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HEADNOTE
Under
certain circumstances a fine can amount to interference in a
fundamental right under Art. 11 par. 1 of the Charter of Fundamental
Rights and Freedoms, that is, if it interferes with an individual’s
property relationships with considerable intensity. Incorporating a
minimal penalty amount into the statute basically pursues a legitimate
aim, because this permits distinguishing the gravity or danger of
various types of unlawful conduct. It can be a certain means of
protection from possible discrimination; only the other hand, however,
it 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. Setting and increasing the lower limit
for penalties does not always permit proportional intervention, and in
relation to the persons who are penalized by a fine, it can sometimes be
of a liquidatory nature.
CZECH REPUBLIC
CONSTITUTIONAL COURT
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Plenum of the Constitutional Court, composed of JUDr. Pavel Rychetský, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Dagmar Lastovecká, JUDr. Jiří Malenovský, JUDr. Jiří Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Varvařovský, and JUDr. Miloslav Výborný, ruled on a petition from the Regional Court in Ústí nad Labem, Liberec branch, seeking the annulment of part of § 106 par. 2 of Act no. 50/1976 Coll., on Zoning and the Buidling Code (the Building Act), as amended by Act no. 83/1998 Coll., as follows:
The
words “from CZK 200,000” in § 106 par. 2 of Act no. 50/1976 Coll., on
Zoning and the Building Code(the Building Act), as amended by Act no.
83/1998 Coll., are annulled as of the day this judgment is promulgated
in the Collection of Laws.
REASONING
On
27 May 2003 the Constitutional Court received from the Regional Court
in Ústí nad Labem, Liberec branch, a petition under Art. 95 par. 2 of
the Constitution of the Czech Republic (the “Constitution”) to annul
part of § 106 par. 2 of Act no. 50/1976 Coll., on Zoning and the
Building Code (the Building Act), as amended by of Act no. 83/1998
Coll., (the “Building Act”), beginning with the words “from CZK
200,000,” due to inconsistency with Art. 1 of the Constitution, Art. 1
and 11 par. 1 of the Charter of Fundamental Rights and Freedoms (the
“Charter”) and Art. 1 of the Additional Protocol to the Convention for
the Protection of Human Rights and Fundamental Freedoms (the “Additional
Protocol”).
In the petition
the Regional Court recapitulates the proceedings which preceded its
petition. During building proceedings, the Fund for Children and Youth
“in liquidation” was given a fine of CZK 200,000 for not completing
urgent safety works, consisting of enclosure fencing and partial
stabilization of a roof truss and “bracing it against wind,” as well as
other safety works labeled as a violation of the obligation imposed by §
106 par. 2 let. g) of the Building Act. In administration proceedings
and in a complaint against an administrative decision imposing a fine,
the Fund for Children and Youth objected that it performed the works to
the extent it was able, and that the collapse of part of the roof was
caused by exceptionally adverse weather. It pointed out that, as a state
organization in liquidation, it did not have money for new investments.
The Regional Court believes that the lower limit of a fine, CZK 200,000
does not permit taking the cited situation into account, and in
particular the fact that, under Art. I point 4 of Act no. 364/2000
Coll., on Dissolution of the Fund for Children and Youth and Amending
Certain Acts, the liquidator acting in the name of the fund can assume
new obligations only if they are directly connected to “termination of
uncompleted obligations.” The Regional Court believes that the words
“from CZK 200,000” in § 106 par. 2 of the Building Act, setting the
lowest fine for defined infractions in the building field are
incompatible with the cited articles of the Constitution, the Charter
and the Additional Protocol. It finds its arguments in the conclusions
in the Constitutional Court judgment of 13 August 2002 promulgated under
no. 405/2002 Coll. The courts points to the imbalance between the
wordings of par. 2 and 3 of § 106 of the Building Act. In appendices the
court submits the complaint and the decisions by the building
administration bodies which it contests.
On
4 June 2003 the Constitutional Court called on the Chamber of Deputies
and the Senate of the Parliament of the Czech Republic for position
statements and asked the regional court to lend it its file.
In
its position statement, the Chamber of Deputies recapitulates the
court’s petition, including a reference to the existing case law of the
Constitutional Court and the course of the legislative process. The
present wording of § 106 par. 2 of the Building Act was amended by Act
no. 83/1998 Coll.; the draft was proposed by the government of the CR.
According to the background report, the amendment of §§ 105 and 106
resulted from the need to fundamentally change the level of fines for
building infractions found in the comment proceedings and to set a range
of fines for offences and administrative infractions . Setting stricter
penalties was supported by certain towns, which have the most
experience with failure to observe building regulations. The draft act
was approved by the prescribed majority of deputies on 13 February 1998,
the Senate approved it on 18 March 1998, the president signed it on 6
April 1998, and the Act was duly promulgated. The legislative assembly
acted in the belief that the passed Act was consistent with the
Constitution, the constitutional order, and international treaties. It
is up to the Constitutional Court to evaluate the constitutionality of
the contested provision.
In
its position statement on the petition, the Senate also states that due
to the extensive amendment of the Building Act, effective as of 1 July
1998, there was an effort to set stricter penalties for violation of
obligations imposed by the Act for purposes of tightening observance of
regulations in the construction and use of buildings. In the interests
of achieving this aim, the passage of the Act considerably narrowed the
scope of the relevant administrative body’s discretion, but did not
remove it entirely. The administrative body is to continue to weight the
circumstances of a case and take them into account when setting a fine.
The Senate points out that it accepted this intention of the
petitioner, and on 18 March 1998 approved the draft act in the form
passed by the Chamber of Deputies. In discussion the draft, it did not
find, as it already stated in its position statement to the petition
under file no. Pl. ÚS 3/02, constitutional grounds to withhold consent.
It is up to the Constitutional Court to evaluate the contested
provision, taking into account the judgment published under no. 405/2002
Coll., which concerned the lower limit for fines under § 106 par. 3 of
the Building Act. In an appendix the Senate sent part of the transcript
of the discussion of this amendment.
The
way in which Act no. 83/1998 Coll., which newly set fines for
infractions in the field of construction administration, was passed has
already been subject to review by the Constitutional Court when it dealt
with the matter under file no. Pl. ÚS 3/02. The results authorize
review of the petition on the merits, as the Constitutional Court stated
that the Act was passed and promulgated in the constitutionally
prescribed manner, within the bounds of constitutionally prescribed
jurisdiction, and the quorums specified in Art. 39 par. 1 and 2 of the
Constitution existed.
The
starting point for the Constitutional Court’s judgment, if it is not to
deviate fundamentally from its previous case law, is the conclusions
expressed in the cited judgment of 13 August 2002 in the matter under
file no. Pl. ÚS 3/02 (no. 405/2002 Coll.) on a petition from the
Regional Court in Hradec Králové to annul the words “from CZK 500,000”
in § 106 par. 3 of the Building Act.
In
that judgment, the Constitutional Court stated that incorporating a
minimal penalty amount into the statute basically pursues 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 administrative
bodies. Thus, it can be a certain means of protection from possible
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.
The
Constitutional Court concluded that under certain circumstances a fine
can amount to interference in a fundamental right under Art. 11 par. 1
of the Charter. A fine can be considered interference with a
constitutional law dimension if it interferes with an individual’s
property relationships with considerable intensity. Therefore, the
Constitutional Court evaluated the aim of interference in relation to
the means used, and the measure for this evaluation was the principle of
proportionality. Setting progressive levels of penalization through
increasing the maximum amount of fines can achieve the intended aim, and
in view of adequate room to take into account the circumstances of a
particular case, it also permits meeting the condition of
proportionality of interference. Naturally, setting and increasing the
lower limit for penalties, minimizing this room for discretion, does not
always permit proportional intervention, because, in relation to the
persons who are penalized by a fine, it can sometimes be of a
liquidatory nature. For the abovementioned reasons, the Constitutional
Court annulled part of § 106 par. 3 of the Building Act by its judgment
in the matter under file no. Pl. ÚS 3/02.
In
the cited judgment, the Constitutional Court observed the rule of being
limited by the proposed judgment in the petition, and thus could not
annul the now contested part of § 106 par 2. However, it pointed out
that the overall system could be violated and inequality introduced by §
106 par. 2 of the Building Act, in which the lower limit of fines
remained. It also indirectly expressed the expectation that the
legislature would also review its constitutionality.
Thus,
review of the petition filed by the Regional Court in Ústí na Labem,
Liberec branch, can not be substantially different. The lowest
statutorily set fines for legislatively-defined “medium” serious
violations of buildings regulations under § 106 par. 2 of the Building
Act, for violations of buildings regulations legislatively defined as
being of “medium” gravity, can, in the cases that a regional court
handles, amount to the same unconstitutional interference which the
Constitutional Court already found to exist. The difference between the
lowest fine level of CZK 500,000 in the case already adjudicated and CZK
200,000 in the case now under review is not substantial. A minimum fine
of CZK 200,000 for infractions defined in § 106 par. 2 of the Building
Act can, in many cases, be just as liquidatory as a fine of CZK 500,000
Kč for infractions which the legislature considers “more serious,”
defined in § 106 par. 3 of the Building Act. Moreover, the continued
existence of the contested provision would confirm an imbalance between
penalties for otherwise serious infractions of building law envisaged by
the Building Act as amended after the Constitutional Court’s
intervention in 2002.
Beyond
the framework of the foregoing arguments, the Constitutional Court
emphasizes that it did not review the circumstance of the individual
application of administrative punishment which occurred in the preceding
administrative proceedings, as proceedings on a petition to annul part
of a statute under Art. 87 par. 1 let. a) of the Constitution are a
means of abstract inspection of norms. The Constitutional Court’s
conclusion does not anticipate the result of specific review and
proceedings on the infracting conduct by the Fund for Children and Youth
“in liquidation” which is now taking place before the Regional Court in
Ústí nad Labem, Liberec branch. Likewise, the Constitutional Court can
speak only peripherally concerning the reference to limiting the Fund’s
administrator under the legal framework given by a special statute (this
is, of course, similar with, e.g., bankruptcy administrators). The
prohibition on assuming new commitments can not prevent fulfilling
obligations in an important public interest. Obligations arising from
regulations which ensure important public interests (here the Building
Act) must take precedence before a framework which determines the
handling of property, or that framework must be interpreted in such a
manner as to permit the fulfillment of those obligations. The argument
which consists of the opinion that a legal entity in liquidation has a
lower level of responsibility for the condition and administration of
property which it owns, being dependent on the momentary property and
organizational situation, could create de facto inequality between the
content of property rights for individual owners.
Notice: Judgments of the Constitutional Court can not be appealed.
Brno, 10 March 2004