On The Proposal That Repeal Of Section 289 Paragraph. 2 Of The Criminal Code

Original Language Title: On The Proposal To Repeal § 289 Paragraph. 2 Of The Criminal Code

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=80386&nr=259~2F2013~20Sb.&ft=txt

259/2013 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 13/12 of 23 July. July 2013

the plenary consisting of the President of the Court, Pavel Rychetský and judges Jaroslav

Fenyka, Jan Filip, Vlasta Formánkové, Vojena Güttlera, Paul

Holländera, Ivana Janů, Vladimir Crust, Jan Jiří Musil, Nykodýma,

Vladimir Sládečka, Milady Tomková, and Michaela Židlické of design

The District Court in Liberec on abolition of the provisions of section 289, paragraph. 2 of law No.

40/2009 Coll., the criminal code, with the participation of 1. The Chamber of Deputies

The Parliament of the Czech Republic and 2. Senate of the Parliament of the Czech Republic as

the parties to proceedings



as follows:



I. the provisions of section 289, paragraph. 2 of the Act No. 40/2009 Coll., the criminal code,

in the words of "and what is the amount larger than a small case of narcotic substances,

psychotropic substances, preparations containing and Poisons "cancels the date

the publication of this finding in the collection of laws.



II. At the same time shall cease to have force and the provisions of section 2 of annex 2 of regulation

No 467/2009 Coll., amending, for the purposes of the Criminal Code provides for

What is considered a poison, and what is the amount larger than a small for narcotic drugs

substances, psychotropic substances, preparations containing and Poisons, as amended by

Government Regulation No. 4/2012 Coll., on the date of publication of this finding in the collection

laws.



III. The proposal to repeal the remaining part of the provisions of section 289, paragraph. 2 of the Act

No. 40/2009 Coll., the criminal code, is refusing.



Justification



(I).



Recap of the proposal



1. the examination of the Proposal on 24. April 2012, the applicant seeks the annulment of

the provisions of section 289, paragraph. 2 of the Act No. 40/2009 Coll., the criminal code, and

for the discrepancy with the article. 39 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter").



2. In the draft that runs under recapitulates SP. zn. 4 T 12/2012 criminal

the prosecution against the Miroslavě Feistauerové, and for misdemeanor possession

narcotic drugs and psychotropic substances and poison according to § 284 paragraph. 2 of the criminal

code. According to the indictment, that should happen by přechovávala in the

the vehicle in a backpack for four plastic bags with a total of 3.25 g of methamphetamine

(called pervitin) with the content of the active substance methamphetamine 1.9 g-base, even if the

methamphetamine is as a psychotropic substance listed in the annex No. 5 to the Act

No. 167/1998 Coll., on addictive substances and amending certain other

laws, as amended, namely that unduly for custom

the need for přechovávala in quantities of more than a little different psychotropic

the substance than the psychotropic drug containing any tetrahydrocannabinol (THC),

isomer or its stereochemickou Variant (THC). In the present case is

the quantities of psychotropic substances the criterion, which determines that the

the crime scene. This quantity is required to detect, according to the Court of

the statutory provisions of the regulation of the Government No. 467/2009 Coll., amending for the

the purposes of the Criminal Code provides for what is considered to be poisons and what is

a small quantity is greater than for narcotic drugs, psychotropic substances,

products tagged and poisons. The applicant concludes that the

the relevant statutory provisions, the use of which is in a criminal case

decisive for deciding guilt and punishment, is in contradiction with the constitutional

policy. Therefore, the prosecution said, and submitted the case to the constitutional

of the Court.



3. the applicant is of the opinion that the standard lower legal force than the

the law, you cannot establish a limit which constitutes the offence of the crime. If the criminal

the Code empowers the Government as the authority of the Executive to determine the limits of that

podzákonnou the standard, such provisions of law contrary to the principle of

crimen sine lege is expressed in the article. 39 of the Charter. Nothing stopped

lawmakers, at the same time with the fixing ring of narcotic drugs and

Psychotropic Substances Act No. 167/1998 Coll., on addictive substances and the

Amendment of certain other acts, as amended by the

and the amount that is deemed to be more than a little. A similar situation was

already in the past by the legislator dealt with the determination of the boundaries of the damage as the limits

that property crimes. contradiction with article. 39 of the Charter of

He was also one of the reasons for that was Act No. 265/2001 Coll., which

the amended Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure),

in the wording of later regulations, and Act No. 140/1961 Coll., the criminal code, in the

as amended, and some other laws, established directly in

the Criminal Code of the above damages as a qualifier character property

the offences, in the meantime, provided for by regulation of the Government No. 464/1991 Coll., on the

determination of the minimum monthly wage for the purposes of criminal law. Previous

the legislation, which determine the amount of narcotic drugs and psychotropic substances as

the limits that the judicial practice, was kept by the petitioner

souladnější with the constitutional order [article 40 paragraph (l) of the Charter, as well as article 90

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution")] than when this limit

establishes the authority of the Executive. Separation of powers resulting from the constitutional order

gives the definition of the competence of the legislature to the constraints (in the form of laws)

entitled to be interpreted only by the courts. Deciding on the limits of the

that practice is not and cannot be the responsibility of the authority of the Executive.



II.



A recap of the representation of the other parties to the proceedings



4. The Constitutional Court has called on the other parties to the proceedings, to submit their comments to the

the proposal.



5. The Chamber of deputies of the Parliament of the Czech Republic to design

zrekapitulovala, that the legal provisions have been approved by law

No. 40/2009 Coll., the criminal code, which were discussed by the Chamber of Deputies

in the 5. term as house print no. 410. The Bill was

approved in the 3. reading on 11. November 2008 (of 152 MPs

voted 120 for, 23 against). The statutory provisions in question was

part of the original Government proposal and remained

unchanged, while in the original Government proposal was about the provisions of § 287

paragraph. 2. The explanatory memorandum of the Government mandate to issue a government regulation

justify the needs of practice when only very difficult to unified

the procedure of law in pre-trial criminal proceedings (see different

table in authentic Police President instruction No. 39/1998 and in order

the general nature of the Supreme Public Prosecutor No. 6/2000) and the case-law

in respect of the quantity in the act more than the small for narcotic drugs and

psychotropic substances and Poisons, which resulted in inconsistencies in the

process of law in criminal proceedings.



6. The Minister of Justice in his speech when discussing the draft

the law in the 1. read in the context of the contested provisions stated:

"The novelty is the drug, then edit in the new Criminal Code, when there is

the effort to find a compromise between the supporters of the liberal concept and supporters

more radical challenges, harder approach to possession and use of drugs. I want to

Note that the adjustment, which is before you, is in the phase of drug possession in

principle, only by refining the existing arrangements. Already today the principle applies, the

that possession of drugs on a scale larger than the small is a criminal offence and to a lesser

than small is an offence. It is not only words, where's the border. It is

the problem and this is what our editing brings. Government Regulation, which

builds on the Penal Code, has clearly say where is this IRR for

each type of substance so that citizens have greater legal certainty,

know, then, what is a crime and what is the offence, and the authorities in the

law enforcement agencies also have instructions on how to proceed. So in terms of

possession of drugs is a violation of what the offence is, compared to the current

Edit does not change anything. It is the same principle, it is the word

, small quantity is greater than or less than the ' small ', only specifies the

for each type, what this meant. And in the case of drug possession, in

the event, which is held by more than a small quantity, when it comes to

the offence, is a distinction into two forms of factual matters. soft

the drugs, which counts with imprisonment of up to one year, and other drugs,

where counts with two years. So here it is, a resolution that is

qualitative change, however I note that this qualitative change was

included in the design of this two years ago and this proposal on

the soil of the Chamber of Deputies has passed, so here with bold

modifications, we more or less from what has been discussed already before the two

for years ".



7. the statement was closed by stating that the concept that the Government

Regulation, what is the amount larger than a small case of narcotic substances,

psychotropic substances, preparations containing and Poisons, not any of the

chatters members called into question, and in this context has not been filed

No amendment.



8. the Senate of the Parliament of the Czech Republic in its comments to the proposal also

recounted that the statutory provisions is part of the criminal

the code since its adoption, and the day of the 9. February 2009 along with it happened

a valid, without later somehow changed. Constitutionally-legal Committee

the Senate approved the law recommended in the text of a transferred by the

the Chamber of Deputies. The draft of the Criminal Code (the Senate printing No. 11), as amended by

the Chamber of Deputies was transferred in the constitutionally established time limit to 3.

meeting (7. term) adopted resolution No. 78 of 8 December. in January 2009,
When the vote no. 4 of 76 senators present voted for his

approval of the 74 Senators opposed was one and one of the senators present to

abstained from voting.



9. The criminal code was the Senate majority positively evaluated as a whole.

Repeatedly in the debate was the proposal demonstrated the fear that the return of the proposal

the criminal code for the partial requirements could delay its adoption of

for several years, and therefore are the adoption of the law sacrificed some partial

reservations (but not in the given direction). When discussing the draft of the criminal

the code is not called into question the principle of crimen sine lege (by law is

set the character of the negotiations-not enough small quantities of narcotic drugs or

psychotropic substances), within the meaning of the exclusion of judicial arbitrariness and more

legal security for the citizen and the principle that a judge is deciding the bound

the law ("law"). When the hearing was not even called into question the principle that

secondary normotvorba is used only for the implementation of the law, not to his

Tween (detailed government regulation contains only a list of more than

hundreds of substances and their critical benefits). The majority therefore

identification with the explanatory memorandum, the Government, which stresses the importance of

provisions to unify the process of law in criminal proceedings and

getting out of uncertainty. Consideration of the criminal code directly

legal authorization for the touch of the Government to determine the critical quantity

in narcotic drugs and psychotropic doses and preparations containing them. In

the debate was, of course, possible to record speeches that in relation to the

"drug" deliktům appreciates the used specifications (General observations

the quantitative).



10. the statement was closed by stating that the Senate discussed in question

the draft Criminal Code, within the limits of the Constitution and constitutionally

laid down in the way and passed the draft law consistently in

majority believe that it is in accordance with constitutional order and the

international obligations. Left to the Constitutional Court to assess

the constitutionality of the contested legal provisions.



III.



The text of the contested provisions



11. The legal provisions:



"The Government, by regulation, provides what is considered poisons within the meaning of § 283, 284 and

286 and what quantity is greater than the small for narcotic drugs, psychotropic

substances and preparations containing poisons. "



12. this legal provision is called the "Common provisions", by virtue of

in the first part of title VII of the Penal Code, dealing with the criminal

acts generally dangerous. The quantification is the element

constituent elements of criminal offences the illicit manufacture and other waste

in narcotic drugs and psychotropic substances and poisons under section 283 of the criminal

code, possession of narcotic drugs and psychotropic substances and poison according to § 284

the criminal code and the production and possession of the subject to the illicit manufacture of

narcotic drugs and psychotropic substances and poison, pursuant to section 286 of the criminal code.



13. In accordance with the legal provisions are the values of narcotic substances,

psychotropic substances and preparations is tagged for the purposes of criminal

the code set out in annex 2 of Regulation No 467/2009 Coll., which

for the purposes of the Criminal Code provides for what is considered to be poisons and what

the quantity is more than a little for narcotic drugs, psychotropic substances,

products tagged and poisons. This government regulation was changed

Government Ordinance No. 4/2012 Coll., which, of course, for any changes there

the values set, but only to the terminologickému specification, respectively.

Supplement, and to complement the values for other substances.



IV.



Locus standi



14. The Constitutional Court first dealt with the evidence of the appellant is active.

The General Court shall be entitled to submit a proposal to repeal the law or its

individual provisions, if there is a conclusion that the law, which has to be

solution used is in conflict with the constitutional order (article 95, paragraph 2

The Constitution, in conjunction with § 64 paragraph. 3 of Act No. 182/1993 Coll., on the constitutional

the Court, in the wording of later regulations). The General Court is not entitled to

Sue voicing mismatch between regulation by the Government and the constitutional order

(resolution of 22 July 1993. 9.1993, SP. zn. PL. ÚS 1/93, 1/2 SbNU 197).



15. In the case under examination, the application itself is not about government regulation, but

on the application of the provisions of the Act, that the issue of the podzákonného regulation

empowering, and as a result, directs its application. The General Court is then

in article mode. paragraph 95. 2 of the Constitution undoubtedly entitled to submission questions

whether the legislature is entitled to what is to be, in the opinion of the General Court

the object of the Act and what is the General Court in his particular case

apply, pass on to the Government.



16. The General Court is required to decide in case of indictment,

in which the factual sentences for possession of psychotropic substances listed

in annex 5, to the Act No. 167/1998 Coll., on addictive substances and amending

certain other laws, as amended, and in the amount of

more than a little. The determination of the amount larger than a small u

psychotropic substances is then reserved for the legislature just regulation

the Government. Therefore, the General Court of legitimován to submit a proposal actively in this

things. Just because it is, of course, the General Court shall be obliged to apply the

the statutory provisions in relation to the legal character of a quantity greater than

small, is in the control of inspection standards, actively to draft legitimován

on the part of the provisions which it concerns. In

the rest of the design was rejected due under section 43, paragraph. 1 (a). (c))

Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No. 77/1998

SB.



In the.



The adoption of legal provisions in conformity



17. Of the Assembly's print no. 410, the Constitutional Court found that the

the statutory provision was included in the Government's draft of the criminal code

(then as section 287 (2)), which had been circulated to members, 25 June. February

2008. The draft law, including the legal provisions in question was approved by the

on 42. the meeting of the fifth period of the Chamber of Deputies on 11 July. November 2008,

When voted 120 of 152 MPs present.



18. Out of print 11 it was found that the Senate received Bill on 12 June 2006.

December 2008. His approval was at the third meeting of the 7th term

period of the day 8. in January 2009, when it voted 74 to 76 of the present

the senators.



19. the President, adopted the Bill signed by 27. January 1, 2009. The law was

declared in the amount of 11 Collections of laws of the day 9. February 2009.



20. The Constitutional Court with regard to the above notes that the contested

statutory provisions has been adopted as the law constitutionally Conformal manner.



VI.



Constitutional background



21. Regulatory competence through government regulation is

a separate mandatory powers pursuant to article. 78 of the Constitution. In this case,

the Government is authorised to issue regulations for the implementation of the law and its limits

and does not need to do any special authorisation by the Parliament. However, in the

accordance with the principles of the democratic rule of law can also express

authority of the Government to issue a regulation. In such cases, the constitutional

the condition that the conceptual clarification of such authority must be directly in

the law [cf. find SP. zn. PL. ÚS 19/93 of 21 December. 12.1993 (N 1/1

SbNU 1; 14/1994 Coll.)]. If the Government does not count with the release of the regulation,

the law is silent (which, however, does not mean that it cannot be for the implementation of the law and in the

the limits of government regulation issue). In each case, the regulation of the Government

cannot legally limit-up cannot be praeter legem-and must be

keep within the law, which either are defined explicitly or under

of the meaning and purpose of the Act [find SP. zn. PL. ÚS 43/97 of 29 April 1997. 4. the 1998

(N 48/10 SbNU 319; 119/1998 Coll.), find SP. zn. PL. ÚS 45/2000

14.2. 2001 (N 30/21 SbNU 261; 96/2001 Coll.)]. Completely free account

Executive Branch never has because he is always limited by the Constitution, international

the treaties and the General legal principles [find SP. zn. PL. ÚS 17/95 of

25 June. 10.1995 (N 67/4 SbNU 157; 271/1995 Sb.)].



22. The responsibility of the regulatory power to another authority, the Government is not

entitled to its performance on the basis of the article. 78 of the Constitution [find SP. zn. PL.

TC 50/04 of 8 May. 3.2006 (N 50/40 SbNU 443; 154/2006 Sb.)]. This is

on the key question of the separation of powers between the legislative and executive power in the

the area of norm-setting. Even the legislator by means of the ordinary laws of this

the power does not. The principle of the separation of powers, conversely, corresponds to that of the constitutional

rozhraničení powers sets limits as to the authorities of the Executive power, so

the power of the legislative [find SP. zn. PL. ÚS 52/3 of 20 October. 10.2004 (N

152/35 SbNU 117; 568/2004 Sb.)]. The concept of the rule of law, which is

their constitutional enshrinement in the article. 1 of the Constitution, namely the principle that implies or

the legislature nor the Executive Branch cannot with the forms of law, i.e.. with the sources of law,

to dispose freely, but must be guided by considerations of ústavodárce, as well as

aspects of the other, in particular transparency, accessibility and clarity

[find SP. zn. PL. ÚS 24/99 of 23 August. 5.2000 (N 73/18 SbNU 135;

167/2000 Coll.)].



23. Given the fundamental opinion certainly isn't in the domestic

of constitutionalism — nothing new. Already in the early days of building democratic

in the Czech Republic it was stated that the legislative act containing the

Verily the delegation of legislative power to the Government would change the Constitutional Charter
the fact that it has not yet joined the neobsaženou reservation, that the legislative

the National Assembly shall exercise only in so far as it nedelegovalo the Government

(cf. Constitutional Court of Czechoslovakia no mouth.

120/22-2/10 of 7 May 2002. November 1922 in: the official list of the Republic of

Czechoslovak 1922:284, 5605-5608).



24. It therefore follows that the constitutional definition of the derived standardisation

the Executive must be issued to the authorised body, cannot interfere with

things reserved the law and must be evident to the legislature to modify the above will

the legal standard, must therefore be open space for the sphere of regulation.

The Government, therefore, like other podzákonný prescription may only

the issue in more detail in fleshing out the basic features already modified

by law [cf. find SP. zn. PL. ÚS 45/2000 of 14 February 2000. 2. the 2001

(N 30/21 SbNU 261; 96/2001 Coll.), find SP. zn. PL. ÚS 5/01 of 16 June.

10.2001 (N 149/24 SbNU 79; 410/2001 Coll.), find SP. zn. PL. ÚS 3/95 of

on 11 July. 10.1995 (N 59/4 SbNU 91; 265/1995 Coll.), etc.].



VII.



The conclusions of the



25. The Constitutional Court sees a difference in the expression of the principle is crimen sine

lege in the article. 7. 1 to the Convention for the protection of human rights and fundamental freedoms

(hereinafter referred to as "the Convention"), which apparently found expression not only in the formal

robust approach of the European Court of human rights on the question of what

everything can be considered as a law, but in the case under examination, and in the comments

Senate of the Parliament of the Czech Republic. This apparently dates the law and

the right mixes. Indeed, in response to its own legislation, respectively.

her absence, can be traced in the area in the States of the Council of Europe

various legislative solutions.



26. The Constitutional Court, however, and when bound by the Convention is required to give

prefer to modify the fundamental rights and freedoms in their domestic concept

If they provide a higher standard of protection. Nota bene, if it is to be

adjustment of the Constitution reflected itself (cf. also the decision of the German

The Federal Constitutional Court, SP. zn. 2 BvR 2236/04 of 18 May. July

2005).



27. Among the constitutional aspects of the definition of the derived standardisation Executive

and the prohibition to interfere with the Affairs of the reserved Act, as

explained above. The Constitutional Court in the past in connection with the legal

Edit the other areas, that you cannot admit that the sphere of the protection of

fundamental rights and freedoms came under the jurisdiction of the Executive, which

It is not entitled to [find SP. zn. PL. ÚS 35/95 of 10 March. 7.1996 (N

64/5 SbNU 487; 206/1996 Coll.)]. The definition of that offence is the criminal

offence referred to in article. 39 Charter entrusted only to the law, to whose release is

According to the article. 15, article. paragraph 41. 1, article. 45-48 of the Constitution, only the competent

Parliament. Mixing the concepts of law and justice, which has been mentioned above, it is

Therefore, in the conditions of the Czech Republic in the area of fundamental rights and freedoms

out of the question.



28. With regard to this, confided that the competence for the definition

the constituent elements of the offence, the law eliminated the only other

cases possible and desirable to the secondary adjustment things unpredictable in

adoption of the law, subject to a torque of frequent changes, particularly in detail

technicistního character, when the legal basis can contain only

the most important (cf.. Vaidya, the sources of administrative law, in:

Hendrych, d. and wheels. Administrative law. The general part. 7. release. Prague: C. H.

Beck, 2009, p. 70). Indeed, part of the legal theorists or sub-statutory

standards between the sources of the criminal law does not (Jelinek, j. and wheels. The criminal

the right material. 2. Edition. Prague 2010, 37-43; Fryšták, M., Prouza, D.,

Žatecká, e., Heinz, r., Galát, m. Criminal substantive law-general part.

Ostrava 2008, pp. 12-15; Chmelík, j. and wheels. The criminal substantive law. General

part. Prague 2009, pp. 31-33). In that situation, so the edit

Government Regulation was still acceptable if for domestic addressees

legal standards as follows was zpřehledňována or more zpřístupňována

the international adjustment, which is the Czech Republic within the meaning of article. 1 (1). 2 and

article. 10 of the Constitution, or were the legal standards by instantiating the

governing the issue, at least in the basic features. About it but

It's not. From international obligations implies a wide discretion as to the boundaries of the

the amount of legally held the substance [article 3, paragraph 2, article 4 (b)). 5

paragraph. 3 and article. 7 (b). (b)) of the Convention on psychotropic substances-famous

under no 62/1989 Coll., article. 33 of the single Convention on narcotic drugs-

the famous No. 47/1965 Coll., article. 3 (3). 1 (a). (c) point (ii) of the Convention))

The United Nations against illicit traffic in narcotic drugs and

psychotropic substances-renowned under no 462/1991 Coll.]. The

"enabling" provisions do not provide for any criteria at all yet, and therefore

the Government on the basis of nothing, but does not specify the facts directly

to be added.



29. therefore, if the legislature Considered essential to precisely define what

for the purposes of legal qualification of factual matters of criminal offences

quantity larger than the small for psychotropic substances, without as yet

left to the assessment with regard to all the circumstances of the case

the general courts [cf. also find SP. zn. PL. ÚS 24/04 of 28 April 2004. 6.2005

(N 130/37 SbNU 641; 327/2005 Coll.)], then so could make only in the form of

the law. It is undecided whether the legally-in theory, it is a

mandatory or optional character of the constituent elements of the offence,

because in any case it is a character that is a condition of

criminality.



30. According to the explanatory memorandum was the adoption of legal provisions

justified by the needs of the practice, specifically the very difficult unification

the procedure of law in pre-trial criminal proceedings (when the police

the President and the Prosecutor have released custom binding table) and

the case-law concerning the Act provided for the amount larger than a small u

narcotic drugs and psychotropic substances and Poisons, resulting in an inconsistent

process of law in criminal proceedings (print 5. parliamentary term

The Chamber of Deputies no 410). In his speech before the Chamber of

the House, in other words, stressed the Minister of Justice, as was

mentioned above.



31. In the historical comparisons can therefore be noted that similar

the circumstances led to the adoption of the article. I, part A, point 53 and article. (IV) point 2 of the Act

No. 175/1990 Coll. amending and supplementing the criminal code. Those were the

the rule of law established, according to which construction of the lowest monthly wage

as the qualifying criteria for property crimes, the Government provides,

as it points out the appellant. This solution was, on the one hand,

justified by the fact that the criminal law did not limit the qualification of characters

for property crimes in fixed amounts, and to use terms more

I wish a larger range, considerable damage or significant range or damage large

the range and these terms were laid out in the case law that, depending

on the change of social conditions change, which led to increased

changes in price levels to effective sharpening criminal repression. On

the other side was the solution, ironically, meant, according to the explanatory memorandum

as temporary. It was considered expedient to empower the Federal Government to

announcement of the amount of the lowest monthly salary until this question

adjusted employment regulations in more detail (press 5. parliamentary term

The Federal Assembly of the Czechoslovak Socialist Republic No. 325).



32. Was subsequently referred to the concept of "empowerment" (not reference)

standards abandoned by Act No. 265/2001 Coll., amending Act No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended, and Act No. 140/1961 Coll., the criminal code, as amended by

amended, and some other laws. According to the explanatory memorandum

practice has shown that it is not fulfilled, the assumption that using the authorisation to

the issue of government regulation will be flexibly addressed to the inflation development.

Mutatis mutandis, the same you can reply to an existing solution, as assessed

issue. In addition to the edit, which determined the amount for determining the

the amount of the damages, which determine the threshold of criminal liability for property

crimes and the most common qualifying circumstances for these offences

acts consisting of the amount of damages should be argued that the Government as the authority

the Executive power is extremely important here, which is inconsistent with the

article. 39 of the Charter [print 3. term of the Chamber of Deputies No. 785-to

point 33 (section 89 paragraph 11) of part two, article. IV], and just because were

the boundaries of each of the above damages be established directly by the law.



33. In the case of the adoption of the criminal code in the explanatory memorandum on the one

to adjust the side qualifying circumstances noted above, only

that they are "in common provisions interpreted in the same way as

It is interpreted by the valid criminal law and accesses them case-law ". By

therefore tacitly has endorsed and the reasons that led to the Edit through

criticism of previous editing "enabling" standards. At the same time, of course, on the side of the

the second is when the justification of the contested legislation applied to the above

practical didactics exam-technicistního approach, without the interference of the Constitution. In doing so,

from the official activities of the Constitutional Court is sufficiently known, that for the period

the duration of the previous legislation became the decision-making activity of courts of General
in a given area principle predictable. And it is not yet in the field of

criminal law an exception. Similar to this is or was even in the case of

the qualification of light and heavy injury or qualification status

eligibility, which excluded anyone's brought the influence of addictive

substances, etc.



34. The contested edit, while not completely populate the principle according to which

the law must be referenced in the article. 39 of the Charter, formulated with

a sufficient degree of certainty for their addressees (the lex certa). As evidenced by the

application practice of new legislation, as the last, needs follow-up

the completion of the through the interpretation of the power of the Court made in deciding on the

specific cases (Supreme Court resolution sp. zn. 8 Tdo 830/2010

of 13 June. 10.2010, the resolution of the Supreme Court of the SP. zn. 15 Tdo 1003/2012

of 27 June. 2.2013, etc.). Derogations may take again the importance of the

earlier precedents, mutatis mutandis, to define the small and larger than a small amount of

psychotropic substances [cf. judgment of the Supreme Court of the SP. zn. 4 Tz

142/2000 of 12 January. 7.2000 (in: Právní rozhledy, 2000, no. 10, 469),

the judgment of the Supreme Court of the SP. zn. 2 Tz 203/99 of 16 December. 2.2000 (in:

The court case law, 2000, no. 5, IV-13), the judgment of the Supreme Court of the sp.

Zn. 3 Tz 56/2001 of 19 June. 4.2001 etc.], or the early stage

preliminary proceedings and an indicative table of public action, as

have been defined for example. in annex 2, have already cancelled the order of a general nature

the highest Prosecutor No 1/2008 of 29 July. January 1, 2008. From

the constitutional point of view, therefore, there is no need for the adoption of the new legal

editing, unless it will want the legislature to proceed in accordance with here

off principles.



35. From the above reasons, the Constitutional Court of the landed came to the conclusion that it is

the provisions of section 289, paragraph. 2 of the criminal code in the words "and what is

a small quantity is greater than for narcotic drugs, psychotropic substances,

products tagged and Poisons "in breach of article. 39 of the Charter, in the

conjunction with article. 78 of the Constitution, and therefore it is under section 70, paragraph. 1 of law No.

182/1993 Coll., on the Constitutional Court, as amended by Act No. 48/2002 Coll., set aside.

Because it did not find the relevant reason for the postponement of the derogation, so decided to

the cancellation date of publication of the finding in the journal of laws. At the same time, in accordance

with the provision of section 70 paragraph. 3 the law on the Constitutional Court, alleged that the

Government Regulation No. 467/2009 Coll., as amended by Government Decree No. 4/2012 Sb.

shall cease to have force in the provisions, which was issued on the basis of the repealed

parts of the contested legal provisions [cf. find SP. zn. PL. ÚS 5/94

of 30 March 2004. 11.1994 (N 59/2 SbNU 155; 8/1995 Coll.), find SP. zn. Pl. ÚS

3/95 of 11 December. 10.1995 (N 59/4 SbNU 91; 265/1995 Coll.), find SP. zn.

PL. ÚS 42/2000 of 24 January 2000. 1.2001 (N 16/21 SbNU 113; 64/2001)].



36. On the intertemporální effects of the adopted the award must be regarded as

that is based on the ex nunc, i.e.. only from the date on which the award will be announced

in the collection of laws. Support the reasons for the finding, therefore may be applied only

for del futuro (the future), but not for the decision of the Court about the works, to

which took place for the duration of the contested legislation [cf. opinion plenum sp.

Zn. PL. ÚS-Wed, 31/10 of 14 April. 12.2010 (Wed 31/59 SbNU 607; 426/2010

SB.) etc.]. The opposite approach in relation to launched, but i already finished

cases could lead proceedings in relation to the participants in the conflict with the

the purpose of this award (cf. find SP. zn. II.-2371/11 of 18 June. 9.

2012, available at http://nalus.usoud.cz) to a higher degree of legal certainty.

Because of the differences between the top-cited steady stricter decision-making

the activities of the general courts and a more moderate solution chosen by the Government due to the

the contested legal provisions zmocňovacímu, and differences

bereft of any rational constitutional justification, therefore, is not

material, and even a formal reason for any procedure under section 71

paragraph. 1 of the law on the Constitutional Court.



37. From the oral proceedings could not be expect further clarification of the matter.

In addition, the applicant and the Senate expressly agreed with the abandonment of the oral

the negotiations. It was therefore dropped from the oral proceedings pursuant to section 44 of the Act No.

182/1993 Coll., on the Constitutional Court, as amended.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum

Vladimir Crust and Jan Musil and justification judges Jan Filip and Ivana

J.