The Constitutional Court found no 20 / 2006 Coll.

Motion denied.

1. On 2 June 2004, the Constitutional Court received a proposal from the Regional Court in Kladno by which the appellant sought the issue of a finding by which the Constitutional Court would annul the provisions of Sections 53 (1) and 54 of Act No. 218 / 2003 Coll., on the liability of young people for unlawful acts and on the judiciary in youth matters and on the amendment of certain laws (Law on Judicial Affairs in Youth Matters).

2. The appellant stated that proceedings are pending at the Regional Court in Kladno sp. v. 4 Tm 25 / 2004 in the criminal case of the defendant, juvenile L. B., born 26.11.1986, and the defendant, who the prosecution blames for committing crimes of theft pursuant to § 247 (1) (b) and (d) and § 3 (b) of the criminal law and others. The Kladno District Court is obliged to apply the law on the judiciary of youth as a whole in the case of the defendant, juvenile L. B. and other defendants, even when he decides to order and execute the main trial.

3. According to the appellant, the provisions of Article 54 (1) of the Law on Justice in Youth Matters are contrary to Article 96 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 38 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), the provisions of Articles 53 and 54 (2) and (3) of the Law on Justice in Youth Matters are then contrary to Article 17 (1), (4) and (5) of the Charter.

4. The appellant pointed out that, prior to the application of Section 54 (1) of the Law on the Judicial Affairs of Youth in respect of public participation in the main proceedings and the public sitting, the provisions laid down in Section 200 or Section 297 (3) (a) of the Code of Criminal Procedure also applied to young persons. According to this regulation, the reasons for granting an exception to the principle of the public were precisely and strictly defined. The Court had to decide on the application of such a derogation in the present case, which was a procedural decision against which there was no appeal. In his own experience and in the data of the District Court in Kladno, he points out that, prior to the effectiveness of the Law on Judicial Affairs in cases where the public was excluded, "there was negligible, little, in relation to other matters, we would end up far below one percentage and certainly we could talk about one percent of all the courts' cases', whereas, following the effectiveness of the Law on Judicial Affairs in youth matters, the public is absent in the range of seven to eight percent of the criminal matters discussed at the Regional Court in Kladno. In the appellant's view, the Law on Justice in Youth Matters does not hold to the least" principles of the democratic and rule of law and denies and threatens "one of the fundamental constitutional cauties of the public administration, and grossly contradicts, in particular, Article 96 (2) of the Constitution, which allows the exclusion of the public only in exceptional cases, although" by virtue of the law, almost a tenth of the criminal matters from the public procedure are not fulfilled by the spirit of the Constitution. The appellant further explains that the public of court proceedings means the right "of any citizen of the State and of any person who is not citizens of the State exercising the judicial authority" to attend the main proceedings and public meetings. At the same time, the state's willingness to exercise judicial power is declared democratically, transparently, publicly, by law. The presence of the public in the Chamber of Appeal shall have an information and awareness function and shall be a means of public control over the judiciary.

5. The appellant does not agree that, as a result of the application of the provisions of Sections 53 (1) and 54 (2) and (3) of the Law on the Judicial Affairs of Youth, the interest of a minor is preferred to have immediate and correct knowledge and experience of the activities of the courts, in particular, that "people should normally meet and acquaint themselves with it as a public in the proceedings of the courts, provided that such a State is defined as legal and democratic (Article 1 of the Constitution) and wants to be seen as such by the citizens living there '. It points out that, following the effectiveness of the law on the judiciary in youth matters, the courts in proceedings against minors are now in the position of the so-called" cabinet justice. "The appellant recalls that the findings of the Constitutional Court often refer to the principle of proportionality as a benchmark for assessing the constitutionality of the legal standard. In his view," the legislator was inadequately and unbalanced over the interest of the individual over the interest of society as a whole, consisting, by the way, of precisely such individuals as the defendant. "It considers that it is not possible to restrict citizens or the media to access information so widely, in such a large group of people, only on the basis of the hypothetical possibility of adversely affecting the future life of the defendant by ongoing prosecution. On the" media-based "case of the murder of a teacher, he claims that the protection against disclosure of information pursued by the Judicial Act on Youth Affairs is" totally ineffective. "

6. On the invitation of the Constitutional Court pursuant to § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, by the mouth of its President PhDr. Lubomír Zaoralka submitted observations to the Chamber of Deputies of the Parliament of the Czech Republic. It stated that the law on the judiciary in youth matters was dealing with unlawful acts in the broad context of all their moral and social aspects. Contrary to adult penal codes, juvenile criminal law is oriented towards the future, and its focus is therefore to take measures to prevent recurrence. The legislature's intention was to incorporate into the Youth Justice Act the starting point of the so-called "Restorative (Restoring) Justice," which places emphasis on a balanced fair response of society to a juvenile crime, which does not waive its responsibility for its failure and results in consequences not only for him but also for solving the problems of other stakeholders and groups associated with the crime. The provisions of Sections 3 (5), 53 and 54 of the Law on the Judicial Affairs of Youth lay down special rights for minors to protect against interference in their personal privacy in order to minimise the possible stigmatizing consequences of proceedings and their results in cases pending by the courts for youth. A particular interest in the protection of the privacy and personality of a minor justifies the prioritisation of the secrecy of information relating to his or her unlawful acts over the constitutionally protected principle of public action before a court and the right to information, given the greatest elimination of the harmful effects of proceedings on a minor, including those which contradict his or her person and the constitutional principle of presumption of innocence. The specific rights of minors contained in the provisions of Sections 53 and 54 of the Law on the Judiciary in Youth Matters must also be assessed in relation to the second sentence of Article 32 (1) and Article 32 (6) of the Charter. The Chamber of Deputies of the Parliament of the Czech Republic also pointed out that neither the right to information nor the principle of public legal proceedings are absolute in nature. The possibility of restricting public participation in criminal proceedings against minors and the right to information arises from important international treaties that bind the Czech Republic. Article 96 (2) of the Constitution, Article 38 (2) of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms and Article 40 (2) (vii) of the Convention on the Rights of the Child should be taken into account. Contrary to the opinion of the appellant, the Chamber of Deputies of the Parliament of the Czech Republic considers that the approved provisions of Sections 53 and 54 of the Law on Justice in Youth Matters optimally balance the interest of the young defendant on one and part objectives to ensure the application of the principle of the public, on the other hand. In conclusion, it expressed its view that the legislature acted in the belief that the law adopted was in line with the Constitution, the constitutional order and the legal order of the Czech Republic. According to the Chamber of Deputies of the Parliament of the Czech Republic in the Constitutional Court, the assessment of his constitutionality in connection with the proposal of the District Court in Kladno is then in the Constitutional Court.

7. The Senate of the Parliament of the Czech Republic by the mouth of its President, Dr. Peter Pithart, in his observations, summarised the appellant's argument and stated that no comments were made on the proposal of the contested provisions in the actual proceedings of the committees and plenary of the Senate. However, it is necessary to recall from the general debate some views which have gone to the address of the draft law on the judiciary in the case of youth. It was largely recognised that the aim of the Youth Justice Act was to achieve better results in the balance of youth and crime offences at all, especially in terms of recurrence and other criminal career offenders. Unfavourable developments can only be stopped in the youth age category by methods of positive action. The report of the Constitutional Law Committee emphasised that the bill ensures that unwanted "stickers" of a young offender are reduced, which is addressed by a restriction on the publication of information on both accused and convicted minors, including a newly introduced penalty for exceeding those prohibitions. On the contrary, contradictory views were based on the belief that clear and hard warnings (threats) were needed in all age categories to stop crime. The Senate of the Parliament of the Czech Republic underlined that, in particular, the provisions of Article 32 of the Charter should be counted against the indirect constitutional support of the contested provisions. The comprehensive protection of youth is contained in the 1989 Convention on the Rights of the Child, in which Article 40 (2) recalls that at all stages of criminal proceedings the child's privacy is fully recognised. Furthermore, the Senate recalls that the legislator was also encouraged when adopting the contested provisions by other international documents on the treatment of delinquent youth. These were UN documents, in particular "Minimum standards of justice over youth '(Beijing rules - Resolution 40@-@ 33 of 1989), but also Council of Europe document, e.g. Recommendation R (87) 20, on a social response to youth crime. The proportionality of the contested provisions of the law (exceptions to constitutional rights) should be viewed by the optics of the meaning of the specific regulation of the judiciary in youth matters. Naturally, the accent is more placed to promote the subjective rights of minors than to" collective "values, such as judicial controls on people, while the special protection of minors in criminal proceedings lies in the public interest of the prospect of halting crime growth. Exemptions from the constitutional right to public treatment and the right to disseminate information have a direct link with the purpose set out in Section 1 of the Judicial Act on Youth Affairs. The Senate of the Parliament of the Czech Republic also pointed out that the legislator followed the European Court of Human Rights case-law. The Senate also recalled that both Article 96 (2) of the Constitution and Article 38 (2) of the Charter allow for the existence of exemptions provided for by the law. The right to seek and disseminate information may also be restricted by law in accordance with Article 17 (4) of the Charter. The contested provisions of Articles 53 (1) and 54 (2) and (3) constitute" very subtle legal restrictions'. For example, the fact that under Article 3 (e) of the "Code of Ethics of the Journalist of the Czech Republic" the journalist is called upon to comply strictly with the rule not to identify relatives of delinquents or victims without their clear permission. The Senate pointed out that, in the contested provision, Paragraph 54 (3) of the last sentence of the Law on the Judicial Affairs of Youth, the President of the Senate was given the opportunity to consider whether the preference granted to one or the other was justified in the conflict of freedom of information dissemination with the right to privacy. The need to restrict the right to disseminate information, as expressed in the contested provisions, gives a positive view in the perspective of the law's action in dampening the criminal careers of juvenile delinquents, the negative effect of restricting freedom of expression in favour of the amendment of the right to privacy does not appear to be significant. In conclusion, the Senate of the Parliament of the Czech Republic expressed the view that the draft law on the judiciary in youth matters was adopted in the majority belief that the draft law was in line with the constitutional order of the Czech Republic and the international obligations of the state. It is for the Constitutional Court to assess the constitutionality of the draft contested provisions and to rule.

8. The Constitutional Court, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, addressed the question of whether a law in respect of which the unconstitutionality of the contested provisions is objected was adopted and issued within the limits of the Constitution established competence and in a constitutional manner. This is the Act No. 218 / 2003 Coll., on the Responsibility of Youth for Illegal Acts and Judicial Affairs in Youth Matters and on the Amendment of Certain Laws (Law on Judicial Matters in Youth Matters). In this respect, the Constitutional Court found that the Chamber of Deputies of the Parliament of the Czech Republic had duly approved the draft law at its meeting on 21 May 2003 and the Senate of the Parliament of the Czech Republic approved the proposal in the version referred to by the Chamber of Deputies of the Czech Republic at its meeting on 25 June 2003. After the signing of the President of the Republic and Prime Minister, the law was declared in the Collection of Laws in the amount of 79 under No. 218 / 2003 Coll. Thus, the law in question was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

9. The provisions which the applicant contests and requests to be deleted shall read as follows:

(1) Save as otherwise provided for in this law, no person may disclose in any way any information containing the name or, where appropriate, the name and surname of the minor, or containing information which would enable the minor to be identified.

(1) Only the defendant's juvenile, his two confidants, 27) his lawyer, legal representatives and relatives in the direct generation, siblings, husband or kind, the injured and his agent, witnesses, experts, interpreters, the competent social protection body of children, probation and mediation officials and representatives of the school or educational establishment may attend the main trial and public session. At the request of a minor, the main trial or public meeting may be held in public. 28)

(2) The publication of information on the conduct of the main trial or public meeting which would lead to the identification of a minor in the public media or in any other way is prohibited. Similarly, publication of any text or any representation concerning the identity of a minor shall be prohibited.

(3) The judgment is declared publicly in the main proceedings in the presence of a juvenile. The judgment may be published in the public media only without giving the name and surname of the minor and with adequate protection of the minor against the undesirable effects of his publication. The President of the Chamber may decide, taking into account the nature and nature of the offence and the adequate protection of the interests of the young person, on any other means of publication and the restrictions attached thereto. A complaint against such a resolution shall not be admissible. '

10. The Constitutional Court first addressed the question whether the appellant - Regional Court in Kladno - is entitled to bring an application for annulment of the contested provisions. The appellant rightly stated that the contested provisions had to be applied in criminal proceedings, since he was attacked by the prosecution against the juvenile defendant and, consequently, on the agenda of the main trial regulation. The Constitutional Court concluded that the contested provisions are related to the decision-making activities of the appellant and therefore the District Court in Kladno is an authorised appellant pursuant to Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court.

11. Following this finding, the Constitutional Court took the view that the contents of the contested provisions of the Law on the Judicial Affairs of the Czech Republic had been complied with [Article 87 (1) (a) of the Constitution].

The appellant has put two constitutional objections before his proposal, namely that the provisions of Section 54 (1) of the Law on the Judicial Affairs of Youth are contrary to the provisions of Article 38 (2) of the Charter (right of public consultation) and that the provisions of Sections 53 (1) and 54 (2) and (3) are contrary to the provisions of Article 17 (1), (4) and (5) of the Charter (right to information). The third objection is that the contested provisions of the Law on the Judiciary in Youth Matters undermine the proportionality between the interest in protecting the privacy of prosecuted minors on the one hand and the right to information on the other, in favour of the protection of the privacy of prosecuted minors.

The Constitutional Court states that both the provisions of Article 38 (2) of the Charter and Article 17 (1) do not create unlimited rights to public consultation or information. In both cases, it is left to the legislator to what extent they will restrict the right to public consultation or the right to information by law. Since a number of the provisions of the Charter are related, they must be interpreted jointly, systemically and in a subordinate manner, thus "the freedom of the legislator by the Charter is precisely and strictly regulated '(cf. F. Shamalík, The character of constitutional order and its protection, Lawyer No 1 / 1998, p. 23). When assessing whether a law restricting fundamental rights and freedoms is constitutionally conformist or not, it is usually necessary to take into account aspects of legal philosophical, legal and historical and comparative.

12. The General Legal Consciousness traditionally sees the right to public consultation as an instrument of public justice control. The purpose of public conduct "is for everyone to be able to convince themselves of how justice is done by the state, which is impossible to control the audience by the various aspects of the judges" (cf. "Public," in: Riegr's dictionary educational, IX, Prague 1872, p. 997). This purpose of public discussion has been considered only for a long time in Czech countries. In the case-law of the Czechoslovak Supreme Court, it is repeatedly stated that "the purpose that the law merely pursues by the provisions of the law on the public's main proceedings would not be to take place without allowing public scrutiny. In this sole purpose of the public's main hearing, under the law, the difference between the proceedings before the jury and before the Senate and the law does not follow the intention, in particular even in the case of the jury, would be a powerful impression of the mood of the audience in the jury" [cf. Decision No 4336 / 1932 in: F. Serious, Decision of the Supreme Court of the Czechoslovak Republic in criminal matters ("Serious"), XIII, 1932, p. 568]. Similarly, the First Publishing Supreme Court concluded that "the purpose of the law is the public controllability of the conduct of justice, the judgment on a white day, not in the darkness of the secrecy of court proceedings. Therefore, the concept of the public as opposed to secrecy is merely a question of the practicability to which extent the audience may be treated for the investigation of the inviolable postulate of inadmissibility of the effects adversely affecting the legal procedure and the factors timed on it" (cf. Decision No 1729 / 1925, in: Serious, VI, 1925, p. 549).

Interwar Czechoslovakia, together with Germany (in 1923) and Austria (in 1928), was one of the countries that adopted the laws on the judiciary in youth matters [more precisely, e.g. H. Válová, Responsibility for youth from a criminal policy point of view, in: E. Bezouška, V. Bednář (eds.), Nechtina 1999- 2005, Pilsen 2005 ("War, Responsibility"), p. 128-129]. Paragraph 48 (1) of Law No 48 / 1931 Coll. on the criminal justice of young people, specifically governed the public's exclusion from the general rules of criminal proceedings. According to the provision cited, the public could exclude the judge under the terms of the consent of the lawyer or legal representative and that it was "to the benefit of the accused '. In addition, an accent in the decision of the court on the exclusion of the public in the main proceedings and a public hearing against a minor in § 233 of the Code of Criminal Procedure No. 87 / 1950 Coll. and § 297 (3) (a) of the Code of Criminal Procedure No. 141 / 1961 Coll.

From the above mentioned legal historical reminiscence The Constitutional Court concluded that, traditionally as constitutionally conformal legislation was perceived in the Czech countries, which was based on the premise that public participation was designed as a guarantee of public justice control and that, when limiting public participation in proceedings against minors, special emphasis was placed on the interests and benefits of the juvenile. The Constitutional Court adds that the provisions of § 101 of the Constitutional Charter No. 121 / 1920 Coll. and n. were similar to Article 38 (2) of the Charter, since it was also allowed "to be excluded from the hearing only in cases of law '.

In the view of the Constitutional Court, the above-mentioned traditional premises are also fulfilled by the contested provision of Section 54 (1) of the Law on the Judicial Affairs of Youth. According to the provision cited, it is left to the young person to choose the option offered by the last sentence of Paragraph 54 (1) of the Law on the Judicial Affairs of Youth, i.e. to propose that the main trial or public meeting be held publicly or not. Although this proposal can be formally made young only under the provision cited, it cannot be overlooked that it will be able to consult its lawyer on this - in the light of the necessary defence in proceedings against it. On the contrary, the contested regulation does not allow the court, without legal reasons, to exclude the public from the main trial or public meeting, and by doing so, it would also address the question of whether - in the words of the appellant - "the state's willingness to exercise power in a judicial democratic, transparent, public, by law." The right to public consultation shall be the fundamental right of the party and not the fundamental right of the court or judge. The Constitutional Court has not observed from its decision-making practice, following the effectiveness of the Judicial Act on Youth Matters, that a young person, in connection with the application of Paragraph 54 (1) of the Judicial Act on Youth Matters, would seek the protection of his right to public consultation under Article 38 (3) of the Charter, since the contested provision would logically reduce the emergence of such a situation significantly.

The Constitutional Court is in agreement with the doctrine that the law on justice in youth matters is consistently subordinate to the interests of minors. It does so with regard to the age and rational maturity of minors. In order to minimise the stigmatisation of young people from the current proceedings, these grounds are reflected in the provisions of Section 54 (1) of the Judicial Act on Youth Affairs. The legislator also considered that the requirement to protect the personal privacy of young people throughout the proceedings is given by the interest of protecting them against the harmful effects of the external environment and publicity (cf. A. Sotolář, To protect the privacy of young people under the Law on the Judiciary in Youth Matters, Criminal Revue No 4 / 2004, p. 128-129).

The contested provision of Paragraph 54 (1) of the Law on the Judicial Affairs of Youth is also in conformity with Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms, which allows the public to be excluded... throughout or part of the process... if the interests of minors so require, or... if, given the special circumstances, the public proceedings could be prejudicial to the interests of justice. The Constitutional Court is aware that, with a "certain amount of simplification ', two conflicting trends indicated above can be observed in current criminal policy developments on this section. The first trend, which is typical of the United Kingdom and partly Scandinavia, where a neoclassical criminal doctrine, based on the indeterminism of the will of the individual and the resulting result, is advocated, is the right of society to respond strictly and uncompromising to any violation of criminal law standards, regardless of age, mental or moral maturity of the perpetrator. The degree of responsibility here is determined by the degree of seriousness of the actions committed, not by the specificity of the perpetrator's personality. The second trend, applied for example in Austria, Switzerland, Germany and the Czech Republic, is based, among other things, on the key role of age and the closely related degree of reasonable and mental development achieved, on the contrary, the importance of the specific severity of the offence committed is given in the background (cf. War, Responsibility, p. 132). This second trend, which is also followed by the Czech Republic, has been found by the Czech Republic in relation to the contested provision of § 54 (1) of the Law on the Judiciary in Youth Matters, as well as in a number of international documents on the treatment of delinquent youth, such as the 1989 Convention on the Rights of the Child (ref.) (ref.), in the so-called Beijing Rules - UN Resolution 40@-@ 33" Minimum Standards of Judicial Jurisdiction for Youth' of 1989 and, last but not least, in the Recommendation of the Council of Ministers to the Member States of the Council of Europe concerning the new treatment of juvenile delinquisition and the mission of youth [2003]. To conclude, "if the age and other special characteristics of the child, as well as the circumstances of the criminal process, allow for a modified procedure with a choice of participation and reasonable information, the general interest in ensuring that justice is more transparent could be met (cf. Decision of the European Court of Human Rights in case T. against the United Kingdom of 16 December 1999, complaint 24724 / 94, and V. against the United Kingdom of 16 December 1999, complaint 24888 / 94).

13. The Constitutional Court, when assessing the constitutional conformity of the contested provisions of Sections 53 (1) and 54 (2) and (3) of the Law on the Judicial Affairs of Youth, based on the same considerations as when assessing the constitutionality of the Law on the Judicial Matters of Youth.

The Constitutional Court also dealt with the issue of the right to information from several aspects. He took into account that it is traditionally seen as logical in the Czech countries that the boundaries of the public, and thus to some extent also the possibility of implementing the right to information directly in court proceedings, are limited. It has been repeatedly argued that "it is a question of practicability to what extent an audience can be consulted" (cf. Decision No 1729 / 1925, in: Serious VI, 1925, p. 549, or Decision No 4218 / 1932, in: Serious XIII, 1932, p. 340).

The Constitutional Court is aware that the secondary public consultation of the case has the possibility of a potential educational activity of the court [cf. K. Klíma, Constitutional Law, Dobrá Voda (2002, p. 338]. Of course, the exercise of the right to information should also serve this objective. In this context, the Constitutional Court took into account that Recommendation Rec (2003) 20 in Article V, paragraph 25, expressly provides for a requirement not to disclose information identifying the juvenile offender and his victim.

In the opinion of the Constitutional Court, the educational activity of the court or the educational activity of the criminal proceedings on the recipients of information must not always be linked to the identification of the offender. The more relevant information for the education of respect for rights and justice is certainly information relating to the facts and their legal assessment, which can be obtained in the course of the public publication of the judgment under the contested provisions and which can be freely expressed and disseminated without any substantive restriction. In this regard, the moderation law provided for in Section 54 (3) of the Law on the Judicial Affairs of Youth cannot be neglected to the President of the Chamber.

The Constitutional Court also took into account the fact that similar restrictions on the freedom to seek and disseminate information include Article 3 (e) of the Code of Ethics of the journalist of the Czech Republic.

14. Finally, the Constitutional Court has assessed the contested provisions from the point of view of proportionality the relationship between the interest in protecting the privacy of prosecuted minors on the one hand and the right to information on the other. It concluded that the legislator did not deviate from the limits set by the Charter.

In this regard, the appellant merely stated that between seven and eight percent of cases were absent from the public since 1 January 2004. The Constitutional Court has fully testified to the opinion of the Senate of the Parliament of the Czech Republic that the negatives of restrictions on freedom of expression in favour of a given modification of the right to privacy do not appear to be significant compared to the positives given in the perspective of the action of the law in dampening the criminal careers of juvenile delinquents.

15. After the parties agreed to this, the Constitutional Court, pursuant to Article 44 (2) of the Law on the Constitutional Court, dismissed the application of the Regional Court in Kladno to abolish the provisions of Sections 53 (1), (2) and (3) of the Law on Justice in Youth cases, since those provisions in abstract do not contradict Articles 96 (1) and (2) of the Constitution, Articles 38 (2) and 17 (1), (4) and (5) of the Charter (Article 70 (2) of the Law on the Constitutional Court).