The Constitutional Court found No. 279 / 2001 Coll.
The Constitutional Court found of 6 June 2001 on the application for annulment of Article 6 of Act No. 119 / 1990 Coll., on judicial rehabilitation
Valid
The Constitutional Tribunal found
Text versions:
03.08.2001
279
FIND
The Constitutional Court
On behalf of the Czech Republic
On 6 June 2001, the Constitutional Court decided in plenary on the proposal of J. B. to abolish Article 6 of Act No. 119 / 1990 Coll., on judicial rehabilitation,
as follows:
Motion denied.
Reasons
The application for annulment of Article 6 of Act No. 119 / 1990 Coll., on judicial rehabilitation, was lodged by the appellant pursuant to Article 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, together with a constitutional complaint lodged before the Constitutional Court on 9.5.2000, which was against the order of the Regional Court in Pilsen of 4.4.2000 sp. zn. 7 To 145 / 2000 and the order of the Regional Court in Karlovy Vary of 8.2.2000 sp. zn. Rt. 2 / 99.
The draftsman stated in the proposal that he was found to be a military service in the Czechoslovak People's Army in 1957. According to the call order, the military service was scheduled to commence on 30 October 1957. He did not do so because his religious beliefs prevented him from performing it (the plaintiff pledges to Jehovah's Witnesses). By judgment of the Military District Court of Karlovy Vary of 13.12.1957 sp. zn. 2 T 211 / 57, the appellant was sentenced for the offence of non-committal of a military service pursuant to Paragraph 265 (1) of Criminal Law No 86 / 1950 Coll. to a sentence of 16 months. Based on the amnesty of the President of the Republic, the plaintiff was released from prison, spending about six weeks in custody.
On 27 December 1957, the appellant was to resume military service under the new call order. He again did not take up military service and by judgment of the Military District Court of Karlovy Vary of 15.1.1958 sp. zn. 2 T 225 / 57 he was recognised as guilty of the criminal offence of the non-establishment of a military service pursuant to § 265 (1) of Criminal Act No. 86 / 1950 Coll. on the sentence of imprisonment for a period of twenty-two months unconditionally. After being released from prison, the appellant was sentenced for a third time for a permanent denial of military service by a judgment of the Military District Court in Košice (the date of issue and the file number not listed) for four years in prison.
The appellant also stated in the proposal that he did not submit a review proposal under Act No. 119 / 1990 Coll., as amended, because he did not have any confidence in the Czechoslovak courts, nor did he have the necessary information. Only after the Constitutional Court had made substantial findings on the issue of criminal penalties for denying military service did the complainant seek to abolish the original judgments. He contacted the Minister of Justice of the Czech Republic in that connection to initiate a complaint for infringement of the law, but refused to use his right to lodge a complaint. Therefore, the appellant contacted the District Court in Karlovy Vary with a proposal to review the second conviction under Act No. 119 / 1990 Coll., as amended. The District Court in Karlovy Vary rejected the application as late as possible by order of 8.2.2000 sp. zn. On this basis, the applicant lodged a complaint rejected by the Regional Court of Pilsen by order of 4.4.2000 sp. zn. 7 To 145 / 2000.
The appellant considers that it fulfils all the conditions for rehabilitation, as specified in § 1 of Act No. 119 / 1990 Coll., as amended, and should therefore be acquitted of both punishment and guilt. However, the review procedure runs counter to the time limit laid down in Section 6 of Act No. 119 / 1990 Coll., according to which the proposal to initiate the procedure may be lodged no later than two years after the date of application of the Act. In the appellant's view, that period in the present case is contrary to the right to equality of entities before the law pursuant to Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), contrary to the right to hear a case under Article 36 (1) of the Charter and to the right to a fair trial under Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention'). The General Courts also infringed the complainant's rights enshrined in Article 40 (5) of the Charter and Article 4 (1) of Protocol No 7 to the Convention as they did not seek to deal with the breach of the principle of "ne bis in idem '. The appellant considers that his right to religious freedom has been violated, as guaranteed in Articles 18 and 29 (2) of the Universal Declaration of Human Rights and in Article 9 (1) and (2) of the Convention, as well as in Article 15 (1) and (3) of the Charter. Those claims are justified by the appellant by reference to Article 30 (2) and Article 33 (2) of Act No. 119 / 1990 Coll., as amended, and also by reference to Article 6 of Act No. 198 / 1993 Coll., on the illegality of the Communist regime and on its opposition, which do not contain any deadline for the submission of the proposal. The appellant further pointed out the finding of the Constitutional Court No 151 / 1999 Coll. and the practice of last resort justice relating to similar cases.
The Second Chamber of the Constitutional Court concluded that the alleged interference with the appellants' fundamental rights took place under the direct application of Article 6 of Act No. 119 / 1990 Coll., by order of 3.10.2000 sp. zn. II. The ÚS 281 / 2000 suspended the proceedings for the lodged constitutional complaints and the application for annulment of the contested provision of the Law on Judicial Rehabilitation referred to the plenary of the Constitutional Court for a decision pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic.
By order of the Constitutional Court of 19.10.2000 sp. zn. Pl. ÚS 26 / 2000, the application of the District Court in Litoměřice to abolish § 6 of Law No 119 / 1990 Coll. in case V. F. by that court under point 5 Ntr 2 / 99 was rejected for the obstacle to the case initiated.
By order of the Constitutional Court of 15.11.2000 sp. zn.
By order of the Constitutional Court of 28.11.2000 sp. zn.
By order of the Constitutional Court of 15 March 2001, sp. zn. Pl. ÚS 8 / 01, the application of the District Court of Olomouc to abolish Article 6 of Law No 119 / 1990 Coll. in the L. S. case led by that court under sp. zn. NT 227 / 2000 was rejected for an obstacle to the case initiated.
By order of the Constitutional Court of 20 February 2001 sp. zn. Pl. ÚS 56 / 2000, the application of the District Court of Olomouc to abolish Sections 6 and 33 (1) and (2) of Act No 119 / 1990 Coll., as amended, in Case P. Š., which was held by this Court under the Spanish judgment, was rejected.
In all the above cases, the appellants entitled under Article 35 (2) of Law No 182 / 1993 Coll. have the right to participate in the hearing of the earlier application in the case sp. zn. Pl. ÚS 46 / 2000 as interveners.
The Constitutional Court referred to the parties to the Chamber of Deputies of the Parliament of the Czech Republic and to the Senate of the Parliament of the Czech Republic, and to the interveners - the District Court in Litoměřice, the District Court in České Budějovice and the District Court in Olomouc - with a request for written observations on the application when the party to the proceedings is also the party to the proceedings who has issued the law or other regulation whose annulment is being proposed, and the intervener of the authorised appellant whose application has been rejected as inadmissible since the Constitutional Court is already acting in the same case.
The Chamber of Deputies of the Parliament of the Czech Republic stated in its observations that Law 119 / 1990 Coll. was approved by the necessary majority of Members of the Federal Assembly on 23 April 1990, signed by the relevant constitutional officials and was duly declared. The appellant considers that under Act No. 198 / 1993 Coll. no deadline for the submission of the application is set, whereas the rehabilitation law states the deadline in § 6. It concludes from this that the citizen requesting a review under the rehabilitation law is at a disadvantage compared to the citizen requesting a review under Act No. 198 / 1993 Coll. In the opinion of the Chamber of Deputies, this claim is not substantiated and it cannot be considered that Article 1 of the Charter has been infringed. Nor can it be agreed with the appellant's assertion that Article 6 of Law No 119 / 1990 Coll. is contrary to Article 36 (1) of the Charter, because the rehabilitation law in an attempt to eliminate the injustices which were caused by an unlawful conviction on the criminal justice sector and to provide moral satisfaction and adequate material compensation for the damage suffered provided for the possibility of claiming its right to all those who fulfilled the statutory conditions, which is fully in line with Article 36 (4) of the Charter. Nor can it be agreed with the alleged violation of the right to a fair trial under Article 6 (1) of the Convention. The fact that the appellant did not make use of the possibility of making a proposal under the rehabilitation law, arguing that he did not have confidence in the Czechoslovak courts and did not have the necessary information, cannot be considered a sufficient reason to abolish the contested provision. It was only up to the appellant's free will to take advantage of the possibility which our legal system gave him by approving the rehabilitation law (i.e. he had the right to have his affairs dealt with fairly and within a reasonable period of time by an independent and impartial court established by the law), and it was also up to him to obtain the necessary information, as all the other citizens concerned had the same conditions.
The Senate of the Parliament of the Czech Republic stated in its observations that the contested provision was adopted by the Federal Assembly of the Czech and Slovak Federal Republic on 23 April 1990, with effect from 1 July 1990, that is, even before the Senate was established. For this reason, the Senate cannot provide observations in the case at hand on the basis of the discussion of the provision in question.
In his observations, the District Court of Litoměřice stated that it considered that citizens are indeed, in the light of the application of the time limit laid down in Act 119 / 1990 Coll. and Act 198 / 1993 Coll., where there is no time limit, in factual inequalities, when such laws are corrected by the same or similar errors, errors and injustices. According to the Regional Court in Litoměřice, in view of the change in the view of the accession and the performance of military service after 1998 in view of its refusal from religious belief, it is appropriate to take a view on that deadline and to issue a relevant finding which could remove the delay in submitting the application.
The District Court in České Budějovice did not comment on the proposal within the deadline.
In its observations, the Olomouc District Court proposed that the application be granted.
The appellant's observations were served on the Constitutional Court, which delivered an opinion on the observations submitted by the parties and the interveners. The appellant underlines the inequality in the position of the appellants who submit the proposal pursuant to Article 4 of Act No. 119 / 1990 Coll., as amended, compared to the appellants who submit the proposal pursuant to Article 33 (2) of the same Act, and on 15 examples of defective rehabilitation decisions which have been annulled, it shows that its distrust of the Czechoslovak courts was justified.
After examining the application for annulment of Article 6 of Act No. 119 / 1990 Coll., as well as the opinions on the proposal, the Constitutional Court concluded, despite all reservations, that the application for annulment of the contested provision was not justified.
The contested provision of § 6 of Act No. 119 / 1990 Coll. reads:
(1) The proposal may be submitted no later than two years after the date of application of this law. If a review procedure has been initiated only on a proposal from the prosecutor and it has been withdrawn, the defendant may file a motion no later than one year after the date on which he was notified of the withdrawal.
(2) If, for important reasons, the beneficiary loses the time limit for the application to initiate proceedings, he may request a repayment within one month of the absence of the obstacle, but no later than three years from the date of application of this law. If the application to initiate the procedure has not yet been lodged, it should be accompanied by an application.
(3) The court to which the review procedure is due shall decide on the recovery of the time limit.
As is apparent from Article 1 (1) of Act No 119 / 1990 Coll., as amended, the purpose of the Act is to abolish a condemning judicial decision for acts which, contrary to the principles of a democratic society respecting civil political rights and freedoms guaranteed by the Constitution and expressed in international documents and international legal standards, referred to it as criminal, allow the rapid examination of the cases of persons so wrongfully convicted as a result of a breach of law in the criminal proceedings, to remove disproportionate hardness in the use of repression, to ensure the wrongfully convicted persons of social rehabilitation and adequate material compensation, and to allow the unlawful acts found to result of the consequences against persons who knowingly or gravely violated the laws in force.
The Constitutional Court therefore relied on the need to respect the will of the legislator as regards the fulfilment of the meaning and purpose of Act No. 119 / 1990 Coll., as amended, which is to mitigate the injustices committed during the period of infreedom.
It is a matter of the sovereign decision of the state to take rehabilitation and, if so, to what extent the injustices will be rectified. The Czechoslovak State, which after November 1989 decided to atone for the property and other injustices that occurred during the previous period as a result of the undemocratic procedures of the previous regime, decided to base itself on the principle of at least partial reduction of the injustices incurred, knowing that it was impossible to complete the rehabilitation or full compensation of those who had been damaged in the past. Each of the rehabilitation laws introduced a procedure for the application of claims, including a different determination of the deadlines for their application. Law 119 / 1990 Coll. was the first of the rehabilitation laws, the purpose of which, as is apparent from the above mentioned Paragraph 1 (1), was to allow a rapid examination of the cases of persons unlawfully convicted. On the other hand, the tendency to speed up the path to mitigate the consequences of injustices corresponds to an obvious tendency to define a certain timeframe for the application of rehabilitation claims.
In its proposal, the appellant contests violations of the following Articles of the Charter, the Convention and the Universal Declaration of Human Rights.
Charter of Fundamental Rights and Freedoms
Article 1: People are free and equal in dignity and in rights. Fundamental rights and freedoms are inalienable, inalienable, unbiased and unbreakable.
Article 15 (1): Freedom of thought, conscience and religion is guaranteed. Everyone has the right to change their religion or religion or to be without religion.
Article 15 (3): No one may be forced to carry out military service if this is contrary to his or her conscience or religion. Details shall be laid down by law.
Article 36 (1): Everyone may seek the law laid down in accordance with the procedure of his or her right before an independent and impartial court and, in specified cases, with another authority.
Article 40 (5): No one may be prosecuted for an offence for which he has already been convicted or acquitted. This principle does not preclude the application of exceptional remedies in accordance with the law.
Convention on the Protection of Human Rights and Fundamental Freedoms
Article 6 (1): Everyone shall have the right to have his or her affairs dealt with fairly, publicly and within a reasonable time by an independent and impartial court established by law, which shall decide on his or her civil rights or obligations or the validity of any criminal charges against him. The judgment must be declared publicly, but the press and the public may be excluded either for the entire or part of the process in the interests of morality, public order or national security in a democratic society, or where the interests of minors or the protection of the private life of the participants so require, or, to the extent deemed absolutely necessary by the court, if, in the light of special circumstances, the public proceedings could be prejudicial to the interests of justice.
Article 9 (1): Everyone has the right to freedom of thought, conscience and religion; that right includes the freedom to change their religion or belief, as well as the freedom to express their religion or belief alone or together with others, whether publicly or privately, by worship, teaching, performing religious acts and maintaining ceremonies.
Article 9 (2): Freedom of expression of religion and belief may be subject only to restrictions laid down by law and which are necessary in a democratic society in the interests of public security, protection of public order, health or morality or protection of the rights and freedoms of others.
Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms
Article 4 (1): No one may be prosecuted or punished in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been acquitted or convicted by a final judgment under the law and the criminal order of that State.
General Declaration of Human Rights
Article 18: Everyone has the right to freedom of thought, conscience and religion; that right includes the freedom to change your religion or faith, as well as the freedom to express your religion or faith alone or together with others, whether in public or by worship and by maintaining ceremonies.
Article 29 (2): Everyone is subject, in the exercise of their rights and freedoms, to such restrictions as the law provides solely for the purpose of ensuring the recognition and observance of the rights and freedoms of others and compliance with the fair requirements of morality, public order and the common good of democratic society.
The Constitutional Court does not consider the contested provision to be beyond both the constitutionally guaranteed right of access of an individual to the court enshrined in Article 36 (1) of the Charter and the right to a fair trial under Article 6 (1) of the Convention. The establishment of a time limit for the application of the proposal cannot be contrary to the principle of equality of citizens enshrined in Article 1 of the Charter, as this does not favour any social group at the expense of another, nor does it discriminate against any social group, but only gives rise to the need for the law to be applied within the prescribed period. Nor does the appellant's objections concerning the breach of the other rights claimed be justified by the Constitutional Court. As is apparent from the meaning of the provisions cited above, the provision of a time limit for the exercise of the right is without prejudice to those rights.
The Constitutional Court notes that its mission is to control constitutionality. In this context, this court can only abolish non-constitutional provisions or parts of them, but it is not its task to reparate the consequences of the failure by the appellant to exercise his right within the prescribed period. The abolition of time limits violates the rule of law because it significantly interferes with the principle of legal certainty, which is one of the fundamental essentials of the current democratic legal systems. The deadline itself cannot be unconstitutional. However, it may appear this way in the light of specific circumstances. The claim that the appellant did not have confidence in the Czechoslovak courts and did not have the necessary information does not relieve him of his obligation to comply with the applicable legal standards. The appellant's conduct is a subjective element on the basis of which the contested provision cannot be attributed to inconstitutionality.
From a legislative-technical point of view, it should finally be mentioned that compliance with the proposal would mean, without a positive adjustment, the absence of any time limit for the application of the rehabilitation proposal.
As regards the appellant's plea of infringement of the "ne bis in idem ', that is to say the principle that no one can be prosecuted for an act for which he has already been convicted or acquitted, it cannot be concluded that this objection cannot be accepted in relation to the application for annulment of Article 6 of Law 119 / 1990 Coll. In its proposal, the complainant essentially mixes the rights infringed by the 1957 and 1958 judgments with those infringed by the contested decisions.
All these considerations and facts therefore led the Constitutional Court to conclude once again that the existence of a law linked to a deadline does not mean that the law was restricted in an unconstitutional way.
The analysis shows that the applicant's right to claim his right in independent and impartial courts has been guaranteed, but the applicant has not exercised that right. The Law on Judicial Rehabilitation provided for a period of time within which the application could be lodged in § 6 and also provided for the possibility of waiving such a period. The basic fact that it could have been itself active in the case and that the decision was annulled in the review procedure leaves the complainant completely out of the question.
In view of the above, the Constitutional Court did not find the contested provision contrary to the constitutional order of the Czech Republic following the procedure, the grounds for the annulment of Article 6 of Act No. 119 / 1990 Coll. were not given and therefore rejected the proposal (§ 70 (2) of Act No. 182 / 1993 Coll.).
President of the Constitutional Court:
JUDr. Kessler v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 279 / 2001 Coll., on the application for annulment of § 6 of Act No. 119 / 1990 Coll., on judicial rehabilitation |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.08.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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