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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
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.