In The Case Of The Proposal On A Vote Of Protiústav. Part Of No. 353/2003 Coll.

Original Language Title: ve věci návrhu na vyslovení protiústav. části z. č. 353/2003 Sb.

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=80590&nr=299~2F2013~20Sb.&ft=txt

299/Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 38/11 on March 30. July 2013

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

Fenyka, Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana

Smith, Dagmar Lastovecké, Jan Musil (Judge-Rapporteur), George

Nykodýma, Vladimir Sládečka, Milady Tomková, and Michaela Židlické on

the design of regional court in Pilsen to declare the unconstitutionality of part

paragraph 135d paragraph. 1 the Act No. 353/2003 SB., on excise duties,

as amended by Act No. 217/2005 Coll., effective since 1. July 2005 to 31 December 2005.

December 2012, in the words "or tobacco or spirits

secured when you check under section 134 ", with the participation of 1. The regional court in

Pilsen, Czech Republic, 2. The Chamber of deputies of the Parliament of the United Kingdom and 3. The Senate

The Parliament of the United Kingdom as parties to the proceedings and the Government of the Czech

the Republic as a secondary party to the proceedings,



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal



1. the Constitutional Court received on 22 November. December 2011 draft regional court

Pilsen (hereinafter referred to as "the appellant") of 19 May 2003. 12. cancellation part of 2011

paragraph 135d paragraph. 1 the Act No. 353/2003 SB., on excise duties,

in the words "or tobacco or spirits of secured when

inspection under section 134 ". From the wording of the contested provisions, it follows that

the appellant attacks the provisions of § 135d para. 1 the Act No. 353/2003 SB., on

Excise Tax Act, as amended by Act No. 217/2005 Sb.



2. Submission of 24 June. July 2013 has changed the appellant petit their

the proposal in the sense that instead of canceling the cited part of the statutory

the provisions suggested that the finding of the Constitutional Court ruled that this section

the statutory provisions are in conflict with the constitutional order. The reason for the

change the remedies is the fact that by law no 407/2009 Coll., which

amended Act No. 356/2003 Coll., of the Excise Tax Act, as amended

regulations, and other related laws, it was the provisions of § 135d para. 1

the law on excise duties with effect from 1 January. January 2013 changed

(replaced with a completely different text), so the reason for the cancellation of this

the provisions of the Constitutional Court fell away. In the matter of Mr. before the regional court

but it will be necessary to apply the provisions of § 135d para. 1 of the law

on excise duties in force for the period from 1. July 2005 to

December 31, 2012.



3. The original proposal of 19 March 2003. 12, 2011, to annul the contested provisions

was administered in accordance with article 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution") and pursuant to the provisions of § 64 para. 3 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court ") in the context of the decision-making activities of the General Court.

Amended proposal of 24 February 2003. July 2013 to declare the unconstitutionality

the contested provision is based on direct application of article 95 para. 2

Of the Constitution.



4. before the regional court in Pilsen was under SP. zn. Ca 57 85/2009

proceedings in the administrative judiciary on the action which the applicant-business

Company 4 VIP, s. r. o., COMPANY REGISTRATION NO. 27968693, registered office: Karlovy Vary,

Mattoni waterfront 204-seeks the annulment of the defendant's decision of the customs

Directorate of Pilsen of 20 December August 2009 No. 6949-02/09-1601-21. After

appeal the decision of the Supreme Administrative Court is the procedure before the

Regional Court in Plzen under SP. zn. 57 a F 41/2011.



5. the applicant submitted a proposal in the belief that the contested provisions of the

Act No. 356/2003 Coll., of the Excise Tax Act, as amended

Regulations (hereinafter referred to as the "law on excise tax") was contrary to the

Article 11 of the Charter of fundamental rights and freedoms ("the Charter"),

guaranteeing the protection of property rights, and article 4, paragraph 2. 4 of the Charter.



II.



The previous course of the administrative proceedings and proceedings in the administrative judiciary



6. Provides for the administrative decision of the customs authority of Karlovy Vary

27 June 2002. May 2009 No. 4674-3/2009-086100-021 pronouncing that

trading company 4 VIP, s. r. o., committed misconduct by

that violated legal obligations provided for in § 133 paragraph 2. 1 of the law on

excise tax in the manner specified in § 135 c of paragraph 1. 2 of the Act

at the time, as amended. This administrative offence committed legal person

by 25 June. March 2009 had sold a total of 16 949 DC spirits

pre-packaged, 13 300 g of tobacco in consumer packaging and 302

352 cigarettes, in the nebytovém area with the designation SP02 and booth

-sheet metal container distribution SAPA, at 319, Libušská

Prague 4-Libuš, spaces are not approved for sale of goods

or the provision of public services. The trading company was in this

a fine in the amount of meeting 200 000 Kč. Furthermore, it was decided that

her on the basis of § 135d para. 1 of the law on excise duties (in the then

as amended) imposes the confiscation of 16 949 PCs in consumer spirits

packaging, 13 300 g of tobacco in consumer packaging and 302 352 cigarettes

secured by the Customs Office Prague Dl decisions on interim measures

No. 4389-3/2009-176800-032 and no. 5004-3/2009-176800-032. The owner of the

forfeited things becomes the Czech Republic.



7. Revocation of a commercial company 4 VIP, s. r. o., against a decision

The Office of the Customs Directorate decided to Karlovy Vary, Plzeň decision

of 20 December. August 2009 No. 6949-02/09-1601-21 so that the first

the decision was confirmed with the change that the fine was reduced to

the amount of 100 000 €.



8. Against the decision of the customs directorates in Plzeň filed a trade

Company 4 VIP, s. r. o., an action decided upon by the regional court in Pilsen, Czech Republic

by judgment of 22 December 2004. December 2010 No. 57 Ca 85/2009-59, so that

set aside the decision of the defendant of the customs directorates in Plzeň of 20 December. August

2009 No. 6949-02/09-1601-21 and the case returned to the defendant for further proceedings.



9. Against the above decision of the regional court in Pilsen has made a

the defendant, the Customs Directorate of the Plzeň appeal in Cassation decided

Supreme Administrative Court judgment of 23 March. September 2011 No. 7 Afs

30/2011-105, that the judgment of the regional court in Pilsen, Czech Republic of 22 July.

December 2010 No. 57 Ca 85/2009-59, set aside and the matter returned to the County

Court for further proceedings.



10. The regional court in Pilsen by order of 19 December 2003. 12.2011 No. 57 Af

41/2011-126 to the action cut off pursuant to § 48 para. 1 (b). and)

Code of civil procedure of administration and the matter before the Constitutional Court with a proposal based on

Article 95 para. 2 of the Constitution.



III.



The arguments of the applicant



11. the applicant submits that paragraph 2 of § 135d. 1 of the law on excise duties

It follows that the administrative authority competent to hear administrative offense is

obliged to save forfeiture "tobacco or spirits of secured

When you check in accordance with section 134 ", belongs to the perpetrators of the administrative offense and

If they were to commit the administrative offense used or intended. The control of the

under section 134 is necessary to understand the compliance with the prohibition on the sale of spirits

and tobacco products pursuant to section 133 of the Act on excise tax. Pursuant to §

paragraph 133. 1 of the law on excise duties, if this law does not

otherwise, it is on the newsstands, markets (the markets) or places that

do not meet the technical requirements for territorial technical, special-purpose and

stavebnětechnické solution structures and that are not approved for sale

goods or the provision of public services, prohibited to sell spirits and

tobacco products.



12. The literal interpretation of the section 135d paragraph. 1 in conjunction with § 134 and section 133 paragraph 2.

1 of the law on excise duties can be concluded, that the administrative authority

jurisdiction to hear administrative offense shall be obliged to provide all the

tobacco or spirits, which at the time of control

sold at kiosks, markets (the markets) or places that

do not meet the technical requirements for territorial technical, special-purpose and

stavebnětechnické solution structures and that are not approved for sale

goods or the provision of public services, and subsequently save penalty

forfeiture of all of these secured products, regardless of whether the

on them or did not meet the obligation to pay excise duty. The law on the

excise tax in section 135d paragraph. 1 of the law on excise duties

talks about "unlabeled" tobacco products and spirits, but in General

on tobacco products and spirits. This interpretation was based on the defendant

(and, eventually, the Supreme Administrative Court). With such an interpretation of § 135d

paragraph. 1 in conjunction with § 134 and section 133 paragraph 2. 1 of the law on excise duties

However, the appellant does not agree.



13. The regional court in Pilsen, says he first tried in accordance with the established

the case-law of the Constitutional Court [e.g. find SP. zn. PL. ÚS 44/03 of 5 June 2003.

4.2005 (N 73/37 SbNU 33; 251/2005 Coll.), available as well as all

other decisions of the Constitutional Court here also cited the

http://nalus.usoud.cz] on the other, constitutionally the interpretation section

§ 135d para. 1 of the law on excise duties and came to the conclusion that the

the provisions in question can be interpreted in accordance with the constitutional law, and

There is therefore no reason for its cancellation.



14. My conclusions as follows, said the regional court in Pilsen in detail

divorced in its first judgment in the order of 22 May. December 2010 no j.

Ca 57 85/2009-59, in which, inter alia, stated that the interpretation of section 135d


paragraph. 1 of the law on excise duties "cannot be disregarded nor from ust. § 134

the law on excise duties. Under the second paragraph of this provision,

If you are performing a check of compliance with the prohibition on the sale of spirits and

tobacco products according to the ust. § 133 detected spirits and tobacco

products, the inspection authority shall issue a decision on interim measures, in

which provides for ensuring these products. The text of the cited provisions would

It may evoke the idea of some sort of follow the decision of the

forfeiture of goods seized during the inspection under section 134 of the Act on

excise tax ", IE. the idea that if the administrative authority when

inspection of spirits and tobacco products, these must ensure and

they must then decide on the forfeiture. Such an interpretation is

However, according to the regional court in Pilsen, wrong.



15. The regional court in Pilsen, therefore, in its judgment of 22 June 1999. December 2010

expressed the view that "the legal conclusion that tobacco can be arranged

products and spirits for which the tax has been met, is ...

incorrect. Paragraph 135d paragraph. 1 and ust. § 134 para. 2 of the law on

Excise Tax Act cannot be interpreted at a distance from the remaining provisions

the same law, in particular the part first, marked, General provisions '. In

the General provisions of the law on excise duties is also ust.

§ 42, ensuring forfeiture and prevents the selected products and

' means of transport '. The provisions of § 42 of the law on consumer

taxes supposedly establishes a general framework that specifies the range of goods subject to

collateral. Consequently, when speaking the law on excise duties in some of its

the provisions on "ensuring", as in the case of § 134 para. 2,

cannot ensure that products other than the products listed in § 42 para. 1 and 2

the law on excise duties. Administrative authorities alleged that, in the case

the goods in respect of which the forfeiture, it was decided to the goods, as defined in § 42 para. 1

or 2 of the law on excise duties. Even nerozporovaly the plaintiff's claim

about the fact that the goods for which the tax obligation was fulfilled. For this

the situation cannot come to any other conclusion than that the administrative authorities have not been

entitled to this item at all, let alone ensure subsequently decide

the forfeiture.



16. Although regional court is convinced that the Institute provide

referred to in § 42 para. 1 and 2 of the law on excise duties is due to its

the Customs authorities for binding speciality even if, when followed

Act No. 337/1992 Coll., on administration of taxes and fees, as amended

Regulations (hereinafter referred to as the "law on the administration of taxes and fees") shall be deemed to

Moreover, attention must be drawn to the fact that in order to ensure the products were not administrative

authorities may even under the law on the administration of taxes and fees. Regional

the Court stated that they do so due to the fact that the defendant in the grounds

the contested decision stated that "it is necessary to point out that in the present

When the check was carried out in the framework of the tax administration,

in the provision of goods procedures for ensuring things during the administration of taxes, i.e.,

that was a procedural provision the law on administration of taxes and fees. " In

the law on the administration of taxes and fees is to ensure the Institute defined in section 15

paragraph. 7. Under this provision, a worker of the tax authorities can provide

whether or not the things for which their failure could result in the inability to

additional card facts required in tax proceedings. Regional

the Court considers that, if in the case of goods which have not been

doubt as to the compliance with tax obligations, it was not possible for such goods

to ensure. For the same reason was said to be unusable, the Institute also

ensure payment on or before nestanovenou nesplatnou tax (section 71 of the Act

No. 337/1992 Coll., on administration of taxes and fees, as amended

regulations).



17. The regional court from the perspective of the above conclusions originally thing

submitted to the Constitutional Court to cancel the part of section 135d paragraph. 1 of the law on

excise duties, but he himself interpreted this provision in a manner

that was viewed as a constitutionally compliant. On the basis of this interpretation of the

the contested decision of the customs directorates in Plzeň, set aside and the matter returned

the defendant for further proceedings. However, after the Supreme Administrative Court with

This interpretation and judgment of Fowles on 23 December 2005. September 2011 No. 7

AFS 30/2011-105 of the judgment of the regional court in Pilsen, set aside and the matter returned to him

for further proceedings, the regional court in Pilsen is now bound by the opinion of the Supreme

the administrative court that the law on excise duty which gives the competent

authorities the power to ensure at the same time forfeit all spirits

or tobacco products that were sold in the area, under the

regardless of whether it was or was not payable excise tax.



18. The regional court in Pilsen, is convinced that part of section 135d paragraph. 1

the law on excise duty which are prefaced with the words "or tobacco products

or spirits of secured during the inspection under section 134 "is inconsistent with the

Article 11 (the right to own property) in conjunction with article 4, paragraph 2. 4

Of the Charter. In this situation, said the regional court in Pilsen, had

refer the matter to the Constitutional Court to cancel the part of section 135d paragraph. 1

the law on excise duties.



19. The regional court in Pilsen has considered that the imposition of a penalty automaticity

confiscation provided for in § 135d of the opposing part of the paragraph. 1 of the law on

excise tax is inconsistent with the constitutional order. Is not respected

the principle of differentiation and proportionality of sanctions proposed constitutional

Court SP. zn. PL. ÚS 38/02 of 9 June. 3.2004 (N 36/32 SbNU 345;

299/2004 Coll.), in which the Constitutional Court stated that "a fine as punishment must

be differentiated to effectively act as a punishment as a deterrent

(individual and general prevention) ", and named in the constitutional

Court SP. zn. PL. ÚS 14/09 of 25 March. 10.2011 (N 184/63 SbNU 117;

22/2012 Sb.).



20. the Constitutional Court Decided in finding SP. zn. PL. ÚS 14/09 concluded that in

the case of the penalties the fine differentiation of sanctions request is respected by

provision is made for the span of the fine, and in the case of sanctions, disqualification is

fixed span of time penalty, then in the event of sanctions, confiscation

pursuant to section 135d paragraph. 1 of the law on excise duties do not apply anything like that.

Without examining the other conditions is always saved the forfeiture of all spirits

and tobacco products at the point of sale.



21. The administrative authority by the applicant in this case deprived of options

take into account the nature and gravity of the administrative offense, committed to

personal, family, property and other circumstances of the offender, to its

existing way of life and to the possibility of a remedy to behavior

the perpetrators after the fact, to the effects and consequences that can be expected from the punishment

for the future life of the offender, to attenuating and aggravating circumstances

etc., as is typical of criminal law (section 39 of Act No. 40/2009 Coll.,

the criminal code, as amended by Act No. 193/2009 Sb.). The administrative authority could not

take into account the severity of the administrative offense, the way a criminal offence and

its consequences, the circumstances under which it was committed, etc., as is typical

for torts [section 12 of Act No. 200/1990 Coll. on offences, in

as amended, (hereinafter referred to as the "law of the provincial offences Act")].



22. Against this background, the applicant can be hardly talk about that

would ever could be filled with the principle of differentiation of sanctions. When automatically

Save the forfeiture case to any differentiation of sanctions does not occur. The amount of the

the punishment is always equal to the amount of spirits and tobacco products

situated in the point of sale, regardless of, for example, on the hazards of

the Act for the company. It can easily happen that, in the case of less

serious crime, the offender will be affected disproportionately more than in the case of

a very dangerous act.



23. A regional court ruled that the purpose of paragraph 135d paragraph. 1 of the law on consumer

taxes, the interest of the State to ensure that the buildings were used only to

the purpose for which they are intended and stavebnětechnickým for which

It was stavebnětechnické to the purpose of the determination of Building Authority

verified. Prohibition of sale of tobacco products and spirits in a place that

It has not been for sale for the sale of goods or the provision of innkeepers

services, provisions of special in relation to the General obligations

set in the present in section 119 of the Act No. 183/2006 Coll. on territorial

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

350/2012 Sb.



24. The regional court stated that section 119 to the building Act is an expression of the principles,

the construction may be used only for the purpose for which it is

stavebnětechnickým the character of the intended and for which it was stavebnětechnické

determine the purpose of the construction authority that you want verified. The meaning of this policy

certainly lies in an effort to prevent the occurrence of damages, which could otherwise be

be improper use of buildings. You cannot depart from it, that this

the principle is gaining importance, particularly in the case where the building is used

a greater number of people, although such use of strategies has not been determined,

Since the possible damage to life and health of persons is to be considered

the most serious damage.



25. If the tax administration of excise duties is referred to in

for example, the petitioner's logical that when the local investigation, and tax


the tax administrator may make findings regarding compliance with the

tax obligations, so the findings concerning the implementation or violations of the prohibitions

the sale referred to in section 133 of the Act on excise tax. You can therefore

understand that the legislature because of the efficiency of State administration entrusted the

the scope of excise tax administrators in the scope of § 132 to 134 in conjunction with

section 135 c and 135d law on excise duties. The adaptation of these two

in a single act it is then logical end to this intention.



26. However, the Illogical and unreasonable in relation to the protected by law

the interest seems to be the regional court of the administrative authority to ensure all

things found in the area, which is not my stavebnětechnickým

the character of the intended activities with these things or to the presence of things in

it. Construction law in a similar administrative offence the penalty of confiscation

provides it. The damage to the life and health of persons may arise due to

ineligible building, rather than the influence of the goods sold in this site.



27. The regional court in Pilsen, in relation to the principle of differentiation of sanctions

States that it is not excluded that the offender selling tobacco products and

spirits in a space that is not formally stavebnětechnicky

approved for the sale of goods, however, when the necessary formalities would have to

this purpose can be without any construction work, rekolaudován

will be punished many times more than the perpetrator of these goods by the seller

in the space immediately endangering the life and health of the buyers.



28. If the Constitutional Court Stated in the award SP. zn. PL. ÚS 14/09 (see above), the

"The determination of several kinds of penalties, either Alternatively or cumulatively,

It is completely regular way of penalising legislation both in the field of

criminal and administrative law ", according to the regional court must

noted that this conclusion does not apply to the penalty of confiscation. The punishment

confiscation is cumulatively in accordance with § 70 para. 3 of the criminal code

established only in the case where the offender is in conflict with other legal

Regulation of the thing or other property value referred to in paragraphs 1 and

2, in respect of which it is possible to save the forfeiture of a thing or other property

values. The law on offences the forfeiture penalty cumulative determination

the case for any of the constituent elements of the offences. It would be perhaps

You can accept the confiscation of tobacco products and spirits for which the

the tax has not been satisfied the obligation to pay excise duty, but not already

tobacco products and spirits for which the tax obligation was fulfilled.

These are held in violation of the law are not. If it is to be

confiscation of such items, the penalty is forfeiture of things, in the opinion

the applicant is manifestly disproportionate.



IV.



Observations of the parties



29. in accordance with § 69 para. 1 Act No. 182/1993 Coll., on the Constitutional Court,

as amended by Act No. 18/2000 Coll., is a participant in the proceedings whether or not he who act

or other legal provision whose annulment is sought, it has issued. The constitutional

Court pursuant to § 69 para. 1 Act No. 182/1993 Coll., on the Constitutional Court, in

amended by Act No. 18/2000 Coll., delivered by the requested representation to design

The Chamber of deputies of the Czech Parliament and the Senate of the

The United States, as parties to the proceedings.



30. the President of the Chamber of deputies of the Parliament of the United Kingdom

Miroslava Němcová in its observations, the Constitutional Court delivered on 7 December.

March 2013, and the President of the Senate of the Parliament of the Czech Republic Milan Štěch

in its statement, the Constitutional Court delivered on 14 July. February 2013,

They said that the contested provisions of section 135d to Act No. 356/2003 SB., on

Excise Tax Act, as amended, inkorporováno by law

No. 217/2005 Coll., amending Act No. 356/2003 Coll., on consumer

tax code, as amended, law No. 266/1991 Coll., on the

the scope of the authorities of the Czech Republic in the area of prices, as amended

regulations, and some other laws, and it was amended three times,

and by law no 575/2006 Coll., Act No. 95/2007 Coll. and Act No.

407/2012 Coll. Both in detail described the course of the legislative process and

the Group stated that the amendments, no not section 135d.

The approved proposal was published in the collection of laws as Act No. 217/2005

Coll. of 3 June. in May 2005, which changed the law No. 353/2003 SB., on

Excise Tax Act, as amended, law No. 266/1991

Coll. on the competence of the authorities of the Czech Republic in the area of prices, as amended by

amended, and certain other laws; effectiveness has acquired 1 July 2005.

July 2005.



31. Both parties state that the contested legal text was discussed and

approved by the constitutionally prescribed way and according to the standard rules

the legislative process. The assessment of the constitutionality of the contested design

the provisions leave to the discretion of the Constitutional Court.



In the.



The statement in intervention



32. Non-dated 7. March 2013 No. 2442/2013-Senior Director of KMV

Section of the Minister of the Government Legislative Council and Chairman of the Constitutional

the Court said that the Prime Minister of the Czech Republic in accordance with the provisions of the

Article 77 paragraph 1. 1 of the Constitution, decided that the Government will use its rights

resulting from § 69 para. 2 of the Act on the Constitutional Court to accede to the

proceedings of the design, and at the same time his letter of 6 May 1999.

March 2013 commissioned the Minister of finance, to develop and in law

the prescribed time limit filed on behalf of the Government of the United Kingdom representation to

the subject of the proposal.



33. The Minister of finance in its observations, the Constitutional Court delivered the day

March 20, 2013, stated that in the draft of the regional court a few times

misinterpret the provisions of this Act. The regional court argues that the

paragraph 135d paragraph. 1 and § 134 para. 2 of the law on excise duties

cannot be used by itself, or from their title is not possible without

to further ensure and subsequently save the forfeiture of tobacco products or

the spirit drinks for which proof is furnished that were taxed. The County Court is based on

from § 42 para. 1 and 2 as provisions of a general nature and § 135d,

or § 134 para. 2 as the special provisions. Furthermore, the regional court of

Pilsen concludes that section 42 of the Act on excise tax is the only

the provisions of this Act, which defines the goods, which may be the customs

authority or the Customs Directorate to provide and, consequently, save

the forfeiture. In the case of the applicant, the goods were taxed, thus according to the

the regional court authorities that tobacco products and spirits in place

ensure not power as follows to take place.



34. With the conclusion of the regional court, according to Minister of finance cannot be

identify with. It is possible to agree that the provisions of § 42 para. 1 and 2

the law on excise duties are to define the exact conditions under which it can be

selected products or means of transport. However, this enumeration

does not constitute a general framework, there is no comprehensive arrangements for seizure and confiscation

things in the law on excise duties and, therefore, does not pick up a list of all

the constituent elements of the fulfillment of the products can be under the law on

excise tax. There are other facts of Explicite

expressed in § 134 para. 2 in conjunction with § 134 para. 1 and section 133

paragraph. 1 of the law on excise duties. Spirits and tobacco products can

be provided according to § 134 para. 2 of the law on excise duties because

When carrying out checks in accordance with § 134 para. 1 of the law on excise duties

aimed at compliance with the prohibition on the sale of spirits and tobacco products

(cf. § 133 paragraph 1 of the law on excise duties) are spirits and

tobacco products being sold in places where it is prohibited by law.



35. The Minister of finance further stated that the purpose of the two provisions

are not the same. The provisions of § 42 para. 2 of the law on excise duties

points to the situation to ensure the selected products in the event that these

products are not taxed, and are considered to be untaxed. On the contrary, §

134 para. 2 of the law on excise duty which focuses on situations where

tobacco or spirits sold at kiosks, markets

(the markets) or places that do not meet the technical requirements of the territorial

technical, specific and stavebnětechnické solution structures and which are not

approved for the sale of goods or the provision of public services, and, where

It is therefore banned their sale (cf. § 133, paragraph 1, of the law on consumer

taxes). In § 134 para. 2 in § 133 paragraph 2. 1 talks about tobacco

products or spirit drinks, irrespective of whether they have been paid

excise tax or not. The purpose of this adjustment is not primarily

to assess the compliance with tax obligations tax subject, but watching and

provide products which by their nature can be to human health

harmful on places selling these products are not intended.



36. The Minister of Finance stated that they cannot identify with the conclusions of the regional

the Court about the purpose of the contested provisions of the law on excise duties.

The legitimacy of the sanctions is directly deducted from the public interest, which has the

provisions to protect them. This public interest justifies the level of intervention

sanctions to individual realm of individuals. To determine whether the penalty

constitutionally conformal, it is therefore necessary to answer the question of whether the primarily

the penalty is justified due to the public interest to protect.


Public interests, to protect the provisions of the law on consumer

taxes are, first, the public interest in the proper selection of excise duty, but

at the same time also in the protection of health and life of the population. This protection

the life and health of the population, however, is the protection from damage in the

as a result of the consumption of bad health and/or illegally produced

products, and not perhaps as a result of "the use of buildings for any purpose other than

they are structural and technical nature intended "as

incorrectly stated in the proposal of the regional court.



37. According to the Minister of finance is, therefore, clear that the provisions of the law on

Excise Tax Act prohibits and punishes the sale of spirits and tobacco

products on the markets and stalls also due to difficult controllability

of such products by the competent authorities to verify compliance with the prohibition

sales of spirits and tobacco products. The result of insufficiently performed

control is then an increased risk on tax-free sales of products, disabled

harmful and/or illegally produced. As demonstrated by the recently called.

"metanolová affair", the risk of damage to the public interest in the protection of life

and the health of the population as a result of illegal trade with the selected

products are very strong. Ban on the sale of selected products on the premises,

the stavebnětechnickým were not intended and for which the

stavebnětechnické was not intended for the purpose of building the Office requested

verified, the deliberately General on products taxed and untaxed.

Sankciován is selling them in unsuitable conditions, and not

non-payment of excise duty. In case of detection on tax-free spirits or

tobacco products shall be followed in accordance with the rules governing

the administration of excise duties, irrespective of the solution to the question of the sale of the

products on the spot where their sale is prohibited. Transparent sale

the selected products at designated places and appropriate is a condition

effective screening of fulfilment of tax obligations and at the same time

examination of compliance with the obligation to protect the health and life of the population.

The relationship of the relevant provisions of the law on excise duties and the provisions of the

governing the offences in accordance with the building Act cannot therefore be described as a

the relationship of the specialties.



38. The Minister of finance does not agree with the statement referred to in the draft of the regional

the Court rule the possibility of cumulative penalty does not apply to

confiscation, since Act No. 200/1990 Coll. on offences, as amended by

amended, this possibility of cumulation with any of the facts

It does not contain. This cannot be accepted, as in the General provisions of the law

the provincial offences Act (see section 18) this option modifies. That is not included

for specific facts, then in no way preclude

subsidiary application of this rule for offenses covered by other

laws, since it is the subsidiary application of the law on misdemeanors by the legislature

in such cases. In addition, each law may

lay down obligations in excess of another law. This does not mean, therefore, that

If a law of cumulative penalty forfeiture of things with

another of the penalties (especially fine) did, it would not be possible to get

another law (such as the law on excise duty) for your needs

such an option could not determine if the legislature will respect

kautely constitutional law not be exceeded. To a specific determination

the sanctions mechanism is a rational legislature relevant

reasons (protection of the public interest, the limits of the legislation of the European

the Union, the historical development of the modification or the requirements of practice). It is therefore not possible

without further say, that if they were any discretion.



39. The Minister of finance disagrees with the opinion of the District Court, that must be

any sanctions, which is differentiated by the applicant mistakenly dovozováno from

Constitutional Court SP. zn. PL. ÚS 38/02 of 9 June. 3.2004 (N 36/32

SbNU 345; 299/2004 Coll.), which States that the fine imposed as a sanction has to be

differentiated. From the nature of things, and it is not practical nor possible that any

the penalty has always been bound by the requirement of differentiation, in particular, it is not possible to

the sanctions, confiscation of goods (in this case, the forfeiture of a selected heading

things).



40. The reason for the confiscation of the spirits or tobacco products recorded on

where is the prohibition of sale, is not, a priori, the effort to punish

delinquent (the penalty here is the imposition of a fine), but avoid the continuation in the

violations of the prohibition on the sale, which follows the above-mentioned public interest in

the protection of life and health of the population. This is achieved by a person

that violated the prohibition of sale, is deprived of the ownership of those selected

the products that reside in the place where there has been a violation of the prohibition

because there is a real risk the continuation of this disabled

sale. This sequel is to be given to the public interest

prevent, and regardless of the quantity of the selected products

confiscation is concerned, regardless of the financial situation of the offender of the administrative

tort. Minister of finance, adding that sanctions the forfeiture of a certain type

things that can be stored along with the fine, it is relatively

the normal penalties for administrative offence. You can find it for example. in Act No.

146/2010 Coll., on labelling and traceability of explosives for civil

of use, as amended by Act No. 18/2009 Coll., (Editor's Note: Act No. 146/2010

The SB was effective from 5. April 2013 dropped and replaced by law No.

83/2013 Coll., on labelling and traceability of explosives for civil

use), law no 228/2005 Coll., on the control of trade in products,

possession limits in the Czech Republic for security reasons, and

amending certain laws, as amended.



41. In conclusion, his observations of the Minister of Finance expressed disagreement with the

the design of the regional court to annul the contested statutory provisions and

proposes rejection of the application.



Vi.



The Ombudsman's observations



42. The Ombudsman to the challenge of the Constitutional Court said that their

the right to intervene pursuant to § 69 para. 3 of the law on the Constitutional Court

It does not use.



VII.



The abandonment of an oral hearing



43. According to section 44 of the Act on the Constitutional Court, if the proposal was outside the oral hearing

without the presence of the participants, the resolution of the Constitutional Court rejected the oral

the negotiations, if it can be expected from this meeting the further clarification of the matter. Oral

negotiations always orders, if provided for by this Act or by a Constitutional

the Court of inquiry. In on things, the Constitutional Court had considered that, from the discussions

You cannot expect a further clarification of the matter, therefore, it was from an oral hearing

abandoned.



VIII.



The assessment of the appellant and the locus standi of the jurisdiction of the constitutional

Court to hear the application



44. The Constitutional Court first dealt with the question of whether the claimant-

The regional court in Pilsen-authorized motion of unconstitutionality

the contested legislation or its individual provisions,

and came to the conclusion the positive. Such a proposal is entitled to a General Court

in the context of its decision-making activities referred to in article 95 para. 2

The Constitution, which in this case has been met. In the case law of the Constitutional Court

It has been argued repeatedly that the proposal to declare the unconstitutionality of the law

the General Court shall be entitled to submit to the Constitutional Court, even in cases in

which the law had already expired, but on things is to be applied

[see findings SP. zn. PL. ÚS 33/2000 of 10 July. 1.2001 (N 5/21 SbNU 29;

78/2001 Coll.), SP. zn. PL. ÚS 38/06 of 6. 2.2007 (N 23/44 SbNU 279;

84/2007 Coll.), SP. zn. PL. ÚS 73/06 of 29 April. 1.2008 (N 23/48 SbNU

263; 297/2008 Coll.)].



45. The Constitutional Court is called upon to make such a proposal accepted, and

has been examined. Already in the award SP. zn. PL. ÚS 33/2000, was ratified this

legal opinion: "If the Constitutional Court rejected the constitutionality of the contested

the provisions of the assessment would, paradoxically, to block the decision-making

the activities of the courts directly, and the omission of the Constitutional Court the right to perform

its basic obligation under article 5(2). 95 para. 2 of the Constitution. " That conclusion is

the Constitutional Court also remains in the present case.



IX.



The constitutional conformity of the legislative process



46. According to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, in

amended by Act No. 48/2002 Coll., Constitutional Court, in addition to the assessment of compliance

the contested law with constitutional law, to determine whether the law was adopted, and

issued within the limits of the Constitution laid down the competence and constitutionally prescribed

way.



47. In the present case, the appellant did not defect to the legislative

the process exceeded the Constitution laid down the competence or the legislature.

The Constitutional Court after verifying the accuracy of the information resulting from the observations

The Chamber of Deputies and the Senate come to the conclusion that the contested provisions of the

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



X.



The legal text whose constitutionality is to be evaluated by the



48. the contested provisions of section 135d of Act No. 356/2003 Coll., on consumer

taxes, as amended by Act No. 217/2005 Coll., marked with a heading "Forfeiture

and prevents backed tobacco and spirits ", in the period from 1.

July 2005 to 31 December 2005. December 2012:



"(1) the administrative authority competent to hear administrative offense saves the

forfeiture of unmarked tobacco products secured when you check


under section 115 or tobacco or spirits of secured when

inspection under section 134, if



and belongs to the perpetrator of the administrative offense) and



(b)) have been used for committing an administrative offense or intended. "



Voicing of unconstitutionality is designed a portion of text emphasized in

the previous point in bold.



49. for the adjudication of the matter are relevant whether or not certain other provisions

the law on excise duty which are valid in the period from 1. July 2005 to 31 December 2005.

December 2012:



The provisions of § 115 of paragraph 1. 3 was:



"If you are carrying out the checks referred to in paragraph 2, the unmarked detected

tobacco products, the inspection authority shall issue a decision on the preliminary

the measure, which provides for ensuring these products... "



The provisions of § 133 paragraph 2. 1 was:



"Unless this Act provides otherwise, it is on the newsstands, markets

(the markets) or places that do not meet the technical requirements of the territorial

technical, special-purpose and construction of buildings and technical solutions that are not

approved for the sale of goods or the provision of public services,

prohibited to sell spirits and tobacco products. "



The provisions of § 134 para. 2 sound:



"If you are carrying out the checks referred to in paragraph 2 detected spirits and

tobacco products, the inspection authority shall issue a decision on the preliminary

the measure, which provides for ensuring these products... "



50. as already mentioned above, in the time after the application of the regional court

in Pilsen, there was an amendment to the contested legal text. On 1 May 2004. January

2013 entered into force law no 407/2009 Coll., amending Act No.

353/2003 SB., on the Excise Tax Act, as amended, and

other related laws. The law contains an entirely different wording of § 135d

the law on excise tax and applies to a different type of offence

("An offense against the prohibition of buying at a price lower than the price for the final

the consumer ").



51. a similar provision, corresponding with the earlier provisions of the

§ 135d (applicable from 1 July 2005 to 31 December 2012) is now

contained in section 135zzc ("confiscation of spirits and tobacco products").

The constitutionality of this new provision was not in the current proceedings before the

The Constitutional Court assessed (no such proposal has been submitted). Can be

obiter dictum, however, say the assumption that due to content compliance

the new provisions of the contested provisions under consideration now would be the conclusions of the

regarding constitutionality were identical.



XI.



Reviews of the Constitutional Court



52. According to article 95 para. 2 of the Constitution, "If the Court concluded that the law,

to be used in solving the case, is in contradiction with the constitutional order,

refer the matter to the Constitutional Court ". In the present case the Constitutional Court No

the contradiction of the contested provisions with constitutional order did not.



53. In particular, the Constitutional Court reiterates the opinion that his steady

legislation on the punishment of crimes and offences is in the exclusive

the competence of the legislature and is contained in the "ordinary" ("podústavních")

laws. The Constitutional Court, respecting the constitutional principle of separation of powers, it is not

called upon to judge the suitability of each species (effectiveness)

the penalties stipulated by the rates of the sanctions (their) option

an alternative or cumulative penalties, etc. The legal adjustment

These questions would be the Constitutional Court could intervene only in the event that the

the legislature has exceeded constitutional limits. This view is expressed

The Constitutional Court has already in the above-cited finding SP. zn. PL. ÚS 14/09 and in

the present case does not see any reason to change it.



54. In that finding the Constitutional Court further said that the principle of

differentiation of sanctions and their adequacy is not violated by the law

He commands the cumulative saving multiple types of penalties; on this way

can't find anything of legal regulation protiústavního. Determination of several

kinds of penalties, either Alternatively or cumulatively, it is completely

regular way legislation in the field of criminal sanction as,

as administrative law. The legislature usually suitably combines

punitive and preventive purpose of sanctions that is mj. in that, in addition to

appreciable sanction offenders is the Russians the perpetrators

prevented a continuation or recurrence of a tort. In view of that can be

noted that, even on things the legislature by providing for several types of

sanctions violated constitutional principles.



55. The Constitutional Court, however, admits that the law sanctions should

exceptionally, could find themselves in conflict with constitutional requirements, when

If they respect the principle of differentiation and proportionality of penalties

or if extremely disproportionately interfere with other constitutionally

protected values. In the case of property sanctions such an unconstitutional

interference with the property rights of delinquent could in particular occur if

penalties for delinquent assets should the winding-up or "strangling" effect

[cf. find SP. zn. PL. ÚS 3/02 of 13 April. 8.2002 (N 105/27 SbNU 177;

405/2002 Coll.), finding SP. zn. PL. ÚS 12/03 of 10 June 1999. 3.2004 (N 37/32

SbNU 367; 300/2004 Coll.), finding SP. zn. PL. ÚS 14/09 of 25 March. 10.2011

(N 184/63 SbNU 117; 22/2012 Coll.), finding SP. zn. PL. ÚS 1/12 of 27 July.

11.2012 (437/2012 Sb.)].



56. the fundamental objection of the plaintiff, which is justified by the unconstitutionality

the contested provision, the alleged infringement of the principle of differentiation and

the proportionality of the sanctions. The fact that the legislature dictates "automatically"

pronounce the penalty of forfeiture of spirits and tobacco products are detected and

secured to the point where their sale is forbidden (in this case in

kiosks, markets and markets or places that do not meet the technical

the requirements on the technical, the special territorial and stavebnětechnické solutions

buildings that are not approved for sale the goods) cannot said to be administrative

the authority imposing the penalty to take account of the nature and severity of the committed

the administrative offense, for personal, family, property and other circumstances

the offender, to the previous way of life and to its axle,

to the behavior of the offender after the crime, to the effects and consequences that can be expected

from punishment for the future life of the offender, to attenuating and aggravating

circumstances, etc. The legislature apparently impossible when application of the standard

comply with the principle of differentiation and proportionality of penalties.



57. This objection does not consider the Constitutional Court in the matter under

a close-fitting. Above all, it should be noted that even when legislation to

even when saving penalties of confiscation (whether in criminal or in

administrative law) does not consider the differentiation of this penalty within the meaning of

its various quantitative assessments. Sanctions, confiscation of things always

covers all things (or other assets), which have

relationship to the offence, for example. because the thing was used or intended

to commit a tort, crime, or was obtained as a reward for him,

or the offender has acquired a thing obtained a crime. In this aspect

(quantitative differentiation), the penalties forfeiture case differs from the cash

sanctions in respect of which the request is typically claimed to differentiation and

You can easily differentiate in amount. By contrast, the only real

way to differentiate saving penalties would be forfeiture of things

allow binary option-either alternative penalty save, or

not to save. Such legislation, if it is not completed by

the determination of the additional criteria for the selection of these alternatives, however, should

did not meet the requirement of certainty of law and opened a space for would

application of position.



58. As is apparent from settled case-law of the Constitutional Court, property

the sanctions, which have the nature of a public service obligation to tolerate the loss of

property and its transfer to the State, although interference to the securities

substrate, and thus the title of the statutory body, itself

However, does not constitute a violation of the right of ownership, which is constitutionally guaranteed

in article 11 of the Charter or of article 1 of the additional protocol to the Convention on

the protection of human rights and fundamental freedoms [find SP. zn. PL. ÚS 7/03 of

on 18 July 2005. 8.2004 (N 113/34 165 SbNU; 512/2004 Sb.)]. The assessment of whether this

the penalty will stand as a permissible action, generally depends on the fulfilment of certain

terms and conditions. In particular, such penalties must be, even in the case of

the administrative offense, fixed by law, which is, in this case fulfilled (cf.

find SP. zn. PL. ÚS 14/09, paragraph 29). Although the law in question must

compete in terms of the proportionality test, however, in such

the case does not apply in its full form. The reason for this procedure while

It follows from the nature of the sanctions measures.



59. The Constitutional Court when assessing the admissibility of the intervention to a specific questions

by default, the basic law assesses whether the measure tracks

legitimate (constitutionally qualified) target its restrictions, and if so, whether the

This measure to achieve this appropriate (requirement),

If this goal cannot be achieved by other means, which would be to the

the basic law more friendly (the requirement of necessity), and finally, whether-

If the stated conditions are met-interest in achieving this goal in

under a particular legal relationship outweigh the fundamental rights concerned

(proportionality in a strict sense).



60. The application of this test in the case of restriction of property rights by granting

property penalties in the case under consideration leads to the conclusion that such


the sanctions target the prevention of violations pursues a legitimate legal question

obligations. At the same time it is a resource that is capable of this objective

to accomplish this. The purpose of the legislation is to prevent the sale of

tobacco products and spirits in places selling these products

they are not intended as their sales to such places makes it difficult both to

check the exhaust of the excise duty, and the control of hygiene and health

marking of goods. Forfeiture of secured tobacco products and spirits

It may be a tool that is capable to achieve the intended and

at the same time the legitimate objective, since it reduces the risk of a strict penalty

the "feasibility" of the infringement and has newly

preventive effect. As demonstrated by the recently called. "metanolová affair"

the risk of damage to the public interest in the protection of life and health

the population is due to illegal trade with selected products

large. For this reason, the Constitutional Court is of the opinion that this interference is

eligible to fulfill his goal.



61. Answering questions the need for sanctions as such (in the sense of the kind of

This penalty) and related issues of the intensity of the protected public

interest already but cannot perform any judicial interpretation. It is about questions

political nature whose solution is within the exclusive competence of the

the legislature, which ultimately belongs to the legislative issues

whether an act to be punishable or not, define the factual

constituent elements of offences (crimes, offences, other administrative offences) and

determining the type and level of penalties. Currently, the legislature may, within its own

the discretion to take into account individual criminally-political point of view, for example.

the General aspect of prevention, risk behaviour and the intensity of the tort of

the resulting risk level of orderly human coexistence, or transformation

in view of the public on the importance of axiologickém individual and

social values and legal goods poškozovaných deliktním behavior

Offenders (find SP. zn. PL. ÚS 14/09, paragraphs 29, 34 and 36).



62. the result of these considerations, which includes determining the type and amount of penalties

for committing a particular offence, although the Constitutional Court may further review in

the limits of their competence, however, the space for any of his intervention is

very narrow. In principle, so it can consider whether the property in question penalties

withstands extreme in terms of the test exclusion, i.e., disproporcionality

whether the penalties associated with this encroachment on constitutionally guaranteed by title

the law does not lead to such a fundamental change in the financial circumstances of the

the body, which for him meant "thwarting the very assets", IE.

"destruction of property" (find SP. zn. PL. ÚS 3/02), respectively.

This is not a case in which "the boundaries of public statutory financial

the performance of an individual against the State acquired the restrictor (rdousícího) action "

(find SP. zn. PL. ÚS 7/03). For its review but may proceed from

point of view of compliance with the constitutional principle of equality, both in the accessory

the meaning of article 3 (2). 1 of the Charter, which prohibits to discriminate against a person in

the exercise of their fundamental rights and neakcesorické, as enshrined in article

1 of the Charter and relying on the exclusion of the arbitrariness of the legislature when the

distinction of rights of certain classes of entities [cf. find SP. zn. Pl. ÚS

36/01 of 25 June. 6.2002 (N 80/26 SbNU 317; 403/2002 Coll.), find sp.

Zn. PL. ÚS 7/03 of 18 May. 8.2004 (N 113/34 165 SbNU; 512/2004 Sb.)

find SP. zn. PL. ÚS 29/08 dated March 21. 4.2009 (N 89/53 SbNU 125;

181/2009 Coll.), paragraph 56]. If while retained as follows the defined limits

discretion is the final word in relation to the effectiveness of the sanctions of the regime

reserved for lawmakers.



63. the applicant seeks the forfeiture of voicing neústavnosti sanctions

things, because an administrative offence is not considered severe enough to

"automatic" to justify the imposition of this penalty. For such a

the abstract of the review but the Constitutional Court fundamentally called is not.

The proportionality of the contested property penalties within the meaning of the objections put forward by

The Constitutional Court could review checks within the abstract only

the viewpoint of its possible winding-up, or "rdousícího" effect.



64. The reason to the Constitutional Court within the abstract legal checks

the standards stated the unconstitutionality of property sanctions of some kind, would

was given only if the type of sanctions he had always, as

any of the facts of the winding-up or "strangling" effect.



65. The winding-up or "strangling" the effect of the sanctions, however, the forfeiture of things

in General, it does; does it not even for special sanctions "confiscation of tobacco

products or spirit drinks "contained in the contested provision of section 135d paragraph. 1

the law on excise duties. There is no reason, therefore, to the Constitutional Court

expressed his opinion on the unconstitutionality of the contested provisions.



66. If the imposition of sanctions "confiscation of tobacco products or

spirit drinks "should the winding-up or" strangling "character in relation to the

a particular offender, to the competent authority when deciding

imposing this penalty in each case option

take into account, in addition to the severity of the offence and the circumstances of a criminal offence and

matrimonial property regime, the responsible body and, where appropriate, to impose this penalty.



67. the obligation to consider when applying the effects of sanctions in relation to property

the essence of the responsible entity follows directly from the constitutional order,

because any imposition of sanctions of the regime is always interference to its

of property rights in accordance with article 11 of the Charter, and must therefore, in each

individual event succeed in terms of the above constitutional

criteria for the review of the sanctions. Must be taken into account and whether or not the imposition of

specific sanctions in fact does not interfere with the very nature and purpose of the law

a business referred to in article 26(3). 1 of the Charter, whether in relation to this

the law does not have the effect of winding-up, which is not the purpose of this penalty.



68. the fact that § 135d para. 1 of the law on excise duty which does not mention

the possible effects of sanctions in relation to the estate of the responsible

the body cannot be interpreted in such a way that the administrative authority

may, or even must not be taken into account. That conclusion is not altered or

the fact that this provision does not define the limits of administrative discretion for explicite

saving penalties forfeiture case and the obligation to take account of the participation

conditions of the responsible entity and does not contain an express mention of

the possibility to waive the imposition of such sanctions. The very absence of the option

administrative discretion and the possibility of waiving the penalty forfeiture of things

in the Act on excise tax is primarily a negative result of

the persistent fragmentation and nekoncepčnosti the legal regulation of administrative

punishment. This absence cannot be interpreted so that the legislature had intended to

eliminate the obligation of the Administration to heed the path of administrative discretion

constitutionally guaranteed fundamental rights of citizens; such an interpretation would not be

be considered constitutionally Conformal.



69. The imposition of sanctions, confiscation of the things could be unconstitutional in

a specific case. Assess the unconstitutionality of the application of this penalty in

the specific case of the above outlined aspects shall be entitled to the

administrative authority or court. The absence of explicit editing such

options in the Act is not in itself a reason for the intervention of the Constitutional Court

or to the Constitutional Court held the unconstitutionality of this gap in

law of the sea.



XII.



The conclusion of the



70. The Constitutional Court notes that the contested part of the provisions of § 135d para. 1

the Act No. 353/2003 SB., on the Excise Tax Act, as amended by Act No.

217/2005 Coll., i.e.. in the version in force from 1 January. July 2005 to 31 December 2005. December

2012, in the words "or tobacco or spirits of secured when

inspection under section 134 "was not in conflict with the constitutional order of the Czech

of the Republic.



71. The Constitutional Court therefore, the proposal to declare the unconstitutionality of the challenged

part of the Act pursuant to section 70 para. 2 Act No. 182/1993 Coll., on the constitutional

the Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.