34/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 19 December. January 1994 in plenary in the matter

mover-a group of 41 members of the Chamber of deputies of the Czech Parliament

the Republic and the party to the proceedings-the Chamber of deputies of the Czech Parliament

the Republic on a proposal to repeal of the law of the Czech National Council No. 39/1993 Coll.

on the penalties and kaucích for not following laws governing transformation

agricultural cooperatives and correction of property-related injustices in the field

the ownership of land and other agricultural property,



as follows:



The proposal is rejected.



(A substantial part)



A group of 41 MPs filed a motion to repeal of the law of the Czech National Council

No 39/1993 Coll., on the grounds that there is a gross mismatch



1. the provisions of section 2 (2). 1 of the law and article. 3 (2). 3 of the Charter

fundamental rights and freedoms (the "Charter") in connection with the article. 26

paragraph. 3 of the Charter,



2. the provisions of section 2 (2). 1 of the law and article. 4 (4). 3 of the Charter,



3. the provisions of section 3 of the Act and article. 26 paragraph 2. 1 of the Charter.

The Constitutional Court reviewed the submitted proposal and came to the following conclusions:



The application for annulment of the Act in General



In General, the explanatory memorandum to the draft law States that the law is

part of the complex rules governing the restitution of agricultural

the property and its privatization. Restitution in this area-and it is generally

unknown-take place very slowly and face considerable opposition. This view

the Constitutional Court also shares, since it is clear from the number of complaints and

the actions of citizens addressed to the competent national authorities and to the general courts.

Slowing down the transformation of the agricultural property and slow with balancing

related restitution claims means even delay the course of

economic reforms in agriculture. This situation is not in accordance with the

sense and the spirit of the Constitution, which in article. 1 defines the Czech Republic outside of the

others as a democratic State based on respect for rights and freedoms

of man and of the citizen, and is not in accordance with the Charter, or that between the base

human rights and freedoms include the right to own property, and in the article. 2 States

that the State is based on democratic values. Other construction

democratic State, standing on the threshold of its evolution, strictly

assuming the existence of an economic basis for democracy, that is, in

the Czech conditions the completion of economic reforms, the integral

It also includes a transformation and privatization of agriculture, including the restitution of

wrongly state assets. Therefore, it is the things of the Constitutional Court, in the context of

the protection of constitutionality and protect this process (article 83 the Constitution). The completion of the

economic reforms (and even in agriculture) is one of the guarantees which

to prevent a potential reversal of the nascent democratic society

back to the paternalistického system, and thus the totalitarian State, based

the kolektivistickém understanding of the economy. From this perspective, it is therefore

need to act as a whole.



In the case under consideration could not overlook the fact that neither the Act No.

229/1991 regulating ownership of land and other agricultural

property, or Act No. 42/1992 Coll., on the adjustment of property relations and

the settlement of property claims in cooperatives, nenormují liability of persons,

which are stored, if the legal obligations of the parties to the

violation of such obligations actually occurred. Addressee of the legal

the duty of the two laws are legal persons. Due to the

cases of non-compliance with statutory time limits allele as well due to the explicit

refusal to comply with a number of legitimate claims at all, it was therefore the intention to fill the

a space in the penalty area, the applicable legislation, completely justified.

Indeed, the apparent success of the initial idea of the legislator, that store

the express penalty is redundant and that the obliged entities voluntarily meet

those provisions of the aforementioned laws, which impose on time and applied

proven claims addressed by the agreement, and only cases clearly disputed and

dubious keep on the Court's decision. The contested law to a certain

extent, evens out the factual inequality of authorized and obliged entities,

because of the absence of sanctions time significantly favour the obliged entities, for

which then lead to unnecessary litigation and the ensuing obligation

the costs of judicial proceedings have been negligible factors.



The proposal concerns the infringement of article itself. 3 (2). 3, art. 26 paragraph 2. 3, art. 4

paragraph. 3 and article. 26 paragraph 2. 1 of the Charter. It is true that specifically for these

articles (with the exception of article 26) are missing for more explicit provisions that would

their application was limited (see e.g. Article 17, paragraph 4, of the Charter). Referred to

provisions of the Charter, however, is to be interpreted in the entire context of the protection

fundamental human rights and freedoms. In practice, the constitutional courts is often

need to address actual or apparent contradiction of two constitutional law protected

interests, often the subject of interest by the intervention of the State and the interest of the State to

exercising the powers which are necessary in a democratic society, for example.

in the interests of national security, the economic well-being of the country, property,

protection of the rights and freedoms of others, and so on. On these ideas is

built in the Convention for the protection of human rights and fundamental freedoms and the practice

The European Court of human rights, and a series of national constitutional courts. Is

therefore always necessary allegedly infringed the provisions on the protection of fundamental

human rights and freedoms (whether it is protected by the Charter or international

the Treaty pursuant to article. 10 of the Constitution) to compare with other constitutional norms

to protect the interest of the other party or third parties, to consider whether a

There has been a restriction on the fundamental rights and freedoms and, if so, whether it

occurred in the extent of constitutional law. Of these

aspects must then be assessed and challenged the law.



When examining the constitutionality of this law is also necessary to consider whether the

the standard of public law or private law standard. It is important to

due to the different legal status of the entity concerned in

public and private relation. From this perspective, it is

necessary to evaluate the constitutionality of legislation criteria at all.



As regards the contested Law, it must be assumed, in particular, of the following

the facts:



and the law is constitutive in nature), as determined by the new liability

the legal relationship.



(b)) this legal ratio serves the protection of the public interest. While this in itself

constitute the norm of public law, but has it's importance for

General view of the standard. In this direction does not matter that the law protects

and private interests of citizens-restituentů.



(c) in the public relation exists) inequality operators. This is also the

in the contested act, according to which a public authority imposes a fine or

the obligation to lodge a security deposit referred to in the Act, and the natural person bears under the

the threat of sanctions for breach of the duty of the subjective, which

the Act regulates.



For these reasons, it is thus clear that the contested act is the norm

public service. As such, the standard for him because the Constitutional Court when

evaluation of its constitutionality.



To his own proposal for repeal of the law individually



To point 1 of the proposal:



From the contested act and cannot be inferred from the content of the proposal, that the Bill to someone

causing injury to the rights for the application of its fundamental rights and freedoms

(article 3, paragraph 3, of the Charter), as claimed by the appellant. If there is a breach of the

law within the meaning of section 2 (2). the Czech National Council Act No. 39/1993 Coll.

then it's not about the exercise of fundamental rights and freedoms of persons with disabilities, but

on the contrary, the denial of the rights of the parties to the braking of the restitution process.

Also it is not a violation of the fundamental right to obtain resources for their

the necessities of the work referred to in article. 26 paragraph 2. 3 of the Charter. This right shall not

refer to the denial of the fundamental rights of other persons protected by the Charter, in

the case of the beneficiaries, which will seek the return of wrongly

withdrawal of agricultural property. Article 26 para. 3 of the Charter in the context of

the provisions of § 2 of the Act unworkable and its meaning is

undoubtedly, completely different than the applicant attaches to him. It can be inferred from

the second sentence of paragraph 3 of this article, where it says that citizens who

This right (i.e. to obtain resources for their living needs work)

cannot perform without their guilt, to stand in a reasonable range of substantive

provides. The right to obtain resources for their living needs work

only one of the significant economic and social rights, which

The Charter enshrines, which, however, the provisions of § 2 (2). 1 of the law without prejudice

and does not interfere with this right nor natural persons who according to the law

they are responsible.



The applicant is also wrong, if it considers that the provisions of section 2 (2). 1

the contested act also applies to citizens who represent the obliged entity on

the basis of power of attorney. Such an interpretation would be unacceptable. That provision

turns out, in particular, to the individuals in the statutory functions of the legal

people, although it cannot be ruled out-if it was an employment relationship-or

the liability of the other staff of the organization who are authorized as

authorities on behalf of the Organization the organization do legal acts resulting from the

their functions provided for rules (§ 9 (1) of the Penal Code

work).



The Constitutional Court is not considered relevant or opinion of the applicant, that in the


the award of orders by the employer (represented by) the employer may be

(represented) and the employee (Deputy) in good faith. With regard to the

subjective page, the law is constructed on the principle of liability for

the fault, and is the fault of negligence (§ 2 para 1 last

sentence of the Act). This legal protection potentially responsible individuals

It is fully sufficient, and corresponds to the democratic legal principles.

Whereas you cannot accept the argument that the law was supposed to be built

on the principle of intentional fault, if the competent body person

physical.



For this opinion is another reason the fundamental nature. The provisions of § 2

paragraph. 1, 2 the Act brings into our new administrative legal system

offence for which the offender may be only a natural person referred to in this

prescription. This administrative offence is not an offence within the meaning of the law of the Czech

the National Council of the provincial offences Act No. 200/1990 Coll. pursuant to § 2 (2). 1.

the Act is an offence culpable conduct that infringes or threatens

interest in the company and is explicitly marked for the offense in this or in

any other Act, unless another administrative offence punishable under

specific legislation, or of a crime. The conditions of this

the provisions are not fully complied with in the present case, since the tort within the meaning of

§ 2 (2). 1, 2 the contested Law for the offense in the Act explicitly marked

It is not. As to the offence punishable under special standards, which is currently

the Czech National Council Act No. 39/1993 Coll., the other characters of the administrative offense

However, with conceptual characters are the same, since the offences in both cases

as for culpable conduct which violates or threatens the interest of the company

and it is not a criminal offence. Consequently, in paragraph 3 of the law on misdemeanors

says that the responsibility for the offense's fault of negligence is sufficient,

unless the law expressly states that it must be intentional fault, then there is no

the reason for not applying this policy as well as on administrative offences. This also corresponds to

construction of liability for fault in the contested act. (As a rule

in the criminal law of the Administration in General, as opposed to criminal law

of just the fault of negligence.)



The contested law and the content of the proposal the applicant considers that there is no

the law does injury to someone on the rights for the application of the fundamental rights of the

and freedoms, if "shifts" the responsibility of people to people

physical (article 3, paragraph 3, of the Charter, § 2, paragraph 1, of the Act). It is hard to take

the claim that the law imposes penalties for these persons, legal professional

the negotiations in the interest of the obliged entities (or legal persons within the meaning of section 2 (2).

1 of the law). In the case of illegal dealings in accordance with § 2 (2). 1, 2

the law, then that is a natural person, that person is compulsory or should

Act and that its conduct violated the provisions of the Act No. 229/1991 Coll.

and other laws referred to in § 1 of the law of the Czech National Council No. 39/1993

Coll. Negotiations responsible natural persons according to § 2 (2). 1, 2 of the Act

It violates the fundamental rights of authorized persons protected by the Charter (in particular,

the right of ownership in the sense of article. 11 of the Charter), that conduct must be

culpable and saved penalties is therefore not sanctions for the legal professional

the behaviour of these people. In these cases, the legality of the control of the

the reasons are missing.



For the same reasons it is inappropriate to adhere to argue that acting

individuals should be just compensation for the damage caused by the way

malicious damage to the rights of the represented, in their acts should

match the person represented and that it is therefore necessary to follow the

General regulations, according to the labour code, the civil code and

the commercial code. First of all, it should be noted that the General

the worker's responsibility towards the Organization admits fault, intentional and

the fault of negligent (§ 172 et seq. of the labour code). Under section 420 paragraph.

2 of the civil code the damage is caused by the legal or natural

person when was caused by their activities in those to this

activities used. These people themselves, for the damage caused by this way

This law do not match; their responsibilities under the employment

regulations is not affected. According to the beliefs of the Constitutional Court, however, from these

the provisions of the General regulations can hardly be attributed to mechanically

the unconstitutionality of the contested Law, which guarantees a stronger interest in the

the protection of the constitutional rights of the parties to mitigate the injustices suffered by the

the time of the totalitarian regime and at the same time guarantees and social interest in the

For more rapid privatization and transformation of agriculture. These facts

fully justify a different procedure than the one governing the provisions

General regulations. Indeed, the Constitutional Court has no knowledge of constitutional law or

an international agreement within the meaning of article 87(1). 10 of the Constitution that would prohibit

the imposition of fines to a natural person, which, while acting with another person, but

that act alone caused a violation of the law. It

certainly is true of the contested Law, which States that as a responsible

(physical) person will usually act statutory bodies

Organization, or. collective members of statutory bodies (cf. for example.

section 20 (2). 1 of the Civil Code), who in general have also

a wide functional responsibility for controlled organization, and an increased risk with

This is vyvažováno and the higher functioning (objective), but as a

subjective liability for culpable conduct, even in the form of negligent.



The existence of a personal financial penalties for natural persons that are

negotiations for another person committed a violation of the law is not

Indeed, in our legal system, nothing new and rare. Similar legal

the design is embodied in the provisions of § 6 of the law on misdemeanors, according to the

which for a breach of the obligations imposed on a legal person is responsible under

of this Act, the person who acted as a legal person, or should be, and

in the case of the negotiations on the command, the one who gave the command to act. As for more

Examples include the provision of section 6 (1). 2 Act No. 174/1968 Coll., on

the State safeguards the professional work, the provisions of § 9 para. 1

the Czech National Council Act No. 64/1986 Coll., on Czech commercial inspection,

the provisions of § 17 para. 2 of the Act No. 29/1984 Coll., on the State supervision of

nuclear safety of nuclear installations, and the provisions of § 10 para. 3

Act No. 88/1987 Coll. on State Energy inspection. In all of these

cases, the competent national authority shall be entitled to store personnel

organization-controlled financial penalty for culpable violation of

obligations that are listed in each Act. From the viewpoint of

komparatistického view is not a reason which would prevent the application of the

personal liability of natural persons, as it affected the law

normuje.



These findings suggest the experience of administrative and judicial practice, which

indicate the frequency of cases of violation of the Act No. 229/1991 Coll. and other

laws (whose violation is subject to the penalties referred to in the contested Law) on

the one hand, and the frequency of the imposed sanctions (fines) on the other.



From the facts revealed that the Ministry of agriculture was to

day 22. 10. the 1993 total of 2966 complaints from citizens within the meaning of section 2 (2). 2

law and imposed penalties according to § 241 2 (2). 3 of the Act. The courts of the

decided to discuss at the date or 30. 9.1993 under the same law 8570

things; Although they are usually called. other disputes, even those are subject to

the provisions of § 2 (2) mode. 2 of the law, because its enumeration is

demonstrative. In principle, it can therefore be inferred that only registered cases

complaints and lawsuits in connection with violations of the Act No. 229/1991 Coll.

(which is protected by the contested law currently) is more than 10

000 (about 11-12 thousand cases), while the fines to individuals

saved over 200, on a national scale is very low. Is

However, it goes without saying that these data are only informative in nature and

making this and absolutely can not deny the obligation on the competent State

institutions decide on the individual responsibility of a natural person only on

the basis of a proper examination of a particular case, and it only

If the responsible person in the violation of the protected laws caused.



To point 2 of the proposal:



The appellant further claims a violation of article 6(1). 4 (4). 3 of the Charter with reference to the

the fact that the law affects only a certain range of subjects and ignores further

bodies may also commit the infringement in

the meaning of section 2 (2). 2 of the Act (land registration authorities, land authorities,

Land Fund) so that the unequal status of these bodies

before the law.



In General, that the contested act is to protect the process of transformation

Agriculture, and in the process the redress of wrongs committed on

citizens, which was withdrawn at the time of the totalitarian regime, the agricultural

asset. The law therefore modifies the typical negotiations that this process

defending. Among this typical conduct can be sorted just acts of natural persons

as they are normalized in the provisions of § 2 (2). 1, 2 of the Act. About the fact that

these negotiations have the typical nature show cited a message

The Ministry of agriculture, under which citizens ' complaints in 2966

the meaning of section 2 (2). 2 of the Act, but only 129 complaints regarding the law No.

229/1991 Coll. against land offices, Land Fund and


against the authorities of the land registration. Complaints against such authorities should therefore

only consists of approx. 4.16% of the total number of complaints complaints

registered.



Regardless of this, however, as well as potential infringement of land

authorities and other institutions listed in the proposal are the laws of the

reflected. As regards the land authorities, the provisions of § 9 para. 2, 3

Act No. 229/1991 Coll. follows that agreement authorized and obliged entities

approves the land by a decision given in the administrative procedure

and his decision to disapprove of the agreement be reviewed, on a proposal of the participant

the Court. The provisions of § 49 paragraph 1. 1, 2, of Act No. 71/1967 Coll. sets out to

the decision of a particular period of time, usually 30 days. There is a

There is another legal mechanism that protects the rights of citizens in relation

the land authorities, for compliance with the obligations of those offices is

provided by other legislation than by the contested act. So unfair

the position of the persons responsible within the meaning of section 2 (2). 1, 2 the Act compared

with the status of land (and other State bodies, which are

It is in a different location), to which the claimant. Indeed, already

The Constitutional Court of CZECHOSLOVAKIA in its award of 8 June. 10.1992, SP. zn. Pl. ÚS

22/92 held that institutions have the term "equality" in mind

relative equality, which only requires the removal of unjustified

the differences. The difference between the position of the responsible persons according to the contested

law and the status of land offices and other institutions, however, justified by the

is; These authorities are the authorities of the State, which have already in principle cannot be

assume personal interest in delaying the process of transformation and

the privatization of agriculture and their activity in this process is ensured by the

other legal means other than the contested law.



A comparable situation exists in relation to other national authorities, on the

which the rapporteur mentions.



Therefore, the Constitutional Court or the plea of the petitioner cannot regard.



To point 3 of the proposal:



The Constitutional Court also dealt with the alleged contradiction of the provisions of section 3 of the

the contested law with article. 26 paragraph 2. 1 of the Charter, which States that everyone has the right

on the free choice of occupation and preparation for it, as well as the right to do business and

engage in other economic activities.



Generally speaking, the provisions of articles introduced into our legal system

(if we ignore the provisions of section 73a of the code of criminal procedure for a financial guarantee for

bind) additional interim measure sui generis, and that bail. Persons required to

to deposit are legal persons (§ 2 para 1, § 3, paragraph 1, 2

the contested act). For the assessment of compliance, section 3, of the law with constitutional sense.

laws and with international treaties within the meaning of article 87(1). 10 of the Constitution it is necessary to

consider whether the relevant provisions on fundamental rights and freedoms

apply to legal persons.



The Charter itself explicitly makes no representations in this respect. You can, however, invoke the

Declaration of the former Czech and Slovak Federal Republic to the

the ratification of the Convention for the protection of human rights and fundamental freedoms,

recognises the competence of the European Commission of human rights to receive complaints

people, non-governmental organisations or groups of persons claiming for

damaged as a result of infringement of the rights conferred by the Convention (cf. communication

The Federal Ministry of Foreign Affairs No. 209/1992 Coll.). From this can be

infer willingness to State provide protection and legal persons, with regard

of fundamental rights and freedoms. Indeed, in this direction may be invoked even

the provisions of § 72 para. 1 Act No. 182/1993 Coll., from which it follows that

the constitutional complaint is entitled to bring natural or legal person,

If the claim that intervention by a public authority violated its

the fundamental right or freedom guaranteed by constitutional law or international

the Treaty pursuant to article. 10 of the Constitution.



After this the conclusion can be closer to examine the compliance of the contested act, section 3, with art. 26

paragraph. 1 of the Charter.



The appellant claims that the enactment of the security deposit to ensure the rights of the legitimate

people threatens the economic activity of the obliged entities that are

the transformation of the law committed to satisfy the restitution

claims of an equity cushion, so in fact it is the other

penalty. However, this argument is not even on the spot. First of all, it should be

noted that the deposit is in terms of the contested act as a specific

means of encouraging a person to compulsory settlement of legitimate claims

restituentů, because after that the settlement of the Land Fund of the Czech Republic

mandatory person bail returns. This is the purpose of the bail in this case, so

This is not a sanction, i.e. injury for breach of legal standards. As regards the so-called.

reserve to satisfy the restitution of rights, from the provisions of § 7 para. 2

(a). a), b) of Act No. 42/1992 Coll. follows that from the cooperative's net assets

There shall be deducted the amount that will be used for the satisfaction of any other

restitution claims, and that for the agricultural cooperatives of entitlements

they may be used in accordance with the specific legislation..., with other cooperatives

in the amount of 5% of net assets. Already from this diction (arg. "any",

"may") it is clear that the team of the reserve created an estimated that

cannot create a safe secure claims of individual restituentů. It comes

Therefore, a provision which has a generic, preventive in nature. In contrast, the

the contested Law normuje bail as a specific form of secure claims

specific beneficiaries, so far as the legal relationship between the legitimate

the person by the State and the duty of the person. This is not a duplicate

ensure the restitution claims of specific, individually designed

authorised persons.



Indeed, the provisions of § 3 para. 1, 2 the Act (arg. "can save")

It is clear that the legislature had intended to use the Institute of bail only in

If the claims of a competent person could be, in particular, the behaviour of the

mandatory of the person at risk. Even in this case, however, the competent administrative

Authority (District Office) shall be obliged to examine whether the claim is eligible persons

properly documented (arg. in § 3 (1) of "legitimate claims", arg. for section 3

paragraph. 2 "no legal reason").



In this situation, it is clear that the provisions of § 3 of the contested act article.

26 paragraph 2. 1 of the Charter does not affect. This article, as the Constitutional Court

said, establishes the right to free choice of profession and training to him,

as well as the right to do business and engage in other economic activities. The constitutional

for the above reasons, the Court concluded that the value of this

Article protected were the provisions of § 3 of the contested law violated.



For all these reasons the proposal was a group of MPs on the repeal of the law

The Czech National Council No. 39/1993 Coll. rejected, since the Constitutional Court after the

completion of the proceedings came to the conclusion that the reason for repeal of the law are not

made (article 70, paragraph 2, of Act No. 182/1993 Coll., on the Constitutional Court).



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v.r.