Application For Annulment Of Part Of The Provisions Of § 106 Paragraph. 3 The Building Act

Original Language Title: návrh na zrušení části ustanovení § 106 odst. 3 stavebního zákona

Read the untranslated law here:

405/2002 Sb.


The Constitutional Court

On behalf of the United States

The Constitutional Court ruled on 13 November. August 2002 in plenary on the proposal of the regional

the Court in Hradec Králové on the cancellation of part of the provisions of § 106 paragraph. 3 of the law

No. 50/1976 Coll., on zoning and the building code (the building Act),

as amended,

as follows:

The words "from 500 EUR" in § 106 paragraph. 3 of Act No. 50/1976 Coll., on the territorial

planning and building code (the building Act), as amended by Act No. 83/1998

Coll., shall be abolished on the date of publication of the finding in the journal of laws.



On 22 November. 1. in 2002, the Constitutional Court of the Senate proposal 30 Ca

The regional court in Hradec Králové, of 14 July. 1. the annulment of parts of the 2002

the provisions of § 106 paragraph. 3 of Act No. 50/1976 Coll., on urban planning

building code (the building Act), as amended, (hereinafter the

"construction Act"), for the words "from 500 000". According to the article. 95 para. 2

The Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the Court shall, as a General

If there is a conclusion that the law to be applied in solving the case, it is in the

conflict with the constitutional law. In the proposal, signed by the Chairman of the Board, JUDr.

Karl From, States that the decision of the Municipal Council of the city of Pardubice

24 September. 6.1999 No. OSÚ P/147/99/Pd and by decision of the District Office

Pardubice, of 16 December. 7.2001 No. RRR/3330/41/99/Pu was Mrs. H. B.

a fine in the amount of 500 EUR for that as a natural person

operating under special regulations committed an infringement

referred to in § 106 paragraph. 3 (b). (c)), by the building Act in violation of the

with the kolaudačním decision taken two rooms in the basement

the family house as the establishment of the Salon. Against the latter citovanému

the decision brought an appointed to the regional court in Hradec Králové administrative

claim under the title of the second part of the fifth code of civil procedure.

The proposal stresses at the outset that Mrs. h. b. use these spaces

only for the purpose of individual performance craft trades a Hairdresser,

which is confirmed by the observations of the Health Department of 16 June. 3.1999 No.

1446-218/99-707, which was a "place of business" only with

one place to work. These rooms have been approved as

Laundry, drying room and a cellar, but their construction and technical arrangement

Since the completion of the building was fully sufficient for the operation of the

trades, because in those areas, as designated in the proceedings before the Court

It said the water supply was extended in length of about 1 m and no further

construction work are avoided. If section 106 paragraph. 3 (b). (c)) for the building

the Act expressly obliges the competent authority to impose a fine of 500 000 CZK

to 1 000 000 Czk to a legal person or a natural person operating under the

Special regulations, which uses construction without final building approval

or interfere with it or it will allow another person, then it is clear that

the construction authority cannot impose a fine of less than 500 000 €, and, therefore,

account the degree of risk to the public interest in the use of the construction works in accordance with the

kolaudačním decision, which may be quite different. In many cases,

When the change does not require any special equipment or building interventions, it is

in the opinion of the Court of a violation of the public interest a minimum rate. The Court, therefore,

attacks of a leveling fines regardless of how the infringement,

its consequences or delinquent property benefits. At the same time points out, even on the

the fact that the amount of the fine does not allow to take into account the wealth

delinquent, or whether it is at all capable of such fine

pay. For example, in this case, Mrs. h. b. had to saved

fine work for 14 years. Against it is therefore a fine established liquidation

in a way, as the administrative authority would, in principle, it could prepare all

assets, including the House in which it does business.

The District Court further States that this administrative sanction is not comparable or

penalties under the criminal law, the ones that can be Additionally

choose between several penalties. Given that individuals are

exposed to the risk of such punishment, which, by their nature and the degree of

the severity of the include in terms of the Convention for the protection of human rights and fundamental

freedoms (hereinafter referred to as "the Convention") to "criminal matters", it should be on the matter

apply article. 6 (1). 1 of the Convention, according to which everyone has the right to

the matter has been dealt with fairly. This requirement was not

met with regard to the current legislation, as it had not been taken into account

the individual circumstances of the case. Given these facts

designed by a regional court to cancel part of the header of that provision.


The Constitutional Court found that made the proposal meets all the legal process

requirements and prerequisites, and nothing to prevent discussion and decision of the case

the same. Therefore, pursuant to section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, has called on the parties to the proceedings-the Chamber

the House and Senate of the Parliament of the Czech Republic to this proposal

They expressed.

The Chamber of deputies by its President in the observations,

the provisions of § 106 paragraph. 3 the building Act was amended by Act

No. 83/1998 Coll. Draft of this law, which it has submitted to the Government of the Czech

Republic, the Chamber of Deputies was pending in the second election

period as parliamentary print no. 261. As is apparent from the explanatory memorandum to § 105

and 106 to the building Act, the aim of the relevant legislation should be

the substantial increase in the fines, when it supported the recommendation

some cities that have experience with the "building nekázní". In the course of

discussions in the Chamber of Deputies not to alter the proposed adjustments.

According to the Chamber of Deputies, when discussing the said amendment was based on the

from the fact that the law is in accordance with the Constitution, the constitutional order and the

the international treaties. In conclusion, the Chamber of Deputies notes

the remedies that the proposal should read "from 500 EUR", so that the text of the law was even after

cancellation of part of the legislated and formulačně correct.

The Senate is to design content of the regional court in Hradec Králové, expressed

through its President, and expressed doubt as to whether the

the event actually occurred in the administration of the procedure set out in violation of the article.

6 (1). 1 of the Convention. The infringement must be regarded as

administrative offence that is penalized by a fine within a specified range, and to the

save it occurs in the administrative proceedings in the competent administrative

authority. In the present case, it is clear from the administrative authority takes account of the

the individual circumstances of the case, as the order the lowest possible fine.

The use of the buildings without the approval of the decision or in contradiction with it

Building Act considers it a serious breach of discipline construction, and rank is

Therefore, to a group of the highest rates of fines. The Senate also points out that the

If the Constitutional Court upheld the proposal, then the deletion of the threshold

the fines in section 106 paragraph. 3 the building Act was breached system binding and

struck by the apparent inequality with the provisions of paragraph 2 of the same section,

where the lower limit of the fine for factual matters remain listed here

preserved. As well as for offences against citizens ' building law

contained in section 105 to the building Act, there is a system of differentiation of the amount of the

the fines by determining their lower limit. The Chamber further notes that

the amendments to the building code, whose aim was to consolidate discipline at

building and use of the buildings, was in the interest of this goal narrowed the space for

administrative discretion, but not to eliminate it completely.

The Constitutional Court also requested the opinion of the Ministry for regional development.

This Government Department in a letter of 28 June. 2.2002 No. 2502/2002-51

the design of the regional court in Hradec Králové, expressed disapproval. On the one hand it has

for that, the Building Authority has the space that, when fixing the amount of the fine could

consider the degree of risk to the public interest or the severity of the violation,

Alternatively, the consequences associated with it, and, in his opinion, article. 6

paragraph. 1 of the Convention does not apply to the case at all, because it cannot be

assess whether provided for the lower limit of the fine is "fair" or

"unfair" in relation to the infringement. The provisions of § 106

paragraph. 3 the building Act could be in breach of article. 6 (1). 1

The Convention, if the legitimacy of such a review would prevent the "criminal

the allegations "by an independent court. A review of the case in full jurisdiction, however,

does not prevent the contested provision, but not yet valid legislation of the administrative

the judiciary. For these reasons, the Constitutional Court did not have the design of the regional

the Court in Hradec Králové.

From the Department of regional development's Constitutional Court for information requested

also information on the number and the amount of the fines imposed in accordance with the building Act on

the basis of each of the constituent elements. The Ministry said that these

collectively, the data does not monitor, and has sent at least the Municipality hl. m.

Prague as a body of appeal for 26, respectively (from 1. 7.2002) 22

districts. One of them showed that in 2001 it was in appeal

management discussed a total of 67 34 offences and administrative offences according to the

the building Act, 12 of which constitute a violation of the contested

provisions. Furthermore, the Constitutional Court sent similar information on the penalties

saved in the city of Liberec, which for the year 2001 were legal

persons and natural persons operating under special rules

been fined in 15 cases. None of them has not been saved

for an administrative offence under the contested provisions, and in 10 cases

imposed on natural persons, the penalty for the offense.

The Constitutional Court in order to determine income levels of legal and physical

people-entrepreneurs for a period of one year, requested the cooperation

The Ministry of finance. In its communication, it said that of the total number of

221 237 legal entities that submit an income tax return, should in

2000, the total annual income (see section 20, paragraph 2, of Act No. 563/1991 Coll., on the

accounting, in the version in force until 31 December 2006. 12.2001) to $ 50,000 total 43

619 people, to a total of 100 000 CZK 50 090 persons, to 500 000 CZK in total 75 636

people and to 1 000 000 Czk in total 91 539 people; from a total of 964 723

natural persons-entrepreneurs in the same year, receiving up to 50 000 Eur

a total of 185 368 people, to a total of 100 000 CZK 304 753 people, to 250 000 CZK

a total of 519 757 people, to a total of 500 000 CZK 670 814 people and to 1 000 000

CZK total 793 187 people (given intervals starting from $ 0).


The Constitutional Court in accordance with § 68 para. 2 Act No. 182/1993 Coll.

as amended, examined whether the Act for which the applicant

argues the unconstitutionality of its provisions, was accepted and published in the limits of the

The Constitution laid down the competence and constitutionally prescribed way. In this

regardless of těsnopisecké messages from 20. a meeting of the Chamber of Deputies held

on 13 November. 2. the 1998 and the resolution No. 256 dated June 13. 2. the 1998 shows that the

The Chamber of deputies by a majority of 151 for and none against (out of a total

the number of 171 MPs) approved the draft law mentioned

(print no. 261). From the těsnopisecké news of the meeting 2. meeting

The Senate held on 18 July 2005. 3. in 1998 the Constitutional Court further found that the Senate

# 23 by order of 18 April. 3. the 1998 mostly 55 votes (out of a total number of

70 senators present) when 7 votes against, the Bill also

has approved. It is clear that the law was enacted and issued a constitutionally

in the prescribed manner and within the limits of the Constitution set out competences

observing the quorums set out in article. paragraph 39. 1 and 2 of the Constitution.

Substantive examination of the application and after considering all the circumstances, concluded the constitutional

the Court decision, that the contested provisions of the Act should be repealed.

At the outset, the Constitutional Court considers necessary to note that in this case

It is not, as is usual, challenged the rule of conduct to which

It is the obligation of the legal entities take the construction only in accordance with

kolaudačním decision, but it is exclusively about the constitutionality of the resources

(sanctions) that the legislature has chosen to ensure such behaviour from

by the mailing rules. However, even here it will be the assessment of the

the constitutional conformity standards setting out the legal obligation, even if it is a

the so-called. the obligation of the secondary. The Constitutional Court is fully aware of the weight

the arguments that are found in the comments of the parties, in particular

The Senate, where appropriate, in the opinion of the Ministry for regional development, to the

the scope of the relevant issue of falls, which in principle as to the

the fact that the infringement, i.e.. the use of the construction without approval

decision or in conflict with him, showing for the public interest

considerable social hazard, especially in view of the General

failure to comply with the relevant building regulations (called the construction of discipline).

Whereas the arrangements should be administrative sanctions, in a given

a case of fines, specified in a manner proportional to the body resulting from the situation, not only

so, in order to increase the upper limit of the amount of the fine, but at the same time was

established and its bottom line. The legislature by enshrining minimum amount

the fines into the law largely follows a legitimate aim, as far

more pronounced way than would be the case only when the determination of the upper

rate allows you to distinguish the seriousness or the hazards of which types of

the infringements. Side-effect of this step is that it

limits the scope for administrative discretion of the competent State authorities, which has

its positive effects for example. in that, to a certain extent aligns the amount of

imposed penalties, or limits the scope for arbitrary or corruption

influenced by the meetings of the administrative offices, the it may seem prima facie

as a means of protection against any discrimination on the

the second, however, a greater or lesser extent, paušalizuje the severity of the infringement

the negotiations, leading to a restriction on the ability of the administrative authority to take into account

the particular circumstances of the case, the person of the offender and his circumstances, as

in its proposal, also lists the regional court in Hradec Králové.

First, the Constitutional Court forced to fully identify with the view that this

the case of the nature of things cannot turn out article. 6 (1). 1 of the Convention. The subject of the

adjustment of the provision is the guarantee of a fair, smooth and

public management. If the talk in this regard on the right to

a fair trial, or of its content, this means "equality of arms"

participants of legal proceedings, the right to personal participation and hearings,

the right to compliance with certain rules in the area of procurement and reviews

evidence, etc. Here, however, is not about assessing the constitutional conformity

the rules of a procedural nature, IE. whether certain procedural rules meet

the said policy, but about the assessment of the regulation of the law, that the process of

as such has nothing to do. In other words, the content of the

constitutionally guaranteed rights cannot be the right of individuals to be able to

the legislative "fair" editing a particular legal relationship, and thus

or "fair" amount of the fine. The fine must therefore be fair-from

the perspective of this constitutionally guaranteed right-to understand the fine imposed in the

accordance with the law, in proceedings respecting the principles of fair


Due to the fact that the Constitutional Court is bound by the design, but not Petite

the legal qualification in the proposal contained, dealt with further by whether

the contested provision does not breach other than cited in the proposal

rights and freedoms according to the constitutional law or international treaties.

It is apparent from the preamble to the Constitution of the intention of citizens of the United States come from

the principles of the rule of law. The provisions of article. 1 of the Constitution, then the Czech Republic

expressly referred to as the democratic rule of law based on respect for

rights and freedoms of man and citizen. Respect for the rights and freedoms of the individual is

also, undoubtedly, one of the principles of the rule of law, as has the

the mind of the preamble to the Constitution, from which it can be inferred from one of the fundamental

the rules of functioning of the State power, which is the principle of proportionality

(proportionality), and prohibition of abuse of rights, as inferred in many of their

findings of the Constitutional Court. This policy is based on the premise that the interference with the

fundamental rights or freedoms, even though it's their constitutional modification

It is not expected, may occur in the event of a collision or in their mutual

event of a collision with any other constitutionally protected value, which does not have the nature

the basic rights and freedoms (public good)-cf. constitutional

of the Court of 9 June. 10.1996, SP. zn. PL. ÚS 15/96, collection of findings and resolutions

The Constitutional Court (hereinafter referred to as "the decision"), volume 6, finding no. 99;

promulgated under no. 280/1996 Coll., however, Always is in these cases need to be

consider the purpose of the (target), such an intervention in respect of used resources

While the measure for this assessment is the principle of proportionality

(the proportionality in the broader sense), which can also be called a ban

more interference in rights and freedoms. This general principle involves three

principles of assessment criteria, respectively, to the admissibility of the intervention. The first of the

one is the principle of the eligibility of the fulfillment of the purpose (or appropriate),

According to which the measure must be able to reach at all

the intended objective of protecting other fundamental rights or

public good. Second, this is a principle, according to which the need for

It is allowed to use only the most environmentally-friendly-in relation to the

fundamental rights and freedoms-of more possible resources. The third

the principle is the principle of proportionality (in the strict sense), according to which the injury

the basic law must not be disproportionate in relation to the intended destination,

i.e.. measures restricting fundamental human rights and freedoms shall not, with respect to

on the conflict of basic rights and freedom with the public interest, their

negative consequences extend beyond the positives, which represents the public

interest in these measures (cf. the finding of the Constitutional Court of 13 July. 5.

1997, SP. zn. PL. ÚS 25/97, ECR, Volume 11, finding no. 53;

promulgated under no. 159/1998 Coll.). At this point, based on the consideration of the

empirical, system, context and value arguments (see

the finding of the Constitutional Court of 9 June. 10.1996, SP. zn. PL. ÚS 15/96,

published as indicated above; According to this finding empirical

the argument can be understood the seriousness of the phenomenon, which de facto is associated with

the protection of a fundamental right; the system argument means

considering the meaning and classification of the basic rights and freedoms in the

the system of fundamental rights and freedoms. The context argument can be used to understand

other negative effects of the restriction of one of the basic rights as a result of

Another prioritization; an argument represents the value considering the positive

in a collision of fundamental rights is located relative to the accepted

the hierarchy of values).

In accordance with these conclusions, in particular the Constitutional Court examined whether the referred

intervention in the legal sphere of the individual can also be considered as an interference with the

constitutionally guaranteed rights and freedoms, and concluded that the fine-for

certain circumstances-can represent in the first place the intervention into the basic

rights according to art. 11 (1) 1 of the Charter. The fine as a constitutionally permissible

deprivation of property-unlike the taxes and fees-explicitly in the article. 11

Of the Charter are not; However, the situation is somewhat different in the case of modifications

protection of property rights under art. 1 of the additional protocol to the Convention on

the protection of human rights and fundamental freedoms (hereinafter referred to as "the additional

the Protocol "), according to which States may enforce such laws as it deems

necessary to control the use of property in accordance with the general interest, and

to secure the payment of taxes or other contributions or penalties. From this can be

inferred that the fines, as well as taxes and fees fall within the sphere of

legal regulation of article. 11 of the Charter, or article. 1 of the additional protocol and

the permissible in principle constitute interference with an individual's title, which

However, it is true, provided that legal principles are respected

the State, as reported above (see also article 4, paragraph 4, of the Charter). To do this,

It should be noted that the fine can be considered as interference with constitutional law

dimensions, it will interfere with an individual's financial circumstances with considerable

intensity. This factor is the Constitutional Court will deal with in the context of

application principle of proportionality (see below).

The Constitutional Court in this connection would like to point out that, by analogy with the

in relation to the article. 1 of the additional protocol referred to in: Frowein, j., Peukert,

W.: Europäische konvention Menschenrechts-, EMRK-Kommentar, 2. Edition,

E. p. Engel Verlag, Kehl, 1996, p. 824 et seq.; pursuant to the said

the authors of the storage of financial penalties is the law of each State, which, however,

does not mean that the statement respecting the ownership in the field of financial

find here the application of fines; on the contrary, it is possible to examine whether they have been

stored in contravention of the principle of the prohibition of abuse of rights or of proportionality.

When it comes to taxes, which form together with one set of cases fines (see

above), the German Federal Constitutional Court is in many cases explicitly marked

for the violation of property rights (Eigentumsverletzung); see Isensee, j.,

Kirchhof, p.: Handbuch des Staatsrecht, Band VI, c. f. Müller,

Heidelberg, 1989, p. 1072.

After finding that in the present case, it can be a hit to the constitutionally

of the guaranteed rights and freedoms, Constitutional Court examined whether the interference can be

regarded as an intervention in accordance with the principle of proportionality. As has already been

above, the purpose of the legislation was to prevent violations

building regulations. It should be noted that the escalation of repression, for

You can also increase the minimum amount of the fine may be considered to

a certain extent, a tool that is capable to achieve the intended

and at the same time the legitimate objective, as the risk of a possible recourse to the strict

reduces the "feasibility" of the infringement. For this reason,

The Constitutional Court does not rule out that the intervention was not qualified to fill the

its target. However, as regards the additional criterion, which is the principle

the need for Constitutional Court cannot consider that the intervention of this

the principle of not entirely responsible. You should be aware that the General

non-observance of the specific legislation on the part of individuals may have

for a cause (apart from cases of completely non-functional modifications) inadequate

penalties when infringements "shall pay" even at the risk of their

Save, and/or lack of activity of the public authorities, to the

competence to monitor compliance with the law and impose sanctions. In the first

the case is the obvious need to increase penalties (specifically the rates of fines)

the second is a matter of State, namely, the Executive, to take measures to

the competent authority shall fulfil its functions. If the legislature has come to the conclusion that

the current amount of the fines is insufficient, it is fully in the purview of

take the appropriate measures. On the other hand, it is necessary to distinguish between

the top and the bottom level of the fine. If insufficient amount,

can it-regardless of the fact, as the administrative authorities are working-

mean that the right to basically become unenforceable. In contrast, the

No, or "low" minimum limit to the fine itself this condition not

cause if it does not connect the inefficient performance of State

management in the field of prevention and repression. With specific regard to

the question of repression can be in improving the functioning of the Government, for example.

the increase in inspection activity, the adoption of the internal instructions on saving

the fines, to achieve at least the same result can be achieved

by increasing the lower limit of the fines.

If it is not, therefore, such a measure is necessary, and due to the fact that it is not

excluded that the fine represented an interference with the constitutionally guaranteed rights and

freedoms, in particular the right of ownership, the Constitutional Court also had to

consider whether such action is indeed in this particular

case. The assessment of this question very closely related to the principle of

the adequacy of the Constitutional Court, as suggested above, not every determination

the fine represents an interference with the fundamental rights and freedoms, but only those

that extends to property relations with great intensity, and

the degree of the injury resulting from this compels is just one of the aspects of

the principle of proportionality.

It should be noted that the determination of the lower rates of fines by the legislature

limits the administrative discretion of the competent authority, which as a result

may refer to an obstacle for taking into account not only the severity of the factual

a specific infringement, but also to the economic situation

the responsible entity. This can cause in a particular case or for

groups of cases, fine-even if stored in a minimum amount of-seems

extremely "unjust". Due to relativity of the concept should be

the thing looked at from the perspective of the constitutionally guaranteed rights and freedoms and from this

perspective, it is then necessary to establish rules at the legislature, which must

determination of the lower limit of the fine. The basic criterion of

which it should be, in the opinion of the Constitutional Court, is called.

the substance of the criteria according to which it is true that not every deprivation of property on the

the basis of the fines. fees and taxes, determined by the intervention of the proprietary

rights, but only those which property relations of the body fundamentally

amended, i.e.. changing its overall ownership position "marred" the same nature

asset. Specifically, in the case of fines laid down legal and natural

persons doing business under the specific legislation should be based on

that such an intervention is excluded property, as a result of which would be

"destroyed" property base for other business activities. In other

words, the unacceptable are such fines to liquidation

character. It should be noted that the fine in the liquidation amount represents the

in principle, the "hardest" case of the matrimonial property regime, which, moreover,

at the same time may lead to the infringement of article 81(1). 26 paragraph 2. 1 of the Charter; While it is not

impossible to relate the conclusion of significant intensity of intervention in the title

rights to such cases in which a fine enough to exceed possible

revenue, that business activity essentially becomes "aimless" (IE.

pointing only to pay the fine imposed after a significant period of time). U

natural persons as entrepreneurs then – because it is not separated

their private property and assets intended for business (neposuzováno after

the accountant)-then in such cases, there is a risk of serious effects not only

to a person of delinquent, but also to other members of his household. Due to the

the fact that more than 20% of the physical, as well as 19% of legal persons should

the total annual income of up to $ 50,000 and almost 70% of the natural and more than 34

% of legal persons income to 500 USD, there is no doubt that the fine

stored in the amount of 500 EUR can not only in the case, which the judge County

the Court in Hradec Králové, but in a number of cases have actually

winding-up (about 19% of all companies has an annual income of less than

1/10 is the lowest amount of the fine). Therefore, you can-in accordance with the above

citations-that the lower limit of the determination in question fine

represents so much intense intervention into the financial circumstances of the individual,

at the same time it is hit to his right of ownership.

The intervention does not correspond to the principle of the (criterion) the need for, and therefore it is not

another test on the basis of the principle of proportionality in a strict sense is necessary.

However, the Constitutional Court dealt with this question and came to the conclusion

that the measure is disproportionate to the intended objective, namely the protection of the

the public interest. In particular, it must be presumed that the injury to the

the basic law, that with this intervention may be associated, it is significant,

Since the intervention is threatened by the very economic survival of high

the number of subjects, with the protection of property rights in the system of basic

rights and freedoms certainly belongs to the most important. Although the Constitutional Court

does not deny the existence of the negative phenomenon (i.e. non-compliance

building regulations) in General, on the other hand the information of the Ministry of

for regional development does not indicate substantial violations of building

legislation, on the one hand, the Constitutional Court does not consider that the infringement

particularly in the cases, as they were described by the regional court in Hradec Králové,

represented a major problem severe enough, in the light of the

would such a fundamental intervention into fundamental rights and freedoms was justifiable.

The Constitutional Court is given the situation of the principle cannot identify with such a

the approach, which is essentially based on the escalation of repression by the State

against individuals. For example, as stated in. Knapp (theory of law, Prague,

1995, c. h. Beck, p. 36 and 37), "the centuries-old experience shows, especially in the

criminal law, first, that the infringement to cause proportionally

zpřísňováním penalties, and, further, that the penalties (especially strict penalties) lead to

the creation of the said deregulátorů, and antiprávních systems,

developing ways to avoid the impending penalty. "

The Constitutional Court no choice but to conclude that the fine can be compatible

with the article. 11 of the Charter and article. 1 of the additional protocol, where it permits-

at least to some extent-to take into account the material situation of the delinquent

(cf. Peukert, lit. from the top, p. 826). In addition, it should be

take into account the other dimension of the phenomenon under consideration. The determination of the fine in the present

margin means that, in principle, the same amount of the fine will be penalized

entities whose economic situation is completely different, and thus completely

different impacts will also be fine imposed; While for certain entities may

the maximum amount of the fine in relation to its management of a negligible,

for others, the lowest possible penalty can mean their destruction,

How to demonstrate and the above information. According to the article. 1 of the Charter are the people

free and equal in dignity and in rights. In this case, although the

from a formal point of view, the contested provision treats from all the stakeholders

as well, but fundamentally distinguish their material prevents the

situation. Certainly not every de facto inequality constitutes interference with the fundamental

rights and freedoms; as stated by the Constitutional Court in its finding of 7 November. 6. the 1995

SP. zn. PL. ÚS 4/95 (ECR, volume 3, finding no. 29; announced

under no. 169/1995 Coll.), "inequality in social relations, in order to

touch the fundamental human rights, must reach the intensity

challenging in some ways already the very essence of equality. This is

as a rule, going on, if it is in breach of the equality and violation of

Another fundamental right, for example. the right to own property under art. 11

Of the Charter, one of the political rights according to art. 17 et seq. Of the Charter and

Similarly, ". Due to the fact that there are, in principle, this is the inequality

social, it is necessary to examine whether the intervention of considerable intensity,

Since any determination of the lower limit of the fine can represent a certain

inequality, not every means inequality in ústavněprávním

the meaning of. However, as regards the intensity and the proportionality of the

intervention, the Constitutional Court has already dealt with and the above conclusions-even if

the matter is being examined from a different view-applies here as well.

Because of these reasons, the Constitutional Court has considered that the contested

provision is incompatible with the principles of the rule of law according to art. 1 of the Constitution

and represents a contradiction with article. 1 and article. 11 (1) 1 of the Charter and article. 1

Of the additional protocol. Therefore, the Constitutional Court had no choice but is under section 70

paragraph. 1 Act No. 182/1993 Coll., as amended, to rescind.

The Constitutional Court admits that the cancellation of part of the provision can

be, as points out in its observations, the Senate compromised system binding and

the inequality was instituted with the provisions of § 106 paragraph. 2 the building Act, in

which case the lower limit of the fine is retained, but the constitutional

the Court is not entitled to the cancellation of the cited provision, since it is bound

Petite design (except for the correction of a technical nature, of how

It was in this case). However, this does not preclude the legislature in

in light of this finding, to assess the constitutionality of the cited provisions and

eventually he made appropriate steps to change it.

The President of the Constitutional Court:

in the z.. Haboob in r.

Vice Chairman