The Constitutional Court found No 151 / 1999 Coll.

I. Paragraph 2 (2) of Act No. 18 / 1992 Coll., on Civil Service, is repealed on 31 December 1999.

II. The remainder is rejected.

In its submission of 17 June 1998 and in its supplementary submission of 21 July 1998, the District Court of Nový Jicin submitted an application pursuant to Article 64 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court ("the Law on the Constitutional Court ') for the annulment of § 2 (1) (a) and § 2 (2) of Act No. 18 / 1992 Coll., on the Civil Service (" Civil Service Act').

The motion to initiate proceedings for the annulment of a part of the law showed that, in proceedings before the District Court in Nový Jičín, the defendant R. G. is prosecuted for the offence of discharging the armed forces under Section 269 (1) of the Criminal Act. The offence should have been committed by the fact that, following the personal receipt of the call order, the basic military service did not take place within a specified period of time and even later, and he wanted to avoid the military service once and for all. It is clear from the evidence made in the main trial that the defendant is willing to perform the civil service instead of the military service of the basic if he could apply for it. In the past, he refused both basic military service and civil service because it was contrary to his conscience and religious beliefs. In the meantime, however, he changed his mind that the civilian service was already compatible with his conscience. However, the defendant is a ward and the 30-day period for refusal of military service has expired in his case and, in the present situation, he cannot make a legally relevant declaration of refusal of essential military service and to carry out a civil service because he cannot objectively comply with the conditions set out in paragraphs 2 (1) (a) and 2 (2) of the Civil Service Act.

Article 15 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) implies that no one may be forced to perform military service if this is contrary to his conscience or his religious beliefs. For the defendant, it is contrary to his conscience and religious belief that the basic military service is being carried out. He is willing to carry out a civil service, but he is prevented from carrying out it by the already mentioned provisions of Sections 2 (1) (a) and 2 (2) of the Civil Service Act. Until such time as he is released from the army, he may be called upon to serve as a basic military service and, if he refuses to carry out that service on account of his conscience or religious beliefs, he may be prosecuted repeatedly, according to the appellant. Of the above, the appellant has imported a discrepancy between § 2 (1) (a) and § 2 (2) of the Civil Service Act with Article 15 (3) of the Charter, since that provision of the Civil Service Act does not sufficiently permit the use of the basic constitutional right to refuse the basic military service. The deadline for making the declaration of refusal of the service is considered to be excessively short, and the Civil Service Act does not recall the possibility of repayment of that period and does not otherwise regulate the procedure for those recipients who are willing to carry out the civil service at the time when the statutory period for making a legally eligible declaration of refusal of the essential military service expires so that they are not subsequently forced to carry out it out.

From the point of view of the prosecution of the defendant, the assessment of that question is important in that the purpose of the criminal proceedings under Paragraph 1 (1) of the Code of Criminal Procedure is, inter alia, to be educational to citizens in a spirit of strict law enforcement and the fulfilment of obligations in relation to the state and society. It is therefore also the purpose of the criminal proceedings in question that the defendant should be led to fulfil the obligation imposed on him by law, especially if he is interested in fulfilling that obligation.

On the basis of the foregoing considerations, the appellant requested the Constitutional Court to abolish by its finding Sections 2 (1) (a) and 2 (2) of the Civil Service Act, at the date of issue of the finding.

Under Section 69 of the Law on the Constitutional Court, the Constitutional Court requested a statement from the Chamber of Deputies of the Parliament of the Czech Republic as a party to the proceedings.

It stated in its observations that the explanatory memorandum to the Civil Service Act does not address the issue of proportionality or the need for the existence of a 30-day period, limited to the finding that the objective of the Act is, inter alia, the disadvantage of those who submit a declaration of refusal of the exercise of basic military service only after receiving a calling order or during the service. The Chamber of Deputies further recalls that the appellant omitted the fact that the content of the right to refuse military service pursuant to Article 15 (3) It is necessary to interpret the Charter in the context of Article 9 of the Charter, which clearly states that forced labour or services cannot be regarded as military service or other service provided by law rather than compulsory military service. Moreover, the appellant failed to mention the fact that the Czech legislation is very liberal compared to those of other countries in that it does not provide for any verification or comic review of the request for civil service and, in fact, whether or not it performs military obligations, the citizen decides himself. In this respect, it should be noted that Paragraph 1 (2) of the Civil Service Act gives a definition of an organisation for which such a service can be performed such a wide choice that it is virtually impossible for the goaltenders to reject the civil service, arguing that it is also a form of repression by the State and that their conscience or religious beliefs prevent them from carrying out such a service.

The Chamber of Deputies also stated that certain doubts could be allowed in view of the relatively short period for the exercise of the right to an alternative service and the impossibility of its recovery, that is to say, the fact challenged by the appellant, but only in the context of the possibility of creating situations where, for objective reasons, the right to lodge a declaration of refusal to perform the essential military service cannot be invoked within the legal period (e.g. hospital stay). In the vast majority of other cases, the 30-day period may be considered as appropriate for the use in question and, if necessary, efforts to cancel it on the basis of several years' delay, whether due to omission or ignorance of the matter, may also be considered irrelevant in the light of the liberal legislation in question in the Czech Republic. Given the existence of the rule that it does not excuse the ignorance of the law, it should be noted that the recipients are informed in detail of the possibilities of choosing a civil service during the procedure and therefore the lack of information cannot be discussed.

Conclusion of its observations The Chamber of Deputies stated that the legislature of the Czech and Slovak Federal Republic acted in the belief that the adopted law was in accordance with the Constitution of the Czech Republic (hereinafter the Constitution), the constitutional order and the legal order of the Czech Republic. It is therefore up to the Constitutional Court to examine the constitutionality of this law in the context of the submitted proposal and to give its decision.

From the report on the 19th Joint Meeting of the House of the People and the House of Nations of the Federal Assembly of the CSFR, 3. - 21. 12. 1991, VI. of the Election Period, part 3 and 4 (hereinafter referred to as the "Joint Meeting Report ') The Constitutional Court found that the question of setting or not the time limit within which the right to deny the exercise of the essential military service was to be exercised had already been discussed when the draft law was discussed in the Federal Assembly. The government draft law (press of FS ČSFR, VI. electoral term, no. 848) contains a draft regulation corresponding to the current version of the law, i.e. it is proposed to limit the period in which the right can be exercised, i.e. for retirement not later than 30 days after the end of the withdrawal procedure. The same proposed regulation is included in the draft committees of the House of Defence and Security of the People's and the House of Nations (press of FS ČSFR, VI. electoral term, No. 946). At the meeting of the 19th Joint Meeting, there was also a proposal by two Members of the Federal Assembly (Press FS ČSFR, VI. electoral term, No 924), in which the time for exercising the right to refuse the exercise of the basic military service is unlimited. Members were also discussing these proposals in these borders. Member R. Šormová (see the report on the joint meeting, p. 836) said:" If, on the assumption that no one can be forced to carry out military service, if it is contrary to his conscience, that everyone has the right to refuse military service because of conscience, then no commission or jury can examine and evaluate the conscience of the citizen, and that therefore the citizen submits a statement of objection which cannot be examined objectively, then it becomes clear to me that the law, if it is in conformity with the Charter, can provide details for the exercise of the right to refuse military service, but cannot withdraw that right to a group of citizens. "On the other hand, Mr Skalický (report on the joint meeting, p. 857) said:" We must then ask, as legislator, if this is how we understand our role, whether we can interpret the right of change of mind as a right of withdrawal from voluntary commitments. It is necessary to maintain the principle that the withdrawal procedure provides for a certain obligation to carry out a military service, it is possible to leave a certain period of notice, as proposed by Press 946 in § 2 (1) (a) and (b). However, it is not possible, in our view, to support a proposal which extends this deadline until the call for proposals have been delivered. "Furthermore, the report on the joint meeting showed that the amendments concerning the period within which the right to deny the exercise of the essential military service was to be exercised were not adopted.

The report on the joint meeting (p. 1251) shows that the Civil Service Act was approved by the necessary majority on 12 December 1991.

On the invitation of the Constitutional Court, the Minister of Defence of the Czech Republic also gave his opinion on the proposal. In its opinion, it states that it does not consider the current legislation to be contrary to the Charter. Pursuant to Article 4 (2) of the Charter, limits to fundamental rights and freedoms may be laid down under the conditions laid down in the Charter. Article 15 In addition to establishing a prohibition on forced military service, if it is contrary to conscience or religion, the Charter shall also state that details shall be laid down by law. Therefore, the Civil Service Act provided for the 30-day period referred to in Paragraph 2 (1) (a) as a detail which at the same time sets the time limit for that right. The completion of the Army of the Czech Republic would be jeopardised by the timelessness of that right or by its loosener treatment, which would significantly undermine the implementation of the fundamental duty of the State under Article 1 of Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic. Setting the dates for the submission of the declaration of refusal of military service is necessary for the strict implementation of the provisions of Article 4 (1) of Constitutional Law No. 110 / 1998 Coll. and the Defence Act by the competent military authorities. Between 1991 and 1992, when, as a result of the validity of Act No. 73 / 1990 Coll., on Civil Service, the guard or even soldier could refuse military service at virtually any time, there were serious shortcomings in the field of replenishment of military services, training, morale, breakdown of some military units and decline in fighting ability. The opinion of the Minister of Defence of the Czech Republic also states that the proposal to abolish part of the Civil Service Act is unsystemic and is withdrawn from the context of other provisions of the Act. It is also proposed to repeal Paragraph 2 (2), which provides that declarations made after the time limits shall not be taken into account without taking into account any additional time limits remaining in the law after the proposed cancellation of the 30-day period. For example, the proposed measure would make it impossible to submit a declaration of refusal of military service to those who will not be granted a deferral, thereby violating the constitutionally anchored equality of citizens. For the above reasons, the Minister of Defence of the Czech Republic therefore does not recommend implementing the proposed proposal.

The Constitutional Court was based on Article 15 (1) of the Charter, which guarantees everyone freedom of thought, conscience and religion, including the right of everyone to change their religion or religion, or to be without religion. These rights are absolute in the sense that no one can be subjected to such a measure, which aims to change the process and the way in which they think, no one can be forced to change their minds, religion or belief. They are protected by respect for the "internal 'dimension of these rights, which excludes any pressure or influence on the mind, conscience and religion. These rights cannot therefore be restricted by law as a result of their absolute nature. The freedom of thought, conscience and religion shall also include the right not to perform military service if the exercise of such service is contrary to the conscience or religion of the individual. In general, therefore, the above characteristics apply to the right not to carry out military service, i.e. the absolute right with an internal dimension which cannot be restricted by law.

Consciousness, thinking, religion, faith, including the prohibition of coercion for military service, if contrary to these categories, are untouchable in nature and therefore not subject to any legal restrictions. At the same time, it should be seen, however, that most of these rights acquire real values only if these rights can also be shown publicly, i.e. externally in an identifiable way. The right to publicly express its thoughts, beliefs, religion or belief is also guaranteed by the Charter, in Article 16 in relation to religion and belief and in Article 17 as freedom of expression in general. It goes without saying that the spectrum or scope of external speeches is very broad and with some of them the legal system also combines specific legal consequences.

However, public expressions of thought, conscience, religion or belief, according to the Charter (and unlike their inner nature), do not enjoy the absolute freedom of expression of their carriers. As well as Article 9 (2) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), and Article 16 (4) of the Charter of the Right to express their religion and belief freely, and Article 17 (4) of the Charter of Freedom of expression in general underpin the exercise of those rights to the needs of a democratic society and allow for their limitations when measures in a democratic society are necessary to protect the rights and freedoms of others, the security of the state, public security, the protection of public health and morality. The limitation of these rights can only be made by law and must respect other general principles enshrined in the Constitution and the Charter, in particular the prohibition of discrimination.

If the right not to carry out military service, if it is contrary to conscience or religion, is incorporated in Article 15 (3) of the Charter, then, in the view of the Constitutional Court, the assessment of that right cannot be treated differently than as stated above. It follows that, even in the case of that right, it is necessary to distinguish between its internal and external aspects, i.e. its internal conviction not to carry out a military service for conflict with conscience or religion, and the external expression of such a belief, i.e. the refusal to perform a military service. The internal aspect of this right is absolute and uncontrollable; the external aspect, i.e. the exercise of this right externally, is, on the contrary, controllable and may be restricted under certain specified conditions. Moreover, for the external expression of the right not to perform military service, the possibility of regulating it by law is laid down directly in Article 15 (3) of the Second Charter.

The fact that external manifestations of conscience and religion in order to refuse military service do not have a "autonomous" character and a separate (different) legal regime from other manifestations of religion or conscience, also fully confirms the existing case law of the European Commission on Human Rights. Although it is not possible to find a fundamental right in the Convention to refuse military service on grounds of conscience or religion and Article 4 (3) (b). (b) The Convention leaves the Contracting Parties the freedom to recognise or not to recognise the reasons for the refusal of military service, the complaints of individuals coming from States which recognise the right to refuse military service for reasons of conscience, are regularly included in the overall framework of the right to freedom of thought, conscience and religion under Article 9 of the Convention. As regards the restriction of the external expression of religion or belief (Article 9 (2) of the Convention), the European Commission on Human Rights in the Grandrath case (complaint 2299 / 64) underlined: "Each of the provisions of Articles 8 to 11 guarantees certain rights in its paragraph 1, but at the same time empowers the Contracting Parties in its paragraph 2 to limit them provided that certain conditions are met. Where the Parties restrict these rights, they shall remain bound by the provisions of Article 14 of the Convention. The establishment of restrictions in a discriminatory manner results in an infringement of Article 14 of the Convention, in conjunction with Article 9 of the Convention. 'In other words, the European Commission on Human Rights respects restrictions on external manifestations of religion or belief, including those aimed at refusing military service, but examines whether such restrictions imposed by law and" necessary in a democratic society in the interests of public security, the protection of public order, health or morality or the protection of the rights and freedoms of others' are not discriminatory.

Like Article 9 (2) of the Convention, Article 16 (4) The Charter subordinates the exercise of the constitutional right to publicly demonstrate its thinking to the needs of democratic society. Article 16 (4) The Charter expressly states that "The exercise of those rights may be restricted by law if measures in a democratic society are necessary to protect public security and order, health and morality or the rights and freedoms of others."

On the basis of the above analyses and considerations, it can be partly summarised that the right to refuse military service for conflict with conscience or religion is an external manifestation of the right to freedom of thought, conscience, religion and belief, including the right not to perform military service if it is contrary to them, and may also be limited by law in accordance with the general principles enshrined in the Constitution and the Charter.

The question at the heart of the case is whether the restriction of the right to refuse military service for conflict with conscience or religion may also take the form of a time limit, i.e. the establishment of the time limit in which that right may be exercised.

In the context of the examination of the case, the Constitutional Court and the national legislation of certain States have already been examined, taking into account only the above-specified core of the case. The national legislation of Austria, Belgium, Denmark, France, Italy, Germany and Slovakia lays down specific time limits for the submission of a declaration of refusal of military service, ranging from 10 days (Austria) to 60 days (Italy) from the statutory decisive facts. The general requirement laid down for such national adaptations is that those provisions be applied in a non-discriminatory manner, i.e. equally to all beneficiaries. The legislation of these states also confirms that not every and every external manifestation of conscience (religion) has the "automatic" effect of refusing military service. The person entitled shall be deemed to be legally relevant only if the statement was made within the statutory period.

The constitutional courts of some states have also addressed this issue, but their case-law is very different and reflects different views and approaches. For example, the Italian Constitutional Court and the German Constitutional Court, which stated that an individual must have the right to refuse military service for reasons of conscience or religion, not only in the limited period after the completion of the discharge procedure, but also in the limited period after the commencement of the military service. The Slovak Constitutional Court, whose constitutional finding should be closest to us because it was concerned with the examination of the same law, on the other hand it ruled that the regulation given by Act No. 18 / 1992 Coll., on Civil Service, was not contrary to the Constitution of the Slovak Republic, i.e. it left in force the contested § 2 (1) (a) and § 2 (2) thereof.

If we accept that the right to refuse military service for conflict with conscience or religion is an external manifestation of freedom of thought, conscience, religion and belief, then the possibility of restricting it within the limits of Article 15 (3), second sentence, No 16 (4) and Article 17 (4) of the Charter is clearly given. In view of the internal basis of these rights and in the exercise of the constitutional right to change their religion or belief, no one is preventing (nor can they prevent) an authorised person from changing his religion or belief. However, as regards the public expression of such a changed religion or belief within the meaning of the Civil Service Act, the ground for refusal of a military essential service or military exercise shall be that which is applied within the statutory time limits and in a manner also determined by law. The timeliness of this right could seriously undermine the security of the State and jeopardise the performance of its defence-related tasks not only within but also externally within the framework of international treaties adopted by the Czech Republic. Similar experience has emerged in connection with the application of earlier civil service legislation, i.e. in the context of Act No. 73 / 1990 Coll., on civil service, which, in Paragraph 2 (1), provided that the right to refuse military active service for reasons of religion or moral belief is exercised by the citizen by written declaration without, at the same time, imposing any time limit on the exercise of that right. The unsustainability of such a widely designed right to refuse military service in terms of ensuring the safety of the State was one of the main reasons for the new civil service legislation in a relatively short time (the draft new legislation was submitted in 1991 and adopted in the same year).

The fundamental question in the light of the facts already mentioned is therefore whether it is reasonable and constitutionally acceptable to determine the period of precisely the 30 days within which a declaration of refusal to perform a military essential service (for reasons of conscience or religion) can be made, and whether it is reasonable and constitutionally acceptable that this period starts to run from the establishment of a particular event (that is to say, the termination of the proceedings). Perhaps it is worth recalling here that the right to freedom of thought, conscience and religion (which is undoubtedly guaranteed) is bound at some point in time to a certain fact, which is precisely the exercise of military basic service. Thus, a service which is a public service for the benefit of the state and its citizens, at least in terms of its defence (including, of course, the defence of all the fundamental democratic values on which the Czech Republic is built). It is also clear that it is the army that is primarily called upon to protect these values. In order to do so effectively, it must have the basic preconditions, including clearly and clearly defined conditions, in relation to the number of citizens it is certain to know that they will carry out military service at a certain time and that it will be able to use them to defend the state if necessary. Without this possibility, the defence of the state and its citizens (and ultimately the values on which the Czech Republic stands) would be very complicated and in principle (in the absence of a professional army) almost impossible. From this point of view, Paragraph 2 (1) (a) of the Civil Service Act appears to be appropriate to the above, including the determination of the time elapsed since the end of the procedure. Of course, it is possible to argue whether a person (at 18 years) is mentally mature, including his / her relationship with his / her conscience or religious beliefs, and whether his / her development is ended in this respect. Apparently not, and it can be argued that its development is permanent. However, from the point of view of the consequences considered, it really cannot be overlooked that, if he were to pursue the development of his beliefs at any stage of his life (of course, in relation to military service), the construction of an army and, from this point of view, ensuring the defence of the state and its citizens would seem to have lost its meaning in a large part. It may also be envisaged to set a slightly different time limit (for the relevant declaration) and perhaps another event from which the time limit should apply. However, according to the opinion of the Constitutional Court, it should not be significantly different from the time limit expressed by the current legal regulation [in Paragraph 2 (1) (a) of the Civil Service Act]. From these points of view, it can be considered that the current legislation is constitutionally acceptable when there is sufficient possibility to make a free and responsible decision and express its conviction within a reasonable time.

From the point of view of the legislative technical and application, it must be noted that the repeal of Paragraph 2 (1) (a) of the Civil Service Act is proposed. If the Constitutional Court had fully complied with this proposal, it would have meant that an individual who would have been retired in the context of the proceedings and did not request a deferral (or a postponement was not allowed) would not have been able to exercise his right to refuse military service at all. The list in Section 2 (1) of this Act is exhaustive and the right to refuse is granted only to those groups of citizens which are expressly mentioned here. Thus, the finding of the Constitutional Court would be based on discrimination against a group of citizens who have a protective duty, namely the largest group - the conscripts without delaying military service. The repeal finding would thus achieve an objective exactly the same as the purpose of the proposal, i.e. the removal of an individual of that right instead of the time extension of that right.

In view of the above, the Constitutional Court concludes that Paragraph 2 (1) (a) of the Civil Service Act does not contradict Article 15 (3) of the Charter and therefore rejected the proposal to repeal that provision.

The application for annulment of Paragraph 2 (2) of the Civil Service Act, which provides that declarations made after the time limits referred to in Article 2 (1) of the Civil Service Act shall not be taken into account; In other words, the provisional nature of the time limits is laid down here and the right to refuse military service ceases to exist in vain. The contested legislation does not allow a repayment of the time limit even in cases where its failure was due to objectively existing facts outside the will of the individual. If, in connection with the limitation in time of the right to refuse military service, the Constitutional Court has concluded that the limitation in time itself is not a breach of constitutional rights, it can be argued, in the examination of Article 2 (2) of the Civil Service Act, that their substance and meaning must be investigated in the application of the provisions on the limits of fundamental rights and freedoms (Article 4 (4), sentence of the first Charter). The Constitutional Court therefore complied with the submitted application in its second part and annulled Paragraph 2 (2) of the Civil Service Act with reference to Article 4 (4) of the Charter. Although Article 15 (3) of the Charter provides that the details of the exercise of the right to refuse military service are laid down in law, the content of this legislation is also limited by other provisions of the Charter. There can be no such legislation as to affect absolutely the very nature of the right to refuse to perform military service by establishing the cessation of the law only by the end of time. Such an arrangement is contrary to Article 4 (4) of the Charter because the substance and the meaning of the fundamental law in question are not investigated when the possibility of its application is significantly limited, which could cause damage to the rights of an individual precisely for the application of fundamental rights and freedoms (Article 3 (3) of the Charter). The Constitutional Court is aware of the change in the legal situation resulting from its decision to abolish Paragraph 2 (2) of the Civil Service Act, and therefore annulled the contested provisions of the Civil Service Act on 31 December 1999 so that Parliament of the Czech Republic can adjust the possibility of waiving the period within which a citizen can exercise his right to refuse to perform a military service, thus finding a way to change the state of progress in the indicated direction, thereby reducing the excessive hardness of the law contained in the current version of Paragraph 2 (2) of the Civil Service Act.