2004/03/09 - Pl. ÚS 38/02: Fine Property Situation

09 March 2004

HEADNOTE

 

The

Constitutional Court does not understand equality to be absolute, but

relative (and, moreover, an accessory in relation to other fundamental

rights and freedoms). The concept of relative equality is closely

related to the concept of commensurate interference in fundamental

rights. It follows necessarily from the nature of a fine as a

property-based penalty that if it is to be customized nad commensurate,

it must reflect the punished party’s property situation. A fine in the

same amount imposed on a wealthy person will be laughable and

ineffective, whereas in the case of punishing a non-wealthy person, it

can be draconic and liquidatory. Thus, the principle of relative

equality is not violated if two persons in various situations are given

fines of different amounts, although the only difference in their

situations may be different property situations. The criterion of

examining the offender’s property situation when considering the amount

of a fine is necessary and complementary – of course, not because high

fines would be unenforceable (as the Chamber of Deputies claims), but

because of the risk of a “liquidatory” effect of a disproportionately

high fine. Fines, as punishment, must be differentiated in order to

function as a punishment and as a deterrent (individual and general

prevention).



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE REPUBLIC

 

The

Plenum of the Constitutional Court, comprised of JUDr. František

Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Dagmar

Lastovecká, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr. Jan Musil,

JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Pavel Varvařovský and

JUDr. Miloslav Výborný, ruled today on a petition from a group of

deputies of the Chamber of Deputies of the Parliament of the Czech

Republic seeking the annulment of the part of § 11 par. 3 of Act no.

129/2000 Coll., on Regions (Regional Establishment), as amended by of

Act no. 273/2001 Coll., Act no. 320/2001 Coll., Act no. 450/2001 Coll.

and Act no. 231/2002 Coll., which reads “as well as the proportionality

of the amount of the fine in view of the property situation of the

person who committed the unlawful conduct,” with the participation of

the Chamber of Deputies and of the Senate of the Parliament of the Czech

Republic, as follows:
 

The petition is denied.

 


REASONING
 

I.
 

A

group of 41 deputies of the Chamber of Deputies of the Parliament of

the Czech Republic (the “group of deputies” or the “petitioners”) filed

with the Constitutional Court a petition to annul the part of § 11 par. 3

of Act no. 129/2000 Coll., on Regions (Regional Establishment), as

amended by Act no. 273/2001 Coll., Act no. 320/2001 Coll., Act no.

450/2001 Coll. and Act no. 231/2002 Coll. (the “Act on Regions” or the

“Regional Establishment Act”), which reads “as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct,” on the

grounds of inconsistency with Art. 1, Art. 3 par. 1, Art. 7 par. 1 and

Art. 10 par. 2 and 3 of the Charter of Fundamental Rights and Freedoms

(the “Charter”). The group of deputies believes that passing that

provision of the Act on Regions created considerable interference in the

constitutionally guaranteed equality of rights (Art. 1 of the Charter),

the ban on discrimination (Art. 3 par. 1 of the Charter), the right to

privacy (Art. 7 par. 1 of the Charter) and the right to protection of

personality (Art. 10 par. 2 and 3 of the Charter).
 

The

group of deputies claims that “the aspect of the proportionality of the

amount of a fine to the property situation of the person who committed

the unlawful conduct is not expressed in other norms of the legal order

of the Czech Republic which govern administrative infractions.”

Therefore, it can not be permissible for the legal order to establish in

this way an inequality between persons who commit unlawful conduct in

various areas of public administration. Moreover, the intent of the

legislature (or the sponsor of the legal framework) is not clear from

the background report. The group of deputies also believes that even if

this intent were to strengthen the effectiveness of an imposed penalty

or an an effort to prevent excesses in discretion or arbitrariness by

administrative bodies – with the help of a statutory statement of the

decisive factors – this can not be done in an unconstitutional manner.
 

The

group of deputies also points to the lack of clarity in the term

“property situation,” the examination of which by an administrative body

it considers unacceptable primarily because this is impermissible

interference in the private sphere of individuals. The “perpetrator’s

situation” is alleged to be relevant only for imposing a penalty in

criminal law (see § 31 par. 1 of the Criminal Code), and is consistently

interpreted to mean the personal and family situation, not the property

situation. Moreover, in the opinion of the group of deputies,

examination of the property situation is not related to the subject

matter of the proceedings in which a penalty is imposed for unlawful

conduct, so this amounts to unconstitutional gathering of data about the

person who committed such conduct.
 

The

group of deputies believes that sufficient protection against any

possible harshness in the law which the contested legal framework is

apparently intended to prevent, exists in the review of decisions to

impose penalties through appeals (or, after 1 January 2003 by judicial

review of a decision in full jurisdiction); in contrast, the examination

of “property situation” by the Region as imposed by the Act creates a

basis for impermissible and unconstitutional unequal treatment of

persons who commit the same unlawful conduct. In view of the fact that

this could be a legal entity or a natural person, interpretation and

application of the term “property situation” would necessarily be

different (cf. a contrario judgment Pl. ÚS 47/95); this is the case,

e.g., in cases deciding “on the situation of an applicant for exemption

from court fees under § 138 of the CPC“.

 

The

group of deputies points out that under Art. 1 and Art. 3 par. 1 of the

Charter the fundamental rights and freedoms are guaranteed to all

people without differentiation, so even a statute may not disadvantage

or give privileges to a group of persons in setting the amount of a fine

for the same conduct. Such an action would be contra constitutionem, or

inconsistent with the cited provisions of the Charter. The group of

deputies again emphasizes that examination of one’s property situation

by an administrative body in connection with imposing a fine under Art. 7

par. 1 and Art. 10 par. 2 and 3 of the Charter would be

unconstitutional interference in privacy and unauthorized gathering of

data.
 


II.
 

The

Constitutional Court requested opinions on the petition to annul the

contested provision from the parties to the proceedings, the Chamber of

Deputies and the Senate of the Parliament of the CR, as well a the

bodies which issued the contested decision (§ 69 par. 1 of Act no.

182/1993 Coll., on the Constitutional Court). These entities provided

opinions on the petition.
…..

The Constitutional Court also

requested, under § 48 par. 2 in conjunction with § 49 par. 1 of the Act

on the Constitutional Court, an opinion from the Ministry of the

Interior of the CR.
 

In its

statement, the Ministry of the Interior of the CR (the “Ministry”)

pointed to the fact that the term “property situation” is explained in

the commentary to § 54 of the Criminal Code (source ASPI). It states

that this term appears fairly frequently in the legal order, especially –

in addition to § 83 of the Act on the Constitutional Court – in Act no.

140/1961 Coll., the Criminal Code, as amended by later regulations (the

“Criminal Code”). Under § 54 par. 1 of the Criminal Code, in assessing a

monetary penalty, the court shall take into account the personal and

property situation of the perpetrator in the elements of crimes

established in § 129 or § 256c of the Criminal Code. This term also

appears in Act no. 141/1961 Coll., on Criminal Court Procedure (the

Criminal Procedure Code), as amended by later regulations (the “Criminal

Procedure Code”), specifically in § 73a par. 2 let. a), in § 91 par. 1

and in § 309 par. 1, also in § 450 of Act no. 40/1964 Coll., the Civil

Code, as amended by later regulations (the “CC”), and finally also in

Art. 13 of the Convention on International Access to Courts

(announcement of the Ministry of Foreign Affairs no. 58/2001 of

Collection of Intenational Treaties). Therefore, the Ministry concludes

that if the fact that, under the law, the courts take the personal and

property situation of the perpetrator into account when assessing

monetary penalties was not found to be unconstitutional, then it should

also not be considered unconstitutional if a region, under § 11 par. 3

of the Act on Regions, when setting the amount of a fine – which it can

impose for violation of obligations set by the region’s legal

regulation, up to CZK 200,000 on a legal entity or natural person who is

an entrepreneur – takes the property situation of the person who

committed the unlawful conduct into account. The Ministry also pointed

to the fact that the by setting criteria for the amount of a fine in §

11 par. 3 of the Act on Regions (one of them is expressed by the words

“as well as the proportionality of the amount of the fine in view of the

property situation of the person who committed the unlawful conduct”),

the Act provides a guarantee that these criteria are binding in imposing

fines on all parties without differentiation, and thus when they are

used there is no unequal treatment of persons who commit the same

unlawful conduct.
 

Finally,

the Ministry added that when the new wording of § 11 par. 3 of the

government’s draft act was being prepared, the Constitutional Court’s

opinions pronounced in connection with various adjudicated cases were

taken into account, especially the opinions contained in Constitutional

Court judgment no. 405/2002 Coll.; the aim was to rule out such

interference in the property of the perpetrator of an infraction as a

result of which his property base for further entrepreneurial activity

would be “destroyed,” and also to eliminate serious impact not only on

the delinquent person but also on other members of his household. In

this regard one can also cite the decision of the Plenum of the

Constitutional Court file no. Pl. ÚS 47/95. The aim there was to prevent

imposition of a fine at a “liquidatory” level, which would be basically

the harshest instance of interference in a property situation. This

could also result in violation of Art. 26 par. 1 of the Charter, as well

as violation of the right to own property under Art. 11 par. 1 of the

Charter and Art. 1 of the Additional Protocol to the Convention for the

Protection of Human Rights and Fundamental Freedoms, under which states

may enforce such laws as they deem necessary to control the use of

property in accordance with the general interest or to secure the

payment of taxes or other contributions or penalties. It was also the

intention to prevent violation of Art. 1 of the Charter, because

imposing fines in a liquidatory amount would create a fundamental

inequality between subjects of law in the social sphere (cf.

Constitutional Court judgment no. 168/1995 Coll., or the decision of the

Plenum of the Constitutional Court, file no. Pl. ÚS 3/02).
 


III.

Analysis of the Matter
 

In

their petition, the petitioners seek the annulment of the part of § 11

par. 3 of the Act on Regions which reads “as well as the proportionality

of the amount of the fine in view of the property situation of the

person who committed the unlawful conduct.”

1. The Constitutional

Court learned from the record of the 47th session of the Chamber of

Deputies of the Parliament of the CR that on 26 March 2002 the draft of

Act no. 231/2002 Coll., which amends and supplements the Act on Regions

(the “draft of Act no. 231/2002 Coll.”), was approved by the necessary

majority of deputies (94 deputies voted in favor, 65 deputies against).

The Constitutional Court learned from the record of the 17th session of

the third term of the Senate of the Parliament of the CR that on 10 May

2002 the amending proposal from Senate committees to delete the part of §

11 par. 3 of the Act on Regions which reads “as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct” was approved

by the necessary majority of senators (55 senators voted in favor, none

against). However, the motion to return the draft of Act no. 231/2002

Coll. to the Chamber of Deputies as amended by the amending proposals

was not passed (out of 65 senators present, 20 were in favor, 4 against

). Under the Senate rules of order, the failure to pass a motion ended

discussion of the draft of Act no. 231/2002 Coll., and in accordance

with Art. 46 par. 3 and par. 1 of the Constitution of the CR the draft

of Act no. 231/2002 Coll. was passed upon the expiration of thirty days

(during which the Senate took no action). The draft of Act no. 231/2002

Coll. was then signed by constitutionally designated persons and duly

promulgated in the Collection of Laws in part 87, distributed on 16 May

2002.

2. On the substantive side, the petitioners specifically

allege (as is apparent from the petition) that the legal framework in

the cited part of § 11 par. 3 of the Act on Regions creates an

inequality in the legal order between persons who commit unlawful

conduct in various areas of public administration, and that (even if

this were to strengthen the effectiveness of the penalty imposed or

protection against exceeding the bounds of the administrative body’s

discretion) that this can not be done in an unconstitutional manner.

Therefore, they believe that the contested part of that provision is

inconsistent with the constitutional order of the CR, because its

passage results in violation of the constitutionally guaranteed equality

of rights (Art. 1 of the Charter), the ban on discrimination (Art. 3

par. 1 of the Charter), the right to privacy (Art. 7 par. 1 of the

Charter and the right to protection of personality (Art. 10 par. 2 and 3

of the Charter).

A. The Constitutional Court considered first of

all whether the part of § 11 par. 3 of the Act on Regions which reads

“as well as the proportionality of the amount of the fine in view of the

property situation of the person who committed the unlawful conduct” is

inconsistent with Art. 1 and Art. 3 par. 1 of the Charter, on which the

petitioners’ arguments rely.

a) The related provisions of § 11

par. 1 of the Act on Regions indicate that a region may impose a fine of

up to CZK 200,000 if a legal entity, or a natural person who is an

entrepreneur, violates an obligation (within the independent

jurisdiction or the transferred jurisdiction of the region) that is

imposed in a particular legal regulation (decree, directive) of the

region.
The text which the group of deputies proposes to be annulled

(i.e. the words “as well as the proportionality of the amount of the

fine in view of the property situation of the person who committed the

unlawful conduct”), is part of § 11 par. 3 of the Act on Regions, which

reads in its entirety: “In setting the amount of a fine under paragraph

1, the region shall take into account, in particular, the nature,

gravity, length and consequences of the unlawful conduct, as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct.” This

provision is tied to the abovementioned provision of § 11 par. 1 of the

Act, which reads: “A region may impose a fine of up to CZK 200,000 to a

legal entity or a natural person who is an entrepreneur (a “person”), if

it violated an obligation imposed by a legal regulation of the region.”

That provision is not contested.

b) Under Art. 1 of the

Charter, people are free, have equal dignity, and enjoy equality of

rights. Their fundamental rights and basic freedoms are inherent,

inalienable, non-prescriptible, and not subject to repeal. Under Art. 3

par. 1 of the Charter, everyone is guaranteed the enjoyment of her

fundamental rights and basic freedoms without regard to gender, race,

color of skin, language, faith and religion, political or other

conviction, national or social origin, membership in a national or

ethnic minority, property, birth, or other status.
 

It

is evident from the petition to annul the text in question that the

petitioners point to, among other things, the incompatibility of

applying the factor of one’s property situation to evaluating the

proportionality of the amount of a fine with the guarantee of

fundamental rights and freedoms under the cited provisions of Art. 1 and

Art. 3 par. 1 of the Charter.
 

In

the settled case law of the Constitutional Court, equality under Art. 1

of the Charter is not understood in the abstract, but in relation to

the dignity and rights of an individual, that is, without privileges,

and without discrimination (e.g. in property). This connection was

pointed out by the Constitutional Court of the CSFR, which said that

“the equality of citizens before the law was not understood as an

abstract category, but was always ascribed to a particular legal norm,

understood in the relationship between various entities, and so on. …

Relative equality, as it is conceived by all modern constitutions,

requires merely the removal of unjustified differences … Special norms

may set special criteria of equality for certain fields, which do not

follow from the general principle, because application of the principle

of equality does not set such precise bounds as to rule out any

discretion by those who apply them” (see judgment of the Constitutional

Court of the CSFR Pl. ÚS 22/92 In: Collection of Decisions.

Constitutional Court of the CSFR no. 1, year 1992, judgment no. 11, pp.

37-38).
 

The Constitutional

Court concludes that in § 11 par. 3 of the Act on Regions the words “in

particular” express the illustrative nature of the criteria which the

region takes into account (must take into account) when setting the

amount of a fine. The term “property” must be interpreted in conjunction

with the words “in particular” and “as well as,” so the Act does not

rule out the possibility of taking into account other aspects of the

prosecuted person’s situation than solely his property situation. The

Constitutional Court states that the wording chosen by the legislature

is not the most suitable in grammatical terms, but that it can be, in

accordance with the principle of minimizing interference by the

Constitutional Court, integrated into the legal order by a

constitutional interpretation of the contested norm. The fact that the

legislature, in its illustrative list of criteria which the region must

take into account when imposing fines, included objective criteria

(nature, gravity, length and consequences of the unlawful conduct) but

only one subjective criterion (the offender’s property situation) can

not be understood as a ban which prevents the region from appropriately

taking into account aspects other than property aspects of the

prosecuted person’s situation. In any case, the examination of one’s

property situation is established in the Czech legal order (similarly to

the legal orders of other developed countries) in a number of contexts

(not only as a criterion for the proportionality of an imposed penalty),

and in the opinion of the Constitutional Court it can not be

interpreted a limine as unconstitutional because it introduces

inequality in dignity and rights.
 

Insofar

as the petitioners claim that introducing the criterion of property

situation into the decision making on the amount of a penalty creates

possible discrimination based on property, i.e. violation of the

principle of equality, this claim must be rejected. The Constitutional

Court consistently rules that it does not understand equality to be

absolute, but relative (and, moreover, an accessory in relation to other

fundamental rights and freedoms). The concept of relative equality is

closely related to the concept of proportional interference in

fundamental rights. It follows necessarily from the nature of a fine as a

property-based penalty that if it is to be customized and proportional,

it must reflect the punished party’s property situation. A fine in the

same amount imposed on a wealthy person will be laughable and

ineffective, whereas in the case of punishing a non-wealthy person, it

can be draconic and liquidatory. Thus, the principle of relative

equality is not violated if two persons in various situations are given

fines of different amounts, although the only difference in their

situations may be different property situations. From a substantive

viewpoint (the purpose of the law) one can even conclude that the

criterion of examining the offender’s property situation when

considering the amount of a fine is necessary and complementary – of

course, not because high fines would be unenforceable (as the Chamber of

Deputies claims), but because of the risk of a “liquidatory” effect of a

disproportionately high fine. Fines, as punishment, must be

differentiated in order to function as a punishment and as a deterrent

(individual and general prevention). The Constitutional Court has

already said, some time ago, that “egalitarian universalism would

necessarily cause deeply non-functional social effects” (cf. judgment

no. Pl ÚS 4/95 – in: The Constitutional Court of the Czech Republic:

Collection of Decisions – volume 3. 1st edition. Praha C.H.Beck 1995, p.

215). The Constitutional Court gave detailed consideration to the issue

of the proportionality of property penalties in relation to the

personal situation of penalized persons in its Judgment no. Pl. ÚS 3/02,

to which it refers, and it considers it necessary to emphasize that in

that judgment too it stated that “a fine may be compatible with Art. 11

of the Charter and Art. 1 of the Protocol if it permits – at least to a

certain degree – taking into account the offender’s property situation”

(cf. Judgment no. Pl. ÚS 3/02 – In: the Constitutional Court of the

Czech Republic: Collection of Decisions – vol. 27, C.H.Beck 2002, p.

187).

B. The Constitutional Court emphasizes that the part of §

11 par. 3 of the Act on Regions which reads “as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct” is not

unconstitutional interference in the principle of equal rights. The

petitioners err when they claim that “the criterion of the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct is not used

in other norms in the legal order of the Czech Republic that govern

administrative infractions.” Examination of a particular person’s

situation is found numerous times in the legal order, e.g. in § 83 par. 1

of the Act on the Constitutional Court (“If it is justified by the

complainant’s personal and property situation, in particular if he does

not have sufficient funds to pay the costs of representation .. the

judge rapporteur shall rule on the complainant’s petition, filed before

oral proceedings, that the state pay his costs of representation in full

or in part.”), in § 31 par. 1 of the Criminal Code (“In setting the

kind of punishment and its degree the court shall take into account …

the possibility for rehabilitation and the situation of the

perpetrator.”), in § 54 par. 1 of the Criminal Code (“In assessing a

monetary penalty, the court shall take into account the perpetrator’s

personal and property situation …”), in § 73a par. 2 of the Criminal

Procedure Code (“accepting a monetary guarantee is permissible …,

together with taking into account the person and property situation of

the accused or the person who offers to deposit a monetary guarantee on

his behalf …”), in § 91 par. 1 of the Criminal Procedure Code (“Before

the first interrogation it is necessary to determine the identity of the

accused, ask about his family, property and earning possibilities and

previous punishments …”), in § 309 par. 1 of the Criminal Procedure Code

(apart from the conditions cited therein, approval of settlement and

stopping criminal prosecution is also possible in view of “the person of

the accused and his personal and property situation”), also in § 450 of

the Civil Code (permitting reducing compensation of damages in view of,

among other things, “the personal and property situation of the natural

person” who caused the damage, and “the situation of the natural person

who was damaged”), in provisions concerning support payments in the Act

on the Family – § 85 par. 2 (“according to his abilities, possibilities

and property situation”), § 89 (“abilities, possibilities and property

situation”), § 92 (“abilities, possibilities and property situation”).

In the area of imposing fines for administrative infractions in this

regard we can point to, e.g. Act no. 15/1998 Coll., on the Securities

Commission (§ 10 par. 4 – “When deciding on the choice of measures for

correction or penalties under this Act the Commission is required … to

apply proportionality as a starting point when imposing a fine in view

of the person’s property situation.”).
 

It

is evident that in a number of cases the legal order requires

examination of the personal, property and other situation of the person

concerned in the particular proceedings. Thus, in the Constitutional

Court’s opinion, statutory regulation allowing an examination of the

“situation” of a natural person doing business or a legal entity, as

such, is not unconstitutional and does not introduce inequality in

dignity and rights, as the petitioners believe. In this regard, the

Constitutional Court points out that knowledge of the situation of the

person in question (the offender) must also be assumed in the case of

judicial review of a regional body’s decision to impose a fine – a

review which the group of deputies believes is sufficient protection –

because if judicial review is to protect against possible harsh impact

of the law (especially in full jurisdiction), the court also can not do

without information about the situation of persons on whom the fine was

imposed.
 

The Constitutional

Court also does not believe that statutorily required examination of

the property situation of a legal entity or a natural person who is an

entrepreneur (§ 11 par. 1 of the Act on Regions), creates “a basis for

impermissible and unconstitutional unequal treatment of persons who

commit the same unlawful conduct” The group of deputies cites as grounds

the necessarily different interpretation and application of the term

“property situation,” especially because it can be applied to both a

legal entity and a natural person. In this regard the Constitutional

Court considers decisive that in the present matter a legal entity and a

natural person who is an entrepreneur (cf. § 11 par. 3 of the Act on

Regions) are similar persons, because the criterion for their status

must be their business activity and property situation arising from and

related to it. Therefore, the property situation must be interpreted in

the same way, and there is no reason to differentiate between these

persons. Therefore, in the given case – where imposing fines on legal

entities and natural persons who are entrepreneurs could not lead to

different interpretation of the term “property situation” in relation to

these persons – it is inappropriate for the group of deputies to argue

on the basis of the Constitutional Court’s opinion (a contrario) in file

no. Pl. ÚS 47/95 in fine (In: the Constitutional Court of the Czech

Republic: Collection of Decisions – volume 5. 1st Edition. Praha, C. H.

Beck 1997, p. 213).

C. Therefore, the Constitutional Court did

not conclude that examination of property situation by a regional body

would be unconstitutional interference in the privacy of a natural

person who is an entrepreneur or unauthorized gathering of data about

that person, and that it would thus violate Art. 7 par. 1 and Art. 10

par. 2 and par. 3 of the Charter; in any case the group of deputies does

not specify that in greater detail. Naturally, this is also not so with

legal entities. In this regard, one can point to Act no. 101/2000 Coll.

on Protection of Personal Data and Amending Certain Acts, as amended by

later regulations (“Act no. 101/2000 Coll.”), which in § 4 let. a) uses

the term “personal data” (basically making it possible to determine the

identity of the data subject) and in letter b) speaks of sensitive

data, which it expressly lists, but does not include property data.

Under § 5 par. 2 of that Act, an administrator (i.e. including regional

bodies – cf. § 3 par. 1 of the Act) may process ?cf. § 1 and § 4 let. e)

of the Act? personal data with the consent of the data subject. It may

process them without that consent ?§ 5 par. 2 let. a) of the Act?, if it

is performing processing set forth by a special act where necessary to

fulfil obligations specified by a special act (it cites some laws as

examples). The Constitutional Court considers that one such special act

is the Act on Regions (the contested part) and that the region’s actions

(weighing the proportionality of the fine amount in view of the

offender’s situation) are processing personal data under the cited

provision of Act no. 101/2000 Coll. A similar opinion for a range of

cases where there may not be consent of the data subject under § 5 par. 2

of Act no. 101/2000 Coll. can be found in specialized literature (cf.

Mates, P.: Ochrana osobních údajů. [Protection of Personal Data] Charles

University in Prague. Karolinum 2002, p. 48).
 

However,

as regards Act no. 101/2000 Coll., one can also argue first on a more

fundamental level. This Act defines its personal jurisdiction in § 1

(Subject Matter) so that it governs protection of the personal data of

natural persons. Thus, it does not protect legal entities. As regards

natural persons who are entrepreneurs – and who are subject to § 11 of

the Act on Regions, part of which is contested – one can conclude

likewise, because the distinguishing criterion for their status must be

their entrepreneurial activity. Thus, in the opinion of the

Constitutional Court, data about this activity (as in the case of legal

entities) do not enjoy protection under Act no. 101/2000 Coll..

For

all these reasons the Constitutional Court denied the petition from the

group of deputies to annul the part of § 11 par. 3 of the Act on

Regions which reads “as well as the proportionality of the amount of the

fine in view of the property situation of the person who committed the

unlawful conduct” under § 70 par. 2 of the Act on the Constitutional

Court.

Instruction: Decisions of the Constitutional Court can not be appealed.

Brno, 9 March 2004


 

Dissenting opinion
of JUDr. Vojen Güttler

In my opinion the Constitutional Court should have ruled as follows:
I.

The part of § 11 par. 3 of Act no. 129/2000 Coll., on Regions (Regional

Establishment), as amended by Act no. 273/2001 Coll., Act no. 320/2001

Coll., Act no. 450/2001 Coll. and Act no. 231/2002 Coll. which reads

“property” is annulled as of the day this judgment is promulgated in the

Collection of Laws.
II. The rest of the petition is denied.

I base this on the following reasons:

A)

1. I consider that the words “in particular” used in § 11 par. 3 of the

Act on Regions express the illustrative nature of the criteria which

the region takes (must take) into account when setting the amount of a

fine only visually (at first glance). It is impossible to see that the

term “property” is expressly raised as the only element for evaluating

the proportionality of the amount of the fine, so that any possibility

of taking other situations into account (despite the expression “in

particular”) appears to be a secondary one in comparison with the

leading and dominant aspect, which is the property situation. Thus, in

my opinion, this fact can not be overcome by an interpretation which

would make it sufficiently possible to appropriately take into account

any other situation of the prosecuted person than its property

situation; in other words, the text of the law – and its content –

shifts to a disproportionately less significant position the possibility

of the region (imposing the fine) to reflect the person’s situation

other than only the property situation. The express reference to (only)

the property situation (and no other) would in this regard lead to

discriminatory consequences, because – and the Constitutional Court has

already ruled on this – Art. 3 of the Charter creates a substantive law

guarantee of fundamental rights and freedoms and “is actually

complementary to the principle of equality and strives to create a state

of non-discrimination” (cf. Pl. ÚS 31/94 In: the Constitutional Court

of the Czech Republic: Collection of Decisions – volume 3. 1st Edition.

Praha, C. H. Beck 1995, p. 185). I believe that in this situation the

text of § 11 par. 3 of the Act on Regions is not sufficiently clear,

precise and foreseeable, in formal terms, so that in this regard the

generally recognized requirements for the term “statute” have not been

met.
 

Beyond these

considerations, one can add that the expression “in particular” can also

be interpreted only in relation to the first part of § 11 paragraph 3

of the Act on Regions (i.e. “In setting the amount of a fine under

paragraph 1, the region shall take into account, in particular, the

nature, gravity, length and consequences of the unlawful conduct”),

whereas the text after the conjunction “as well as” concerns only the

proportionality of the amount of the fine in view of the person’s

property situation. In terms of content, the text of this statutory

provision thus expressly focuses (only) on the property situation which

is to be taken into account when evaluating the proportionality of the

fine amount. Thus, the text of the statute is not sufficiently precise

and foreseeable in this regard either.
 

In

this situation, I consider that, although the petitioner did not

specifically raise this point, this makes this regulation inconsistent

with Article 1 of the Constitution of the CR, because a statutory

regulation thus formulated does not follow the principles of a state

governed by the rule of law.
 

One

can also conclude from these deliberations that the contested part of §

11 par. 3 of the Act on Regions, which reads “as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct” when it uses

the word “property,” is inconsistent with Art. 1 and Art. 3 par. 1 of

the Charter, because it basically does not reflect other situations

(i.e. of the persons who committed the unlawful conduct) than property

ones. In view of this, it is also inconsistent with the abovementioned

case law and recognized literature, because it is possible to conclude,

indirectly, that it affects differently individual affected persons in

the same conditions (see Pavlíček, V., Hřebejk, J., Knapp, V., Kostečka,

J., Sovák, Z.: Ústava a ústavní řád České republiky [The Constitution

and the Constitutional Order of the Czech Republic. part 2: Práva a

svobody [Rights and Freedoms], Linde, a.s. Prague 1995, p. 35),

quotation: “the norms of the legal order are supposed to impose

obligations or other disadvantages, e.g. punishments, and provide rights

and other advantages, to all persons, equally under the same

conditions.”
 

Therefore, the

Constitutional Court should have annulled the word “property” in § 11

par. 3 of Act no. 129/2000 Coll., on Regions (Regional Establishment),

as amended by Act no. 273/2001 Coll., Act no. 320/2001 Coll., Act no.

450/2001 Coll. and Act no. 231/2002 Coll..

2. Naturally, if the

Constitutional Court annulled the word “property” in the contested

provision, it could not avoid considering whether to conclude that there

was violation of the principle of equality and the ban on

discrimination without there being a violation of a particular

fundamental right guaranteed by the constitutional order. The

petitioners claim that the contested part of § 11 par. 3 of the Act on

Regions is inconsistent with the constitutionally guaranteed right to

privacy (Art. 7 par. 1 of the Charter) and with the right to protection

of personality (Art. 10 par. 2 and par. 3 of the Charter); however, the

Constitutional Court should not reach that conclusion – as is stated in

the following text. In this regard I point to the Constitutional Court’s

previous case law, under which the principles of the band on

discrimination and equality between people can be “fundamentally” or “as

a rule” violated if another particular fundamental right or freedom is

violated (cf. Pl. ÚS 4/95 In: The Constitutional Court of the Czech

Republic: Collection of Decisions – volume 3. 1st Edition. Prague, C. H.

Beck 1995, p. 209; Pl. ÚS 5/95 In: The Constitutional Court of the

Czech Republic: Collection of Decisions – volume 4. 1st Edition. Prague,

C. H. Beck 1996, p. 206). Thus, as regards violation of another

particular right or freedom, this is not always a necessary condition

(arg. “fundamentally,” “as a rule”). This is also supported by the

opinion of the recognized specialized literature (viz Sudre, F.:

Mezinárodní a evropské právo lidských práv. [International and European

Human Rights Law] Masaryk University Brno, European Information Center

of Charles University 1997, p. 223 – 224), under which the ban on

discrimination (non-discrimination) under Art. 14 of the Convention for

Protection of Human Rights and Fundamental Freedoms (the “Convention”)

has independent significance and the applicability of this article

should not be limited only to cases of concurrent violation of another

article of the Convention. As a result of its recognized independent

significance, “the non-discrimination clause can thus come into play

even if there was no violation of another guaranteed right … Article 14

thus permits condemning discrimination in the exercise of a right which

is itself observed.” In my opinion a situation arose in the present case

in which one can accent precisely this independent significance of the

protection of equality (Art. 1 of the Charter) and the band on

discrimination (Art. 3par. 1 of the Charter); thus, there is the

possibility, envisaged in the cited Constitutional Court case law (see

its abovementioned decisions, Pl. ÚS 4/95 and Pl. ÚS 5/95). This follows

particularly from the fact that, as already stated, the contested part

of § 11 par. 3 of the Act on Regions does not sufficiently meet the

generally recognized requirements for the term “statute,” which must be

appropriately precise, clear, and have foreseeable consequences. This is

a sufficiently fundamental defect that one can not fail to reflect it

in the present situation.

B) 1. Therefore, I emphasize that the

Constitutional Court should not have annulled the word “property” in §

11 par. 3 of the Act on Regions because examination of property

situation – including the other situation of the perpetrator of an

offense – is unconstitutional, but for the reason that it is provided in

the Act as a considerably dominant relevant element concerning the

situation of the person in question, which apparently can not be

overcome even through interpretation (see arguments above). In any case,

a reference to the situation of a particular person, or examination of

the situation of a particular person, can be found fairly frequently in

the legal order – as the Plenum of the Constitutional Court correctly

states on p. 8 of the judgment; e.g. in § 83 par. 1 of the Act on the

Constitutional Court (“If it is justified by the complainant’s personal

and property situation, in particular if he does not have sufficient

funds to pay the costs of representation .. the judge rapporteur shall

rule on the complainant’s petition, filed before oral proceedings, that

the state pay his costs of representation in full or in part.” ), in §

31 par. 1 of the Criminal Code (“In setting the kind of punishment and

its degree the court shall take into account … the possibility for

rehabilitation and the situation of the perpetrator.”), in § 54 par. 1

of the Criminal Code (“In assessing a monetary penalty, the court shall

take into account the perpetrator’s personal and property situation …”),

in § 73a par. 2 of the Criminal Code (“accepting a monetary guarantee

is permissible …, together with taking into account the person and

property situation of the accused or the person who offers to deposit a

monetary guarantee on his behalf …”), in § 91 par. 1 of the Criminal

Procedure Code (“Before the first interrogation it is necessary to

determine the identity of the accused, ask about his family, property

and earning possibilities and previous punishments …”), in § 309 par. 1

of the Criminal Procedure Code (apart from the conditions cited therein,

approval of settlement and stopping criminal prosecution is also

possible in view of “the person of the accused and his personal and

property situation”), also in § 450 of the Civil Code, also in § 450 of

the Civil Code (permitting reducing compensation of damages in view of,

among other things, “the personal and property situation of the natural

person” who caused the damage, and “the situation of the natural person

who was damaged”), in provisions concerning support payments in the Act

on the Family – § 85 par. 2 (“according to his abilities, possibilities

and property situation”), § 89 (“abilities, possibilities and property

situation”), § 92 (“abilities, possibilities and property situation”).

It is evident that in a number of cases the legal order requires

examination of the personal, property and other situation of the person

concerned in the particular proceedings. personal, property and other

situation of the person concerned in the particular proceedings. Thus,

in my opinion, statutory regulation allowing an examination of the

“situation” of a natural person doing business or a legal entity, as

such, is not unconstitutional and does not introduce inequality in

dignity and rights, as the petitioners believe. In this regard – in

accordance with my opinion – the Plenum also pointed out that knowledge

of the situation of the person in question (the offender) must also be

assumed in the case of judicial review of a regional body’s decision to

impose a fine – a review which the group of deputies believes is

sufficient protection – because if judicial review is to protect against

possible harsh impact of the law (especially in full jurisdiction), the

court also can not do without information about the situation of

persons on whom the fine was imposed.
 

The

fact that the property situation of the person in question, as well as

his other (personal) situation may be relevant to the amount of the fine

can also be concluded from the Constitutional Court judgment Pl. ÚS

3/02, which says in the introduction that “The statutorily provided

minimum amount of a fine must be set so that it permits, at least to a

certain degree, taking into account the property and personal situation

of the offender” (cf. Collection of Decisions of the Constitutional

Court – vol. 27, p. 177). That case concerned the imposition of a fine

under § 106 par. 3 of Act no. 50/1976 Coll. (the Building Act), as

amended by later regulations, in which the Constitutional Court annulled

the words “from CZK 500,000.”

2. Further, I do not believe –

also in accordance with the Plenum’s opinion – that the statutorily

imposed examination of the situation of a legal entity or a natural

person who is an entrepreneur (§ 11 par. 1 of the Act on Regions), that

is the personal, family, property, etc. situation, creates “a basis for

impermissible and unconstitutional unequal treatment of persons who

commit the same unlawful conduct.” The group of deputies cites as

grounds the necessarily different interpretation and application of the

term “property situation,” especially because it can be applied to both a

legal entity and a natural person. In this regard I consider decisive

that in the present matter a legal entity and a natural person who is an

entrepreneur (cf. § 11 par. 3 of the Act on Regions) are similar

persons, because the criterion for their status must be their business

activity and property situation arising from and related to it.

Therefore, the property situation must be interpreted in the same way,

and there is no reason to differentiate between these persons.

Therefore, in the given case – where imposing fines on legal entities

and natural persons who are entrepreneurs could not lead to different

interpretation of the term “property situation” in relation to these

persons – it is inappropriate for the group of deputies to argue on the

basis of the Constitutional Court’s opinion (a contrario) in file no.

Pl. ÚS 47/95 in fine (in: The Constitutional Court of the Czech

Republic: Collection of Decisions – volume 5. 1st Edition. Praha, C. H.

Beck 1997, p. 213).

[3. Note: Insofar as I agree in the above

arguments with the opinion of the Plenum of the Constitutional Court, I

do so only because, in my opinion, the petition should have been partly

denied, with the exception of the word “property.” This is discussed

further under let. C) of this dissenting opinion.]

C. Therefore,

I did not conclude that examination of the offender’s situation (i.e.

personal, family, property, etc.) by a regional body would be

unconstitutional interference in the privacy of a natural person who is

an entrepreneur or unauthorized gathering of data about that person, and

that it would thus violate Art. 7 par. 1 and Art. 10 par. 2 and par. 3

of the Charter; in any case the group of deputies does not specify that

in greater detail. Naturally, this is also not so with legal entities.

In this regard, one can point to Act no. 101/2000 Coll. on Protection of

Personal Data and Amending Certain Acts, as amended by later

regulations (“Act no. 101/2000 Coll.”), which in § 4 let. a) uses the

term “personal data” (basically making it possible to determine the

identity of the data subject) and in letter b) speaks of sensitive data,

which it expressly lists, but does not include property data. Under § 5

par. 2 of that Act, an administrator (i.e. including regional bodies –

cf. § 3 par. 1 of the Act) may process ?cf. § 1 and § 4 let. e) of the

Act? personal data with the consent of the data subject. It may process

them without that consent ?§ 5 par. 2 let. a) of the Act?, if it is

performing processing set forth by a special act where necessary to

fulfill obligations specified by a special act (it cites some laws as

examples). I consider that one such special act is the Act on Regions

(the contested part) and that the region’s actions (weighing the

proportionality of the fine amount in view of the offender’s situation)

are processing personal data under the cited provision of Act no.

101/2000 Coll. A similar opinion for a range of cases where there may

not be consent of the data subject under § 5 par. 2 of Act no. 101/2000

Coll. can be found in specialized literature (cf. Mates, P.: Ochrana

osobních údajů. [Protection of Personal data] Charles University in

Prague. Karolinum 2002, p. 48).
 

However,

as regards Act no. 101/2000 Coll., one can also argue first on a more

basic level. This Act defines its personal jurisdiction in § 1 (Subject

matter) so that it governs protection of the personal data of natural

persons. Thus, it does not protect legal entities. As regards natural

persons who are entrepreneurs – and who are subject to § 11 of the Act

on Regions, part of which is contested – one can conclude likewise,

because in terms of their status the distinguishing criterion must be

their entrepreneurial activity. Thus, in my opinion, data about this

activity (as in the case of legal entities) do not enjoy protection

under Act no. 101/2000 Coll..
 

For

all these reasons the Constitutional Court should have denied the

petition from the group of deputies, only concerning the remainder of

the text of the contested regulation (i.e. the words “as well as the

proportionality of the amount of the fine in view of the property

situation of the person who committed the unlawful conduct”).

Brno, 9 March 2004

       

Dissenting opinion

of JUDr. Dagmar Lastovecká

Imposing

a fine for violation of an obligation imposed by a region’s legal

regulation is generally subject to the regions’ discretion (through use

of the term “may” in § 11 par. 1 of the Regional Establishment Act). In a

situation where the region implements administrative law

responsibility, the law provides criteria for administrative

punishments. One can not very well substitute the possibility of

considering whether to apply the responsibility at all with the

circumstances of customizing a punishment. In the present case,

therefore, it is necessary to review the matter from the point of view

of a situation where the administrative body, upon consideration,

concluded that the responsibility would be applied. Therefore, I believe

that it is necessary to independently review § 11 par. 3 of the

Regional Establishment Act from a constitutional viewpoint, as is

indicated by the proposed judgment in the petition filed in this matter.


 

For purposes of a

customizing criterion in administrative punishment in relation to the

objective aspect of an administrative offense committed by violation of a

region’s legal regulation, § 11 par. 3 of the Regional Establishment

Act gives an administrative body, in an illustrative list, the

obligation to take into account the nature, gravity, length and

consequences of the unlawful conduct. In addition, the part of that

provision which is contested in this case requires the administrative

body, in relation to the subject matter of the administrative offense,

to take into account only the offender’s property situation. The

sentence structure of this provision indicates that the cited part of

the sentence is not part of the illustrative list introduced by the

words “in particular.” Concluding that the criterion of property

situation is illustrative would be inconsistent with the linguistic

expression of the provision. Even if the legislature intended to

understand that criterion as part of the illustrative list, and did not

do so only as a result of unsuitable legislatively-technical

construction of the provision, its “intent” is irrelevant, because the

substantial element is the objective situation which is introduced by

the text of the legal regulation. The opposite approach would be

inconsistent with the principle which the Constitutional Court

pronounced in its resolution of 1 March 1995 in file no. II. ÚS 109/94

(with reference to the judgment of the Supreme Administrative Court of

19 November 1923, no. 19.666, published in the Bohuslav Collection as

no. A 2885/23, p. 2078), according to which: “Anything which can not be

interpreted from the statutory text itself, using interpretive rules,

can not be considered to be the expressed intent of the legislature.”

From a systematic viewpoint it is likewise necessary to conclude that

the content of the term “property” has a literal meaning, because when

compared with other provisions of the Czech legal order in which the

phrase “property situation” appears, one can not defend the opinion that

the word “property” permits a broad interpretation, which would also

permit taking into account other circumstances, even though closely

related to the property situation. Even in view of this fact it must e

concluded that § 11 par. 3 of the Regional Establishment Act, whose

meaning is unambiguous, can not permit a constitutional interpretation

which would allow weighing criteria of customizing a punishment not

expressly provided in it in relation to the subject of unlawful conduct.
 

A

penalty which is the consequence of liability for violation of an

obligation imposed by a public law norm (on its basis) should be

understood as “evaluation” of the unlawfulness of interference into a

legally protected interested. If the legal norm governing customization

of a penalty in relation to the subject of unlawful conduct assumes it

will be necessary to take into account only the offender’s property

situation, it thus makes the consequence of unlawful conduct largely

dependent on precisely that criterion. Evaluation of the intensity of

interference into a legally protected interest is thus causally related,

above all, with the property situation of the penalized person; this

(not taking into account other circumstances on the part of the person)

can lead to suppressing the evaluation of the objective aspect of the

administrative infraction. As a result of this situation, the degree of

administrative law liability is secularized, depending on the material

situation of the persons committing unlawful conduct, which denies its

basic purpose, i.e. setting a degree of liability according to the

socially acceptable value of a legally protected interest which was

interfered with, with the use of all generally recognized criteria for

imposing a punishment. Therefore, in my opinion it must be said that

transferring the customizing criteria of an administrative punishment

largely into the area of property situation creates inequality in

rights, because that method of deciding on a penalty makes liability

dependent primarily on property situation. The provision of § 11 par. 3

of the Regional Establishment Act can lead to discrimination through

this disproportionately unilateral subjectivity of liability for

offenses. Therefore, I believe that the reviewed provision creates

inconsistency with Art. 1 and Art. 3 par. 1 of the Charter of

Fundamental Rights and Freedoms.
 

The

Constitutional Court previously considered the circumstances of setting

a property penalty, taking into account the offender’s property

situation in its judgment of 13 August 2002, file no Pl. ÚS 3/02 in

connection with a petition to annul part of § 106 par. 3 of Act no.

50/1976 Coll., as amended by later regulations, when it annulled the

words „from CZK 500,000” in that provision. In that case the

Constitutional Court reviewed possible interference in the

constitutionally guaranteed rights of the offender as a result of

limiting the discretionary powers of an administrative body by raising

the lower limit of a penalty, and stated that any setting of the lower

limit of a penalty must be set so that imposing a fine, even if only a

minimal one, would not have a liquidatory effect on the offender. In

terms of meeting this requirement from the constitutional law review in

that case, it followed that the criteria for customizing administrative

law liability should permit taking into account both the circumstances

of the objective aspect of the offense, as well as circumstances

concerning the person of the offender, including his property situation.


 

The judgment’s reasoning

refers to a number of provisions in the Czech legal order in which the

term “property situation” appears. These primarily reflect the need to

consider property situation in connection with evaluating the scope of a

substantive law entitlement (e.g. § 85 par. 2 of the Act on the

Family), or, in a procedural legal norm, impose an obligation on a body

to determine a circumstance (e.g. § 91 par. 1 of the Criminal Procedure

Code). Analysis of these provisions is appropriate in a situation where

it establishes the legal regime for punishment. From that point of view,

one can also consider §§ 53 and 54 of the Criminal Code and § 10 par. 4

of Act no. 15/1998 Coll., on the Securities Commission and amending and

supplementing other acts, as amended by later regulations. The first

named provisions regulate the legal regime of imposing a monetary fine.

It must first be emphasized that a monetary punishment is an alternative

punishment, and the court weighs, according to the nature of a specific

case (§ 53 par. 1 to 3 of the Criminal Code) whether there is statutory

scope to impose it. The content of § 54 par. 1 of the Criminal Code

indicates that property situation is only one of the criteria for

customizing a monetary punishment in relation to the perpetrator of a

crime; therefore, the statutory provision allows meeting the requirement

of proportionality, as mentioned above. Moreover, the Criminal Code

accents the possibility of implementing a monetary punishment; thus it

deliberates from the viewpoint of potential execution of the decision, a

consideration which can not be derived from the content of § 11 par. 3,

and it must be reviewed as part of the conditions for execution of a

decision (for example, by considering the possibility of stopping

execution of a decision on some of the grounds contained in § 268 par. 1

of the Civil Procedure Code). As regards § 10 par. 4 of Act no. 15/1998

Coll., it must be said that this provision contains the offender’s

property situation as a criterion for customizing a penalty in the form

of a fine, but this penalty is only one of a series of possible steps

for removing or penalizing the unlawful situation. Therefore, the

purpose and nature of this provision are not the same as the purpose and

nature of § 11 par. 3 of the Regional Establishment Act, where a fine

is the only instrument for reparation or penalization available to

address conflict with the region’s regulations.
 

In

this situation, I believe that the Constitutional Court should have

ruled on the petition from the group of deputies of the Parliament of

the Czech Republic seeking annulment of the part § 11 par. 3 of Act no.

129/2000 Coll., on Regions (Regional Establishment), as amended by Act

no. 273/2001 Coll., Act no. 320/2001 Coll., Act no. 450/2001 Coll. and

Act no. 231/2002 Coll., which reads “as well as the proportionality of

the amount of the fine in view of the property situation of the person

who committed the unlawful conduct” by annulling the word “property” in

the contested provision and denying the rest of the petition.

Brno, 9 March 2004