Reference no.: |
U-I-12/12 |
Objavljeno: |
Official Gazette RS, No. 92/2014 and OdlUS XX, 30 | 11.12.2014 |
ECLI: |
ECLI:SI:USRS:2014:U.I.12.12 |
Act: |
Minor Offences Act (Official Gazette RS, Nos. 29/11 – official consolidated text, 21/13, and 111/13) (MOA-1), 1st, 2nd, 3rd, and 4th paras. of Art. 19, 7th para. of Art. 19, and Art. 202b. |
Operative provisions: |
The first, second, third, and fourth paragraphs of Article 19, the seventh paragraph of Article 19 insofar as it refers to the enforcement of imprisonment for the enforcement of fines, and Article 202b of the Minor Offences Act (Official Gazette RS, Nos. 29/11 – official consolidated text, 21/13, and 111/13) are abrogated.
Decision-making proceedings regarding imposing imprisonment for the enforcement of fines that have not yet been concluded by the date of publication of this Decision in the Official Gazette of the Republic of Slovenia shall be discontinued. In cases in which decision-making proceedings regarding imposing imprisonment for the enforcement of fines have been concluded by the mentioned date, imprisonment for the enforcement of fines shall not be enforced and such imprisonment shall be discontinued.
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Abstract: |
Imprisonment for the enforcement of fines entails an interference with the right to personal liberty determined by the first paragraph of Article 19 of the Constitution. The objective of imprisonment for the enforcement of fines as a measure involving the use of coercion is to achieve that perpetrators duly observe the final decision, which is reflected in the payment of the fine; thereby, seen from a broader perspective, people’s trust in the law and in a state governed by the rule of law is strengthened, and finally the purpose of sanctioning violations of certain conduct is achieved, which is the special and general preventative function of punitive sanctions.
Since imprisonment for the enforcement of fines entails an interference with the right to personal liberty, it is only constitutionally admissible if the limitation of personal liberty follows a constitutionally admissible objective and if it is not excessive. As the purpose of imprisonment for the enforcement of fines is to ensure the observance of final judicial decisions and it thus plays an important role in the implementation of the principles of a state governed by the rule of law referred to in Article 2 of the Constitution, it pursues a constitutionally admissible objective. The general principle of proportionality is binding on the legislature in determining the interference and in choosing the manner of concretisation of the principle of proportionality. If also a concrete justification of the admissibility of the interference is a precondition in each individual case, the regulation must enable, in order to fulfil the requirement of respect for the principle of proportionality, that also an authority – a court – will be able to take into account this constitutional principle in each individual case when applying statutory law that regulates measures by which human rights are interfered with. A regulation that does not enable such assessment by the court or even prevents it is not an appropriate measure for achieving the set objective and is inconsistent with the right determined by the first paragraph of Article 19 of the Constitution.
Since the Minor Offences Act imposes on courts the obligation, in the event the perpetrator does not perform the specified community service in its entirety, to dismiss the objection despite the fact that the perpetrator demonstrated already in the procedure for decision-making on the motion to perform community service that due to his or her weak financial situation he or she was unable to pay the fine, the challenged regulation does not achieve the objective; therefore, in this part it is not an appropriate means to achieve that objective and is inconsistent with the right determined by the first paragraph of Article 19 of the Constitution.
Due to the fact that the Minor Offences Act excludes the possibility that when determining the length of imprisonment for the enforcement of fines courts take into consideration the amount of the imposed and unpaid fine, it is inconsistent with the requirement to ensure a proportionate balance between the weight of the consequences of the interference with personal liberty and the benefits that would ensue because of it. Therefore, it is inconsistent with the right determined by the first paragraph of Article 19 of the Constitution.
A regulation in accordance with which the courts impose imprisonment for the enforcement of fines without calling on the perpetrator to state reasons against such a decision by which courts decide on the basis of a procedure that is carried out officially, interferes with the right to an impartial court and the right to be heard. Since imprisonment for the enforcement of a fine interferes with personal liberty, due to which the measure must not have the sole purpose of ensuring payment discipline, this tendency cannot justify the interference with the right to an impartial court and the right to be heard in the initial phase of decision-making on imprisonment for the enforcement of fines. As the challenged regulation allows precisely that, it is inconsistent with Article 22 and the first paragraph of Article 23 of the Constitution.
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Password: |
1.2.51.4.3 - Constitutional Justice - Types of claim - Capacity to file a petition with the Constitutional Court - Concrete review of norms - Human rights ombudsman. 1.5.51.1.17.1 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Annulment - Of a statute. 1.5.51.1.22 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In abstract review proceedings - Determination of the manner of implementation of a decision. 5.3.13.18 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms. 5.3.13.3 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Double degree of jurisdiction. 5.3.13.2 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts. 3.16 - General Principles - Proportionality. 5.3.5 - Fundamental Rights - Civil and political rights - Individual liberty. 5.3.13.14 - Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality. |
Legal basis: |
Arts. 19, 22, 23, Constitution [CRS] Arts. 30, 40.2, 43, Constitutional Court Act [CCA] |
Document in PDF: |
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The full text: |
U-I-12/12
11 December 2014
DECISION
At a session held on 11 December 2014 in proceedings to review constitutionality initiated upon the request of the Ombudsman for Human Rights, the Constitutional Court
decided as follows:
1. The first, second, third, and fourth paragraphs of Article 19, the seventh paragraph of Article 19 insofar as it refers to the enforcement of imprisonment for the enforcement of fines, and Article 202b of the Minor Offences Act (Official Gazette RS, Nos. 29/11 – official consolidated text, 21/13, and 111/13) are abrogated.
2. Decision-making proceedings regarding imposing imprisonment for the enforcement of fines that have not yet been concluded by the date of publication of this Decision in the Official Gazette of the Republic of Slovenia shall be discontinued. In cases in which decision-making proceedings regarding imposing imprisonment for the enforcement of fines have been concluded by the mentioned date, imprisonment for the enforcement of fines shall not be enforced and such imprisonment shall be discontinued.
REASONING
A
1. The Ombudsman for Human Rights alleges that the first paragraph of Article 19 of the Minor Offences Act (hereinafter referred to as the MOA-1), which regulates imprisonment for the enforcement of fines, is inconsistent with Articles 2 and 19 of the Constitution. She alleges, inter alia, that it is not admissible to interfere with the right to personal liberty determined by the first paragraph of Article 19 of the Constitution merely to ensure the better payment discipline of the perpetrators of minor offences, which is supposedly the purpose of imprisonment for the enforcement of fines. In this respect, she stresses that the MOA-1 discontinued the deprivation of liberty as a sanction for minor offences and at the same time introduced imprisonment for the enforcement of fines. Allegedly, the state should find alternative, more appropriate mechanisms to ensure the execution of decisions in a more humane and effective manner. As an example, the applicant proposes more effective enforcement of [the payment of] fines. For the same reasons, imprisonment for the enforcement of fines is allegedly neither necessary, appropriate, nor proportionate in the narrower sense. The applicant also opines that, in instances where a fixed penalty notice has not been issued for a minor offence and the perpetrator is not a minor, the court must impose imprisonment for the enforcement of a fine whenever it establishes that the fine was not paid in its entirety, without having beforehand the possibility to assess the circumstances of the case and the grounds due to which the fine has not been paid. The amount of the unpaid fine is allegedly also not a criterion in decision-making. The applicant draws attention in particular to the third paragraph of Article 19 of the MOA-1, in accordance with which imprisonment for the enforcement of a fine may last up to thirty days if the perpetrator fails to pay the fine beforehand, and to the fifth paragraph of Article 202b of the MOA-1 insofar as it determines that courts shall dismiss as unfounded objections against an order on the imposition of imprisonment for the enforcement of a fine if the perpetrator fails to successfully perform the specified community service. Furthermore, the Act allegedly does not regulate instances where it is not possible to assign individuals community service, therefore the decisions of courts are allegedly different in such instances.
2. At the request of the Constitutional Court, the applicant communicated that it would continue to pursue the request also after the entry into force of the Act Amending the Minor Offences Act (Official Gazette RS, No. 21/13 – hereinafter referred to as the MOA-1H), which entered into force while the proceedings before the Constitutional Court were pending, as the regulation of imprisonment for the enforcement of fines allegedly remained inconsistent with the Constitution. The objectives of imprisonment for the enforcement of fines allegedly remained the same, and the amendment to Article 202b of the MOA-1 was allegedly inconsistent and unclear. Considering the deficient regulation, it is allegedly unclear when, in what instances, if at all, and in what manner the courts would assess the circumstances due to which the issuance or execution of an order imposing imprisonment for the enforcement of a fine would not be reasonable or in conformity with its purpose.
3. In its reply, the National Assembly stresses that perpetrators must observe the final decision on their responsibility for minor offences and the sanctions therefor. Allegedly, perpetrators have at their disposal different ways to alleviate the burden that the issued fine represents. If a perpetrator does not pay the fine in spite of all the mentioned possibilities referred to, it is allegedly precisely imprisonment for the enforcement of a fine that is intended to force the perpetrator to pay the fine even before an enforcement procedure is initiated. Allegedly, a fine paid in such a manner is – compared to an enforcement procedure – paid voluntarily, despite the fact that imprisonment for the enforcement of the fine coerced the perpetrator into paying it. The costs accrued thereby are allegedly proportionate to the fact that imprisonment for the enforcement of a fine is issued against a perpetrator in order to ensure observance of the decisions of the competent minor offence authority and to execute the sanction for a minor offence issued with finality. Considering the above-stated, imprisonment for the enforcement of fines allegedly does not entail a disproportionate interference with an individual’s right to personal liberty.
4. In its opinion, which is mutatis mutandis equal to the explanations of the Ministry of Justice (hereinafter referred to as the Ministry), the Government states that the challenged regulation is not inconsistent with the Constitution. It stresses that one should proceed from the purpose of the measure, i.e. to prevent those who are able to pay the fine from avoiding paying it. The Government in particular draws attention to the importance of the implementation of decisions from the viewpoint of Article 2 of the Constitution. In the assessment it is allegedly necessary to take into account the entire regulation and all the possibilities that the legislature allegedly gives to perpetrators to avoid the imposition of imprisonment for the enforcement of a fine and of which they should also be appropriately informed in accordance with the statutory regulation. Among these possibilities, the Government lists the payment of a fine in instalments, the payment of one half of the fine, and substituting the payment of a fine with the performance of specified tasks. Furthermore, the Government states that in conformity with point (b) of the first paragraph of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, Nos. 33/94, MP, and 7/94 – hereinafter referred to as the ECHR), it is possible to lawfully arrest a person for non-compliance with a lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law. Hence, the arrest is allegedly admissible not only in criminal matters, but also in civil and other matters. The Government justifies the conformity of the regulation of imprisonment for the enforcement of fines with the ECHR and the case law of the European Court of Human Rights (hereinafter referred to as the ECtHR) on the grounds that the duration of imprisonment for the enforcement of fines is limited in time, and the measure itself is only intended for those perpetrators who are able to pay the fine. As regards the allegation of the applicant that the financial circumstances of the perpetrator are not ascertained in advance, the Government draws attention to Decision of Maribor Higher Court No. PRp 201/2007, dated 7 March 2007, from which it follows, inter alia, that when deciding on the imposition of imprisonment for the enforcement of a fine, courts must, in addition to the failure to pay the fine, also take into consideration conditions that do not allow coercion by means of imprisonment for the enforcement of a fine, particularly if they are aware of such circumstances. The Government draws attention to the right to object to an order imposing imprisonment for the enforcement of a fine and to the duty of courts in the procedure for deciding on such objection to carry out enquiries regarding the perpetrator's financial situation and other facts that are important for deciding on the objection. The Ministry alleges that the challenged Act is based on the regulation of imprisonment for the enforcement of fines in the Minor Offences Act of the Federal Republic of Germany,[1] which is also confirmed as constitutionally consistent in German constitutional case law.[2] Both the Government and the Ministry also draw attention to Decision of the Constitutional Court No. U-I-344/06, dated 20 November 2008 (Official Gazette RS, No. 113/08, and OdlUS XVII, 61), in which the Constitutional Court established that the deprivation of liberty in an enforcement procedure where the debtor has failed to pay a fine is not inconsistent with the Constitution. In the opinion of the Government, it is not possible to compare imprisonment in minor offence proceedings and imprisonment for the enforcement of fines, as the first institute entails a sanction, whereas the second one compels a perpetrator who does not want to pay a fine to pay it.
5. The Government replied to the submission by which the applicant notified the Constitutional Court of the reasons due to which it would continue to pursue the request also after the entry into force of the MOA-1H. The Government explains that the amendment limits the institute of imprisonment for the enforcement of fines from the viewpoint of the principle of proportionality, namely in such a manner that it must not be imposed if the unpaid fine does not exceed EUR 120. The amendment of Article 202b of the MOA-1 allegedly follows from the principles of humanity and reasonableness, as the practice allegedly showed that in individual cases there exist circumstances due to which the imposition of imprisonment for the enforcement of a fine is not reasonable or in conformity with its purpose. From 14 May 2013 onwards, in such instances courts have had the possibility of deciding by an order that imprisonment for the enforcement of a fine will not be imposed or that its implementation will be discontinued.
6. The Constitutional Court sent the reply of the National Assembly, both opinions of the Government, and the explanations of the Ministry to the applicant, who stated in her reply that she would continue to pursue the request and maintained all the allegations contained therein.
B – I
7. On the basis of the fifth indent of the first paragraph of Article 23a of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12 – hereinafter referred to as the CCA), the Ombudsman for Human Rights may initiate, by a request, the procedure for a review of the constitutionality of regulations if she deems that a regulation inadmissibly interferes with human rights or fundamental freedoms. She also may extend the request to encompass an amended regulation if she deems that it is still inconsistent with the Constitution, as the competence to file a request does not depend on the existence of a concrete case.
8. Following the filing of the request, the challenged statutory regulation was amended two times. By the MOA-1H, the legislature added new tenth and eleventh paragraphs to Article 202b,[3] but excluded the possibility of imposing imprisonment for the enforcement of a fine if the unpaid fine does not exceed EUR 120. Upon the entry into force of the Act Amending the Minor Offences Act (Official Gazette RS, No. 111/13 – hereinafter referred to as the MOA-1I) on 1 January 2014, the legislature additionally increased the mentioned amount, namely to EUR 300. In accordance with the transitional provisions,[4] for cases in which the procedure for deciding on imprisonment for the enforcement of fines had not yet concluded by the entry into force of the MOA-1H and the MOA-1I, as well as for cases in which imprisonment for the enforcement of fines was already being carried out, Articles 19 and 202b of the MOA-1 apply with such content as amended by the MOA-1H and the MOA-1I.
9. Upon being called upon [to respond] by the Constitutional Court, the applicant stated in relation to the entry into force of the MOA-1H that she would continue to pursue the request. In light of the fact that the applicant alleges that the statutory regulation of imprisonment for the enforcement of fines is still inconsistent with the Constitution in spite of the amendments, the Constitutional Court deemed that the applicant only challenges the regulation of imprisonment for the enforcement of fines in force.
B – II
10. The applicant expressly challenges the first paragraph of Article 19 of the MOA-1. However, from her allegations as to the illegitimacy and disproportionality of imprisonment for the enforcement of fines, it follows that the applicant is opposed to imprisonment for the enforcement of fines as such. Furthermore, she also voices concrete criticisms regarding the third and fourth paragraphs of Article 19 of the MOA-1, and the second sentence of the fifth paragraph and the tenth paragraph of Article 202b of the MOA-1, insofar as they co-determine the statutory regulation of the imposition of imprisonment for the enforcement of fines. In such context, the applicant alleges that the regulation of the procedure for deciding on imprisonment for the enforcement of fines (which is regulated by Article 202b of the MOA-1) is inconsistent with the Constitution, namely because it fails to regulate the procedure for determining the circumstances due to which a court does not impose imprisonment for the enforcement of fines. As the Constitutional Court is not bound by the proposal and since all the mentioned provisions of the MOA-1 are mutually connected, the Constitutional Court also assessed the constitutionality of these provisions, in conformity with Article 30 of the CCA.
11. In addition to the mentioned provisions of Article 19 of the MOA-1, also the second and seventh paragraphs of Article 19 are important for the assessment of imprisonment for the enforcement of fines. The second paragraph of this provision determines the negative prerequisites of a formal nature that exclude the admissibility of the imposition of imprisonment for the enforcement of a fine; the seventh paragraph determines the importance of carrying out specified tasks to the common benefit or to the benefit of the local community (hereinafter referred to as community service) in connection with the obligation to pay the fine and with the execution of an order imposing imprisonment for the enforcement of the fine.
12. The mentioned provisions of Article 19 of the MOA-1 read as follows:
“Imprisonment for the Enforcement of Fines
(1) A perpetrator who fails to pay a fine in part or in its entirety by the specified time limit shall be compelled to pay the fine by imposing on him or her imprisonment for the enforcement of the fine. A court shall decide on the imposition of imprisonment for the enforcement of a fine.
(2) Imprisonment for the enforcement of a fine may not be imposed if a fixed penalty notice has been issued due to a minor offence, if the unpaid fine does not exceed EUR 300, or if the fine was imposed on the perpetrator of a minor offence who is a minor. Imprisonment for the enforcement of a fine may not be imposed prior to the finality of the judgment or decision on the minor offence.
(3) Imprisonment for the enforcement of a fine shall apply until the fine is paid in its entirety, but for no longer than 30 days.
(4) The completion of imprisonment for the enforcement of a fine shall not discharge the obligation to pay the fine.
(7) If the perpetrator performs the specified community service in its entirety, imprisonment for the enforcement of a fine shall not be enforced and the fine shall not be enforced.”
Article 202b of the MOA-1 reads as follows:
“The procedure for imposing imprisonment for the enforcement of fines
(1) Imprisonment for the enforcement of a fine is imposed ex officio or upon the proposal of the local court that decided on the minor offence in the first instance, or upon the proposal of the minor offence authority if the imposed fine has not been paid within a certain period of time.
(2) Imprisonment for the enforcement of a fine is imposed by an order. A written objection is admissible against such an order, and can be filed by the perpetrator or his or her legal representative or counsel within eight days of the order being served. In an order imposing imprisonment for the enforcement of a fine, the court shall inform the perpetrator that instead of submitting an objection against the order, he or she may submit a motion to substitute the fine with the performance of community service.
(3) The court that issued the order imposing imprisonment for the enforcement of the fine shall decide on the objection against the order referred to in the preceding paragraph or on the motion to substitute the fine with the performance of community service.
(4) An objection against an order imposing imprisonment for the enforcement of a fine must specify the order and contain the facts by which it is substantiated, evidence of these facts (e.g. a receipt proving that the fine has been paid, a certificate regarding the perpetrator’s financial situation, the perpetrator’s shares in real or movable property, the most recent decision of the tax authority regarding assessment of the perpetrator’s income tax, a certificate regarding the perpetrator’s number of dependents, or proof of the medical status and other personal circumstances of the perpetrator that indicate that the imposition of imprisonment for the enforcement of the fine would not be in conformity with its purpose), and the signature of the person submitting the objection.
(5) If, together with an objection against an order imposing imprisonment for the enforcement of a fine, the perpetrator files a motion to substitute the fine with the performance of community service, the court shall first decide on such motion in accordance with the provisions of this Act on the substitution of a fine with the performance of community service. If the perpetrator successfully carries out the specified community service, the court shall grant the objection and abrogate the order imposing imprisonment for the enforcement of the fine, otherwise it shall dismiss the objection as unfounded.
(6) The court shall carry out enquiries regarding the allegations in the objection in order to establish the perpetrator’s financial situation and his or her ability to pay the fine and other facts important for deciding on the objection. In doing so, it may also request a report from the competent social work centre on the environment and conditions in which the perpetrator lives.
(7) Upon a reasoned proposal by the director of the [relevant] prison, the court may decide that imprisonment for the enforcement of the fine shall not be enforced and that the fine shall be subject to compulsory enforcement if the personal circumstances of the perpetrator indicate that the enforcement of imprisonment for the enforcement of the fine would not be in conformity with its purpose. The order on the non-enforcement of imprisonment for the enforcement of the fine shall be issued within 24 hours of receiving the proposal. No appeal is allowed against such an order.
(8) A belated objection or an objection that is not allowed shall be rejected by an order, against which an appeal to the Higher Court is admissible. The Higher Court must decide within fifteen days of receiving the case file.
(9) If the objection is well founded, the court, by an order, shall abrogate the order imposing imprisonment for the enforcement of the fine. If the objection is unfounded, the court shall dismiss it. No appeal is allowed against an order granting the objection, however an appeal to the Higher Court is allowed against an order dismissing such objection. The Higher Court must decide within fifteen days of receiving the case file.
(10) If the court establishes that there exist circumstances due to which the imposition of imprisonment for the enforcement of a fine would not be reasonable or in conformity with its purpose, it shall not impose imprisonment for the enforcement of the fine or shall discontinue the enforcement thereof.
(11) In an instance referred to in the preceding paragraph, the court shall decide by an order, against which an appeal to the Higher Court is admissible.”
B – III
13. Imprisonment for the enforcement of fines entails the deprivation of liberty outside of criminal proceedings. The procedure for deciding on the imposition of imprisonment for the enforcement of fines is indeed regulated by the MOA-1, however, only as a special procedure in the chapter on the execution and records of decisions in Article 202b. The matter at issue does not concern decision-making on the punishable conduct (i.e. the minor offence)[5] itself, as at the moment when imprisonment for the enforcement of a fine can be imposed this has already concluded with finality and the sanction for the minor offence has already been imposed with finality (the second paragraph of Article 19 of the MOA-1). Imprisonment for the enforcement of fines is also not a punishing sanction. Although the majority of substantive provisions regarding imprisonment for the enforcement of fines in the MOA-1 are classified under the chapter on sanctions for minor offences, imprisonment for the enforcement of fines is not defined as one of the sanctions that may be prescribed and imposed in accordance with Article 4 of the MOA-1 for minor offences, but entails a measure that courts may impose, in accordance with the first paragraph of Article 19 of the MOA-1, on perpetrators who in part or in full fail to pay a fine within the prescribed period of time in order to force them to pay it. As opposed to a sanction, which is – after it is imposed with finality – executed in accordance with regulations and is, as a general rule, impossible to avoid the execution thereof, a perpetrator can avoid the imposition and enforcement of imprisonment for the enforcement of a fine by paying the fine. Hence, imprisonment for the enforcement of a fine is not a measure of a punitive nature, but a measure applied to influence the perpetrator’s will such that he or she pays (by him- or herself, [i.e. without a debt enforcement procedure]) the fine imposed by a final decision,[6] and it is imposed outside criminal proceedings. It is designed to ensure observance of the final judicial decision.
14. Imprisonment for the enforcement of fines entails an interference with the right to personal liberty determined by the first paragraph of Article 19 of the Constitution. The Constitutional Court has already adopted the position that the deprivation of liberty that is not decided on in criminal proceedings and to which not all procedural and substantive guarantees apply that apply regarding criminal proceedings and criminal offences is not for this reason alone inconsistent with the Constitution.[7] The Constitutional Court has also already adopted the position that the second and third paragraphs of Article 19 of the Constitution provide special guarantees as regards all interferences with the right to personal liberty, hence also those that are not related to procedures concerning criminal offences. The additional guarantees determined by the third paragraph that apply at the time of the deprivation of liberty (instructions on the grounds for the deprivation of liberty and on certain rights) are not relevant for the review of the admissibility of the measure in the case at issue.[8] Those determined by the second paragraph are important.
15. The ECHR exhaustively lists the instances in which liberty may be interfered with (the first paragraph of Article 5 of the ECHR). One such instance is “the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law” (point (b) of the first paragraph of Article 5 of the ECHR).[9] When a person who has not complied with a lawful decision by a court is deprived of his or her liberty, which is also what imprisonment for the enforcement of fines concerns,[10] in accordance with the case law of the ECtHR[11], the deprivation of liberty must be lawful, which also includes the requirement of a lawful procedure. Namely, both the first paragraph of Article 5 of the ECHR and the second paragraph of Article 19 of the Constitution impose the requirement of a lawful procedure. Every deprivation of liberty must be in conformity with the purpose of Article 5 of the ECHR, which ensures protection from arbitrariness. In addition, national authorities must ensure an appropriate balance between the importance of ensuring observance of a judicial decision in a democratic society and the importance of the right to personal liberty. The fourth paragraph of Article 5 of the ECHR ensures the possibility of speedy judicial protection in the event of the deprivation of liberty.
16. Neither the Constitution nor the ECHR exclude the possibility that even in minor offence law, in which there is no sentence of imprisonment, a law envisages, as a means of enforcing a final judicial decision, a measure that entails the deprivation of liberty. The imposition of imprisonment for the enforcement of fines is not inconsistent with the Constitution merely due to this fact. Since equal requirements follow from the Constitution, mutatis mutandis, as from the ECHR and the case law of the ECtHR, as is clear from the reasoning below, the Constitutional Court carried out the review of the challenged regulation of imprisonment for the enforcement of fines within the framework of the Constitution.
17. In conformity with the second paragraph of Article 19 of the Constitution, the regulation of the deprivation of liberty must match the requirements from the subordinate clause in the phrasing of this provision, in accordance with which one may only be deprived of one’s liberty (i) in such cases and (ii) pursuant to such procedures as are provided by law. The requirements from the phrasing of the subordinate clause in the second paragraph of Article 19 of the Constitution are determined by the two general conditions for limiting personal liberty by the deprivation of liberty, namely that such is determined in advance by law from both the substantive and procedural aspects.[12] Such entails that such measures and the conditions for ordering such must be precise (lex certa), with regard to which the precision must be of a substantive and procedural nature.[13] The meaning of this constitutional requirement is to ensure protection from the arbitrariness of the authorities that decide on the deprivation of liberty.
18. As regards the constitutional framework of the mentioned procedural precision, in particular Articles 22 (the equal protection of rights), 23 (the right to judicial protection), and 25 (the right to legal remedies) of the Constitution must be observed,[14] with regard to which a certain amount of discretionary latitude granted to independent and impartial courts established by law is justified insofar as decision-making by the judicial branch of power is concerned.[15] In accordance with Article 23 of the Constitution, the right to judicial protection follows from the legally guaranteed and actual independence and impartiality of the courts,[16] while the term judicial decision in and of itself includes these guarantees, which also means that, as a general rule, courts must hear the positions of both parties before adopting a decision.[17] The right to judicial protection ensures substantive (and not only formal) decision-making by a court.[18]
19. In accordance with the established constitutional case law, the statutory regulation of individual interferences must be based on a constitutionally admissible goal, i.e. a goal that is objectively justifiable (the third paragraph of Article 15 of the Constitution), and in conformity with the principles of a state governed by the rule of law (Article 2 of the Constitution), namely with the principle that prohibits excessive interferences by the state (the general principle of proportionality). The general principle of proportionality imposes two requirements on the legislature. Firstly, the requirement that it limit the possibility to interfere with a right to cases in which such interference is reasonably proportionate to the objective. Secondly, that in instances where it envisages, in each individual case of judicial proceedings, a concretisation of the general principle of proportionality, it enable the courts to respect the general principle of proportionality when defining the conditions therefor. The general principle of proportionality, which is inherent in a state governed by the rule of law, is binding on all state authorities.[19] Therefore, a regulation that presupposes the concretisation of this principle with an individual act adopted by a court must enable the constitutional admissibility of the interference to be substantiated in each individual case, starting from the requirements of this principle. Only in such a manner can it be ensured that an imposed measure by which a right of an individual is interfered with will in truth serve a legitimate goal and at the same time reflect an appropriate balance between such goal and the importance of ensuring respect for the right at issue. In such sense, the concretisation of the general principle of proportionality in individual decisions of courts entails an additional element of the limitation of the interference.
20. The Constitutional Court carries out an assessment of whether an interference is possibly excessive on the basis of the so-called strict test of proportionality, which encompasses an assessment of appropriateness, necessity, and proportionality in the narrower sense.[20]
B – IV
21. In accordance with the first paragraph of Article 19 of the MOA-1, imprisonment for the enforcement of a fine is imposed (ex officio, upon the proposal of the local court that decided on the minor offence in the first instance, or upon the proposal of the minor offence authority) if the fine has not been paid within a certain period of time; however, in accordance with the tenth paragraph of Article 202b of the MOA-1, the court does not impose imprisonment for the enforcement of a fine if it establishes that circumstances exist due to which imposing imprisonment would not be reasonable or in conformity with its purpose.[21] Obstacles of a formal nature exclude the admissibility of imposing imprisonment for the enforcement of a fine as well. Hence, the court may not impose imprisonment for the enforcement of a fine (1) prior to the finality of the judgment or the minor offence decision, (2) if a fixed penalty notice has been issued due to the minor offence, (3) if the unpaid fine does not exceed EUR 300, or (4) if the fine was imposed on a perpetrator of a minor offence who is a minor (the second paragraph of Article 19 of the MOA-1). As a general rule, obstacles of a formal nature are known even prior to the initiation of proceedings to decide on imprisonment for the enforcement of a fine. Contrary to obstacles of a substantive nature, obstacles of a formal nature are precisely (uniquely) defined. Hence, the MOA-1 does not require that courts impose imprisonment for the enforcement of a fine every time they establish that a fine has not been fully paid. Actually, the contrary is true. The MOA-1 imposes on courts the obligation to take into consideration, in addition to formal reasons that exclude the admissibility of imposing imprisonment for the enforcement of fines, also other circumstances of the concrete case due to which imprisonment for the enforcement of a fine would not be reasonable or in conformity with its purpose.
22. What is key to defining the instances in which courts may impose imprisonment for the enforcement of fines, or discontinue the implementation thereof, are, as follows from the tenth paragraph of Article 202b of the MOA-1, an understanding of the purpose of imprisonment for the enforcement of fines and the reasonableness thereof, with regard to which the reasonableness has to be understood as the characteristic of functioning appropriately with regard to the objective pursued. By reading together the first, third, and fourth paragraphs of Article 19 and the first and fourth paragraphs of Article 202b of the MOA-1, it is possible to deduce from these provisions the statutory concretisation of the purpose of imprisonment for the enforcement of fines, in accordance with which this measure (1) forces the perpetrator to pay the fine, namely (2) a perpetrator who is able to pay a fine but has failed to do so within a certain period of time, and (3) there are no impediments stemming from the perpetrator’s medical status or other personal circumstances due to which there would not be an appropriate balance between the importance of ensuring observance of final decisions in a democratic society and the importance of the right to personal liberty. First of all, it is logical that by imprisonment for the enforcement of fines it is only possible to force a perpetrator who is able to pay the fine but does not want to do so.[22] This is precisely the reason for listing the types of proof of the perpetrator’s financial situation that “indicate that the imposition of imprisonment for the enforcement of the fine would not be in accordance with its purpose” and that can justify an objection against the order imposing imprisonment for the enforcement of the fine. Otherwise, this would entail mere enumeration, i.e. meaningless enumeration. Secondly, in addition to the types of proof of the perpetrator’s financial situation, the fourth paragraph of Article 202b of the MOA-1 also mentions proof of the medical status and other personal circumstances of the perpetrator that also could justify grounds for an objection and that, in accordance with the statutory phrasing, could also “indicate that the imposition of imprisonment for the enforcement of the fine would not be in conformity with its purpose.” The listing of these types of proof entails that among the grounds for not imposing imprisonment for the enforcement of a fine or grounds that require that the enforcement of imprisonment be discontinued, in addition to the individual’s financial situation, courts must also take into consideration other personal circumstances of the perpetrator, among which his or her health status is underlined in particular. The reason for such is that these circumstances may indicate that, for reason of humaneness, the imposition of imprisonment for the enforcement of a fine is disproportionate in the individual case. Specifically listing these circumstances among the grounds for an objection expresses that, in accordance with the MOA-1, observance of final decisions may not be ensured to the detriment of the principle of humaneness and that, in accordance with the MOA‑1, imprisonment for the enforcement of a fine may not be imposed and/or enforced even if the perpetrator is able to pay the fine if there exist weighty reasons of a personal nature on the part of the perpetrator. Otherwise, listing these circumstances as possible justifiable reasons for not imposing imprisonment for the enforcement of fines would be meaningless. Exactly the same importance of the principle of humaneness is expressed in the legislative file.[23] Such interpretation of the provisions of the MOA-1 is in conformity with the Constitution, as it does not subordinate the right to personal liberty to efforts to ensure the effectiveness of imprisonment for the enforcement of fines regardless of concern for ensuring an appropriate balance between the pursued benefit of the limitation of personal liberty in a concrete case, on the one hand, and the weight of the interference with the right to personal liberty in each individual case, on the other.
23. In such a framework, the requirement that the law leave to the courts the concretisation of the constitutional principle of proportionality in each individual case is respected. This principle is binding on courts to the same degree as it is binding on the legislature. Namely, if, due to the circumstances of the concrete case, a court assesses that imposing imprisonment for the enforcement of a fine fails to strike a fair balance between the importance of ensuring observance of final decisions in a democratic society and the importance of the right to personal liberty, it must not impose imprisonment for the enforcement of a fine. Due to the variety of life situations in which the measure at issue is decided on, all the circumstances that affect this assessment cannot be predicted in advance. Therefore, the legislature was only able to determine them non-exhaustively, and the courts assess the possible existence of other similar circumstances that are relevant for assessing the admissibility of the measure by an intra legem analogy in each individual case. Considering the above-stated and since a certain margin of discretion is justified when the decision-making of the judicial branch of power is at issue, it cannot be alleged that the challenged regulation is inconsistent with the requirement as to the substantive concretisation of the deprivation of liberty determined by the second paragraph of Article 19 of the Constitution. Hence, the requirement to respect the purpose of imprisonment for the enforcement of fines that is imposed on courts when deciding on imposing imprisonment for the enforcement of a fine in a concrete case does not mean that the instances in which one may be deprived of one’s liberty are for this reason alone not sufficiently determined by law.
B – V
24. The state, as the bearer of sovereign power on its territory, must ensure the functioning of its institutions and society, harmony between individuals, and their safety. In order to achieve these objectives, it is also entitled to impose certain measures involving the use of coercion. To this end, it (inter alia) determines the rules of conduct to be respected by all members of society who find themselves in relations regulated by such rules. Violations of the rules that are important for the functioning of state institutions and the society and for the harmony and security of people but which do not entail violations so severe that they need to be listed amongst criminal offences are determined by the legislature to be minor offences, and certain sanctions are envisaged therefor.[24] The liability of the perpetrator of a minor offence can only be established by – and the sanction for such only issued by – the competent authority in accordance with a procedure determined in advance, and whose end result is always a final decision that resolves with finality the conflict that arose between the individual and the state with regard to the violation of the rule. If the liability of the perpetrator of a minor offence has been established by a final decision and a sanction has been imposed thereon, he or she must observe such a decision. From a broader perspective, the observance of a final decision, which outwardly is above all reflected in the execution of the sanction, strengthens the trust of people in the law and in a state governed by the rule of law. Namely, only when the sanction is executed is the purpose of the sanctioning of the violation achieved with finality,[25] which gives purpose to such sanctioning and contributes to its legitimacy. The objective of imprisonment for the enforcement of a fine issued in a situation where the perpetrator has failed to pay the fine within a certain period of time is thus to elicit from the perpetrator due observance of the final decision on the minor offence, which is expressed by paying the fine. This certainly plays an important role in the implementation of the principles of a state governed by the rule of law determined by Article 2 of the Constitution[26] and this is precisely why imprisonment for the enforcement of fines cannot be attributed merely the meaning of an effective measure for ensuring payment discipline. Therefore, imprisonment for the enforcement of fines pursues a constitutionally admissible objective.
25. Within the framework of the assessment of whether the interference at issue is appropriate for attaining the pursued objective, the Constitutional Court must assess whether the pursued objective can in fact be attained by the selected means. If it cannot be attained in such manner, the interference at issue is not appropriate.
26. It is reasonable to expect that the threat of the deprivation of liberty determined by the order imposing imprisonment for the enforcement of a fine will make the perpetrator of the minor offence pay the fine despite [his or her unwillingness].[27] Therefore, it is not possible to deny in general that imprisonment for the enforcement of fines is an appropriate measure for attaining the objective, i.e. due observance of the final decision on the minor offence. However, if imprisonment for the enforcement of a fine were to be imposed on a perpetrator who could not pay the fine due to his or her poor financial situation, the reason for the failure to pay the fine would be a lack of funds, and not avoidance of the obligation to pay the fine. In such instances, the failure to pay the fine should not be interpreted as refusing to demonstrate due observance of the final decision of a state authority. In situations where perpetrators of minor offences cannot pay a fine due to their poor financial situation, imprisonment for the enforcement of fines is not at all an appropriate means to achieve the objective. Only in situations where perpetrators of minor offences can pay their fine is it an appropriate means to achieve the objective.
27. It has already been substantiated that when imposing imprisonment for the enforcement of fines courts must (inter alia) take into consideration the perpetrator’s financial situation. In such manner, the MOA-1 included in judicial decision-making [on imposing such imprisonment] assessment of the question of whether the interference is actually appropriate for attaining the objective. In such framework, the MOA-1 enables courts – and imposes on them the obligation – to assess in each individual case whether the measure is appropriate for attaining the objective, taking into consideration the perpetrator’s financial situation.
28. A situation in which a court has granted the perpetrator’s motion to perform community service filed concurrently [with the objection referred to above], but then this community service was not performed well, is different. In accordance with the second sentence of the fifth paragraph of Article 202b of the MOA-1, in such an instance the court must then dismiss the objection as unfounded. Hence, in a situation where the perpetrator fails to perform community service or fails to perform such completely, the objection against the imposition of imprisonment for the enforcement of the fine should be dismissed, and imprisonment for the enforcement of the fine should be enforced after the order becomes final.[28] If the perpetrator still does not pay the fine, the payment thereof should be enforced.[29] Such an interpretation is also confirmed by the general provision of the seventh paragraph of Article 19 of the MOA-1, in accordance with which imprisonment for the enforcement of a fine should not be carried out, and the payment of the fine should not be enforced, “[i]f the perpetrator performs the specified community service in its entirety.”
29. Hence, if the perpetrator fails to perform the specified community service “in its entirety,” the second sentence of the fifth paragraph of Article 202b of the MOA-1 prevents the court from deciding on the merits of the objection. This applies regardless of the fact that the perpetrator had already demonstrated in the procedure for deciding on the motion to perform community service that due to his or her financial situation he or she was unable to pay the fine. Namely, in accordance with the fifth paragraph of Article 19 of the MOA-1, such entails grounds that justify the motion for substituting the payment of the fine with the performance of community service. Since at the same time it entails grounds for granting the objection and for abrogating the order imposing imprisonment for the enforcement of the fine, as the latter would not be in conformity with its purpose, it is clear that, in such an instance, imprisonment for the enforcement of fines cannot achieve observance of the final decision of an authority. Hence, in this part the regulation misses the objective, therefore it is obvious that in such instances imprisonment for the enforcement of fines is not an appropriate means to attain such objective. The second sentence of the fifth paragraph of Article 202b of the MOA-1 is thus inconsistent with the first paragraph of Article 19 of the Constitution insofar as it determines that in the event specified community service has not been performed, the objection must be dismissed.
30. Within the framework of the strict test of proportionality, the Constitutional Court must also assess whether the challenged interference is necessary in the sense that the objective cannot be attained without (any) interference or whether it is possible to attain the objective by some other less restrictive measure. In this respect, it has to be taken into consideration that when assessing the necessity of a certain measure the Constitutional Court assesses whether the measure is necessary in order to attain the desired objective as successfully as and to the same extent as the measure enables. In other words, another means (that interferes less or does not interfere at all with human rights) may only undermine the necessity of the more restrictive measure if it is not less effective than the latter in any aspect.[30]
31. An interference with personal liberty entails the most severe possible interference with the personal integrity of individuals.[31] Imprisonment for the enforcement of fines can thus only be envisaged as the last resort that may be used if the pursued objective cannot be achieved in an equally effective manner by any other milder means. Hence, the Constitutional Court must assess whether imprisonment for the enforcement of fines may be imposed even before a [debt] enforcement procedure – which, according to the applicant, is a milder measure – is initiated against the perpetrator.
32. In enforcement procedures, the payment of the fine is ensured by an interference with one’s property.[32] In such procedure, the perpetrator has the position of a debtor and the rights and obligations pertaining thereto. In comparison with imprisonment for the enforcement of fines, it is a measure that interferes less intensively with human rights. However, it must be taken into consideration that the effectiveness of the enforcement itself depends on the numerous and very diverse circumstances of the concrete cases. In such manner, the possibility of third persons cooperating in order to protect their rights relating to the objects subject to enforcement is not excluded,[33] while also the debtor – the perpetrator – him- or herself can obstruct the success of the enforcement.[34] The effectiveness of the enforcement hence depends on numerous factors on which the state has only limited influence.
33. Furthermore, a fine is not a usual monetary claim and the state is not in the position of a normal creditor regarding a monetary claim. A fine entails a sanction that is directed towards encouraging the person on whom it was imposed to respect the legal order in the future. Therefore, a greater degree of cooperation can be required from the perpetrator, which can be reflected in a request to pay the fine voluntarily, a motion to perform community service, notifying the court of the reasons due to which the perpetrator is unable to pay the fine, or other reasons of a personal nature that oppose the imposition of imprisonment for the enforcement of the fine. The situation is different in enforcement procedures, of which it is characteristic that the payment is obtained, as a general rule, without the cooperation of the debtor. It is precisely this characteristic of enforcement procedures that reduces the importance of the fine (the sanction) to the notion of a regular monetary claim, due to which its basis (a final decision) and role become secondary. All of the above diminishes the effect of sanctioning by means of a fine.
34. It must be further taken into consideration that imprisonment for the enforcement of fines is intended for perpetrators who do not observe the final decision and who throughout have the possibility to prevent being deprived of their liberty. Therefore, the state is not obliged to first apply against such perpetrators such means of enforcement (involving the use of coercion) that interfere less intensely with their rights. Considering the need to ensure performance of the duty of perpetrators to cooperate in paying their fines and the characteristics of enforcement procedures, debt enforcement cannot be deemed to be an equally effective means as imprisonment for the enforcement of fines. Due to individuals avoiding observance of a final judicial decision also in instances where they are able to pay the fine considering their financial situation but do not want to do so, in reliance on the fact that the procedure for the enforcement of fines has the described special nature, is generally quite long, and often also unsuccessful for various reasons, the challenged measure can be considered necessary.
35. Within the framework of proportionality in the narrower sense, the Constitutional Court carries out the assessment of whether the weight of the consequences of the assessed interference with the affected human right is proportionate to the value of the pursued objective or benefits that will ensue due to the interference.
36. It has already been substantiated that when deciding on imposing imprisonment for the enforcement of fines courts must in addition to the perpetrator’s financial situation also take into consideration other personal circumstances, among which his or her health status is in particular underlined. The reason for such is that these circumstances may indicate that, for reason of humaneness, the imposition of imprisonment for the enforcement of the fine is disproportionate in the individual case. Such regulation enables the court to decide that the right to personal liberty is not subordinated to the tendency to ensure the effectiveness of imprisonment for the enforcement of fines regardless of the fair balance between the pursued benefit of the interference, on the one hand, and the weight of the interference with the right to personal liberty in each individual case, on the other. In such framework, the challenged regulation of imprisonment for the enforcement of fines cannot be claimed to not be proportionate in the narrower sense. A disproportionate interference could only ensue in each individual case if the courts failed to interpret the statutory norms in a constitutionally consistent manner, however this cannot be the subject of a review of the constitutionality of a law.
37. A different situation arises in the event the length of imprisonment for the enforcement of fines is determined. The legislature’s abstract assessment of the importance of a value protected by the regulation of a certain minor offence is reflected in the amount of the prescribed fine. The range of the prescribed fines is very broad, as they vary from EUR 40 all the way up to EUR 150,000 and possibly even more.[35] In regulating imprisonment for the enforcement of fines, the legislature took this range into account in a very limited scope. It namely excluded the possibility to impose imprisonment for the enforcement of a fine in the event the fine does not exceed EUR 300. By doing so, it expressed that the importance of the value protected by the regulation of the minor offence, which is expressed by the amount of the imposed fine, is not without significance for imposing imprisonment for the enforcement of fines and that the weight of the consequences of the limitation of liberty (imprisonment for the enforcement of fines) is not proportionate to the resulting benefit if imprisonment for the enforcement of fines forces the perpetrator to pay a fine that does not exceed EUR 300. Since the legislature prescribed that imprisonment for the enforcement of fines is to last until the fine is paid, but no longer than 30 days, it excluded the possibility that when determining the length of imprisonment for the enforcement of fines courts take into consideration the amount of the imposed and unpaid fine. In such manner it at the same time excluded the possibility that the weight of the consequences of the assessed interference with the affected rights could be proportionately adapted to the value of the pursued objective or benefits that would ensue from the interference.[36] Therefore, in this part the MOA-1 is inconsistent with the requirement of ensuring a proportionate balance between the weight of the consequences of the assessed interference and the benefits ensuing from the interference. In this part it is inconsistent with the right to personal liberty determined by the first paragraph of Article 19 of the Constitution.
B – VI
38. By determining the procedure for decision-making on imprisonment for the enforcement of fines in the MOA-1, the legislature fulfilled the requirement of the procedural determination of the deprivation of liberty determined by the second paragraph of Article 19 of the Constitution. However, this is not sufficient. It has already been substantiated that Articles 22, 23, and 25 of the Constitution are also elements of the constitutional framework of the procedural determination of the interference with personal liberty due to the deprivation of liberty. Namely, when a court’s decision-making is at issue, parties to proceedings are ensured, in accordance with the Constitution, all constitutional guarantees of a fair trial (Articles 22 and 23 of the Constitution) and a legal remedy (Article 25 of the Constitution).[37]
39. The applicant alleges that the regulation of imprisonment for the enforcement of fines is inconsistent with the Constitution also because it fails to determine a part of the judicial proceedings in which the court assesses circumstances due to which it shall not impose imprisonment for the enforcement of fines. In its opinion, the Government underlines that, prior to adopting a decision, courts must research the circumstances of the case, so that it is possible to assess whether imprisonment for the enforcement of the fine is justified, because what is at issue is an assessment by the courts whether it is justified to apply a measure involving coercion. In this respect, the Government draws attention to a letter from the Ministry in which the local courts were instructed “to ascertain,” prior to adopting orders imposing imprisonment for the enforcement of fines, namely by means of official records that they have access to, “the perpetrator’s financial situation, his or her social circumstances, social situation, and other personal circumstances,” as well as data on the perpetrator’s financial situation and family situation that he or she alleged during the questioning in the decision-making procedure on the minor offence.
40. According to the first paragraph of Article 202b of the MOA-1, imprisonment for the enforcement of fines is imposed ex officio or upon the proposal of the local court that decided on the minor offence in the first instance, or upon the proposal of the minor offence authority. In accordance with the fourth paragraph of Article 202b of the MOA‑1, in an objection procedure the perpetrator can state reasons against the order imposing imprisonment for the enforcement of fines (the fourth paragraph of Article 202b of the MOA-1), and in this procedure, in accordance with the sixth paragraph of Article 202b of the MOA-1, the court shall also carry out enquiries with the competent authorities regarding the circumstances that are important for deciding on the objection. Hence, in judicial proceedings, an objection filed by the perpetrator against the order imposing imprisonment for the enforcement of fines is envisioned, with the latter being a non-devolutive, suspensive[38] legal remedy, while the possibility of the perpetrator cooperating prior to the issuance of an order imposing imprisonment for the enforcement of fines is not regulated. Such entails that the cooperation of the perpetrator in judicial proceedings is only rendered possible once the court has already assessed that the threat of the deprivation of liberty is justified. In addition to the objection, the MOA-1 also regulates the appeal against the order rejecting the objection (the ninth paragraph of Article 202b of the MOA-1), which is suspensive, as is the objection,[39] and appeals against a court order deciding that imprisonment for the enforcement of fines is not to be imposed.
41. For the assessment of the alleged deficiency of the procedure it is key that (1) in order for the fine to be paid, in judicial proceedings the perpetrator is threatened, by an order imposing imprisonment for the enforcement of fines, with the deprivation of liberty, (2) the court adopts this order ex officio or upon the motion of the local court that decided in the first instance, or upon the motion of the minor offence authority, and (3) this occurs without the possibility of the perpetrator to make a statement thereon. With regard to the allegations of the applicant concerning the lack of regulation of the procedure in the phase until the issuance of the order imposing imprisonment for the enforcement of fines, the question arises whether the regulation is in conformity with the rights determined by Articles 22 and 23 of the Constitution due to the fact that courts determine imprisonment for the enforcement of fines by an order even before they have given the perpetrator the possibility to state reasons against such a decision.
42. One of the more important expressions of the right to the equal protection of rights (Article 22 of the Constitution) is the right to make a statement in the procedure. Parties have to be ensured this right in all procedures and in all phases thereof.[40]. This right provides the parties the opportunity to present their positions in the procedure under conditions that substantively do not put them in a worse position as compared to the opposing party. In such manner parties can have an influence on the decision of the court in cases that affect their rights and interests.[41] The Constitutional Court stresses the importance of the right to be heard in all judicial proceedings, with regard to which, when determining its content, it takes into consideration the particularities of individual procedures.[42] The right to be heard is based on respect for human personality and personal dignity (Article 34 of the Constitution), as it enables parties an effective defence of their rights and thus ensures them the position of a subject (and not of an object) in the procedure. The notion of a judicial decision in and of itself encompasses the guarantee that decision-making is made by an independent and impartial court (the first paragraph of Article 23 of the Constitution), but to be able to speak of the impartiality of courts, they must, prior to adopting a decision, as a general rule, hear the position of the party whose rights they are to interfere with.[43]
43. The threat of imprisonment for the enforcement of fines, which is concretised in the court order, is certainly a very effective means to attain the payment of the fine, as it has a strong, intimidating effect precisely due to the extraordinary importance everyone places on personal liberty. However, it should be borne in mind that within the framework of the assessment of imprisonment for the enforcement of fines from the viewpoint of the admissibility of the interference with the right to personal liberty, it was taken into consideration [by the Constitutional Court] that the statutory regulation of imprisonment for the enforcement of fines must ensure judicial concretisation of the constitutional admissibility of the interference in each concrete case already in the phase of the court’s decision-making regarding the adoption of the order imposing (or not imposing) imprisonment for the enforcement of fines. Hence, prior to the phase of the objection procedure. This means that, in accordance with the MOA-1, courts already in the first phase of deciding on imprisonment for the enforcement of fines act in two roles, with regard to which they protect two distinct interests: (1) they ensure effective observance of final decisions on minor offences and thus the implementation of the principles of a state governed by the rule of law, and (2) at the same time, they ensure that the effectiveness [of decisions] does not result in excessive interferences with the personal liberty of individual perpetrators. In this respect it must also be taken into consideration that the concretisation of the constitutional admissibility of interferences with the right to personal liberty in each individual case entails an important additional element of the limitation of the interference with such right that is envisioned by law. The term judicial decision in and of itself guarantees decision-making by an impartial court, which also means that, as a general rule, courts must hear the positions of both parties prior to adopting a decision. Although the case at issue concerns a measure intended for the execution of a final decision on a minor offence, the question of the interference with the perpetrator’s personal liberty is first decided on in the procedure determined by Article 202b of the MOA-1. Hence, it is essential that this interference is not decided on with finality by the decision on the minor offence. In the given framework, which is defined by the nature of imprisonment for the enforcement of fines, on the one hand, and by the assessment of the measure from the viewpoint of the right determined by the first paragraph of Article 19 [of the Constitution], on the other, the lack of the procedural possibility of obtaining a statement by the perpetrator prior to the adoption of the order imposing imprisonment for the enforcement of fines entails a combination of an interference with the right determined by Article 22 of the Constitution and with the right determined by Article 23 of the Constitution, specifically with that part thereof that guarantees decision-making by an impartial court.
44. The objective of the interference is undoubtedly the effectiveness of the measure,[44] which has, as a general rule, in and of itself an additional and particularly expressed importance when procedures for the enforcement of obligations that are imposed with finality are at issue. Therefore, it is not possible to deny that the interference has a legitimate objective. The Constitutional Court carries out an assessment of the conformity of a challenged regulation with the general principle of proportionality on the basis of the so-called strict test of proportionality, which encompasses an assessment of three aspects of the interference, namely of appropriateness, necessity, and proportionality in the narrower sense.[45]
45. Courts are able to adopt an order imposing imprisonment for the enforcement of fines on the basis of data from the case file and, if they carry out enquires ex officio prior to the adoption of the order, on the basis of data accessible in official registers, without calling on the perpetrator to state by him- or herself reasons against the imposition of imprisonment for the enforcement of fines. A procedure carried out in such a manner excludes the possibility that when it imposed imprisonment for the enforcement of a fine the court was informed of those circumstances of the case that according to the perpetrator could significantly influence the assessment of the court regarding the fair balance between the importance of ensuring observance of a final decision and the significance of the interference with the perpetrator's right to personal liberty. This holds true despite the fact that in the procedure for determining imprisonment for the enforcement of fines courts must also protect the interests of the perpetrator, which is the objective of the concretisation of the constitutional admissibility of the measure by a court in each individual case. This is why the element of an additional limitation of the interference with personal liberty as envisaged in the tenth paragraph of Article 202b of the MOA-1 is significantly restricted in this initial phase. The question that the Constitutional Court must answer is why the perpetrator should be threatened by a court order with imprisonment for the enforcement of the fine before he or she has been given the possibility to make a statement, and even before the court has been able to carry out a balancing of the proportionality of the measure, taking into consideration also the circumstances that are important in the opinion of the perpetrator.[46]
46. From the hitherto constitutional case law it follows that particularly justified circumstances may justify a departure from the requirement that the right to make a statement must be ensured in the initial phase of the procedure. The Constitutional Court has already established the existence of such particularly justified circumstances in proceedings for issuing an interim injunction in civil enforcement[47] and in land register proceedings.[48] In the former, the need for the effectiveness of the issued interim injunction was highlighted as the reason justifying the limitation of the right to the equal protection of rights in the first phase [of the proceedings],[49] when there is a danger that the established procedural guarantees could even be left bereft of meaning. In the latter instance, the need for expedited decision-making by a court following the entry of a restriction was underlined, taking into consideration the formal nature of land register proceedings.[50] The Constitutional Court also drew attention to the constitutional admissibility of subsequently ensuring the right to make a statement after the court in criminal proceedings has already ordered the freezing [of assets] by interfering with personal property (i.e. subsequently) in Decision No. U-I-296/02, dated 20 May 2004 (Official Gazette RS, No. 68/04, and OdlUS XIII, 41).
47. The case at issue is different. There exists neither a specifically expressed need for the protection of the interests of the opposing party (i.e. the creditor) nor a necessity that would stem from the need to implement a certain specific characteristic of the judicial proceedings at issue. Actually, the contrary is true. It must be taken into consideration that the threat of imprisonment for the enforcement of fines has a strong and intimidating effect and that the essence of imprisonment for the enforcement of fines is precisely the psychological – intimidating – effect thereof. The latter is to a large degree attained by the mere issuance of an order imposing imprisonment for the enforcement of fines. It is namely impossible to retroactively undo the intimidating effect on an individual with the possibilities that the objection procedure offers. Furthermore, from the assessment of the challenged measure from the viewpoint of the second paragraph of Article 19 of the Constitution it follows that imprisonment for the enforcement of fines should not be assigned merely the meaning of an effective means for ensuring payment discipline. By taking into consideration the mentioned characteristics of the case, it is evident that such interference with the right to make a statement and with the right to an impartial court (Article 22 and the first paragraph of Article 23 of the Constitution) is inconsistent with the requirement of ensuring a fair balance between the benefits of the objective that justifies the measure and the weight of the interference with these two rights. Irrespective of the question of the necessity and appropriateness of the challenged interference with the right to make a statement and with the right to an impartial court, it is thus evident that the interference does not pass the test of proportionality in the narrower sense.
B – VII
48. With regard to the above, the Constitutional Court did not establish that the challenged imprisonment for the enforcement of fines is as such unconstitutional. It did establish, however, that individual conditions and the regulation of the procedure prescribed for imposing imprisonment for the enforcement of fines are inconsistent with the Constitution as they do not sufficiently ensure the guarantees provided by the Constitution. The established unconstitutionalities and in particular the manner of the statutory regulation of the measure do not allow the Constitutional Court to abrogate only individual provisions thereof. Consequently, the Constitutional Court abrogated the regulation of imprisonment for the enforcement of fines in its entirety (Point 1 of the operative provisions).
49. By this Decision, the Constitutional Court abrogated the entire regulation of imprisonment for the enforcement of fines, whereby the statutory basis for such interference with personal liberty is now no longer in place (the first and second paragraphs of Article 19 of the Constitution). Therefore, on the basis of the second paragraph of Article 40 of the CCA it decided that in cases in which decision-making proceedings regarding imprisonment for the enforcement of fines have been concluded by the date of the publication of this Decision in the Official Gazette of the Republic of Slovenia, imprisonment for the enforcement of fines shall not be enforced and [where applicable] the enforcement thereof shall be discontinued, and procedures for deciding on imprisonment for the enforcement of fines shall be discontinued as well (Point 2 of the operative provisions).
C
50. The Constitutional Court adopted this Decision on the basis of Article 30, the second paragraph of Article 40, and Article 43 of the CCA, composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The decision was reached unanimously.
Mag. Miroslav Mozetič
President
[1] Gesetz über Ordnungswidrigkeiten, OWiG, BGBl. I S. 602.
[2] The Ministry refers to Decision of the German Federal Constitutional Court No. 2 BvL 1/76, dated 9 November 1976, and to Decision of the Constitutional Court of the City State of Berlin No. 102/00, dated 26 October 2000.
[3] They determine: “(10) If the court establishes that there exist circumstances due to which the issuance or execution of an order imposing imprisonment for the enforcement of a fine would not be reasonable or in conformity with its purpose, it shall not impose imprisonment for the enforcement of the fine or shall discontinue the enforcement thereof.
(11) In an instance referred to in the preceding paragraph, the court shall decide by an order against which an appeal to the Higher Court is admissible.”
[4] Cf. the third and ninth paragraphs of Article 30 of the MOA-1H and the first paragraph of Article 29 of the MOA-1I.
[5] In accordance with the established constitutional case law, the defendant in a minor offence procedure must also be ensured the fundamental guarantees of a fair trial, with regard to which in an instance of milder violations with less serious consequences for the punished person the level of ensured rights may be lower than ensured in criminal proceedings (cf. Decision No. Up-120/97, dated 18 April 1999, Official Gazette RS, No. 31/99, and OdlUS V, 126).
[6] Cf. Decision No. U-I-344/06, in which the Constitutional Court compared punishment for insulting statements made in civil proceedings and punishment as a means of ensuring enforcement. In the mentioned case, the subject of assessment was the deprivation of liberty in order to ensure that the debtor would carry out an action that no one else could carry out instead of him. The Constitutional Court explained that the test regarding the nature and the weight of the sanction that, when carried out, enables the question of whether what is at issue is criminal proceedings to be answered can apply to an instance in which the purpose of the sanction is above all punitive. It drew attention to the fact that when punishment is imposed in the framework of an enforcement procedure, the protected value is different (i.e. the effectiveness of enforcement, thereby ensuring the right to judicial protection determined by the first paragraph of Article 23 of the Constitution), as is the objective of the punishment. In such an instance, it is namely not a response to an action that has already been carried out, but an attempt to influence the will of the debtor. Since in accordance with the assessment of the Constitutional Court it was not a sanction of a punitive nature, the comparison with sanctions for criminal offences was not justified.
[7] Cf. ibidem.
[8] Cf. ibidem, Para. 11 of the reasoning.
[9] The perpetrator always has the possibility to request judicial protection against the decision of the minor offence authority and thus to achieve that a court will decide with finality on his or her liability for the minor offence. It is not possible to diminish the importance of the final decision by which the liability of individuals was decided on merely because they do not make use of this right.
[10] In the Order issued in Tyrell v. the United Kingdom, dated 4 September 1996, the ECtHR explained that the first part of point (b) of the first paragraph of Article 5 of the ECHR is the basis for the deprivation of liberty due to the failure to pay a fine. In that case, the applicant failed to pay the costs imposed by the court in the proceedings and the fine imposed on him by the authority competent for granting licences for taxi services. Cf. Order of the Commission in Airey v. Ireland, dated 7 July 1977.
[11] See, e.g., the ECtHR Judgment in Gatt v. Malta, dated 27 July 2010.
[12] Cf. Decision of the Constitutional Court No. U-I-18/93, dated 11 April 1996 (Official Gazette RS, No. 25/96, and OdlUS V, 40), Para. 32 of the reasoning.
[13] Cf. ibidem, Para. 42 of the reasoning.
[14] Since the case at issue does not concern the deprivation of liberty in criminal proceedings, Articles 27 and 29 of the Constitution are not relevant; cf. ibidem, Para. 28 of the reasoning.
[15] Cf. ibidem, Para. 20 of the reasoning.
[16] Ibidem.
[17] Cf. ibidem, Para. 69 of the reasoning.
[18] Cf. Decision of the Constitutional Court No. U-I-161/10, dated 9 December 2010 (Official Gazette RS, No. 107/10, and OdlUS XIX, 10, Para. 6 of the reasoning).
[19] Cf. L. Šturm in: L. Šturm (Ed.), Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 55.
[20] See Decision of the Constitutional Court No. U-I-18/02, dated 24 October 2003 (Official Gazette RS, No. 108/03, and OdlUS XII, 86), Para. 25 of the reasoning.
[21] If imprisonment for the enforcement of fines has already been imposed, the court must annul it.
[22] Cf. Judgment of the Maribor Higher Court No. PRp 201/2007, dated 7 March 2007, to which also the Government refers in its reply. It follows therefrom that the first paragraph of Article 19 of the MOA-1 cannot be interpreted as meaning that imprisonment for the enforcement of fines is obligatory in all cases when the fine is not paid, as the rationale for imposing imprisonment for the enforcement of fines cannot be violence against individuals regarding whom it is not possible to expect that enforcement will be successful.
[23] The initial text of the MOA-1 (Official Gazette RS, No. 7/03) did not provide substantive criteria for deciding on imprisonment for the enforcement of fines. The Act Amending the Minor Offences Act (Official Gazette RS, No. 40/06 – hereinafter referred to as the MOA-1C) added Article 202b to the MOA-1, the fourth paragraph of which determines that individuals may state circumstances relating to their property in the objection procedure. The Act Amending the Minor Offences Act (Official Gazette RS, No. 17/08 – MOA-1E) added to the fourth paragraph of Article 202b the provision that the perpetrator must also enclose with the objection proof of his or her medical status and other personal circumstances due to which the imposition of imprisonment for the enforcement of fines would be inconsistent with its purpose. In the legislative file of the Draft Act of that amendment (EVA 2007-2011-0111, dated 17 January 2008) it is explained that after the proposed amendments were adopted, it would no longer be admissible to impose imprisonment for the enforcement of fines in instances where the perpetrators own some property but demonstrate the existence of other impediments to imposing and carrying out imprisonment for the enforcement of fines (e.g. the state of health of the perpetrator, his or her age, psychophysical status, social circumstances in which he or she lives alone or together with family or dependents). However, these circumstances must be of such nature that due to them imprisonment for the enforcement of fines would not achieve its purpose. The MOA-1H added a tenth paragraph to Article 202b of the MOA-1, and thereby, inter alia, the criterion of reasonableness. In the legislative file of the Draft Act of the MOA-1H (EVA 2012-2030-0041, dated 20 December 2012) it can be seen that the proposed amendments allegedly followed from the principle of humaneness and reasonableness.
[24] Cf. L. Bavcon et al., Kazensko pravo, Splošni del [Criminal Law, General Part], Uradni list Republike Slovenije, Ljubljana 2013, p. 44.
[25] It is a punitive sanction that should have a general and a special preventive effect.
[26] Imprisonment for the enforcement of fines as a measure involving the use of coercion was introduced by the Minor Offences Act (Official Gazette RS, No. 7/03), which entered into force on 1 January 2005. Its introduction was a response to the situation at the time in the field of minor offences. At the time when the MOA-1 was being adopted and when it entered into force it was characteristic, in addition to an overwhelming number of unresolved cases, that the observance of final decisions specifically in the field of minor offences was extraordinarily low (as regards the difficulties in ensuring the execution of sanctions for minor offences, see, e.g., the Minor Offences Draft Act (MOA-1), materials for the first reading, EPA 508 – III, Gazette of the National Assembly, No. 39 (2002), p. 4).
[27] It has also been confirmed in practice that imprisonment for the enforcement of fines indeed has such an effect. See, e.g., A. Koman, Izvrševanje sankcij – nekateri problemi prakse v zvezi z izvrševanjem uklonilnega zapora [Execution of Sanctions – Selected Issues Relating to the Execution of Imprisonment for the Enforcement of Fines in Practice], Proceedings – 3rd Days of Minor Offence Law, GV Založba, Ljubljana 2008.
[28] In accordance with the ninth paragraph of Article 202b of the MOA-1, an appeal is allowed against an order dismissing the objection, which is decided on by the Higher Court.
[29] Such interpretation of the mentioned provisions also follows from the legislative file for the first reading of the Draft Act Amending the Minor Offences Act (MOA-1C). See the reasoning of Article 8 of the MOA-1C, by which Article 19 of the MOA-1 was amended (Bulletin of the National Assembly, No. 6, dated 19 January 2006).
[30] Cf. Decision of the Constitutional Court No. U-I-40/12, dated 11 April 2013 (Official Gazette RS, No. 39/13), Para. 49 of the reasoning.
[31] Cf. Decision of the Constitutional Court No. U-I-18/93.
[32] Enforcement is carried out in accordance with the provisions of the Tax Procedure Act (Official Gazette RS, No. 13/11 – official consolidated text, 32/12, 94/12, and 111/13 – hereinafter referred to as the TPA-2).
[33] For instance, by an objection of a third party against the enforcement order (Article 158 of the TPA-2).
[34] For examples of such actions, Article 148 of the TPA-2 determines measures such as the following:
(i) enforcement against the property of close family members who obtained such property from the debtor without payment or for a price lower than the market value in the year or following the year in which the tax obligation arose, up to the value of the property obtained in such manner (the first paragraph);
(ii) declaring the voidability of the transaction by which the debtor disposed of the property in order to evade the payment of tax, namely in the year or following the year in which the tax obligation arose (the second paragraph).
[35] The amount of the fine for persons to whom imprisonment for the enforcement of fines can be imposed depends on a number of factors determined by Article 17 of the MOA-1.
[36] When what is at issue is the deprivation of liberty of a person who does not comply with a lawful decision of a court, the length of the deprivation of liberty is of key importance for assessing its admissibility also according to the ECtHR (see Para. 25 of the reasoning of this decision).
[37] Cf. Decision of the Constitutional Court No. U-I-311/11, dated 25 April 2013 (Official Gazette RS, No. 44/13), Para. 54 of the reasoning.
[38] In accordance with the first paragraph of Article 2 of the Enforcement of Criminal Sanctions Act (Official Gazette RS, No. 110/06 – official consolidated text, 76/08, 40/09, and 109/12, hereinafter referred to as the ECSA-1), which, in accordance with the first paragraph of Article 128 of the ECSA-1, also applies mutatis mutandis as regards the enforcement of imprisonment for the enforcement of fines, the filing of an objection against an order imposing imprisonment for the enforcement of fines suspends the execution thereof. Imprisonment for the enforcement of fines is namely enforced only when the order imposing imprisonment for the enforcement of fines becomes final and when there is no lawful impediment to its execution. In accordance with the first paragraph of Article 199 of the MOA-1, the decision of the authority that decides on the minor offence (an order imposing imprisonment for the enforcement of fines also falls among such decisions) becomes final when it can no longer be challenged by a request for judicial protection or by an appeal, or if there is no judicial remedy against such decision.
[39] Considering what was stated in the preceding note, the same as in relation to the objection also applies as regards the effect of an appeal against an order imposing imprisonment for the enforcement of fines.
[40] Cf. Decision of the Constitutional Court No. Up-3/00, dated 2 March 2000 (OdlUS IX, 132), Para. 8 of the reasoning.
[41] Cf. Decisions of the Constitutional Court No. Up-1352/11, dated 9 May 2013 (Official Gazette RS, No. 47/13), Para. 6 of the reasoning, and No. Up-39/95, dated 16 January 1997 (OdlUS VI, 71), Para. 10 of the reasoning.
[42] Cf. Decision of the Constitutional Court No. Up-1352/11, Para. 7 of the reasoning.
[43] Cf. Decision of the Constitutional Court No. U-I-18/93.
[44] In the original text of the MOA-1, the perpetrator’s first possibility to make a statement was no sooner than in the appeal. The reasons for such a regulation were not evident from the legislative file. As the MOA-1C entered into force, the procedure for deciding on the imposition of imprisonment for the enforcement of fines was specifically regulated and the possibility was added that in the objection, which is decided on by the court that adopted the order imposing imprisonment for the enforcement of fines, perpetrators can state reasons due to which they believe that it is inadmissible to impose imprisonment for the enforcement of a fine. In the legislative file of the draft act of this amendment (EVA 2005-2011-0048, dated 12 January 2006), the applicant only alleged that, until that point, the issue of the procedure had not been regulated sufficiently clearly, due to which it was not until the appeal that perpetrators had the possibility to object that the fine had already been paid or to propose that the fine be substituted with the performance of community service. The applicant does not specifically state the reasons why perpetrators are given such possibility only in the phase after the order imposing imprisonment for the enforcement of fines has already been adopted.
[45] See Decision of the Constitutional Court No. U-I-18/02, Para. 25 of the reasoning.
[46] In the submitted opinion relating to the request of the Ombudsman, the Government referred to the case law (Order of the Higher Court No. Prp 201/2007, dated 7 March 2007), from which it follows that the court decided on the objection of the perpetrator (hence not in the phase preceding the imposition of imprisonment for the enforcement of fines). The Government also referred to a note from 2007 by which the Ministry called upon all local courts to ascertain, prior to adopting an order imposing imprisonment for the enforcement of fines, the personal circumstances of perpetrators such that they obtain data from all official records that they have access to. The note itself draws attention to the considered deficiency, with regard to which it is clear that these official records do not include all data that in accordance with the MOA-1 are relevant for the decision-making of courts (e.g. data regarding the medical status of perpetrators).
[47] Cf. Order of the Constitutional Court No. Up-321/96, dated 15 January 1997 (OdlUS VI, 80) and Decision of the Constitutional Court No. Up-3/00.
[48] Cf. Decision of the Constitutional Court No. Up-1352/11, Para. 11 of the reasoning.
[49] Cf. Decision of the Constitutional Court No. Up-3/00, Para. 8 of the reasoning.
[50] Cf. Decision of the Constitutional Court No. Up-1352/11, Para. 11 of the reasoning.
|
Type of procedure: |
review of constitutionality and legality of regulations and other general acts |
Type of act: |
statute |
Applicant: |
Varuh človekovih pravic, Ljubljana |
Date of application: |
19.01.2012 |
Date of decision: |
11.12.2014 |
Type of decision adopted: |
decision |
Outcome of proceedings: |
annulment or annulment ab initio |
Document: |
AN03830 |
