The Constitutional Court found No 299 / 1997 Coll.
The Constitutional Court found of 30 September 1997 on the application for annulment of Article 9 (4) of the Act of the Czech National Council No. 37 / 1989 Coll., on protection against alcoholism and other toxicomanities
Valid
The Constitutional Tribunal found
Text versions:
09.12.1997
299
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 30 September 1997 in plenary on the proposal of the Regional Court in Hradec Králové to repeal § 9 (4) of the Act of the Czech National Council No. 37 / 1989 Coll., on protection against alcoholism and other toxicomanias,
as follows:
Paragraph 9 (4) of the Act of the Czech National Council No. 37 / 1989 Coll., on protection against alcoholism and other toxicomanities, is deleted from the date of the declaration of the finding in the Collection of Laws.
Reasons
The Regional Court in Hradec Kralove, pursuant to the provisions of Article 95 (2) of the Constitution and Article 64 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, made an application for annulment of the provisions of § 9 (4) of the ČNR Act No. 37 / 1989 Coll., on protection against alcoholism and other toxicomanias. The Regional Court concluded that the above provision of Law No 37 / 1989 Coll. is contrary to Article 8 (6) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') and, therefore, in accordance with the provisions of § 109 (1) (b) of the Civil Code (hereinafter referred to as" the CoR') by order of 16 May 1997 No 30 Ca 67 / 97-8, suspended the proceedings concerning the review of the decision of the public authority.
The Regional Court in Hradec Králové is based on the fact that the District Office in Trutn by decision of 3 March 1997, sp. zdrav. Sr. 5 / 97-ST has imposed the obligation to submit to constitutional anti-alcoholic treatment in a psychiatric hospital, while the duration of treatment was left to the consideration of the preferred department of the psychiatric hospital. This decision was brought by Mr P. Z. in due time by an appeal requesting a review of the decision.
Before the order of the hearing in the case, the Regional Court in Hradec Králové found that the obligation to undergo the constitutional treatment was decided by the District National Committee, now the District Office. It further states that Article 8 (6) of the Charter specifies in which cases a person may be taken over or held in constitutional health care without his consent. Such a measure shall be notified to the court within 24 hours, which shall decide on that location within seven days. The application by the Regional Court in Hradec Kralove was accompanied by a file of 30 Ca 67 / 97.
At the invitation of the Constitutional Court, the Chamber of Deputies of the Parliament of the Czech Republic sent its observations. It imports that the Regional Court in Hradec Králové relies on the fact that, while Article 8 (6) The instruments of decision on the placement of a person in constitutional care are entrusted to the courts, the provision of § 9 (4) of the ČNR Act No. 37 / 1989 Coll. clearly states that the obligation to submit to constitutional care in cases of alcohol dependence is decided by the district national committee, now the district office.
Addiction to alcohol is treated in psychiatric treatment departments either outpatient or in the form of institutional care. Constitutional care of alcohol addicts is voluntary (self-registered) or compulsory on the basis of a decision of the District Office.
On compulsory alcohol treatment, these persons enter or avoid treatment without further delay. If a person who is dependent on alcohol avoiding treatment - even against his will - is transferred to a hospital providing constitutional care, he / she is obliged to notify the competent court within 24 hours of his / her taking over. The Court of First Instance shall decide, within seven days of the date on which the person was taken over without its consent, whether the person was taken over for legal reasons.
The Charter in Article 8 (6) provides that only the law provides in which cases a person may be taken over or held in constitutional health care without his consent. One of these cases is the regulation on compulsory constitutional alcohol treatment, decided by the District Office pursuant to § 9 (4) of the ČNR Act No. 37 / 1989 Coll. Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, it is ensured that admission to constitutional care must not be denied to healthcare institutions in the event of compulsory treatment. Similarly, it is not possible to early release the patient from compulsory treatment for reverse. Act No. 20 / 1966 Coll., on the care of the health of the people, as amended, as well as o. s. s., as amended, medical institutions which take over the person without his written consent into constitutional care are obliged - in accordance with the requirement of the Charter - to notify the court which subsequently decides to place such person in the medical institution. For this reason, the Chamber of Deputies of the Parliament of the Czech Republic considers that the procedure for placing persons in compulsory constitutional treatment under Section 9 (4) of the ČNR Act No. 37 / 1989 Coll. is not contrary to the Charter.
Act ČNR No. 37 / 1989 Coll. was approved by the necessary majority of legislative members on 28 March 1989, was signed by the respective constitutional officials of the Czech Socialist Republic and was duly declared.
Article 8 The Charter guaranteeing personal freedom in paragraph 6 shall stipulate that only the law provides in which cases a person may be taken over or held in constitutional healthcare without his consent. Such a measure shall be notified to the court within 24 hours, which shall decide on that location within seven days. Thus, the court alone is responsible for the final decision on this location, on the basis of the compulsory notification requirement of the competent medical establishment. The exception is the taking over and possession of a person in a medical facility ordered by a court in another proceedings (e.g. under Section 72 of the Criminal Act). Article 8 (6) of the Charter thus provides the basis for a detention procedure. On the basis of this, Act No. 20 / 1966 Coll., by Act No. 548 / 1991 Coll. of 5 December 1991, which in its substantive legislation § 23 (4) and in particular § 24 contains a footnote already a reference to Article 8 (6) of the Charter, at the time provided for by Constitutional Act No. 23 / 1991 Coll.
Paragraph 23 (4) of Act No. 20 / 1966 Coll., as amended, already quantifies the reasons why a sick person can be taken into constitutional care without his consent. These cases are as follows:
(a) in the case of diseases provided for in a specific regulation for which compulsory treatment may be imposed;
(b) if a person showing signs of mental illness or intoxication endangers himself or his surroundings;
(c) if it is not possible to obtain his consent due to the medical condition of the patient and it is urgent to save life or health.
Paragraph 24 of the Act then provides for a notification obligation of the competent medical institution to notify the court in whose jurisdiction it is based within 24 hours of the receipt of a sick person without his consent in constitutional care.
There was also an amendment of the o. s. Št., by Act No 519 / 1991 Coll. of 5 November 1991, when the new provisions entitled "Procedure for the admission to take over or hold in a health care institution" contained in Sections 191a to 191g were inserted into the law.
Judicial proceedings for detention under those provisions fall into two parts:
1. The procedure for the admissibility of a takeover to an institution where the legal reasons for such takeover are examined. The court shall rule by order within seven days. Authorised persons shall have the option of appeal but shall have no suspensive effect.
2. If the court has stated that the takeover of the person was in accordance with the legal grounds, it shall continue the procedure for declaring the admissibility of its further possession and the length of such possession. Here it already decides by judgment within three months.
The Constitutional Court was therefore forced to examine whether the provision of § 9 (4) of the ČNR Act No. 37 / 1989 Coll. is contrary to the judgment of Article 8 (6) of the Charter. § 9 (4) of the ČNR Act No. 37 / 1989 Coll. reads:
"(4) The regional national committee shall decide on the obligation to submit to, terminate, or, where appropriate, on subsequent outpatient care; the decision on the obligation to submit to constitutional custody shall be reviewed by the court on the basis of a request from the person to whom the decision relates, its guardian or a person close to it. ';
It should be noted that the law was issued in the old regime, but its wording in the incriminated part was not amended by amendments.
The provision cited thus confers a decision-making obligation on the administrative authority - the district national committee, now [pursuant to § 5 (1) (b) of the ČNR Act No. 425 / 1990 Coll., on the district offices, the regulation of their responsibilities and certain other measures related thereto] to the district office.
In this context, it is necessary to mention Article 13 (2) (b) of Decree No. 187 / 1989 Coll., which directly follows the provisions of § 9 (4) of the ČNR Act No. 37 / 1989 Coll. It states that health establishments provide institutional care to dependants on the basis of decisions of the District National Committee (now the District Office). Paragraph 9 (4) of the contested provision is also followed by the provisions of § 9 (7) and § 9 (5) of the Act, which further deals with data on the avoidance of constitutional care or termination of constitutional care.
The entire procedure is therefore duplicated under both the administrative and civil rules. Act No. 71 / 1967 Coll., on Administrative Procedure (Administrative Rules), also deals with appeal proceedings and Act No. 99 / 1963 Coll., as amended, refers to the review procedure of the Court (§ 247 (2) o. s. s.). The review procedure is then based on the available and not mandatory provisions of the parties.
In addition to the duplication of proceedings, there is also a transfer of jurisdiction in the present legal regulation. The administrative authority refers to § 247 (2) CS, i.e. to the head of the second part of the fifth Decision on actions against decisions of the administrative authorities. The decision whether the takeover took place for legal reasons, however, is entrusted by the Charter and the Law pursuant to § 191a et seq. For this purpose it was amended by the introduction of a separate chapter "Procedure for the admission to take over or hold in a health care institution."
Article 8 (6) of the Charter, which builds upon Article 5 (1) (e) of the Convention on the Protection of Human Rights and Fundamental Freedoms, refers to measures decided by the Court and not to decisions of other institutions. In fact, the amendment of the detention procedure (almost in literal text with the exception of certain deadlines) of the previously valid civil order (Act No. 142 / 1950 Coll.) was taken over. This provision was abandoned in connection with the adoption of Act No. 20 / 1966 Coll. Historically, we have a tradition of detention management dating back to the last century. The amended substantive regulation of Act No. 20 / 1966 Coll., which was discussed above, then fulfilled the first condition of Article 8 (6) of the Charter that only the law provides in which cases a person may be taken over or held in constitutional health care without his consent. The second condition must therefore be ensured. Article 8 (6) The Charter that the placing of a person without his consent in a health care institution is decided by the court.
Paragraph 9 (4) of Act No. 37 / 1989 Coll. is contrary to Article 8 (6) of the Charter and is unconstitutional. That is why the Constitutional Court has decided to abolish it.
This finding does not preclude the establishment of procedures for implementing the measure pursuant to § 23 (4) of Act No. 20 / 1966 Coll., as amended.
President of the Constitutional Court:
JUDr. Kessler v. r.
The right to give a different opinion on the finding in the report on the hearing and its connection to the decision, stating its name under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was exercised by Judge JUDr. Ivan Janů.
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Regulation Information
| Citation | The Constitutional Court found No. 299 / 1997 Coll., on the application for annulment of § 9 paragraph 4 of the Act of the Czech National Council No. 37 / 1989 Coll., on protection against alcoholism and other toxicomanias |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.12.1997 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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