2002/08/13 - Pl. ÚS 3/02: Minimum Amount of a Fine

13 August 2002



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, in this case so that imposing a

fine, even if only in the minimum amount, will not have a liquidatory

effect on the offender, or will not mean that business activity will

lose its purpose for a considerable period (several years). If this

principle is not observed, there is such interference in the property

rights of an individual which, in view of its intensity, is a violation

of Art. 11 para. 1 of the Charter of Fundamental Rights and Freedoms and

Art. 1 of the Protocol to the Convention on the Protection of

Fundamental Rights and Freedoms. It simultaneously causes violation of

Art. 1 of the Charter, as it causes fundamental inequality of persons in

the social sphere.







Plenum of the Constitutional Court decided in the matter of a petition

from the Regional Court in Hradec Králové to annul part of § 106 para. 3

of Act no. 50/1976 Coll., on Zoning and the Building Code (the Building

Act), as amended by later regulations, as follows:


words “from CZK 500,000” in § 106 para. 3 of Act no. 50/1976 Coll., on

Zoning and the Building Code (the Building Act), as amended by of Act

no. 83/1998 Coll., are annulled as of the day this finding is

promulgated in the Collection of Laws.





22 January 2002 the Constitutional Court received a petition from a

Panel of the Regional Court in Hradec Králové (30 Ca) of 14 January 2002

to annul § 106 para. 3 of Act no. 50/1976 Coll., on Zoning and the

Construction Act (the Construction Act), as amended by later regulations

(the “Construction Act”), in the part “from CZK 500,000.” Under Art. 95

para. 2 of the Constitution of the Czech Republic (the “Constitution”) a

general court shall do so if it concludes that a statute which is to be

used in resolving a matter is inconsistent with a constitutional act.

The petition, signed by the Chairman of the Panel, JUDr. K. K., states

that by decision of the City Hall of Pardubice of 24 June 1999, file no.

OSÚ P/147/99/Pd, and decision of the District Office of Pardubice of 16

July 2001, file no. RRR/3330/41/99/Pu, H. B. was given a fine of CZK

500,000 because, as a natural person conducting business under special

regulations, she engaged in unlawful conduct specified in § 106 para. 3

let. c) of the Construction Act when, in conflict with the relevant

final approval permit, she used two rooms in the basement of the family

house no. 181 in Pavlova St. in Pardubice as the operating premises of a

hair salon. She filed an administrative complaint with the Regional

Court in Hradec Králové under part five, chapter two of the Civil

Procedure Code.


introduction to the petition emphasizes that Ms. H. B. used these

premises only for purposes of her individual exercise of the trade of

hairdressing, which is also documented by a statement from the hygiene

inspector of 16 March 1999, file no. 1446-218/99-707, according to which

these were “operating premises” with only one job. Although the rooms

had been approved as a laundry, drying room, and cellar, their technical

construction arrangement had been, since construction was completed,

fully adequate for conducting the trade in question, because, as the H.

B. stated in proceedings before the court, the water access pipe had

been extended by about 1 meter; but no other construction changes had

been made. Insofar as § 106 para. 3 let. c) of the Construction Act

expressly charges the appropriate body to impose a fine from CZK 500,000

to CZK 1 million to a legal entity or natural person conducting

business under special regulations who uses a building without a final

approval permit, or inconsistently with it, or allows another party to

do so, it is evident that the Building Office may not impose a fine

lower than CZK 500,000, and thus take into account the extent of

violation of the public interest in using a building in accordance with a

final approval permit, which can vary widely. In the court’s opinion,

in a number of cases where a change does not require any construction

changes or special equipment, the extent to which the public interest is

violated is minimal. Therefore, the court contests the setting of a

fine level without regard to the type of unlawful conduct, its

consequences, or the material benefits to the offender. It

simultaneously points out the fact that the amount of the fine makes it

impossible to take into account the offender’s economic level, or

whether he is at all capable of paying such a fine. In this case, for

example, Ms. H. B. would have to work for 14 years to pay the fine

imposed. Thus, the fine is imposed on her in a liquidatory manner, where

the administrative body could basically deprive her of all her

property, including the building in which she does business.


Regional Court further states that this administrative penalty is also

not comparable to punishments imposed under the Criminal Code, under

which one can, moreover, choose between several punishments. In view of

the fact that natural persons are exposed to a risk of the kind of

punishment which, by its nature and degree of gravity falls, in terms of

the Convention on the Protection of Human Rights and Fundamental

Freedoms (the “Convention”), into the “criminal area,” Art. 6 para. 1 of

the Convention, under which everyone has the right to have his matter

tried fairly, should be applied to this matter. This requirement was not

met, with regard to the current legal framework, as the specific

individual circumstances of the matter were not taken into account. In

view of these facts the Regional Court proposed annulling the provision

cited in the heading.



Constitutional Court found that the submitted petition meets all legal

procedural requirements, and therefore nothing prevents it from

reviewing and deciding the substance of the matter. Therefore, under §

69 of Act no. 182/1993 Coll., on the Constitutional Court, as amended by

later regulations, (“Act no. 182/1993 Coll.”) it called upon the

parties to the proceedings – the chamber of Deputies and the Senate of

the Parliament of the Czech Republic, to submit position statements on

the petition.

The Chamber of

Deputies of the Parliament of the Czech Republic, through its Chairman,

in its position statement of 14 February 2002 stated that § 106 para. 3

of the Construction Act was amended by Act no. 83/1998 Coll. The bill,

which was submitted by the government of the CR, was discussed by the

Chamber of Deputies in the second election period as Chamber of Deputies

document no. 261. As the background report indicates concerning § 105

and § 106 of the Construction Act, the aim of the legal framework was to

be a substantial increase in fines; this step had been supported in

comment proceedings by some cities which have experience with

“non-compliance in construction.” During discussion in the Chamber of

Deputies the proposed framework was not changed. According to the

Chamber of Deputies, when discussing the amendment it took as its

starting point the premise that the act in question was consistent with

the Constitution, the constitutional order, and international

agreements. In conclusion, the Chamber of Deputies points out that the

proposed judgment should read “from CZK 500,000,” so that the text of

the Act would be correct legislatively and in formulation even after

part if it was annulled.


Senate of the Parliament of the Czech Republic gave its position

statement regarding the petition from the Regional Court in Hradec

Králové through its Chairman on 19 February 2002, and expressed doubts

whether in this case the procedure described in the filing really

violated Art. 6 para. 1 of the Convention. The unlawful conduct in this

case must be considered an administrative infraction, which is penalized

by a fine in the range specified and which is imposed in administrative

proceedings led by the relevant administrative body. In this case it is

evident that the administrative body took into account the individual

circumstances of the case, as it imposed the lowest possible fine. The

Construction Act considers the use of a building without the final

approval permit or inconsistently with it to be serious violation of

construction compliance and therefore classifies it in the group with

the highest penalty rates. The Senate further points to the fact that if

the Constitutional Court granted the petition, then deleting the lower

limit of penalties in § 106 para. 3 of the Construction Act would

violate the overall system and introduce obvious inequality with

paragraph 2 of the same section, where the lower limit of fines for the

factual elements specified would be maintained. Likewise, with offenses

by citizens contained in § 105 of the Construction Act there is a system

of differentiating the amount of fines by setting a lower limit for

them. The Senate further states that the cited amendment of the

Construction Act, the aim of which was to tighten compliance in the

construction and use of buildings, in the interests of this aim the room

for administrative discretion was narrowed, although it was not

entirely removed.


Constitutional Court also requested a position statement from the

Ministry for Regional Development. This state body, in a letter dated 28

February 2002, file no. 2502/2002-51, disagreed with the Regional

Court’s petition. For one thing, it believes that the Construction

Office has the discretion, when setting the amount of a fine, to weigh

the extent of violation of the public interest of the gravity of the

violation of the Act, or related consequences. In its opinion, Art. 6

para. 1 of the Convention does not apply to this case at all, because in

its opinion, one can not evaluate whether the specified lower limit for

penalties is “just” or “unjust” in relation to unlawful conduct. This

is because § 106 para. 3 of the Construction Act could be inconsistent

with Art. 6 para. 1 of the Convention, if it prevented review of the

justification of such “criminal accusation” by an independent court.

However, review of the matter in full jurisdiction is not prevented by

the contested provision, but by the currently valid legal framework of

the administrative court system. For the foregoing reasons, the

Constitutional Court should not grant the petition of the Regional Court

in Hradec Králové.


Constitutional Court, for purposes of information, asked the Ministry

for data about the number and amounts of fines imposed under the

Construction Act, divided according to individual factual elements. The

Ministry for Regional Development stated that it does not monitor this

data in the aggregate, and sent at least data from the City Hall of the

capital city of Prague, as an appeals body for 26, or (as of 1 July

2002) for 22 city districts. These indicate that in 2001 a total of 67

offenses and 34 administrative infractions under the Construction Act

were reviewed in appeals proceedings, 12 of which were violations of the

contested provision. The Constitutional Court was also sent similar

data about fines imposed in the city of Liberec, according to which in

2001 legal entities and natural persons conducting business under

special regulations were given a fine with legal effect in 15 cases,

none of which were imposed for an administrative infraction under the

contested provision, and in 10 cases fines were given to natural persons

for offenses.


Constitutional Court, in order to determine the income levels of legal

entities and natural persons-entrepreneurs during the period of one

year, asked the Ministry of Finance for assistance. The Ministry stated

in its document, that out of the total of 221,237 legal entities which

filed tax returns, in 2000 the number of entities with total annual

income (see § 20 para. 2 of Act no. 563/1991 Coll., on Accounting, in

the version valid until 31 December 2001) up to CZK 50 thousand was

43,619 entities, up to 100 thousand a total of 50,090 entities, up to

500 thousand a total of 75,636 entities and up to 1 million a total of

91,539 entities; out of a total number of 964,723 natural

persons-entrepreneurs in that same year the number with income up to CZK

50 thousand was 185,368 persons, up to CZK 100 thousand a total of

304,753 persons, up to CZK 250 thousand a total of 519,757 persons, up

to CZK 500 thousand a total of 670,814 persons and up to CZK 1 million a

total of 793,187 persons (the intervals begin at CZK 0).



Constitutional Court first, in accordance with § 68 para. 2 of Act no.

182/1993 Coll., reviewed whether the statute whose provisions the

petitioner claims to be unconstitutional was passed and issued within

the bounds of Constitutionally specified jurisdiction and in a

constitutionally prescribed manner. In that regard, the stenographic

record of the 20th session of the Chamber of Deputies of the Parliament

of the Czech Republic, held on 13 February 1998, and resolution no. 256

of 13 February 1998 indicate that the Chamber of Deputies approved the

bill (Chamber of Deputies document no. 261) by a majority of 151 votes

in favor and none against (out of a total number of 171 deputies

present). From the stenographic record of the 2nd session of the Senate

of the Parliament of the Czech Republic, held on 18 March 1998, the

Constitutional Court further determined that the Senate also approved

the bill, by resolution no. 23 of 18 March 1998, by a majority of 55

votes (out of a total number of 70 senators present), with 7 votes

against. It is evident from the foregoing that the Act was passed and

issued in a constitutionally prescribed manner and within the bounds of

Constitutionally specified jurisdiction, and that quorums specified in

Art. 39 para. 1 and 2 of the Constitution were observed.


substantive discussion of the petition and weighing of all the

circumstances the Constitutional Court decided that the contested

provision of the Act must be annulled.


begin with, the Constitutional Court needs to note that in this case

what is contested is not, as it usually is, the behavioral rule itself,

which is the obligation to use a building only in accordance with the

final approval permit, but only the constitutionality of the means

(penalties) which the legislature chose for ensuring such behavior on

the part of the parties at whom the legal norm is aimed. Nevertheless,

here too we will evaluate the constitutional conformity of the norm

providing the legal obligation, although it is a secondary obligation.

The Constitutional Court is fully aware of the weight of the arguments

found in the position statements from the parties to the proceedings, in

particular the Senate of the Parliament of the Czech Republic, and

perhaps also in the position statement of the Ministry for Regional

Development, in whose jurisdiction the issue falls; the principal point

in them is that the given unlawful conduct, i.e. use of a building

without the final approval permit or inconsistently with it, shows, in

terms of the public interest, considerable social danger, in particular

in view of the general failure to observe relevant construction

regulations (construction non-compliance). In view of this the legal

framework of administrative penalties, in this case fines, was to have

been set up in a manner proportionate to the situation, not only by

raising the upper limit of penalties, but also by setting the lower

limit. By incorporating a minimal penalty amount into the statute, the

legislature is basically pursuing a legitimate aim, because this permits

distinguishing the gravity or danger of various types of unlawful

conduct far more clearly than was possible by setting only an upper

limit. A subsidiary consequence of this step is that this limits the

room for administrative discretion by the relevant state bodies, which

has positive consequences in, for example, the fact that it unifies to a

certain extent the level of punishments imposed or limits the room for

arbitrary or corrupt conduct by the administrative offices, which can be

prima facie a certain means of protection from discrimination; only the

other hand, however, it equalizes the gravity of various unlawful

conduct, to a greater or lesser degree, which leads to limiting the

ability of the administrative body to take into account the specific

circumstances of the case, the person of the offender and his economic

level, as the Regional Court in Hradec Králové states in its petition.


of all, the Constitutional Court is forced to fully agree with the

opinion that Art. 6 para. 1 of the Convention can not apply to this

case, due to the nature of the matter. The subject of regulation by the

provision in question is the guarantee of fair, smooth and public

proceedings. In this regard if one speaks of the right to a fair trial,

or the content of that right, this means the equality of “weapons” of

the parties to judicial proceedings, a right to personal participation

and an oral hearing, and the right to have certain rules observed in the

area of obtaining and evaluating evidence, etc. However, the issue here

is not evaluating the constitutional conformity of procedural

regulations, i.e. whether certain procedural rules meet the cited

principles, but evaluating a substantive law regulation which is in no

way related to procedure as such. In other words, the content of the

given constitutionally guaranteed right can not be the right of the

individual toward the legislative power to a “fair” regulation of a

particular legal relationship, and thus also not a “fair” fine amount.

Thus, a fair fine must be understood – in terms of this constitutionally

guaranteed right – to mean a fine imposed in accordance with the law,

in proceedings which observe the principles of a fair trial.


view of the fact that the Constitutional Court is bound by the proposed

judgment in the petition, but not by the legal classification contained

in it, it further considered whether the contested provision violated

dictates of constitutional law or international agreements other than

those raised in the petition.


preamble of the Constitution indicates the intent of the citizens of

the Czech Republic to take as their starting point the principles of a

state governed by the rule of law. Art. 1 of the Constitution expressly

identifies the Czech Republic as a democratic state governed by the rule

of law, founded on respect for the rights and freedoms of the human

being and the citizen. Respect for the rights and freedoms of the

individual is undoubtedly precisely one of those principles of a state

governed by the rule of law that are intended by the Preamble of the

Constitution, from which one can derive one of the basic rules of the

functioning of state power, the principle of proportionality

(commensurateness) and the ban on abuse of the law, as the

Constitutional Court concluded in a number of findings. This principle

arises from the premise that interference in fundamental rights or

freedoms can occur, even though their constitutional framework does not

expect, in the event that they are in mutual conflict or in conflict

with another constitutionally guaranteed value which is not of the

nature of a fundamental right or freedom (a public good ) (cf.

Constitutional Court finding of 9 October 1996, file no. Pl. ÚS 15/96;

published in The Constitutional Court of the Czech Republic, Collection

of Decisions, C.H. Beck, vol. 6, no. 99). However, in these cases it is

always necessary to evaluate the purpose (aim) of such interference in

relation to the means used, and the measure for this evaluation is the

cited principle of proportionality (in the wider sense), which can also

be called a ban on excessive interference with rights and freedoms. This

general principle contains three principles, or criteria, for

evaluating the admissibility of interference. The first of these is the

principle of capability of meeting the purpose (or suitability), under

which the relevant measure must be capable of achieving the intended

aim, which is the protection of another fundamental right or public

good. Next is the principle of necessity, under which it is permitted to

use, out of several possible ones, only the means which most preserve

the affected fundamental rights and freedoms. The third principle is the

principle of proportionality (in the narrower sense) under which

detriment in a fundamental right may not be disproportionate in relation

to the intended aim, i.e. measures restricting fundamental human rights

and freedoms may not, in the event of conflict between a fundamental

right or freedom with the public interest, by their negative

consequences exceed the positive elements represented by the public

interest in these measures (cf. Constitutional Court finding of 13May

1997, file no. Pl. ÚS 25/97; published in The Constitutional Court of

the Czech Republic, Collection of Decisions, C.H. Beck, vol. 11, no.

53). This point takes as a starting point the weighing of empirical,

systemic, contextual and value-based arguments (se Constitutional Court

finding of 9 October 1996, file no. Pl. ÚS 15/96; published as cited

above; under this finding an empirical argument can be understood to be

the factual gravity of the event which is connected to the protection of

a certain fundamental right; a systemic argument means weighing the

purpose and classification of the affected fundamental right or freedom

in the system of fundamental rights and freedoms. A contextual argument

can be understood as other negative effects of limiting one fundamental

right as a result of giving priority to another; a value-based argument

means evaluating the positives of conflicting fundamental rights in view

of the accepted hierarchy of values.).


accordance with the abovementioned conclusions, the Constitutional

Court reviewed, above all, whether the cited interference in the legal

sphere of an individual can simultaneously be considered interference in

constitutionally guaranteed rights and freedoms, and it concluded that a

fine – under certain circumstances – can be, first of all, interference

in a fundamental right under Art. 11 para. 1 of the Charter. Fines, as

constitutionally admissible takings of property – in contrast to taxes

and fees – are not expressly mentioned in Art. 11 of the Charter; of

course, the situation is somewhat different in the case of protection of

property rights under Art. 1 of the Protocol to the Convention for the

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

under which states may pass laws that they consider necessary in order

to regulate the use of property in accordance with the general interest

and ensure the payment of taxes and other fees or fines. One can

conclude from the foregoing that fines, just like taxes and fees, fall

into the sphere of legal regulation of Art. 11 of the Charter, or. Art. 1

of the Protocol and represent basically permissible interference with

the property rights of an individual, which, of course, is true on the

presumption that the principles of a state governed by the rule of law,

as cited above (see also Art. 4 para. 4 of the Charter) are respected.

We must add to this that a fine can be considered interference with a

constitutional law dimension if it interferes with an individual’s

property relationships with considerable intensity. The Constitutional

Court will consider this factor in connection with the application of

the principle of proportionality (see below).


this regard, the Constitutional Court would like to point to the fact

that Art. 1 of the Protocol is discussed similarly in: Frowein, J.,

Peukert, W.: Europäische Menschenrechts-konvention, EMRK-Kommentar, 2nd

edition, E. P. Engel Verlag, Kehl, 1996, p. 824 et seq.; according to

these authors it is the right of every state to impose financial

punishments, which, however, does not mean that the dictate of

respecting property in the area of financial fines can no be applied

here; on the contrary, one can review whether they were imposed in

conflict with the principle of the ban on abuse of rights, or

proportionality. Concerning taxes, which, together with fines are one

variation of cases (see above), the German constitutional Court, in a

number of cases, expressly described these as violation of property

rights (Eigentumsverletzung); see Isensee, J., Kirchhof, P.: Handbuch

des Staatsrecht, Band VI, C.F.Müller, Heidelberg, 1989, p. 1072.


determining that in this case there could be interference with

constitutionally guaranteed rights and freedoms, the Constitutional

Court reviewed whether the given interference can be considered

interference in accordance with the principle of proportionality. As

already stated, the purpose of the legal framework at issue was to limit

violations of construction regulations. At first we must note that

setting progressive levels of penalization, which increasing the minimum

amount of fines can also be considered to do, can, to a certain extent,

be an instrument which is capable of achieving this intended and also

legitimate aim, as the risk of possible strict punishment reduces the

“economic advantage” of unlawful conduct. For that reason, the

Constitutional Court does not rule out the possibility that the cited

interference could be capable of meeting its aim. Of course, as far as

the next criterion goes, the principle of necessity, the Constitutional

Court can not but state that this interference does not fully correspond

to this principle. One must realize that the general failure to respect

a particular legal framework on the part of individuals may be caused

(apart from cases of completely non-functional regulation) by inadequate

penalties, where the unlawful conduct is “worth it” even with the risk

of penalties being imposed, and/or by insufficient activity by public

authorities which have jurisdiction to supervise the observance of

rights and imposition of penalties. In the first case, the need to

increase punishments is evident (here, specifically, the levels of

fines); in the second it is up to the state, specifically the executive

power, to implement measures so that the relevant body will fulfill its

functions. If the legislature concluded that the current level of fines

is inadequate, it is fully within its jurisdiction to implement

appropriate measures. On the other hand, one must distinguish between

the upper and lower levels of fines. If the maximum level is

insufficient, that can mean – regardless of how administrative bodies

are working – that a right basically becomes unenforceable. In contrast,

no minimum or a “low” minimum level of fine can not by itself in any

way cause that situation, unless it is joined by ineffective exercise of

state administration, both in prevention and penalization. Specifically

concerning the issue of penalization, as part of improving the

functioning of state administration, e.g. by increasing supervision

activities, or passing internal instructions on imposing fines, it is

possible to achieve at least the same results as can be achieved by

raising the lower limit of a fine.


if such a measure is not necessary, and in view of the fact that it is

not impossible for a fine to be interference in constitutionally

guaranteed rights and freedoms, specifically in property rights, the

Constitutional Court had to further consider whether there was really

such interference in this specific case. Evaluation of this question is

very closely related to the principle of proportionality, because, as

the Constitutional Court indicated above, not every imposition of a fine

is interference with fundamental rights and freedoms, only such as

interferes with property rights with considerable intensity, and it is

precisely the degree of detriment caused by this interference which is

one of the factors for the cited principle of proportionality.


it is necessary to point out that the legislature’s setting a lower

limit for fines limits the administrative discretion of the relevant

body, which, of course, can mean a barrier to taking into account not

only the factual gravity of particular unlawful conduct, but also the

economic situation of the responsible person or entity. This can result,

in a particular case or group of cases, in a fine – even though imposed

on the minimum level – appearing extremely “unfair.” In view of the

relativity of this concept, one must look at the matter from the

viewpoint of constitutionally guaranteed rights and freedoms, and from

that viewpoint it is essential to specify rules which the legislature

must observe in setting the lower level of fines. The basic criterion

that must be used, in the Constitutional Court’s opinion, is the

criterion of substance, under which not every taking of property on the

basis of fines, or fees and taxes, creates interference in property

rights, but only such taking as fundamentally changes the property

relationships of the affected person or entity, i.e. so that it changes

his entire property position by “ruining” the very basis of the

property. Specifically, in the case of fines imposed on legal entities

and natural persons conducting business under special regulations, one

must start with the premise that interference in property as a result of

which the property base for further business activity would be

“destroyed” is ruled out. In other words, fines of a liquidatory nature

are impermissible. It must be pointed out that a fine of a “liquidatory”

amount represents basically the “toughest” case of interference in

property relationships, which can also lead to violation of Art. 26

para. 1 of the Charter; we do not rule out applying the conclusion about

the considerable intensity of interference in property rights also to

such cases in which the fine so exceeds possible revenues that business

activity basically becomes “pointless” (i.e. for a considerable period

of time aimed only at paying the imposed fine). With natural persons as

entrepreneurs – in view of the fact that their private property and

property intended for conducting business are not separated (in terms of

accounting) – in such cases there is a danger of serious effects not

only on the offender’s person, but also on other members of his

household. In view of the fact that more than 19% of natural persons,

and 19% of legal entities had a total annual income of up to CZK 50

thousand and virtually 70% of natural persons and more than 34% of legal

entities had income of up to CZK 500 thousand, it is undoubted that a

fine imposed in the amount of CZK 500 thousand can, not only in the case

evaluated by the Regional Court in Hradec Králové, but in a whole

series of cases, really have be of a liquidatory nature (around 19% of

all companies have an annual income lower than 1/10 of the lowest level

of fine). Therefore, we can state – in accordance with the

abovementioned starting points – that the cited setting of the lower

level of a fine is sufficiently intensive interference in an

individual’s property relationships that it is also interference with

property rights.

As already

stated above, the interference in question does not correspond to the

principle (criterion) of necessity, and so a further test based on the

principle of proportionality in the narrower sense is not necessary.

Nevertheless, the Constitutional Court also considered this question,

and concluded that this measure is disproportionate to the intended aim,

which is protection of the public interest. One must begin with the

fact that the detriment to a fundamental right which can be connected

with this interference is considerable, as the interference threatens

the very economic existence of a large number of entities or persons,

and protection of property rights in the system of fundamental rights

and freedoms is surely among the most important rights. Even though the

Constitutional Court does not cast doubt on the existence of the cited

negative effect (i.e. failure to observe construction regulations) in

general, on the other hand, for one thing the data from the Ministry for

Regional Development do not testify to considerable violation of

construction regulations, and for another the Constitutional Court does

not believe that unlawful conduct, especially in cases such as were

described by the Regional Court in Hradec Králové, would represent a

sufficiently serious society-wide problem, in light of which such

fundamental interference in fundamental rights and freedoms would be

justified. In this situation, the Constitutional Court can not in

principle agree with an approach which is basically founded only on

progressive levels of penalization of individuals by the state. For

example, as V. Kanpp states (in: Teorie práva, Praha, 1995, C.H.Beck, p.

36 a 37), “centuries old experience shows, in particular in criminal

law, first that violation of law does not decrease proportionately with

the increase of penalties, and further, that penalties (in particular

strict penalties) lead to the creation of the cited deregulators, or

anti-legal systems, which find ways to avoid the threatened penalty.”


Constitutional Court can not but state 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. Peukert, above, p. 826). In addition, however,

it is necessary to take into account the second dimension of the

adjudicated situation. Imposing a fine in the range specified means that

entities or persons whose economic situations are completely different

will be penalized by basically the same level of fine, and thus the

effects of the fine imposed will also be completely different; whereas

for certain parties the maximum fine can be negligible in relation to

their business, for others even the lowest possible fine can mean

liquidation, as is demonstrated by the abovementioned data. Under Art. 1

of the Charter people are free and equal in dignity and in rights. In

this case, although the contested provisions treats all persons equally,

from a formal viewpoint, nevertheless it fundamentally prevents

distinguishing their property situations. Certainly not every factual

inequality establishes interference with fundamental rights and

freedoms; as the Constitutional Court stated in its finding of 7 June

1995, file no. Pl. ÚS 4/95 (published in the Constitutional Court of the

Czech Republic, Collection of Decisions, C.H. Beck, vol. 3, no. 29),

“inequality in social relationships, if it is to affect fundamental

human rights, must reach an intensity which, in a particular regard,

casts doubt upon the very substance of equality. This usually happens if

violation of equality is also connected to violation of another

fundamental right, e.g. the right to own property under Art. 11 of the

Charter, one of the political rights under Art. 17 et seq. of the

Charter, and so on.” In view of the fact that here too there is

basically a situation of social inequality, it must be considered

whether there is interference of considerable intensity, because every

setting of the lower limit of fines can represent a certain inequality,

but not every one means inequality in a constitutional law sense.

However, as far as intensity and proportionality of the interference in

question are concerned, the Constitutional Court has already considered

them, and the abovementioned conclusions apply here as well, even if the

matter is evaluated from a different viewpoint.


view of the cited reasons, the Constitutional Court believes that the

contested provision is incompatible with the principles of a state

governed by the rule of law under Art. 1 of the Constitution and is

inconsistent with Art. 1 and Art. 11 para. 1 of the Charter and Art. 1

of the Protocol. Therefore, the Constitutional Court had no choice but

to annul it under § 70 para. 1 of Act no. 182/1993 Coll. The

Constitutional Court recognizes that annulling the provision in question

may, as indicated by the Senate of the CR in its position statement,

disrupt the systemic connections and create inequality with § 106 para. 2

of the Construction Act, where the lower limit of fines remains, but

the Constitutional Court is not authorized to annul the cited provision,

as it is bound by the proposed judgment in the petition (with the

exception of corrections of a technical nature, as happened in this

case). However, this does not prevent the legislature from evaluating

the cited provision in view of this finding and taking appropriate steps

to amend it.

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

Brno, 13 August 2002