7/2001 Coll. CONSTITUTIONAL Court on behalf of the Czech Republic's Constitutional Court ruled on 13 December 2000 in plenary on the proposal of the District Court in Louny on the repeal of section 147 and 147a of Act No. 140/1961 Coll., the Criminal Code, as amended by Act No. 253/1997 Coll. as follows: Annulment of section 147 and 147a of Act No. 140/1961 Coll., the Criminal Code, as amended by Act No. 253/1997 Coll, is rejected. The reason the application lodged on 25. 4. in 2000, the petitioner requests the Constitutional Court annulled section 147 "Failure to transfer taxes, social security contributions, health insurance and contributions to the state employment policy" of Act No. 140/1961 Coll., The Penalties as amended by Act Code No. 253/1997 Coll., (hereinafter referred to it as the "Criminal Law"), and § 147a "Special provisions on effective repentance" of the Criminal Code. The petitioner took advantage of the opportunity given them by the provisions of § 64 para. 4 of the Act No. 182/1993 Coll., On the Constitutional Court, according to which the proposal that repeal and the law or its individual provisions is also authorized it to submit court in connection with its decision-making activities under Art. 95 para. 2 of the Constitution of the Czech Republic (the "Constitution"). The petitioner in its Resolution of 10. 4.2000, file no. REF. 1 T 203/99 under § 224 of the paragraph. 5 of the Criminal Procedure Code interrupted the prosecution of Ing. JS, accused of two offenses of paying the taxes, social security insurance, health insurance and contributions to the state employment policy pursuant to section 147 of the paragraph. 1 of the Criminal Code, and submitted the matter to the Constitutional Court. The petitioner stated that the District Court in Louny was brought it Ing. JS for two offenses of paying the taxes, social security insurance, health insurance and contributions to the state employment policy pursuant to section 147 of the paragraph. 1 of the Criminal Code, which was allegedly committed would firstly in the period from January 1994 to October 1998 in this PR, District of, or else as the payer does not cause proper social security premiums, both for the organization of Ing. JS, PR, 42107016 and ID for their employees, while on the payroll of the cash on delivery stated that the premium is transferred to the account of the District Social Security Administration Louny, which for that period was debt totaling CZK 682.548, and for the second period from January 1994 to August 1998 it tar, District of, or else as the payer does not cause proper health insurance , both for the organization of Ing. JS, PR, 42107016 and ID for their employees, while on the payroll of the cash on delivery stated that the premium is transferred to the account of the General Health Insurance Company of the Czech Republic-Louny, which for that period was debt totaling CZK 166.613. The petitioner further states that section 147 of the Criminal Code affects the taxpayer for failing to meet its legal obligation to pay for the taxpayer's tax payments for social security or health insurance, or contributions to the state's employment policy and fulfilling its merits occurs when a taxpayer fails to meet its legal obligation to pay the financial office, health insurance or the social security payments that employees had collided in the payment of their wages or salaries. According to the petitioners ' view, however, the legislature intervenes in an area that is not entirely public character but touches and labor relations between employees and employers-Failure to transfer payment constitutes part of the employee's salary, which was deducted from his gross salary as deduction from the wages is the only entity operations, and therefore the amount employees stripped of his gross salary does not belong it employees but employers until the moment when it is transferred to the account of the relevant state authority. It considers that the imposition of criminal penalties for failure to comply with a legal obligation to pay for the taxpayer above payments is contrary to the provisions of Article. 8, paragraph. 2, second sentence, of the Charter of Fundamental Rights and Freedoms (the "Charter") and Art. 11 of the International Covenant on Civil and Political Rights (hereinafter the "Covenant"), under which no one shall be deprived of his liberty merely on the ground of inability that fulfill and contractual obligation. The petitioner states that the infringement referred to it in the merits of the said criminal offense is also would receive administrative sanctions (penalties, cancellation of trade license) and with proper and timely use of these measures can significantly reduce the non-payment of the statutory benefits. It concludes that the legitimacy of criminal sanctions can be justified only by the need to protect the fundamental legal values and interests against the acts of particularly dangerous for society. This according to him is clear that in a situation where the infringement can be effectively prosecuted without determining criminal penalties, his criminal prosecution in breach of the principles of the rule of law, which is a violation of Art. 1 of the Constitution. The Constitutional Court first considered the formal requirements of the petition. The petition was filed by an authorized person as provided in § 64 para. 4 of the Act No. 182/1993 Coll. Also, the conditions of admissibility pursuant to § 66 para. 1 of Act No. 182/1993 Coll. They were met in this case. The proposal was therefore found to be admissible, and the Constitutional Court proceeded further in accordance with section 68 of Act No. 182/1993 Coll. The Constitutional Court on the proposal requested the Assembly of Protect and the Senate of the Parliament of the Czech Republic. Chairman of the Chamber of Protect, told the Constitutional Court: Act No. 253/1997 Coll was approved by the necessary majority of protect the he 5. 9.1997 and 24. 9.1997 was approved by the necessary majority of senators was signed by the appropriate constitutional authorities and was promulgated a doula. In the explanatory memorandum to the government bill, which was amended Criminal Code of section 147 and 147a, inter alia, that "the economic crimes contained in Title Two special section of the Criminal Code is proposed to include a new offense of involving non-payment of taxes social security contributions and health insurance. Unlike the crime of evading taxes, fees and similar benefits under § 148 of the Criminal Code affecting the cases of Komerční claims about the amount of tax or other benefits to the merits of focusing on cases where the taxpayer does not hide its tax or fee obligation or the amount, but for various reasons do not fulfill this obligation. In accordance with the constitutional principle of eliminating criminal penalties being unable to meet its financial commitment on the merits of the case affects only meetings where the payer (the employer) statutory deductions in relation to its employees perform and damage is that it does not pay the state (prosecution is limited to that portion of the taxes or insurance premiums, which the taxpayer pay for the taxpayer and that taxpayer and therefore knocking). Conditions of effective regret as a form of extinction of criminality are formulated similarly as in section 214 of the Criminal Code. This is due to the fact that in this case the fiscal interests of the state take precedence over bezvýjimečným criminal sanctions. "From the above reasons, the Government, respectively. Protect with the issue of compliance of the provisions of the Constitution and the Charter deal and expressed the view that assessed treatment is accordance with the constitutional principle of eliminating criminal penalties being unable to meet its financial commitment. In the explanatory statement, the President of the Chamber of Protect, endorsed, while, in contrast to the District Court in Louny, does not consider that those provisions extend this labor relations between employer and employee. In this context, it is necessary to take into account the fact that statutory deductions are an employer made, but not paid to the state. Bearing in mind not the view of the Chairman of the Chamber of Protect considered non-payment of these deductions for failure to meet financial obligations arising differently, for example, from contractual and other relations. The president of the Senate informed the Constitutional Court, the Senate decided to approve the amendment in the Criminal Code within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner. It then focused on both the government's approach to this legislation, both the Senate in terms of employment and in terms of protection of social values. Regarding the position of the Government is in the Senate's statement noted that the government presented a draft amendment to the act in general as to which law "catching up" the current level of economic relations and the need for their protection. Explicitly affirmed that the amendment does not restrict the business community nor does it create any new obligations, which would already do not result from the special laws and that only penalizes violations or the failure of the most important of these relationships, thereby providing consistent protection to those who act in accordance with the law. The explanatory memorandum, the government stated that the amendment does not contradict international conventions and recommendations and in the bridge corresponds with the legal situation in most European countries. In particular justification provisions of § 147 (explanatory memorandum to the draft), the Government stated that "in accordance with the constitutional principle eliminating criminal penalties being unable to meet its financial commitment on the merits of the case affects only meetings where the payer (the employer) statutory deductions in relation to its employees perform and damage is that it does not pay the state." In another part of the statement, the The Senate dealt with the objection that the relevant payments are part of the employee's wages and belong to the employer until the moment when it is transferred to the state. It stated that "As part of the so-called. gross wage (salary) charged to be paid are amounts that the employee is a taxpayer's income tax individuals and as a taxpayer social security premiums and contributions to the state employment policy, respectively. for public health insurance premiums required to pay the State, respectively. competent health insurance company. Legislator in such cases, however, will not leave it employees to consider how, respectively. through whom the commitment that fulfill the above mentioned entities. Conversely, the legislature provided employers and duty of retention premiums, respectively. advance tax on personal income (cf. section 121 of the Labor Code, section 18 of Act No. 143/1992 Coll., on the payment and remuneration for work readiness in budgetary and some other organizations and bodies, and section 12 of Act No. 1/1992 Coll. on wages, remuneration for work readiness and on average earnings) and thus excluded in this respect any contractual arrangements, employees and employers. Be these amounts represent a part of statutory entitlement and that the wages, respectively. the wages are basically excluded from handling employee. In this respect, the Senate did not incline it to conclude that the legal obligation of employers can be in terms of the line regarded as a private commitment. "Finally, the observations the Senate assesses the reasons which led the legislature to new legislation in section 147 and 147a of the Criminal Code. It emphasizes that "general that those are legitimate criminal intervention, justified by the need to protect important social values that insufficient other solutions (funds of other branches of law), and inactivity could lead to chaos. Prior to the adoption of the amendment of the Criminal Code became the scope of cases of non-payment of taxes and insurance major (social conflict) and the use of criminal means were found that comply with such a problem. The existing administrative resources have not demonstrated to be self-sufficient. In relation to them the penalties rather than (the threat of this penalty) parts gradovaného pressure on the performance of his duties. Negotiations in the form of non-payment of taxes or insurance premiums are legally required intensity greater extent and must be covered by the intention of the perpetrator, which is then to be approved as every other character merits. "The Constitutional Court II that the proposal is not justified. The amendment to the Penalties Code No. 253/1997 Coll., which came into force on 1 January 1998, introduced a new offense of "paying the taxes, social security contributions, health insurance and contributions to the state employment policy" under § 147 and the new provisions Special provisions "effective repentance" under section 147a. § 147 of the Criminal Code provides that: (1) A person who pays a greater extent not fulfill its legal obligation for the taxpayer to pay the tax, insurance and social security or health insurance, or contributions to the state employment policy, shall be punished by imprisonment from six months imprisonment it three years or a fine. (2) Imprisonment for one to eight years will be the offender who obtains an offense referred to in paragraph 1, this large-scale benefit. section 147a of the Criminal Code provides: Criminalization of non-payment of taxes, social security insurance, health insurance and contributions to the state employment policy (section 147) terminates if the offender subsequently fulfilled their duty before the Court of First Instance began to announce the verdict. Subject to criminal penalties under section 147 of the Criminal Code is the only social security insurance, or health insurance and employment policy contributions, which would be obliged to pay the law is the employee and that the employer has to pay for the employee as a payer, not insured by the employer directly pays as a taxpayer. The rationale clearly precludes criminal prosecution of employers for non-payment of taxes and benefits, which is obligated to pay for itself. The provisions of § 147 of the Criminal Code is designed so that the crime might only be hearing someone who has statutory obligations that levy charges for the other person. Then, the expression "for the taxpayer to pay the tax" can not be intended dose for whose divert taxpayer has an obligation it himself. Regarding the constitutionality of section 147 of the Code and Penalties section 147a of the Criminal Code, it must be II that these provisions are in accordance with the Article. 8, paragraph. 2, second sentence, of the Charter, Art. 11 of the Covenant, as well as Art. 1 of the Constitution. Art. 8, paragraph. 2 the second sentence of the Charter states: "No one shall be deprived of his liberty merely on the ground of inability that fulfill and contractual obligation." According to Art. 11 of the Covenant No one shall be imprisoned for inability and fulfill contractual obligation it. " Art. 1 of the Constitution reads: "The Czech Republic is a sovereign, unitary and democratic state of law based on respect for the rights and freedoms of man and citizen." Given the záruk, it should be noted that section 147 and 147a of the Criminal Code are in conformity with the purposes of the Criminal Code, while section 147 protects society that penalizes only the employer is paying for non-payment of that portion of benefits, the payment of which the law imposes on taxpayers. In the context of statutory obligations can not be confused with the term "contractual obligation" of which speaks mentioned legal provisions. The Constitutional Court found no conflict with other fundamental rights or freedoms enshrined in constitutional law or international treaties under Article. 10 of the Constitution. Finally, the Constitutional Court considers necessary that emphasize that it is inclined in this case the views of both the Houses of Parliament, as well as to the reasons independent of the merits of inclusion in the legal system; This level of protection may be considered as a lex specialis, which is to protect the State's interest in the proper drainage of taxpayers withheld funds that are explicitly specified in § 147, because in recent years the infringement in this case significantly expanded. While it was and receive their offense of violating the duty it administer another's property (Article 255 of the Criminal Code), but the ideological basis of the legitimacy of criminal sanctions was the Institute of embezzlement (who appropriates something entrusted it to him), and as such has long conveyed the scandal, which should be prosecuted. Indeed, the potential defendant is sufficiently protected by the cited provisions of section 147a of the Criminal Code, if it uses the institute effective repentance. Based on the above reasons, the Constitutional Court considered the case of a proposal submitted by the District Court in Louny the annulment of section 147 and 147a of the Criminal Code dismissed (§ 82 para. 1 of Act No. 182/1993 Coll.). Constitutional Court chairman: JUDr. Kessler vr