of this Act. '
2. In the proposal, the municipal court stated that the proceedings against the decision of the Ministry of Transport which rejected the appeal and confirmed the decision of the Municipality of the City of Prague on the infringement pursuant to § 125c (1) (d) and (k) of Act No. 361 / 2000 Coll., on road traffic and on amendments to certain laws (Road Traffic Act), as amended. It was a misdemeanor that the driver of a passenger car crashed into another car while reversing, and after a brief meeting with the accident participants from the scene of the accident he went to the residence of the car owner, where he refused to undergo a breath test on alcohol at the request of the police patrol, and subsequently refused to draw blood and urine at the hospital where he was escorted by patrol. A fine of CZK 25,000 was imposed for the offence and a ban on driving for 12 months. The offence was committed on 24.2.2016, i.e. before the Act on Liability for Infringements became effective on 1.7.2017. If the termination of liability for the offence would be assessed in accordance with Section 20 of Act No. 200 / 1990 Coll., on misconduct, in a version effective until 30 June 2017 ("the Act on Infringements'), the termination of liability for the offence on 24 February 2018 would take place two years after the offence was committed (Section 20 (3) of the Infringement Act). This would result in the cessation of liability for the offence before the decision on the offence became legal. On the contrary, if the termination of liability for an offence under the Liability of Infringements Act were to be assessed, the decision of the offence would have gained legal power before the cessation of liability for an offence, which would have taken place at the earliest on 3 May 2018. The one-year limitation period would be interrupted twice and would start running from the outset, first by announcing the initiation of the infringement proceedings on 25 May 2016 and subsequently on 3 May 2017, when the decision by which the accused was found guilty was given. The end of the three-year limitation period under Section 32 (3) of the Act on Liability for Infringements would fall until 24 February 2019. In short, according to the Act on Infringements, liability for the offence expired no later than 2 years after his commission, according to the Act on Liability for Infringements ceased no later than 3 years after his commission. This time differential has also produced another result when assessing the limitation of liability for an offence under those laws.
3. The Act on Infringements, valid until 30 June 2017 and the Act on Liability for Infringements effective from 1 July 2017, give a different answer to the question whether, in the case under review by the Municipal Court, the judgment on the Infringement gained legal power before the cessation of liability for misconduct or until it. Under Paragraph 112 (2) of the First Act on Liability for Infringements (provision which the Municipal Court proposes to abolish), a law which is less favourable to the accused in the case at hand, i.e. the Act on Liability for Infringements, according to which a judgment on an offence would have acquired legal power before the cessation of liability for the offence.
4. The municipal court considers the provision of Paragraph 112 (2) of the First Law on Liability for Infringements to be contradictory to Article 40 (6) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), according to which the offence is assessed by law effective at the time the offence was committed and according to which the later Act will be used if it is more favourable to the perpetrator. Penalties for administrative offences and offences shall be subject to the same regime as those for criminal offences and also to punishments for offences covered by Article 40 (6) of the Charter. The limitation of liability for an offence (as well as the limitation of criminal liability) is an institution of substantive law, not procedural law. The Municipal Court sees the purpose of Article 40 (6) of the Charter in ensuring that the conditions of criminality (including limitation) are known to the perpetrator at the time of the infringement and cannot be further tightened. The result referred to in Article 40 (6) However, Article 112 (2) of the First Act on Liability for Infringements in a case to which the City Court assesses is directed. The provision is so clear that it cannot be interpreted in a constitutional consistent manner.
5. The Municipal Court referred to Act No. 204 / 2015 Coll., which amended, with effect from 1 October 2015, Section 20 of the Act on Infringements by extending the one-year deadline for the cessation of liability for offences. According to the transitional provisions to Act No. 204 / 2015 Coll. the new regulation was to be applied only to offences committed after the effectiveness of the Act. According to the municipal court, it is a constitutional regime and it is not clear why the legislator decided to proceed the reverse of the law on liability for offences, i.e. to introduce a later and less favourable regulation of the cessation of liability for offences and of offences committed before the law on liability for offences is effective.
6. According to the municipal court, the contested legal provision cannot stand even in the proportionality test. The interest in punishing offenders could also be achieved in less invasive ways, for example by concentrating more workers on the authorities dealing with offenses. Moreover, the requirement of legal certainty cannot be outweighed by the interest in punishing offenders.
7. Furthermore, the City Court ruled against the finding of the Constitutional Court of 21.12.1993 sp. zn. Pl. ÚS 19 / 93 (N 1 / 1 SbNU 1; 14 / 1994 Coll.; the decision of the Constitutional Court is available from http: / / nalus.ujud.cz), according to which the provisions on the limitation of criminal liability and limitation periods, in particular the provisions on which the act may be prosecuted, cannot be understood as the subject matter of the regulation of Article 40 (6) of the Charter. The municipal court pointed out that both the case law and the legal theory agree that the limitation of criminal liability (as well as the limitation of liability for offence) is an institution of substantive law and not a procedural one. The finding of sp. zn. Pl. ÚS 19 / 93, which was devoted to the constitutionality of § 5 of Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime ("the Act on the illegality of the Communist regime '), must be seen as an attempt to express a degree of discontinuity with the regime" Communist totalitarian dictatorship'. According to the municipal court, it is impossible to equate the adoption of a retroactive limitation period for certain offences (Section 5 of the Act on the illegality of the Communist regime) and the legislature's attempt to adopt a new comprehensive regulation of administrative punishment in 2017.
Observations of the parties and the intervener
8. The Constitutional Court, pursuant to Article 69 of the Law on the Constitutional Court, sent a proposal to the Senate of Parliament (hereinafter referred to as "the Senate ') and to the Chamber of Deputies of Parliament (hereinafter referred to as" the Chamber of Deputies') as parties to the proceedings, to the Government and to the Ombudsman as authorised to intervene as interveners.
9. In its observations, the Chamber of Deputies stated that the Government submitted a draft law on liability for offences on 16 July 2015. On the same day, the proposal was circulated to Members as the House Press No. 555 / 0. The first reading of the law took place on 16 December 2015 and the proposal was ordered to the constitutional legal committee as the guarantee committee and the public administration and regional development committee as the next committee. The Constitutional Legal Committee recommended adopting the draft law as amended by it and recommended adopting the draft law. The second reading of the draft law took place on 12 April 2016 and several amendments were tabled in a detailed debate, but they did not concern the contested provision. The third reading of the draft law took place on 6 May 2016 and the draft law was approved by a majority of 121 Members out of 157 present as amended.
10. The Senate stated in its observations that the Chamber of Deputies passed on 19 May 2016 a draft law on liability for offences. The proposal saw positively as modern legislation. The Senate's examination of the bill on liability for offences did not explicitly affect the deadlines for the termination of liability for offences. The Senate has returned the bill on liability for infractions to the Chamber of Deputies with amendments. It did so on 15 June 2016 within the 30-day period provided for in Article 46 (1) of the Constitution. 45 senators out of 62 have voted in favour of returning the bill to the Chamber of Deputies.
11. The Chamber of Deputies also stated in its observations that it voted on the Bill as amended by the Senate on 12 July 2016 and adopted the Bill. The President received the proposal signed on 27 July 2016. After signature by the relevant constitutional authorities, the Act was sent on 28 July 2016 for publication in the Collection of Laws, which was published on 3 August 2016 under No 250 / 2016 Coll.
12. The Government agreed in its observations with the view of the Municipal Court that Article 40 (6) of the Charter does not only apply to criminal proceedings, but also to administrative infringement proceedings. In its view, however, Article 40 (6) of the Charter does not prevent the law from providing that, at the time of the limitation period (i.e. at a time when liability for the offence has not yet expired) the limitation period still running is extended. Unlike the City Court, the Government considers that, when assessing the constitutionality of the contested provision, it is necessary to base itself on the finding, sp. zn. Pl. ÚS 19 / 93, according to which Article 40 (6) of the Charter deals with the offences that can be prosecuted (those which were defined by law at the time when the offence was committed) and does not address the question of how long it can be prosecuted. Although that finding addressed the specific situation of the criminal liability assessment at the time of the transition from the "communist totalitarian dictatorship 'regime to the democratic rule of law. This alone cannot, according to the Government, be a reason for the Constitutional Court to extend the subject matter of Article 40 (6) of the Charter to the issue of limitation periods when examining the now contested provision. The conclusions in the finding cannot be questioned by reference to one of the support arguments put forward before the Constitutional Court, namely that the limitation of criminal liability falls within the scope of the procedural assumptions of criminal maneuverability. The Government agrees with the City Court that, in case-law and in the case-law of the professional public, the adoption of a statute of limitations on criminal liability as a substantive institute prevails. The Act on Liability for Infringements also makes provision for limitation in the substantive provisions of the law. However, the perception of a statute of limitations on criminal liability or liability as an institution of substantive law does not lead to the conclusion that the statute of limitations should fall under Article 40 (6) of the Charter.
13. Article 40 (6) According to the government, it is to prevent the accused from being punished for acts that were not punishable at the time he committed them. The contested legal provision does not conflict with Article 40 (6) of the Charter because it does not declare a criminal offence which was not criminal at the time the offence was committed. Nor is it contrary to the requirement of predictability of law and legal certainty. At the time of the crime, the perpetrator could have predicted to be punished for his actions. At the time when the legislation was amended, it was foreseeable that its liability for the offence would continue and expire only with the end of the limitation period. The government believes that the perpetrator cannot rely on his actions to be silenced in the future. The legislation foresees the institutions as the interruption and termination of the limitation periods. It is therefore not a simple passage of time with which to calculate in any way. Thus, the perpetrator of the offence will be assured of the limitation period only if that period actually expires and the liability for the offence ceases for that reason.
14. The Government also referred in its observations to the case law of the Supreme Court and the Supreme Administrative Court. It also took a proportionality test, which was also mentioned by the municipal court in its proposal. According to the Government, the City Court misidentified the objective of the contested provision in the proportionality test. It is not primarily an interest in punishing offenders, but a balance of legal certainty, equality and public interest. Pending the adoption of the Act on Liability for Infringements, the regulation of administrative punishment was fragmented and inconsistent, in particular the regulation of time limits for the cessation of liability for administrative offences or offences, including the rules on their calculation. The new legislation is intended to strengthen legal certainty and to eliminate the unjustified differences between the regulation of offences and existing administrative offences. The objective thus defined could not be achieved by other legislative means than the contested scheme. It is an adjustment that meets the proportionality criterion. According to the Government, the requirement of legal certainty of the perpetrators regarding a period within which they can be finally punished at the latest does not outweigh the interest in harmonising the rules on infringements and establishing uniform rules respecting the principle of equality.
15. The Ombudsman stated that she would not exercise her right to intervene.
Abandonment of oral proceedings
16. The Constitutional Court concluded that further clarification of the case cannot be expected from oral proceedings and therefore, in accordance with Article 44 of the Law on the Constitutional Court, it decided on the case without its regulation.
Procedural assumptions of the annulment procedure
17. Pursuant to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. The General Court is entitled to make a proposal when proposing the repeal of the law or of its individual provision, the application of which is to be immediate or necessary, is not sufficient only for hypothetical use or other broader context [Order of the Constitutional Court of 23.10.2000 sp. zn. It follows from the purpose and purpose of the specific control of the constitutionality of legal standards that the law (or its provision) to be used in the resolution of the case is only one which obstructs the achievement of a desirable, i.e. a constitutional, consensus result; If not removed, the outcome of the present proceedings would be different [finding of 6.3.2007 sp. zn.
18. The Constitutional Court finds that the City Court is testifying to the active procedural legitimacy of the application for annulment of Paragraph 112 (2) of the First Act on Liability for Infringements. The contested legal provision is to be used in proceedings before a municipal court. As the Constitutional Court has verified, in an action to be decided by the Municipal Court, the plaintiff argued that his responsibility for the offence had been terminated before he was finally punished for it. In this way, the municipal court will examine in the proceedings the question of the disappearance of liability for the offence, to which it is necessary to apply a transitional provision in the contested § 112 (2) sentence of the first law on liability for offences.
19. It should be noted that the contested legal provision deals, from a language standpoint, with three time limits or provisions of existing rules on the following time limits: the first time limit for dealing with an offence or other administrative offence, the second time limit for imposing a fine for an offence or another administrative offence, and the third time limit for the cessation of liability for an offence or other administrative offence. If Article 112 (2) of the First Act on Liability for Infringements contained a transitional provision to three of its different deadlines, it would be necessary to examine whether the municipal court should use each of them in its proceedings. It is only in this way that it would be actively procedural to abolish the first sentence in Section 112 (2) of the Liability Act. However, the Constitutional Court found that such an examination was not appropriate, since the first sentence of Paragraph 112 (2) of the First Act on Liability for Infringements does not deal with three of its different timelimits, but with a single time limit, albeit in triplicate.
20. The purpose of the Act on Liability for Infringements is to ensure a uniform and comprehensive regulation of the basis of the administrative liability of natural, legal and business natural persons supplementing their criminal liability, together with the law on specific procedures for the exercise of administrative liability (see page 73 of the explanatory memorandum to the Act on Liability for Infringements in House Press No. 555 / 0; available from https: / / www.ppp.cz). Pending the adoption of the Act on Liability for Infringements, the regulation of administrative punishment was characterised by fragmentation and inconsistency (even in terms of legal terminology). This is also demonstrated by the fact that the legal institute, consisting of the abolition of liability for offences or other administrative offences by the expiry of a legally defined period of time, was marked differently in the various laws, although the substance and consequences were the same. In the legal order, it was possible to meet the time limit for dealing with an infringement [e.g. § 57 (4) of Act No. 256 / 2013 Coll., on the Land Register (cadastral law), as amended by 30.6.2017], with the time limit for imposing a fine [e.g. § 8 (3) of Act No. 102 / 2001 Coll., on general product safety and on the modification of certain laws (Act on General Product Safety), as amended by 30.6.2017], or with the time limit for the cessation of liability for infringements [e.g. § 30 (7) of Act No. 99 / 2004 Coll., on the exercise of fishing law, the conservation of fishery resources and the amendment of certain laws (Act on fishing), as amended by 30.6.2017]. The fact that the nature of these otherwise marked time limits has always been the same is evidenced, for example, by a combination of those terms in Section 20 of the Act on Infringements, where the heading "the loss of liability for an offence 'stated that the offence could not be dealt with if one year had elapsed since it was committed; or in Section 192 (4) of the Act No. 256 / 2004 Coll., on business in the capital market, as amended by 30 June 2017, where the consequence of the loss of liability of a legal person for administrative misconduct and the impossibility of dealing with an infringement of a natural person was linked with the expiry of the time limits.
21. The reason for which three time limits are mentioned in the language statement in the first sentence of Paragraph 112 (2) of the First Act on Liability for Infringements (paragraph 19) is that the Constitutional Court sees that the law has responded to the conceptual inconsistency of the existing legislation on administrative punishment. However, it is always one legal institute, albeit differently referred to, consisting of the abolition of liability for offences or other administrative offences by the end of a legally defined period of time. For this reason, in view of the active procedural legitimacy of the City Court to file an application for annulment of Paragraph 112 (2) of the First Act on Liability for Infringements, it is not decisive which of the several variants of the same designation arose in the proceedings before the Municipal Court, which resulted in the application for annulment of the Law.
Constitutional conformity of the legislative process
22. The Constitutional Court has dealt with the course of the legislative process and found that the data provided in the statements of the Chamber of Deputies and the Senate (paragraph 9 et seq.) correspond to the facts, and this finding is sufficient to conclude that the law which forms part of the contested provision was adopted in a constitutional manner.
Substantial assessment of the proposal
23. Article 40 (6) The acts of the offence shall be assessed and the sentence shall be imposed in accordance with the law effective at the time the offence was committed. The later law applies if it is more favourable to the perpetrators.
24. The Constitutional Court has already concluded that Article 40 (6) of the Charter also affects administrative punishment, see the findings of 13.6.2002 sp. zn. III. ÚS 611 / 01 (N 75 / 26 SbNU 253); of 11.7.2007 sp. zn. II. ÚS 192 / 05 (N 110 / 46 SbNU 11). The Supreme Administrative Court of 27 October 2004, No 6 A 126 / 2002-27 (No 461 / 2005 Coll. NSS; the decisions of the Supreme Administrative Court are available from http: / / www.nsjus.cz).
25. In order to assess the proposal, it is necessary to examine the interpretation of the term "criminal" in Article 40 (6) of the First Charter and to assess whether the institute of the cessation of liability for the offence falls within the scope of the expiry of the limitation period in the regulation of administrative punishment.
26. On the interpretation of the concept of "criminal offence 'in the first sentence of Article 40 (6) of the First Charter, the Constitutional Court expressed its views in the abovementioned finding, sp. zn. Pl. ÚS 19 / 93, by which it rejected the proposal to abolish the law on the illegality of the Communist regime, which, in § 5, provided that the limitation period for criminal offences did not include the period from 25.2.1948 to 29.12.1989, unless, for political reasons incompatible with the fundamental principles of the rule of law of a democratic state, there was a final conviction or acquittal.
27. This finding stated: "The criminal offence is, according to Czech criminal law practice, the possibility of being prosecuted, convicted and punished for the crime. The basis of criminal liability is a crime which is defined by a precise description of its characters and also by the so-called material character, namely the danger of an offence to society. It is a statement of principle:" nullum crimen sine kulpa ', respectively... Article 40 (6) The Charter thus clearly does not allow the retroactivity of the law as regards the definition of criminal offences and the amount of punishment. The Charter of Fundamental Rights and Freedoms is not a standard of criminal law, but excludes from various legal areas certain principles which it considers to be fundamental and therefore worthy of increased legal protection. Therefore, in Article 40 (6), he has no more in mind than what he says, namely that the definition of individual offences and their criminal offences, which is carried out under criminal law by identifying the characteristics and degree of social danger of individual acts, cannot, ex post, be subsequently changed to the detriment of the offender. The same requirement is also made for the definition and determination of the amount of the sentence. Only to that effect and to that extent does the second paragraph 6 of the Charter define the prohibition of retroactivity of the law (cf. Text: the later Act applies...). The question of procedural assumptions of criminal maneuverability at all, and even more so the question of limitation, is not in the area of fundamental rights and freedoms of a fundamental nature in the Czech Republic or in other democratic states, which, according to Article 3 of the Constitution, are part of the constitutional order or constitutional order of the Czech Republic, thereby replacing the usual chapter of the Constitution on fundamental rights and freedoms in other constitutions. The argument that limitation is an institution of substantive criminal law is not relevant to the assessment of the matter, not only because it is a permanent subject of a criminal law dogma dispute, and in some other democratic states it is understood primarily as a procedural institution, but mainly because the Constitution and the Charter of Fundamental Rights (and not other) do not address detailed issues of criminal law, but lays down undisputed and fundamental constitutional principles of the state and law at all. The Charter of Fundamental Rights and Freedoms in Article 40 (6) deals with which offences can be prosecuted in principle (namely those defined by law at the time the offence was committed) and does not regulate the question of how long those offences can be prosecuted. Consequently, the provisions on limitation periods and limitation periods, in particular those on which the offence declared criminal may be prosecuted, cannot be seen as the subject matter of the adaptation of Article 40 (6) of the Charter.' This view was followed by the plenary of the Constitutional Court and in the order of 10.1.2006 sp. zn.
28. The Constitutional Court notes that the Institute of Limitation of Criminal Liability [now amended in Sections 34 and 35 of Act No. 40 / 2009 Coll., the Penal Code, as amended, ("the Penal Code '); prior to the statute of limitations on criminal prosecution, the Act No. 140 / 1961 Coll., as amended, (hereinafter referred to as the" Criminal Act') is amended in accordance with Articles 40 (6) of the First Charter, as well as the Institute for the Termination of Liability for Infringement (formerly an offence and other administrative offence) by the expiry of the limitation period (Section 20 of the Act on Infringements) or the limitation period (Sections 29 to 32 of the Act on Infringement). It is, by its nature, similar institutions, one of the areas of judicial punishment, the other of administrative punishment, between which there is no reason to make a difference for the purposes of Article 40 (6) of the first Charter.
29. For this reason, the above-mentioned conclusions of the finding, sp. zn. The substance of the argument put forward by the Constitutional Court in this finding was that, in the period defined in the Law on the illegality of the Communist regime, there was no serious will of the state authorities to prosecute certain offences committed by persons related to the regime at the time. Paragraph 5 of the Act on the illegality of the Communist regime must therefore be seen as an optics for the transition from the pre-November regime to a democratic and legal state, the fundamental feature of which was the attempt to deal with the negative consequences of the pre-November regime in all areas of social life (value - property, political, legal, etc.). It is in this highly socially sensitive and specific context that it is necessary to perceive the finding of the PSC 19 / 93, since Article 5 of the Act on the illegality of the Communist regime was a purely expression of the rule of law, which does not seek to regulate the conditions of criminal liability in general or specifically the issue of limitation, but also to give justice to those to whom it did not reach in the preNovember regime.
30. The legal conclusion of the finding, sp. zn. Pl. ÚS 19 / 93, that, therefore, the limitation period in relation to the offences referred to in § 5 of the Act on the illegality of the Communist regime did not begin to run if, for ideological reasons, the State at that time did not have a serious desire to prosecute them, was thus one-off and exhausted in relation to those offences.
31. The Constitutional Court therefore did not find that it was necessary to overcome the above-mentioned view (paragraph 27) that Article 40 (6) of the First Charter did not fall within the scope of Article 40 (6) of the First Charter on the limitation of criminal liability (point Pl.
General prohibition of retrospective negative and Article 40 (6) of the Charter
32. Article 40 (6) The Charter is the regulation of the time aspects of the law on punishment. The purpose of the sentence of the first provision (according to which the criminal offence is assessed and the punishment imposed under the law effective at the time the offence was committed) is to protect the defendant from being affected by a tightening of the criminal law and the imposition of a sentence that occurred only after the offence was committed. The first sentence thus protects the accused against being punished for an act that was not criminal at all at the time he was committed. However, this does not exhaust the normative scope of the first sentence of Article 40 (6) of the Charter, as it also protects the accused from having to apply a later more stringent regulation to him, which only after the act was committed has further strengthened the definition of the criminal offence which was criminal even at the time of his commission. The second sentence of Article 40 (6) of the Charter (according to which the later law will apply if this is more favourable to the perpetrator) ensures, on the contrary, that it will also benefit from the future mitigation of the criminal offence.
33. Finally, Article 40 (6) The Charter guarantees the defendant that, when assessing the crime, there will never be more stringent legislation on him than there was when he was committed. Article 40 (6) The Charter thus provides for a prohibition of retroactivity against the accused in the assessment of the crime and the imposition of the sentence, thereby ensuring legal certainty in these areas (sentence one), and includes an order for retroactive action of a later law, if this is more favourable to the perpetrators (sentence two).
34. In addition to the special prohibition of retroactivity in Article 40 (6) of the First Charter, which applies to the area of judicial and administrative punishment, a general prohibition of retroactivity of the law is laid down in the rules of the constitutional order, which results from Article 1 (1) of the Constitution, according to which the Czech Republic is a legal State based on respect for the rights and freedoms of man and citizen [finding of 8.6.1995 sp. zn. IV. ÚS 215 / 94 (N 30 / 3 SbNU 227); the finding of 12.11.2013 sp. ÚS 22 / 13 (N 185 / 71 SbNU 221; 22 / 2014 Sb.), paragraph 23]. In view of the appreciable effects of judicial and, consequently, administrative punishment in the individual sphere, Article 40 (6) of the Charter expressly (and as lex specialis for judicial and administrative punishment) provides for a ban on retroactivity to the detriment of the perpetrators, and, on the contrary, an order for retroactive action of a later law, if this is more favourable to the perpetrators.
35. In relation to the general prohibition of retroactivity to the detriment of the law, which can be derived from Article 1 (1) of the Constitution, the term retroactivity refers to the so-called "real retroactivity" and "false retroactivity" (more precisely "retrospective").
36. The real retroactivity involves two situations: 1. the state where the new regulation gives rise to new legal relations before its effectiveness under the conditions which it has subsequently laid down; and 2. the situation where the new legislation changes legal relations under the old regulation before the new regulation [cf. PACHÝ, L. The temporal scope of the amendment to the Civil Code, Lawyer, No 12, 1984, p. 1104 et seq., cited in the decision of 4.2. 1997 sp. zn. Pl. ÚS 21 / 96 (N 13 / 7 SbNU 87; 63 / 1997 Coll.)]. True retroactivity occurs when human behaviour, or legal facts or legal relationships etc. are assessed in accordance with a later standard, which took place before this legal standard became effective (KNAPP, V. Law theory. Issue 1. Praha: C. H. Beck, 1995, p. 208).
37. The essence of the so-called false retroactivity (i.e. retrospective) is that the validity of legal facts, the creation of legal relationships and their consequences, which occurred before the new law was effective, will be assessed according to the law of the former, but if the previously established legal relationship persists, it will be assessed from the date of the new law's effectiveness, and the legal consequences of the legal relationship in question arising from the effectiveness of the new law (see KNAPP, V. Law theory. Issue 1. Praha: C. H. Beck, 1995, p. 208; similarly BOGUSZAK, J., ČAPEK, J., GERLOCH, A. Law theory. Praha: ASPI, 2003, p. 86). In the case of so-called false retroactivity (retrospective), it is not really about the retroactivity of the law (KNAPP, V. Law theory. Issue 1. Praha: C. H. Beck, 1995, p. 208; GERLOCH, A. Law theory. 3rd edition. Plzeň: Aleš Čenek, 2004, p. 97-99), since it does not change legal relations until the present or future date; The retroactive application of the law would be based on legal effects for the past (HANUŠ, L. Trust in law from the point of view of the inadmissibility of retroactive interpretation of legislation. In: Legal outlooks No 14 / 2005, p. 519- 523).
38. The general prohibition of retroactivity to the detriment applies only to the so-called genuine retroactivity, not to the improper retroactivity (retrospective) [finding of 15.5.2012 sp. zn. Pl. ÚS 17 / 11 (N 102 / 65 SbNU 367; 220 / 2012 Sb.), paragraph 51]. A derogation from the prohibition of genuine retroactivity against the detriment can only exceptionally be made by explicit provisions of the law and only when the legal obligation established for the past was previously felt at least as a moral obligation [finding of 12.3.2002 sp. zn. On the contrary, the so-called false retroactivity (retrospective) is the exception to its registration at constitutional level. The so-called false retroactivity is not possible if it excludes the principle of trust in law. Such a situation is the case where the importance of legislative wishes to the public does not exceed the interest of the individual in the continued existence of existing law [the finding sp. zn. Pl. ÚS 17 / 11, paragraph 53; the finding of 15.9.2015 sp. zn.
39. The so-called false retroactivity (retrospective) may also generally be the case for periods or periods that have begun to follow the effectiveness of the previous modification and which have not yet come into effect (cf. KNAPP, V. Law theory. Issue 1. Praha: C. H. Beck, 1995, p. 208; or the mentioned find sp. zn. Pl. ÚS 18 / 14, paragraph 40). In that case, the beginning, running and duration of the period or period shall be governed by the old adjustment to the effect of the new adjustment. Following the effectiveness of the new regulation, matters of further running and duration of these periods of time are governed by the new regulation. In general, the legislature may adopt an intertemporal conflict of new and old legislation on time or periods according to the principle of so-called false retroactivity (retrospective), which, as mentioned above, is, except for its registration at constitutional level. On the contrary, the so-called "real retroactivity 'would be in the case of time-limits or periods of time if the new legislation would result in a" revival' of the period or time that had elapsed before the entry into force of the new legislation (sp. zn.
40. It should be pointed out that, while the general prohibition on retroactivity, except for exceptions, allows for a change in the adjustment of periods of time and time still outstanding to the detriment of the addressees, Article 40 (6) The Charter, on the other hand, prevents legislation from being effective if it is a criminal offence, only after an offence has been committed which is less favourable to the accused than that which was effective at the time it was committed. Where a criminal offence is included in a period or period of time, the prohibition of retroactivity shall also apply to those periods or periods to the detriment of Article 40 (6) of the first Charter, which acts as a special treatment (lex specialis) against the general prohibition of retroactivity to the detriment, which is a general treatment (lex generalis).
41. Thus, from the point of view of Article 40 (6) of the first Charter, it is decisive whether the term "criminal offence" used here also covers the limitation periods for the cessation of liability for the offence.
The term "criminal" in Article 40 (6) of the First Charter
42. The term "criminality" used in the first sentence of Article 40 (6) of the Charter is an autonomous term used in the rule of constitutional order. Therefore, as with other autonomous concepts of constitutional law, it does not necessarily have to correspond to the content of the same concept used in ordinary laws.
43. Although it is an autonomous concept used in the Charter, the Constitutional Court does not see the reason why, when defining it, the conclusions of criminal law and the case law on the interpretation of the same concept in the Criminal Code (and before it the Criminal Code) are not met, it is an elaborate conclusion which also fully complies with the provisions of Article 40 (6) of the Charter. In accordance with the previous case law of the Constitutional Court (cf. paragraph 24), these conclusions can then be applied mutatis mutandis to the concept of criminal offences in criminal law.
44. The criminal offence of criminal law and case law means the possibility that the perpetrator of a particular crime will be found guilty and punished or liable (judgment of the Supreme Court of 12.9.1990 sp. zn. 1 To 9 / 90; published as R 11 / 1991 in the Collection of Decisions and Opinions of the Supreme Court; the above-mentioned finding sp. zn. Pl. ÚS 19 / 93; The shaman, P. and the wheel. Criminal Code I. § 1 to 139. Comment. Issue 1. Praha: C. H. Beck, 2009, p. 39; JELENK, J. and Kol. Criminal law substantive. General section. Strange part. 4th edition. Praha: Leges, 2014, p. 72-73). Penalties are all the conditions on which the statement on guilt and punishment depends (NOVOTED, O., VAND, M., ŠÁMAL, P. and kol. Criminal law substantive. General section. 6th edition. Praha: Wolters Kluwer, 2010, p. 95). The link between crime and criminal liability is given by their approach to the crime and its perpetrator. While criminal liability relates to and is linked to the perpetrator of the offence in terms of legal consequences for the commission of the offence, the criminal offence expresses a formal legal aspect of the offence and, in its abstract form, is a consequence of criminal liability (ŠÁMAL P. et al. Criminal Code I. § 1 to 139. Comment. Issue 1. Praha: C. H. Beck, 2009, p. 39-40).
45. The concept of "criminal offences' thus defined also corresponds to the purpose pursued by Article 40 (6) of the First Charter, i.e. to protect the accused against the application of legislation which, only after the act has been committed, reintroduces or tightens the crime.
46. In order to assess the proposal for annulment of Paragraph 112 (2) of the First Act on Liability for Infringements, it is important to deal more closely with the disappearance of criminal offences (criminal liability or liability for offences). Article 40 (6), first sentence, of the Charter also applies to the disappearance of a criminal offence (criminal liability), as the concept of criminal liability (criminal liability) covers matters of its origin, duration and termination. This is in line with the language version of the provision, which mentions crime without any restrictive conditions (for example, that it should only be a criminal matter), but also its meaning. In fact, if, on the basis of the new legislation, the abolition of criminal liability (the termination of liability for offence) or the tightening of the conditions for their use in those institutes, the abolition of liability which the legislation effective at the time of the act was known, is a new step towards strengthening the criminality.
47. The fact that the concept of criminal offences includes not only the facts of the crime and punishment, but also all other conditions of the creation and destruction of criminal liability, corresponds to the conclusions of domestic criminal law teaching since the time of the Austrian-Hungarian monarchy: "A question that is more favourable can only be answered in the light of a specific crime, not in general. To look upon not only the special facts and the criminal rate, but also the provisions on eligibility for crime, the grounds for criminal offences excluding and cancelling, the provisions on trial, participation, the circumstances of qualifications, aggravating, mitigating and under." (EXPLUS, Josef. Austrian criminal law. A piece of general. Praha: Výšrd, 1912, p. 32). In practice, there was never a dispute in homeschool teaching that the statute of limitations under the term "criminal" belongs - cf.: "If the formalities of crime and criminal are fulfilled, the case is criminal, the offender is to be punished. The legal institutions of crime and criminals are therefore conditions of criminality. But we also have other moments in substantive law that are also affected by the nature of the crime, but the opposite: it prevents crime and crime from being criminal. These are cases that can be included in the area of their own obstacles to crime. It is the case, for example, that a longer period has elapsed since the crime was committed (statute of limitations), that the perpetrator sought to avert the damage (effective regret), that the killing of a man took place in the excesses of defense, that the relative of the race descending in the bloodshed did not have 18 years, the death of a criminal, etc." (RALIS, Antonín. Matters and obstacles to crime. In: A tribute to the 70th birthday of the Univ. Prof. Dr.August Miříčka. Praha: Czechoslovak Society for Criminal Law, 1933, p. 220), and that the principle of retroactivity does not apply to it. For this, see explicitly: "Which law is more moderate, it is due to judge not only on the basis of the criminal rate, but on the basis of a set of legal consequences that the criminal law combines with the act, for example, to take into account the honorable consequences of the conviction, the circumstances of criminal offences excluding or mitigating, the conditions of limitation and such." [KALLAB, Jaroslav. Criminal law in force in Czech and Moravian-Silesian countries (both general and special). Praha: Melantrich, 1935, p. 22).
48. From these conclusions, criminal law has never diverted: "The reasons for the disappearance of criminal liability are among the negative conditions of criminality... The reasons for the disappearance of criminal liability include the granting of grace and limitation, in our regulation also the disappearance of criminal offences for the disappearance of the danger of an act for society, the death of the perpetrator and effective regret. There are doubts as to the systematic classification of the institution of limitation of criminal prosecution, which, in addition to material legal reasons, has procedural reasons and is sometimes understood as a procedural institution, in particular where there is legal regulation (cf. French law). This has pervasive consequences, particularly in terms of the temporal scope of the law. However, the procedural concept is not correct, since the reasons for the limitation of criminal prosecution are primarily substantive and the disappearance of procedural possibility is justified here by the disappearance of criminal liability itself." (SOLNAR, Vladimir. In: SOLNAR, Vladimir, FENYK, Jaroslav and CESARO, Dagmar. The system of Czech criminal law. Episode II. The basis of criminal liability. Praha: Novatrix, 2009, p. 445). This is also stated by the fact that, in the recondification of criminal law in material terms, the Institute of Limitation of Criminal Investigation was renamed in the Criminal Code for Limitation of Criminal Liability in order to better reflect this concept.
49. The purpose of Article 40 (6) The Charter is to protect the accused against the result that he will be faced with stricter legislation when assessing the criminality of his crime than was there at the time of the act (cf. point 32). The Constitutional Court therefore notes that the disappearance of criminal offences (criminal liability) is also part of the term "criminality 'under Article 40 (6) of the First Charter. In fact, the opposite interpretation would constitute a restrictive interpretation of the provisions of the Charter of Fundamental Law, moreover, in the area of judicial or administrative punishment, where public intervention against individuals is most sensitive.
50. In this context, the Constitutional Court also submits that Article 40 (6) The Charter has a significantly broader impact than Article 7 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (see below, sub-sub 62 et seq.), since it operates with the term "criminality," which, as mentioned above, covers all the conditions to be met for the offender to be recognised as guilty, i.e. all the conditions of his criminal liability. By contrast, Article 7 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms only prevents an individual from being sentenced for acts or omissions which were not a criminal offence at the time they were committed. The condition of criminal liability (that is to say, part of the criminal offence) is not only the existence of the facts of the offence (including illegality), but also the conditions for the duration of the criminal liability, namely the absence of any of the circumstances which invalidate the offence. The term "criminality" is terminus technicus, which has long established meaning in Czech teaching and practice. Meaning and purpose of Article 40 (6) The Charter would then be contrary if its interpretation could narrow this concept against what is understood in criminal law under that term.
51. This is also related to the fact that Article 39 of the Charter entrusts the definition of a criminal offence to the law. What is a criminal offence cannot be established by the Charter. Even if, according to the Constitutional Court, an unsustainable thesis on the narrower scope of the term "criminal" in Article 40 (6) is to apply, The Charter, as opposed to its concept of criminal law, the recognition of an offender guilty of a criminal offence which would be consistent with the assessment of the temporal scope of the criminal law under the rules of the criminal law at the legal level, that is to say, including the conditions of limitation, which have been set aside only by reference to the alleged narrower scope of the term "criminal offence" in Article 40 (6) of the Charter, which would not result in the limitation of a later regulation, would not, paradoxically, infringe Article 40 (6) of the Charter, but the Charter, because the offender would be recognised as guilty of something which he does not regard as a criminal offence as a result of limitation.
52. In the case of individual institutes, the cessation of criminal liability or liability for an offence may be identified from the point of view of the sub-constitutional law by their meaning, which is different from each institution. For example, the purpose of the Institute of Effective Regret (whether general in accordance with § 33 of the Criminal Code or special in accordance with § 197, 242, 248a, 312b and 362 of the Criminal Code) is to motivate the perpetrator by promising impunity to prevent the harmful consequences of the crime. This made it clear to the legislator that the preservation of the protected property is more important than the company's interest in punishing the perpetrator (NOVOTED, O., VAND, M., ŠÁMAL, P. and Kol. Criminal law substantive. General section. 6th edition. Praha: Wolters Kluwer, 2010, p. 347). The purpose of the earlier regulation of the disappearance of the crime due to the disappearance of the crime for society (Section 65 of the Criminal Act) was to take account, in addition, of the fact that the material aspect of the crime disappeared in the form of danger to society. The purpose of the statute of limitations on criminal liability or liability for the offence is to take account of the fact that the passage of time weakens when the need for a state's criminal response to the crime completely ceases, and, in support of procedural difficulties in proving events deep in the past.
53. With regard to Article 40 (6) The Charter is not relevant to the specific purpose for which, in the context of sub-constitutional law, a specific institute has become part of the legislation governing the abolition of criminal liability or liability. The only thing determining here is whether the institute is part of the definition of crime. In establishing and amending the rules governing judicial punishment and administrative punishment, the legislator may pursue diverse criminal policy objectives. From the perspective of Article 40 (6) The Charter is only essential if a criminal policy objective has been translated into a provision which forms part of the definition of criminal offences during the legislative process. Article 40 (6) The Charter then protects against the use of an adjustment which, only after the act has been committed, reintroduces or tightens the crime of such an offence, or orders the use of a later regulation of the offence - but only one which is more favourable to the accused.
54. Both the limitation of criminal liability and the limitation of liability for the offence are part of the definition of criminal offences under Article 40 (6) of the Charter. First, it is the institutes governing the loss of criminal liability or liability for the offence, which is part of the definition of criminal offences in addition to the regulation of their origin and duration. First of all, it can be pointed out the reasons for which the statute of limitations on criminal liability among the institutions of substantive law, although it has procedural legal consequences, which are only secondary. It is therefore based on the fact that the statute of limitations ceases to apply to criminal offences and is therefore part of the regulation defining criminal offences (a negative condition of criminal offences). Substantial aspects are seen as weakening over time, when the need for a criminal response to an act in general prevention (the negative response of the social consciousness is fading over time and the crime is forgotten), and from an individual point of view (for crimes there is a presumption that the perpetrator who did not commit another crime in the same way or more severely the criminal offence for a legally determined period of time has improved). Delayed punishment of the perpetrator loses its meaning. That's it. JELENK, J and Kol. Criminal law substantive. General section. Strange part. 4th edition. Praha: Leges, 2014, p. 359; NOTE, O., VAND, M., CHAMAL, P. et al. Criminal law substantive. General section. 6th edition. Praha: Wolters Kluwer, 2010, p. 350; The shaman, P. and the wheel. Criminal Code I. § 1 to 139. Comment. Issue 1. Praha: C. H. Beck, 2009, p. 379; SOLNAR, V., FENYK, J., OBSAROVÁ, D. Basis of Criminal Responsibility: System of Czech Criminal Law. Issue 1. Praha: Orac, 2003, p. 423; PELC, V. Current issues of limitation of criminal liability. OJ L 347, 20.12.2013, p. 671. STRAKÉ, J. Knowledge of the transitional provisions of Act No. 250 / 2016 Coll. of the substantive nature and considerations of them (II.). Administrative Law No 6 / 2018, 365-366; GRYGAR, T. To the constitutional (not) compatibility of false retroactivity on the issue of limitation of offences in the new law of infringement. Article 2 HUNGARY, Z. The effects of the opening of criminal proceedings in terms of statute of limitations and related issues. See footnote 1. GRIVNA, T., ROHA, J. Selected problems of temporal scope and transitional provisions of the Criminal Code. Judgment of the Court of Justice in Case C-482 / 99, ECLI: EU: C: 1999: 423, paragraph 51. CIBULKA, K. Once again on the issue of limitation in terms of the temporal scope of criminal law. Judgment of the Court of Justice in Case C-482 / 08 P Commission v Germany [2008] ECR I-489, paragraph 13; Case C-482 / 08 P Commission v Italy [2008] ECR I-487, paragraph 13; Case C-487 / 08 P Commission [2008] ECR I-487, paragraph 13; Case C-482 / 08 P Commission v Italy [2008] ECR I-487, paragraph 13; Case C-487 / 08 P Commission [2008] ECR I-487, paragraph 13. POLMA, O. The issue of the limitation of criminal liability and the interruption of the limitation period following the change of legislation as a result of the entry into force of the new penal code. Judgment in Case No 8 / 2010, p. 251 et seq. FAR, F., ŠÁMAL, P. Still on the issue of the limitation of criminal offences in relation to the prohibition of the retroactivity of a more adverse law against the perpetrator. Legal perspective No 11 / 1996, p. 504 et seq.
55. For similar reasons, the limitation of liability for the offence may also be described as part of the definition of criminal offences. It may be added that, as is the case with the limitation of liability for the offence, there is no condition that the limitation period is interrupted if the offender has committed a new offence in the limitation period, for which the penalty is set equal or more stringent. This is a partial distinction, but it does not affect the substantive nature of the institute, that is, that it weakens over time, until the need for a criminal response to the act has quite disappeared. Moreover, it can be noted that the legal regulation of the limitation of liability for an offence is systematically included in Part Two of the Act on Liability for Infringements, which contains substantive legislation and not in Part Three of that Act where infringement proceedings are regulated.
56. While at the time of the issue of the finding, sp. zn. In Czech legal teaching, the view that it is an institute of substantive law has been widely asserted, although it has procedural legal implications. After all, the finding of sp. zn. Pl. ÚS 19 / 93 in this regard in the literature was subjected to extensive criticism [PÚRA, F., ŠÁMAL, P. Still on the issue of the limitation of criminal offences in relation to the prohibition of the retroactivity of a more adverse law against the perpetrator. Law No 11 / 1996, p. 504 et seq. GRYGAR, T. To the constitutional (not) compatibility of false retroactivity on the issue of limitation of offences in the new law of infringement. Article 2 PELC, V. Current issues of limitation of criminal liability. Commission Implementing Regulation (EU) 2015 / 2447 of 7 December 2015 amending Implementing Regulation (EU) No 540 / 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China (OJ L 343, 22.12.2009, p. 1).
57. Even the Supreme Administrative Court and the Supreme Court, in their case law, the limitation of liability for the offence or limitation of criminal liability falls within the scope of criminal law. The Supreme Administrative Court [in the order of its extended Chamber of 18 September 2012 No 7 of Afs 14 / 2011-115 (No 2748 / 2013 Coll. NSS), paragraph 29] assessed that it was necessary "to base the rules on the timelimits in force when the offence was committed. This is because the precarious time limits for imposing an administrative penalty are considered by case law to be substantive (e.g. judgment of the Supreme Court in Prague no. 6 A 69 / 96-34, judgment of the Supreme Administrative Court no. 5 Afs 7 / 2011-619). As a result of the change in the time limits for the imposition of the sanction, the complainant's substantive rights would be affected. Therefore, the provision has the material effects currently cited and therefore the regulation of time limits also applies to Article 40 (6) of the Charter of Fundamental Rights and Freedoms, the principle of prohibiting the retroactivity of criminal law in the wider sense. Therefore, an adjustment may be made later only if it is more favourable to the perpetrators." The Supreme Court (in its resolution of 29 September 2010 in sp. zn. 8 Tdo. 1105 / 2010) stated: "The criminal liability of the perpetrator and, consequently, the concept of the criminal offence of such perpetrator must be defined as a summary of all the conditions on which the verdict on guilt and punishment, including the limitation conditions, depends. For the above reasons, it is therefore necessary, in any particular case, in the context of the assessment of the crime within the meaning of Article 40 (6) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter of Fundamental Rights) and Article 16 (1) (a) of Law No 140 / 1961 Coll. and, as well as Article 2 (1) (a) (ii) of the Code of Law No 40 / 2009, also to ascertain whether the cessation of the offence has occurred, inter alia because of the limitation of the offence, since the limitation is one of the grounds for the disappearance of criminal liability and, together with the other reasons, the limitation is considered as a material negative condition of criminal liability. The statute of limitations according to our regulation ceases to be criminal liability and criminal penalties, and therefore the statute of limitations in Czech criminal law is an institution of substantive law and not merely a procedural barrier to immortality. There was no doubt about this in criminal theory and practice." For the sake of completeness, it should be noted, however, that both the Supreme Administrative Court and the Supreme Court in some of their decisions have taken the opposite reasoning to Article 40 (6) of the Charter resulting from the said finding, sp. zn. Pl. ÚS 19 / 93 (cf.
58. In its observations, the Government pointed out that, at the time of the act, the perpetrator cannot rely on the fact that his liability for the offence will be suspended in the future, as the legislation provides for the institutions to be interrupted and built on the running of the statute of limitations. In other words, whether there will be a statute of limitations, after the act has been committed, it is not the actions of the defendant, but above all the activities (or rather inaction) of the authorities responsible for dealing with the offence that cannot be estimated at the time of the act. For this reason, the Government considers that the contested legal provision, which may in some cases entail an extension of the limitation period, does not conflict with legal certainty. The Constitutional Court notes that Article 40 (6), first sentence, of the Charter protects the legal certainty of the accused of a crime or offence. However, it does so at the level that it prohibits the use of a criminal regulation in the assessment of an offence that has become effective only after the crime has been committed. The accused of a criminal offence or offence has the legal certainty that none of the aspects of the criminal offence can be assessed under future stricter legislation and is thus protected against possible future criminalisation. That is the protection of the defendant's legal certainty.
59. Contrary to what the Government pointed out in its observations, Article 40 (6) of the Charter for the Defendant brings much stronger protection of legal certainty. Article 40 (6) In fact, the Charter does not provide a basis for assessing whether the accused might reasonably believe that the conditions of a criminal liability or liability for an offence will be fulfilled in the future by one of the institutes. Article 40 (6) The Charter does not limit its reach only to those institutes of the disappearance of criminal liability, for which the defendant may rely on his actions to cause them to enter or, in his case, to rely on them to apply for his actions in the future, regardless of other uncertain circumstances. Article 40 (6) The Charter shall apply to the whole of the criminal offence, without exception. Article 40 (6) The Charter is not excluded from any part of the criminal system which would not be affected by the provision which lays down fundamental human law. The reverse approach, as noted above, would indicate a restrictive interpretation of the fundamental right provision.
60. It should be noted that even by resetting the limitation of criminal liability or liability for an offence, there may be a tightening of criminal offences, for example by extending the limitation periods or introducing new circumstances in the law which involve the interruption of those periods which have caused them to continue since the beginning. Such an arrangement implies a tightening of crime. As a basis for the limitation of criminal liability or liability for an offence, the idea is that, over time, the need for a criminal response to an act both in terms of general prevention and individual (paragraph 54) will fade. The new legislation, which may cause limitation to take place only after a longer period of time compared to the previous one, necessarily provides the view that the legislator is now taking the action more seriously, if it has laid down an arrangement which will allow the end of a longer period of time to be eliminated, compared to the previous one. In general, constitutional regulations do not hinder the tightening of crime, if it is still about adjusting the sentence appropriate to the crime committed. This can only be done for acts committed after the effectiveness of the regulation, which has brought about a tightening of the crime, not for acts committed before its effectiveness. Article 40 (6), first sentence, of the Charter affects any regulation which it bears by way of the limitation of criminal liability or liability for the offence of tightening up the criminal record.
61. It can be summarised that the first sentence of Paragraph 112 (2) of the First Act on Liability for Infringements requires that the limitation of liability for misconduct be applied under the Act on Liability for Infringements and to acts committed prior to the effectiveness of that Act. The limitation of liability for an offence forms part of the definition of criminal offences within the meaning of Article 40 (6) of the Charter with which the contested legal regulation is in conflict, as it is directed towards a constitutionally resisted result in the use of a later criminal regime which is against the defendant. Therefore, Paragraph 112 (2) of the First Act on Liability for Infringements is contrary to Article 40 (6) of the First Charter. The Constitutional Court agrees with the City Court that a constitutional conformal interpretation of § 112 (2) of the First Act on Liability for Infringements is not possible.
Convention on the Protection of Human Rights and Fundamental Freedoms
62. Pursuant to Article 7 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), no one may be convicted of acts or omissions which were not criminal acts under national or international law at the time they were committed. Nor shall a more severe penalty be imposed than could be imposed at the time of the offence.
63. The Belgian legislation, which, in the context of procedural law, extended the period for which the prosecution may have been brought for the offence, the European Court of Human Rights (hereinafter referred to as "the ECHR ') found that Article 7 of the Convention did not prevent the extension of the limitation periods by the immediate application of the law relating to proceedings, unless the acts in question were never barred (judgment of the ECHR in Case Coëme and Others v Belgium of 22.6.2000 No 32492 / 96, 32547 / 96, 32548 / 96, 33209 / 96, § 149; judgment of the Delanghe v Belgium of 18.9.2001 No 49716 / 99, § 11; judgment of the Landesg v Belgium of 22.11.2001 No 34348 / 97, § 2; judgment of the ECLP are available from https: / hudoc.coe.int).
64. Impact of Article 7 The Convention on provisions governing the limitation of criminal liability has also been addressed by the ECHR against Italian legislation. In Italian law, the limitation of criminal liability falls within the substantive law (cf. the Italian Constitutional Court's observations recap in paragraph 14 of the judgment of the Court of Justice of the European Union of 5.12.2017 in Case C-42 / 17 M. A. S. and M. B.; the decision of the Court of Justice of the European Union is available from https: / / curia.europa.eu). However, in relation to the Italian legislation on the limitation of criminal liability, the ECHR found no reason to depart from its conclusions in the Coëme judgment and noted that the provisions on the limitation of criminal liability do not provide for criminal offences or criminal penalties for them and can be seen as a condition for dealing with a criminal case (see the ECHR judgment of 12 February 2013 in Previti v Italy, paragraphs 79 and 80). It should be noted that in the judgment in Previti v Italy, the ECHR did not mention that the limitation of criminal liability was a substantive institution under Italian law.
65. Thus, the Convention does not prevent the use of a later, less favourable provision for the accused, of the limitation of criminal liability or of the limitation of liability for the offence. It can therefore be concluded that Article 7 of the Convention provides a lower standard of protection than Article 40 (6) of the Charter as regards the limitation of criminal liability or liability for an offence. The higher standard of protection provided by the Charter, as also reflected in Article 53 of the Convention, shall be implemented. At the same time, the autonomous classification of the European Court of Human Rights, which considers limitation in criminal law as a procedural institution, is not decisive for Czech national law (including the Charter). The Constitutional Court is also obliged by the Convention to give priority to the regulation of fundamental rights and freedoms in their domestic sense, provided that they provide a higher standard of protection [finding of 23.7.2013 sp. zn. ÚS 13 / 12 (N 126 / 70 SbNU 147; 259 / 2013 Coll.), paragraph 26]. That autonomous classification for the purposes of Article 7 The Convention is justified by the fact that the individual signatory States bound by the Convention are not uniform in whether the limitation of criminal liability falls under substantive or procedural law.
66. In the light of the ECHR case-law, it cannot therefore be concluded that the first sentence of Paragraph 112 (2) of the First Act on Liability for Infringements would be contrary to Article 7 of the Convention, which does not, however, alter the contradiction of that legal provision with Article 40 (6) of the First Charter.
Conclusion
67. For the reasons set out above, the Constitutional Court concluded that § 112 (2) of the First Act on Liability for Infringements is contrary to Article 40 (6) of the First Charter and, therefore, pursuant to § 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., has complied with the proposal to repeal the provision of the Act on Liability for Infringements by declaring this finding in the Collection of Laws.
68. Prior to the intervention of the Constitutional Court, Paragraph 112 (2) of the Act on Liability for Infringements contained two sentences: "The provisions of the existing laws on time limits for dealing with an offence or other administrative offence, time limits for imposing a fine on an offence or other administrative offence and time limits for the cessation of liability for an offence or other administrative offence shall not apply from the date of entry into force of that law. However, liability for the offence and the previous administrative offence shall not cease before any of the time limits laid down in the first sentence have elapsed, provided that the conduct establishing the liability took place before the date of entry into force of this law. 'In the second sentence of the provision, reference shall be made to the time limits referred to in the first sentence which refer to the time limits for dealing with an offence or other administrative offence, the time limit for imposing a fine for an offence or other administrative offence and the time limit for the cessation of liability for an offence or other administrative offence.
69. The second sentence of Paragraph 112 (2) of the Act on Liability for Infringements was not contested by the proposal and the Constitutional Court could not go to proceedings for the annulment of the laws of ultra petitum (see for example the order of 21.7.1994 sp. zn. Pl. ÚS 16 / 94 (U 14 / 2 SbNU 227) or the finding of 13.12.1995 sp. zn. Pl. ÚS 8 / 95 (N 83 / 4 SbNU 279; 29 / 1996 Sb.)). The procedure of ultra petitum is not followed by the Constitutional Court even in cases where the repeal of the contested provisions distorts the system of law or the continuation of the repealed provisions by a proposal not contested [see the finding of 13.8.2002 sp. zn.
70. To the affinity of the petit, the Constitutional Court, in the decision of 31 October 2001 sp. zn. Pl. ÚS 15 / 01 (N 164 / 24 SbNU 201; 424 / 2001 Coll.), noted that, in a situation where, as a result of the annulment of a statutory provision, the provisions of the Constitutional Court other than those contained in the previous binding, are no longer reasonable, i.e. it loses the validity of its normative existence, there is therefore a reason for the annulment of that provision, without being an ultra petition procedure. In the sp. zn. This is not the case in the first sentence and in the second sentence of Section 112 (2) of the Act on Liability for Infringements, since each of the sentences of the provision contains a separate (independent) rule of conduct. The legislative technique itself, whereby, under one provision at the Constitutional Court, the part of the cancellation containing the separate rule of conduct (here, the first sentence) refers only to another part containing the other separate rule of conduct (here, the second), does not allow the Constitutional Court to go beyond the scope of the proposal in proceedings for the annulment of laws.
71. After the intervention of the Constitutional Court, Article 112 (2) of the Act on Liability for Infringements will be worded as follows: "Liability for an offence and the current administrative offence will not be lifted until one of the time limits laid down in the first sentence has elapsed if the act establishing liability took place before the date of entry into force of the Act." The Court of Justice of the European Union has consistently held that the Court of Justice of the European Union is not in a position to rule on the interpretation of the law of the Member States. It should be pointed out that, in accordance with § 112 (2) of the Second Law on Liability for Infringements with the Rules of Procedure (e.g. Article 40 (6) of the Second Charter), the Constitutional Court was not able to deal with this procedure.
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, the Judges Jan Filip and Vojtěch Šiměl took a different position.
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Regulation Information
| Citation | The Constitutional Court found No. 54 / 2020 Coll., on the application for annulment § 112 paragraph 2 of the First Law No. 250 / 2016 Coll., on liability for and proceedings for offences |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.02.2020 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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