Decided 9 March 2004 – Pl US 38/02
                               
                   “Fine Property Situation”

HEADNOTE
The  Constitutional Court does not understand  equality  to  be
absolute, but relative (and, moreover, an accessory in relation
to  other  fundamental  rights and freedoms).  The  concept  of
relative  equality  is  closely  related  to  the  concept   of
commensurate  interference in fundamental  rights.  It  follows
necessarily  from  the  nature of a fine  as  a  property-based
penalty  that  if  it is to be customized nad commensurate,  it
must reflect the punished party’s property situation. A fine in
the  same  amount imposed on a wealthy person will be laughable
and ineffective, whereas in the case of punishing a non-wealthy
person, it can be draconic and liquidatory. Thus, the principle
of  relative equality is not violated if two persons in various
situations  are given fines of different amounts, although  the
only  difference in their situations may be different  property
situations. The criterion of examining the offender’s  property
situation  when considering the amount of a fine  is  necessary
and complementary – of course, not because high fines would  be
unenforceable (as the Chamber of Deputies claims), but  because
of  the  risk of a “liquidatory” effect of a disproportionately
high  fine.  Fines,  as punishment, must be  differentiated  in
order   to   function  as  a  punishment  and  as  a  deterrent
(individual and general prevention).

JUDGMENT
The  Plenum  of  the Constitutional Court, comprised  of  JUDr.
Frantisek  Duchon, JUDr. Vojen Guttler, JUDr. Pavel  Hollander,
JUDr.  Dagmar  Lastovecka, JUDr. Jiri  Malenovsky,  JUDr.  Jiri
Mucha,  JUDr.  Jan  Musil,  JUDr.  Jiri  Nykodym,  JUDr.  Pavel
Rychetsky, JUDr. Pavel Varvarovsky and JUDr. Miloslav  Vyborny,
ruled  today  on  a petition from a group of  deputies  of  the
Chamber  of  Deputies of the Parliament of the  Czech  Republic
seeking  the annulment of the part of § 11 par. 3  of  Act  no.
129/2000 Coll., on Regions (Regional Establishment), as amended
by  of Act no. 273/2001 Coll., Act no. 320/2001 Coll., Act  no.
450/2001 Coll. and Act no. 231/2002 Coll., which reads “as well
as the proportionality of the amount of the fine in view of the
property  situation  of the person who committed  the  unlawful
conduct,” with the participation of the Chamber of Deputies and
of  the  Senate  of  the Parliament of the Czech  Republic,  as
follows:
The petition is denied.

REASONING:

I.
A  group  of  41  deputies of the Chamber of  Deputies  of  the
Parliament  of the Czech Republic (the “group of  deputies”  or
the  “petitioners”)  filed  with  the  Constitutional  Court  a
petition  to annul the part of § 11 par. 3 of Act no.  129/2000
Coll.,  on Regions (Regional Establishment), as amended by  Act
no.  273/2001  Coll., Act no. 320/2001 Coll., Act no.  450/2001
Coll.  and Act no. 231/2002 Coll. (the “Act on Regions” or  the
“Regional  Establishment Act”), which reads  “as  well  as  the
proportionality  of  the amount of the  fine  in  view  of  the
property  situation  of the person who committed  the  unlawful
conduct,” on the grounds of inconsistency with Art. 1,  Art.  3
par.  1,  Art. 7 par. 1 and Art. 10 par. 2 and 3 of the Charter
of  Fundamental Rights and Freedoms (the “Charter”). The  group
of  deputies believes that passing that provision of the Act on
Regions    created    considerable    interference    in    the
constitutionally guaranteed equality of rights (Art. 1  of  the
Charter),  the  ban on discrimination (Art. 3  par.  1  of  the
Charter),  the right to privacy (Art. 7 par. 1 of the  Charter)
and  the right to protection of personality (Art. 10 par. 2 and
3 of the Charter).
      The  group  of  deputies claims that “the aspect  of  the
proportionality  of  the  amount of  a  fine  to  the  property
situation  of the person who committed the unlawful conduct  is
not  expressed in other norms of the legal order of  the  Czech
Republic  which govern administrative infractions.”  Therefore,
it  can not be permissible for the legal order to establish  in
this  way  an  inequality between persons who  commit  unlawful
conduct  in  various areas of public administration.  Moreover,
the  intent  of the legislature (or the sponsor  of  the  legal
framework) is not clear from the background report.  The  group
of  deputies  also believes that even if this  intent  were  to
strengthen  the effectiveness of an imposed penalty  or  an  an
effort  to  prevent excesses in discretion or arbitrariness  by
administrative bodies – with the help of a statutory  statement
of  the  decisive  factors  –  this  can  not  be  done  in  an
unconstitutional manner.
      The  group of deputies also points to the lack of clarity
in  the term “property situation,” the examination of which  by
an  administrative  body  it considers  unacceptable  primarily
because  this  is  impermissible interference  in  the  private
sphere of individuals. The “perpetrator’s situation” is alleged
to be relevant only for imposing a penalty in criminal law (see
§  31  par.  1  of  the  Criminal Code),  and  is  consistently
interpreted to mean the personal and family situation, not  the
property  situation. Moreover, in the opinion of the  group  of
deputies, examination of the property situation is not  related
to  the subject matter of the proceedings in which a penalty is
imposed   for   unlawful   conduct,   so   this   amounts    to
unconstitutional  gathering  of  data  about  the  person   who
committed such conduct.
      The group of deputies believes that sufficient protection
against  any possible harshness in the law which the  contested
legal  framework is apparently intended to prevent,  exists  in
the  review  of  decisions to impose penalties through  appeals
(or,  after 1 January 2003 by judicial review of a decision  in
full  jurisdiction); in contrast, the examination of  “property
situation” by the Region as imposed by the Act creates a  basis
for  impermissible  and unconstitutional unequal  treatment  of
persons  who commit the same unlawful conduct. In view  of  the
fact  that  this  could be a legal entity or a natural  person,
interpretation and application of the term “property situation”
would necessarily be different (cf. a contrario judgment Pl. US
47/95);  this  is  the case, e.g., in cases  deciding  “on  the
situation  of an applicant for exemption from court fees  under
§ 138 of the CPC“.
      The  group of deputies points out that under Art.  1  and
Art.  3  par.  1  of  the  Charter the fundamental  rights  and
freedoms  are guaranteed to all people without differentiation,
so even a statute may not disadvantage or give privileges to  a
group  of persons in setting the amount of a fine for the  same
conduct.  Such  an  action would be contra  constitutionem,  or
inconsistent  with  the cited provisions of  the  Charter.  The
group  of  deputies again emphasizes that examination of  one’s
property situation by an administrative body in connection with
imposing a fine under Art. 7 par. 1 and Art. 10 par. 2 and 3 of
the  Charter would be unconstitutional interference in  privacy
and unauthorized gathering of data.

II.
The Constitutional Court requested opinions on the petition  to
annul   the  contested  provision  from  the  parties  to   the
proceedings,  the  Chamber of Deputies and the  Senate  of  the
Parliament  of  the CR, as well a the bodies which  issued  the
contested  decision (§ 69 par. 1 of Act no. 182/1993 Coll.,  on
the Constitutional Court). These entities provided opinions  on
the petition.
…..

The  Constitutional Court also requested, under § 48 par. 2  in
conjunction  with § 49 par. 1 of the Act on the  Constitutional
Court, an opinion from the Ministry of the Interior of the CR.
      In its statement, the Ministry of the Interior of the  CR
(the  “Ministry”) pointed to the fact that the  term  “property
situation”  is  explained in the commentary  to  §  54  of  the
Criminal  Code (source ASPI). It states that this term  appears
fairly  frequently in the legal order, especially – in addition
to  §  83  of the Act on the Constitutional Court – in Act  no.
140/1961  Coll.,  the  Criminal  Code,  as  amended  by   later
regulations  (the “Criminal Code”). Under § 54 par.  1  of  the
Criminal Code, in assessing a monetary penalty, the court shall
take  into account the personal and property situation  of  the
perpetrator in the elements of crimes established in § 129 or §
256c  of  the Criminal Code. This term also appears in Act  no.
141/1961  Coll.,  on  Criminal Court  Procedure  (the  Criminal
Procedure Code), as amended by later regulations (the “Criminal
Procedure Code”), specifically in § 73a par. 2 let. a), in § 91
par.  1  and in § 309 par. 1, also in § 450 of Act no.  40/1964
Coll.,  the  Civil  Code, as amended by later regulations  (the
“CC”),  and  finally  also  in Art. 13  of  the  Convention  on
International Access to Courts (announcement of the Ministry of
Foreign  Affairs  no.  58/2001 of  Collection  of  Intenational
Treaties). Therefore, the Ministry concludes that if  the  fact
that,  under the law, the courts take the personal and property
situation  of  the  perpetrator  into  account  when  assessing
monetary  penalties was not found to be unconstitutional,  then
it  should also not be considered unconstitutional if a region,
under  §  11  par.  3 of the Act on Regions, when  setting  the
amount  of  a  fine  –  which it can impose  for  violation  of
obligations  set by the region’s legal regulation,  up  to  CZK
200,000  on  a  legal  entity  or  natural  person  who  is  an
entrepreneur – takes the property situation of the  person  who
committed the unlawful conduct into account. The Ministry  also
pointed to the fact that the by setting criteria for the amount
of  a fine in § 11 par. 3 of the Act on Regions (one of them is
expressed by the words “as well as the proportionality  of  the
amount  of  the fine in view of the property situation  of  the
person who committed the unlawful conduct”), the Act provides a
guarantee that these criteria are binding in imposing fines  on
all  parties  without differentiation, and thus when  they  are
used  there  is no unequal treatment of persons who commit  the
same unlawful conduct.
     Finally, the Ministry added that when the new wording of §
11 par. 3 of the government’s draft act was being prepared, the
Constitutional  Court’s opinions pronounced in connection  with
various  adjudicated cases were taken into account,  especially
the  opinions  contained in Constitutional Court  judgment  no.
405/2002  Coll.;  the aim was to rule out such interference  in
the property of the perpetrator of an infraction as a result of
which  his  property base for further entrepreneurial  activity
would be “destroyed,” and also to eliminate serious impact  not
only on the delinquent person but also on other members of  his
household. In this regard one can also cite the decision of the
Plenum  of the Constitutional Court file no. Pl. US 47/95.  The
aim   there  was  to  prevent  imposition  of  a  fine   at   a
“liquidatory”  level,  which would be  basically  the  harshest
instance  of interference in a property situation.  This  could
also  result in violation of Art. 26 par. 1 of the Charter,  as
well  as  violation of the right to own property under Art.  11
par. 1 of the Charter and Art. 1 of the Additional Protocol  to
the   Convention  for  the  Protection  of  Human  Rights   and
Fundamental Freedoms, under which states may enforce such  laws
as  they  deem  necessary to control the  use  of  property  in
accordance  with the general interest or to secure the  payment
of  taxes or other contributions or penalties. It was also  the
intention  to  prevent  violation of Art.  1  of  the  Charter,
because  imposing fines in a liquidatory amount would create  a
fundamental  inequality between subjects of law in  the  social
sphere  (cf. Constitutional Court judgment no. 168/1995  Coll.,
or the decision of the Plenum of the Constitutional Court, file
no. Pl. US 3/02).

III.
Analysis of the Matter
In  their petition, the petitioners seek the annulment  of  the
part  of § 11 par. 3 of the Act on Regions which reads “as well
as the proportionality of the amount of the fine in view of the
property  situation  of the person who committed  the  unlawful
conduct.”

1. The Constitutional Court learned from the record of the 47th
session of the Chamber of Deputies of the Parliament of the  CR
that  on  26  March 2002 the draft of Act no.  231/2002  Coll.,
which amends and supplements the Act on Regions (the “draft  of
Act  no.  231/2002  Coll.”),  was  approved  by  the  necessary
majority  of deputies (94 deputies voted in favor, 65  deputies
against).  The Constitutional Court learned from the record  of
the  17th  session  of  the third term of  the  Senate  of  the
Parliament of the CR that on 10 May 2002 the amending  proposal
from Senate committees to delete the part of § 11 par. 3 of the
Act  on Regions which reads “as well as the proportionality  of
the amount of the fine in view of the property situation of the
person who committed the unlawful conduct” was approved by  the
necessary  majority of senators (55 senators  voted  in  favor,
none  against). However, the motion to return the draft of  Act
no. 231/2002 Coll. to the Chamber of Deputies as amended by the
amending  proposals was not passed (out of 65 senators present,
20 were in favor, 4 against ). Under the Senate rules of order,
the  failure to pass a motion ended discussion of the draft  of
Act  no. 231/2002 Coll., and in accordance with Art. 46 par.  3
and  par. 1 of the Constitution of the CR the draft of Act  no.
231/2002  Coll. was passed upon the expiration of  thirty  days
(during which the Senate took no action). The draft of Act  no.
231/2002  Coll. was then signed by constitutionally  designated
persons and duly promulgated in the Collection of Laws in  part
87, distributed on 16 May 2002.

2. On the substantive side, the petitioners specifically allege
(as is apparent from the petition) that the legal framework  in
the cited part of § 11 par. 3 of the Act on Regions creates  an
inequality  in  the  legal  order between  persons  who  commit
unlawful conduct in various areas of public administration, and
that (even if this were to strengthen the effectiveness of  the
penalty  imposed or protection against exceeding the bounds  of
the administrative body’s discretion) that this can not be done
in an unconstitutional manner. Therefore, they believe that the
contested  part  of  that provision is  inconsistent  with  the
constitutional order of the CR, because its passage results  in
violation of the constitutionally guaranteed equality of rights
(Art. 1 of the Charter), the ban on discrimination (Art. 3 par.
1  of the Charter), the right to privacy (Art. 7 par. 1 of  the
Charter  and  the right to protection of personality  (Art.  10
par. 2 and 3 of the Charter).
  
A. The Constitutional Court considered first of all whether the
part  of § 11 par. 3 of the Act on Regions which reads “as well
as the proportionality of the amount of the fine in view of the
property  situation  of the person who committed  the  unlawful
conduct” is inconsistent with Art. 1 and Art. 3 par. 1  of  the
Charter, on which the petitioners’ arguments rely.
 
a)  The related provisions of § 11 par. 1 of the Act on Regions
indicate  that a region may impose a fine of up to CZK  200,000
if  a legal entity, or a natural person who is an entrepreneur,
violates an obligation (within the independent jurisdiction  or
the transferred jurisdiction of the region) that is imposed  in
a  particular  legal  regulation  (decree,  directive)  of  the
region.
The  text  which the group of deputies proposes to be  annulled
(i.e.  the words “as well as the proportionality of the  amount
of the fine in view of the property situation of the person who
committed the unlawful conduct”), is part of § 11 par. 3 of the
Act  on  Regions, which reads in its entirety: “In setting  the
amount of a fine under paragraph 1, the region shall take  into
account,  in  particular,  the  nature,  gravity,  length   and
consequences  of  the  unlawful  conduct,  as   well   as   the
proportionality  of  the amount of the  fine  in  view  of  the
property  situation  of the person who committed  the  unlawful
conduct.”   This   provision  is  tied  to  the  abovementioned
provision of § 11 par. 1 of the Act, which reads: “A region may
impose  a  fine  of up to CZK 200,000 to a legal  entity  or  a
natural  person  who  is an entrepreneur (a  “person”),  if  it
violated  an  obligation imposed by a legal regulation  of  the
region.” That provision is not contested.

b)  Under  Art. 1 of the Charter, people are free,  have  equal
dignity, and enjoy equality of rights. Their fundamental rights
and    basic   freedoms   are   inherent,   inalienable,   non-
prescriptible, and not subject to repeal. Under Art. 3  par.  1
of  the  Charter, everyone is guaranteed the enjoyment  of  her
fundamental rights and basic freedoms without regard to gender,
race, color of skin, language, faith and religion, political or
other  conviction, national or social origin, membership  in  a
national or ethnic minority, property, birth, or other status.
      It  is  evident from the petition to annul  the  text  in
question that the petitioners point to, among other things, the
incompatibility  of  applying  the  factor  of  one’s  property
situation to evaluating the proportionality of the amount of  a
fine  with  the  guarantee of fundamental rights  and  freedoms
under  the cited provisions of Art. 1 and Art. 3 par. 1 of  the
Charter.
      In  the  settled  case  law of the Constitutional  Court,
equality under Art. 1 of the Charter is not understood  in  the
abstract,  but  in  relation to the dignity and  rights  of  an
individual,   that   is,   without  privileges,   and   without
discrimination (e.g. in property). This connection was  pointed
out  by  the Constitutional Court of the CSFR, which said  that
“the equality of citizens before the law was not understood  as
an  abstract category, but was always ascribed to a  particular
legal  norm,  understood  in the relationship  between  various
entities, and so on. … Relative equality, as it is conceived by
all  modern  constitutions,  requires  merely  the  removal  of
unjustified  differences  …  Special  norms  may  set   special
criteria  of equality for certain fields, which do  not  follow
from   the  general  principle,  because  application  of   the
principle  of equality does not set such precise bounds  as  to
rule  out any discretion by those who apply them” (see judgment
of  the  Constitutional  Court of the CSFR  Pl.  US  22/92  In:
Collection of Decisions. Constitutional Court of the  CSFR  no.
1, year 1992, judgment no. 11, pp. 37-38).
      The Constitutional Court concludes that in § 11 par. 3 of
the  Act  on  Regions  the  words “in particular”  express  the
illustrative nature of the criteria which the region takes into
account (must take into account) when setting the amount  of  a
fine.  The  term “property” must be interpreted in  conjunction
with  the  words “in particular” and “as well as,” so  the  Act
does  not rule out the possibility of taking into account other
aspects  of  the prosecuted person’s situation than solely  his
property  situation. The Constitutional Court states  that  the
wording  chosen by the legislature is not the most suitable  in
grammatical terms, but that it can be, in accordance  with  the
principle  of  minimizing interference  by  the  Constitutional
Court,  integrated  into the legal order  by  a  constitutional
interpretation  of  the  contested  norm.  The  fact  that  the
legislature,  in  its illustrative list of criteria  which  the
region  must  take into account when imposing  fines,  included
objective criteria (nature, gravity, length and consequences of
the  unlawful  conduct) but only one subjective criterion  (the
offender’s property situation) can not be understood as  a  ban
which  prevents  the  region  from  appropriately  taking  into
account  aspects other than property aspects of the  prosecuted
person’s  situation.  In  any case, the  examination  of  one’s
property  situation  is established in the  Czech  legal  order
(similarly to the legal orders of other developed countries) in
a  number  of  contexts  (not  only  as  a  criterion  for  the
proportionality of an imposed penalty), and in the  opinion  of
the Constitutional Court it can not be interpreted a limine  as
unconstitutional  because it introduces inequality  in  dignity
and rights.
      Insofar  as  the  petitioners claim that introducing  the
criterion of property situation into the decision making on the
amount  of a penalty creates possible discrimination  based  on
property,  i.e.  violation of the principle of  equality,  this
claim  must  be rejected. The Constitutional Court consistently
rules that it does not understand equality to be absolute,  but
relative  (and,  moreover, an accessory in  relation  to  other
fundamental  rights  and  freedoms). The  concept  of  relative
equality  is  closely  related to the concept  of  proportional
interference in fundamental rights. It follows necessarily from
the nature of a fine as a property-based penalty that if it  is
to be customized and proportional, it must reflect the punished
party’s  property situation. A fine in the same amount  imposed
on  a wealthy person will be laughable and ineffective, whereas
in  the  case  of  punishing a non-wealthy person,  it  can  be
draconic  and  liquidatory.  Thus, the  principle  of  relative
equality  is not violated if two persons in various  situations
are  given  fines  of  different  amounts,  although  the  only
difference  in  their  situations  may  be  different  property
situations.  From a substantive viewpoint (the purpose  of  the
law) one can even conclude that the criterion of examining  the
offender’s property situation when considering the amount of  a
fine  is  necessary and complementary – of course, not  because
high  fines would be unenforceable (as the Chamber of  Deputies
claims), but because of the risk of a “liquidatory” effect of a
disproportionately  high fine. Fines, as  punishment,  must  be
differentiated in order to function as a punishment  and  as  a
deterrent    (individual   and   general    prevention).    The
Constitutional  Court has already said,  some  time  ago,  that
“egalitarian universalism would necessarily cause  deeply  non-
functional social effects” (cf. judgment no. Pl US 4/95  –  in:
The  Constitutional Court of the Czech Republic: Collection  of
Decisions  –  volume 3. 1st edition. Praha  C.H.Beck  1995,  p.
215).  The Constitutional Court gave detailed consideration  to
the  issue  of  the  proportionality of property  penalties  in
relation to the personal situation of penalized persons in  its
Judgment  no. Pl. US 3/02, to which it refers, and it considers
it  necessary to emphasize that in that judgment too it  stated
that “a fine may be compatible with Art. 11 of the Charter  and
Art.  1  of the Protocol if it permits – at least to a  certain
degree – taking into account the offender’s property situation”
(cf. Judgment no. Pl. US 3/02 – In: the Constitutional Court of
the Czech Republic: Collection of Decisions – vol. 27, C.H.Beck
2002, p. 187).

B.  The Constitutional Court emphasizes that the part of  §  11
par.  3  of  the  Act on Regions which reads “as  well  as  the
proportionality  of  the amount of the  fine  in  view  of  the
property  situation  of the person who committed  the  unlawful
conduct”  is not unconstitutional interference in the principle
of  equal rights. The petitioners err when they claim that “the
criterion of the proportionality of the amount of the  fine  in
view of the property situation of the person who committed  the
unlawful conduct is not used in other norms in the legal  order
of  the Czech Republic that govern administrative infractions.”
Examination  of  a  particular  person’s  situation  is   found
numerous times in the legal order, e.g. in § 83 par. 1  of  the
Act  on  the Constitutional Court (“If it is justified  by  the
complainant’s personal and property situation, in particular if
he  does  not  have  sufficient  funds  to  pay  the  costs  of
representation  ..  the  judge rapporteur  shall  rule  on  the
complainant’s petition, filed before oral proceedings, that the
state pay his costs of representation in full or in part.”), in
§  31  par.  1  of the Criminal Code (“In setting the  kind  of
punishment and its degree the court shall take into  account  …
the  possibility  for rehabilitation and the situation  of  the
perpetrator.”),  in  §  54 par. 1 of  the  Criminal  Code  (“In
assessing a monetary penalty, the court shall take into account
the perpetrator’s personal and property situation …”), in § 73a
par.  2  of the Criminal Procedure Code (“accepting a  monetary
guarantee  is permissible …, together with taking into  account
the  person and property situation of the accused or the person
who  offers to deposit a monetary guarantee on his behalf  …”),
in  §  91  par.  1 of the Criminal Procedure Code (“Before  the
first  interrogation it is necessary to determine the  identity
of  the  accused,  ask about his family, property  and  earning
possibilities and previous punishments …”), in § 309 par. 1  of
the  Criminal  Procedure Code (apart from the conditions  cited
therein,   approval   of  settlement  and   stopping   criminal
prosecution  is  also possible in view of “the  person  of  the
accused  and his personal and property situation”), also  in  §
450  of  the  Civil Code (permitting reducing  compensation  of
damages  in  view  of, among other things,  “the  personal  and
property  situation  of  the natural  person”  who  caused  the
damage,  and  “the  situation of the  natural  person  who  was
damaged”), in provisions concerning support payments in the Act
on  the  Family  –  § 85 par. 2 (“according to  his  abilities,
possibilities  and  property  situation”),  §  89  (“abilities,
possibilities  and  property  situation”),  §  92  (“abilities,
possibilities and property situation”). In the area of imposing
fines  for  administrative infractions in this  regard  we  can
point  to,  e.g.  Act  no.  15/1998 Coll.,  on  the  Securities
Commission  (§  10  par. 4 – “When deciding on  the  choice  of
measures  for  correction  or  penalties  under  this  Act  the
Commission is required … to apply proportionality as a starting
point  when  imposing a fine in view of the  person’s  property
situation.”).
      It  is evident that in a number of cases the legal  order
requires  examination  of  the  personal,  property  and  other
situation   of   the   person  concerned  in   the   particular
proceedings.  Thus,  in  the  Constitutional  Court’s  opinion,
statutory regulation allowing an examination of the “situation”
of  a natural person doing business or a legal entity, as such,
is  not  unconstitutional and does not introduce inequality  in
dignity and rights, as the petitioners believe. In this regard,
the  Constitutional  Court points out  that  knowledge  of  the
situation of the person in question (the offender) must also be
assumed  in  the  case of judicial review of a regional  body’s
decision  to  impose  a  fine – a review  which  the  group  of
deputies  believes  is  sufficient  protection  –  because   if
judicial review is to protect against possible harsh impact  of
the  law (especially in full jurisdiction), the court also  can
not  do  without information about the situation of persons  on
whom the fine was imposed.
      The  Constitutional  Court also  does  not  believe  that
statutorily required examination of the property situation of a
legal  entity or a natural person who is an entrepreneur (§  11
par.   1  of  the  Act  on  Regions),  creates  “a  basis   for
impermissible and unconstitutional unequal treatment of persons
who  commit  the same unlawful conduct” The group  of  deputies
cites  as grounds the necessarily different interpretation  and
application  of  the  term  “property  situation,”   especially
because  it can be applied to both a legal entity and a natural
person.  In  this  regard  the Constitutional  Court  considers
decisive  that  in  the present matter a  legal  entity  and  a
natural person who is an entrepreneur (cf. § 11 par. 3  of  the
Act  on Regions) are similar persons, because the criterion for
their  status  must  be  their business activity  and  property
situation  arising  from  and related  to  it.  Therefore,  the
property  situation must be interpreted in the  same  way,  and
there  is  no  reason to differentiate between  these  persons.
Therefore,  in the given case – where imposing fines  on  legal
entities  and natural persons who are entrepreneurs  could  not
lead   to   different  interpretation  of  the  term  “property
situation”  in  relation to these persons – it is inappropriate
for  the  group  of  deputies to argue  on  the  basis  of  the
Constitutional Court’s opinion (a contrario) in file no. Pl. US
47/95  in  fine  (In:  the Constitutional Court  of  the  Czech
Republic:  Collection  of Decisions – volume  5.  1st  Edition.
Praha, C. H. Beck 1997, p. 213).

C.  Therefore,  the Constitutional Court did not conclude  that
examination of property situation by a regional body  would  be
unconstitutional  interference in  the  privacy  of  a  natural
person who is an entrepreneur or unauthorized gathering of data
about that person, and that it would thus violate Art. 7 par. 1
and  Art. 10 par. 2 and par. 3 of the Charter; in any case  the
group  of  deputies  does not specify that in  greater  detail.
Naturally,  this  is also not so with legal entities.  In  this
regard,  one can point to Act no. 101/2000 Coll. on  Protection
of Personal Data and Amending Certain Acts, as amended by later
regulations (“Act no. 101/2000 Coll.”), which in §  4  let.  a)
uses the term “personal data” (basically making it possible  to
determine  the identity of the data subject) and in  letter  b)
speaks  of sensitive data, which it expressly lists,  but  does
not  include  property data. Under § 5 par. 2 of that  Act,  an
administrator (i.e. including regional bodies – cf. § 3 par.  1
of  the  Act) may process cf. § 1 and § 4 let. e)  of  the  Act
personal  data  with the consent of the data  subject.  It  may
process  them without that consent § 5 par. 2 let.  a)  of  the
Act, if it is performing processing set forth by a special  act
where  necessary to fulfil obligations specified by  a  special
act  (it cites some laws as examples). The Constitutional Court
considers that one such special act is the Act on Regions  (the
contested  part)  and that the region’s actions  (weighing  the
proportionality  of the fine amount in view of  the  offender’s
situation)  are  processing  personal  data  under  the   cited
provision  of  Act no. 101/2000 Coll. A similar opinion  for  a
range  of  cases  where there may not be consent  of  the  data
subject under § 5 par. 2 of Act no. 101/2000 Coll. can be found
in  specialized  literature (cf. Mates,  P.:  Ochrana  osobnich
udaju.  [Protection  of  Personal Data] Charles  University  in
Prague. Karolinum 2002, p. 48).
      However, as regards Act no. 101/2000 Coll., one can  also
argue  first on a more fundamental level. This Act defines  its
personal  jurisdiction  in  § 1 (Subject  Matter)  so  that  it
governs  protection  of the personal data of  natural  persons.
Thus,  it  does not protect legal entities. As regards  natural
persons who are entrepreneurs – and who are subject to § 11  of
the  Act  on  Regions,  part of which is contested  –  one  can
conclude  likewise,  because the distinguishing  criterion  for
their  status must be their entrepreneurial activity. Thus,  in
the  opinion  of  the  Constitutional Court,  data  about  this
activity  (as  in  the  case of legal entities)  do  not  enjoy
protection under Act no. 101/2000 Coll..
      For all these reasons the Constitutional Court denied the
petition from the group of deputies to annul the part of  §  11
par.  3  of  the  Act on Regions which reads “as  well  as  the
proportionality  of  the amount of the  fine  in  view  of  the
property  situation  of the person who committed  the  unlawful
conduct”  under  §  70 par. 2 of the Act on the  Constitutional
Court.

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

Brno, 9 March 2004



Dissenting opinion
of JUDr. Vojen Guttler

In  my  opinion the Constitutional Court should have  ruled  as
follows:
I.  The  part  of  §  11 par. 3 of Act no. 129/2000  Coll.,  on
Regions  (Regional  Establishment),  as  amended  by  Act   no.
273/2001 Coll., Act no. 320/2001 Coll., Act no. 450/2001  Coll.
and  Act  no. 231/2002 Coll. which reads “property” is annulled
as of the day this judgment is promulgated in the Collection of
Laws.
II. The rest of the petition is denied.

I base this on the following reasons:

A)  1. I consider that the words “in particular” used in  §  11
par. 3 of the Act on Regions express the illustrative nature of
the  criteria  which the region takes (must take) into  account
when  setting  the  amount of a fine only  visually  (at  first
glance).  It  is impossible to see that the term “property”  is
expressly  raised  as  the  only  element  for  evaluating  the
proportionality  of  the  amount  of  the  fine,  so  that  any
possibility  of  taking other situations into account  (despite
the  expression “in particular”) appears to be a secondary  one
in  comparison with the leading and dominant aspect,  which  is
the  property situation. Thus, in my opinion, this fact can not
be   overcome  by  an  interpretation  which  would   make   it
sufficiently  possible to appropriately take into  account  any
other  situation  of the prosecuted person  than  its  property
situation;  in  other words, the text of  the  law  –  and  its
content  –  shifts  to  a disproportionately  less  significant
position  the possibility of the region (imposing the fine)  to
reflect  the  person’s situation other than only  the  property
situation.  The  express  reference  to  (only)  the   property
situation  (and  no  other)  would  in  this  regard  lead   to
discriminatory  consequences, because – and the  Constitutional
Court has already ruled on this – Art. 3 of the Charter creates
a  substantive law guarantee of fundamental rights and freedoms
and “is actually complementary to the principle of equality and
strives  to create a state of non-discrimination” (cf.  Pl.  US
31/94  In:  the  Constitutional Court of  the  Czech  Republic:
Collection of Decisions – volume 3. 1st Edition. Praha,  C.  H.
Beck  1995, p. 185). I believe that in this situation the  text
of § 11 par. 3 of the Act on Regions is not sufficiently clear,
precise  and  foreseeable, in formal terms,  so  that  in  this
regard  the  generally  recognized requirements  for  the  term
“statute” have not been met.
       Beyond  these  considerations,  one  can  add  that  the
expression  “in  particular” can also be  interpreted  only  in
relation  to the first part of § 11 paragraph 3 of the  Act  on
Regions  (i.e. “In setting the amount of a fine under paragraph
1,  the  region  shall take into account,  in  particular,  the
nature,  gravity,  length  and  consequences  of  the  unlawful
conduct”), whereas the text after the conjunction “as well  as”
concerns only the proportionality of the amount of the fine  in
view  of  the person’s property situation. In terms of content,
the  text  of  this statutory provision thus expressly  focuses
(only)  on  the  property situation which is to be  taken  into
account when evaluating the proportionality of the fine amount.
Thus,  the text of the statute is not sufficiently precise  and
foreseeable in this regard either.
       In   this  situation,  I  consider  that,  although  the
petitioner  did not specifically raise this point,  this  makes
this regulation inconsistent with Article 1 of the Constitution
of  the CR, because a statutory regulation thus formulated does
not  follow the principles of a state governed by the  rule  of
law.
      One  can also conclude from these deliberations that  the
contested  part  of  § 11 par. 3 of the Act on  Regions,  which
reads “as well as the proportionality of the amount of the fine
in  view  of the property situation of the person who committed
the  unlawful  conduct” when it uses the  word  “property,”  is
inconsistent  with  Art. 1 and Art. 3 par. 1  of  the  Charter,
because it basically does not reflect other situations (i.e. of
the  persons who committed the unlawful conduct) than  property
ones.  In  view  of  this,  it is also  inconsistent  with  the
abovementioned case law and recognized literature,  because  it
is   possible   to  conclude,  indirectly,  that   it   affects
differently individual affected persons in the same  conditions
(see Pavlicek, V., Hrebejk, J., Knapp, V., Kostecka, J., Sovak,
Z.:  Ustava a ustavni rad Ceske republiky [The Constitution and
the Constitutional Order of the Czech Republic. part 2: Prava a
svobody [Rights and Freedoms], Linde, a.s. Prague 1995, p. 35),
quotation: “the norms of the legal order are supposed to impose
obligations  or  other  disadvantages,  e.g.  punishments,  and
provide  rights  and other advantages, to all persons,  equally
under the same conditions.”
      Therefore, the Constitutional Court should have  annulled
the  word “property” in § 11 par. 3 of Act no. 129/2000  Coll.,
on  Regions  (Regional Establishment), as amended  by  Act  no.
273/2001 Coll., Act no. 320/2001 Coll., Act no. 450/2001  Coll.
and Act no. 231/2002 Coll..

2.  Naturally,  if the Constitutional Court annulled  the  word
“property”  in  the  contested provision, it  could  not  avoid
considering whether to conclude that there was violation of the
principle  of  equality  and the ban on discrimination  without
there  being  a  violation  of a particular  fundamental  right
guaranteed  by the constitutional order. The petitioners  claim
that the contested part of § 11 par. 3 of the Act on Regions is
inconsistent  with  the constitutionally  guaranteed  right  to
privacy  (Art. 7 par. 1 of the Charter) and with the  right  to
protection  of personality (Art. 10 par. 2 and par.  3  of  the
Charter);  however, the Constitutional Court should  not  reach
that  conclusion – as is stated in the following text. In  this
regard I point to the Constitutional Court’s previous case law,
under  which  the principles of the band on discrimination  and
equality between people can be “fundamentally” or “as  a  rule”
violated if another particular fundamental right or freedom  is
violated (cf. Pl. US 4/95 In: The Constitutional Court  of  the
Czech  Republic:  Collection  of  Decisions  –  volume  3.  1st
Edition. Prague, C. H. Beck 1995, p. 209; Pl. US 5/95  In:  The
Constitutional  Court  of  the Czech  Republic:  Collection  of
Decisions – volume 4. 1st Edition. Prague, C. H. Beck 1996,  p.
206). Thus, as regards violation of another particular right or
freedom,  this  is  not  always  a  necessary  condition  (arg.
“fundamentally,”  “as a rule”). This is also supported  by  the
opinion  of  the recognized specialized literature (viz  Sudre,
F.:  Mezinarodni a evropske pravo lidskych prav. [International
and   European  Human  Rights  Law]  Masaryk  University  Brno,
European Information Center of Charles University 1997, p.  223
–   224),   under   which  the  ban  on  discrimination   (non-
discrimination) under Art. 14 of the Convention for  Protection
of Human Rights and Fundamental Freedoms (the “Convention”) has
independent significance and the applicability of this  article
should not be limited only to cases of concurrent violation  of
another  article  of  the  Convention.  As  a  result  of   its
recognized  independent  significance, “the  non-discrimination
clause  can thus come into play even if there was no  violation
of   another  guaranteed  right  …  Article  14  thus   permits
condemning discrimination in the exercise of a right  which  is
itself  observed.”  In  my opinion a  situation  arose  in  the
present case in which one can accent precisely this independent
significance  of  the protection of equality  (Art.  1  of  the
Charter)  and the band on discrimination (Art. 3par. 1  of  the
Charter);  thus,  there is the possibility,  envisaged  in  the
cited  Constitutional  Court case law (see  its  abovementioned
decisions,  Pl.  US  4/95  and  Pl.  US  5/95).  This   follows
particularly  from  the  fact  that,  as  already  stated,  the
contested  part of § 11 par. 3 of the Act on Regions  does  not
sufficiently meet the generally recognized requirements for the
term “statute,” which must be appropriately precise, clear, and
have   foreseeable   consequences.  This  is   a   sufficiently
fundamental defect that one can not fail to reflect it  in  the
present situation.

B)  1.  Therefore,  I  emphasize that the Constitutional  Court
should not have annulled the word “property” in § 11 par. 3  of
the Act on Regions because examination of property situation  –
including the other situation of the perpetrator of an  offense
–  is  unconstitutional, but for the reason that it is provided
in   the  Act  as  a  considerably  dominant  relevant  element
concerning  the  situation  of the person  in  question,  which
apparently can not be overcome even through interpretation (see
arguments above). In any case, a reference to the situation  of
a  particular  person, or examination of  the  situation  of  a
particular person, can be found fairly frequently in the  legal
order  –  as  the Plenum of the Constitutional Court  correctly
states on p. 8 of the judgment; e.g. in § 83 par. 1 of the  Act
on  the  Constitutional  Court (“If  it  is  justified  by  the
complainant’s personal and property situation, in particular if
he  does  not  have  sufficient  funds  to  pay  the  costs  of
representation  ..  the  judge rapporteur  shall  rule  on  the
complainant’s petition, filed before oral proceedings, that the
state  pay his costs of representation in full or in part.”  ),
in  §  31 par. 1 of the Criminal Code (“In setting the kind  of
punishment and its degree the court shall take into  account  …
the  possibility  for rehabilitation and the situation  of  the
perpetrator.”),  in  §  54 par. 1 of  the  Criminal  Code  (“In
assessing a monetary penalty, the court shall take into account
the perpetrator’s personal and property situation …”), in § 73a
par. 2 of the Criminal Code (“accepting a monetary guarantee is
permissible …, together with taking into account the person and
property  situation of the accused or the person who offers  to
deposit a monetary guarantee on his behalf …”), in § 91 par.  1
of the Criminal Procedure Code (“Before the first interrogation
it  is necessary to determine the identity of the accused,  ask
about  his  family,  property  and  earning  possibilities  and
previous  punishments  …”), in § 309 par.  1  of  the  Criminal
Procedure  Code  (apart  from  the  conditions  cited  therein,
approval  of  settlement and stopping criminal  prosecution  is
also  possible  in view of “the person of the accused  and  his
personal  and property situation”), also in § 450 of the  Civil
Code,  also  in  §  450 of the Civil Code (permitting  reducing
compensation  of damages in view of, among other  things,  “the
personal  and  property situation of the  natural  person”  who
caused the damage, and “the situation of the natural person who
was damaged”), in provisions concerning support payments in the
Act  on  the Family – § 85 par. 2 (“according to his abilities,
possibilities  and  property  situation”),  §  89  (“abilities,
possibilities  and  property  situation”),  §  92  (“abilities,
possibilities and property situation”). It is evident that in a
number  of  cases the legal order requires examination  of  the
personal,  property and other situation of the person concerned
in  the  particular proceedings. personal, property  and  other
situation   of   the   person  concerned  in   the   particular
proceedings. Thus, in my opinion, statutory regulation allowing
an  examination  of the “situation” of a natural  person  doing
business  or  a  legal entity, as such, is not unconstitutional
and does not introduce inequality in dignity and rights, as the
petitioners  believe. In this regard – in  accordance  with  my
opinion  –  the Plenum also pointed out that knowledge  of  the
situation of the person in question (the offender) must also be
assumed  in  the  case of judicial review of a regional  body’s
decision  to  impose  a  fine – a review  which  the  group  of
deputies  believes  is  sufficient  protection  –  because   if
judicial review is to protect against possible harsh impact  of
the  law (especially in full jurisdiction), the court also  can
not  do  without information about the situation of persons  on
whom the fine was imposed.
      The  fact  that the property situation of the  person  in
question,  as  well as his other (personal)  situation  may  be
relevant  to the amount of the fine can also be concluded  from
the  Constitutional Court judgment Pl. US 3/02, which  says  in
the  introduction that “The statutorily provided minimum amount
of a fine must be set so that it permits, at least to a certain
degree, taking into account the property and personal situation
of   the   offender”  (cf.  Collection  of  Decisions  of   the
Constitutional  Court – vol. 27, p. 177). That  case  concerned
the  imposition of a fine under § 106 par. 3 of Act no. 50/1976
Coll.  (the Building Act), as amended by later regulations,  in
which  the  Constitutional Court annulled the words  “from  CZK
500,000.”

2.  Further,  I  do not believe – also in accordance  with  the
Plenum’s opinion – that the statutorily imposed examination  of
the  situation of a legal entity or a natural person who is  an
entrepreneur (§ 11 par. 1 of the Act on Regions), that  is  the
personal,  family, property, etc. situation, creates  “a  basis
for  impermissible  and unconstitutional unequal  treatment  of
persons  who  commit the same unlawful conduct.” The  group  of
deputies   cites   as   grounds   the   necessarily   different
interpretation   and   application  of   the   term   “property
situation,”  especially because it can be  applied  to  both  a
legal  entity and a natural person. In this regard  I  consider
decisive  that  in  the present matter a  legal  entity  and  a
natural person who is an entrepreneur (cf. § 11 par. 3  of  the
Act  on Regions) are similar persons, because the criterion for
their  status  must  be  their business activity  and  property
situation  arising  from  and related  to  it.  Therefore,  the
property  situation must be interpreted in the  same  way,  and
there  is  no  reason to differentiate between  these  persons.
Therefore,  in the given case – where imposing fines  on  legal
entities  and natural persons who are entrepreneurs  could  not
lead   to   different  interpretation  of  the  term  “property
situation”  in  relation to these persons – it is inappropriate
for  the  group  of  deputies to argue  on  the  basis  of  the
Constitutional Court’s opinion (a contrario) in file no. Pl. US
47/95  in  fine  (in:  The Constitutional Court  of  the  Czech
Republic:  Collection  of Decisions – volume  5.  1st  Edition.
Praha, C. H. Beck 1997, p. 213).

[3.  Note: Insofar as I agree in the above arguments  with  the
opinion of the Plenum of the Constitutional Court, I do so only
because,  in  my opinion, the petition should have been  partly
denied,  with  the  exception of the word “property.”  This  is
discussed further under let. C) of this dissenting opinion.]

C.  Therefore,  I  did  not conclude that  examination  of  the
offender’s situation (i.e. personal, family, property, etc.) by
a  regional body would be unconstitutional interference in  the
privacy  of  a  natural  person  who  is  an  entrepreneur   or
unauthorized gathering of data about that person, and  that  it
would thus violate Art. 7 par. 1 and Art. 10 par. 2 and par.  3
of  the  Charter;  in any case the group of deputies  does  not
specify that in greater detail. Naturally, this is also not  so
with  legal entities. In this regard, one can point to Act  no.
101/2000  Coll.  on  Protection of Personal Data  and  Amending
Certain  Acts,  as  amended  by  later  regulations  (“Act  no.
101/2000  Coll.”), which in § 4 let. a) uses the term “personal
data”  (basically making it possible to determine the  identity
of the data subject) and in letter b) speaks of sensitive data,
which  it expressly lists, but does not include property  data.
Under  § 5 par. 2 of that Act, an administrator (i.e. including
regional bodies – cf. § 3 par. 1 of the Act) may process cf.  §
1  and § 4 let. e) of the Act personal data with the consent of
the data subject. It may process them without that consent §  5
par.  2 let. a) of the Act, if it is performing processing  set
forth  by  a special act where necessary to fulfill obligations
specified by a special act (it cites some laws as examples).  I
consider  that one such special act is the Act on Regions  (the
contested  part)  and that the region’s actions  (weighing  the
proportionality  of the fine amount in view of  the  offender’s
situation)  are  processing  personal  data  under  the   cited
provision  of  Act no. 101/2000 Coll. A similar opinion  for  a
range  of  cases  where there may not be consent  of  the  data
subject under § 5 par. 2 of Act no. 101/2000 Coll. can be found
in  specialized  literature (cf. Mates,  P.:  Ochrana  osobnich
udaju.  [Protection  of  Personal data] Charles  University  in
Prague. Karolinum 2002, p. 48).
      However, as regards Act no. 101/2000 Coll., one can  also
argue  first  on  a  more basic level.  This  Act  defines  its
personal  jurisdiction  in  § 1 (Subject  matter)  so  that  it
governs  protection  of the personal data of  natural  persons.
Thus,  it  does not protect legal entities. As regards  natural
persons who are entrepreneurs – and who are subject to § 11  of
the  Act  on  Regions,  part of which is contested  –  one  can
conclude  likewise,  because  in  terms  of  their  status  the
distinguishing   criterion   must  be   their   entrepreneurial
activity. Thus, in my opinion, data about this activity (as  in
the  case of legal entities) do not enjoy protection under  Act
no. 101/2000 Coll..
     For all these reasons the Constitutional Court should have
denied the petition from the group of deputies, only concerning
the remainder of the text of the contested regulation (i.e. the
words “as well as the proportionality of the amount of the fine
in  view  of the property situation of the person who committed
the unlawful conduct”).

Brno, 9 March 2004



Dissenting opinion
of JUDr. Dagmar Lastovecka

Imposing  a  fine for violation of an obligation imposed  by  a
region’s  legal regulation is generally subject to the regions’
discretion (through use of the term “may” in § 11 par. 1 of the
Regional  Establishment Act). In a situation where  the  region
implements administrative law responsibility, the law  provides
criteria for administrative punishments. One can not very  well
substitute the possibility of considering whether to apply  the
responsibility at all with the circumstances of  customizing  a
punishment. In the present case, therefore, it is necessary  to
review  the matter from the point of view of a situation  where
the administrative body, upon consideration, concluded that the
responsibility would be applied. Therefore, I believe  that  it
is  necessary  to  independently review §  11  par.  3  of  the
Regional Establishment Act from a constitutional viewpoint,  as
is  indicated by the proposed judgment in the petition filed in
this matter.
      For purposes of a customizing criterion in administrative
punishment   in  relation  to  the  objective  aspect   of   an
administrative  offense committed by violation  of  a  region’s
legal regulation, § 11 par. 3 of the Regional Establishment Act
gives  an  administrative body, in an  illustrative  list,  the
obligation to take into account the nature, gravity, length and
consequences of the unlawful conduct. In addition, the part  of
that  provision  which is contested in this case  requires  the
administrative body, in relation to the subject matter  of  the
administrative   offense,  to  take  into  account   only   the
offender’s property situation. The sentence structure  of  this
provision indicates that the cited part of the sentence is  not
part  of  the  illustrative list introduced by  the  words  “in
particular.”   Concluding  that  the  criterion   of   property
situation  is  illustrative  would  be  inconsistent  with  the
linguistic expression of the provision. Even if the legislature
intended   to  understand  that  criterion  as  part   of   the
illustrative  list,  and did not do so  only  as  a  result  of
unsuitable   legislatively-technical   construction   of    the
provision,  its “intent” is irrelevant, because the substantial
element is the objective situation which is introduced  by  the
text  of  the legal regulation. The opposite approach would  be
inconsistent with the principle which the Constitutional  Court
pronounced in its resolution of 1 March 1995 in file no. II. US
109/94   (with  reference  to  the  judgment  of  the   Supreme
Administrative Court of 19 November 1923, no. 19.666, published
in  the  Bohuslav  Collection  as  no.  A  2885/23,  p.  2078),
according to which: “Anything which can not be interpreted from
the statutory text itself, using interpretive rules, can not be
considered to be the expressed intent of the legislature.” From
a  systematic  viewpoint it is likewise necessary  to  conclude
that  the content of the term “property” has a literal meaning,
because when compared with other provisions of the Czech  legal
order in which the phrase “property situation” appears, one can
not defend the opinion that the word “property” permits a broad
interpretation,  which would also permit  taking  into  account
other  circumstances,  even  though  closely  related  to   the
property  situation.  Even in view  of  this  fact  it  must  e
concluded  that § 11 par. 3 of the Regional Establishment  Act,
whose  meaning  is unambiguous, can not permit a constitutional
interpretation   which   would  allow  weighing   criteria   of
customizing  a  punishment  not expressly  provided  in  it  in
relation to the subject of unlawful conduct.
      A  penalty  which  is the consequence  of  liability  for
violation of an obligation imposed by a public law norm (on its
basis) should be understood as “evaluation” of the unlawfulness
of  interference  into a legally protected interested.  If  the
legal norm governing customization of a penalty in relation  to
the subject of unlawful conduct assumes it will be necessary to
take  into  account only the offender’s property situation,  it
thus   makes  the  consequence  of  unlawful  conduct   largely
dependent  on  precisely  that  criterion.  Evaluation  of  the
intensity of interference into a legally protected interest  is
thus  causally related, above all, with the property  situation
of  the  penalized person; this (not taking into account  other
circumstances  on  the  part  of  the  person)  can   lead   to
suppressing  the  evaluation of the  objective  aspect  of  the
administrative  infraction. As a result of this situation,  the
degree   of   administrative  law  liability  is   secularized,
depending  on the material situation of the persons  committing
unlawful conduct, which denies its basic purpose, i.e.  setting
a  degree  of  liability according to the  socially  acceptable
value  of  a  legally protected interest which  was  interfered
with,  with  the use of all generally recognized  criteria  for
imposing a punishment. Therefore, in my opinion it must be said
that transferring the customizing criteria of an administrative
punishment largely into the area of property situation  creates
inequality  in  rights, because that method of  deciding  on  a
penalty   makes  liability  dependent  primarily  on   property
situation.  The  provision  of § 11  par.  3  of  the  Regional
Establishment  Act  can  lead  to discrimination  through  this
disproportionately  unilateral subjectivity  of  liability  for
offenses.  Therefore,  I  believe that the  reviewed  provision
creates  inconsistency with Art. 1 and Art. 3  par.  1  of  the
Charter of Fundamental Rights and Freedoms.
       The  Constitutional  Court  previously  considered   the
circumstances  of  setting  a  property  penalty,  taking  into
account the offender’s property situation in its judgment of 13
August  2002, file no Pl. US 3/02 in connection with a petition
to  annul  part  of § 106 par. 3 of Act no. 50/1976  Coll.,  as
amended by later regulations, when it annulled the words  „from
CZK 500,000” in that provision. In that case the Constitutional
Court  reviewed  possible interference in the  constitutionally
guaranteed  rights of the offender as a result of limiting  the
discretionary powers of an administrative body by  raising  the
lower  limit of a penalty, and stated that any setting  of  the
lower  limit of a penalty must be set so that imposing a  fine,
even if only a minimal one, would not have a liquidatory effect
on  the offender. In terms of meeting this requirement from the
constitutional  law review in that case, it followed  that  the
criteria  for  customizing administrative law liability  should
permit  taking  into  account both  the  circumstances  of  the
objective  aspect  of  the offense, as  well  as  circumstances
concerning  the person of the offender, including his  property
situation.
      The judgment’s reasoning refers to a number of provisions
in the Czech legal order in which the term “property situation”
appears.  These primarily reflect the need to consider property
situation  in  connection  with  evaluating  the  scope  of   a
substantive law entitlement (e.g. § 85 par. 2 of the Act on the
Family),  or, in a procedural legal norm, impose an  obligation
on  a body to determine a circumstance (e.g. § 91 par. 1 of the
Criminal  Procedure  Code). Analysis  of  these  provisions  is
appropriate  in  a  situation where it  establishes  the  legal
regime  for punishment. From that point of view, one  can  also
consider §§ 53 and 54 of the Criminal Code and § 10 par.  4  of
Act  no.  15/1998  Coll.,  on  the  Securities  Commission  and
amending  and  supplementing other acts, as  amended  by  later
regulations.  The  first named provisions  regulate  the  legal
regime of imposing a monetary fine. It must first be emphasized
that  a  monetary punishment is an alternative punishment,  and
the court weighs, according to the nature of a specific case (§
53 par. 1 to 3 of the Criminal Code) whether there is statutory
scope  to impose it. The content of § 54 par. 1 of the Criminal
Code  indicates  that property situation is  only  one  of  the
criteria  for customizing a monetary punishment in relation  to
the  perpetrator of a crime; therefore, the statutory provision
allows meeting the requirement of proportionality, as mentioned
above.  Moreover, the Criminal Code accents the possibility  of
implementing  a  monetary punishment; thus it deliberates  from
the  viewpoint  of  potential  execution  of  the  decision,  a
consideration which can not be derived from the content of § 11
par.  3, and it must be reviewed as part of the conditions  for
execution  of  a  decision  (for example,  by  considering  the
possibility of stopping execution of a decision on some of  the
grounds contained in § 268 par. 1 of the Civil Procedure Code).
As  regards  § 10 par. 4 of Act no. 15/1998 Coll., it  must  be
said  that  this  provision contains  the  offender’s  property
situation as a criterion for customizing a penalty in the  form
of a fine, but this penalty is only one of a series of possible
steps  for  removing  or  penalizing  the  unlawful  situation.
Therefore, the purpose and nature of this provision are not the
same  as  the purpose and nature of § 11 par. 3 of the Regional
Establishment  Act,  where a fine is the  only  instrument  for
reparation  or penalization available to address conflict  with
the region’s regulations.
     In this situation, I believe that the Constitutional Court
should have ruled on the petition from the group of deputies of
the  Parliament of the Czech Republic seeking annulment of  the
part  §  11  par.  3  of  Act no. 129/2000  Coll.,  on  Regions
(Regional Establishment), as amended by Act no. 273/2001 Coll.,
Act  no.  320/2001 Coll., Act no. 450/2001 Coll.  and  Act  no.
231/2002 Coll., which reads “as well as the proportionality  of
the amount of the fine in view of the property situation of the
person  who  committed the unlawful conduct” by  annulling  the
word “property” in the contested provision and denying the rest
of the petition.

Brno, 9 March 2004