22/2012 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 14/09 of 25 May. October 2011 in

plenary in the composition of Pavel Rychetský (President of the Court), Stanislav package

Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel Holländer,

Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Jan Musil

(reporter judge), Jiří Nykodým, Miloslav Výborný, Elisabeth Wagner, and

Michael Židlická on the draft regional court in Ostrava, submitted pursuant to

Article 95, paragraph. 2 of the Constitution of the Czech Republic with an inconsistent

the provisions of section 22, paragraph. 4 of Act No. 200/1990 Coll. on offences, as amended by

valid until 31 December 2006. 7.2011, with the constitutional order, with the participation of 1. The Chamber of Deputies

the Chamber of deputies of the Parliament of the Czech Republic and 2. The Senate Of The Czech Parliament

of the Republic,



as follows:



The proposal is rejected.



Justification



(I).



Recap of the proposal and the arguments of the appellant's



1. The proposal received in accordance with article 95, paragraph. 2 of the Constitution of the Czech

Republic (hereinafter referred to as "the Constitution"), which was delivered to the Constitutional Court on 4 July 2003.

June 2009, meeting content and formal requirements of the law.

182/1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as

"the law on the Constitutional Court"), with a single judge District Court in Ostrava, Mgr.

Ondřej Mrákota (hereinafter referred to as "the appellant") pushed for the repeal of the provisions of section 22 of the

paragraph. 4 of Act No. 200/1990 Coll. on offences, as amended

Regulations (hereinafter referred to as the "law on offences").



2. the provisions of section 22, paragraph. 4 the law on offences (valid until 31 December 2006. 7.2011)

sound:



"A fine of from 25 USD to 50 USD and a ban from one year to the

two years is saved for the offence referred to in paragraph 1 (b). (c)), d), (e)) points 1

and 5, and (b). h).“.



3. the applicant considers that, in those cases in which the perpetrator is in the

misdemeanor proceedings prosecuted for an offense against the security and continuity

traffic on the road, according to the provisions of section 22, paragraph. 1 (a).

e) point 1 of the law on offences (as in force until 31 December 2006. 7.2011)

"he who commits in the traffic on the roads-controls

motor vehicle and does not hold the appropriate-group or subgroup

a driving licence, "are the penalties prescribed in the provisions of section 22, paragraph. 4

the same law in conflict with the constitutional provisions.



4. the applicant considers that the law specified sanctions are contrary to the

the principles of the rule of law, enshrined in the preamble and in article 1 of the Constitution.

So tight and under the guidelines set out the sanctions apparently violate the principle

proportionality and are contrary to the prohibition of more intervention in the

fundamental rights and freedoms.



5. Violation of the constitutional principle of the equality of citizens, enshrined in

the preamble of the Constitution, sees the complainant in that the challenged legislation

commands to save the perpetrators of the offences qualified as misdemeanour

a more stringent penalty than in fact the perpetrators of similar crimes

qualified as an offence; While the offense is type-less

serious than the offence, and therefore deserve a milder sanction.



6. This alleged disparity between the claimant demonstrates by comparing

the provisions of section 22, paragraph. 1 (a). e) point 1 of the law on Offences Act (as amended by the

valid until 31 December 2006. 7.2011) with the provision of section 180d of Act No. 140/1961 Coll.,

the criminal law (as in force until 31 December 2006. 12.2009), in which it was modified.

the offense of "driving a motor vehicle without a licence".

Definition of tort Act, IE. driving without a licence, is

They said both provisions completely identical. An obvious disproportion of sanctions

the appellant sees especially in the fact that the lower limit of fines is

in the cited provisions of the law on offences established in the amount of 25 000

CZK, while according to § 53 paragraph. 1 of the Criminal Code makes the bottom line

the capital punishment only 2 000 Czk. Another obvious disproportion has said

consists in the fact that the law on offences commands always save

cumulatively, how fine and ban, while the criminal law

also a separate save only admits one sentence.



7. the applicant considers relevant constitutional defect in the contested legal

adjustments to the fact that it restricts the possibility of administrative discretion in the

assessing penalties. It is said to be threatened by the individualization of penalties and the possibility of

take into account the particular circumstances of the case, in particular the seriousness of the

tort and the characteristics of the offender. This could lead to extreme

the injustice.



8. Finally, the applicant points out that the contested adjustment, allowing

Save a ban, can lead to prejudice to article 26, paragraph. 1 of the Charter

fundamental rights and freedoms ("everyone has the right to free choice of profession and

the preparation for it, as well as the right to do business and engage in other economic

activity. "). High financial punishment can apparently represent so intense

intervention in the financial circumstances of the individual that violates the constitutional protection of the

ownership, guaranteed by article 11 (1). 1 of the Charter of fundamental rights and

freedoms. As the imposition of fines and the imposition of the ban on the activities of the supposedly may have

for the offender and the members of his household "winding-up character".

The unconstitutionality of such "winding-up" of penalties concludes the appellant from

the arguments specified in the finding of the Constitutional Court of 13 July. 8.2002, SP. zn.

PL. ÚS 3/02 (N 105/27 SbNU 177; 405/2002 Coll.).



II.



The progress of the previous proceedings, from which came the submission of proposal



9. The contents of the file of the regional court in Ostrava, SP. zn. 58 Ca 31/2008

that the Constitutional Court has to determine that Mr. r. was in.

by decision of the Municipal Council of the city of Ostrava of 14 June. May 2008 no j.

17918/DSČ/08/SŘ-KLU guilty committing an offence against the safety of

and the flow of traffic on the road under section 22(2). 1 (a).

e) point 1 of the law on offences (as in force until 31 December 2006. 7.2011).

The offense should happen by 12 June. 7.2007 drove down the street

The station in Ostrava car Skoda Favorit, although not

the holder of the relevant licence. His driving licence was

previously withdrawn by decision of the Opava District Office of 26 April. April 2001,

It was imposed sanctions banning driving on 14

months. This previously imposed sanction on driving disqualifications

14 months while Mr. r. v. already on the day of the 18. 6.2002 done, but then

in writing to request return of the driving licence, as was his

obligations arising from the provisions of section 102 of the Act No. 361/2000 Coll., on the

traffic on the road and on changes of some acts, so in

the time of the road checks on 12 June 2006. 7.2007 in force did not have a driving licence,

and therefore without a driving licence. It should be added that the condition

to return the driver's licence after imprisonment or penalties prohibition

activities (R. V. has not complied with), resulting from the provisions of section 102 paragraph.

5 of law No 361/2000 Coll., as amended, was then re

demonstrate professional and medical fitness. For committing this

the offense was under section 22(2). 4 the law on infractions imposed

a fine in the amount of 25 000 CZK and the sanctions ban activities consisting in the prohibition of

management of motor vehicles for a period of 12 months.



10. Against the decision of the magistrate of the city of Ostrava of 14 June. 5.2008 handed

R. V. the appeal, which was by the decision of the Regional Office

Moravian-Silesian region of 24 September. 6.2008 no j. MSK 93021/2008

rejected.



11. the Action to be filed at the regional court in Ostrava on 4. 7.2008, r. V.

claim for annulment of the decision of the Regional Office of the Moravian-Silesian region

24 September. 6.2008, as well as the decision of the Municipal Council of the city of Ostrava

on 14 June 2004. 5.2008, respectively. mitigation of the penalties imposed. The lawsuit claimed that the

the infraction, which does not deny, from his side unknowingly his

a formal error consisting in the fact that the requested repayment of the driving

permissions. Is aware that the vytýkaným Act is guilty of an offence,

but the concurrent imposition of two penalties-fines in the amount of 25 000 Czk and the penalties

the ban on driving motor vehicles for a period of 12 months-considered

inadequate and inappropriate. It is considered, that the accumulated excessively

hard punishment, fixed to a social hazard

of the offense. He pointed out that the law on offences does not distinguish whether the

the perpetrator of the offence previously owned, or never owned driving

permissions, and that the amount of the penalty is excessive in comparison with punishments

placed in criminal cases the perpetrators of traffic accidents, in which

as a result of an injury resulting in death. It also pointed out to the

It is currently registered as unemployed at the Labour Office, the

does not have a driving licence, which reduces the ability to work; him

the penalties applied for him to have a serious existential implications.



12. For this procedural situation came in the Ostrava regional court to the conclusion that

the provisions of section 22, paragraph. 4 the law on offences (as in force until 31 December 2006.

7.2011), which should be kept by the management in it applied, is in violation of the

with the constitutional order, and therefore the matter pursuant to article 95, paragraph. 2

The Constitution, the Constitutional Court with a proposal to repeal this provision.

In its resolution of 3 July 2003. 8.2009 No 58 Ca 31/2008-43 the district court proceedings

in the matter of SP. zn. 58 Ca 31/2008.



III.



Representation of the parties to the proceedings and other public authorities to the proposal
13. Under section 69, paragraph. 1 of the law on the Constitutional Court was a copy of the proposal

posted by both parties. The Presidents of both chambers of the Czech Parliament

Republic described the procedure in its observations of the legislative process

When the approval of the affected provisions of the Act. They expressed the belief that the

These provisions are souladná with constitutional requirements. Both spoke

agreement with the abandonment of the oral proceedings before the Constitutional Court.



14. The Constitutional Court challenge to the proposal expressed by the Minister of

Justice Evans. Daniela Kovářová. In its observations of 30 July. 9.

2009 admits that the opinion contained in the proposal partly correspond with the

the views contained in the case-law of the general courts. Mentions in particular the resolution of the

The Supreme Court of 10 October. 12.2008, SP. zn. 7 Tdo 1529/2008, in which the

Comparing the facts of the offence of driving a motor vehicle

without a driver's licence according to section 180d of the Criminal Code (in its version

until 31 December 2006. 12.2009) and offence against the security and the flow of traffic on

the road under section 22(2). 1 (a). e) point 1 of the law on

provincial offences Act (in force until 31 December 2006. 7.2011) and in which it is stated that

"the difference between the two offences committed in the form of the deliberate lies only in the

their degree of danger to society ". The Minister of Justice

agreeing to the opinion that the Criminal Code provides the courts wider options

individualization and differentiation of punishment than the law of the

provincial offences Act. Delete this disproportion would, however, require a deeper

legislative intervention in the law on offences; the proposed abolition of the

the provisions of section 22, paragraph. 4 the law on infractions this problem cannot

resolve. The Minister points out that the new Penal Code (Act No.

40/2009 Coll., the criminal code; effective from 1. 1.2010) no longer contains

No offense, that would be identical to a criminal offence under section 180d

the previous criminal law, so the comparison of both provisions, which

the appellant's argument rests, is already obsoletní.



15. The Interior Minister Ing. Martin Pecina in its comments that

The Constitutional Court on 8. 10.2010, pronounced opposition to the arguments

the appellant and recommended the rejection of the proposal. Points out the seriousness of the

meeting's objective of driving a motor vehicle without a driver's license

permissions; the danger of this phenomenon are highlights in the documents

Of the European Union. The sanctions envisaged in the contested provisions of the law on

fulfils an important preventive role of the provincial offences Act.



16. Ostrava city authority, the Department of transportation and administrative activities, in its

observations of 29 July. 7.2009 pointed out the considerable family social

the danger of the offence and to the "alarming status in Czech

the roads ". The penalties provided for in the contested section 22 paragraph 1(b). 4 of the law on

provincial offences Act meet the requirements of the General and individual prevention.



17. the Regional Office of the Moravian-Silesian region, the Department of transport and the road

the economy, in its comments of 29 July 2003. 7.2009 supported the proposal to

the repeal of the provisions of section 22, paragraph. 4 the law on offences and to associate himself with the

the appellant's arguments. Expresses the view that the lower limit of the penalties

provided for in the contested provision does not meet the requirement that

"adequate for all the cases that will be applied," and the administrative

the de facto authority does not allow to take into account adequately the criteria for

assessment of the sanctions referred to in section 12, paragraph. 1 of the law on misdemeanors. Regional

the Office notes that "local administrative authority, in its decision-making practice

often meets with the fact that those sanctions have to winding-up character ".



18. Day 2. 5.2011 received communication from the Constitutional Court, the Supreme Administrative

the Court, from which it follows that before him under SP. zn. 9 As 88/2010

the other control, which is analogous to the issue as one that is

addressed in this matter before the Constitutional Court. Also in the proceedings before the Supreme

Administrative Court argues another offender nedbalostního road traffic offence

(which has been inflicted on health), that the penalties, which

was stored in misdemeanor proceedings, is stricter than what would

could be imposed for the crime of bodily injury by negligence in the

the criminal proceedings. After the Supreme Administrative Court learned that the constitutional

the Court in this proceeding under SP. zn. PL. ÚS 14/09 resolves analogue

the issue, its proceedings on the SP. zn. 9 As 88/2010 under section 48, paragraph.

2 (a). f) of Act No. 150/2002 Coll., the administrative court procedure code, as amended by law

No. 127/2005 Coll., interrupted and awaiting the decision of the Constitutional Court.



IV.



A replica of the petitioner and its subsequent addition to the proposal



19. The observations mentioned above in part III of the statement of reasons of the award posted by

The Constitutional Court of the petitioner to the introduction and eventual reply. Communication

of 12 June. 11.2009, the applicant announced that the law does not use the replica and

agreement with the abandonment of the oral proceedings before the Constitutional Court.



20. He, that was the Constitutional Court delivered 13 October. 9.2011

the appellant added petit its proposal. He stated that at the time after

submission of the proposal to change the legislation, as with effect from 1. 8.

2011 provisions of section 22 of the Act on offences repealed article III

section 1 of Act No. 133/2011 Coll., amending Act No. 361/2000 Coll., on the

traffic on the road and on amendments to certain acts (the Act on

road traffic), as amended, and certain other

laws. Virtually identical wording, however, the text of the repealed provisions

section 22(2). 4 the law on offences taken Article I, point 45 of Act No.

133/2011 Coll. in the wording of the new section 125c paragraph. 4 (b). and) (a). 5 of law

No 361/2000 Coll., on the road, and about the changes

Some laws (the law on road traffic), as amended

the regulations, effective since 1. 8.2011.



21. the applicant adds that, in his opinion, article 95, paragraph. 2 of the Constitution

It follows that the duties of the Constitutional Court is to review the constitutionality of

the contested provisions of the Act, even if it has already been cancelled (changed)

provided that the addressee of alleged reason of unconstitutionality is a public

much, therefore, not a body of private law, and on condition that the contested

the provisions of the Act to be in resolving things still hedge contingent exposures used

the General Court. Considers that these conditions are, in the present case

met, and therefore proposes that the Constitutional Court expressed the unconstitutionality

the repealed provisions of section 22(2). 4 the law on offences, as amended by

a valid and effective until 31 December 2006. 7.2011.



In the.



The abandonment of an oral hearing



22. The present legal issues and all the facts of the

the case is sufficiently apparent from the documentation. Since

the oral proceedings could not be expected further clarification of the matter, the Constitutional Court of the

him with the consent of all participants in accordance with section 44, paragraph dropped. 2 of the law on

The Constitutional Court.



VI.



A review of the reasons for the eventual termination of the proceeding



23. Whereas, with effect from 1 January. 8.2011 was infected

the provisions of section 22, paragraph. 4 the law on offences repealed article III point

1 of law no 133/2011 Coll., amending Act No. 361/2000 Coll., on the

traffic on the road and on amendments to certain acts (the Act on

road traffic), as amended, and certain other

laws, the Constitutional Court considered that the conditions are not fulfilled for the

stop the proceedings before the Constitutional Court under section 67, paragraph. 1 of the law on

The Constitutional Court, and came to the conclusion that, in the present case it is not appropriate

proceedings, but it is the duty of the Constitutional Court on the proposal

decide.



24. The Constitutional Court maintains the conclusions voiced in the previous

the case law [see e.g. find SP. zn. PL. ÚS 33/2000 (N 5/21 SbNU 29;

78/2001 Coll.), available at http://nalus.usoud.cz]. The interpretation of

Article 95, paragraph. 2 of the Constitution, the Constitutional Court ruled that he is entitled to and shall be obliged to

review the compliance of the law with the constitutional order, even after the law ceased to be

force before the end of the procedure for checking standards in those matters in which

the proceeding was initiated upon the proposal of the Court and the law is to be applied in the

neskončeném proceedings before the General Court. Such a situation also exists in the

the current stuff.



25. The assessment of the souladnosti contested legislation with the constitutional order is

desirable also for this reason that the legislation contained in the new wording of

the provisions of section 125c paragraph. 4 (b). and) (a). 5 of law No 361/2000 Coll., on the

traffic on the road and on amendments to certain acts (the Act on

road traffic), in the version effective as from 1. 8.2011, is identical with the

previous (cancelled) and its application could inspire the same

doubts as to edit previous.



VII.



The constitutional conformity of the legislative process



26. Pursuant to section 68, paragraph. 2 of the law on the Constitutional Court, the Constitutional Court

First, the question of whether the legislation was adopted and published in the limits of the

The Constitution laid down the competence and the constitutionally prescribed way. From

written documents submitted to the Constitutional Court the Presidents of both

the Chambers of the Parliament of the Czech Republic, the Constitutional Court found that the

the provisions of the contested act was issued a constitutionally way Conformal.



VIII.



The content of the assessment of the contested provisions of the Act



27. objections which petitioner alleged unconstitutionality justifies
the contested legal provisions can be summarized into three points:



and penalties that the law) of the provincial offences Act provides for committing offences,

are said to be more stringent in certain circumstances than penalties, which lays down the

the criminal code for committing similar crimes in fact;

přestupkový law, unlike the criminal code, does not have the option of

the extraordinary reduction in the penalties or the abandonment of the punishment; While the criminal

the order allows for different variations of the diversions, the statutory procedure for

provincial offences Act does not contain such a possibility; It's all determined by the inequality

among the perpetrators of the offences and the perpetrators of criminal offences;



(b) a fixed margin) penalty rates for committing the offence and

the obligation to deposit both sanctions cumulatively (fine and ban) apparently

makes it impossible to fairly differentiate the amount of the penalties, taking into account

the particular circumstances of the offence and to the offender; between the gravity of the

tort and the amount of the penalty may arise from unjustified disproportion, imposed

penalties may be unfair;



(c) the imposition of those sanctions, apparently) can have for the offender and the members of his

Home "winding-up character".



28. The Constitutional Court notes that none of these objections is not justified,

has no constitutional relevance, nor does the contradiction in the contested legal

editing with the constitutional order.



29. The Constitutional Court in particular stresses that legislation sanctioning

crimes and misdemeanors is the exclusive competence of the legislature and is

contained in the "ordinary" ("podústavních"). As regards the criminal

the acts, is the principle of nulla poena sine lege contained explicite directly in

the constitutional provisions (see article 39 Charter of fundamental rights and freedoms: "

the law stipulates that the offence is an offence and punishment, as well as

What other injury on the rights or assets, for his committing save. ").

As regards penalties for infractions and administrative delicts in other constitutional

the legislation explicitly formulated as follows rule we can find. From

the provisions of article 2 (2). 3 of the Constitution ("State power serves all citizens and

It can apply only in the cases, within the limits and the methods which provide for

the law "), as well as from the provisions of article 2 (2). 2 of the Charter of fundamental rights

and freedoms ("State power can be applied only in cases and within the limits of

laid down by law, and the way that the law provides. ") and of article 4 of the

paragraph. 1 of the Charter of fundamental rights and freedoms ("the obligation can be

saved only on the basis of the law and its limits and only while maintaining

fundamental rights and freedoms. ") can be inferred by the constitutional rule that also

the penalties for infractions may provide only the law.



30. The constitutional provisions contain few explicit provisions

sanctions and govern rather just nepřekročitelné the limits of punishment.

Such a character has for example. the provisions of article 6 (1). 3 of the Charter of fundamental

of rights and freedoms ("the death penalty shall not be admitted.") or the provisions of article 7

paragraph. 2 of the Charter of fundamental rights and freedoms ("no one shall be subjected to torture or

subjected to cruel, inhuman or degrading treatment or

sentence. ").



31. Similarly, the sporadic is explicit adjustment penalty in

international conventions on human rights. In the Convention on the protection of human

rights and fundamental freedoms (hereinafter referred to as "the Convention") may be found such

the provisions in article 3 ("no one shall be subjected to torture or to

inhuman or degrading treatment or punishment. "). The same provisions

It also includes the International Covenant on Civil and political rights in the

Article 7. Protocol No. 6 to the Convention provides in article 1 prohibition of punishment

death.



32. Some of the criteria for the legal adjustment of the sanctions can be derived from the General

the provisions of the Constitution (preamble and article 1) and the Charter of fundamental rights and

freedoms (article 1), and in particular from the principle of the equality of citizens in dignity and in the

rights.



33. In accordance with the constitutional definition of the competences of the Constitutional Court according to the

Article 83 of the Constitution ("the Constitutional Court is the judicial body protection

the constitutionality of. ") can the Constitutional Court referred to in article 95, paragraph. 2 of the Constitution, in the

things to consider only whether the penalties provided for by the law for committing

the offense is not inconsistent with constitutional provisions (possibly with the constitutional

understanding).



34. Consideration of whether a particular defect of the negotiations to be criminal or

beztrestná (criminalizing or vice versa decriminalization),

define factual matters offences (offences, offences) and

determining the type and amount of the penalties (the intensity of criminal and administrative repression)

are subject to many of the social determinantami, which in the course of the

historical development changes. It is not uncommon that a hearing before the

beztrestné declares the legislature a new statutory modification for criminal

(the criminalization of conduct), or vice versa, previously a punishable act is

dekriminalizováno. Often it also amends the legal categorization of offences-

the earlier crimes begin to be categorized as new adjustment

offences or vice versa earlier misdemeanors become criminal offences.

By tracking the development of legitimate edits over a longer period can be easily

See also the determination of the type and level of sanctions for the committed offences

is subject to relatively dynamic changes.



35. A legislative adjustment of all these issues is in the exclusive competence of the

the legislature, which is governed by the criminal-political criteria, eg.

the General aspect of the prevention of offences, the frequency in the

historical time, the intensity of the negotiations and the risks of tort

resulting danger of orderly human cohabitation ("legal

of peace "), changes in the perception of the public on the importance of axiologickém

individual and social values and legal goods poškozovaných

deliktním the behaviour of offenders, etc.



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

to judge the suitability (appropriateness) of each species of sanctions,

the statutory rate of sanctions (their), the possibility of an alternative or

cumulative penalties, etc. In the legal provisions, these issues would

The Constitutional Court could intervene only in the event that the legislature

exceeded constitutional limits. In this case, however, there was no

the contradiction in the contested legislation with the constitutional order.



37. The Constitutional Court does not share the opinion that the unconstitutionality of navrhovatelův

the contested provisions can be inferred from the fact that the penalties laid down for the

committing an offence against the security and the flow of traffic on the road

roads under the provisions of section 22, paragraph. 1 (a). e) point 1 of the law on

provincial offences Act (in force until 31 December 2006. 7.2011) are supposedly more stringent than

the penalties laid down for committing a similar offence in fact

driving a motor vehicle without a driver's licence under section 180d of the Act

No. 140/1961 Coll., the criminal code, (as in force until 31 December 2006. 12.2009).



38. Such a comparison is not fair already because of this, that the criterion of

"rigor" the applicant shall be assessed only under partial elements of the law

the prescribed penalties, only by the lower limit of fines

(2 000 CZK per offense versus 25 000 Czk for the offense), and

the law on offences commands always save cumulatively as a fine,

so a ban, while the criminal law also recognises a separate

save only one sentence.



39. To výstižnému comparison of severity of penalties to be assessed comprehensively

all the contents and scope of the penalty provisions for both offences:



-for that offence, it was necessary to impose a fine of $ 25 000 to 50 000

And at the same time a ban from one year to two years;



-for that offence was punishable by imprisonment of up to

one year or a fine of 2 000 CZK to five million CZK or ban

activities for one year up to ten years (while these kinds of penalties was

can be stored either individually or cumulatively).

Such a comprehensive comparison of all elements of sanctions shows that the penalties for

offence are undoubtedly tighter than the penalties for the corresponding

the offense.



40. the Systems of criminal punishment on the one hand and administrative punishment on the

the other side together, although they are related, but they are largely

autonomous. They differ in that they protects the largely different kinds of

social relations (for administrative offences, in particular on the protection of sound

the performance of the public administration; protective function of criminal offences covered by the

a much wider range of social values).



41. Although in General, the degree of social danger

(harm) of the offence is usually a strongly higher than is the case

for misconduct, is not always the case. Many of the administrative offences is

highly harmful, on the other hand, there are many small penalty

offences.



42. the categorization of offences to offences and administrative offences in the

the legislation also affected by pragmatic and practical mind,

shall take into account for example. the capacity of the judicial and administrative authorities, to their

competence (expertise) for the solution of the given type of delinquency,

cost of process management, etc.



43. In assessing the terms of stringency of sanctions could not be taken into account only to the

quantitative comparison of the amount of the penalty rates, but it is necessary to take into account the

also the qualitative difference of criminal and administrative sanctions. In General, the

recognises that the offences and the penalties imposed for them are associated with the so-called.
sociálněetickým help and moral zavrženíhodností and have a difamující

the effect (in German Science this attribute is an offence known as

"die Verwerflichkeit" – see Jescheck, h.-H Lehrbuch des Strafrechts:.

Allgemeiner Teil. 5. Aufl. Berlin: Duncker & Humblot, 1996, p. 58). U

administrative offences such condemnation absentuje, are nazírány as ethically

neutral, the Commission is not in a social environment, frowned upon as

morally objectionable and usually does not lead to a decline in social prestige

the offender. The punishment for the crime raises the other for offenders

difficult consequences, in particular the registration in the register of criminal records and the loss of

eligibility for the performance of certain employment and activities for which there is

required integrity. Therefore, the only comparison rates, mechanical

Administrative and criminal sanctions for the assessment of their severity

concise.



44. No objection of the supposedly "winding-up" cash

fines from $ 25 000 to 50 000 Czk and the prohibition of activities from one year to the

two years. The imposition of these penalties is generally not eligible (in standard

cases) cause the "winding-up" consequences, i.e.,. endanger the existence or the

the dignity of man. It goes without saying that the imposition of this penalty is for

the perpetrators of the unpleasant and úkorné, but the effect is natural and

even the desirable properties of any sanction-if this were not so,

faded generálně sense would be preventive sanctions.



45. The Constitutional Court when deciding in this case took that into account in their

the previous case-law, in particular in the findings, SP. zn. PL. ÚS 3/02 (see above)

and Pl-12/03 of 10 June 1999. 3.2004 (N 37/32 SbNU 367; 300/2004 Sb.)

came to the conclusion about the unconstitutionality of the statutory rates of fines

(fine, penalty), for that reason, that the fine, even if stored in the minimum

the permissible area, extends to the individual assets with considerable

intensity and has a character, such as the winding-up. in fact, that the

"destroy" the material base for other business activities. These

the findings, from which there is no reason to deviate even now, were, however, expressed

in the situation when the law was for committing the

the construction of the offense set the lower limit to the fine in the amount of 500 000

CZK, respectively. 200 USD. In the present case concerning penalties for a completely different

tort is the lower limit of the fine of 25 USD, i.e., the amount that is

the order of the incomparably lower than previously assessed. Also taking into account the

the current price and výdělkovým conditions cannot be a set amount of 25 000

Generally considered CZK "winding-up". The current finding is lacking with the above

stated the findings to the contrary.



46. It was considered also the question of whether the lower boundary by establishing the legal

the fine and the length of the disqualification is not affected by the principle of administrative discretion

If the determining authority in a particular case cannot sufficiently be taken into account

to the social and the whole of the offender and to differentiate

assessment penalties and cannot impose a fine and a ban on the activities of the below rates

or from its storage entirely dispensed with. Differentiation of sanctions request is

According to the eg. in the finding of the Constitutional Court, SP. zn. PL. ÚS 38/02 of 9 June.

3.2004 (N 36/32 SbNU 345; 299/2004 Sb.).



47. The Constitutional Court has come to the conclusion that the challenged law requirement

differentiation of sanctions no longer respects the fact that margin is provided for fines

from 25 000 $ to 50 000 $ and the prohibition of activities from one year to the

two years. Constitutional provisions do not require that the legislature in the statutory

determination of penalty rates always dropped from the lower border of the acreage

the penalties. Type the severity of (harmful) negotiations of the kind of tort

in General may be so high that it does not allow nor in the individual case

establish a "zero" value of the acreage of the sanctions. Assessment of the bottom border

the penalty rate is fundamentally the things the legislature. Constitutional provisions do not contain

on the issue of penalty rates any lower limit of the directive must be

However, the proportionality between the typed command observed the severity of tort

negotiations and the amount of the penalty rates. In the case under consideration, the Constitutional Court

identified with the views contained in the representation of the Minister of the Interior and the municipality

the city of Ostrava-namely, that the current state of insubordination in the drivers

road traffic, manifesting mj. and in a significant occurrence of control without

the driver's licence and in a disturbing state of accidents,

authorizes the legislature to set more stringent requirements on the

all drivers, without exception, and to eliminate the "zero" assessment of penalty. By

You can achieve positive results and secondary-constraints

interpretive arbitrariness of police and administrative authorities in the practical

the application of the rules and restrictions of corrupt acts in assessing penalties.



48. The same conclusion as in the previous point, the Constitutional Court also decided

on the question of whether the principle of the differentiation of the sanctions and their adequacy

broke the legislature that dictates the cumulative saving of two species

penalties-fines and disqualification. In this way the legal regulation

the Constitutional Court did not find anything protiústavního. Determination of several kinds of

sanctions, either Alternatively or cumulatively, it is completely regular

way of legislation as in the field of criminal penalty, so

administrative law. The legislature usually by appropriately combining the repressive

and preventive purpose of sanctions: in addition to the marked penalty nedisciplinovaných

the perpetrators also eg. preventing the performance of dangerous and threatening

activities and the protection of public interests. Even in this case broken

the legislature the principle of proportionality.



49. The Constitutional Court also dealt with the question of whether the contested provisions of section 22 of the

paragraph. 4 the law on offences (as in force until 31 December 2006. 7.2011)

altering the constitutional principle of proportionality by the same rate

the penalties laid down for five different factual matters of infractions,

described in section 22(2). 1 (a). (c)), (b). (d)), (b). e) points 1 and 5, and

(a). h) of the Act on offences (as in force until 31 December 2006. 7.2011).



Specifically, the following facts:



-who drives a vehicle, or goes to the animal in a State of negative

eligibility, which precipitated by the ingestion of alcoholic beverages or use of

other addictive substances,



-who is over a challenge by a special legal regulation, refuses to submit to

examination of whether, when driving a vehicle or riding animal was not influenced by the

alcohol or other addictive substance, although such examination is not

associated with a risk for his health,



-who controls the motor vehicle and the group does not hold or

the subgroups of a driving licence,



-who has ceased to be as a driver, which is the holder of a driving licence

Of the European communities, the driving licence issued by a foreign State,

international driving licence issued by a foreign State, the right to control the

the motor vehicle on the territory of the Czech Republic,



-a violation of the special law causes a traffic accident, when

that is the other harm to health.

The Constitutional Court notes that type the severity of (social hazard)

These offences are generically the same, so that the fixing of the same

the principle of proportionality of the sanctions did not infringe the principle of the legislature even

equality of the perpetrators of these offences.



IX.



Obiter dictum



50. The Constitutional Court, agreeing that the earlier navrhovatelově the legal

Edit the offence of driving a motor vehicle without a driver's license

permission under section 180d of Act No. 140/1961 Coll., the Criminal Act (as amended by

valid until 31 December 2006. 12.2009) was not appropriate, therefore, that the description of the facts

the nature of this crime was virtually identical to parts of the factual

the essence of the offence against the security and the flow of traffic on the road

roads under the provisions of section 22, paragraph. 1 (a). e) point 1 of the law on

provincial offences Act (in force until 31 December 2006. 7.2011). Such legal

the regulation, which the legislator serves an identical definition of the two

factual matters-as an offence, as an offence-is contrary to

the requirement of legal certainty and the requirement of certainty of law, and causes

serious interpretative difficulties in application (there is a danger of the application

arbitrariness). It is true that the application of the practice with this problem

satisfactorily dealt in the case law. Top cited the resolution of the Supreme

of the Court of 10 July. 12.2008, SP. zn. 7 Tdo 1529/2008 highlighted the need for

differentiate legal classification according to the degree of social danger,

which allow if valid provisions of section 3 (3). 2 of the criminal code

("Performance, the degree of danger to society is slight, it is not

a criminal offence, even if different characteristics of the offence. "). As

the relevant criteria for assessing the degree of social danger

could be used for example. the criterion of length of committing the tort, (single or

the long-term duration), risky ride, a parallel cause harmful

effect, the reason for the loss of driving privileges, etc.



51. Previous legislation the offence of driving a motor vehicle

without a driver's licence under section 180d of the criminal code was inappropriate

also, because one of the facts to include diverse negotiations

the differing degrees of severity. Sanction as well as the one who never

was not the holder of a driving licence, a driving licence of a person who
ceased to be by decision of the Court or administrative authority (saving a penalty or

the sanctions ban the activity, suspension of driving privileges as

interim measures), by surrendering a driving licence, etc. This

the legislation has been criticised in the literature as a switching

criminal repression, contrary to the principle of subsidiary role of the criminal law.

The validity of these objections. confirmed by the fact that immediately after the

the anchoring of the merits of the criminal law (Law No.

411/2005 Coll., amending Act No. 361/2000 Coll., on

road safety and on changes of some acts as amended by

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

amended, and Act No. 247/2000 Coll. on obtaining and improving

professional competence to control motor vehicles and on changes of some

laws, as amended, and some other laws;

amendments effective from the 1. 7.2006) there has been a massive increase in the number of

prosecuted offenses of the order of magnitude of tens of thousands of-in 2007 it was for

This offence prosecuted 18 098 deeds, in 2008, a total of 18

752 works (source: Evidenčně Police crime statistics system

The Czech Republic). Fortunately, the new Penal Code the crime of

is assumed by the new criminal cases are only driving a motor vehicle

After the offender was previously saved driving ban or withdrawn

the appropriate permission (such as the offence of obstructing the performance of the official decision

under section 337 of the Criminal Code). Other (less severe) cases of control

a motor vehicle without a licence are now prosecuted as

the offense pursuant to the provisions of section 125c paragraph. 4 (b). and) (a). 5 of law No.

361/2000 Coll. on road traffic and on changes of some

laws (the law on road traffic), as amended.



52. The Constitutional Court notes that such legal provisions, what was the

previously contained in the provisions of section 180d of the criminal code, is extremely undesirable

and could lead to the conclusion of unconstitutionality and to the eventual derogačnímu

the intervention of the Constitutional Court. In this proceeding, but not for such a procedure

conditions-on the one hand, therefore, that the provisions of section 180d of the criminal code

has already been repealed on 1 January 2000. January 2010 after the entry into force of the new

the Penal Code (Act No. 40/2009 Coll.) and, therefore, that this

the provisions of the present proceeding was subject before the Constitutional Court

(applied will not be proposing a regional court).



53. The Constitutional Court is also aware that the current legislation

administrative offences and administrative penalties are suffering from many shortcomings, which is in the

the literature law pointed out [see e.g.. Powder, H.: Administrative

punishment. In: Hendrych, d. et al.: administrative law. The general part. 7.

Prague: c. h. Beck, 2009; Powder, h.: the basis of future legislation

administrative punishment. (part 1). Legal practice No 6/1999; (2) the legal

practice No 7/1999; Mikule, in: Notes to the Czech criminal law

administrative. In: a tribute to Prof. JUDr. Otto Chris to 70. birthday.

Prague: Codex Bohemia, 1998; Scone, m.: some notes for reform

administrative punishment. Administrative law No. 1/2002; Vaidya, in: management and Objectives.

administrative penalties. Administrative law No. 1/2002]. The Constitutional Court pronounced

the hope that the legislature will respond to the legitimate criticism of the future

a comprehensive and improved by modifying the administrative punishment.



54. It would be desirable that the legislature hampered an observable legislative

the expansion of administrative tort by criminalization be limited only to the

cases of serious violations of the legal obligations. This can be achieved

for example. so, that the legislature shall define, in the merits of proper

physical characters of the harmfulness of tort, for example. respect for the

the conditions that the tort liability is not based on any violation of the

another piece of legislation, but by invoking a State of emergency or

causing a harmful effect. Desirable is a specification and differentiation

factual matters administrative offences and sanctions, which accurately

to distinguish the degree of severity of the tort of negotiations and, depending on whether or not

differentiate the amount of penalties. Such a way of better legislation complies with the

aspect of legality and constitutionality.



55. While the current law penalties to be imposed for the offences is

can be considered quite satisfactory, adjust penalties for other administrative

delinquencies is very poor and chaotic; in particular, the amount of the penalty rates not

often proportional in relation to the type of severity tort.



56. In the current edit is missing some common institutes of the administrative

punishment, for example. edit summary and aggregate punishment (penalties) in the

committing more offences.



57. The Constitutional Court gives lawmakers to consider whether a de lege ferenda

fit also in the area of administrative offences (including sanctioning

offences) General institutes under the bottom border of the mitigation of penalties and rates

waiving of punishment, which are known in the criminal law. The Constitutional Court

However, it is aware of the differences's institutional and procedural conditions in

Administrative and criminal proceedings (different level of judicial control and inspection

from the public, different level of legal qualification of administrative

institutions and bodies active in criminal proceedings, the absence of participation of the State

the representative of the administrative procedure, the different remedies, etc.). If it is to

to prevent that, when the application of these institutes not

arbitrage, the excesses and to attempts to corrupt practices, would she have to choose

specific substantive and procedural adaptation, which would prevent their

the abuse.



X.



The conclusion of the



58. With regard to the above, the Constitutional Court did not find the reasons for the

voicing the unconstitutionality the draft contested legal provisions.

Therefore, the proposal was referred to in section 70, paragraph. 2 of the law on the Constitutional Court rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum Eliška

Wagner and Ivana Janů.