Found at the Constitutional Court of the Czech Republic No. 103 / 1997 Coll.

On the day of the publication of this finding in the Collection of Laws, part of the provision of § 171 (1) (d) of Act No. 140 / 1961 Coll., the criminal law, as amended, is deleted, expressed as "constitutional '.

In the remainder, where a retroactive withdrawal of part of this provision was proposed on 1 September 1995, the application shall be rejected.

On 21 October 1996, the Constitutional Court received a proposal by the District Court of Kutná Hora to abolish part of the provision of § 171 (1) (d) of Criminal Act No. 140 / 1961 Coll., as amended, expressed in the word "constitutional '. That court is hearing, under sp. zn. 6 T 13 / 96, a criminal case against the defendant, juvenile P. H., born 9 May 1979, the ward of the Youth Education Institute Kamenná Lhota, who was brought in for the offence of obstructing the execution of an official decision pursuant to § 171 (1) (d) of the Criminal Act, which he was ordered to leave the Institute on 26 September 1995 for a period of 20 hours on 28 September 1995, while he did not return to the Institute within a prescribed period of time, although he was ordered by the Court of Justice of Liberec of 12 November 1986, in order of constitutional education, by which he had committed serious acts to thwart the purpose of constitutional education which he had been ordered.

By order of 19 September 1996, the Kutná Hora District Court suspended the prosecution against juvenile P. H. under Paragraph 224 (5) of the Code of Criminal Procedure by essentially agreeing with the defendant's argument on the unconstitutionality of the provision of § 171 (1) (d) of the Criminal Code in that part of the law according to which the purpose of constitutional education is punishable and thwarted.

In the statement of reasons for his proposal, the Kutná Hora District Court stated that it is based primarily on the fact that, within the meaning of Article 9 of the Convention on the Rights of the Child ("the Convention '), a child can be separated from his parents against their will only if such separation is necessary in the interests of the child. That provision of the Convention is then implemented in the legal order of the Czech Republic by the Institute of Constitutional Education, which can therefore only be ordered in the interests of the child. Thus, if constitutional education can be ordered solely in the interests of the child, the provision of § 171 (1) (d) of the Criminal Act, as amended by Act No 152 / 1995 Coll., which has been inserted into the provision cited by the word" constitutional', is contrary to the general principle that the perpetrator or participant of the offence cannot be designated for the protection of the relevant provision of infringement. According to the appellant, such a prosecution of a child who refuses to submit solely in the interests of his or her ordered constitutional education has the same logic as the prosecution of a person who attempted suicide for a guide to an offence of participation in suicide pursuant to § 230 of the Criminal Code, or the prosecution of a juvenile who has been entrusted by a judicial decision to raise one of his or her parents and asks the other of his or her parents not to respect that decision and, contrary to such a decision, to remove him or her from the education of the parent to whom he or she has been entrusted with, for an instruction to an offence of kidnapping under § 216 of the Criminal Act. In this context, the appellant also points out the doubts as to the appropriateness of that provision, expressed in the commentary on the criminal law, which was issued in 1995 by C. H. Beck / SEVT. The Court therefore considers that the contested part of the provision of the criminal law is contrary to the constitutional order of the Czech Republic, in particular Article 9 of the Convention, and therefore proposes its annulment on 1 September 1995, given that no persons have acquired any rights from the contested provision and therefore, in accordance with the principle of legal certainty, its annulment should take place on the same date as Law 152 / 1995 Coll. has become effective.

The Chamber of Deputies of the Parliament of the Czech Republic, whose observations were requested by the Constitutional Court pursuant to Rule 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, in its written observations signed by President Milos Zeman, essentially refers to the Convention, which sets out the principle that the child should not be separated from his parents against their will, but the Convention allows such separation of the child from the parents, which is necessary in the interests of the child and which is addressed by the competent authority on the basis of a judicial decision in accordance with the applicable law in the relevant proceedings. Similarly, the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) states that minors may be separated from their parents only by a decision of the court, by law. These fundamental principles of both the Convention and the Charter are implemented by the Law on Family, Civil Code, the Act on School Devices and other lower legal standards, in particular by the Decree of the Ministry of Education, Youth and Sports. Constitutional education is considered when raising a child is seriously threatened or cannot be secured for other serious reasons, as well as when it aims to provide preventive educational care to children and young people with negative behavioural phenomena. Law 152 / 1995 Coll. supplemented the provision of § 171 of the Criminal Act by extending the protection of judicial decisions against obstruction of purpose or enforcement by also protecting a judicial decision ordering constitutional education. In the statement of reasons for the draft law No 152 / 1995 Coll. on the provision in question, the petitioner stated that, according to the provision still in force, § 171 (1) (d) of the Criminal Act was a criminal offence only in order to obstruct or complicate protective treatment or education. The obstruction or material impediment to the performance of constitutional education by the person against whom the measure is directed was not punishable, even in accordance with § 171 (3) of the Criminal Act. However, in terms of the content of these institutes and the factual reasons for their imposition, there is no greater difference in practice between protection and constitutional education, and the risk posed to society by young people on the run from protective or constitutional education is also the same. For this reason, the promoter of draft law No. 152 / 1995 Coll. proposed equally to penalise cases of serious harassment or obstruction of both protective and constitutional education. It is undeniable that the promoter of the proposal meant only and especially constitutional education intended for troubled young people, although there is also a constitutional education for abandoned or orphan children alongside such constitutional education. It is admitted that this not entirely sensitive distinction between the types of constitutional education in the penal code can actually lead to the assumption that any escape from a foster home must be equally qualified as an escape from a youth education institution with increased educational care. A certain starting point from this situation, which was adopted by the amendment to the provision of Paragraph 171 (1) (d) of the Criminal Act, is the need for all the authorities concerned to examine carefully the circumstances, the motives, the consequences of the action of a minor and the impetus to criminal proceedings for the purpose of obstructing or impeding the exercise of official decisions only where the facts of the offence of obstruction of constitutional education imposed on a minor for educational reasons are fulfilled. If the application for annulment of a part of the contested provision is granted, it is not recommended to withdraw it retroactively on 1 September 1995, in view of the imappropriateness of introducing retroactive rules into our legal system. The statement also confirms that Law 152 / 1995 Coll. was approved by the necessary majority of the legislators on 29 June 1995, signed by the relevant constitutional authorities and duly declared. Finally, the view is expressed that the legislature acted in the belief that the law adopted was in accordance with the Constitution of the Czech Republic (hereinafter referred to as the Constitution), the constitutional order of the Czech Republic and our legal order, and it is up to the Constitutional Court to assess the constitutionality of the contested provision and to give the relevant decision.

It follows from the report on the 32nd meeting of the Chamber of Deputies of the Parliament of the Czech Republic (Chamber of Deputies 1675 and 1803), held on 20 - 30 June 1995, that Act 152 / 1995 Coll., amending and supplementing Act No. 140 / 1961 Coll., penal law, as amended, Act No. 141 / 1961 Coll., on Criminal Procedure (Penal Order), as amended, Act No. 59 / 1965 Coll., on the execution of the sentence of deprivation of liberty, which, inter alia, was amended by the Act No. 171 (1), Act No. 171 (d), was adopted on 29 June 1995 by the necessary by a majority of votes, namely, namely, namely, and Act No. 126 votes against, as amended by Members of the vote (29). The Act was published in the amount of 40 / 1995 Coll. sent on 2 August 1995, it can therefore be concluded that it was adopted and issued within the limits of the constitutional competence and the constitutional procedure (§ 68 (2) of Act No. 182 / 1993 Coll.).

The object of the offence of obstructing the enforcement of an official decision, the formal nature of which is defined by the provisions of Section 171 of the Criminal Act, is an interest in the proper enforcement of decisions of the state authorities. It should be pointed out at the outset that not all judgments of courts or other state bodies are decisions whose enforcement is protected by this provision. The amendment to the penal law implemented by Law 152 / 1995 Coll. supplemented with effect from 1 September 1995 the contested provision by extending the protection of judicial decisions against the purpose of obstruction or of the mistreatment of their performance to the protection of a judicial decision ordering constitutional education. Until the entry into force of the above amendments to the Criminal Code, the offence under the provisions of Paragraph 171 (1) (d) was merely an act which undermined or made it difficult for the purpose of protective treatment or protective education - that is, the purpose of protective measures imposed under the Criminal Act.

Constitutional education, unlike protective measures, is an institution of family law. It is a educational measure imposed under Section 45 (3) of the Family Act. According to that provision, a court may order constitutional education if the child's upbringing is seriously threatened or seriously disturbed and other educational measures have not led to correction or if, for other serious reasons, parents cannot provide for the child's upbringing. If necessary in the interests of the minor, the court may order constitutional education even if other educational measures have not been preceded. For important reasons, the court may extend constitutional education up to one year after maturity.

It follows from what has been stated that constitutional education, more precisely the judgment of the Court on the regulation of constitutional education, falls outside the scope of the provisions of Paragraph 171 (1) of the Criminal Act, as amended, which essentially protects the exercise of those judgments by the Court, or by other state bodies which are issued in connection with criminal proceedings, in which it is essentially a penalty for actions which undermine the purpose of detention or punishment, a breach of the regime provided for by certain types of punishment or protective measures. Safeguard measures, which include, in addition to preventing the case, protective treatment and protective education which are subject to the protection of the contested provision of Paragraph 171 (1) (d) of the Criminal Act, are one of the types of criminal penalties and are therefore subject to the criminal offence already committed and the conviction for it, or to an act which would be criminal, regardless of the person responsible. (They are also imposed either separately as the only possible means or instead of punishment, or in addition to punishment - but always in connection with a criminal offence already committed.)

When assessing the reasons for the appellant's proposal to delete the word "constitutional 'from the provisions of § 171 (1) (d) of the Criminal Act, as amended, it is therefore necessary to take into account the different nature of the legal institution of constitutional education from the institution of protective education, to which the Chamber of Deputies essentially compares in its observations and also the explanatory report to the Government of Law 152 / 1995 Coll. of constitutional education. The primary condition for the imposition of protective custody of a minor under Section 84 of the Criminal Act is his conviction for the crime he committed. Although protective education is imposed on persons under 15 years of age in civil proceedings, it is only on condition that such a person has already committed an act which, regardless of the age of the offender, would be a criminal act (§ 86 of the Criminal Code). Therefore, protective education as one of the protection measures (Section 71 of the Criminal Act) to be used to achieve the purpose of the Criminal Act is a form of criminal sanctions. On the other hand, constitutional education is an educational measure designed to create the most favourable conditions for the raising of a minor child and is primarily an educational, not a repressive measure. It is also ordered in many cases when the child's upbringing has failed to provide other individual care, for example, in a situation caused by the actual absence of a suitable person who could provide for it. In fact, therefore, it is also possible to consider situations where, before the regulation of constitutional education, a minor did not himself have to give cause for this measure, which is then dealt with by the court in the interests of the child to ensure his proper education. Thus, constitutional education cannot be understood as a form of sanction or obligation imposed on a child, leaving aside the conditions imposed by the constitutional education regulation, the court shall abolish constitutional education. Therefore, constitutional education should be seen as an extreme case of dealing with a properly unsecured upbringing of a child as defined in the Convention, in the light of whose provisions the contested provision should be assessed in the view of the Constitutional Court. This Convention, which is undoubtedly an international treaty on human rights and fundamental freedoms, was declared the Federal Ministry of Foreign Affairs in the Collection of Laws No 104 / 1991 Coll. after the approval of the Federal Assembly of the Czech and Slovak Federal Republic and ratified it by the President of the Czech and Slovak Federal Republic. The instrument of ratification was deposited with the Secretary-General of the United Nations, depositary of the Convention, on 7 January 1991. After the demise of the Czech and Slovak Federal Republic, the Czech Republic took over the rights and obligations of the above-mentioned international treaty pursuant to Article 5 (2) of the Constitutional Law of the Czech National Council No. 4 / 1993 Coll., on measures related to the demise of the Czech and Slovak Federal Republic, notified its successes to the Treaty by letter of the Minister of Foreign Affairs of the Czech Republic, which was deposited with the Secretary-General of the United Nations as depositary of the Convention on 22 February 1993 and its adoption confirmed on 7 July 1993.

That Convention, to which the Czech Republic is bound within the meaning of Article 10 of the Constitution, already stresses in its preamble that a child needs special guarantees and care for his physical and mental maturity. Article 3 (1) of the Convention provides that the interests of the child must be a leading consideration in any activity involving children, whether carried out by public or private social care establishments, courts, administrative or legislative bodies. This provision has the character of a "self-execution 'standard. The standard is eligible for direct use in view of its dictation (... the interest of the child... in any activity), which is sufficiently clear and clear to enable the compulsory bodies to whom it is addressed - national bodies - to adjust their behaviour accordingly. Judged from the point of view of this article of the Convention, it cannot be considered as the interest of the child an adequate and appropriate form of solution which criminalizes a juvenile who, for whatever reason, cannot cope with the ordered constitutional education. The Constitutional Court therefore concludes that the resolution of cases of infringement - clearly in the interest of a minor ordered constitutional education - by criminal law, as the contested provision does (without, moreover, any distinction between and taking into account the various grounds for the regulation of constitutional education), even in the light of the specific provisions of the criminal law applicable to minors, is contrary to Article 3 (1) of the Convention and has therefore complied with the appellant's proposal to repeal part of the contested provision.

At that conclusion, neither could the reasons which led the legislature to adopt the contested provision, namely the protection of society against the dangers posed to it by youth on the run from constitutional education, since, in measuring two in a conflict of interests, that is to say, the interest of a society with an interest in the proper education and harmonious development of each minor child, that is the interest of the child, which must be regarded as predominant.

The appellant proposed to withdraw part of the contested provision on the date of the effective date of Act No. 152 / 1995 Coll., i.e. on 1 September 1995, the Constitutional Court did not comply, since the retroactive annulment is prevented by the requirement to maintain legal certainty, despite the fact that, in a situation where the Constitutional Court repeals the provisions of the Criminal Act, the same effects as the retroactive abolition of the contested provision are essentially ensured by Article 71 (1) and (3) of Act No. 182 / 1993 Coll.

For the sake of completeness and in full conclusion, it should be added that the appellant contesting the contested provision with Article 9 of the Convention, which essentially lays down the conditions to be complied with in cases of separation of the child from the parents against their will, was not found.