241/2009 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided on 26 May 2009 Plenary composed of the Chairman Pavel Rychetsky
court, judge Stanislav Balik, Frantisek Duchon, Vlasta
Formánková, Vojen Güttler, Pavel Holländer, Vladimir crust
Dagmar Lastovecká , Jiri Mucha, Jan Musil (rapporteur), George
Nykodým, Miloslav Vyborny, Eliska Wagnerová and Michaela Židlická on
Ombudsman proposed JUDr. Otakar Motejl
to repeal Decree no. 23/2008 Coll. On the technical conditions of fire protection
buildings, alternatively, on a proposal to repeal parts of the decree no. 23/2008 Coll.
On technical conditions of fire protection of buildings, with the participation of the Ministry of Interior as
party

Follows:

I. The proposal to repeal Decree no. 23/2008 Coll., On technical conditions
fire protection of buildings, is rejected.

II. The proposal to repeal the provisions of § 2 para. 1 point. e) § 2 para. 2 point.
B), § 3-9, § 10 paragraph. 1, 2 and 6, § 11 para. 1 and 2, § 12-14, § 15 paragraph
. 1 and 5, § 16, § 17 para. 1, 7 and 9, § 18 par. 1, 2, 4, 5 and 6
§ 19 paragraph. 1, 2, 3 and 9, § 21 para. 1 and 4, § 22 paragraph. 1 and 4, § 23 para. 1, §
24 paragraph. 1, 2 and 4, § 25 par. 1 and 4 , § 26 par. 2, § 28 para. 2, § 30 paragraph
. 2, 3, 4 and 10, § 31 and Annexes Nos. 1, 4, 5, 7, 8 and 9 of Decree no. 23/2008 Coll
. On the technical conditions of fire protection of buildings, with
dismissed.
Reason


I.
Recap draft


First The Constitutional Court received the Ombudsman's proposal JUDr.
Otakar Motejl filed under § 64 par. 2 point. f) of the Act no. 182/1993 Coll
. On the Constitutional Court, as amended, (hereinafter
"the Constitutional Court Act") to repeal Decree no. 23/2008 Coll., On
technical conditions of fire protection of buildings, (hereinafter referred to as the "contested
Decree ") as a whole for its conflict with the constitutional order of the Czech Republic and
Act no. 309/1999 Coll. On the Collection of Laws and Collection
international treaties, as amended (the "Act
about the Collection of Laws"). Alternatively, served Ombudsman
proposal to repeal the provisions of § 2 para. 1 point. e) § 2 para. 2 point. b)
§ 3 to 9, § 10 paragraph. 1, 2 and 6, § 11 para. 1 and 2, § 12-14, § 15 para. 1 and 5,
§ 16, § 17 paragraph. 1, 7 and 9, § 18 par. 1, 2, 4, 5 and 6, § 19 para. 1, 2, 3 and
9, § 21 para. 1 and 4, § 22 paragraph. 1 and 4, § 23 para. 1, § 24 para. 1
2 and 4, § 25 par. 1 and 4, § 26 par. 2, § 28 para. 2, § 30. 2, 3,
4 and 10, § 31 and Annexes Nos. 1, 4, 5, 7, 8 and 9 of Decree no. 23/2008 Coll.

II.


Petitioner's arguments
Second The Ombudsman states in its proposal that the contested ordinance
generally regulates technical conditions for fire protection
design, implementation and use of buildings. In the vast majority of the provisions
contested decree refers to Czech technical standards (whether it is a
technical standards referred to in Annex no. 1 or in Annex no. 4, 5, 7 and 8
).

Third In § 13 para. 1 further contested decree link in the Standard
adjusts the number of portable fire extinguishers (these are then adjusted
detail in Annex no. 4). Annex no. 4 determines the number of fire
devices in general and more specifically in individual types of buildings (
family houses, apartment buildings, accommodation, etc.).

Fourth In § 14 par. 3 of the contested ordinance imposes an obligation
owners of selected buildings to equip construction equipment for autonomous detection and signaling
listed in Annex 5. In other provisions
(§ 15 para. 5, § 16 Sec. 2, § 17 para. 7, § 18 par. 5)
contested ordinance again regulates the obligation of the owners to equip the buildings
detection devices, while closer (depending on type of constructions) provides
location of such a facility. The question of the definition of autonomous detection equipment
then laid down in Annex no. 5 of the contested ordinance.

Fifth The Ombudsman states that repeatedly encountered by
legislator uses to set binding rules of conduct
link to the Czech technical standards. Such an approach does not see itself as
objectionable problematic is the fact that these standards
not commonly available to the public, especially but not
available free of charge. The addressee of legal norms and detection of the binding rules of conduct instead
insight into publicly (and mostly free)

Accessible Collections of laws shall be ordered for the considerable amount of money
technical standard with the Office for Standards, Metrology and Testing
. Although with effect from 1 January 2009
envisages gradual computerization technical standards (ie with their disclosure
via the Internet with full-text search), or continue
is not expected that the technical standards to which they refer
relevant legal standards, should be made available free of charge (newly
allows only 50% compared to the cheapening of the status quo).
Public Defender stated that the practice of law in this respect is contrary to fundamental legal principles
rulemaking, therefore, that the universally binding rules of conduct
should be accessible to everyone without restrictions so that they can adjust their behavior
legally aprobovaným and to avoid potential legal
penalty. Legal standards (and thus law certificated technical standards)
must be inherently accessible to the public and free of charge anymore because
access to their content can not be dependent on financial income and social status
individuals. Otherwise it would be undermined
one of the fundamental principles of the democratic rule of law - that
"equality before the law" [Art. 1 of the Constitution of the Czech Republic (hereinafter
"Constitution"), Art. 1 of the Charter of Fundamental Rights and Freedoms (hereinafter
"Charter")]. In addition to the requirement that the public and free availability of legal norms
follows from the very nature of democratic rule
state. The Constitution and the Charter of the people expresses the requirement that
obligations should only be imposed by law or under statute,
manner prescribed by law (Art. 2. 3 of the Constitution, Art. 2. 2
Charter), and at the same time while keeping the other conditions (prohibition of discrimination
- Art. 4, paragraph. 3 of the Charter, preserving the essence and meaning of fundamental rights and freedoms
- Art. 4 par. 4, etc.).

6th The petitioner points out that the law no. 309/1999 Coll., On the Collection
Laws and Collection of International Treaties, as amended, which provides for the publication
law knows no case in which a certain
part legislation (in concreto rule of behavior that is intended
legal norm referring to the Czech technical standard)
become a material part of which is publicly accessible and free of charge way
prescribed by law (§ 12 par . 1 and 2 of the Act on the Collection of laws
).

7th For these reasons, the Ombudsman considers that Decree No.
. 23/2008 Coll. is in conflict with Art. 1 and 2 of the Constitution and Art. 1, 2 and 4
Charter and the Law on the Official Gazette. Any provision of law
regulation which has normative character, that must be available
publicly and free of charge. If you stand in the legislation refers to
technical standard, then it is his responsibility to ensure the public and free availability
such standards. Otherwise it is not a determining
legal obligations in a constitutional manner.

8th Given that the contested decree in the vast majority of its
provision refers to Czech technical standards and its independent existence
without them meaning, presents the Ombudsman
primarily proposal for its complete abolition, because the connection between the contested ordinance
with the technical standards is so strong that it does not interfere with meaning only a partial
provisions.

9th In case that the Constitutional Court did not agree with his opinion
connection between the contested ordinance with technical standards, submitted
Public Defender alternative proposal to repeal those provisions of the contested
ordinance that directly refer to Czech technical standards or
which JUDr. Motejl finds problematic for other reasons.

10th In addition to violation of fundamental rules rulemaking sees
Public Defender inconsistency of certain provisions of the contested ordinance
with other constitutional principles. This is mainly a conflict of § 13, § 14.
3, § 15 para. 5, § 16 para. 2, § 17 para. 7 and § 18 par. 5
contested decree with the principle of proportionality or reasonableness
in a broader sense.

11th The Ombudsman points out that the state does have permission
Act (resp. Vicariously decree, unless there is express statutory authorization
) establish obligations to its citizens, but this must not be arbitrarily
, to determine the obligations there must be a legitimate and reasonable

Reason and normative means chosen to achieve the targets chosen
must be appropriate, proportionate and must also be selected ratio between
intervention into fundamental rights and freedoms and the public interest qualitatively "optimal" within the meaning of Article
. 4 par. 4.

12th The petitioner states that in practice also meets with the fact that under
concept of public interest, based on which are determined by a variety
statutory or sub-statutory prohibitions or restrictions, in some cases
hiding in fact private property interests . This approach is
petitioner's opinion must be rejected, because while the legislator is entitled
in general to restrict the right to act in favor of the rights of others
(typically a case of protection of the weaker party in a private law
- ie. it comes eg. the protection of tenants, consumers, authors, etc.)
even such measures must be legitimate in the sense that monitors
generally recognized principles of equality, non-discrimination, solidarity, etc.
. and that this objective is achieved by reasonable means.

13th In light of the foregoing, the Ombudsman considers that
contested provision goes beyond the limits that the Constitution and the Bill gives
legislators for imposing obligations on the addressees of legal norms.

14th The Ombudsman argues that the contested provisions
owners of buildings down obligations, which in turn fall into their
property sector. In one case (§ 13 in conjunction with
Annex no. 4 of the contested decree) concerning the obligation to purchase
extinguishing devices and the implementation duty (resp. Ordering)
its regular review, in the second case concerning the obligation installation called.
autonomous detection equipment (ie re-compulsory expenditure of financial resources
). Fundamental right in this case affected (Art. 4
par. 4), it is the right of ownership. In both cases, it is of course possible to store
respective duties at first glance justify
public interest in protecting the health and property against the threat of,
development and spread of fires. The requirement of a legitimate objective seems to be to
filled.

15th While in the case of so-called requirement to install.
Autonomous device can detect by JUDr. Motejl accept the legitimacy of goals (
problem here sees rather the adequacy of such measures in the strict sense
) in the case of acquisition obligation extinguisher case
not, because under the guise of public interest, ultimately hiding || | private property interests.

16th In the case of fires, deaths and injuries
no statistically proven negative trend is not clear. In the case
sub-category of "direct damage" in terms of statistically relatively little conclusive
element, because unlike other monitored items is burdened
variety of subjective factors (the main problem is the relativity
estimate of the damages, which it is derived from the abovementioned policyholders for
indemnification, rather than from an objective evaluation conducted by an expert
example). The petitioner is of the opinion that the increase in the number of fires, deaths and damage
not alarming.

17th Based on available data, the Ombudsman concludes that
an obligation to acquire newly constructed buildings extinguishers
actually beneficial to the interests of those persons who will have the following duties imposed
financial profit. The creator of the contested ordinance
with this fact did not even make no secret when the explanatory memorandum to the contested
decree (p. 2) bluntly states: "The decree will have a positive impact on
activities of small and medium-sized enterprises in terms of their application
during production, revisions and corrections to certain types of products serving the
fire protection in buildings (eg.
equipment of the fire alarms, fire extinguishers), which are newly assumed
siting and construction of small-scale . '.

18th The Ombudsman is of the opinion that although the state is entitled to determine
crossing in order to prevent damage concrete obligations
but can only do so if the deposit is a specific legal obligation
really justified. The petitioner believes that this requirement
in the case of an obligation to equip appropriate buildings
extinguishing device (§ 13, Annex no. 4 of the contested decree)
not filled.


19th Even if we accept the argument that states the Ombudsman that in both cases
meet the requirement of a legitimate objective is convinced that
relevant provisions do not meet the requirement of suitability, respectively.
subsidiarity within the meaning of the existence of alternative means of achieving the desired objective
.

20th The Ombudsman states that it is primarily the responsibility of the citizens,
how they will protect their health and property.
Civil Code (Law no. 40/1964 Coll., Civil Code, as amended)
in this connection sets each general prevention
obligation, which generally requires the unambiguous command "to act | || so as not to cause damage to health, property, nature and the environment
"(§ 415). The choice of funds that will be used when
meet this legal obligation, however, depends primarily
on each of the addressees of this law. Objectives of preventive prevention
damage can be considered to JUDr. Motejl achieved using other methods
which typically falls in private, for example, will be a
favorable insurance terms. Thus, for example, will insurers things that
citizens who equip their buildings with fire extinguishers, set smaller
premiums (similar approach seamlessly applied in different species
accident insurance for motor vehicles, which is the owner of a motor
vehicle financially preferential treatment if the car will be better protected against theft
various security measures).

21st The Ombudsman extinguisher is indeed effective
means, but for its action involves a range of professional
knowledge and skills. In order extinguisher to perform its function must be
person who uses it, trained in the ways of its use and
above all must know in which cases it should be used. In the opposite case can be
extinguisher even dangerous. For example
contested decree advocated powder extinguisher A 34
not be safely used for extinguishing fires class F (fires
vegetable or animal oils and fats used in kitchen appliances)
belonging to one household the most common. The actual determination
obligation to furnish relevant structures without fire extinguishers that would
the owners of these buildings regularly to train personnel in fire safety
and using different types of fire extinguishers, represents
terms of its stated objective of an inappropriate means. For these reasons
according to the Ombudsman's determination to equip the relevant obligations
buildings with fire extinguishers unsuitable (contrary ultimate consequence could ever lay
apparently using fire extinguisher in your home
cause more harm than good).

22nd Regarding the obligation to equip the appropriate construction equipment
autonomous detection (§ 14 par. 3, § 15 para. 5, § 16 para. 2, § 17 paragraph
. 7, § 18 par. 5 and Annex . 5 of the contested decree) and even here
resource that needs to be anchored without further details
considered an inappropriate means. Especially in the contested decree lacks provisions
which would require the device to ensure some security
standard. Autonomous sensor, if it is to make sense, therefore, it had to be multifunctional
(must distinguish between ordinary smoke from carbon monoxide)
must have built-in self-test and must only be supplied from a battery.

23rd Simultaneously contested decree petitioner's opinion stores
owners of houses senseless obligation to install equipment
autonomous detection 'section leading to the exit "from the family home.
Logic would say the obligation to install the device in a room designed to sleep
because there sensor may effectively fulfill the purpose for which it serves.

24th To assess professional websites things that are assessing the proportionality
§ 13, § 14 para. 3, § 15 para. 5, § 16 para.
2, § 17 para. 7, § 18 par. 5 and Annexes Nos. 1, 4 and 5 of the contested ordinance
key, the petitioner suggests as evidence questioning Ing. FP, which is
expert on fire protection and the creator of a series of technical standards
which should possibly express the interconnectedness of the contested decree with
technical standards, the practical consequences of the contested provisions and

Possibility or impossibility through managed funds
achieve its stated objective of the protection of property, life and health.

25th Given that in both cases (ie both fire
appliances and devices for autonomous detection) it is technically simple
equipment and its installation is possible without making major
reconstruction of buildings, the public Ombudsman considers
that the obligation to install such equipment only to new buildings
(the provisions of § 32 par. 3 of the contested ordinance) is discriminatory (
inconsistent with Article. 4, paragraph. 3 of the Charter). If the state really wanted to protect the property
and health of citizens, there is no legitimate reason not to impose the obligation
installation of fire extinguishers and equipment autonomous detection in all
buildings that are mentioned in the contested provisions.
Petitioner is convinced that in both cases these devices easy to install,
however, owners of the "new home" as opposed to the owners' home old "
required to expend funds for equipping their real estate
respective devices. While the number of fires in older properties
several times higher than the number of fires in new buildings. If already
Thus, the legislator wanted to improve the level of fire protection should
oblige owners rather those where the risk of fire
likely. The position of both groups of owners should
in this respect, be equal, therefore, the obligation (on whose meaningfulness petitioner doubts
otherwise) should be provided for all without distinction.

26th Finally, the Ombudsman stated that the contested ordinance is the above-mentioned reasons
contradictory to the constitutional order of the Czech Republic and
the Official Gazette Act, and therefore proposes that the Constitutional Court ruled
statement of claim on this proposal as defined above.

III.

Expression participant

27th The Constitutional Court, under § 69 para. 1 of the Constitutional Court
to the petition requested a statement from the Interior Ministry as
party.

28th Interior Minister MD. Mgr. Ivan Langer, in its statement
Constitutional Court received on 2 March 2009 pointed out that in the Decree no. 23/2008 Coll
. in the interest of unification on the basis of an agreement with the Ministry for Regional Development
taken the proven provisions of the IPC and
's Decree no. 137/1998 Coll., on general technical requirements for construction
, as amended concerning solutions
fire safety of buildings. The decree, which is to replace the existing Decree no.
137/1998 Coll., Is currently in notifikačním proceedings under European
directive. Designing a new ordinance addresses fire safety as one of
basic requirements for construction only by reference to decree no. 23/2008 Coll.
If therefore annulled decree no. 23/2008 Coll., Respectively.
even in part, as proposed, would not be a legislative solution
technical conditions of fire protection engineering at all. It would
created legal uncertainty for processors of project documentation, but also
citizens in case of dissenting contradictory attitudes towards this
documentation, respectively. the other supporting documents concerning buildings.

29th Interior Minister pointed out that the Decree no. 23/2008 Coll. About
technical conditions of fire protection of buildings, is the realization of empowerment
contained in § 24 par. 3 of Law no. 133/1985 Coll., On fire protection
, as amended by Act no. 186/2006 Coll ., (hereinafter the "Act on
fire protection"). The purpose of this legislation is to establish one
legal regulation and technical conditions of fire protection in the design,
construction and use of buildings. There are established technical requirements
fire protection of buildings that have been established only partially,
in several laws, especially in the field of construction law. In
Decree no. 23/2008 Coll. it responded to harmonize the requirements of fire safety
with European regulations, especially Council Directive 89/106 / EEC and
interpretative document no. 2, which is designed
fire safety as one of the basic requirements for construction products .
It is desirable to adapt the basic requirements for the construction, which
our legal system contains comprehensive. It is therefore to be considered as
appropriate that the adjustment of fire safety, as one of the

Requirements for the construction, dealt with a separate regulation and thus was created a harmonious whole
rules. Other regulations that must be applied in resolving
technical conditions of fire protection engineering respected, are
relevant decisions of the European Commission. Interior Minister stressed that
Decree no. 23/2008 Coll. in terms of content "technical" legal
regulation, which provides for the most part (the provisions of § 2-28)
conditions for building design. Building design issues can only be addressed
to eligible persons, as is clear from the provisions of § 158 of Act no. 183/2006 Coll
. On Zoning and Building Code (Building Act).
These persons must for its activities to obtain an authorization under the Act no. 360/1992 Coll
. About the profession of authorized architects and on the
profession of authorized engineers and technicians active in construction,
amended. Building design (design)
can perform such businesses, suggesting that
for performing this activity must incur certain costs associated with this activity
. These costs can also include the acquisition
technical standards for the amount of CZK 500 + VAT per calendar year. In Annex no. 1
Decree no. 23/2008 Coll. then clearly specified list of technical standards
fire safety engineering. In other
Annexes contain details regarding certain provisions of the contested ordinance.

30th The objection Ombudsman that technical standards are not readily available to the public
mainly available free of charge, Interior Minister
states that the Czech technical standards that address fire protection engineering and
are listed in Annex no. 1 of the Decree no. 23/2008 Coll., they are available
weekdays at the regional fire rescue corps (
regional directorates, regional departments). For a minimal fee you can do all of these standards
peek in some of the technical libraries of regional cities
. Access to the Czech technical standards listed in Annex
no. 1 of Decree no. 23/2008 Coll., Is a public and free of charge, and is therefore
violated Act no. 309/1999 Coll. For this reason, the Decree no. 23/2008 Coll
. nor contrary to Art. 1 and 2 of the Constitution and with Art. 1, 2 and 4 of the Charter.

31st This is a service to the public and free, respectively.
for a minimal fee, and therefore does not violate the basic principle
democratic state, ie. equality before the law (Art. 1 of the Constitution, Art. 1
Charter) is not violated Act no. 309/1999 Coll. and Decree no. 23/2008 Coll.
Is not in conflict with Art. 2 of the Constitution or Article. 2 and 4 of the Charter. Additionally
Interior Minister points out that without ownership
basic standards for fire safety (CSN 73 08xx) are not possible in their work
authorized technician or engineer assessing the technical conditions of fire safety
. Interior Minister is of the opinion that in this case
does not violate the basic principles of a democratic state, ie.
Equality before the law (Art. 1 of the Constitution, Art. 1 of the Charter). The principle of public and free access
Czech technical standards set forth in Decree no. 23/2008 Coll
. is not breached as a condition of public and free access
technical standards citizen is guaranteed by state institutions, ie
. regional fire rescue corps.

32nd The objection of the Ombudsman that the obligations may be imposed only
law or under statute, in a manner prescribed by law
(Art. 2. 3 of the Constitution, Art. 2. 2 of the Charter), and at the same time
maintaining other conditions (prohibition of discrimination - Art. 4, paragraph. 3 of the Charter, the investigation
essence and meaning of fundamental rights and freedoms - Art. 4 par. 4)
Interior Minister stated that the rights and obligations they are stored under
law. Decree no. 23/2008 Coll. It was prepared on the basis of the authorization §
24 paragraph. 3 of the Law on Fire Protection. Legal manner so provided
(see § 24 par. 3 of the last sentence of the Fire Protection Act)
a more detailed definition of the technical conditions for fire protection using
values ​​and procedures established by Czech technical standard or other technical document
conditions governing fire protection of buildings.
There is therefore no violation of Article. 2. 3 of the Constitution and Art. 2. 2, Art. 4
paragraph. 3 and 4 of the Charter.

33rd Interior Minister recalled that in § 99 of the Law on Fire Protection
is determined that an authorized engineer or technician, has been awarded
Authorization for fire safety in buildings, is the realization of technical

Conditions for fire protection of buildings set
implementing legal regulation issued pursuant to § 24 par. 3 of the Law on Fire Protection
entitled to use a procedure different from the procedure, which provides Czech Technical Standard
or other technical document specifying the conditions Fire protection.
When using such a different procedure, however, has authorized person
achieve at least the same result, which would be achieved in the process
by implementing regulation issued pursuant to § 24 par. 3 of the Act
about fire protection. The technical standard is a public document based on the consent of the parties
important issues with solutions.
Not generally binding (§ 4 para. 1 of Law no. 22/1997 Coll., On technical
requirements for products and amending and supplementing certain acts, as amended
Act no. 71/2000 Coll. ) and its use is based on the principle of voluntary
. Of Law no. 22/1997 Coll. It also follows that
compliance with technical standards is one of the ways you can set
meet the requirements of the legislation. It is therefore a technical expression
general legal requirement that can not be met by other means
which the Law on Fire Protection in § 24 par. 3
admits. The Implementing Regulations of this law, ie. In Decree no.
23/2008 Coll., Annex no. 1 provides a clear list of standards
fire safety of buildings, can be used to the technical conditions of fire safety of buildings to meet
. This form was chosen on the recommendation
legislative bodies of government. Interior Minister stated that the reference to
technical standards is elected in other legislation, for example.
In Decree no. 369/2001 Coll., On general technical requirements
ensuring the use of buildings by persons with limited mobility
and orientation, as amended by Decree no. 492/2006 Coll., Decree no. 137/1998 Coll
. On general technical requirements for construction, as
amended, Government Decree no. 163/2002. Laying
down technical requirements for selected construction products, as amended
amended, by Decree no. 528/2005 Coll. , Physical
safety certification and technical resources, as amended by Decree no.
19/2008 Coll., And the like. Based on the above rationale Interior Minister
concludes that there was no breach of Article. 2. 2 of the Constitution, Art. 2. 3, Art. 4
paragraph. 3 and 4 of the Charter. Considering the complexity of fire safety standards
listed in Annex no. 1 of Decree no. 23/2008 Coll.
was not possible to accede to these standards in full were part of the annex, which could then
in this range was annexed to the decree no. 23/2008 Coll.
And in this amended subsequently published in the Official Gazette and publicly accessible
at the places specified in § 13 of the Act no. 309/1999 Coll.

34th Interior Minister notes that dispense with the Decree no. 23/2008 Coll.
Without any references to Czech technical standards, and these can not be drained,
since they contain almost all the details regarding
conditions for fire protection of buildings. The legislation can not go into detail
(calculation method different values, etc.) Listed on many sites
standards. The legislation provides only basic terms with the fact that
relevant Czech technical standard referenced to inform people
eligible for designing the buildings and solutions to technical conditions for fire protection of buildings
(authorized engineer and authorized technician), where | || find detailed solutions to the issue. This is the "utility" without
that can not perform this activity, not because the person is eligible
(authorized technician, authorized engineer) when designing a building
must use another method of solving the technical conditions for fire protection
but given the magnitude of the issues on the contrary, Czech technical standards
this job easier.

35th The interior minister says that the number of portable fire extinguishers
initial intervention in case of fire is defined in § 13 of Decree no. 23/2008 Coll
. with reference to Annex no. 4. This Annex is determined among other amenities
fire zone of the house
portable fire extinguishing device with specific skills 34 A and installing in
individual garage one portable fire extinguisher foam or
powder fire extinguishing capability of 183 B for each separate department
space (space). In the conclusion of Annex no. 4 provided that the procedure

Under this Annex may not be maintained if the processor
fire safety solution proves maintain the level of fire safety.
Individual garage at all times (before the effect of Decree no. 23/2008 Coll.)
Had to be designed as a separate fire zone and had to be equipped
portable fire extinguisher powder or foam containing fillings
least 6 kg (or. liters). In terms of the new European standards, ie.
Since 1997, and instantiations Decree no. 23/2008 Coll.
this requirement corresponds to a portable fire extinguisher with extinguishing capability of 183 B, either
foam or powder. By adopting the provisions of § 15 para. 2 of Decree no. 23/2008 Coll
. It proceeded to the new solution, whereby
building a house can form a joint fire compartments with individual
garage or shed for cars, vans and two-wheelers a guide.
With regard to the fact that in most cases the garage and house forms one
building and are commercially available universal instruments and equipment
this joint fire zone, ie. Single-family house and garage
, universal portable fire extinguisher for extinguishing all types of fires
(not only solid but also electrical equipment, flammable liquids
) is complied with regulations. The extinguisher
suits in terms of service as a convenient means for initial intervention.
This solution saves citizen to finance the fire separating structures
including fire doors in price of about 3,000 CZK, and other
expenses associated with their use. In the case of portable fire
device will thus not a newly introduced requirement only on equipment
building a house, including the garage, another type of fire extinguisher.
This solution reduces spending on fire separating structures, which are mostly
fire doors and protecting load-bearing structures
ceiling. Basic principles of property rights by the Interior Minister
not affected because it is not a new imposition that before
effect of Decree no. 23/2008 Coll. there was only a clarification
improving the regulation and protection of the owner. A new solution under the provisions
§ 15 paragraph. 2 of Decree no. 23/2008 Coll., Ie. The merger of the previously separate
fire zone of a house and a separate fire compartment
individual garage into one section, there is an increase in costs but it is being
save costs, which is in the interest of the owner and strengthening preventive function
protection of property from damage sustained.
Saving new technical conditions increases safety and enhances
preventive activities within the fire, which is the interest of the state, thus
public interest. In light of the above, the Minister of the Interior notes that this requirement
to reach the selected target is legitimate, appropriate and optimal
between intervention into fundamental rights and freedoms and the public interest within the meaning of Article
. 4 par. 4 .

36th In § 14 par. 3 of Decree no. 23/2008 Coll.
requirement is set for early fire detection equip the building (referred to in § 15 to 18 and 28
) simple detection device. It is a new global trend
introduction of simple, affordable devices to areas
where we spend a lot of time. This device autonomous detection of early detection
a fire and report the fire alarm and enable timely escape of people from
given space and thus save human life. Purchase price
schedules hundred crowns (CZK 250) compared with the amount for the house in
millions of crowns as the value of health and life of humans is
incomparable. E.g. United States documenting
reduction in mortality after the use of fire detectors in homes nearly in half.
With regard to the above, the Minister believes that this requirement
to reach the selected target is legitimate, appropriate and optimal solution when
collision between interference with the fundamental rights and freedoms and the public interest within the meaning
Art. 4 par. 4.

37th Interior Minister stated that between 2004 and 2006, when the Decree No.
. 23/2008 Coll. prepared and talked about statistics clearly
growing number of deaths and injuries, and therefore this fact
gate for the substantive and serious argument. In the later period, in 2007, there was a
decline in fatalities, but not injured
compared with the previous period. This fact can not be considered comprehensive and

Justifiable argument, as stated in the draft of the Public Defender
rights. From the statistical data on fires in homes between 1979 and 2008
clear that there was a very unfavorable development during
fires in the home, especially in terms of the number of injured persons and the amount of damages.
Requirement to equip a fire extinguisher and autonomous detection and alarm
house, equipped with a device of autonomous detection and alarm
apartments in residential buildings, spaces where you move and spend their time
people with reduced mobility ( social care facilities), and smaller hotels has
help improve the safety of people in these areas. According to the Minister of the Interior
main objective is to ensure the fire safety of citizens,
standard manner, in response to new requirements of membership
in the European Union and the new global trend.
Obligation to equip the building fire detection and fire extinguishers with reference to the technical standards governing
as legislation in other EU member states, such
. Finland and Romania. Facilities construction equipment
autonomous detection and alarm systems is a worldwide trend. E.g. in Denmark autonomous
smoke detector equipped with 75%, in Finland 98%, Norway 97%, in Great Britain
75% and in the United States 95% of all households. To commemorate the public
Ombudsman that precautionary damage prevention can be achieved
more favorable insurance conditions, the Interior Minister stated that this
observation is not appropriate in relation to the question of a possible repeal of Decree no. 23/2008
Coll., as the authority of the State - Ministry of Interior - it can not impose
insurers on how to take into account "the technical conditions of fire protection of buildings
" in the general conditions of contracts which relate
insurance to protect property and persons.

38th Interior Minister further states that Decree no. 23/2008 Coll.
down the obligation to equip the buildings mentioned in § 15 and 28 to I8 device
autonomous detection and signaling, which is a technical condition of fire protection in
design phase of construction. Decree no. 23/2008 Coll. further provides that construction
should be used in accordance with the technical conditions of fire protection
buildings in which they were designed, built and launched its
use. For previously built structures not established duty to equip
additionally certain areas of existing structures device
autonomous detection and alarm, because retroactive legislation is considered inadmissible
legislative technique, which is contrary to the requirement of legitimate expectations
and legal certainty.
Retroactive effects of a regulation would infringe the principle of "building
be used in accordance with the technical conditions of fire protection of buildings,
by which it was designed, built and launched its use", ie the place
and time. For the above reasons, it is not about discrimination and inconsistent with Article
. 4, paragraph. 3 of the Charter.

39th The interior minister added that the strengthening of the preventive function
fire protection in recent years, fire brigades use a different (and
can be argued that even proven) way to "fire prevention".
Create awareness of the importance of fire protection responsibilities of individuals while taking
buildings, fire detection procedure to extinguish the like.
Takes the form of preventive education, especially among children and youth. Also, information about
fire protection are listed on the website of the Fire and Rescue Service
regions and professional public is informed
form of seminars and courses. Clearly, that this form of delivering results and
citizens themselves can now (optionally) to existing dwellings buying
autonomous detection equipment.

40th Finally, Interior Minister stated that the repeal of Decree no. 23/2008 Coll. ,
Respectively. part of it, there would be a situation that the Czech Republic will be
legislation addressing the issue of fire safety
buildings. Based on the above Interior Ministry notes that
Decree no. 23/2008 Coll. nor its individual provisions are not inconsistent with the Constitution
nor with the Charter, and therefore proposes that the Constitutional Court has rejected as unfounded
dismissed.

IV.

Waiving hearing

41st According to § 44 par. 2 of the Constitutional Court, the Constitutional Court
consent of the parties waive a hearing, unless from him
expected to clarify the matter. Because both the petitioner and the Minister

Interior consented to waive a hearing and
due to the fact that the Constitutional Court should consider that the hearing can not be
expected to clarify the matter, a hearing was held in this matter
waived.

V.

Locus standi of the appellant

42nd The Constitutional Court first addressed the question whether the petitioner -
Ombudsman - may file a motion to annul the contested
regulation, respectively. its individual provisions. He concluded
positive because according to § 64 par. 2 point. f)
Law on the Constitutional Court for annulment of another law or its individual provisions
if they are in conflict with the constitutional order or
law, entitled to make under Article. 87 paragraph. 1 point. b) of the Constitution and public
Ombudsman.

VI.

Constitutionality of the legislative process

43rd The Constitutional Court states that the contested regulation was adopted and
issued in accordance with the Constitution and promulgated in accordance with law no. 309/1999 Coll
. On the Collection of Laws and Collection of International Treaties, as amended
. According to § 68 para. 2 of the Constitutional Court assesses
Constitutional Court in deciding the content of the Act or any other legislation
terms of their consistency with constitutional laws, and
case of other legislation, also laws and determines whether they were
adopted and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally prescribed manner
.

44th Article. 79 par. 3 of the Constitution provides that the Department may, on the basis
within the law and issue regulations if they are to
authorized by statute. The contested Decree no. 23/2008 Coll., On technical
conditions of fire protection of buildings, was issued by the Ministry of the Interior
on the basis of statutory authorization contained in § 24 par. 3 of the Act
about fire protection.

45th For completeness, it is necessary to cite § 24 par. 3 of the
Fire Protection, which states: "The Ministry has defined
regulation the technical conditions of fire protection for the design, construction or
use of buildings, and in order to limit the development and spread
fire and smoke in the building, limiting the spread of fire to neighboring buildings
evacuation of people and animals in case of threat to the building or fire
fire and allow for effective and safe intervention of fire || | protection. For a more detailed definition of these terms may be used
values ​​and procedures laid down in the Czech technical standard or technical
document governing the conditions for fire protection of buildings. ".

46th The contested ordinance was published in Volume no. 10/2008 Collection of Laws
and 1 July 2008 came into force. This decree has not yet been
changed, just as it was amended or repealed provisions of the
fire protection, which are a measure for the abstract review of the constitutionality and legality
this Decree. The proposal was therefore deemed admissible.

VII.

Rating Constitutional Court

A) The application for annulment decree

47th The Ombudsman, in its proposal primarily seeks annulment
Decree no. 23/2008 Coll. as a whole, and for this reason, that the contested ordinance
in many of its provisions refers to Czech technical standards
which are not publicly available and free of charge, thus infringing Article
. 1 of the Constitution and Art. 1 of the Charter.

48th The character of Czech technical standards are the following:
Czech technical standards are a special kind of standards, which are regulated
very specific requirements - contain technical description
parameters of products, structures, materials and complex production units of these | || formed parts. Technical standards contain information on generally accepted
technical solutions, basic legal safety requirements
design, materials, fire, sanitation or health and environmental
middle. Technical standards cover almost all areas of human activity
.

49th Law no. 22/1997 Coll., On technical requirements for products and
amending and supplementing certain acts, as amended, in
§ 4 defines the Czech technical standards as follows:

»(1) Czech technical standard is a document approved by an authorized legal entity
(§ 5) for repeated or permanent use
created under this Act and marked CSN, whose release was announced

In the Bulletin of the Office for Standards, Metrology and Testing
(hereinafter "the Office Bulletin"). Czech Technical Standard
not generally binding.

(2) Title Czech Technical Standard CSN and letter designations
not be used for marking other documents.

(3), Czech Technical Standard provides for common and repeated use
rules, guidelines or characteristics for activities or their results
aimed at achieving optimum degree of order in a given context
. «.

50th Act no. 309/1999 Coll., On the Collection of Laws and Collection of International Treaties
, as amended, on technical standards
does nothing.

51st From the above cited positive legislation shows that the Czech
technical standards are generally binding. Technical standards are considered
qualified recommendations (not orders) and their use is subject
, only voluntary.

52nd However, there are many cases where the compliance requirements
concrete Czech technical standards required by law or decree
. The obligation to proceed with certain activities in accordance with Czech
technical standards may arise primarily on the basis of
law which provides that, in relationships governed by
legislation is necessary to comply with Czech technical standards. In these cases
already be a certain gravity to speak of these standards.
Technical standards are therefore generally binding, in certain cases, but will become
generally binding, unless a specific law explicitly refers.

53rd References to technical standards in legislation may
terms of their forces form a link exclusive (mandatory) or
(indicative). Exclusive link determines compliance with the technical standard
referenced is the only way to meet the relevant provisions of the legislation and
. Technical standard and complements incomplete
legal requirement, and thus becomes actually part of the legislation.
This creates an obligation to abide by the provisions of the relevant standards for those
entities which the law applies. Although even in this case
usually not a general liability, it can be said that in relation
to meet the requirements of the regulation is referenced standards or
part becomes binding. In the case of an indicative reference is compliance with the standard
one of the possible ways to meet the requirements of the legislation.
General legislative requirement may be met in another way.
Indicative form of reference is applied in § 4 of Act no. 22/1997
Coll., Concerning the harmonized or determined standards.

54th Technical standards supplement the incomplete legal requirement.
Links to technical standards are intended to specify requirements in Community
standards and thus protect public interest and safety.
Order to meet the detailed legal claims is primarily product quality and protect the health and life of humans
, work safety and technical equipment, fire protection
creation and environmental protection, protection of property and other interests
. These requirements often result from international agreements
which the Czech Republic is bound. Recently they come particularly from areas
European Union.

55th In line with the practice in the European Union introducing the concept
harmonized standards. Harmonized Czech standard norm is such that
in relation to specific technical regulations containing general
defining the technical specifications contains provisions whose fulfillment will
considered as meeting the requirements of the technical regulation.

56th Compliance with technical standards, in many cases
decisive condition for application on the market. Asked why the standards used
even though they are not legally binding, it could respond by using their
is advantageous because it facilitates the production and exchange of goods
communication between manufacturers and customers, creating
trust between producer and consumer, contribute to reducing production costs
remove market barriers. These are also the main reasons for the emergence
technical standards at the corporate, national and international level.

57th The petitioner in its proposal argues that, by Decree no. 23/2008 Coll
. refers to the Czech technical standard is not met from the Constitution and the Charter
resulting requirement that the obligations can be imposed only by law and

Based on the law, in the manner provided by law (Art. 2. 3 of the Constitution, Article
. 2. 2 and Art. 4, paragraph. 3 and 4 of the Charter). With the above caveat
I can not agree. The contested Decree no. 23/2008 Coll.
was issued on the basis of the authorization contained in § 24 par. 3 of Law no. 133/1985
., on Fire Protection, as amended, in
which states: "Ministry of Education stipulates
regulation of technical conditions of fire protection for the design, construction and use of buildings
, in order to limit the development and spread of fire and smoke in the building
, limit the spread of fire to neighboring buildings, evacuation of people and animals
in case of fire or danger to the building during a fire and allowing
effective and safe intervention of fire brigade units.
For a more detailed definition of these terms may be used values ​​and procedures set
Czech technical standard or other technical document governing the conditions
fire protection of buildings. ".

'58. From the above cited text of the law it is clear that this bill contains
only authority to issue the ordinance, but also establishes the possibility of using
values ​​and practices contained in the Czech technical standards
. In Annex no. 1 of Decree no. 23/2008 Coll. then a listing
standards of fire safety. Article. 2. 3 of the Constitution, Art.
2. 2 of the Charter, respectively. Additional Article. paragraph 4. 3 and 4 of the Charter thus violated
not.

59th The contested Decree no. 23/2008 Coll. in its Annex no. 1
contains an exhaustive list of fire safety standards. Considering the complexity of fire safety norms
listed in Annex no. 1 of Decree no. 23/2008 Coll.
Was not appropriate for these standards in full were part of the annex, which could then
in this range was annexed to the decree no. 23/2008 Coll.
And in this amended subsequently published in the Official Gazette.

60th The existence of technical standards and link to them in the legislation
are necessary to ensure that legislation in the Czech Republic have been
inappropriately burdened by the amount of detailed legal requirements.
Legal regulation can not go into detail (calculation method different values ​​
etc.) Listed on many sites standards. The legislation provides only
basic conditions that the respective Czech technical standards
refers to inform the persons eligible to designing the buildings and solutions
technical conditions of fire protection of buildings (
authorized engineer and authorized technician) where to find detailed solutions to the issue.

61st The provisions of § 99 of the Fire Protection Act states that
»authorized engineer or technician who has been granted authorization for
fire safety of buildings (hereinafter referred to as" authorized person "), when
implementation of technical conditions for fire protection of buildings set
implementing regulation issued pursuant to § 24 para. 3
entitled to use the procedure different from that determined Czech technical Standard
or other technical document regulating the conditions for fire protection.
When using such a method, however, has authorized person
achieve at least the same result, which would be achieved in the process of implementing
regulation issued pursuant to § 24 para. 3rd ".

62nd That provision takes into account cases where the designer
(authorized person) comes up with better, innovative, respectively.
cheaper solutions than those envisaged by standard.

63rd The petitioner's objections regarding the lack of public and free access to
Czech technical standards include the following:
to technical standards is possible in working days to look at the fire brigade rescue corps
regions (regional directorates, regional departments)
or for a fee in technical libraries of regional cities.

64th Czech technical standards is also possible to purchase a
Office for Standards, Metrology and Testing, where they can turn
citizens with requests for basic information.
Czech technical standards can also be purchased at the contact points
Chamber of Commerce throughout the country. Since 2009, the printed version
technical standards discounted by half. Average price
Czech technical standards is (and was even before their cheapening) lower than
average in the European Union.

65th Access to all applicable technical standards in electronic form
is also possible via the Internet, where it is possible for these standards

Download fee (for a single user service has become CZK 1,000
12 months, at an inflated price and the option to print).

66th It should also be noted that technical standards are not primarily
designed for ordinary consumers, although one of the tasks
technical standards for its protection, but especially for professionals by professionals.
Technical standards of fire safety are especially equipped
authorized technicians and engineers, reviewing technical
terms of fire protection (who use them in their work), which represents
additional access and insight into them.
Building design issues can only be addressed by a competent person, as follows
from § 158 of Act no. 183/2006 Coll. On Zoning and
Building Code (Building Act). These people have to get their activities
authorization pursuant to Act no. 360/1992 Coll. About the profession
authorized architects and the profession of authorized engineers and technicians
active in construction, as amended.
Designing buildings (design) can perform as business entities from
suggesting that for performing this activity must spend a certain
costs associated with this activity. These costs can sort
acquisition and technical standards.

67th It can therefore be concluded that access to the Czech technical standards
listed in Annex no. 1 of Decree no. 23/2008 Coll. It is public and free.
Principle of public and free access to the Czech technical standards
specified in Decree no. 23/2008 Coll. not infringed, since the condition
public free access to technical norms
citizen is ensured by state institutions, ie. regional fire rescue corps.
The infringement of the fundamental principle of a democratic state, ie.
Equality before the law (Art. 1 of the Constitution, Art. 1 of the Charter) due to the existence of links
technical standards contained in the relevant Decree no.

B) The alternative petition to annul individual provisions of the above-mentioned decree


68th According to the Ombudsman contested provisions of the decree imposing obligations
owners of buildings that ultimately fall into their
property domain that require them first, to get a fire
devices and obligation to perform (resp. Order) their
regular revision, first, to install a so-called. autonomous detection device, which means
mandatory use of funds. Fundamental right
whose infringement is alleged in this, the right of ownership.

Ba) Objection violation of the principle of proportionality

69th The Ombudsman claims inconsistency § 13, § 14 para. 3,
§ 15 paragraph. 5, § 16 para. 2, § 17 para. 7 and § 18 par. 5 of the Decree no. 23/2008
Coll. with the proportionality principle in a broader sense. Those
provisions governing the compulsory construction equipment fire extinguishers and devices
autonomous detection and alarm.

70th After the Constitutional Court has identified potential interference with property rights
, an assessment of the proportionality of the interference with the fundamental right
. The test of proportionality requires locating and identifying targets
provisions restricting fundamental right;
this aim, in this case the public interest in protecting human life and health, as well as
their property against fire.

71st In its judgment of 13 August 2002 sp. Nos. Pl. US 3/02 (N 105/27 SbNU
177; 405/2002 Coll. ^ *) Constitutional Court, citing the Preamble and Art. 1 of the Constitution
concluded one of the fundamental rules of functioning of state power,
which is the principle of proportionality () and the prohibition of abuse of rights.
The Constitutional Court stated that in cases of conflict between fundamental rights and freedoms
public interest, respectively. with other fundamental rights or freedoms:
"... it is necessary to evaluate the purpose (aim) of such interference in relation to used
resources, the measure for this evaluation is the principle
proportionality (in the wider sense) which can also be
called a ban on excessive interference with rights and freedoms "[cf.
also judgment of the Constitutional Court dated October 9, 1996 sp. Nos. Pl. US 15/96 (N 99/6 SbNU
213; 280/1996 Coll.)]. This general principle encompasses three principles
respectively criteria for assessing the admissibility of interference.

72nd The first of these is the principle capability of meeting the purpose (or suitability
) whose content is considering intervention in terms of potential

Fulfillment of the objective pursued. According to this principle must be relevant
measures capable of achieving the intended goal of protecting
another fundamental right or public good. Unless the intervention
capable of achieving the objective pursued, it is a manifestation of arbitrariness, who
considered inconsistent with the principle of the rule of law.

73rd Then there is the principle of necessity, which follows the analysis of pluralism
possible means in relation to the intended aim and their subsidiarity
terms of limiting constitutionally protected values ​​- a fundamental right or
public good. If we can achieve the objective pursued
alternative means, it is constitutional one who
given constitutionally protected value to the smallest extent. According to this principle, it is permitted to use only the least intrusive
- in relation to the affected fundamental rights and freedoms
- of several possible means.

74th The third principle is the principle of proportionality (in the narrower sense), which is
weighing of conflicting constitutional values. Based on the principle of harm
fundamental right may not be disproportionate to the intended objective, ie
. measures restricting fundamental human rights and freedoms may not, if
a conflict between a fundamental right or freedom with the public interest, the
negative consequences exceed the positive
represents the public interest in these measures [see. also the Constitutional Court dated 13 May 1998
sp. Nos. Pl. US 25/97 (N 53/11 SbNU 25; 159/1998 Coll.)].

75th The proportionality test is one of the standard legal instruments as
European constitutional courts and international courts, respectively.
multinational [see. numerous rulings of the European Court of Human Rights;
its variant uses the proportionality test, of course, the European Court of Auditors
- to see and the Constitutional Court dated March 8, 2006 sp. Ref.
Pl. US 50/04 (N 50/40 SbNU 443; 154/2006 Coll.)].

76th In terms of principle, capability of meeting the purpose (suitability), according to which
relevant measure must be capable of achieving the intended
objective of protecting another fundamental right or public good,
can agree that the proposed measure is eligible
ensure the achievement of the assumed targets. Mandatory security of buildings against fire
fire extinguishers and equipment autonomous detection and alarm
is capable of protecting the lives and health of people and their property from the harmful influence
fire. This is not, however, just about protecting the rights of the owner
buildings, but also protect the interests of people living in the neighborhood and actually
interests of the whole society. Public interest in the protection of these values ​​is
priority and takes precedence over the protection of the rights of individual property owners
. Public interest in the security and protection of life, health and property
outweigh the interest of the individual owner to save
funds to purchase equipment for fire protection.
It should however be noted that it is primarily in the interest of the owner itself
strengthen the preventive functions to protect property against damage.

77th From the perspective of the principle of necessity, under which it is permitted to use only the least intrusive
- in relation to the affected fundamental rights and freedoms -
of several possible means, it is possible to say that in this matter is given
rational connection between the objective and the means chosen to enforce its
. The means used to achieve the objectives of the funds and necessary
friendly.

78th In terms of the third principle of proportionality (in the narrower sense), according
which detriment in a fundamental right may not be disproportionate in relation to the
intended destination, ie. The measures restricting fundamental human rights and freedoms
not the case for conflict between a fundamental right or freedom with the public
interest, the negative consequences exceed the positive
represents the public interest in these measures, it can be stated that in the present case
chosen measures are adequate in relation to the intended
chilli. The required actions will disproportionately burden the building owner.

79th The obligation to purchase fire extinguishers and automatic device detection and alarm
is contested decree imposed to protect
public interest in protecting the life and health of people and their property and to increase security
buildings and is a negligible expense compared with | || value of the acquired buildings that have these devices against fire
secure. Acquisition of these facilities the building owner did not particularly

Burden. The amount in the order of hundred crowns compared to the amount spent on the purchase of a house
millions of crowns is incomparable
especially if its acquisition is stored in order to protect the life and health of people
. The petitioner's objections concerning the appropriateness of the technical parameters
extinguishers and equipment autonomous detection
Constitutional Court states that this argument does not meet the constitutional level, and therefore
solution to these issues in depth.

80th In light of the above it can be concluded that the requirement to purchase
extinguisher and autonomous detection equipment is selected to achieve
goal, ie. The protection of persons and objects from fire, appropriate, necessary and proportionate
(optimal) in terms of the ratio between
intervention into fundamental rights and freedoms and the public interest within the meaning of Art. 4 par. 4.

81st Beyond said we can add that the building owner has when processing project documentation
right choice, therefore has the option not to use the procedure
according to Annex no. 4 of the Decree no. 23/2008 Coll., The processor
fire safety solution (authorized technician or engineer) proves that it
method chosen to maintain the level of fire safety.

82nd We can thus conclude that ownership of new owners (or.
Reconstructed) buildings - including with regard to the proportionality test performed
- is not affected.

Bb) Objection violation of the principle of equal rights

83rd The petitioner's objection that the requirement to install fire
devices and equipment autonomous detection only to new (or.
To retrofit) buildings is discriminatory and infringes the principle
equal rights enshrined in Art. 4 paragraph. 3 of the Charter, it should be noted
following:

84th Decree no. 23/2008 Coll. established requirement to equip some buildings
(§ 14 par. 3) an autonomous detection and signaling
technical condition of fire protection at the design stage of construction.
Decree no. 23/2008 Coll. the obligation to equip the buildings mentioned in § 15
to I8 and 28 autonomous device detection and alarm.
The Constitutional Court finds that the contested legislation can not be considered discriminatory
.

85th In general terms, the constitutional principle of equality can not be understood absolutely
as an abstract category, it's only a relative equality.
Equality of individuals before the law is not understood as an abstract category, but is
ascribed to a particular legal norm, conceived in the relationship between various entities, etc.
. Relative equality, as conceived by all modern constitutions
allows to establish specific criteria for equality
special cases, as a general principle of equality does not provide such precise bounds
to exclude any deviation requires only
removal of unjustified differences.

86th Regarding the objection of violation of equality, respectively. non-discrimination, as it
guaranteed by the Charter in Art. 1 and 3, the Constitutional Court notes that
contents of the constitutional principle of equality laid out in a number of its decisions
[eg. Constitutional Court judgments file. Nos. Pl. US 16/93 of 24. 5. 1994
(N 25/1 SbNU 189; 131/1994 Coll.), Sp. Nos. Pl. US 36/93 of 17
5th, 1994 (N 24/1 SbNU 175; 132/1994 Coll.), Sp. Nos. Pl. US 5/95 of 8
11th, 1995 (N 74/4 SbNU 205; 6/1996 Coll.), Sp. Nos. Pl. US 33/96 of
4. 6. 1997 (N 67/8 SbNU 163; 185/1997 Coll.), Sp. Nos. Pl. US 15/02 of 21
first 2003 (N 11/29 SbNU 79; 40/2003 Coll.)]. He agreed with them
understanding of the constitutional principle of equality, as expressed already
Constitutional Court of the CSFR in its judgment of 8 October 1992 sp. Nos. Pl. US 22/92 (Collection
resolutions and judgments of the Constitutional Court of Czechoslovakia, volume 1, judgment no. 11, p.
37), which stated that "the state to the security interests of its functions
He decided that certain groups will provide fewer benefits than others.
However, it does not act completely arbitrarily ... If the law
favor one group and at the same time sets disproportionate obligations on another,
can be done only with reference to the public good. ". The Constitutional Court
content of the principle of equality that moved into the area of ​​constitutional acceptability of aspects
differentiating subjects and rights. The first aspect
He sees the elimination of arbitrariness; the second factor follows from
legal opinion expressed in the judgment under file. Nos. Pl. US
4/95 of 7. 6. 1995 (N 29/3 SbNU 209; 168/1995 Coll.), In which
states: "... inequality in social relations, if touch

Fundamental human rights, must reach an intensity of questioning,
least in a certain direction, the very essence of equality. So
usually happens when, if violation of equality is connected to violation of another fundamental right
eg. The right to own property under Art. 11 of the Charter
fundamental rights and freedoms, one of the political rights under Art.
17 and seq. Charter of Fundamental Rights and Freedoms - etc. ".
The second aspect in evaluating the unconstitutionality of legislation
allegedly creates inequality is that it affects some other fundamental rights or freedoms
.

87th The Constitutional Court understands equality as a relative category, which requires
removal of unjustified differences. The principle of equal rights
therefore be understood such that legal differentiation in the approach to certain rights or imposing obligations upon
between legal entities shall not be
manifestation of arbitrariness, but it does not follow that everyone must be granted
any right, respectively. all given the same obligation.

88th This conclusion follows from the amendment to the Articles 1-4
classified under the general provisions of the Charter. Art. 1 of the Charter, the violation of which is expressly
argued, can not be interpreted in isolation from the other general
Articles 2-4 of the Charter, but on the contrary, it is necessary to hold them as one.
Of these general provisions, it is clear that the fundamental values ​​protected
enumerated in Art. 1 of the Charter framers did not conceive as absolute
. The same is reflected in Art. 4 of the Charter, which directly implies the existence
statutory obligations and restrictions but also Article. 2. 3
Charter, in which it foresees the possibility to impose certain obligations and restrictions
. Also, international human rights instruments and many
decisions of international supervisory bodies based on the fact that not every
unequal treatment of different subjects can be classified as
violation of the principle of equality, ie as unlawful discrimination against one group of subjects
compared to other subjects. So that the violation has occurred, it must be
several conditions are met: various subjects that are in
same or comparable situations are treated in a different manner, without
any objective and reasonable grounds for the different approach.

89th The Constitutional Court notes that the different treatment obligations
owners of new buildings compared to owners of old buildings is based on a reasonable and acceptable reasons
.

90th Higher costs associated with the purchase of fire extinguishers and detection
equipment are offset by a higher level of fire safety in the future
. It is not about inequality, if the group of owners who own
older houses, this duty was imposed, while a group of owners
who have built new houses (or. Reconstruct old buildings)
this is the duty, especially in their interest saved. For these reasons
not about discrimination or inconsistent with Art. 4, paragraph. 3 of the Charter.
To this objection finally be noted that it is primarily in the interests
themselves owners of older buildings, so that they ensure their buildings against fire
mentioned security devices, despite their obligation
this legislation imposes.

91st The Constitutional Court did not consider it necessary to supplement the evidence by performing
interrogation experts suggested, because clarifying technical issues
would be beyond the constitutional review.

92nd Summarizing the above, the Constitutional Court found no contradiction
contested decree with the Czech constitutional order or the law, and therefore
for the annulment of the contested ordinance, as well as an alternative proposal to repeal
its individual provisions under § 70 paragraph. 2
Law on the Constitutional court.

Chairman of the Constitutional Court:

JUDr. Own hand

* Note. Ed .: Collection of Decisions of the Constitutional Court, volume 27,
judgment no. 105, pp. 177, promulgated under no. 405/2002 Coll.