Found at the Constitutional Court of the Czech Republic No. 14 / 1994 Coll.
The Constitutional Court of the Czech Republic found of 21 December 1993 on the application for annulment of Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime
Valid
14
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
Plenum of the Constitutional Court of the Czech Republic decided on 21 December 1993 on the proposal of a group of 41 Members of Parliament of the Czech Republic to repeal Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on the resistance against it,
as follows:
Motion denied.
Reasons
On 15 September 1993, a group of 41 Members of Parliament of the Czech Republic submitted a proposal for the Constitutional Court to repeal Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime, on the basis of Article 87 (1) (a) of the Constitution of the Czech Republic, on the Constitutional Law of the Czech National Council No. 4 / 1993 Coll., on measures relating to the demise of the Czech and Slovak Federal Republic, and on certain international treaties.
The Constitutional Court examined the general and individual objections of the appellants, referring to the alleged non-compliance of Act No. 198 / 1993 Coll. with Articles 1, 2 (3), 78, 90 and 95 of the Constitution of the Czech Republic, to the Constitutional Law of the Czech National Council No. 4 / 1993 Coll., on measures relating to the disappearance of the Czech and Slovak Federal Republic, to the provisions of Articles 1, 2 (2), 3 (1), 15 (2), 17, 37 (3), 38 and 39, Article 40 (5) and (6) of the Charter of Fundamental Rights and Freedoms, with the provisions of Article 4, 15 (1), Articles 19, 24 and 26 of the International Pact on Civil and Political Rights, with Article 15 (3 of the International Pact on Economic, Article 15 (2) of the Charter of the Economic, Article 4, Article 15 (4) and Article 15 (4) of the Convention on Human Rights, Article 15 (4), Article 15 (1, Article 15 (1), Article 15 (1), Article 15 (2), Article 15 (2) of the International Pact on Civil and Article 15 (2) of the International
The objections raised may be systematically broken down into three groups:
A. Objections against § 1 - 4 of Act No. 198 / 1993 Coll.
B. Opposition against § 5 of Act No. 198 / 1993 Coll.
C. Objections against Sections 6 and 8 of Act No. 198 / 1993 Coll.
Opposition against § 1 - 4 of Act No. 198 / 1993 Coll.
The assessment of the various objections referred to in points 1, 2, 3 and 4 of the proposal of a group of Members depends on the finding - and limine fori - whether and to what extent these provisions have the character of mandatory or, respectively, available legal standards, which the State commits or makes available to the State, with certain behaviour with those or those legal consequences for persons, groups of persons or organisations.
The first four sections of the law deal with the nature of the scheme, its specific objectives, methods and structural features, not the nature of individuals who were members of the organisations on which the scheme was based.
The law refers to the "co-responsibility" of individuals at double level: to the co-responsibility of members of the Communist Party of Czechoslovakia for the method of government in 1948 - 1989 and to the co-responsibility of those "who actively promoted the Communist regime" (§ 1 paragraphs 1 and 2 of Act No. 198 / 1993 Coll.) - in this case for crimes committed by the regime.
The co-responsibility of members of the KSČ for the way of government is expressed only in the opening preamble to the law and can be seen as an incentive to reflect on those who were, or continued to remain, members of an organisation whose leadership and political practice had increasingly diverged not only with the fundamental values of humanity and democratic rule of law, but also with their own programmes and laws.
This distinction between the degree of moral responsibility is based on the nature of totalitarian dictatorship. The idea is that a party that acts democratically towards society is capable of acting democratically within itself. This party, too, has been universally hierarched between the ruling and the controlled, its membership base has been manipulated by the power centers and has also become an instrumental and a kind of prisoner of those who "actively advocated the regime."
If the declaratory nature of the provisions of the first part of Act No. 198 / 1993 Coll. is obvious, there is no need to examine the partial arguments of the appellants mentioned in points 3 and 4 of the proposal - except for three objections.
The first of these states that the declaratory provisions do not exclude the possibility of applying the non-criminal sanctions contained in other legal standards, such as the laws governing the rights and obligations of educational and scientific staff, publicists, writers and other artists. That objection must be rejected because it does not concern the contested law itself, but other, unmarked legal standards, the legal content of which does not change anything.
Also another objection that "co-responsibility" or "collective responsibility" in the first part of the contested law is "primarily... co-responsibility of criminal law" is excluded by the moral-political and not jurist nature of that part of the law. This means that the evaluation of the historical period of the former Czechoslovakia does not exclude opinions and conclusions other than those expressed by Parliament in the text of the law. From the point of view of scientific and publicity activities, the assessments contained in the contested law do not constitute a binding opinion, as the proposal of a group of Members rightly points out, "even if such sentences are contained in a law called the law."
Another element of unconstitutionality is the appellants' intention... to serve as an interpretation of the law in relation to judicial decisions "- an intention which the legislator has not mentioned anywhere in the text of the law. The relevant intention is that which is expressed in a legally relevant way.
The opening statement by Parliament, "that it will be based on this law in its further work," cannot be seen as a legal standard which Parliament would bind. This is about expressing the political will of a programme nature, the will found at a certain time and at a certain constellation of forces in Parliament, which cannot be interpreted in violation of Parliament's right to regulate matters within and within the limits of its competence, newly and otherwise, nor in breach of the principle of free exchange of views on Parliament's soil.
The constitutional establishment of a democratic state does not deny Parliament the right to express its will, as well as its moral and political views, in a manner which it considers appropriate and proportionate within the framework of the general legal principles - including, where appropriate, in the form of a legal law, if it considers appropriate and appropriate in this legal form of an act to emphasise the social importance and scope of its declaration. This was the case, for example, in the Act, issued under the first Republic, which stated that T. G. Masaryk was a national.
Overall, it is clear that the contested law does not define any new facts of the offences and that nothing similar can be inferred from the text of the first part. In addition, Article 40 (6) of the Charter of Fundamental Rights and Freedoms applies as a generic standard for the assessment of any criminal acts, according to which "the offence is assessed and the sentence is imposed under a law effective at the time when the offence was committed. The later law shall apply if it is more favourable to the perpetrator. '
However, the appellants' objections also address some general issues of the concept of Czech law and the nature of the state and political regime between 1948 and 1989. In particular, the Group of Members argues that the provisions of Paragraph 2 (1) of Act No. 198 / 1993 Coll. contain... "an unconstitutional statement that the political regime between 1948 and 1989 was illegitimate." They base their claim on the legitimacy of the scheme on the continuity of law given by the legislature of national law as well as by the continuity of international legal obligations from the "old regime."
This objection of a fundamental nature must be assessed in relation to the basic concept of the Constitution and the constitutional establishment of the Czech Republic.
As is known, the process of creating a modern constitutional state in Central Europe has only been completed after the First World War. In doing so, it has previously achieved remarkable results of legal positivistic elaboration of procedural rules and guarantees strengthening citizens' legal certainty and stability of law. But the right-positivistic tradition, which was brought to post-war institutions (including our 1920 Constitution), revealed its weaknesses more than once in later development. The constitutions designed on these foundations are value-neutral: they form an institutional and procedural framework, which is fulfilling very different political content, because the criterion of constitutionality becomes compliance with the constitutional institutions' and procedures' competent and procedural framework, thus of a formal- rational nature. As a result, a national-socialist estate was accepted as legal in Germany, even though it had eroded the content and then destroyed the very essence of Weimar democracy. The legalistic concept of political legitimacy made it easier to "fill old bellows with new wine" after the war of Klement Gottwald and then "legitimize" February's coup in 1948 by formally following constitutional procedures. The principle of "law is law" manifested itself against injustice in the form of law as powerless. The knowledge that injustice must remain an injustice, even though it falls into the mantle of the law, has also been reflected in the constitution of postwar Germany, and currently also in the Constitution of the Czech Republic.
Our new Constitution is not based on value neutrality, it is not just by defining institutions and processes, but it also includes certain regulatory ideas that express the fundamental untouchable values of democratic society. The Constitution of the Czech Republic accepts and respects the principle of legality as part of the general concept of the rule of law, but it does not only bind the positive right to formal legality, but the interpretation and application of legal standards is subject to their content and material meaning, it makes the right subject to respect for the fundamental constitutional values of democratic society and measures the use of legal standards. This also means "old right" value discount with "old mode."
This concept of a constitutional state rejects the formal-rational legitimacy of the regime and the formal rule of law. Whatever the laws of the state, in a state that is called democratic and proclaims the principle of the sovereignty of the people, no regime can be legitimate but a democratic one. Any power monopoly excludes democratic legitimacy from itself. The basis of our Constitution is the material-rational concept of legitimacy and the rule of law. In the system of a democratic constitutional state and a functioning democracy, legality undoubtedly embodies, in its own way, the legitimacy of the regime, but is not entirely interchangeable with it. The less legitimacy can be reduced to the formal legality of normative legislation in a regime in which few knew that elections were not elections, parties are not parties, democracy is not a democracy, and law is not a right - at least in the sense of the rule of law, because the application of law was politically schizophrenic, divided wherever the political interest of the rulers entered into the game.
The political regime is legitimate if it is generally approved by a majority of citizens. Political regimes, which lack democratic substance, avoid empirically verifiable legitimacy in favour of ideological arguments and, above all, aspects of formal-rational legality. This makes it easier for them to believe that consolidated state power is not only a power-political fact, but also a legally organised power. But it is in such regimes that politics with law and legality with legitimacy is the most divided. Therefore, continuity of law does not mean recognition of the legitimacy of the Communist regime. It cannot be argued that any conduct or conduct is legitimate if it does not go beyond the scope of the law, because legality becomes an utilitarian substitute for lack of legitimacy.
The legitimacy of the political regime cannot be based solely on formal legal aspects, because the values and principles on which the regime is based are not only legal but primarily political. The principles of our Constitution, such as the sovereignty of the people, representative democracy, the rule of law, are principles of a political organisation of a society that are not normally completely defined. The positive regulation is based on it, but the content of these principles is not exhausted by the regulatory regulation - it remains more and more.
For these reasons, based on the material and rational basis of our Constitution, it is necessary to reject the idea that the political regime between 1948 and 1989 was legitimate. The wording of Paragraph 2 (1) of the contested Act on the illegitimate nature of the said political regime cannot be regarded as "unconstitutional '.
The starting point of formal-legalistic arguments by the applicants is that "Czech law is based on the sovereignty of the law." Thus, they forget the higher principle, the principle of the sovereignty of the people who carry supranational power, the constitutional principle, while the law is a product of power within the state already established and institutionalised. Within the constitutional state there are no more sovereignty, there are no more powers. Czech law is not based on the sovereignty of the law. The superiority of laws to lower legal standards does not mean their sovereignty. Even in terms of the scope of legislative competence within the constitutional state, there is no question of the sovereignty of the law. In the concept of a constitutional state on which the Constitution of the Czech Republic is based, the law and justice are not subject to the free disposition of the legislator, and hence the law, because the legislator is bound by certain fundamental values which the Constitution declares untouchable. The Constitution of the Czech Republic, for example, states in Article 9 (2) that "the amendment of the essential elements of the democratic rule of law is inadmissible." This puts the constitutional principles of democratic society in the framework of this Constitution above the legislative competence and hence the 'ultra vires' of Parliament. With these principles, the constitutional state stands and falls. The elimination of any of these principles, carried out by any, albeit majority or entirely unanimous, decision of Parliament, could not be interpreted otherwise than as the removal of this constitutional state itself.
Opposition against § 5 of Act No. 198 / 1993 Coll.
The main object of its criticism is the group of Members of Act No. 198 / 1993 Coll., according to which "until the limitation period of criminal offences, the period from 25 February 1948 to 29 December 1989 shall not be counted unless, for political reasons incompatible with the fundamental principles of the rule of law of a democratic state, there has been a final conviction or acquittal '.
In the appellants' view... "the fact that the non-existent and previously competent state authorities were, for some reason, inactive or unsuccessful and caused the destruction of the crimes by the end of the statute of limitations, was not and is not part of the subjective aspect of the crime, occurred independently of the will of the perpetrator and must therefore not be harmed."
The Constitutional Court therefore dealt first with the question of why the "previously competent authorities of the State were inactive or unsuccessful 'and whether the reasons for the non-prosecution of politically protected offences, their relevance, their scope of application and the social consequences justify the measure of Article 5 of Act No. 198 / 1993 Coll.
In doing so, the Constitutional Court is based on the finding that the constitutional legal texts of the Communist regime have all formulated a general and equally valid principle of legality (virtually the so-called socialist legality). The Constitution on 9 May (No 150 / 1948 Coll.) already imposed an obligation on every citizen, regardless of his or her function or professional status, to maintain the Constitution and the laws (§ 30). The 1960 Constitution (No. 100 / 1960 Coll., as amended) in Article 17 (1) imposed compliance with the law on citizens and public and social organisations, in Article 34 provided that citizens were obliged to maintain the Constitution and other laws, in Article 104 imposed on the prosecutors to supervise compliance with the law and in Article 106a required reports on the state of socialist legality.
However, these legal standards have become fictitious and meaningless wherever the political interest of the rulers has been found to be effective. The basis for this was a monopoly and bureaucratic centralized organisation of political and state power, based not on division, but on the concentration of power and the interconnection of political and state apparatus, as well as on the lack of fundamental democratic links between society. The anchoring of the leading role of the Communist Party of Czechoslovakia in society and the state (Article 4 of the 1960 Constitution) was not the cause, but the consequent expression of the facts that accompanied much earlier the consolidation of the power monopoly. Thus, the institutions of the protection of legality have become in a position to transmission monopoly centres of power.
The documents from that time illustrate not only the number of cases in which political and state authorities and their executors violated the laws in force in a rough manner, but also some of the ways in which they did. It was a system of de facto subordination to all the institutions and organisations in the state of the political directives of the governing party's apparatus and the decisions of the powerful influential. The nature and presentation of such decisions were not regulated by either the Constitution or other legal standards: these decisions were taken behind constitutional and political scenes often merely as an oral instruction or a telephone request.
While the motion of a group of Members to abolish the law on the illegality of the Communist regime and its opposition does not in general deny that, at that time, the illegality that was not prosecuted by the State, although known to it, is of the opinion that it does not give these cases, in scope and scope, the importance of particular attention and a specific solution. Rather, a group of Members based its argument on juristically formulated reservations.
The Constitutional Court does not share the view of the appellants that Article 5 of Law No 198 / 1993 Coll. regulates the rates of limitation periods and creates another (new) legal obstacle to the limitation of those obstacles which already exist under Paragraph 67 (2) of the Criminal Code (procedural exemptions under the Code of Criminal Procedure, in particular exemption from the powers of law enforcement authorities under Section 10 of the Criminal Code).
The purpose of Article 5 of Act No. 198 / 1993 Coll. is not to create a new obstacle, but to state during which period the limitation period of the offences, which were not prosecuted by the then regime for political reasons, could not run, although they should have run. Therefore, when assessing Article 5 of Act No. 198 / 1993 Coll. it is not generally about the statute of limitations as such, nor about the introduction of a new legal obstacle to the running of limitation periods, but about whether to consider the statute of limitations as real or fictitious where the violation of the law in the whole of a large sphere of legal life has become part of a politically and statestically protected regime of illegality. Paragraph 5 of Act No. 198 / 1993 Coll. is not a constitutional standard but a declaratory one. The object is merely to find that, within a certain period of time for a particular type of criminal activity, the limitation period could not take place and for what reasons. It is known that, in addition to those areas of the life of society and individual, in which the rule of law held some real importance and was based on legality, there were areas of political interest of the ruling class, in which there was a state of legal uncertainty maintained as a means of preventive protection of the regime and a tool of manipulation of society.
This special regime also included political and state leadership, inspired or tolerated by the criminality of people in political and state positions, where, in view of the actual or alleged interests of the ruling class, it was expedient to act against even their own laws. The argument of a group of Members that the limitation periods for this category, too, were running at that time, is not credible. Political power based on violence is, in principle, guarded from self-relieving the executors of its own violence. The state became much more the guarantor of their impunity and effective criminal immunity. The obstacle to their prosecution could not naturally be formulated publicly and positively by law. It was the result of a negative state of legality in the country, and later also the promotion of the leading role of the KSČ in society and in the state to the constitutional principle, but above all a direct product of the illegal practices of the power groups, which and priori guaranteed that the perpetrator was to the extent that their interest was "legibus absolutus."
A necessary part of the concept of statute of limitations on criminal prosecution is the will, effort and willingness of the State to prosecute the crime. Without this assumption, neither the content of the concept of limitation nor the meaning of this legal institute can be fulfilled. Only the long-term interaction between the two elements: the desire and effort of the state to punish the perpetrator and the continued risk of the perpetrator being punished makes sense of limitation. If the State does not want to prosecute certain offences and certain offenders, limitation is unnecessary: in these cases, the limitation period does not actually exist and the limitation period itself is fictitious. The written right is deprived of the possibility of its application. In order for a statute of limitations to occur, it would have to be a process of limitation, i.e. the time during which the State seeks prosecution. The statute of limitations is only completed if the state's continued efforts to deal with the offence at the end of the limitation period remain in vain. This assumption could not be fulfilled between 1948 and 1989 in the sphere of politically protected offences. The state of mass and state-protected illegality was not the result of individual errors, misunderstandings, negligence and failures of individuals, which could still offer a chance of possible prosecution, but a result of the targeted and collective behaviour of the apparatus of political and state power as a whole, which excluded prosecution and priori. Protecting the perpetrators became as versatile as the power system was.
Therefore, it cannot be agreed with the opinion of the appellants that the awareness of the apriorial immortality of certain offences was not part of the subjective aspect of these offences and that this "quasi-limitation" was taking place outside the will of the perpetrator. This is different for perpetrators under the political protection of the state. Their crime was de facto "statute of limitations" before it was committed. This has often been an inspiration for further crime. To understand the time that has passed since their crimes were committed, such as the passage of the "statute of limitations" that were not allowed to pass, would mean a completely contradictory interpretation of the rule of law. This would be a confirmation of the kind of "legal certainty" that perpetrators of this crime have had since the beginning of their activities, and which consisted of state-protected impunity.
However, this "legal certainty" of the perpetrators is a source of legal uncertainty for citizens (and vice versa). In competition with these two types of certainty, the Constitutional Court gives priority to the legal certainty of civil society, which corresponds to the idea of the rule of law. Another solution would be to issue a totalitarian dictatorship to the rule of law regime and thus a dangerous signal for the future: proof that crime can become impunity if it is carried out in bulk, organised, for a longer period of time and under the protection of an organization that has seized the state. This would mean the loss of credibility of the current rule of law and would also be a violation of Article 9 (3) of the Constitution of the Czech Republic, because... "the interpretation of legal standards cannot justify the removal or threat to the foundations of a democratic state."
Even from a subjective point of view, it cannot be considered appropriate to claim a guarantee of this kind. The rule of law is to maintain a state of trust in the durability of legislation. The perpetrators of this kind of crime do not mean the continuity of written law, but of unwritten practices. It would be a violation of the continuity of written law if even now they could not be prosecuted for violating the laws they have committed under the protection of the state.
All these individual aspects take on the importance that is directly proportional to the considerable extent that this type of state-protected or tolerated political crime was committed.
The applicants are based on the assumption that the offences covered by Article 5 of Act No. 198 / 1993 Coll., are largely limited. Thus, they lose - from the appellants' point of view - the nature of the offence, given the prohibition on the retroactivity of criminal law as set out in Article 40 (6) of the Charter of Fundamental Rights and Freedoms.
Article 40 (6) The Charter of Fundamental Rights and Freedoms defines and limits the subject matter of the prohibition on the retroactive application of the law in two directions:
(a) as regards "crime," and
(b) as regards "the imposition of a sentence."
According to Czech criminal law, criminal offences are the possibility of being prosecuted, convicted and punished for the offence. The basis of criminal liability is a crime which is defined by a precise description of its characters and also by the so-called material character, namely the danger of an offence to society. It is a statement of the principle: "nullum crimen sine kulpa ', respectively.
As regards the "imposition of the sentence ', Article 40 (6) of the Charter is based on the terminology of criminal law contained in the Criminal Act of 29.11.1961 No. 140 Coll., as amended, in particular in Section 2:" General principles for the imposition of penalties' (Section 31 et seq. of the Criminal Act). The imposition of a penalty shall be understood as determining the type of penalty and the size of the penalty for those types of penalty which are graduated. This expresses the principle of criminal law: "nulla poena sine lej' Article 40 (6) The Charter thus clearly does not allow the retroactivity of the law as regards the definition of criminal offences and the amount of punishment.
The Charter of Fundamental Rights and Freedoms is not a standard of criminal law, but excludes from various legal areas certain principles which it considers to be fundamental and therefore worthy of increased legal protection. Therefore, in Article 40 (6), he has no more in mind than he says, namely that the definition of individual offences and their criminal offences, which is carried out under the criminal law by identifying the characteristics and degree of social danger of individual acts, cannot subsequently be changed "ex post" after the crime has been committed to the detriment of the perpetrator. The same requirement is also made for the definition and determination of the amount of the sentence.
The question of procedural assumptions of criminal maneuverability at all, and even more so the question of limitation, is not in the area of fundamental rights and freedoms of a fundamental nature in the Czech Republic or in other democratic states, which, according to Article 3 of the Constitution, are part of the constitutional order or constitutional order of the Czech Republic, thereby replacing the usual chapter of the Constitution on fundamental rights and freedoms in other constitutions. Neither the Constitution nor the Charter of Fundamental (and not other) Rights and Freedoms addresses detailed issues of criminal law, but sets out undisputed and fundamental constitutional principles of the state and of law at all. The Charter of Fundamental Rights and Freedoms in Article 40 (6) deals with which offences can be prosecuted in principle (namely those defined by law at the time the offence was committed) and does not regulate the question of how long those offences can be prosecuted.
Consequently, the provisions on limitation periods and limitation periods, in particular those on which the offence declared criminal may be prosecuted, cannot be seen as the subject matter of the adaptation of Article 40 (6) of the Charter. Nor does Article 39 of the Charter speak in favour of the appellants. Under Article 39 of the Charter alone, "which conduct is a criminal offence" and "what punishment, as well as what other damage to rights or property may be imposed for its commission." The procedural assumptions of the Interoperability are not subject to this reservation.
The Group of Members also sees a violation of Article 1 of the Charter of Fundamental Rights and Freedoms on the Equality of All People in Rights in Article 5 of Law No 198 / 1993 Coll. because, as it states, one part of the citizens is being discriminated against because those who were not brought to trial for non-political reasons will continue to enjoy the right not to be prosecuted, whereas those who were not convicted or acquitted for political reasons are being rejected.
The question of equality before the law must always be assessed in the light of the nature of the matter at issue. The legislature must strive not to contradict the idea of justice and proportionality, which is part of the concept of the rule of law, the fundamental principle of the constitutional establishment of the Czech Republic (Article 1 of the Constitution of the Czech Republic) when assessing matters seemingly or only in certain formal aspects of the same. In the case of Section 5 of Act No. 198 / 1993 Coll. it appears reasonable and fair that even those offences which were previously excluded from the possibility of criminal prosecution by political and state authorities should be at least retrospectively possible. This, on the other hand, equates inequality with those who may have been brought to justice before, because they were not only under special political protection, but the will and interest of the state was to prosecute the crimes they committed.
The equality of citizens before the law also required a comprehensive investigation of criminal offences and a uniform and fair application of criminal law, regardless of persons, under the law at that time.
In view of the principle of equality of citizens before the Act No. 198 / 1993 Coll. does not establish any special or exceptional criminal law: in the case of § 5, the principle of collective guilt and collective responsibility is inadmissible, neither the principle of presumption of innocence nor the prohibition of retroactivity of the law is changed, which means that criminal prosecution is only possible for acts which were criminal acts at the time of their commission and only by virtue of the law in force then, unless the later law is more favourable to the perpetrators. Paragraph 5 of Law No 198 / 1993 Coll. amends only the period in which criminal prosecution may take place and defines only a certain range of offences for which this can happen, namely those where the principle of equality of citizens before the law makes it necessary for the credibility of the rule of law.
It follows from the definition of criminal offences in Section 5 of Act No. 198 / 1993 Coll. that criminal prosecution under this provision is excluded:
1. For offences whose limitation period has elapsed since the beginning of the limitation period, i.e. since 30 December 1989,
2. For those offences for which the regime at that time, exceptionally, considered it appropriate to show an attempt to punish a breach of legality by its executors. In these exceptional cases, the internationally legally recognised principle "ne bis in idem 'applies, although the final judgments of the regime at the time were exceptionally mild,
3. for those offences which have not been convicted or acquitted for political reasons incompatible with the fundamental principles of the rule of law of a democratic state, but for reasons other than those of the political nature.
Comparability in terms of equality of citizens before the law is also maintained in the fact that, as with other - previously observable - offences, even in this category of previous offences, which are only subsequently allowed to run limitation periods, it can be assumed that far from all offences will be traced, detected and proven, so it is likely to be only a small part of this kind of crime. In fact, this category of crime is not discriminated against at all, but effectively favoured by the fact that the time bonus, the long period that has elapsed since the crime was committed, as well as the interest in the timely removal of evidence and the difficulty of proving it after a long period of time, makes it difficult to punish the crimes committed.
Opposition against Sections 6 and 8 of Act No. 198 / 1993 Coll.
1. Pursuant to Article 6 of Act No. 198 / 1993 Coll., the special regime for the reassessment of offences which have been convicted and which are not covered by Act No. 119 / 1990 Coll., on judicial rehabilitation is regulated. If it is demonstrated during the proceedings that the conduct of the sentenced person was aimed at protecting fundamental human and civil rights and freedoms, not by disproportionate means, the court shall, on application, revoke or reduce the penalty previously imposed.
The Group of Members argues in its proposal that this regulation is discriminatory and contradicts the constitutional principle of equality of all people before the law, as well as Article 40 (6) of the Charter of Fundamental Rights and Freedoms, according to which the crime is assessed and the punishment is imposed under a law effective at the time when the offence was committed.
The reasons that led the legislature to this legal regulation seem to consist in the fact that those offences, which were shown to be motivated to protect the fundamental rights and freedoms of man and citizen, were also considered as political offences in the former regime and were attributed to an extremely high degree of social hazard. As they were interpreted more or less as acts of hostile political regime as such, they were also associated with disproportionately high sentences. The re-evaluation of these penalties, which may be carried out under Article 6 of Act No. 198 / 1993 Coll. is therefore not aimed at a breach, but at the subsequent restoration of the principle of civil equality by adequate mitigation, eventuality or abolition of the sentence.
It remains to be established whether this additional, subsequent legal regulation does not contradict Article 40 (6) of the Charter of Fundamental Rights and Freedoms, according to which the crime is assessed and the punishment is imposed under a law effective at the time when the offence was committed. Nor the prohibition of retroactive application of the law under the first sentence of paragraph 6 of Article 40 However, the Charter does not apply to Paragraph 6 of the contested law because the sentence of the second paragraph of Article 40 of the Charter admits the retroactivity of the law, if this is more favourable to the perpetrators. In view of the wording of Article 6 of Act No. 198 / 1993 Coll.: "The Court of First Instance may, on application, abolish or reduce the sentence ', this condition is fulfilled.
2. The last of the objections of the group of Members is that Article 8 of Act No. 198 / 1993 Coll. states that Parliament's authority of government is too broad and uncertain. It is argued that, in the present case, there is no definition of the injustices not covered by the rehabilitation laws, the definition of the type and extent of the rights of the beneficiaries, the determination of the way in which they are applied and the identification of the authorities to decide on claims and their implementation. This - as stated in the proposal - contradicts Article 8 of Act No. 198 / 1993 Coll. Article 78 and Article 2 (3) of the Constitution of the Czech Republic.
Standard competence through government regulations in parliamentary systems may have the nature of a first independent power of order directly under the Constitution (Article 78 of the Constitution in the Czech Republic). In such cases, the Government shall be entitled to issue regulations implementing the law and within its limits. It does not need any special authorisation from Parliament.
In some democratic states, the constitutional provisions of the government's derived right of order, based on a delegation from Parliament, are also regulated. In such cases, the constitutional condition is that the framework specification of such authorisation must be directly in the law, in substance or in time, and that only the indefinite global authorisation of the government is not permitted. In so doing, the task of determining the appropriate and effective scope of authorisation and ensuring that the government does not go beyond the legal framework is a matter primarily for Parliament itself.
The Constitution of the Czech Republic knows only one type of government regulation. It is only a provision of Rule 78, which sets out only two substantive conditions: a government regulation can be issued (even without the authority of Parliament) only to implement a law and within its limits. No further provision shall determine how and to what extent those limits are to be established. This means that they derive directly from the text of the law which is implemented by the government regulation. Since, according to § 78 of the Constitution of the Czech Republic, a government regulation is also to be assessed on the basis of the authorisation of § 8 of Act No. 198 / 1993 Coll., such authorisation of the Government, albeit to a very general extent, is still admissible from the point of view of the Constitution.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 14 / 1994 Coll., on the application for annulment of Act No. 198 / 1993 Coll., on the illegality and resistance of the Communist regime |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.01.1994 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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