The Constitutional Court found No. 106 / 2003 Coll.
The Constitutional Court's finding of 26 March 2003 on a constitutional complaint against the Supreme Court resolution of 17 October 2002 sp. zn. 15 Tz 47 / 2002
Valid
The Constitutional Tribunal found
Text versions:
11.04.2003
106
FIND
The Constitutional Court
On behalf of the Czech Republic
The Plenum of the Constitutional Court decided on 26 March 2003 on a constitutional complaint against the Supreme Court resolution of 17 October 2002 in Case 47 / 2002
as follows:
The resolution of the Supreme Court of 17.10.2002, sp. zn. 15 Tz 47 / 2002, is hereby repealed for the contradiction with Article 15 (1) of the Charter of Fundamental Rights and Freedoms.
Reasons
The Constitutional Complaints received by the Constitutional Court on 7 November 2002 call for the annulment of the order of the Supreme Court of 17 October 2002 sp. zn. 15 Tz 47 / 2002, which rejected the infringement complaint lodged by the Minister of Justice in favour of the complainant.
The complainant was recognised by the judgment of the former Lower Military Court in Brno PSP 47 of 7.1.1954 sp. zn. T 2 / 54 as guilty of committing an act of evasive action pursuant to § 270 (1) (b) of Act No. 86 / 1950 Coll., criminal law. This act should have been committed by refusing to wear a uniform on 1 November 1953, to take over the assigned weapon and to perform military service, referring to his religious beliefs. For this offence he was sentenced to prison for two and a half years and, at the same time, he was declared for three years a loss of civil rights and a loss of rights referred to in § 44 (2) of Criminal Act No. 86 / 1950 Coll.
Against that judgment, which acquired legal power on 7 January 1954, the Minister of Justice, in favour of the complainant, lodged a complaint for infringement of the law in which he argued that the judgment infringed the law in ust. § 2 (3) of Act No. 87 / 1950 Coll., on Criminal Procedure (Criminal Code), in relation to the provision of § 270 (1) (b) of Act No. 86 / 1950 Coll., the criminal law, for the reasons set out in § 1 (1) and (2) of Act No. 119 / 1990 Coll., on judicial rehabilitation, as amended.
The competent Senate of the Supreme Court discussed a complaint for infringement of the law on 29 May 2002, which, by resolution sp. zn. 11 Tz 205 / 01, decided to refer the case to the Grand Chamber of the Criminal College in view of the differences in the practice of the Chambers of the Supreme Court. The key question was whether the complainant's conduct could be regarded as a criminal offence or whether the complainant merely implemented the Constitution with a guaranteed religious freedom, but contrary to the Constitution with obligations imposed on the State and society.
In the preamble to the contested order of the Grand Chamber of the Supreme Court of 17 October 2002, sp. zn. 15 Tz 47 / 2002, the Grand Chamber stated in particular that the accuracy of the contested decision as well as the accuracy of the previous proceedings were assessed in the complaint proceedings for infringement of the Law ex tunc, i.e. according to the facts and legal situation which existed at the time when the contested infringement decision was issued.
By providing for Article 2 (1) of the Law on Judicial Rehabilitation, the condemning decision was directly annulled by law for those offences which were declared to be offences contrary to the principles of a democratic society respecting civil political rights and freedoms guaranteed by the Constitution and expressed in international documents and international legal standards. The offence of evasive action under § 270 (1) (b) of Criminal Act No. 86 / 1950 Coll. is not listed in § 2 (1) of the Law on Judicial Rehabilitation. In view of this, according to the grounds for the contested resolution of the Grand Chamber of the Supreme Court, the conviction of the complainant cannot be regarded as unlawful only because he relied on his religious beliefs when committing it. If the legislator did not consider it necessary to abolish such condemnation directly from the law, then this is not an act whose declaration as a criminal offence would in itself be contrary to international documents, international legal standards and the principles of a democratic society respecting guaranteed civil political rights and freedoms. That is why, according to the Supreme Court, neither the conviction for the crime in question can, in itself, be regarded as incompatible with democratic and legal principles, and without further consideration of the violation of the law.
In particular, the complainant contends in a constitutional complaint that the Supreme Court did not deal with a specific criminal case, but expressed general considerations as to whether, at that time, there may have been a legitimate criminal penalty for a crime of avoidance of duty, that it completely overlooked the constitutional court's legal opinion expressed in particular in the decision on the case in point.
In the complainant's view, the existence of a legal obligation in itself is not a sufficient reason to restrict religious freedom. According to the complainant, additional assumptions must be met, i.e. that the military service would have to serve to ensure the rights and freedoms of other people and would have to meet the fair demands of morality, public order and general welfare in a democratic society. However, the military service in the Communist regime could not meet these requirements. The military service, as the complainant pointed out, was not at all used to safeguard the rights and freedoms of other people, but was intended to serve the armed protection of a regime which systematically and consistently violated human rights, was criminal, illegitimate and reprehensible. From this point of view, the complainant considers that his religious freedom was excessively limited not only within the meaning of Articles 18 and 29 (2) The General Declaration of Human Rights ("the Declaration '), but also Article 9 (1) and (2) of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention').
The complainant also considers that it is not decisive for the assessment of his case whether the Minister of Justice lodged or did not lodge a complaint in other cases for the benefit of persons acting in the same way as he did, however, on other grounds. Although the Supreme Court refers in its decision to Articles 1, 2 (1) and 3 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), the complainant's view is that it infringed those provisions when applying them as if the complainant claimed benefits at the expense of other entities. On the contrary, the complainant feels discriminated against, noting in a constitutional complaint that no international treaty or national regulation makes any distinction as to whether or not someone has refused military service because they have religious beliefs.
The complainant also considers that the Supreme Court has infringed, by the contested decision, the right to a fair trial guaranteed by Article 36 (1) of the Charter and Article 6 (1) of the Convention. In his view, the Grand Chamber, to which the case was referred to unify the legal opinion held by the various chambers of the Supreme Court, had to analyse the legal conclusions in similar earlier decisions, not merely "copy" the previous negative decisions of the 5th Chamber of the Supreme Court Criminal College.
The complainant also disagrees with the view of the Supreme Court, according to which he was prevented from exercising his right to judicial rehabilitation in accordance with the procedure of the Chief of the Military District Court in Brno, which, at the request of the complainant's lawyer, provided misleading information on judicial rehabilitation. The complainant considers that his lawyer at the time did not make an informal question, but an official question, and the duty of the Chief was to act in accordance with the provisions of § 52 of the Code of Criminal Procedure, i.e. to act as required by the meaning and educational purpose of the criminal proceedings. The complainant therefore acted in good faith that the chief's answer was correct and did not submit a motion for judicial rehabilitation.
In view of all the above, the complainant considers that by its decision the Supreme Court infringed its constitutional rights under Articles 18 and 29 of the Declaration, Articles 9 (1) and (2), 6 (1) of the Convention and Article 36 (1) of the Charter.
In its submission of 17 March 2003, the complainant supplemented its constitutional complaint by alleging that the right to freedom of conscience was infringed pursuant to Article 15 (1) of the Charter for reasons which are set out in the grounds for the Constitutional Court's finding of 11.3.2003 sp. zn. I. ÚS 671 / 01.
At the request of the Constitutional Court, the Supreme Court expressed its views on the constitutional complaint lodged as a party to the proceedings. The President of the Grand Chamber stated in his observations that a complaint for infringement of the law in favour of V. W. (V.) was referred to the Grand Chamber for a decision on the basis of the unification of the decision-making practice of the Chambers of the Criminal College. Chambers of the Supreme Court have two views on the question.
According to one, a conviction for a crime of avoidance under Paragraph 270 (1) (b) of Criminal Law No 86 / 1950 Coll. cannot in itself be regarded as incompatible with the democratic and legal principles and without further finding an infringement of the law, although the original conviction occurred between 25 February 1948 and 1 January 1990 as an act committed after 5 May 1945. In this view, neither the Declaration nor the international human rights treaties provide for any explicit right to refuse to fulfil legal obligations towards the State, including military obligations, and even in democratic states such criminal penalties are permissible even where there is no alternative service.
The second view is based on the belief that, in a situation where there was no alternative to the exercise of basic military service in the event that its performance led to the denial of the citizen's religious beliefs, his actions, through which he carried out the constitutional and international conventions of guaranteed freedom, could not be regarded as a criminal offence.
As the President of the Grand Chamber also said, the attempt to unify the current dissenting practice of the Chambers ended with the victory of the first view, although this view prevailed by the closest possible majority in a nine-member Grand Chamber. In its opinion, the President of the Grand Chamber expressed doubts as to the sufficient representativeness of the opinion which prevailed in the contested decision, particularly in view of the fact that some Chambers were represented in the Grand Chamber by more than one judge.
The intervener in the proceedings on a constitutional complaint, the Minister of Justice, opposed the contested decision in its opinion of 16.1.2003. The Minister of Justice considers that, in the case of the complainant, the provisions of § 2 (3) of Act No. 87 / 1950 Coll., on criminal proceedings of the Court (Criminal Code), in relation to § 270 (1) (b) of Criminal Act No. 86 / 1950 Coll., for the reasons set out in § 1 (1) and (2) of Act No. 119 / 1990 Coll., on judicial rehabilitation.
The Minister of Justice considers that there has been a breach of equality under Article (correctly) (1) of the Constitution in force at the time, because the uneven nature between the rights granted and the obligations imposed clearly placed all citizens who wanted to exercise the constitutionally guaranteed religious freedom practically in the position of those whose beliefs lacked spiritual dimensions. At that time, the Constitutional Act No. 150 / 1948 Coll., the so-called Constitution of 9 May, granted in Article 16 (1) the right of every citizen to choose any religious faith; On the other hand, it has strictly defined in § 34 (1) and (2) the basic obligations of the citizen to the State, including the duty relating to the defence of the country. In this situation, the complainant had the opportunity to live up to his religious beliefs only at the cost of criminal consequences in which, as a believer, he was at odds with his citizen's duties in defending the state.
In accordance with the resolution of the plenary of the Constitutional Court published as a communication from the Constitutional Court No 8 / 2001 Coll. to discuss a constitutional complaint against this decision, the Grand Chamber of the Criminal College of the Supreme Court decided on the infringement.
After the Constitutional Court found that the constitutional complaint fulfilled all the formal requirements and that it had been put in time, it accepted its meritative assessment.
1.
The Constitutional complaint is challenged by the above-mentioned judgment of the Supreme Court, in which the Supreme Court based itself on the argument that, in the infringement proceedings, it assesses both the "correctness' of the contested decision and the" correctness' of the previous ex tunc procedure, namely the facts and the legal situation at the time when the contested decision was given, and when the proceedings prior to that decision were carried out, the new (new facts and evidence) are inadmissible.
However, in the view of the Constitutional Court, this initial argument is not fully applicable. The interpretation of even the oldest criminal law standards, if, thanks to the available procedural means, is carried out by the court today with the consequences for assessing the criminal penalty of a person, that is to say, the consequences affecting the personal sphere of such a person, cannot be implemented regardless of the constitutional values and principles of the democratic rule of law currently in force, as expressed in the constitutional order of the Czech Republic. Only so limited, value-discounted, can be understood as continuity with the "old law" (see the finding of the Constitutional Court Pl. ÚS 19 / 93 - Collection of findings and resolutions of the Constitutional Court of the Czech Republic, Sv. 1, no. 1 - declared under No. 14 / 1994 Coll.), whose application (legality) is the subject of a current complaint procedure for infringement of the law.
Similarly, the European Court of Human Rights (judgment in Streletz, Kessler, Krenz v Germany of 22 March 2001), which stated, inter alia, that "the courts of a State which has replaced a previously existing State cannot be criticised for applying and interpreting the laws in force at the time in the light of the principles governing the State governed by the rule of law '. Even more precisely, this idea is developed in the opinion of Judge Levits, an additional justification for that decision. He said:" The interpretation and application of the law seems to depend in general on the political regime in which the law acts as a subsystem. (...) The differences in interpretation and application of the law between the democratic and socialist systems cover all important elements of the law. (...) This brings us to the question of whether, after changing the political regime from socialist to democratic, it is legitimate to apply the "old" right (...) with such interpretative and application procedures as are inherent in the new democratic political regime. I want to say that, in my opinion, another solution is not possible. Democratic states can only allow their institutions to exercise the right that originates in a pre-democratic regime in a way that is inherent to the democratic political order (in the sense that this concept is interpreted in traditional democracies). The use of other methods of law application (resulting in a different result from the same legal text) would damage the very core of the "ordre public" democratic state. (...) Strictly speaking, interpretation and application of legal standards by socialist or other undemocratic methodology (with intolerable consequences for the democratic system) should be regarded as flawed from the point of view of the democratic system. (...) In my opinion, this is a challenge that is derived from the inherent universality of human rights and democratic values that are bound by all democratic institutions. At least since the Nuremberg Process, this concept of democratic order in the world has been well understood and therefore predictable for everyone. "
The Constitutional Court fully agrees with the view expressed by Judge Levits.
2.
Given that the lawfulness of the proceedings and the decision referred to above in relation to the judgmental judgment (also referred to above) was to be reviewed in the infringement proceedings, it is necessary to examine whether the contested decision of the Supreme Court infringed the complainant's fundamental rights, including his fundamental right to freedom of conscience, contained in Article 15 (1) of the Charter.
(a) Freedom of conscience is of constitutional importance to a democratic rule of law respecting the liberal idea of the primacy of a responsible dignified human being before the state - i.e. the idea of respect (respect and protection) of the State for the rights of man and citizen [Article 1 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution)]. On the contrary, it is characteristic of totalitarian political regimes that they do not respect the autonomy of the individual's conscience when they also try to suppress the freedom of the individual's conscience with the help of repressive criminal policy, thereby forcing him to accept the will of the rulers who claim the only good decision possible and, in that sense, the only ethical decision possible. This trend can also be seen in the Czechoslovak or Czech constitutional plane. Thus, Constitutional Charter No. 121 / 1920 Coll., like the current Charter, did not foresee the possibility of a legal restriction on the freedom of conscience which it explicitly contained. The so-called Constitution of 9 May No 150 / 1948 Coll. declared freedom of conscience in Paragraph 15, but also negated it by stating that freedom of conscience cannot be a reason to deny the fulfilment of the civil obligation laid down by ordinary law. The Constitution of the Czechoslovak Socialist Republic No. 100 / 1960 Coll. no longer mentions freedom of conscience.
Freedom of conscience manifests itself in individual decisions taken in certain specific situations, namely "here and now," which feel like a deep duty. This is not about the individual's attitude to abstract problems, which is valid once and for all in all situations. The decision dictated by conscience is a merger for individuals of binding moral standards with an assessment of the situation. It is therefore the integration of the recognised standard with the assessment of the facts. The decision dictated by conscience rests on the existence of conscience itself, not on specific religious or ideological ideas. The structural feature of conscience is, in addition to the correlation with the standard and also the personal experience, an unconditional obligation.
It follows that freedom of conscience cannot be confused with freedom of faith or religious freedom. Contrary to these freedoms, a decision dictated by conscience is always specific, as it is subject to specific behaviour in a particular situation. Abstract, general or absolute can only be reasons or maxima that co-create the standard that conscience accepts at a given moment. A decision dictated by conscience can find a normative justification to be used to resolve the conflict between such a principle or maximum and a legal standard that obliges the contrary. However, the situation is always individualised by time, place and specific circumstances. It is essential that these are serious, moral, good and evil-oriented decisions [compare, for example, the decision of the Constitutional Court of Germany in BVerfGE 12, 45 (55)], which an individual experiences as a mandatory obligation or as an unconditional order to behave.
In a specific moral nature and in relation to personal moral truths or truths, which give decisions to unconditional decisions, the distinction between decisions made only points to political or ideological motivation (external variables not reflected in the internal moral plane) or to a mental state (which exists without the need to make a moral judgment).
b) Freedom of conscience is one of the so-called fundamental rights of absolute nature, i.e. one which cannot be restricted by ordinary law, the purpose of which would be to restrict such absolute fundamental right, in this case freedom of conscience. Each law expresses a public interest on the one hand, and, on the other hand, it also outlines the moral beliefs of the parliamentary majority that led to it, and in this way it outlines the moral beliefs of the majority of society, which reflects the composition of Parliament. If an individual conscience is contrary to a certain legal standard, such a fact cannot result in the non-binding of such a legal standard, even if only in relation to a person in charge of a particular legal standard. However, freedom of conscience may affect the enforceability or enforceability of such a rule of law in relation to those whose conscience defies. When considering whether, in the event of such a conflict of law with the freedom of conscience specifically applied, the subsequently appointed freedom of conscience should be enforced, it should be considered whether such a decision would interfere with the fundamental rights of third parties or whether the enforcement of the freedom of conscience does not prevent other values or principles contained in the constitutional order of the Czech Republic as a whole (constitutionally improper limitation of fundamental rights and freedoms).
It is essential that the Supreme Court assess whether the law has been infringed by a decision of the contested infringement complaint. The Constitutional Court's task is to assess whether the Supreme Court's chosen interpretation of the legal provisions does not infringe the fundamental rights and freedoms of the complainant or whether it is possible to find an interpretation of the applicable provisions of the law that would not infringe the fundamental rights and freedoms of the complainant.
The constitutional complaint is justified since the contested decision of the Supreme Court has not adequately taken into account the complainant's fundamental right under Article 15 (1) of the Charter to freedom of conscience understood in the abovementioned sense and scope. Although the complainant pointed out his religious beliefs, the refusal (avoidance) of a service (military) obligation was a real manifested personal decision dictated by a conscience, on which the maximum resulting from the belief or religious belief of the complainant was only involved.
The previous decision of the Constitutional Court concerning the conflict of the obligation to enter the military service with fundamental rights focused mainly on the contradiction of that obligation with freedom of religion (cf. Decision in cases sp. zn. II. ÚS 285 / 97, Collection of finds and resolutions of the Constitutional Court of the Czech Republic, Sv. 12, no. 117; and Sv. II. ÚS 187 / 2000, Collection of findings and resolutions of the Constitutional Court of the Czech Republic, Sv. 21, no. 40). The Constitutional Court first examined the relationship of the contested decisions to freedom of conscience within the meaning of Article 15 (1) of the Charter, because of the differences between the freedom of conscience and the freedom of religious beliefs interpreted from above. The Constitutional Court is of the opinion that the refusal to enter military service can also be done for reasons unrelated to religious belief and that it also protects such freedom.
The Supreme Court did not comply with the obligation to assess the lawfulness of the complaints for infringement of the law of the contested decision and the procedure before it in the light of Article 15 (1) of the Charter, which it had for the reasons set out above. The fact that the so-called Constitution of 9 May denied freedom of conscience the character of so-called absolute law was already due to the political regime established in February 1948. A new restriction on freedom of conscience has interrupted the continuity of understanding of freedom of conscience as an absolute right, as protected by the Charter of 1920. The post-February constitutional design of freedom of conscience is legally philosophical in deviating from the evolution of fundamental rights, which began with the Nuremberg Tribunal and continued with the adoption of the Universal Declaration of Human Rights.
For the democratic rule of law, by which the Czech Republic is to be, pursuant to the normative order under Article 1 (1) of the Constitution, it is unacceptable for the Supreme Court to interpret Article 267 (3) of Act No. 141 / 1961 Coll., on criminal proceedings, as amended, so that the review of the legality of the contested decision means the interpretation of applied "old law 'in accordance with the former case law. For the same reason, it is also not possible, when considering whether the complaints for infringement of the law contested by the original decision are lawful, to disregard and disregard the fundamental rights and principles of the Czech constitutional order in which the contested decision was affected. Ignoring these reference standards and principles makes the contested decision of the Supreme Court not only defective for the breach of the complainant's subjective right, but, in the sense that the Constitutional Court considers it necessary to state beyond the scope of the case under consideration, incomprehensible to society, since it undermines its legal or constitutional consciousness and contributes to the existing mistrust of the judiciary in the sense that the Czech courts cannot protect citizens' rights in relation to state power when it manifests itself exceedingly. This reduces confidence in the materially understood democratic legal status of the Czech Republic. If the principle of legal continuity is not to be destructive in relation to Czech constitutional statehood, it is necessary to insist consistently on the application of" old law "to value discount with it and to reflect this approach in court decisions.
If the Supreme Court overlooked the application of Article 15 (1) of the Charter to the interpretation of Article 267 (3) of the Criminal Code, in conjunction with Article 270 (1) (b) of Act No. 86 / 1950 Coll., the criminal law, which actually took place, as it interpreted that provision of the Criminal Code in a restrictive and, moreover, the subject of its consideration in relation to the cited provision of the Criminal Code was only the right to religious belief, not the freedom of conscience in the dimension of absolute law, it continued to intervene in the freedom of conscience of the complainant, who began by a condemning judgment in 1954. The Supreme Court has not, by its decision, removed this intervention and thus failed to fulfil its obligation to provide protection under fundamental law, as required by Article 4 of the Constitution.
The conflict with other fundamental rights, the violation of which has been contested, has not been examined in this situation.
President of the Constitutional Court:
JUDr. Holecek v. r.
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Regulation Information
| Citation | The Constitutional Court found No 106 / 2003 Coll., on a constitutional complaint against the Supreme Court resolution of 17 October 2002 sp. zn. 15 Tz 47 / 2002 |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 11.04.2003 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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