In The Matter Of The Application For Revocation Article 248 Paragraph 1. 2 (A). E) Ccp

Original Language Title: ve věci návrhu na zrušení ustanovení § 248 odst. 2 písm. e) o.s.ř.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=48438&nr=2~2F2000~20Sb.&ft=txt

2/2000 Sb.



FIND



The Constitutional Court on behalf of the United States



The Constitutional Court decided on 23 December 2005. November 1999 in the plenary on the draft Ing. P. N.

on the cancellation of part of the provisions of § 248 paragraph. 2 (a). e) the code of civil

the order of the words "including the decision of the police to speeding tickets"



as follows:



The provisions of § 248 paragraph. 2 (a). e) of Act No 99/1963 Coll., the civil

the rules of court, as amended by Act No. 519/1991 Coll., in the words "including

the decision to by the fines "shall be deleted on the date of publication of this

the finding in the journal of laws.



Justification



The appellant filed a constitutional complaint against the decision of the municipal court in

Prague from 31 March. March 1998, SP. zn. 28 Ca 317/97, which was

stopped proceedings for his actions against the decisions of the President

The Supreme Audit Office (hereinafter referred to as "SAO") of 20 November 2003. May 1997 No.

j. 1199/95-140/3-RK. This decision was rejected by navrhovatelův

the breakdown against the decision of the SAO of 12 December December 1995 No. 95/22-SK/46

and was confirmed by the imposition of a fine in the amount of $ 50,000, according to § 28 para. 1

Act No. 166/1993 Coll. on the Supreme Audit Office. This provision

provides:



"(1) a natural person who culpably caused the controlled person

has failed to fulfil an obligation pursuant to § 24 of this Act, the Office may impose a fine on

up to $ 50,000.



(2) a fine can be imposed repeatedly, unless the obligation is fulfilled or in the

time to check the newly laid.



(3) a fine may be imposed within one month from the date of the infringement.



(4) the fine are the Czech Republic's State budget revenue.



(5) Penalties enforced by the authority. ".



The appellant claims that the resolution of the municipal court in Prague has been infringed

his right to judicial protection, including the lawfulness of the decision of the

of a public authority, as he is constitutionally guarantees the article. paragraph 36. 1 and 2

The Charter of fundamental rights and freedoms ("the Charter") and article. 6 (1). 1

Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention").

This violation has occurred, in his opinion in connection with the application of section

paragraph 248. 2 (a). e) of the code of civil procedure (hereinafter referred to as "CCP").

The provisions of § 248 paragraph. 2 (a). e) CCP, as amended by Act No. 519/1991

Coll. lays down that in the administrative judiciary the courts also nepřezkoumávají:



"the decision of the administrative authorities preliminary, procedural or riot nature

including decisions on fines by the police ".



This provision is based on his claim in the words "including the decision about

by the fines "in breach of article. paragraph 36. 1 and 2 of the Charter and article. 6

paragraph. 1 of the Convention.



The appellant took this § 64 para. 1 (b). (d)) of law No.

182/1993 Coll., on the Constitutional Court, and along with constitutional complaints filed

on the cancellation of part of the provisions of § 248 paragraph. 2 (a). e) CCP in words

"by including the decisions on penalties". Whereas (II). the Senate

The Constitutional Court assessed the fulfilment of the conditions pursuant to section 74 of the Act on the constitutional

the Court. The constitutional complaint was made in good time, authorised by the applicant,

that was duly represented, the proposal is not inadmissible, and the Constitutional Court is to

its jurisdiction. The proposal has not been found to be neither manifestly

unjustified.



Because the alleged interference with the fundamental rights took place under direct application

the provisions, which is the subject of the proposal, II. Chamber of the Constitutional Court

to the conclusion that the conditions of § 78 para. 1 Act No. 182/1993 Coll.

Therefore, the proceedings on constitutional complaints resolution of 21. October 1998 No.

II. TC 254/98-24 broke off and the proposal to repeal parts of the

the provisions of the CCP plenary session of the Constitutional Court to forward the decision referred to in

article. 87 para. 1 (b). and the Constitution of the United States) (hereinafter referred to as "the Constitution").



(I).



The appellant submits that the proceedings before the municipal court in Prague sought

annulment of the decision of the SAO, which he won were imposed a fine of EUR

$ 50,000, when, in his opinion, the SAO has required compliance with

the obligation, which is not saved by the law. Also formally was not a procedure

The SAO without faults. However, the city court in Prague ruled that the proceedings in this

things stopped, while its decision was motivated by a reference to Section 248 paragraph.

2 (a). e) CCP, according to which the courts in the administrative judiciary

nepřezkoumávají decisions of administrative authorities preliminary, procedural or

riot police including decisions concerning the nature of the penalties.



In accordance with the provisions of the CCP navrhovatelova view, in the words of

"by including the decisions on fines" in contradiction with the constitutional

the legislation excludes from judicial review of a variety of different nature of the decision.

Can be fined $ 200 according to the code of administrative procedure, but also about

the fine pursuant to § 71 para. 2 of Act No. 455/1991 Coll., on trades

business (Trade Act), in the amount of $ 10,000, a similar penalty

According to § 62 para. 2 Act No. 199/1994 Coll., on the award of public

contracts, or even a fine up to $ 500 000, pursuant to section 11 of Act No.

136/1994 Coll., on colouring and marking of certain hydrocarbon fuels and

lubricants and on measures related to it. All fines imposed by the Executive

the authority can save them repeatedly, and all are explicitly as riot

the fine. This is an extremely serious interference into the sphere of rights

individuals that may cause and economic liquidation as follows

the affected entity. Therefore, it should be with regard to the article. paragraph 36. 1 and 2

Of the Charter and article. 6 (1). 1 of the Convention be understood to exclude the right of the legislature

the ability to review a decision of a public authority very restrictively.

It follows from article. 4 (4). 4 of the Charter, according to which it must be when you use

the provisions on limits of fundamental rights and freedoms investigated their essence and

the meaning of.



According to the navrhovatelova of the legal opinion is therefore unconstitutional lump

the exclusion of judicial review of all the so called. by the fines without their

the next resolution. On the one hand the legislature's effort to prevent understands

disproportionately high idea of the courts in these matters, on the other hand, however, a number of

such fines can per person, very tragic hunt down delinquent. It is sufficient to

While the cancellation of the words "including decisions on fines by the police", as the

then the Court itself will be able to assess whether a fine is the nature of the decision

nature exclusively riot (e.g. fines under the administrative code), or if

given the circumstances, the intensity, the amount of the penalty extends also to the rights of the

substantive in nature. Now this Court does not have discretion and control must

to stop without a review of the merits of the case.



In this context, also pointed to the Act No. 36/1876., which in

paragraph 3 contained a significantly narrower exclusion of administrative review, so

legislation until 1952 to provide citizens with a substantially higher standard

legal protection than the Edit today.



II.



On the challenge of the judge-rapporteur on the draft expressed the participants in the proceedings. For

The Senate of the Parliament of the Czech Republic expressed its Chairwoman of Wishwanath

B, which stated that Act No. 519/1991 Coll., which was the subject

provision of poliovirus "to the CCP, was accepted on 18. a meeting of the Federal

Assembly on 5. November 1991, when in the House of the people for him

voted 87 of 92 MPs and in the Chamber of the Nations in the Czech

part of the 55 members of Parliament and in the Slovak part of the 52 parliamentarians from 107.

Senate amendment to CCP in this section. It is a matter of the constitutional

Court to examine the constitutionality of the contested design provisions of the CCP



For the Chamber of deputies of the Parliament of the United Kingdom expressed its

Chairman: Prof. Ing. Václav Klaus, PhD., which stated that law No.

519/1991 Coll. was adopted by the necessary majority of MPs and was properly

declared. From the substantive point of view reminded of the content of the explanatory memorandum to this

law, from which it follows that the jurisdiction of the courts in the administrative judiciary is

established the so-called. General clauses. Circle the things that should be

excluded from the review, it is defined in Section 248, CCP

the exceptions are worded generally and therefore apply to all

the decision, regardless of what the legislation is based. Their

the interpretation should be restrictive, since they are the nature of the exceptions to the General

clause. A decision on the fines by the police is the Institute that has

serve to eg. the inspection authority had an effective tool to

in order to fulfil the obligations to which the law and the Constitution are directly intended.

It is not excluded that decisions about the riot to a fine hit constitutionally

of the guaranteed rights and freedoms. But this is not the subject of the complaint, since the

the complainant is challenging the unconstitutionality of eliminating the review of such a decision

the Court, not the unconstitutionality of disciplinary offence as such. This

stěžovatelův the President of the Chamber of Deputies does not share the opinion.



III.



The Constitutional Court first proceeded to the examination of formalities

submitted by the proposal. The petition was filed, authorized the complainant under the conditions

referred to in section 74 of law No. 182/1993 Coll. as the conditions of admissibility

pursuant to section 66 paragraph 1. 1 Act No. 182/1993 Coll. have been met in the present case.

The proposal was found to be permissible and Constitutional Court could follow

the directives section 68 of Act No. 182/1993 Coll.



IV.



With regard to the constitutionality of § 248 paragraph. 2 (a). e) CCP in the words "including

a decision on the fines by the police ", the Constitutional Court came to the conclusion that

This provision is not in conformity with article. paragraph 36. 1 and 2 of the Charter, article. 6

paragraph. and article 1 of the Convention. 14. 1 of the International Covenant on Civil and


political rights (hereinafter referred to as "the Covenant") in conjunction with article. 1 of the Charter and article.

1 and 4, of the Constitution.



In this case, the Constitutional Court performs abstract control of constitutionality without

regardless of that, the stimulus for its implementation was a constitutional complaint.

If the design has complied with the requirements of Act No. 182/1993 Coll., is to be with him

treated the same as with the suggestions of other legitimate claimants pursuant to section

64 para. 1 Act No. 182/1993 Coll. on the evaluation, therefore, is not fine in

the specific case of the applicant (article 28, paragraph 1, of Act No. 166/1993 Coll.)

but reviews of the concept of "fine" order "is used generally in Section 248

paragraph. 2 (a). e) CCP in its full meaning, IE. even there, where the

specifically about the "riot" does a fine however, if this fine has

"pořádkový" character. While the appellant argues that this concept

"riot" is used by all by the abovementioned provisions, just in case

used against him § 28 para. 1 of Act No. 166/1993 Coll., however, it

does not match the reality. The case was the Constitutional Court assessed as follows.



This concept uses a series of legislation in the field of civil, criminal

and the administrative procedural law and legislation governing the status and

the scope of the control and inspection authorities. These decisions are designed

as civilněprocesní, the statutes of criminal procedure or sanctions, i.e., správněprocesní

the measures to help ensure the smooth operation of a specific control and

the synergy of its participants in the case that they would not be willing to take on the management of

participate in the manner prescribed by the law (to appear, present

the required documents, issue the things important for management, etc.), or

the progress of the otherwise difficult or even obstruct. Therefore, it is possible to store

repeatedly, until an adequate management of secured (does not apply

the principle of ne bis in idem).



Sanctions in the form of a fine imposed by the administrative authorities as

riot actions while it was originally designed more as an

warning on the obligation to respect the rules laid down and does not rise

the degree of repression or prevention in the sense of criminal law and

správnětrestních offences. As an example of § 45 para. 1 administrative

the order, according to which a person who makes it more difficult to control, in particular by

without compelling reasons to attend to a call to the administrative authority, suspended over the

the previous admonitions, unreasonably rejects the testimony,

the presentation of the Charter or to perform an inspection, the administrative authority may impose

fined up to 200 CZK; for soldiers in active service and for

members of the public of the armed forces shall surrender the thing due to under

disciplinary regulations. In recent years, however, it is evident the tendency to

increasing the amounts which are in the form "by the fines" are stored.



A similar nature as the fine in administrative proceedings have

riot measures in the control and inspection activities. And here is their

Mission to ensure proper progress of the control actions that would normally

was impracticable without synergy, controlled. In addition, there are

in comparison with the procedural law measures some peculiarities

related to the nature of the control activity itself. As regards control

the activities of the inspectors in the implementation of the SAO, the checks referred to in section 21 of Act

No 166/1993 Coll. are entitled to:



and to the objects) to enter plants, land and other

the premises of persons are linked to the subject of the controls;



(b) the controlled persons) to require that within the time limits

submit the original documents and other documents, records, data on

storage media devices of computer technology, their statements and

the source code of the programs, product samples or other goods;



(c)) to review classified information, show the certificate

for the classification of those facts, issued pursuant to

a special law;



(d) require the controlled persons) provide truthful and complete,

oral and written information about the survey and related

the facts;



e) ensure, where justified, the documents; their acceptance must

the controlled person in writing to confirm and leave her a copy of the accepted

documents;



(f)) require that the person submitting the controlled within a specified period a written

a report on the deficiencies;



g) use telecommunications equipment in cases of persons

when their use is necessary for security checks.



According to § 24 para. 1 of Act No. 166/1993 Coll. are controlled by persons

required to provide the assistance referred to above permission

controlling (§ 21 of Act No. 166/1993 Coll.). Individuals do not have the

the obligation pursuant to article 21 (b). (d)) of the Act No. 166/1993 Coll., if its

by complying with the danger of a resumption of a criminal prosecution themselves or persons

loved ones. If you do not provide this assistance, they may, under section 28 of the SAO

paragraph. 1 to 3, of Act No. 166/1993 Coll. Save within one month from the date of

failure to comply with the obligations of a fine up to $ 50,000, even repeatedly,

If the obligation has not been fulfilled even within the newly laid controlling.

Similar rules provides for control of procedure pursuant to Act No. 553/1991 Coll. on

State control, as amended. Summary of measures

that is expressly marked as "riot" fine, however, cannot

exceed 200 000.



In the present case, the Constitutional Court came to the conclusion that, even if in law No.

166/1993 Coll., this fine is not explicitly marked as riot, characters

fine in terms of disciplinary measures of the administrative authority

fills. It follows from its nature, objectives and purpose. Sao

control activities is equipped with vrchnostenskými privileges to

controlled entities (cf. § 21 of Act No. 166/1993 Coll.). When

check proceed legally modified the manner in which he is entitled to

require the fulfilment of statutory obligations on the part of

controlled entities. If the auditee, which has

an obligation to do so, this obligation and makes it more difficult or frustrating

audit, compliance may be enforced by enforcement measures in

the most varied form, including fines. The fine pursuant to § 28 para. 1 of law No.

166/1993 Coll. has, undoubtedly, the nature of the measure, which is in section 19

Act No. 553/1991 Coll. marked as riot fine.



However, the Constitutional Court emphasises that, in the case neposuzoval, whether in

the case, which gave rise to the proceedings, he could have done, and that control of the SAO

Therefore, such an obligation on the part of the responsible entity in its own right.

The stimulus was the only question the constitutionality of denial of Justice

(denegatio iustitiae) in the form of terminating the proceedings before the municipal court in

Prague because of the lockout, the review by the administrative authorities of the measures

by including the decisions on fines. It will be up to public court

to assess this particular problem. In the minimization of the Constitutional Court

interference with the competence of general courts (administrative justice) to this

the issue did not consider it necessary to enter. As well as the Constitutional Court

in General, the neposuzoval, the extent to which such measures are still in each

the legislation actually "law-fines" and the extent to which indirectly

penalties for breaches of the substantive law, since it was also the subject of

control.



It can be concluded that the fine pursuant to § 28 para. 1 of law No 166/1993.

comparable with other fines that are explicitly as "riot"

marked, and therefore falls under section 248 paragraph 1 shutout. 2 (a). (e))

CCP, the Constitutional Court could consider as a further question, whether in the

the case of the fine it is a decision that they are eligible

interfere with fundamental rights or freedoms. In such a case would be

their exclusion from judicial review by means of administrative justice in the

contrary to the article. paragraph 36. 2 of the Charter, which provides that decisions on

the fundamental rights and freedoms under the Charter shall be excluded from

jurisdiction of the courts. For the same reason would also § 248 paragraph. 2 (a). (e))

CCP in breach of article. 4 of the Constitution.



The Constitutional Court concluded that the fine imposed in the administrative

management and control activities are by their nature generally, eligible

interfere with fundamental rights and freedoms with regard to the legal entity,

their amount and the possibility of repeated saves. May be issued

on a discretionary basis, so it is not excluded or discriminatory effect

their store to various entities. If, in our legal system

provides for the possibility of the administrative authority save repeatedly fined in

of up to 500 000 € (section 11 of Act No. 133/1994 Coll.), it is a significant intervention of the

to the status of a legal entity.



On the question of which specific constitutionally guaranteed fundamental rights are

the contested provision infringed the Constitutional Court came to the conclusion, without

considered it necessary to examine all the constitutional aspects of this issue that the

It's all about equality in rights violations against the public authority referred to in article.

1 of the Charter, in conjunction with the violation of the right to a fair trial under article.

6 (1). 1 of the Convention.



Article. 1 of the Charter guarantees equality in rights against the public authority. In the case of

the police action in civil process (§ 53 and 54 CCP) and criminal

proceedings (section 66 criminal procedure) is guaranteed judicial review of such


measures a higher court instances. In the administrative decision at issue

the person does not have this option. Already this in itself, if they have not been

serious grounds for exclusion, the Court would result in unconstitutionality

such adjustments. In this case, the Constitutional Court of such serious reasons

did not detect. On the contrary, by comparing the extent of a possible intervention by the so-called. known to the

the measure came to the conclusion that the správněprocesní sanctions are in many cases

far more serious character than is the case in civil or

criminal proceedings, having regard to the potential of these measures. The reason for the

for exceptional inequality in the rights of the participants in the administrative (i control

process) and participants of the judicial process in this area, therefore, was not

found.



On the Constitutional Court to determine whether there is at least one specific constitutionally

guaranteed right that is contested by modifying the violated. Without looking for

all possible violations, found a violation of constitutionally guaranteed rights to

the Court of protection. 6 (1). 1 of the Convention, which ensures to everyone:

"the right to keep his affair was a fair, publicly and in

a reasonable time by an independent and impartial tribunal established by

by law, the determination of his civil rights and obligations or of the

the legitimacy of any criminal charge against him. The judgment must

be pronounced publicly but the press and public may be excluded either after

for the whole or part of the trial in the interests of morals, public order

or national security in a democratic society, or when it

require the interests of minors or the protection of the private life of the parties

or, to the extent considered necessary by the Court for completely, if,

owing to special circumstances, public control might be detrimental to the

the interests of Justice ".



The appellant himself did not substantiate its claim in no way closer, only stated that the

all fines imposed by the Executive authority, may save them repeatedly and all

they are specifically marked as fine and this is an extremely

serious interference with the sphere of the rights of individuals, which may cause

economic liquidation as follows the affected entity. The Constitutional Court of the

This navrhovatelovou argument could not identify, but according to your

the case law is bound to the Petite design, not its reasoning.



In particular, the Constitutional Court is of the opinion that article. 6 (1). 1 of the Convention

doesn't work on administrative decisions and administrative decisions as such, but

guarantees judicial review of such decisions in the case that can be

for their part, under the concept of "civil rights or obligations (civil rights and

duties, les droits et obligations de caractere civil) ", that they understand

European authorities considerably widely. However, the imposition of fine is

správněprocesní of sanctions used to enforce certain procedural

obligations, and thus act as the Lords ' nature, even if it has material

nature, touching on the ownership and other rights associated with it, such as

for example. operation of a business (as the appellant argues), but

and all other rights that are somehow connected with the need to possess

asset.



In the present case, however, as regards civil liability within the meaning of civil

(understood as public, in English referred to the concept of

"civic"), not civil (civil) of the obligations to ensure

ability of State power necessary in the conditions of democratic

the company. Here it is not a private law relationship in the above sense

According to the article. 6 (1). 1 of the Convention or pursuant to art. 90, the first sentence of the Constitution. It comes

about authoritarian relationship, which is intended to ensure that the State and the public

management at all able to perform their function. In this respect, the Constitutional Court

app's objections.



Therefore, the Constitutional Court dealt with other areas of the application requirements

the fairness of the process expressed in the article. 6 (1). 1 of the Convention the term

"the legitimacy of any criminal charge" (the determination of any

criminal charge, toute accusation en commencement pénale).



Fine in administrative proceedings are penalties for unlawful behavior.

As mentioned above, does not arise from civil rights and obligations (civil

rights and duties, les droits et obligations de caractere civil) in

the meaning of the civil law in any widely-understood. Their mission is to

affect those who violate their obligations in relation to public law. From

the perspective of the case-law of the European institutions is that in the article. 6 (1). 1

The Convention is cast turnover, "about the legitimacy of any criminal charge" on

everything is transposed into national law as a criminal accusation. In addition to the

It was, however, the term is related to the allegations of infringement and

the negotiations, which national law did not deem it to be criminal. In our

conditions could go eg. about prison sentences in the military, unless

in this respect, made a reservation when you access to the Convention made in relation to its

articles 5 and 6, a reservation to the effect that this provision does not preclude

storage of disciplinary punishment prison pursuant to section 17 of Act No. 76/1959 Coll., on

some of the service conditions of soldiers. In other words, it is for the

national rules, what designates as a criminal offence and what will be automatically

Article mode. 6 (1). 1 of the Convention (right to a fair trial). The State, however,

on the contrary, cannot arbitrarily something as a crime and threatening to designate an

penalties more severe than in a comparable area of criminal law.



Also the turnover of "criminal charge" is the case-law of the European Court

human rights understood more broadly than simply criminal charges of an offence

According to the national criminal code such as. in § 160 paragraph. 1

the criminal procedure code. A bad translation of the term "offence" in the article. 5 (3). 1

(a). (c)) of the Convention already had when making a decision of the Constitutional Court

notified (a collection of findings and resolutions of the Constitutional Court of the Czech Republic,

SV. 1, s. 144). Therefore, you cannot rely solely on the formal character (measures

under the criminal law), but also of the characteristics of material, which are in

such measures, an assessment of whether it is a repair, compensation

(typical for remedies of the inspection and surveillance), but imposing a penalty,

that acts as a deterrent (to the responsible body to repeat the same unlawful

the negotiations) and repressive (that has been affected by what he did). Important is the

also the severity of the sanction, which may not be in the case of tort

the hearing only in the deprivation of liberty, but for example. even in the lapse, the

the amount is comparable with other penalties, where the right to a fair trial

sure is.



The Constitutional Court came to the conclusion that riot of the fine in the legal order of the Czech

the Republic a penalty for tort proceedings provided for in article. 6 (1). 1 of the Convention

they represent. Are laid down by law and intended as a preventive and

at the same time punitive measures of public authority. Their amount (up to 500 000

CZK repeatedly) it is therefore necessary to compare the nature of the offences for which

It can also impose a financial penalty. Such crimes knows our

the criminal code related to the problems of the tens and the management of certain

legal processes and controls (such as the near nature e.g. section 124a to 124 c, §

125, 129, 145a, 148a, 169b, 171, 175, 176, 255, 257 bis of the Penal Code).

Pursuant to § 53 of the criminal code is a financial penalty in the obligation

pay the State from 2 to 5 million. The right to a fair trial

in their case, is guaranteed.



In the case of such crimes is in the form of a monetary penalty

punishment (often less than riot fine) in article mode. 6 (1). 1

Convention, there is no good reason why it would not be in the case of

any fines that are often never require fault (not

However, in the case of § 28 para. 1 of Act No. 166/1993 Coll.). The same also applies to the

offences for which you can save as a sanction, which is fine according to § 83

provincial offences Act reviewable by a court, if it exceeds the amount 2

000. Just by the way the Constitutional Court notes that any sanctions for

the offense is in a mode article. 6 (1). 1 of the Convention (cf. In the case of Lauko.

Slovakia. The European Court of Human Rights 4/1998/907/1119 of 2. 9. the 1998 and

In the case of Kadubec. Slovakia. The European Court of Human Rights

5/1998/908/1120 of 2. 9.1998), even if the penalty does not reach above. It

applies regardless of the fact that the punishment for the offense cannot be determined

imprisonment and the penalty is not kept in a special register. Such a procedure

Therefore, it does not meet the requirement of proportionality of the intervention of a public authority as a

components of the concept of the rule of law according to art. 1 of the Constitution.



The Constitutional Court thus concluded that the provisions of § 248 paragraph. 2 (a). (e))

of the row in the words "including the decision about any fines" is not in the

accordance with article 6(1). 6 (1). 1 of the Convention in conjunction with article. 1 and 4, of the Constitution, article. 1,

article. paragraph 36. 1 and 2 of the Charter.



Denial of legal protection in matters of review of the decision of the public authorities

the Administration is possible if the law so provides. But it is not possible in the

the case that this is a decision relating to the fundamental rights and

According to the Charter of freedoms, the Constitution and the international conventions referred to in article. 10 of the Constitution.

Any other procedure is in breach of article. paragraph 36. 2 of the Charter and article. 4

Of the Constitution. Every natural and legal person has a constitutionally in the Czech Republic

guaranteed the right to a fair trial under article. 6 (1). 1 of the Convention.



In the case of a decision on the fines, however, this right of law § 248 paragraph.

2 (a). e) of s. l. does not guarantee, as is the right to have it taken away


review the decision of a public authority independent and impartial

by the Court. This requirement does not warrant the grant of rights to another protection in

form of appeal to a higher administrative instance in the present case, in the form of

degradation to the President of the SAO. The President, however, does not meet the requirements of article of the SAO.

paragraph 36. 1 of the Charter, article. 6 (1). and article 1 of the Convention. 14. 1 Pact, even if the

the difference from the administrative authorities is not directly appointed by the Government or higher

administrative authority. In the case in question cannot satisfy the particular requirement

an impartial authority when, as such, can never be understood

the complainant. Even the constitutional definition of the SAO, as an independent authority (article 97

The Constitution) does not guarantee the fulfillment of article. Article 81 of the Constitution. paragraph 36. 1 of the Charter and article.

6 (1). 1 of the Convention, as it relates to the control activities of the SCC in relation to

management authorities, rather than saving the police fines where the SAO

does not flow as an independent tribunal, but as an administrative office.



At the same time, this procedure does not guarantee equality of rights as concerned

bodies, constitutionally guaranteed rights and freedoms referred to in article. 1 of the Charter. It is also in the

contrary to the principle of proportionality of the intervention of a public authority, as is clear from

article. 1 of the Constitution, which requires that public authorities in the Czech Republic

She has performed according to the rules of law. These rules include

also, the principle of proportionality of the interference rule rational zdůvodnitelnosti

(the prohibition of arbitrariness) and prohibition of excessive use of otherwise rational

the chosen instruments of regulation. Because already at this point was from above

the reasons given is found to be a violation of the constitutional rules, Constitutional Court

already other reasons did, since it was not from the perspective of possible

future legal adjustments needed, when the only solution is to repeal this

Section § 248 paragraph. 2 (a). e) of s. r. and enabling judicial control

the decision on fines issued by police in the field of administrative law and

control activities.



The President of the Constitutional Court:



JUDr. Kessler v. r.