2005/08/01 - IV. ÚS 31/05: Disciplinary Fine

01 August 2005

HEADNOTE

The

amount of a disciplinary fine must always be set in view of the

principle of proportionality, because when giving a fine there is a

conflict between the constitutionally protected value of ensuring the

proper conduct of criminal proceedings and the right to peaceful

enjoyment of property. In order for the interference by the state

authority in the right to property not to violate the requirement to

preserve the essence and significance of constitutionally guaranteed

human rights and freedoms, it is necessary to take into account, among

other things, the importance of the smooth conduct and fulfillment of

the aim of criminal proceedings, the intensity with which they will be

endangered by non-compliance with the summons issued by the body active

in criminal proceedings, as well as the gravity of the conduct

concerning which the criminal proceedings are conducted. If we weigh the

penalty for the harmful conduct concerning which the criminal or

misdemeanour proceedings are conducted, and the penalty for violating

procedural obligations in investigating the conduct, i.e. a

transgression of much lower gravity, it is evident that imposing a fine

several times higher for a less important transgression of a procedural

nature can not meet the test of proportionality.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


A

Panel of the Constitutional Court, composed of its Chairwoman Michaela

Židlická, judge Miloslav Výborný and Eliška Wagnerová decided on 1

August 2005 on the constitutional complaint of J. L., represented by

Mgr. P. D., attorney, against a decision by the state prosecutor of the

District State Prosecutor’s Office in Žďár nad Sázavou of 22 November

2004, ref. no. Zt 468/2004-19, and against a decision by the police

commissioner of the District Directorate of the Police of the CR,

Criminal Police and Investigation Service, in Žďár nad Sázavou of 7

October 2004, ref. no. ORZR-592/KPV-OOK-2004-9, with the participation

of 1) the District State Prosecutor’s Office in Žďár nad Sázavou, 2)

District Directorate of the Police of the CR, Criminal Police and

Investigation Service, in Žďár nad Sázavou, as parties to the

proceedings, and with the consent of the parties, without a hearing, as

follows:
 

The

decision of the state prosecutor of the District State Prosecutor’s

Office in Žďár nad Sázavou of 22 November 2004, ref. no. Zt 468/2004-19,

and the decision of the police commissioner of the District Directorate

of the Police of the CR, Criminal Police and Investigation Service, in

Žďár nad Sázavou of 7 October 2004, ref. no. ORZR-592/KPV-OOK-2004-9,

are annulled.

 


REASONING
 

In

his timely filed constitutional complaint the petitioner seeks the

annulment of the abovementioned decisions by criminal prosecution

bodies, on the grounds that they violated his right to a fair trial,

guaranteed by Article 36 par. 1 of the Charter of Fundamental Rights and

Freedoms (the “Charter”) and Article 6 par. 1 of the Convention for the

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

The petitioner also believes that there was an unconstitutional

violation of his right to a defense, guaranteed by Article 40 par. 3 of

the Charter and guaranteed by Article 6 par. 3 let. b) and c) of the

Convention, as a so-called minimum right of a person accused of a

criminal offence, in connection with Article 3 par. 3 of the Charter,

under which nobody may be caused detriment to his rights merely for

asserting his fundamental rights and basic freedoms.
 

From

the requested investigation file of the District Directorate of the

Police of the CR, Criminal Police and Investigation Service, in Žďár nad

Sázavou, no. ČTS: ORZR-592/KPV-OOK-2004, and from the file of the

Commission for Handling Misdemeanours in Nové Město na Moravě, no.

MUNMNM/32866/2004, the Constitutional Court determined the following:
 

The

decision by the police commissioner of the District Directorate of the

Police of the CR, Criminal Police and Investigation Service, in Žďár nad

Sázavou, of 23 September 2004, ref. no. ORZR-592/KPV-OOK-2004-1, opened

criminal proceedings against the petitioner for the crime of

unjustified violation of the right to a house, apartment, or

non-residential space under § 249a par. 2 of the Criminal Code, which he

was alleged to have committed when, as owner of the building at

Palackého náměstí no. 32 in Nové Město na Moravě, during construction

work in the period from 14 August 2004 to 30 August 2004 he had gravel

brought into the passageway into the building, which made it difficult

to impossible for employees of the company D., s.r.o., which resides in

that building, to enter into the building and have access to their

workplace, even though he knew that there was an easement on that

property to the benefit of the company D., s.r.o., which consisted of

permitting access on foot and by vehicle, and that permitting access to

the premises of the company D., s.r.o., was one for the conditions in

the building permit issued by the City Office in Nové Město na Moravě

for repairs to the building. The mailing containing the decision to

begin criminal prosecution included a summons to the petitioner to

appear for questioning on 5 October 2004, and notice that he would have

an opportunity to study the investigation file. The petitioner received

the mailing on 4 October 2004, and filed a complaint against the

decision to begin criminal prosecution the next day. As the petitioner

did not appear for questioning on 5 October 2004 (without providing an

adequate excuse, according to the police commissioner), the police

commissioner, applying § 66 par. 1 of the Criminal Procedure Code, by

decision of 7 October 2004, ref. no. ORZR-592/KPV-OOK-2004-9, imposed a

disciplinary fine on him in the amount of CZK 7,000; The petitioner

filed a complaint against this decision. On the same day, the police

commissioner presented the file to the appropriate state prosecutor for a

ruling on the complaint until a decision was made to begin criminal

prosecution, and summoned the petitioner for questioning on 14 October

2004. The state prosecutor of the District State Prosecutor’s Office in

Žďár nad Sázavou, by decision of 22 November 2004, ref. no. Zt

468/2004-16, cancelled the decision to begin criminal proceedings, and

directed the police body to review the matter and make a new decision.

In her reasoning she stated that the petitioner’s conduct did not reach

the degree of social danger required by the Criminal Code, and therefore

could not be classified as a crime, but should be classified as an

misdemeanours. The state prosecutor of the District State Prosecutor’s

Office in Žďár nad Sázavou denied the complaint against the decision to

impose a disciplinary fine, as unjustified, by resolution of 22 November

2004, ref. no. Zt 468/2004-19. The state prosecutor did not consider

adequate the petitioner’s defense, that on the day in question he was

unable to reach the police commissioner by telephone to provide an

excuse for his absence; in her opinion, the petitioner could have done

this by a subsequent written apology, or in person, because he was

present in Žďár nad Sázavou on that day. She rejected the petitioner’s

objection that he did not have enough time to prepare for questioning,

on the grounds that § 90 et seq. of the Criminal Procedure Code, in view

of the quite different procedural status of someone who is accused and

someone who has been indicted, does not contain any deadline similar to

the deadline provided in § 198 par. 1 of the Criminal Procedure Code.
 

On

3 December 2004 the petitioner’s matter was transferred to the

Commission for Handling Misdemeanours in Nové Město na Moravě. The

decision of the Commission for Handling Misdemeanours of 9 March 2005

found the petitioner guilty of committing an misdemanour against civil

coexistence under § 49 par. 1 let. c) of the Act on Misedemeanours, and

he was fined CZK 2,000. The misdemeanour proceedings have not yet been

completed with legal effect, because the petitioner has filed an appeal.
 

The

petitioner cites Constitutional Court judgment Pl. US 15/04 of 30

November 2004, in which the Plenum of the Constitutional Court took the

position that a disciplinary fine is a criminal charge under Article 6

par. 1 of the Convention, but in terms of the existence of effective

procedural guarantees or remedies § 146 par. 2 of the Criminal Code

suffers from a constitutional defect, as it does not permit exercise of

the right to judicial protection where the body filing charges is the

state prosecutor supervising the preliminary proceedings. Moreover,

persons affected by this provision are in a constitutionally

unacceptably unequal procedural position compared to persons who were

given a disciplinary fine by the chairman of a court panel. As regards

his non-compliance with the summons to appear for questioning, the

petitioner states that he did not receive the mailing until 4 October

2004 in the afternoon, after returning from work, and therefore could

not choose his defense counsel until 5 October 2004, when he was also

supposed to appear for questioning, which did not provide him adequate

time to prepare a defense (conferring with counsel, viewing the file

before questioning). In conclusion the petitioner adds that all the

conduct for which he was given a disciplinary fine was merely the

exercise of his right to a defense.
 

The

police commissioner of the Police of the CR, Criminal Police and

Investigation Service, in Žďár nad Sázavou, in his statement on the

constitutional complaint, described the course of the criminal

proceedings in the matter in question.
 

The

state prosecutor of the District State Prosecutor’s Office in Žďár nad

Sázavou states that she is familiar with Constitutional Court judgment

Pl. US 15/04, but at the time that the decision in question was issued

that judgment was not and could not have been known, and therefore she

reviewed the contested decision, under § 147 par. 1 let. a), b) of the

Criminal Procedure Code, in accordance with the legal order of the Czech

Republic then in effect. The statement further provides that if

telephone communication failed, the petitioner had other opportunities

to excuse his absence from questioning, but did not take advantage use

of any of them, and his efforts to excuse himself from the questioning

could not, even with the benefit of the doubt, be considered adequate.

The state prosecutor adds that the petitioner was not given a penalty

for not appearing for questioning, but primarily for not providing an

excuse, even subsequently.
 

The

Constitutional Court weighed the facts determined above, and concluded

that the constitutional complaint is justified, although also for a

reason other than those stated by the petitioner.
 

With

the consent of the parties, the Constitutional Court, under § 44 of the

Act on the Constitutional Court, waived a hearing because it could not

be expected to provide further clarification of the matter.
 

The

Constitutional Court has already emphasized many times that it is not

authorized to intervene in the decision making of the general courts; it

is not the apex of that court system (Art. 81, Art. 90 of

Constitutional Act no. 1/1993 Coll.), and therefore can not assume the

right to supervisory review of their activities; of course, this is only

insofar as these courts conduct their activities in accordance with

Chapter Five of the Charter of Fundamental Rights and Freedoms (cf.

judgment Pl. US 23/93, Collection of Decisions, vol. 1, p. 41). This

conclusion applies – if the abovementioned prerequisite is met – not

only to the autonomous status of the general courts, but is also

regularly applied to other state authorities, including the Police of

the CR and the State Prosecutor’s Office.
 

The

European Court of Human Rights has consistently ruled that the

obligation of the parties under Article 1 of the Convention to secure

the rights and freedoms specified in the Convention for everyone subject

to their jurisdiction requires that states ensure that individuals

subject to their jurisdiction will not be exposed to bad treatment,

including bad treatment by other individuals. States have a positive

obligation to conduct proper investigations (cf. the decision M.C. v.

Bulgaria, no. 39272/98, published in the Reports of Judgments of the

European Court of Human Rights 1/2004, p. 38). Criminal proceedings

fulfill the constitutionally protected value of securing public safety

and protection of the rights of others, especially persons injured by a

crime, but they also have, not least, preventive and educational

importance in relation to perpetrators of crimes. In order to ensure the

smooth conduct of criminal proceedings, punishment of the perpetrator,

and compensation of the detriment suffered by the victim, it is

essential for the bodies active in criminal proceedings to have at their

disposal effective means which will make it possible for criminal

proceedings to fulfill their mission if the accused does not cooperate

or even resists. Of course, if such means of compulsion are used, it is

necessary for that to occur only in situations and within bounds

specified by law, and in a manner specified by law. The legal regulation

(here, the Criminal Procedure Code) must be construed so as to preserve

as much as possible the essence and significance of human rights and

freedoms; this aspect must also be taken into account by bodies active

in criminal proceedings when implementing a specific statutory provision

in practice.
 

One of these

means of compulsion is the institution of a disciplinary fine, regulated

by § 66 of the Criminal Procedure Code. The Constitutional Court,

without revisiting the reasons for the unconstitutionality of the legal

framework for review of disciplinary fines stated in judgment Pl. US

15/04 (published in the Collection of Laws as no. 45/2005 Coll.),

repeats that disciplinary fines are penalties for misconduct behaviour,

they are provided by law and intended to be preventive and at the same

time repressive measures taken by the state authority. They can be

issued on a discretionary basis, so it is not ruled out that their

imposition on various subjects may have a discriminatory effect (cf.

judgment Pl. US 28/98, Collection of Decisions, vol. 16, no. 161). Under

§ 66 par. 1 of the Criminal Procedure Code, a disciplinary fine may be

given to anyone who, despite a previous warning, cancels proceedings or

behaves insultingly to a court, state prosecutor, or police body, or

who, without a sufficient excuse, fails to obey an order or fails to

comply with a notice which was given to him under the Criminal Procedure

Code. In order for the consideration of a disciplinary fine by a body

active in criminal proceedings not to conflict with the principle of

constitutional protection of human rights and freedoms, it must always

be indisputably and clearly proved that such circumstances have arisen

(cf. judgment III. US 766/2000, Collection of Decisions, vol. 22, no.

94).
 

Although, where there

are grounds for imposing a disciplinary fine, the Constitutional Court

does not restrict itself in reviewing whether one of the abovementioned

circumstances existed, it ordinarily does not intervene in the specific

amount of a disciplinary fine, if it does not exceed the statutory limit

of CZK 50,000; of course, only provided that the amount of the fine is

not clearly disproportionate to the gravity of the situation for which

it was given. The amount of a disciplinary fine must always be set in

view of the principle of proportionality, because when giving a fine

there is a conflict between the constitutionally protected value of

ensuring the proper conduct of criminal proceedings and the right to

peaceful enjoyment of property. In order for the interference by the

state authority in the right to property not to violate the requirement

to preserve the essence and significance of constitutionally guaranteed

human rights and freedoms, it is necessary to take into account, among

other things, the importance of the smooth conduct and fulfillment of

the aim of criminal proceedings, the intensity with which they will be

endangered by non-compliance with the summons issued by the body active

in criminal proceedings, as well as the gravity of the conduct

concerning which the criminal proceedings are conducted. The

Constitutional Court found that in the petitioner’s case the amount of

the disciplinary fine does not meet the criterion of proportionality.

Although the state prosecutor expressed the binding legal opinion that

the petitioner’s conduct was to be classified as an misdemeanour, she

did not take this fact into account in any way when reviewing the amount

of the disciplinary fine. In proceedings on the misdemeanour

proceedings, the petitioner was given a fine of CZK 2,000, and the

statutory maximum amount is CZK 3,000. If we weigh the penalty for the

harmful conduct concerning which the criminal or misdemeanour

proceedings are conducted, and the penalty for violating procedural

obligations in investigating the conduct, i.e. a transgression of much

lower gravity, it is evident that imposing a fine several times higher

for a less important transgression of a procedural nature can not meet

the test of proportionality. Secondarily, one can also argue on the

basis of § 60 par. 2 of Act no. 200/1990 Coll., on Misedemeanours, which

permits, in a similar case (failure to appear to provide an

explanation), imposing a fine with a maximum amount of CZK 1,000; here

too, in view of the amount of the fine, a transgression of a procedural

nature is seen as less serious, and is therefore penalized less

strictly. The local police commissioner’s approach to the criminal

prosecution and the state prosecutor’s approach to the question of the

disciplinary fine give the impression that they sought to punish the

petitioner using quite inappropriate means. Nonetheless, the exercise of

state power must be subject to the principle of equality before the

law, and a body of state power may not give in to emotions in its

decision making.
 

The

Constitutional Court comments on the state prosecutor’s statement that

the petitioner was not penalized for failure to appear for questioning,

but for not presenting a proper excuse. However, the purpose of a

disciplinary fine is for the petitioner to appear for questioning, and

therefore it is the failure to obey that summons that is penalized, not

the failure to submit an excuse. An excuse, if it provides justifiable

grounds, merely serves as a circumstance which rules out imposition of a

disciplinary fine; however, it can not be compelled through the threat

or actual imposition of a disciplinary fine. The accused does not have a

statutory obligation to provide an excuse, though of course there is

the risk that he will be penalized for the failure to act which he could

have justified through providing an excuse.
 

The

Constitutional Court must also state its reservations about the police

commissioner’s actions. The proceedings took place in reverse order;

only after all available evidence was gathered was the petitioner sent

the decision to begin criminal prosecution. The Constitutional Court

also criticizes the police commissioner for simultaneously sending the

petitioner the decision to begin criminal prosecution, the summons to

appear for questioning, and the notice that he would have an opportunity

to study the file. By summoning the petitioner for questioning on the

day following delivery of the documents, the police commissioner gave

the petitioner very little time to contact defense counsel and organize

his work and personal matters so that he would be able to appear for

questioning. In view of the circumstances of the case, such a short time

period is disproportionate, as this was not an urgent matter which

could not be postponed. It is also not acceptable for the petitioner’s

to be informed about the existence of preliminary proceedings through

delivery of the decision to begin criminal prosecution and about events

connected with termination of the preliminary proceedings (the summons

to study the file) at essentially the same moment. This procedure can be

seen as an effort by the Police of the CR to make its work easier, and a

step which, at a minimum, makes the accused’s opportunity to

effectively defend himself more difficult (if not impossible). The

police commissioner’s actions in the petitioner’s matter were in direct

conflict with Article 40 par. 3 of the Charter and Article 6 par. 3 let.

b) of the Convention, and thus applied state power inconsistently with

Article 2 par. 3 of the Constitution.
Because the actions of bodies

active in criminal proceedings and the decisions contested by the

constitutional complaint violated the petitioner’s right to a fair

trial, guaranteed by Article 36 par. 1 of the Charter and Article 6 par.

1 of the Convention, as well as the right to peaceful enjoyment of his

property, guaranteed by Article 1 of the Protocol to the Convention and

Article 11 par. 1 of the Charter, the Constitutional Court, pursuant to §

82 par. 3 let. a) of Act no. 182/1993 Coll., on the Constitutional

Court, as amended, annulled the contested decisions.

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

Brno, 1 August 2005