The Constitutional Court found No 81 / 2018 Coll.
The Constitutional Court found of 27 March 2018 sp. zn.
Valid
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81
FIND
The Constitutional Court
On behalf of the Republic
Article 6 (1) (d), § 11 (2) (d), § 11 (4) (a) (a) of the Act of the Constitutional Court of the Member State of the Member State of the Member State of the Member State of the Member State of the Member State of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Union of the European Communities of the European Communities of the European Communities of the European Union of the European Union of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the Republic of the European Communities of the European Union of the European Union of the European Union of the European Union of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Communities of the European Union of the European Communities of the European Communities of the European Communities of the European Union of the European Communities of the European Communities of the European Union of the European Union of
as follows:
I. In § 3 (2) (d), § 11 (2) (d), § 36 (1) (b) and (k) of Act No. 65 / 2017 Coll., on the protection of health against harmful effects of addicts, the word "mainly" shall be deleted from the date of the publication of this finding in the Collection of Laws.
II. In Article 19 of Act No. 65 / 2017 Coll., on the protection of health against harmful effects of addictive substances, the words "their or" are deleted from the date of the publication of this finding in the Collection of Laws.
III. The rest is rejected.
Reasons
Subject matter
1. (b) "on 13 March 2017, a motion from a group of 20 senators of the Senate of the Czech Republic (hereinafter referred to as" the draftsman "), on behalf of Senator Ivo Valenta, on the abolition of § 3 (2) (d), § 6 (5) (d), § 8 (1) (k), § 11 (2) (d), § 11 (4) and (6), § 19 in the words" of his or her or her or her spouse ', § 24 (2), § 24 (3) of the first sentence in the semicolar and verb), "where the person under investigation is not a minor," of his or of his or her own right', Article 24 (4) second sentence, § 24 (3) of the first sentence of the semicolar and verb), ";
2. The application was made pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, for a contradiction in particular with Articles 1 (1) and 2 (3) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Articles 1, 2 (2), 11 (1) and (4) and 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
Arguments of the appellant
3. The appellant pointed out, first of all, that inconstitutionality may be based on less clear reasons than a clear contradiction with the constitutional standard and considers that this is also the case with the contested provisions. Although their acceptance was motivated by understandable arguments, they are consequently contrary to Article 1 (1) of the Constitution, which defines the Czech Republic as a rule of law. It does not, in particular, stand up to the considerations of the rationality of legislation, proportionality, appropriateness and necessity. The appellant stressed that public authority in a liberal rule of law should not raise citizens and impose on them the lifestyle that the current holder of power considers right. If there is no criminal suicide in the Czech Republic, there cannot, according to the author, be any criminal or conduct that someone else considers to be of no benefit to the person acting. In this context, the appellant referred to the finding of the Constitutional Court of 2 January 2017, sp. zn. I. ÚS 2078 / 16, in which the Constitutional Court stated that it was not legitimate for the State to allow interference with the person's integrity in order to protect itself. The Constitutional Court also, according to the author, has repeatedly applied to the character of the Czech Republic as a liberal state. Public power must then be stopped in a liberal rule of law from the private lives of citizens and their freedom protected by Article 1 of the Charter. The contested provisions of the law on the protection of health against the harmful effects of addicts were brought together by the appellant in seven headings and, in the corresponding seven areas, considered the regulation contained in the law on the protection of health against the harmful effects of addicts to be unconstitutional for reasons further developed.
4. The first heading of the appellant's objections was against § 3 (2) (d), § 11 (2) (d), § 36 (1) (b) and (k), and § 36 (10) (b) in the heading "(b) 'and" k' of the Act on the protection of health against the harmful effects of addictive substances. These provisions provide for a prohibition on the sale of tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes (hereinafter referred to as "tobacco and similar products") "for an action intended primarily for persons under 18," a prohibition on the sale or supply of alcoholic beverages "for an action intended primarily for persons under 18," and related offences. The appellant considered that these restrictions were not of a rational nature and corresponded to a highly paternalistic state. Acceptable protection for children and youth already includes a ban on the sale of those products to persons under 18 years of age. There is no reason to restrict the parents of children who accompany their children to actions intended for them. On the contrary, the appellant considered it traditional for parents, for example, to have beer or wine on children's day while their children play. Since "actions intended primarily for persons under 18 years of age 'is an indefinite legal term, the appellant considers that, for example, the operators of food stands at sports sites or tourist places will be exposed to great legal uncertainty and therefore to the liking of the control authorities if, in addition to normal operation, there is also a child-friendly event. It therefore considered those provisions to be inconsistent with Articles 1 (1) and 2 (3) of the Constitution and Articles 1, 2 (2) and 26 (1) of the Charter.
5. The second heading of the objection was against Paragraph 6 (5) (d) of the Act on Health Protection against the harmful effects of addicts. According to this provision, the notification to the Ministry of Health, which is required to send tobacco and similar products vendors selling by means of distance communication, must also include a "list of Member States of the European Union and the Contracting States of the Agreement on the European Economic Area where potential consumers are located, if they are for cross-border sales pursuant to § 7 '. The appellant considered the obligation to mention this also in the notification as a manifestation of arbitrarily conflicting with the operation of distance sales, especially over the Internet. The seller can only estimate this information, which reduces its telling value. Nor does the Government refer to Article 18 (1) of Directive 2014 / 40 / EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the production, presentation and sale of tobacco and related products and repealing Directive 2001 / 37 / EC (" Directive 2014 / 40 / EU') exclude the possible inconstitutionality of the contested provision. If the State has allowed online sales, it is unreasonable to impose obligations which appear unreasonable in relation to it. The understanding of legislation is an essential element of the democratic rule of law. The appellant therefore considered the contested provision to be contradictory to Articles 1 (1) and 2 (3) of the Constitution and Articles 2 (2) and 26 (1) of the Charter.
6. In the third heading of the objections, the appellant questioned the constitutionality of Article 8 (1) (k) of the Law on Health Protection against the harmful effects of addictive substances, which prohibits smoking in the interior of the food service establishment, with the exception of the use of water pipes. The appellant considered that it was a special provision for Paragraph 8 (1) (a) of the same Act prohibiting smoking in a freely accessible public internal space, with the exception of a building-separate smoking area. A special ban on food service establishments has been assessed as unfounded and paternalistic, preventing the establishment of smoking shops. These would be particularly ventilated areas under Section 10 of the Law on Health Protection against the harmful effects of addicts, where the employee should not enter in the performance of his work at the time of smoking in these premises. A special ban cannot be imposed on restaurants at airports for smoking shops, although smoking shops can be established in the area of the international airport. According to it, the ban is unreasonable, unfounded and does not correspond to the government's declared purpose of protecting non-smoking health and is therefore unconstitutional. It is impossible to accept public intervention motivated by health protection not for non-smokers but for smokers. The appellant referred to the judgment of the German Federal Constitutional Court of 30 July 2008 sp. zn. 1 BvR 3262 / 07, BVerfGE 121, 317, and the decision of the Constitutional Court of the Free State of Saxony of 20 November 2008 sp. zn. It stated that the possible solutions to health protection for non-smokers are more, but the absolute ban and rejection of amendments to the law is unconstitutional. It therefore considered the contested provisions to be inconsistent with Articles 1 (1) and 2 (3) of the Constitution and Articles 1, 2 (2) and 26 (1) of the Charter.
7. The fourth set of objections was addressed by the appellant against Article 11 (4), Article 35 (1) (a) in the words "or 4 'and Article 36 (1) (j) in the words" or 4' of the Law on the Protection of Health against the Harmful Effects of Drugs. The contested § 11 (4) of the Act prohibits the sale of alcoholic beverages by means of a vending machine, the remaining listed provisions govern the related offences. The appellant questioned the reason for the ban and considered it to be entirely arbitrary that it also affects tasting machines in special wine stores. The bottles are contained in a protective nitrogen atmosphere and can be opened for a longer time without unwanted oxidation, allowing for a better tasting of more wine samples. It therefore considered those provisions to be contradictory to Articles 1 (1) and 2 (3) of the Constitution and Article 2 (2) and Article 26 (1) of the Charter.
8. The fifth heading of the objections was contested by the appellant by paragraphs 11 (6), 35 (1) (k), 35 (2) (b) in the words "k", 35 (4) (a) in the words "k", 36 (1) (m) and 36 (10) (b) in the designation "m) of the Act on the protection of health against harmful effects of addicts. The contested Paragraph 11 (6) of the Act prohibits the sale or supply of alcoholic beverages to a person who can reasonably be expected to take an alcohol drink after and subsequently carry out an activity in which, due to the previous ingestion of alcoholic beverages, it could endanger the health of people or damage property. The remaining listed provisions govern the related offences. The appellant stressed that this obligation burdened everyone, not just entrepreneurs. It creates a great deal of legal uncertainty with the possibility of arbitrary state, as it is problematic to identify a person who is prohibited from serving an alcoholic beverage under Section 11 (6) of the Act. According to the appellant, it should be everyone's responsibility to decide whether to drink alcoholic beverages or not, and the burden of this decision cannot be passed on to other private persons. It therefore considered those provisions to be inconsistent with Articles 1 (1) and 2 (3) of the Constitution and Articles 1 and 2 (2) of the Charter.
9. The sixth heading of the appellant's objections was against Article 19 of the Health Protection Act against the harmful effects of addictive substances in the words "own or '. Paragraph 19 of the Act prohibits a person who carries out an activity in which he or she could harm, inter alia, his or her health, the use of alcoholic beverages or other addictive substances in the course of that activity or before it is carried out. Thus, the appellant opposed the fact that this provision also penalised the threat to itself, although human life and health were not the property of the state. This also introduces the criminal offence of a failed suicide, because a fine of up to CZK 50,000 can be imposed for violation of § 19 of the law. The provisions were also superfluous because initial bans, such as alcohol consumption while driving a motor vehicle, are already given by specific legislation, which then have priority in application. Although the contested standard was already part of the Czech legal order (in § 16 paragraph 1 of Act No. 379 / 2005 Coll., on measures to protect against damage caused by tobacco products, alcohol and other addictive substances and on the amendment of related laws, as amended by Act No. 274 / 2008 Coll.), it has not yet been subject to a constitutional check. The appellant compared the contested provision to the sanctions of cyclists who only caused injury to themselves. It considered it a tragic example of the government's efforts for an omnipotent invasion of privacy and therefore also contradictory with Articles 1 (1) and 2 (3) of the Constitution and Articles 1 and 2 (2) of the Charter.
10. Under the seventh heading of the objection, the appellant did not agree to adjust the cost of the compulsory medical examination for the presence of alcohol or other addictive substances in minors by their legal representatives, contained in Article 24 (2), (3), (4) and (5) of the Law on the protection of health against the harmful effects of addicts. It considered that this provision was based on the objective responsibility of legal representatives, although, for example, a minor is placed in a educational establishment and his parents have no influence over his possible drunkenness. The transfer of responsibility to parents without the possibility of considering individual circumstances or their fault, according to the appellant, is unfair, unconstitutional and contradictory in particular with the rule of law pursuant to Article 1 (1) of the Constitution and the protection of property pursuant to Article 11 (1) of the Charter. According to the appellant, it is possible, in the event of cancellation, other than the adoption of a new regulation, to follow the general rules of civil law according to which a minor who has not acquired full competence is eligible for legal action in the nature of reasonable and free maturity of minors of his age. Since the whole law on the protection of health against the harmful effects of addicts is rather a public law regulation, it is not right to enter into the general regulation of the relationship of responsibility between parents and children and towards third parties, which is otherwise mainly contained in the Civil Code.
11. For the reasons described, the appellant proposed the abolition of all the above provisions of the Health Protection Act against the harmful effects of addictive substances.
Proceedings before the Constitutional Court
12. The Constitutional Court pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, sent the proposal to the chambers of Parliament as parties to the proceedings, and to the Government and the Ombudsman as authorities entitled to intervene as interveners.
13. In its observations, the Chamber of Deputies summarised the course of the legislative process, in which the law on health protection against the harmful effects of addicts was discussed and approved. It stated that the legislature acted in the belief that the law adopted was in line with the Constitution and the Czech legal order.
14. In its observations, the Senate also summarised the course of the legislative process, recalling the statements made by some of the Senators during the discussion of the draft law on the protection of health against the harmful effects of addictive substances. According to the Senate, it is up to the Constitutional Court to examine and rule on the application for annulment of the various provisions of this law.
15. The Government has indicated that it is entering the proceedings and has instructed the Minister for Human Rights, Equal Opportunities and Legislation to draw up and submit observations on the draft Constitutional Court in cooperation with the Minister for Health. In its observations, the Government gave its opinion on the various points of the appellant's proposal.
16. On the first heading of the appellant's objections concerning restrictions on actions intended primarily for persons under 18 years of age, it stated that it did not see any conflict with constitutional order in the contested legislation. The modification protects persons under 18 years of age from the negative impact of addictive substances. It did not agree with the claim that the adjustment should lead to uncertainty of the operators of the refreshment stand. There is nothing to prevent them from restricting the sale of prohibited goods when action for a legally protected group of persons is taking place on the spot at that time. It also assumes that such actions will not take place in a natural way, but will be agreed or announced in advance. The law may lay down conditions and restrictions for the pursuit of certain professions or activities, thus implementing Article 26 (2) of the Charter and complying with constitutional requirements.
17. The Government did not comment on the second heading of the appellant's objections to the content of the notification sent to the Ministry of Health.
18. As regards the third heading of objections concerning the exclusion of smoking establishments in restaurants, the Government stated that it did not consider the amendment to be a contradiction with constitutional order. This regulation only defines the area of implementation of state power in accordance with Article 2 (3) of the Constitution and is an expression of State interest in the application of Article 31 of the Charter under which everyone has the right to health protection. It pursues the humane objective of improving the health of the population and protecting against exposure to tobacco smoke. It is a legally-political approach in which the health benefits for citizens are sought, unconditional by exceptions that would essentially abolish this effort.
19. On the fourth heading of the appellant's objections against the prohibition on the sale of alcoholic beverages by means of vending machines, it noted that the aim of the adjustment was, inter alia, to protect persons under 18 years of age from the harmful effects of alcohol. According to experience from practice, the vending machine excludes sales so that the shop operator can effectively comply with the legal prohibitions on the sale of these goods to protected persons. This is the legal implementation of Article 2 (3) of the Constitution and Article 2 (2) of the Charter, as well as the statutory establishment of conditions and restrictions under Article 26 (2) of the Charter.
20. The fifth heading of the objections concerning the prohibition on the sale and administration of alcohol to certain persons did not agree that legal uncertainty would be introduced under the contested provisions. On the contrary, it believes that the introduction of a legal framework for the protection of life and health is a legal ban on activities that could jeopardise these values. It is therefore the lawful implementation of Article 31 of the Charter, the right to health, consistent with Article 2 (3) of the Constitution and Article 2 (2) of the Charter.
21. On the sixth heading of the objection to the criminal threat, the government did not regard itself as appropriate by arguing hypothetical examples of sanctioning suicides. The purpose of the Act is to protect against the harmful effects of addictive substances, i.e. the protection of each addressee of this legal standard. Any legal obligation that does not have a penalty is very difficult to enforce. The protection of human life and health plays a leading role in the interpretation of the contested legislation, which means that certain activities which may threaten these values must be prohibited by law. As it is the implementation of Article 31 of the Charter, the right to health protection, the Government did not consider that there was a breach of constitutional order.
22. As regards the seventh heading of the objection to the reimbursement of the costs of the compulsory examination of minors, the Government stated that it did not see any contradiction in the rules of procedure. The contested provision is a manifestation or a consequence of the liability of the legal representative of a minor who is wholly incompetent. It is about establishing a legal obligation in accordance with Article 2 (3) of the Constitution and Article 2 (2) of the Charter.
23. In summary, therefore, the Government did not consider the appellant's proposal to be justified and proposed its rejection. However, in the event that the Constitutional Court were to derogate from the contested legislation, it considered that it would be necessary to postpone the enforceability of the finding in order to prepare and discuss a draft law containing another, constitutionally conformal, method of protecting against the harmful effects of addictive substances.
24. The Ombudsman stated that she did not intervene in this case.
25. The appellant responded with a reply to the comments sent. She had no objection to the statements of the Chamber of Deputies and the Senate. In its view, the Government's statement confirmed its view that the government decided to change citizens' lives by power and to view them as puppets. On the subject of restrictions on actions intended primarily for persons under the age of 18, she considered the Government's expression superficial, because it did not answer, for example, whether a parent-child action was still an action mainly for children or not. As an example, there are knights' tournaments or other performances on the castles, which are also followed by adults, not only by accompanying children. It is not clear for such events whether it is an action intended primarily for persons under the age of 18. Moreover, the operator of the refreshment stand may not be informed by the owner of the castle at all that such an event is taking place. In the case of the expulsion of smoking rooms in restaurants, according to the author, the government did not explain why smoking rooms could be at airports, but not in restaurants, and why a smoker has more rights at the airport than a smoker in a restaurant. Above all, however, the appellant had the position of the government as contradictory with the liberal foundations of the state. Arguments of the Government to protect health pursuant to Article 31 According to the author, the Charter shows that the Government did not understand the Charter as an instrument for protecting the rights and freedoms of citizens, but as an instrument of state power against citizens. If a citizen can refuse treatment in a hospital, although this may result in his death, the more likely he can go smoking in a smoking room with other smokers. If the government doesn't respect that, it goes into the position of a totalitarian government that wants to create a new person as it wishes. As regards wine tasting machines, the author pointed out that government officials do not know the Moravian real estate, and the government does not explain why it wants to ban the possibility of tasting expensive wines through vending machines. The appellant did not agree with the possible postponement of the derogatory effects of the decision of the Constitutional Court.
26. In accordance with Article 44 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court decided on a case without oral hearing because it was not expected to clarify the matter further.
Text and context of the contested provisions
27. The appellant seeks the annulment of a number of provisions of the Health Protection Act against the harmful effects of addictive substances or parts thereof, whose valid and effective wording of the Constitutional Court will, for the sake of clarity, state (Note: the contested provisions are in bold).
28. The contested Section 3 (2) (d) of the Act on Health Protection against the harmful effects of addicts and its context is:
Prohibition of the sale of tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes
(1) It shall be prohibited to sell tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes outside a store specialising in the sale of such goods, a shop which is a food business, a store with a predominant range of daily and other periodical printing, an establishment of catering services, accommodation facilities, a snack stand which has a fixed construction and fulfils the conditions for the operation of a food business for the purpose of operating catering services under the Law on the Protection of Public Health (hereinafter referred to as the "food service stand '), a fixed construction stand with a predominant range of daily and other periodical printing, a stand specialising for the sale of such goods within the construction intended for commercial and air transport.
(2) Notwithstanding the provisions of paragraph 1, it is prohibited to sell tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes
(...)
(d) for an event intended primarily for persons under the age of 18;
(...)
29. The contested § 6 (5) (d) of the Act on Health Protection against the harmful effects of addicts and its context is:
(1) Tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes may be sold by means of distance communication provided that their sale to persons under the age of 18 is excluded; to this end, the retailer of such products shall be equipped with a computer system by means of remote communication, which shall electronically clearly verify the age of the consumer (the age verification system). At the time of sale, the seller shall verify that the purchaser of the consumer is not under 18 years of age.
(...)
(4) Seller of tobacco products, smoking aids, herbal products intended for smoking and electronic cigarettes by means of distance communication shall be required to notify in writing the data on the age verification system and its functioning to the Ministry of Health, if applicable
(a) the cross-border sale of tobacco products and electronic cigarettes which may be used for the use of nicotine-containing fumes within 5 days of receipt of the registration certificate under the Food and Tobacco Products Act;
(b) the sale of tobacco products and electronic cigarettes on the territory of the Czech Republic within 15 days before the date of the sale;
(c) the sale of smoking aids and herbal products intended for smoking, within 15 days of the date on which such sale began; or
(d) the change of such data within 30 days of the date on which the change took place.
(5) The notification referred to in paragraph 4 shall include, in addition to the formalities laid down in the administrative rules:
(a) the identity number of the seller;
(b) the address of the website used for sale by means of remote communication;
(c) a description of the age verification system and its functioning;
(d) the list of Member States of the European Union and the Contracting States of the Agreement on the European Economic Area where potential consumers are located, if they are for cross-border sales pursuant to Article 7.
(...)
30. The contested § 8 (1) (k) of the Act on the Protection of Health against the Harmful Effects of Drugs, its Context and Related § 9 of the same Act reads:
(1) Smoking is prohibited
(a) in a freely accessible public internal space, with the exception of a smoking-restricted building space;
(b) in the transit area of an international airport, with the exception of a smoking-restricted building space;
(...)
(e) in a medical establishment and in premises related to its operation, except for a smoking-restricted space in a closed psychiatric ward or in another addiction treatment facility;
(...)
(k) within the internal area of the catering service establishment, except for the use of water pipes;
(...)
(1) Where the owner of the space referred to in § 8 (1) (a), (c) and (h), the operator of an international airport, the operator of a public transport means of transport, the provider of health services, school or educational facilities, the operator of the establishment, establishment or provider of services in the establishment, establishment or area referred to in § 8 (1), the sports site operator, the operator of the entertainment area, the organiser of the establishment, the operator of the food service or the operator of the zoo where smoking and the use of an electronic cigarette are prohibited, the infringement of this prohibition, the person who does not comply with the smoking ban or the ban on the use of the electronic cigarette is obliged to continue or to leave the premises in such action. This person is obliged to obey the calls.
(2) The space, with the exception of the space referred to in Section 8 (1) (c), or the means of transport where smoking is prohibited, is required by the person referred to in paragraph 1 to mark at the entrance the clearly visible graphic mark "Smoking prohibited." The graphic form of the mark is listed in the Annex to this Act.
(3) The space, with the exception of the space referred to in Section 8 (1) (c), or the means of transport where the use of electronic cigarettes is prohibited, shall be indicated at the entrance by the person referred to in paragraph 1 by a clearly visible text informing that the use of electronic cigarettes is prohibited in that space. This text must be taken in the Czech language in black printing letters on a white background of at least 1 cm.
31. The contested Articles 11 (2) (d) and 11 (2) (4) and (6) of the Law on the Protection of Health against the Harmful Effects of Drugs and their Context are:
Prohibition and restrictions on the sale and supply of alcoholic beverages
(1) It shall be prohibited to sell alcoholic beverages outside a grocery store which is a food business, an establishment of catering services, an establishment of the wine producer, accommodation, a refreshment stand, a stand specialising in the sale of such goods placed within a building intended for trade and a public transport vehicle for long distance rail, air, water and long distance bus transport.
(2) Notwithstanding the provisions of paragraph 1, it is prohibited to sell or serve alcoholic beverages:
(...)
(d) for an event intended primarily for persons under the age of 18;
(...)
(4) It is prohibited to sell alcoholic beverages through a vending machine.
(5) It shall be prohibited to sell or serve an alcoholic beverage to a person under the age of 18.
(6) It shall be prohibited to sell or serve an alcoholic beverage to a person who can reasonably be expected to consume an alcoholic beverage afterwards and subsequently carry out an activity in which, due to the previous ingestion of an alcoholic beverage, he could endanger the health of people or damage property.
(...)
32. The contested Section 19 of the Act on Health Protection against the harmful effects of addictive substances reads:
Prohibition of drinking alcohol or other addictive substances
A person who carries out an activity in which he or she could endanger his or her life or health or harm property or in respect of which another legislation provides for a prohibition on the consumption of alcohol or the use of other addictive substances shall not consume alcoholic beverages or use other addictive substances in the course of, or prior to, that activity, in order to ensure that he or she does not perform such activity under the influence of alcohol or other addictive substances.
33. The contested § 24 (2), (3), (4) and (5) of the Act on the Protection of Health against the Harmful Effects of Addicts (the various paragraphs of § 24 are always attacked only in parts concerning the reimbursement of costs for minors):
Reimbursement of costs of medical examinations and transport to a medical institution
(...)
(2) Where the presence of alcohol or other addictive substances is demonstrated, the person under investigation shall pay to the person who paid the medical examination provided for in paragraph 1 to the health service provider the costs incurred by the professional medical examination; where the person under investigation is a minor who is not fully qualified, the costs shall be borne by his legal representative.
(3) The costs of transporting the person under investigation to a medical establishment for the purpose of carrying out a medical examination shall be borne by the person under investigation where evidence of alcohol or other addictive substances is found; where the person under investigation is a minor who is not fully qualified, the costs shall be borne by his legal representative. If the presence of alcohol or other addictive substances is not demonstrated, the costs shall be borne by the Police of the Czech Republic, the Military Police, the Municipal Police, the Prison Service, the employer, the inspection body or the health service provider, under whose responsibility a call for examination has been made pursuant to § 21 (1) or an examination notice pursuant to § 21 (2), if not a case of differential diagnosis covered by public health insurance.
(4) Where a professional medical examination has been carried out in order to refuse an indicative examination by the person under investigation, the person under investigation shall be required to pay the person who has paid the medical examination provided for in paragraph 1 to the health service provider, the costs incurred by such reimbursement, irrespective of the result of the examination; the person shall also bear the costs of transporting him to a medical establishment for the purpose of carrying out a medical examination. Where the person under investigation is a minor who is not fully qualified, the costs shall be borne by his legal representative.
(5) Toxicological examinations are to be paid by the health service provider who requested such examinations. If the amount paid is not part of the costs of the proceedings under another legislation and the presence of alcohol or other substance is demonstrated, the person under investigation shall pay the costs incurred by paying the toxicology test to the health service provider; where the person under investigation is a minor who is not fully qualified, the costs shall be borne by his legal representative.
34. The contested parts of § 35 of Act No. 65 / 2017 Coll., on the protection of health against the harmful effects of addictive substances, as amended by Act No. 183 / 2017 Coll., and their context reads [§ 35 is challenged only in paragraph 1 (a) in the words "or 4," in paragraph 1 (k), paragraph 2 (b) in the words "(k) or" and paragraph 4 (a) in the words "(k) or"]:
Transfers of natural persons
(1) A natural person commits an offence by:
(a) in contravention of Article 3 (1), (2) or (3) or Article 11 (1), (2), (3) or (4), sell a tobacco product, a smoking aid, an herbal product intended for smoking, an electronic cigarette or an alcoholic beverage;
(...)
(k) in contravention of Paragraph 11 (6), sell or supply an alcoholic beverage to a person who can reasonably be expected to consume an alcoholic beverage in a subsequent manner and subsequently carry out an activity in which, due to the previous ingestion of an alcoholic beverage, he could endanger the health of people or damage property;
(...)
(o) contrary to § 19
1. ingests an alcoholic beverage or uses another addictive substance, although it knows that it will carry out an activity in which it could endanger the life or health of its own or other person or harm property;
2. after ingestion of an alcoholic drink or other addictive substance, carries out an activity in which it could endanger the life or health of its own or another person or damage property; or
(...)
(2) A penalty may be imposed in respect of an offence:
(a) 5 000 CZK if the offence referred to in paragraph 1 (d) to (h) or (m) is committed;
(b) 10 000 CZK if the offence referred to in paragraph 1 (k) or (l) is committed;
(...)
(4) A prohibition of action may be imposed on an offence until:
(a) 1 year if the offence referred to in paragraph 1 (k) or (l) is committed;
(...)
35. The contested parts of § 36 of Act No. 65 / 2017 Coll., on the protection of health against harmful effects of addictive substances, as amended by Act No. 183 / 2017 Coll., and their context reads [§ 36 is challenged only in paragraph 1 (b), paragraph 1 (j) in the words "or 4", paragraph 1 (k) and (m) and paragraph 10 (b) in the words "(b)" and "(k),"]:
Transfers of legal and business natural persons
(1) The seller commits an infringement by:
(...)
(b) in contravention of Article 3 (2) (d), sell a tobacco product, a smoking device, an herbal product intended for smoking or an electronic cigarette for an action intended primarily for persons under the age of 18;
(...)
(j) in contravention of Articles 11 (1), 11 (2) (a), (b), (c), (e), (f) or (g), or Article 11 (3) or (4), sell or serve an alcoholic beverage;
(k) in contravention of Paragraph 11 (2) (d), sell or supply an alcoholic beverage for an event intended primarily for persons under the age of 18;
(l) in contravention of Article 11 (5), sell or supply an alcoholic beverage to a person under the age of 18;
(m) in contravention of Article 11 (6), sell or supply an alcoholic beverage to a person who can reasonably be expected to consume an alcoholic beverage in a subsequent manner and subsequently carry out an activity in which, due to the previous ingestion of an alcoholic beverage, it could endanger the health of people or harm property;
(...)
(8) The operator of the food service establishment commits an offence by:
(a) in contravention of Article 9 (1), does not invite a person who does not comply with a smoking ban in a place where smoking is prohibited from continuing or leaving the premises; or
(b) fails to comply with the marking requirement laid down in Article 9 (2).
(...)
(10) A penalty may be imposed in respect of an offence:
(...)
(b) 50 000 CZK if the offence referred to in paragraphs 1 (b), (d), (e), (h), (k), (m), (n) and (o), paragraphs 2 (a), (c) to (e), 3 (a) and (c), 4 (a), (c), (d), (e) and (f), 5 (a) and (c), 6 (a) and (c), 7 (a) and (c), 8 (a) or 9 (a),
(...)
Terms and conditions of the formal assessment of the proposal
36. The Constitutional Court notes that it is competent to discuss an application for annulment of the contested legal provisions, the application fulfils all the formal requirements laid down by law and the appellant was entitled [Paragraph 64 (1) (b) of Act No 182 / 1993 Coll., on the Constitutional Court]. It also finds none of the grounds for inadmissibility of the application or for the termination of the procedure. Therefore, the conditions for its substantive assessment are met.
Assessment of the competence and constitutional conformity of the procedure for the adoption of the contested legislative provisions
37. According to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with a constitutional order consists of answering three questions: whether the law was adopted and issued within the limits of the constitutional jurisdiction, in a constitutional manner and whether its content is in accordance with constitutional law.
38. The contested provisions or parts thereof were adopted as part of the new Act on Health Protection against the harmful effects of addictive substances, which took effect on 31 May 2017. This Act has already been amended by Act No. 183 / 2017 Coll., amending certain laws in connection with the adoption of the Act on Liability for Infringements and Proceedings and the Act on Certain Infringements. However, the contested provisions or parts of them did not change. In general, the terminology has changed so that the violation of the law by both natural and legal persons is referred to as "offence 'in Sections 35 and 36 of Act No. 65 / 2017 Coll., on the protection of health against harmful effects of addictive substances, as amended by Act No. 183 / 2017 Coll. In the light of the context of the contested provisions, in the introductory part of Section 35 (4) of the Act, the words" together with a fine' were deleted, so that the prohibition of activity under that provision can be imposed separately. In the introductory part of Section 36 (10) of the Act, the words "fine shall be imposed 'were replaced by the words" fine may be imposed'.
39. Parliament was competent, within the meaning of Article 15 (1) of the Constitution, to adopt a law on the protection of health against the harmful effects of addicts. From the statements of his chambers and from publicly available documents relating to the legislative process, the Constitutional Court found that the Government had submitted the draft law (House Press No. 828, 7th Election Period, 2013-2017), including the contested provisions or parts thereof, to the Chamber of Deputies on 2 June 2016. It was approved by the Chamber of Deputies at its third reading on 9 December 2016 at its 53rd meeting (Resolution 1480). 118 of the 163 Members present voted against, 23 voted against and 22 abstained.
40. Following the referral of the Senate bill, the Senate's organizational committee ordered the press to discuss, inter alia, the constitutional legal committee. However, the Constitutional Legal Committee has not adopted a resolution on the subject. On 19 January 2017, the Senate discussed and approved the bill (Senate Document No 28, 11th term of office, 2016- 2018) at its 4th session (Resolution No 80). 45 of the 68 senators present voted in favour of the bill, with 12 and 11 abstentions. The law adopted was delivered to the President of the Republic on 31 January 2017 and signed on 14 February 2017. Its publication took place in the Collection of Laws on 3 March 2017 in the amount of 21 under No 65 / 2017 Coll.; it became effective on 31 May 2017.
41. These findings are sufficient to conclude that the law was adopted in a constitutional manner. Moreover, the appellant did not object to the procedure for adopting the law. The fact that the Chamber of Deputies did not approve some amendments in the prescribed procedure cannot establish the inconstitutionality of the law. In fact, the Constitutional Court is in breach of the Constitution or of any other part of the Constitution or of any provision of the so-called sub-constitutional law (for example, Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended), but only in the event that the infringement is acquired by a constitutional dimension, in particular because of the protection of the free competition of political parties and the protection of minorities [See, for example, the findings of 1 March 2011 sp. zl. ÚS 55 / 10 (N 27 / 60 SbNU 279; 80 / 2011 Sb.) or of 27 November 2012 sp. Such an error was not contested by the appellant and was not detected by the Constitutional Court.
General considerations of the meritorial assessment
42. Since the Constitutional Court did not find a lack of competence or shortcomings in the procedure for the adoption of the contested provisions, it accepted to assess the substantive compliance of those provisions with the constitutional order.
The nature of the rights to be infringed, according to the appellant, and the review by the Constitutional Court of interference in those rights
43. The appellant objected to the discrepancy between the various parts of the Act with Article 1 (1) of the Constitution, according to which the Czech Republic is a democratic legal state, with the restriction of state power and the prohibition of libel by the State, contained in Article 2 (3) of the Constitution and Article 2 (2) of the Charter, with human freedom as a value as stated in Article 1 of the Charter, with the protection of property under Article 11 (1) of the Charter and with the right to do business under Article 26 (1) of the Charter. The Constitutional Court has already repeatedly expressed its views on the content of these provisions and the manner in which they appear in the proceedings for the annulment of laws and other legislation. At this point, it will briefly recall its approach as it foresees an assessment of the contested provisions.
44. By referring to the initial provisions of the Constitution and the Charter, the appellant underlines the fundamental principles and values to which the Czech Republic has applied, but which do not imply specific public subjective rights. In particular, they acquire importance in the context of the following provisions of these rules as an interpretative basis or an argument instrument in the Constitutional Court's reasoning.
45. The Constitutional Court thus concluded, for example, that Article 1 (1) of the Constitution shows respect for the fundamental rights and freedoms of the individual [e.g. the already cited finding sp. zn. At the same time, Article 1 The Constitution is also closely linked to the prohibition of arbitrage by the State authorities contained in Article 2 (3) of the Constitution and Article 2 (2) of the Charter [cf. the finding of 23 May 2000 sp. zn. Pl. ÚS 24 / 99 (N 73 / 18 CollNU 135; 167 / 2000 Coll.) and the already cited finding of sp. zn. Pl. ÚS 24 / 10].
46. Above all, the Constitutional Court consistently judges that Article 1 of the Charter, the infringement of which is expressly objected, cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but on the contrary must be taken as one whole. It is clear from the adaptation of this general provision that the basic protected values listed in Article 1 of the Charter did not devise the Constitution as absolute. This reflects also Article 4 of the Charter, which directly presupposes the existence of statutory obligations and restrictions, but also Article 2 (3) of the Charter, which foresees the possibility of imposing certain obligations or restrictions [cf. the Constitutional Court of the Czech and Slovak Federal Republic's finding of 8 October 1992 sp. zn. Pl. ÚS 22 / 92; it is found No 11 Resolution Reports and Finals of the Constitutional Court of the CSFR, Prague: Linde, 2011, p. 41, and the finds of 12 March 2008 sp.
47. Owners' right protected by Article 11 (1) The Charter is, by its nature, among the fundamental human rights and individual freedoms. However, like other fundamental rights, it is also limited, particularly in the case of a conflict with another fundamental right or in the case of the necessary enforcement of a constitutionally challenged public interest. In order to determine whether the restriction of property rights has taken place in accordance with Article 11 of the Charter, the Constitutional Court first assesses whether it did so on the basis of the law and within its limits [cf. ÚS 63 / 04 (N 61 / 36 SbNU 663); 210 / 2005 Coll.]. If these conditions are met, it shall proceed to the so-called proportionality test and examine whether the measure in question pursues a legitimate (constitutional) objective and, if so, whether it is appropriate to achieve that objective (the requirement of suitability) to ensure that this objective cannot be achieved in any other way which would be more proportionate to the basic law concerned (the requirement for necessity) and, finally, whether the interest in achieving that objective in a particular legal relationship outweighs the fundamental law concerned (proportionality in the narrower sense).
48. As regards the right to do business and the related case law, the Constitutional Court last stated in detail in the finding concerning electronic registration of sales [the finding of 12 December 2017 sp. zn. Pl. ÚS 26 / 16 (8 / 2018 Coll.)]. He recalled that, in accordance with Article 26, It is necessary to distinguish between the right to conduct business as a freedom of business guaranteed in paragraph 1 of this provision and the pursuit of a profession or other economic activity, including the conditions attached to such exercise, which may be laid down by law (Article 26 (2) of the Charter). He also stressed that the right to do business was included in the title of the fourth Charter as the so-called economic, social and cultural rights, as well as the economic, social and cultural rights listed in Article 41 (1) of the Charter. It is therefore not directly applicable to the same extent as fundamental human rights or political rights. The regulation of these rights is primarily in the hands of the legislator, and only secondary, and to a limited extent, the constitutional guarantees of economic, social and cultural rights can be regarded as a question of Judicial. Even in the case of fundamental rights referred to in Article 26 (1) However, the Charter shall apply the requirement of Article 4 (4) of that Charter to investigate the substance and meaning of such rights when establishing the limits.
49. These conclusions are also consistent with the methodology for reviewing the intervention into the right to do business. The constitutional test will also be passed by legislation that pursues a legitimate objective and does so in a way that can be seen as a reasonable means of achieving it, although it may not be the best, most appropriate, most effective or most wise [cf. also the finding of 5 October 2006 sp. zn. It is therefore a methodological tool for the Constitutional Court to review the legislature's intervention in the right to engage in business, which reflects both the need to respect the legislature's relatively large discretion and the need to exclude its possible excesses.
50. The sensitivity test shall consist of the following four steps:
I. Definition of the meaning and substance of the fundamental right, namely its essential content.
II. Assessment of whether the law does not affect the very existence of a fundamental right or the actual realisation of its essential content.
III. Assessment of whether the legal regulation pursues a legitimate objective; Therefore, whether it is an arbitrary fundamental reduction in the overall standard of fundamental rights.
IV. Consideration of whether the legal means used to achieve it is reasonable (rational), although not necessarily the best, most suitable, most effective or wisest.
51. In the already cited finding sp. zn. Pl. ÚS 26 / 16 The Constitutional Court, following the earlier case-law, has defined that the meaning and substance of the right to engage in business are, on the one hand, purely individual (the possibility of individual self-employment) and, on the other hand, material law, where such individual freedom is also an essential element of the democratic rule of law, and, on the other hand, economic (it is simply a profit that is partly taxed so that the State obtains the resources for its functions). In other words, in the case of the right to do business and to pursue another economic activity, the restriction on its substance and the meaning would be if, as a result of that activity, it would no longer be able to provide the means for those performing it [the findings of 8 December 2015 sp. zn. ÚS 5 / 15 (N 204 / 79 SbNU 313; 15 / 2016 Coll.), point 48, or of 23 May 2017 sp. zn. Pl. ÚS 10 / 12 (207 / 2017 Coll.), paragraph 66].
52. In the case of electronic sales records, the Constitutional Court had to deal with a legal condition, which can also be considered to make it conditional on access to the business itself, since it cannot be initiated (sine qua non condition) without fulfilling the business in question. The contested restrictions on the sale of addictive substances or smoking, with the exception of the notification sent to the Ministry of Health pursuant to § 6 (4) and (5) of the Act on the protection of health against the harmful effects of addictive substances, are, in contrast, conditions which restrict entrepreneurs only in the performance of their own business and not conditions for access to them, which the Constitutional Court considers more strictly.
Objective of the Health Protection Act against the harmful effects of addictive substances
53. The rights and freedoms referred to above, the infringement of which the appellant contests, are in conflict with fundamental rights, the protection or enforcement of which has been followed by the adoption of the contested legislation. It is clear from the very name of the law on the protection of health against the harmful effects of addictive substances as well as from almost every one of its substantive provisions that the health protection (guaranteed by the State of Article 31 of the Charter), namely life (Article 6 (1) of the Charter), the special protection of children and adolescents and the protection of pregnant women (Articles 32 and 6 (1) of the Charter) has been monitored by its adoption and implementation. In the broader context, the meaning of the law can also be seen in improving the environment (Article 35 (1) of the Charter) and reducing State spending on health and safety. Such conclusions are also supported by a reasoned report on the government's draft law, according to which the main general objective of the law is "to strengthen protection against the damage caused by addictive substances. The priority in this regard is to increase the protection of public health, particularly in children and adolescents, but also to focus on reducing the effects of damage caused by addictive substances on the social, security and economic level. '(Digital repository of the Chamber of Deputies of the Parliament of the Czech Republic, House Press No. 828 / 0, 7th term available at www.psp.cz.)
54. The reason report points to a study showing that in 2007, the social costs (including, for example, the cost of providing health services, social services and the cost of criminal activity committed as a result of substance abuse) totalled CZK 56.2 billion; the social costs of tobacco use amounted to CZK 33.1 billion, CZK 16.4 billion for alcohol and CZK 6.7 billion for illicit substance abuse. Other studies or expert estimates are intended to suggest that the social costs associated with the damage caused by the use of addictive substances can in fact be much higher, particularly for alcohol and tobacco (cf. p. 169 of the explanatory memorandum). In addition, page 174 refers to studies which show that 18 000 people die a year in the Czech Republic due to diseases associated with tobacco use, with smoking causing 9 out of 10 cases of lung cancer, up to 6 times more frequent head / neck cancer, up to 4 times more frequent pancreatic cancer, up to 14 times more chronic obstructive pulmonary disease, up to 10 times more frequent cardiovascular disease (e. g. myocardial infarction, stroke). Other research described, for example, on pages 174 to 177 of the explanatory memorandum shows insufficient protection for children against exposure to tobacco smoke, alcohol and illegal drugs, the link between alcohol consumption, tobacco use and illegal drugs and a number of other sociographic findings.
55. The objectives of the various provisions or parts of the law under appeal will be addressed by the Constitutional Court below in its own review.
56. To protect the health and life of the Constitutional Court in the past, the Constitutional Court stressed that it is among the fundamental values [cf. the findings of 27 September 2006 sp. zn. Pl. ÚS 51 / 06 (N 171 / 42 CollNU 471; 483 / 2006 Coll.), paragraph 37, of 23 September 2008 sp. zn. The State is responsible for ensuring and fulfilling the right to health, and it is therefore also up to it to take adequate measures to that end, including through the improvement of all aspects of external living conditions (sp. zn. The Constitutional Order provides the legislator with a relatively wide margin of discretion as to how to ensure health protection (the already cited finding sp. zn.
57. The right to health implies a positive obligation of the State to act (including a fundamental obligation of the State under Article 1 of the Constitutional Act No. 110 / 1998 Coll., on the safety of the Czech Republic) and to protect health by various necessary measures. The Charter itself expressly admits health protection as an exception to the prohibition of forced labour (Article 9 (2) of the Charter), as a possible reason for a restriction on the exercise of ownership (Article 11 (3) of the Charter), an exception for interference in the integrity of homes (Article 12 (3) of the Charter), a possible reason for restrictions on freedom of movement and residence (Article 14 (3) of the Charter), the freedom of religion or belief (Article 16 (4) of the Charter), the freedom of expression and the right of information (Article 17 (4) of the Charter), and the right of peaceful assembly (Article 19 (2) of the Charter).
58. The Constitutional Court has also stated that Article 31 of the Charter imposes an obligation on the State to protect the health of the population, and therefore, in cases beyond the legal sphere of the individual, an obligation to protect health even against the will of the persons concerned (the already cited finding sp. zn. Therefore, a distinction should be made between situations in which the individual's health is protected in a specific case, but at the same time its dignity and freedom of decision [e.g. cases of disagreement with the provision of health care, cf. the author mentioned by sp. zn. I. ÚS 2078 / 16, or exceptionally acceptable to the need for protection of the patient, e.g. findings of 3 February 2011 sp. zn. III. ÚS 449 / 06 (N 10 / 60 SbNU 97), or of 22 December 2015 sp.
59. It cannot be overlooked that the objectives pursued by the Act on the Protection of Health against the harmful effects of addictive substances in general also serve to realise the international obligations of the Czech Republic as a State which is claiming to comply with those obligations (Article 1 (2) of the Constitution). For example, Article 12 of the International Covenant on Economic, Social and Cultural Rights, published under No 120 / 1976 Coll., according to which the Contracting States recognise the right of everyone to achieve the maximum achievable level of physical and mental health and take measures to achieve the full implementation of this right, including, inter alia, measures to reduce the number of abortions and infant mortality and measures to improve the healthy development of the child, improve all aspects of external living conditions and industrial hygiene and prevent, treat and control epidemic, local diseases, occupational diseases and other diseases.
60. Similarly, pursuant to Article 24 of the Convention on the Rights of the Child, published under No 104 / 1991 Coll., States recognise the child's right to reach the most achievable level of health and take the necessary measures to reduce infant and child mortality, as well as all effective and necessary measures to eliminate all traditional practices damaging children's health.
61. Under Article 11 of the European Social Charter, published under No 14 / 2000 Coll. s., States undertake to take measures, in particular, to eliminate the causes of diseases as far as possible, to provide advisory and educational services to promote health and to increase individual responsibility in health matters and to prevent epidemic, endemic and other diseases as far as possible.
62. The Czech Republic is also a Contracting Party to the World Health Organisation Framework Convention on Tobacco Control, published under No 71 / 2012 Coll., ("the Framework Convention"). Article 4 sets out among the main principles of this Convention the need to take measures to protect all persons from exposure to tobacco smoke and the need to take measures to prevent the start of the use of tobacco products, to promote and promote cessation and to reduce the use of tobacco products in whatever form. Furthermore, as a key principle, it is noted that complex multisectoral measures and responses leading to a reduction in consumption of all tobacco products at national, regional and international level are, in line with the principles of protection and promotion of public health, necessary for the prevention of disease, early disability and mortality due to tobacco consumption and exposure to tobacco smoke. Article 5 (3) The framework conventions commit the contracting States to proceed with the development and implementation of their public health policies in order to protect them from the commercial and other interests of the tobacco industry.
63. Article 8 The Parties recognise that scientific evidence clearly indicates that exposure to tobacco smoke causes death, disease and disability. Each Contracting Party shall, therefore, adopt and introduce actively, in areas falling within its national jurisdiction under national law and in other areas of its competence, the adoption and introduction of effective legislative, implementing, administrative or other measures providing protection against exposure to tobacco smoke in the indoor premises of the workplace, in public transport, in public places and in other public places as appropriate.
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Regulation Information
| Citation | The Constitutional Court found No. 81 / 2018 Coll., on the application for annulment of certain parts of Act No. 65 / 2017 Coll., on the protection of health against harmful effects of addictive substances, as amended by Act No. 183 / 2017 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.05.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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