38/Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 31/08 on 12 June 2006. December 2012 in

the plenary consisting of the President of the Court, Pavel Rychetského and Stanislav

Bumpkin (reporter judge), Vlasta Formánkové, Vojena Güttlera, Paul

Holländera, Dagmar Lastovecké, Jan Jiří Musil, Nykodýma, Miloslava

Excellent and Michaela Židlické on the proposal for the Supreme Administrative Court,

which it is Mgr. Daniela Zemanová, to declare the unconstitutionality of section 42

paragraph. 11 (a). (b)) of the Act No. 353/2003 SB., on excise duties,

the text of laws no 479/2003 Coll., no 237/2004 Coll., no 313/2004 Coll., no.

561/2004 SB., no. 695/2004 Coll., no 179/2005 Coll., no. 217/2005 Coll. No.

377/2005 Coll., no 379/2005 Coll., no. 545/2005 Coll., no 310/2006 Coll., and no.

575/2006 Coll., in the words "or the means of transport", with the participation of

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

The United States as parties to the proceedings,



as follows:



The proposal is rejected.



Justification



(I).



The definition of things and a recap of the proposal



1. Day 3. November 2008 was a Constitutional Court served the Supreme

Administrative Court, for which it is Mgr. Daniela Zemanová, (hereinafter referred to as

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

The Constitutional Court, as amended, on the repeal of the provisions of §

paragraph 42. 11 (a). (b)) of the Act No. 353/2003 SB., on excise duties,

the text of laws no 479/2003 Coll., no 237/2004 Coll., no 313/2004 Coll., no.

561/2004 SB., no. 695/2004 Coll., no 179/2005 Coll., no. 217/2005 Coll. No.

377/2005 Coll., no 379/2005 Coll., no. 545/2005 Coll., no 310/2006 Coll., and no.

575/2006 Coll., in the words "or the means of transport".



2. The present proposal has been filed in connection with the decision of the claimant

on appeal the defendant's complaints of the Customs Directorate in Ostrava (

"the Customs Directorate") against the plaintiff, m. b. against the judgment of the regional

the Court in Ostrava (hereinafter referred to as the "District Court") of 21 September 2005. June 13, 2007 #

j. Ca 341/2006 22-23, which was repealed its decision of 18 February 2004.

July 2006 no. 2835-06/06-1401-9. In this decision, the customs

the appeal was rejected by the Prosecutor's Directorate against decisions of the Customs Office

Karviná of 17 December February 2006 no. 636-04/06-1461-21, which was

say the confiscation of the means of transport in the possession of the applicant-

the supply vehicle Renault Master 2.5 DCI, registration number XXX

XXXX, PL, (hereinafter referred to as "means of transport in question"). Thing is u

the appellant conducted under SP. zn. Afs-183/9 2007.



3. the applicant considers that the provisions of § 42 para. 11 (a). b) of law No.

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

also the law on excise tax ") is in conflict with the constitutional order,

specifically with the provisions of article. 11 of the Charter of fundamental rights and freedoms (

"the Charter") and article. 4 (4). 4 of the Charter. The appellant Petite design

annulment of part of the provisions of § 42 para. 11 (a). (b)) of the

excise tax in the words "or the means of transport ', under the heading

in the same filing, however, States that it seeks annulment of the contested provisions "in the

the part concerning imposition of the confiscation of the means of transport to the owner

as a person different from the controlled person in the case where the customs

Directorate I know ".



4. In a fairly extensive submissions the appellant recounted in detail

the process of prior proceedings before the customs authority, the customs

Directorate Ostrava and in the framework of administrative justice before Regional

a court in Ostrava and in front of the plaintiff to the phase when the Administrative Court

the procedure was discontinued with the expectation that it will be filed for annulment of the contested

the provisions of the Constitutional Court. He described, in particular, the Office of Karviná

by decision of 17 December 1999. February 2006 no. 636-04/06-1461-21 order

the confiscation of the means of transport, which is owned by the M.

B. While the controlled person other than the owner is j. k.

By decision of 18 March 2004. July 2006 no. 2835-06/06-1401-9 rejected

The Customs Directorate Ostrava appeal M. B., saying that "the legal hypothesis

standards, i.e. of law, with which legal standard concerned (§ 42 para.

11 of the law on excise duties) connects the intervention into the subjective rights

third parties, including the owner of the means of transport was in

the case under consideration is populated and properly established ". The regional court of

Ostrava, judgment of 21 September 2005. June 2007 No. 22 Ca 341/2006-23 set aside

the contested decision of the Customs Directorate in Ostrava and returned the case to the

further proceedings, saying that "the applicant's plea said referring to

the lack of consideration of the administrative organs of the two degrees on the degree of fault or

the participation of the applicant in the operation of the selected products ". The District Court further

deduced that the Customs authorities are under the provisions of § 42 para. 11 of the Act on

excise duty shall be entitled to, and not be obliged to proceed to the store

the confiscation of the means of transport and in the framework of the administrative discretion must be

evaluated all the circumstances of the case, and therefore the question of the participation of the owner

slumping things at the hearing, in which it was found to conflict with the law. With

the opposite legal opinion then oppose the Customs Directorate Ostrava appeal

complaints against the citovanému of the judgment of the regional court. The reason for the submission of

the matter to the Constitutional Court then sees the appellant in that it will be in the

the complaint of Cassation applied the contested provisions of the proposal

excise tax.



5. the applicant then set out the text of the contested provisions of § 42 para. 11

the law on excise duties, as well as in his view the provisions at issue

Of the Charter, as well as the article pointed out. 17 of the Universal Declaration of human rights and

He mentioned additional protocol to the Convention on the protection of human rights and fundamental

freedoms. According to the applicant, above all "the text of the provisions of section 42 of the Act on

Excise Tax Act does not give any basis for keeping evidence in

the direction of the examination of the fulfillment of individual elements of the value of the relationship

including the culpability of the owner and of the causal link between the unlawful

negotiations, and as a result caused, as well as the possibility of the owner of this

liability in the case that has not been demonstrated his knowledge or

complicity with illegally undertaken by the transport of the selected products. Is

While irrelevant whether the obligation to audit evidence (burden of proof) carried himself

the owner or the Customs authorities. At the same time is not possible, to the fulfillment of conditions

the value of the relationship has been considered only in the context of administrative discretion

i.e.. to at that stage of the proceedings, where the administrative authority is considering whether to save

the confiscation of the means of transport shall proceed or not. Administrative discretion

It is for the free thoughts of the administrative authority (that is not the law of the

excise duties are bounded) and therefore it is not possible to guarantee that the

in each case the administrative authority of the responsibility of the owner of the

dealt with and on the basis of the following findings made by then on the

the confiscation of the means of transport. ". The applicant then points out

punitive nature of the contested provisions and that, according to article 15, paragraph 2. 1

Act No. 200/1990 Coll. on Offences Act and, pursuant to § 55 para. 2 of the criminal

You can say the confiscation Act only if the thing

the offender. In the opinion of the applicant cannot be accepted when the status

the confiscation of the means of transport is not restricted by similar terms and conditions as

in criminal and misdemeanor law. The applicant observes that neither the content of the

legal norms may not be uniquely inferred what reasons have led

the legislature, for the adoption of this law, nor the purpose of, what was exactly the

its acceptance by being monitored. For these reasons the rapporteur proposes, then

to the Constitutional Court the contested part of the provisions of § 42 para. 11 (a). (b))

the law on excise duties in the words "or the means of transport"

set aside.



6. Administration of 15. November 2012 in the reply, the applicant changed the petit

proposal and asks that the unconstitutionality of the contested provisions have been made,

though it has already been canceled, and that therefore, he has to be in control

in front of him held by applied. In its resolution of 12 April 2005. December 2012 Constitutional

a design change, the Court said.



II.



The progress of the proceedings and the expression of the parties ' recap



7. in accordance with section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

Act No. 18/2000 Coll., has called on the Constitutional Court of the Chamber of Deputies

The Czech Parliament and the Senate of the Parliament of the United Kingdom, in order to

the proposal in question.



8. The Chamber of deputies by its Chairwoman, Miroslava

Němcová described the legislative history of the adoption of the law on consumer

taxes and added that the provisions of section 42 of the Act on excise tax

the amendment was significantly by law No 95/2007 Coll., amending Act

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

Law No. 62/1997 Coll., on alcohol and amending and supplementing Act No. 455/1991

Coll., on trades (Trade Act), as amended by

amended, and the Act of the Czech National Council No. 586/1992 Coll., on the

Excise Tax Act, as amended, (the law on alcohol), in

as amended. This Act introduced with effect on 1 January 2002.

May 2011 the new wording of the provisions of section 42 of the Act on excise tax. In

This wording is amended by the applicant challenged part of the provisions already

§ 42 para. 11 (a). (b)). The Chamber of Deputies finally


the Commission expressed the opinion that the legislature acted in the belief that

the adopted law is in accordance with the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution"), and our legal system, saying that it is up to the Constitutional Court, in order to

to assess the constitutionality of the contested provisions.



9. The Senate through its President Milan Štěcha also described

the legislative history of the adoption of Act No. 356/2003 Coll., on consumer

taxes, and its subsequent amendments. The Senate pointed out that although the

the provisions of § 42 of the law on excise duties was amended by law No.

95/2007 Coll., amending Act No. 356/2003 Coll., on consumer

taxes, as amended by later regulations, and Act No. 62/1997 Coll., on alcohol and

amending and supplementing Act No. 455/1991 Coll., on trades

(Trade Act), as amended, and the Act of the Czech

the National Council No. 586/1992 Coll., on the Excise Tax Act, as amended

legislation (the law on alcohol), as amended by later regulations, however, the "text

proposed by the applicant to the repeal in a valid and effective law

excise tax already in section 42 is not included, since this was the amendment of §

in essence, 42, moved ' into a completely new provision of section 42d para. 1 (b).

and) of the Excise Tax Act. " The Senate then described the legislative history

the adoption of Act No. 95/2007 Coll., amending Act No. 356/2003 SB., on

Excise Tax Act, as amended, and Act No 61/97

Coll., on alcohol and amending and supplementing Act No. 455/1991 Coll., on the

trades (Trade Act), as amended

regulations, and the Act of the Czech National Council No. 586/1992 Coll., on consumer

tax code, as amended, (the law on alcohol), as amended by

amended, pointed to the finding of the Constitutional Court of 6 May 1999. February

2007, SP. zn. PL. ÚS 38/06 (N 23/44 SbNU 279; 84/2007 Coll.) and concluded that the

It is up to the Constitutional Court to examine the constitutionality of the contested provisions.



III.



Locus standi of the applicant



10. According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,

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

refer the matter to the Constitutional Court. This permission is also given in §

64 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, under which the Court may, at the Constitutional Court

the proposal to repeal the law or its individual provisions. Condition

discussion on merits of such a proposal is the fulfillment of the diction of the article. 95 para. 2

The Constitution, in the sense that it must be about the law, which has solution

stuff used, IE. Act or its provisions it is proposed to

the withdrawal, to be directly applied by the applicant to address a specific

the dispute. The Constitutional Court found this condition, since the applicant filled

It will be with reference to the provisions of section 75 para. 1 Act No. 150/2002 Coll.

the administrative court rules, (hereinafter referred to as "s. r. s.") when making a decision based on the

the factual and legal status, which was at the time the decision of the administrative

authority, and thus apply the contested provisions of § 42 para. 11 (a). (b))

the law on excise duties in the words "or the means of transport" in the

as amended on 18 September 1981. in July 2006, that is, on the date of decision-making of the customs

Headquarters Ostrava.



IV.



The constitutional conformity of the legislative process



11. According to the provisions of § 68 para. 2 Act No. 182/1993 Coll., on the constitutional

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

compliance of the contested act to the constitutional laws, to determine whether it was received

and within the limits of the Constitution provided for issued and constitutionally prescribed

way.



12. in the present case, the appellant did not defect to the legislative

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



13. the contested provisions of § 42 para. 11 (a). (b)) of the consumer

taxes was part of the Government's draft law on excise duties, which

the Government has submitted to the Chamber of Deputies. legislature on 29.

April 2003 as the parliamentary print no. 317. First reading of the draft law is

held on 20. in May 2003. The Bill was referred for consideration

the Budgetary Committee, which discussed and 21 June. July 2003 issued

resolution containing the amendments, which, however, did not cover the

the contested provisions. Second reading of the draft law on excise duties

held on 22 November. July 2003. In the context of the second reading have been filed

the amendments, which, however, the contested provisions do not touch

(print no 317/2). The Bill was approved in the third reading on

July 24, 2003. The Senate was then the draft law on excise duties

forwarded on 13. August 2003, and has been discussed as Senate document No No. 156.

This print was commanded by the Committee for Economic Affairs,

Agriculture and transportation and the Committee on European integration. On 11 July. September

2003 the Senate on its 10. the meeting proposed to return the Bill to the Chamber of Deputies

the House with amendments. On the proposal of the law returned by the Senate

voted in the Chamber of Deputies on 26 April. September 2003. The Chamber of Deputies

She remained in this vote on the original Bill. When

the final vote was from 199 members of the 101 members of Parliament present for the

the original draft of the law on excise duty which are forwarded to the Senate, 96

MPs were against. The law was finally signed by the respective constitutional

officials, and declared in the collection of laws under no. 353/2003 SB. (118).



14. The Constitutional Court after verifying the accuracy of such data resulting from

representation of the Chamber of Deputies and the Senate come to the conclusion that the contested

provision was adopted and published within the limits of the Constitution laid down the competence

and constitutionally prescribed way.



In the.



The text of the contested provisions



15. the part of the provisions of § 42 para. 11 of the law on excise duties,

the applicant will apply, as follows:



"The Customs Directorate or the Customs Office shall be entitled to impose the forfeiture of

selected products for which it is established that they have been treated

methods referred to in paragraphs 1 and 2, or the means of transport

such products would bring, if



and) these selected products or means of transport own-controlled

a person, or



(b)) a person who these selected products or your own means of transport,

It is the Customs Directorate known. ".



Vi.



Legal assessment of the Constitutional Court



16. On the substance of the Constitutional Court came to the conclusion that the proposal is not justified.



17. The Constitutional Court, on the basis of the principle of minimizing interference with the

the decision-making activities of the public authorities, in its case law repeatedly

He explained that if the possibility of constitutionally consistent interpretation

the contested provisions, this has priority over the SERENADES of the contested

the provisions of [cf. e.g. award of the Constitutional Court of 26 April 2006 sp.

Zn. PL. ÚS 38/04 (N 92/41 SbNU 173; 419/2006 Coll.)]. To this procedure

the Constitutional Court also came up this time.



18. in the case of the contested provisions, or parts of the words "or

means of transport ", are offered, which is arciť aware of itself

the appellant, two opposing options. Against each other so is legal

assessment, reached the County Court, and the opposite legal opinion that in

the intentions of the opinions of the Customs Directorate submits to the process and

the petitioner. While in the case of the procedure under the first variants would not be

the contested provision must, in the case that would be přikývnuto

the legal opinion, the opposite would have been appropriate derogations.



19. The Constitutional Court considers necessary to note first of all that the contested

provision is not mandatory and that, as the applicant admits, depends on

the Customs Authority said that the confiscation of the means of transport or not.

The fulfillment of the conditions, that the person who owns the means of transport, it is

the customs authority is known, does not oblige the authority to pronounce the confiscation of

the means of transport. The condition presents a mere condicionem

sine qua non of that pronounce the confiscation of the transport

the resource could not be against an unknown to his owner.



20. Already from the very conditions that the owner of the means of transport must be

for any option to give the confiscation of the means of transport is unknown,

It can be inferred that the purposive interpretation for this owner is legally

calculated with the substantive and procedural means of defence and objections.



21. The Constitutional Court is based on the principle that administrative discretion must not lead to

unfounded decision and must not lead to the will of the authorities, who

decisions in the tax or other administrative proceedings. Already from a linguistic interpretation

It is clear that the administrative discretion is a consideration, and not vice versa

application instructions of the law with the kazuistickými account. Administrative

discretion is always within the limits of the constitutional order, the appropriate

law or in accordance with the fundamental principles of the laws by which it is controlled

decisions of the administrative authorities. Indeed, the appellant's itself is aware that

judicial review "within the meaning of the provisions of § 78 para. 1 with row with limited.

just and only on an examination of whether the administrative authority of the limits and nevybočil

the justifications set out by law, whether administrative discretion is consistent with the

the rules of logical reasoning and that the premise of such a judgment was

found the proper procedural steps. ". In the case which is the subject of

the proceedings before the general courts, so it is entirely appropriate to general courts themselves


directly apply the naříkaná provisions of the Charter in relation to the protection of

of property rights of the owner of the means of transport. It is evident that

the confiscation of the means of transport in the possession of a third party has

primarily punitive in nature and in relation to ensure payment of any

tax arrears is not constitutionally conformally pronounce without having

It was found at fault of the owner of the means of transport to

committing a tax offense. The opposite interpretation would deny and General legal

the principle of nullum crimen sine lege, which can be applied by analogy to

thing souzenou before the complainant.



22. the Constitutional Court is beyond the scope of the above adds that this constitutionally

Conformal interpretation of the contested provisions can be used to achieve the same goal,

out the way the appellant wanted to accomplish could annul the contested

provision or declaration of its unconstitutionality, IE. to prevent

Alternatively, as not to give the confiscation of the means of transport in the

ownership of a third party, which would commit the offence did not

It did not participate. Without any prejudice so has outlined the next steps

in the proceedings before the Customs authorities, in its appeal, the judgment of the District Court,

the Constitutional Court considers the procedure fully constitutionally Conformal.



23. The Constitutional Court overlooked that the applicant interrupted the proceedings and handed

proposal to the Constitutional Court when an appeal in cassation filed tariff

the Directorate. Let the annulment of the contested provision, so its served

constitutional interpretation could not ultimately lead to success

This administrative procedure, the Court held by the participant before the claimant,

If in the next proceedings showed that the owner of the transport

resource on committing the offence.



24. The Constitutional Court, therefore, concludes that the did not find reasons to give

unconstitutionality § 42 para. 11 (a). (b)) of the Act No. 353/2003 SB., on

Excise Tax Act, as amended, in the words "or

means of transport "and therefore the proposal for the consent of the parties, without

the implementation of an oral hearing, pursuant to the provisions of § 70 para. 2 of the law on

The Constitutional Court has rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.