The Constitutional Court found No 138 / 1999 Coll.
The Constitutional Court found of 2 June 1999 on the application for annulment of Sections 15 (2) (c) and 15 (3) of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended
Valid
The Constitutional Tribunal found
Text versions:
13.07.1999
138
FIND
The Constitutional Court
On behalf of the Czech Republic
On 2 June 1999, the Constitutional Court decided in plenary on the proposal by H. Q.T. to repeal Sections 15 (2) (c) and 15 (3) of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended,
as follows:
1. Paragraph 15 (2) (c) of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, is repealed on 31 May 2000.
2. The proposal to repeal the provisions of Paragraph 15 (3) of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, defined by the words "and the collateral provided for in paragraph 2 for no more than 30 days" is rejected.
3. The application to admit N. T.D., the applicant in the case sp. zn. II. ÚS 483 / 98, as an intervener, is rejected.
Reasons
By a proposal lodged in person with the Constitutional Court on 13 July 1998, the complainant seeks the annulment of the order of the Municipal Court in Prague of 5 May 1998 sp. zn. 38 Ca 95 / 97, which brought an action for review of the decision of the Section of the Foreign Police, the Administration of the City of Prague, the Police of the Czech Republic of 3 February 1997 No. PSP-4- 21 / CP-c- 97 on the securing of the complainant pursuant to § 15 (2) (c) of Act No. 283 / 1991 Coll., as amended. That decision of the General Court is to be affected in its fundamental rights and freedoms arising from Article 5 (4) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), Article 9 (4) of the International Covenant on Civil and Political Rights, Article 36 (1) and (2) of the Charter of Fundamental Rights and Freedoms (" the Charter'), and Article 1 of the Constitution of the Czech Republic ("the Constitution ').
From the constitutional complaint, its annexes and the file sp. zn. 38 Ca 95 / 97 requested by the Constitutional Court from the Municipal Court in Prague, the following was found:
The complainant was ordered by the Department of Foreign Police and Passport Service of the Police of the Czech Republic in Litoměřice of 8 November 1996 No. PSV-303 / CLTX-LU-96 under § 14 (1) (f) of Act No. 123 / 1992 Coll., on the residence of foreigners in the territory of the Czech and Slovak Federal Republic, as amended, was prohibited until 7 November 1999, with a travel period of until 7 December 1996. This Decision was confirmed by Decision No PPR- 8249-1 / RCP-c-228-96 of the Foreign and Border Police Service Directorate of 14 March 1997.
There is a review procedure at the Municipal Court in Prague on the basis of an action against that decision (the case is under sp. zn. 38 Ca 187 / 97). In addition to this, the complainant was ordered by the Section of the Foreign Police and Passport Service, the Administration of the City of Prague, the Police of the Czech Republic of 3 March 1997 no. PSP-1-279 / CP-c-97, pursuant to § 14 (1) (f) of Act No. 123 / 1992 Coll., as amended, a residence ban on the territory of the Czech Republic until 31 March 2007, with a travel period of up to 25 March 1997. This Decision was confirmed by Decision No PPR-2541 / RCP-c-225-97 of the Foreign and Border Police Service Directorate of 3 June 1997. On the basis of an action brought by the complainant, a review procedure is under way at the Municipal Court in Prague (the case is under sp. zn. 38 Ca 261 / 97).
On 3 February 1997, under PSP-4-21 / CP-c-97, the section of the Foreign Police, the Administration of the City of Prague, the Police of the Czech Republic issued an order to place the complainant in a holding cell and ensure that his detention took place in accordance with § 15 (2) (c) of Act No. 283 / 1991 Coll., as amended, in order to establish his identity. On 3 March 1997, an order was issued for his release from the police security cell, with his identity verified.
On 31 March 1997, the complainant brought an action against the collateral decision before the Municipal Court in Prague. The Municipal Court in Prague stopped the proceedings on 5 May 1998 by order of sp. zn. 38 Ca 95 / 97. It justified its action by not revising the decisions in the field of the performance of the tasks of state administration pursuant to § 2 (2) of Act No. 283 / 1991 Coll., as amended, and in particular Act No. 123 / 1992 Coll., as amended, but the performance of tasks aimed at ensuring internal order and security pursuant to § 1 (2) of Act No. 283 / 1991 Coll., as amended. Since, in the view of the Court, the complainant by the Czech Police Department was secured in the security of public order and security and not in the framework of the performance of the public administration's tasks in respect of the residence of foreigners, the jurisdiction of the court was not given in accordance with the title of Part Two of the Fifth Civil Code (hereinafter referred to as "o.s. ').
In a constitutional complaint, the complainant contends, in particular, that the contested decision of the General Court is contrary to Article 5 (4) of the Convention, Article 9 (4) of the International Covenant on Civil and Political Rights, Article 36 (1) and (2) of the Charter, as well as Article 1 of the Constitution, and also feels concerned in its fundamental rights and freedoms as a result of delays in the proceedings, when the General Court, with the exception of a call for a judicial fee, has, according to its conviction, remained dormant since the date of the action was brought on 31 March 1997 until 5 May 1998 when it stopped the proceedings. In this context, the complainant refers to the precedence of the Constitutional Court's finding of 11 December 1997 sp. zn. I. ÚS 313 / 97, published in the Collection of Finals and Order of the Constitutional Court ("the Reports of Decisions'), Volume 9, Found No 157.
In addition to that complaint against the order of the Municipal Court in Prague of 5 May 1998 sp. zn. 38 Ca 95 / 97, the complainant submits pursuant to Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, an application for annulment of the provisions of Sections 15 (2) (c) and 15 (3) of the Act No. 283 / 1991 Coll., as amended, "and the collateral provided for in paragraph 2 for a maximum period of 30 days', and the provisions of Sections 16 (3) and 17 (2) of the Act No. 123 / 1992 Coll., as amended, in its opinion, are contrary to Article 9 (4 of the International Pact on Civil and to Article 36 (1) and (2) of the Charter. The reason for this conflict is seen in the absence of the right to judicial protection in cases of restrictions on freedom under the contested provisions of the Law on the Police of the Czech Republic and the Act on the residence of foreigners in the Czech Republic.
Pursuant to Article 74 of Law No 182 / 1993 Coll. together with a constitutional complaint, an application may be made for the annulment of a law or other legislation, or its individual provisions, the application of which resulted in a fact which is the subject of a constitutional complaint if, according to the complainant's contention, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or, where applicable, a law in the case of another law. The subject of the constitutional complaint is the order of the Municipal Court in Prague of 5 May 1998 sp. zn. 38 Ca 95 / 97, which concerned the review of the decisions of the Police of the Czech Republic pursuant to § 15 paragraph 2 (c) and § 15 paragraph 3 of Act No. 283 / 1991 Coll., as amended, but not the above decisions of the Police of the Czech Republic pursuant to Act No. 123 / 1992 Coll., as amended.
For that reason, by order of 24 November 1998 No III of the ÚS 311 / 98- 13, the Constitutional Court interrupted proceedings under § 78 (1) of the Constitutional Court Act only in respect of the provisions of § 15 (2) (c) and § 15 (3), as defined by the words "and the provision under paragraph 2 for a maximum period of 30 days', Act No 283 / 1991 Coll., as amended, when only in respect of those provisions it found that the conditions required by § 74 of the Constitutional Court for the suspension of proceedings on a constitutional complaint and the initiation of proceedings on the annulment of laws and other laws on the proposal of the complainant [§ 64 (1) (d) of Act No 182 / 1993 Coll.]. Since, in the case of the application for annulment of the provisions of § 16 (3) and § 17 (2) of Act No. 123 / 1992 Coll., as amended, the conditions required in § 74 of the Law on the Constitutional Court were not fulfilled, there was no choice but to consider it as an application made by someone manifestly unjustified, as a result of which, pursuant to § 43 (1) (c) of Act No. 182 / 1993 Coll., as amended, in Resolution No III of the ÚS 311 / 98@-@ 13.
By application lodged with the Constitutional Court on 31 May 1999, the appellant in case sp. zn. Pl. ÚS 29 / 98 made an application for the participation of N. T.D., the appellant in case sp. zn. II. ÚS 483 / 98, as an intervener, when he, together with the constitutional complaint, submitted an application for annulment of the provisions of Sections 15 (2) (b) and 15 (3) of Act No 283 / 1991 Coll., as amended.
Pursuant to Articles 42 (3) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies. In its observations of 7 January 1999, the President of the Chamber of Deputies of the Parliament of the Czech Republic, Prof. Ing. Václav Klaus, CSc. confirmed, in accordance with the requirements contained in Section 68 (2) of the Act No. 182 / 1993 Coll., that Law No. 283 / 1991 Coll. and also its Amendments No. 26 / 1993 Coll. were approved by the necessary majority of Members of the Czech National Council or by the Chamber of Deputies of the Parliament of the Czech Republic (Act No. 283 / 1991 Coll., Act No. 26 / 1993 Coll. On 21 December 1992, Act No. 326 / 1993 Coll.), were signed by the relevant constitutional officials and duly declared. In the opinion of the President of the Chamber of Deputies of the Parliament of the Czech Republic, it is stated that the legislature, when adopting the contested laws, has acted in the conviction of their compliance with the Constitution, the constitutional order and the rule of law.
It also states that Articles 15 (2) (c) and 15 (3) of Act No 283 / 1991 Coll., as amended, cannot be regarded as being contrary to Article 9 (4) of the International Covenant on Civil and Political Rights, since that provision is more criminal in the context of Article 9. The illegality of the proposal concerning the infringement of the contested provisions of the Police Act of the Czech Republic with Article 36 (1) and (2) of the Charter is also noted. In this context, the proposal is considered to be useful in conjunction with the decision of the Municipal Court in Prague sp. zn. 38 Ca 95 / 97. It further argues that public authorities, under discretionary law, have the opportunity to assess the proportionality between the public interest in expulsion of a stranger (to which detention is preceded) and the interest in protecting his fundamental rights and freedoms. By deleting the above provisions from the Police Act of the Czech Republic and thus the de facto impossibility of police forces to verify the identity of the persons secured, the Chamber of Deputies of the Parliament of the Czech Republic would, in the view of the Chamber of Deputies, have seriously violated this principle of proportionality to the detriment of the public interest.
Under Section 15 (2) (c) of the Police Act, a police officer is entitled to provide a person who can reasonably be presumed to have entered or residing illegally in the Czech Republic and the expulsion procedure could not be initiated because his identity could not be established. Paragraph 3 (15) of this Act limits the collateral referred to in paragraph 2 to a maximum of 30 days (and also limits the collateral referred to in paragraph 1 to 24 hours) from the moment of the limitation of personal freedom.
Those provisions constitute the legal framework for the internalisation of foreigners who have entered or are residing illegally in the Czech Republic and who cannot be identified, and therefore no proceedings for expulsion could be initiated. The duration of this internment is limited by 30 days. This is, therefore, one of the cases of the legal regime for deprivation of liberty.
Pursuant to Article 36 (2) of the Charter, who claims to have been shortened on his rights by a decision of a public authority, may refer the court to examine the legality of such a decision, unless otherwise provided for in the law, but the review of decisions relating to fundamental rights and freedoms under the Charter must not be excluded from the jurisdiction of the court. Those rights include the fundamental right under Article 8 (2) of the Charter, according to which no one may be prosecuted or deprived of liberty other than for the reasons and in a manner laid down by law.
Pursuant to Article 5 (4) of the Convention, anyone who has been deprived of his or her freedom of arrest or otherwise has the right to bring an application for proceedings in which the Court of First Instance would promptly rule on the legality of his or her deprivation of liberty and order his or her release if the deprivation of liberty is illegal. The European Court of Human Rights interprets that provision of the Convention in the sense that the guarantee contained therein applies to all deprivation of liberty, whether or not they fall into one of the categories referred to in Article 5 (1), since the general purpose here is to provide individuals with effective control of the legality of deprivation of liberty (De Wilde, Ooms and Versyp of 1970, A-12, De Jong, Baljeta van den Brink of 1984, A-77).
The purpose of those provisions of the Charter and of the Convention is the modern regulation of the principle of habeas corpus, generalized on all cases of deprivation of human freedom by public authorities. The need for strict compliance with this principle, in the context of Article 40 (1) of the Charter, was expressed by the Constitutional Court in its decision sp. zn. Pl. ÚS 5 / 94 (published under No 8 / 1995 Coll. and published in the ECR, Volume 2, Found No 59).
In addition to the requirement for a judicial decision on the waiver of freedom of treatment contained in Article 8 of the Charter, it also respects the requirement for an expedited decision, as enshrined in Article 5 (4) of the Convention, both in the decision on detention [Article 8 (3) and (4) of the Charter, Sections 69 and 75 to 77 of the Penal Code (hereinafter referred to as "the Rules of Procedure '), and in the decision on the taking over or possession of a person in constitutional healthcare without its consent (Article 8 (6) of the Charter, paragraphs 191a to 191g.
The decision to secure a stranger pursuant to § 15 (2) (c) and § 15 (3) of the Law on the Police of the Czech Republic is a decision of the administrative authority ordering the waiver of liberty. In this context, it is only possible to agree with the opinion of the doctrine that "it is not important how an act of administrative authority is designated (decision, appointment, award, measure, agreement, order, order, establishment, decree, certificate, memo, notice, notice, order, statement, notice, consent, receipt, cancellation, concession, authorisation, approval and other). The important thing is whether the administrative office, by such an act of authoritarian and legal power, has been able to intervene in the legal sphere of a natural or legal person." (J. Bures, L. Drápal, M. Mazanec, Civil Code, Comments, 2nd edition, Prague 1996, p. 661).
The question is whether the procedure laid down in § 247 et seq. can be considered as a judicial decision under Article 36 (2) of the Charter and Article 5 (4) of the Convention.
The Constitutional Court takes the view that this is not the case, on the ground that the application of the law on judicial review of administrative decisions on the detention of foreigners pursuant to § 15 (2) (c) and § 15 (3) of the Law on the Police of the Czech Republic on the basis of an action pursuant to § 244 et seq. s. s., does not fulfil the requirement of speeding up such decisions within the meaning of Article 5 (4) of the Convention. The absence of this requirement can be seen from a comparison with the adjustment of the time limits for decisions on custody (Article 8 (3) and (4) of the Charter, Sections 69 and 75 to 77 of the Tr.) and in the decision to take over or hold a person in constitutional health care without its consent (Article 8 (6) of the Charter, Sections 191a to 191g).
From the point of view of these arguments, the Constitutional Court does not see the scope for constitutionally conformal interpretation of § 247 et seq., in the sense of the judicial decision on the waiver of liberty under § 15 (2) (c) and § 15 (3) of the Law on the Police of the Czech Republic.
From Article 5 (4) of the Convention and Article 36 (2) of the Charter in conjunction with Article 8 (2) The Charter obliges the legislator to place all cases of deprivation of public power under effective control of independent judicial decisions. That judicial review is therefore an essential part of any legal provision for deprivation of liberty, without which that provision for conflict with those provisions of the Convention and the Charter cannot stand alone.
For this reason, the Constitutional Court annulled the provisions of § 15 (2) (c) of the Police Act of the Czech Republic.
In this context, for the sake of completeness, it is appropriate to state the merits of the objection of the party, the Parliament of the Czech Republic, according to which Article 9 (4) of the International Covenant on Civil and Political Rights concerns only the waiver of liberty in criminal proceedings and therefore cannot be linked to the assessment of the constitutionality of Article 15 (2) (c) of the Police Act of the Czech Republic. However, this does not change the contradiction of that legal provision with the relevant provisions of the Convention and of the Charter.
Pursuant to Article 70 (1) of Law No 182 / 1993 Coll. the law or its individual provisions, for which the Constitutional Court concludes that they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution, shall be deleted from the date determined by the Constitutional Court in the decision. The Constitutional Court, aware of the purpose and purpose of the Institute of Internation of Foreigners because of their identification, decided to postpone the date of annulment of the provisions of Paragraph 15 (2) (c) of the Law on the Police of the Czech Republic to 31 May 2000 in order to give the legislator space to correct the constitutional deficit of the legislation.
Another of those examined was the proposal to repeal the provisions of § 15 (3) of Act No. 283 / 1991 Coll., as amended, defined by the words "and the collateral referred to in paragraph 2 no longer than 30 days."
The period of 30 days, contained in Section 15 (3) of the Police Act of the Czech Republic, in addition to the provision under Section 15 (2) (c) of that Act, applies to two other cases: according to point (a), to the provision of a person to be expelled under an enforceable decision, and according to point (b), to the provision of a person whose expulsion has been initiated, and it is reasonable to suspect that that person will not submit to the expulsion decision or thwart the execution of such a decision.
If the Constitutional Court assessed the constitutionality of the provisions of the legislation containing time limits, it did so only in the light of the rights and obligations defined by those time limits (Pl. ÚS 3 / 94 - published under No 164 / 1994 Coll. and published in the ECR, Volume 1, Found No 38). The examination of the constitutionality of Section 15 (3) of the Police Act of the Czech Republic then makes no sense in connection with the annulment of the provision of Section 15 (2) (c) of that Act. The examination of the constitutionality of Article 15 (3) of Act No. 283 / 1991 Coll., as amended, in relation to Article 15 (2) (a) and (b), or to Article 15 (1) of that Act, does not meet the conditions contained in Article 74 of the Law on the Constitutional Court, since the application of these provisions of the Law on the Police of the Czech Republic did not result in a fact which is the subject of a constitutional complaint. For that reason, the Constitutional Court rejected the application for annulment of the provisions of Paragraph 15 (3) of Act No. 283 / 1991 Coll., as amended, defined by the words "and the collateral provided for in paragraph 2 for a maximum period of 30 days'.
The application to admit the participation of N. T.D., the appellant in the case sp. zn. II. ÚS 483 / 98, as an intervener who, together with a constitutional complaint, filed a motion to abolish the provisions of § 15 (2) (b) and § 15 (3) of Act No. 283 / 1991 Coll., as amended, was rejected by the Constitutional Court because of the failure of the conditions of the identity of the proposals required by § 35 (2) of the Law on the Constitutional Court. As already stated, when the Constitutional Court assesses the constitutionality of the provisions of legislation containing time limits, it only does so in the light of the rights or obligations defined by those time limits (Pl. ÚS 3 / 94). In the present case, the provision of Paragraph 15 (3) of the Police Act of the Czech Republic in the case sp. zn. Pl. ÚS 29 / 98 refers to the provision of Paragraph 15 (2) (c) of that Act, in the case sp. zn. II.
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 138 / 1999 Coll., on the application for annulment of Sections 15 (2) (c) and 15 (3) of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.07.1999 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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