The Constitutional Court found No 305 / 2021 Coll.
The Constitutional Court found of 27 July 2021 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
25.08.2021
305
FIND
The Constitutional Court
On behalf of the Republic
On 27 July 2021, the Constitutional Court decided, under sp. zn.
as follows:
I. On the day of the publication of this finding in the Collection of Laws, the provisions of § 52, paragraph 4, of the Second Law No. 169 / 1999 Coll., on the enforcement of a custodial sentence and on the amendment of certain related laws, as amended by Act No. 181 / 2011 Coll., amending Act No. 141 / 1961 Coll., on the Criminal Procedure (Criminal Code), as amended, and certain other laws, to the extent that they apply to the exclusion of the judicial review of the imposition of a disciplinary penalty under § 46 (3) (d) of that law.
II. The remainder is rejected.
Reasons
Definition of the case
1. Pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended (hereinafter referred to as" Law on the Constitutional Court'), the Supreme Administrative Court (hereinafter referred to as "Law on the Constitutional Court ') submitted an application for annulment of Article 52 (4) of Act No. 169 / 1999 Coll., on the execution of a custodial sentence and amending certain related laws, as amended, as amended by Act No. 181 / 2011 Coll.
2. The applicant submits an application for annulment of the provision in question in connection with the appeal proceedings against the order of the Municipal Court in Prague ("the Municipal Court ') of 27 November 2018 No 10 A 138 / 2018-12. By this decision, the Municipal Court dismissed the action under Article 46 (1) (d) of Act No. 150 / 2002 Coll., the Administrative Rules of Procedure (hereinafter referred to as" s. s.'), since it found that the decision imposing a disciplinary penalty was not subject to review pursuant to § 52 (4) of the Second Act on the enforcement of a custodial sentence and is therefore an inadmissible action pursuant to § 68 (e) (c) of the EC Treaty. It was denied by the refusal of the municipal court order. The plaintiff also claimed that the defendant had harmed him by the contested decision. The way in which proceedings are wholly contrary to the principles of secondary instance proceedings, according to the applicant, result in obvious discrimination, which gives rise to its right of action under the anti-discrimination law, including compensation for non-property damage.
Arguments of the appellant
3. The appellant concluded in the preliminary hearing that the issue of inadmissibility of judicial review under the provisions of § 52 (4), second sentence, of the Act on the enforcement of a custodial sentence in the case of a decision which may impose a disciplinary penalty of up to CZK 5 000 under § 46 (3) (d) of the Act on the enforcement of a custodial sentence and amending certain related laws, as amended by Act No. 276 / 2013 Coll., is contrary to the constitutional order or the right to a fair trial. It finds that the judicial exclusion is inconsistent with Article 36 (1) and (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'), in particular the right of access to the Court.
4. The appellant submits that, in order to determine whether, from the point of view of constitutional law, a "criminal case 'can be referred to, the so-called Engel criteria are traditionally used (cf. European Court of Human Rights judgment in Engel and Others v Netherlands, complaint No 5100 / 71). (b) the nature of the offence (s) and (c) the type and degree of severity of the penalty.
5. At the same time, the appellant recalls that the question of whether any of the decisions imposing a disciplinary penalty are decisions affecting fundamental rights and freedoms under the Charter or whether they are covered by Article 6 (1) of the Convention has already been dealt with by the Constitutional Court in the decision on the decision imposing a disciplinary penalty. This finding was annulled, on a proposal from the Supreme Administrative Court, by the provision of Paragraph 76 (6) of the Act on the execution of a prison sentence and amending certain related laws. This provision, with the exception of a decision to forfeit or prevent a case, excluded decisions given in disciplinary proceedings from judicial review. According to that finding, the flat-rate exclusion of decisions given in disciplinary proceedings from judicial review without differentiation in terms of interference with the fundamental human rights and freedoms of the sentenced is contrary to the constitutional guarantee of the right to judicial protection under Article 36 (1) and (2) of the Charter. It also does not comply with the criteria of the fair process guaranteed in Article 6 (1) of the Convention. In this context, the appellant referred, in particular, to points 32, 34 and 35 of the finding of sp. zn. Pl. ÚS 32 / 08.
6. According to the appellant, it is clear from the cited finding that the Constitutional Court found the provision in question of the law on the enforcement of a custodial sentence to be unconstitutional, precisely in view of the fact that it excluded from judicial review all disciplinary sentences (with the exception of the disciplinary penalty for the forfeiture of the case), including those which constitute a serious interference with fundamental rights and freedoms condemned beyond the limits laid down by the law on the enforcement of the sentence. However, the Constitutional Court also stressed that, in the case of decisions on disciplinary penalties which do not significantly interfere with the personal integrity of the sentenced, the legal exclusion from judicial review is permissible.
7. The appellant further submits that, following the finding of sp. zn. The decisions given in the disciplinary proceedings, which imposed disciplinary penalties pursuant to § 46 (3) (a) to (d) and (i) of the Act on the execution of a custodial sentence and amending certain related laws, as amended, excluded from the possibility of judicial review - i.e. including a fine of up to CZK 5,000 [§ 46 (3) (d)].
8. However, according to the appellant, this distinction and the legal exclusions provided for are no longer in accordance with the constitutional order. This is particularly the case in the context of the fact that, under the law in force, the disciplinary penalty for the forfeiture of a case [§ 46 (3) (e) of the Act on the execution of a custodial sentence and the amendment of certain related laws], the value of which may be even very low and may not therefore amount to CZK 1 000, is subject to judicial review in accordance with § 52 (4) of the First Act on the enforcement of a custodial sentence. On the other hand, in the case of a disciplinary penalty [§ 46 (3) (d) of the Act on the enforcement of a custodial sentence and amending certain related laws, as amended by Act No. 276 / 2013 Coll.], which can reach up to CZK 5 000, the judicial review pursuant to § 52 (4) of the Second Act on the enforcement of a custodial sentence is excluded. For what reason the legislator acceded to this distinction, according to the appellant, it is not clear from the explanatory memorandum to Act No. 181 / 2011 Coll., since the proposed regulation contained in § 52 (4) of the Act on the execution of a custodial sentence does not give any further indication.
9. The appellant notes that it cannot be seen, either, that the impact of the penalty on the person in the execution of the sentence is, from a subjective point of view, much more burdensome than in the case of a free person. It states that the amount of the disciplinary penalty in the present case is quite comparable to the penalty imposed on criminal offences. According to the Criminal Code, the criminal offence can be imposed by the court on the lowest money penalty in the total amount of CZK 2 000, while the prisoner for the conduct which is not a criminal, disciplinary and punishment up to 2.5 times higher. A comparison is also offered with sanctions for offences which enjoy protection in the administrative judiciary. In view of the symmetry of possible sanctions and the above-mentioned accent on the difference in the damage felt between a free person and a person whose freedom is limited, it is therefore not acceptable, according to the appellant, that, in the consequences of a much more severe penalty, which affects the property rights of the accused, as in the case of an offence, he should not enjoy the possibility of judicial review.
10. The appellant requests the annulment of the entire provision of Paragraph 52 (4) of the Act on the execution of a custodial sentence. The proposal justifies the fact that the first sentence of Paragraph 52 (4) of the Act on the enforcement of a custodial sentence by reference to § 46 (3) (e) to (h) of the same law sets out the types of disciplinary penalties which may be sought in court. For this reason, according to the appellant, it is not possible to propose the annulment of only the sentence of the second Paragraph 52 (4) of the Act on the enforcement of a custodial sentence in the part concerning the judicial lockout in the case of disciplinary penalties up to CZK 5,000 [i.e. in the part referring to § 46 (3) (d) of the Act on the enforcement of a custodial sentence and amending certain related laws, as amended by Act No. 276 / 2013 Coll.]. Such a proposal would not, according to the appellant, address the unconstitutionality of the judicial exclusions described above.
11. In conclusion, the appellant adds that, since, in the present proceedings, the Constitutional Court is entitled to abolish the contested legislation only, the full abolition of the inconstitutionality of the contested provision of Paragraph 52 (4) of the Act on the execution of a custodial sentence will subsequently require a positive response from the legislator, whose aim is to adopt a constitutional conformity review of the decision imposing disciplinary penalties. It proposes that the Constitutional Court should, at the same time, postpone the enforceability of the operative part of the order for the annulment of the contested provision in order to give Parliament of the Czech Republic sufficient time to adopt adequate and constitutionally consistent legislation.
Observations of participants and interveners on the content of the proposal
12. The Constitutional Court, pursuant to Section 69 of the Law on the Constitutional Court, requested the observations of the parties to the proceedings and the interveners and pursuant to Section 48 (2) of the Law on the Constitutional Court, the observations of the General Directorate of the Prison Service of the Czech Republic.
Observations of the Chamber of Deputies
13. For the Chamber of Deputies, the President of Mgr. Radek Vondráček, who stated that the valid text of Paragraph 52 (4) of the Act on the execution of the prison sentence was approved by Act No. 181 / 2011 Coll., amending Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, and certain other laws. He briefly summarised the course of the legislative process. The Chamber of Deputies discussed the proposal in the sixth parliamentary term as House Press No. 229. The bill was passed at 3rd reading on 6 May 2011 (of 151 Members present voted 113 in favour, 1 against), after approval by the Senate (as approved by the Chamber of Deputies), the adopted law was signed by the President of the Republic. Subsequently, the law was duly declared in the Collection of Laws. The President of the Chamber of Deputies further recalls that the text of the contested provision of Paragraph 52 (4) was not part of the government proposal, supplemented by an amendment adopted by the Constitutional Legal Committee (see House Press 229 / 1). In the written statement of reasons available to the members of the constitutionally legal committee, it was stated that the proposal is a response to the finding of the Constitutional Court published under No 341 / 2010 Coll., which repealed the provisions of Section 76 (6) of the Act on the Enforcement of Penalty and amending certain related laws.
Statement by the Senate
14. On 15 February 2021, President RNDr. Miloš Vyšl, who summarised the legislative process of adopting Act No. 181 / 2011 Coll., amending Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, and certain other laws which have incorporated the contested provision of Paragraph 52 (4) into the law on the execution of prison sentences and on the amendment of certain related laws. He pointed out that the legislation in question was not part of the original government bill, but was included in the amendment to the constitutional legal committee of the Chamber of Deputies. The justification for the chosen differentiation is therefore not part of the explanatory report on the draft law and was not even discussed at the Chamber of Deputies plenary. The Chamber of Deputies passed the draft Senate Law on 17 May 2011. The Guarantee Constitutional Legal Committee discussed the draft law on 25 May 2011 and recommended the Senate to approve it as referred to by the Chamber of Deputies. The President of the Senate also stated that, when discussing the bill on the Senate plenary, only a representative of the appellant who did not express his opinion on the subject of the regulation of Paragraph 52 (4) of the Law on the execution of the prison sentence, and the rapporteur of the Constitutional Court, Senator JUDr. Miroslav Antl, made an explicit point in the Senate plenary session, summarising that "the Constitutional Court's request on the possibility of judicial review of disciplinary sentences in the law on the execution of the sentence of deprivation, (...) stating that the disciplinary sentences imposed by the sentenced in the sentence of deprivation of liberty shall not be subject to review, and the amendment is now proposed for a more serious differentiation of disciplinary sentences which would be subject to judicial review of administrative misconduct, and less serious. Again, from a lawyer's point of view, this proposal, as the only one of the nine, is factually correct and corresponds to the finding of the Constitutional Court (...)." Finally, the President of the Senate states that the Senate approved the bill in the version referred to it by the Chamber of Deputies at its 9th meeting in the 8th term of office by Resolution No 223 of 8 June 2011. 45 of the 52 senators present have been elected to approve the bill; No one was against it. The assessment of the constitutionality of the contested provision leaves it entirely to the Constitutional Court.
Government observations
15. On 16 February 2021, the Minister of Justice and the Chairman of the Legislative Council of the Government of Mgr. Marie Benešová sent observations for the Government. It informed that at its meeting on 15 February 2021, the Government adopted Resolution 155 which decided not to use its right to intervene in the present proceedings before the Constitutional Court.
The Ombudsman's observations
16. It informed the Constitutional Court that it was exercising its procedural right under Paragraph 69 (3) of the Constitutional Court Act and that it was intervening. In his observations, he stated that he was in agreement with the proposal of the Supreme Administrative Court and his legal arguments. In addition to the legal assessment, he summarized that the decision on a disciplinary offence by which the prison administration will impose a fine on the sentenced person is undoubtedly in the nature of interference with property rights. The same is true in the case of the forfeiture of the case or in order to prevent cases which de lastata are subject to judicial review. At the same time, according to the Ombudsman, the application submitted in accordance with the case-law of the Constitutional Court on erosion is an exclusion from judicial review within the meaning of Article 36 (2) of the Charter. It therefore considers that, taking into account Article 36 (2) of the Charter and Article 6 (1), The Convention is inadmissible in the case of a decision imposing a disciplinary penalty. It proposes that the Constitutional Court comply with the proposal.
17. The guardian in addition to the above has put the issue of disciplinary punishment in the conditions of Czech prison in a broader context, especially in the light of the knowledge of his activities. His predecessors also dealt with other disciplinary penalties in the past. In particular, they examined whether other punishments, seen as less intense by both the prison administration and the courts, and thus constitutionally disqualified from judicial review, were in the legal sphere of the convicted, which they further elaborate.
18. The guardian considers that there is no need to worry about overcrowding the courts by prosecuting the review of disciplinary sentences. From the point of view of the often deprived prisoners, the court fee constitutes a relatively significant obstacle to access to the court. Not to mention the generally low willingness of prisoners to initiate similar legal proceedings. This is also related to the fact that the judicial review of disciplinary punishment places increased demands on the precision and administration of prison administration decision-making practices, which in the past most likely led to a relatively significant decrease in the frequency of disciplinary penalties imposed.
19. Finally, the Defender stated that the Government had already promised the Committee against Torture (CPT) in 2015 to prepare a comprehensive amendment to make the disciplinary procedure generally regulated in Act No. 293 / 1993 Coll., on the exercise of custody, as amended, or in the Act on the execution of prison sentences and on the amendment of certain related laws, as amended, and on the modification of selected disciplinary sentences. At the same time, decisions on the most serious disciplinary crimes would be moved to criminal proceedings. The government's promise to the protector has not yet been fulfilled, although it was repeated by the government in its comments on the report of the Committee against Torture from another visit to the Czech Republic in 2018. Although the Committee's criticism against torture was primarily of the current setting of the most serious disciplinary penalties, the promised comprehensive change of legislation opens up, according to the Ombudsman, sufficient scope for reflection on the change in the approach to judicial control of disciplinary penalties.
Observations of the Czech Prison Service
20. For the Prison Service of the Czech Republic, the Director-General of the Czech Republic sent a statement on 10 February 2021. PhDr. Petr Dohnal, who stated that he agrees with the proposal to abolish § 52 (4) of the Act on the execution of the prison sentence, both for the reasons set out in the appellant's argument and for the reasons set out in the statement of the Constitutional Court's finding of the Constitutional Court sp. v. Pl. ÚS 32 / 08. At the same time, he asked the Constitutional Court to give Parliament of the Czech Republic a sufficient period of time to adopt adequate legislation aimed at adopting a constitutionally conformal regulation of a differentiated review of the decision to impose disciplinary penalties if it were to conclude that the provision in question had to be abolished in the light of its unconstitutionality. Otherwise, in his view, the annulment of Paragraph 52 (4) of the Act on the execution of a custodial sentence could lead to a confusing interpretation of the parties to the review of disciplinary sentences, since, contrary to the former case law of the Constitutional Court, they would become a court unexamined en bloc.
21. The Constitutional Court did not consider it necessary to send the observations of the parties to the proceedings and the interveners to the applicant for a reply, as they had no objection to the application and, on the contrary, supported it.
Oral proceedings
22. The Constitutional Court has considered, in accordance with the provisions of Paragraph 44 of the Law on the Constitutional Court, that there is no need to conduct oral proceedings in the case, since it would in no way contribute to a further or more detailed clarification of the case than it had been aware of from the written acts of the appellant and the parties. The fact that the Constitutional Court did not consider it necessary to carry out the taking of evidence justifies the failure of oral proceedings.
Dedication and context of the contested provision
23. The contested provision of § 52 (4) of the Act on the execution of a prison sentence reads:
"(4) The review of the decision to impose disciplinary penalties under § 46 (3) (e) to (h) and the decision to prevent a case may be brought before a court under the conditions laid down by a special law to the same extent that such review is possible in infringement proceedings. Decisions given in disciplinary proceedings imposing disciplinary penalties under § 46 (3) (a) to (d) and (i) shall not be subject to review by the court. '
24. For the sake of clarity, the Constitutional Court also refers to the related provisions of Paragraph 46 (3) of the Act on the Enforcement of Penalties and the amendment of certain related laws, as amended, which lists the following types of disciplinary penalties:
"(3) The disciplinary sentences are:
(a) reprimand,
(b) a reduction in the allowance by a maximum of one third for up to 3 calendar months;
(c) a prohibition on the acceptance of one package in a calendar year;
d) fine up to CZK 5,000,
(e) forfeiture of the case;
(f) placing in a closed section for up to 28 days, except for the period specified for the tasks of the treatment programme;
(g) full day placement in a closed section for up to 20 days;
(h) placing in solitary confinement for up to 20 days;
(i) the withdrawal of benefits resulting from previous disciplinary fees. "
Terms and conditions of the formal assessment of the proposal
25. The Constitutional Court first examined whether all the legal procedural conditions for the examination of an application under Article 87 (1) (a) and Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court were met. The proposal clearly fulfils all the formal and content requirements laid down by the Constitutional Court Act.
26. The Constitutional Court then first examined the question whether the appellant was entitled to apply for annulment (in whole) of the provision of Paragraph 52 (4) of the Act on the enforcement of prison sentences. According to Article 95 (2) of the Constitution, if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court for consideration. The provisions of Paragraph 64 (3) of the Law on the Constitutional Court further extend this provision, according to which the application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution. In order for a general court to question the constitutionality of a particular law, or its individual provision and the case to be brought before the Constitutional Court, its real application is necessary and not only its hypothetical use or other broader context [cf. sp. zn. Pl. Pl. ÚS 33 / 09 (N 205 / 58 SbNU 827; 332 / 2010 Sb.), sp. zn. Pl. Pl. ÚS 11 / 10 (N 148 / 62 SbNU 277; 314 / 2011 Sb.), sp. Pl. ÚS 14 / 15 (N 22 / 80 SbNU 257; 87 / 2016 Sb.) and resolution sp. Pl. ÚS 12 / 08 (U 12 / 51 SbNU 823)]. In other words, it must be a law (part of it) that impedes the achievement of the desired (constitutional) outcome. If not removed, the outcome of the ongoing proceedings would be different [cf. sp. zn.
27. The key question is therefore whether or not the provisions of Paragraph 52 (4) of the Act on the execution of a custodial sentence have actually been or should have been applied by the appellant in the legal case in question, or to what extent. The appellant requests the annulment of the entire provision of Paragraph 52 (4) of the Act on the execution of a custodial sentence consisting of two sentences. The first sentence sets out the types of disciplinary penalties which may be subject to review in court by reference to § 46 (3) (e) to (h) of the Act on the enforcement of prison sentences. The second sentence establishes an exclusion from the judicial review of the decision to impose disciplinary penalties referred to in § 46 (3) (a) to (d) and (i) of the Act on the execution of a custodial sentence, including a fine of up to CZK 5,000. As mentioned above, in the case addressed by the appellant, this was a proposal to review the decision imposing a disciplinary penalty. In this case, the court was therefore solely required to assess whether the decision imposing a fine could be reviewed, as is apparent from the second sentence, and not to examine the admissible review of the decision imposing disciplinary penalties under § 46 (3) (e) to (h) of the Act on the enforcement of a custodial sentence, as set out in the first sentence. The Constitutional Court therefore concludes that the appellant will not apply the sentence of the first contested provision in its decision. In the appeal proceedings, only the sentence of the second contested provision will be applied, which also excludes the judicial review of the disciplinary penalty (i.e. a fine of CZK 1 000) imposed on the applicant in the case at hand.
28. Having regard to the wording of the exceptions to judicial review ["disciplinary sentences under § 46 (3) (a) to (d) and (i) '] The Constitutional Court could therefore, in view of the nature of the subject matter of the so-called specific control of constitutionality under Article 95 (2) of the Constitution, in conjunction with Article 64 (3) of the Law on the Constitutional Court, only examine the contested provision of Paragraph 52 (4), second sentence to the extent that it is applied by the appellant. In the remainder of that provision, the Constitutional Court rejected the application for the manifest illegality of the appellant under Paragraph 43 (1) (c) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll., since the remainder of the contested provision will not apply in points (a) to (c).
Assessment of the constitutional conformity of the legislative process
29. The Constitutional Court in the Intentions § 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., examined whether the contested provision had been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. In the case at issue, the Constitutional Court found, on the basis of the observations of the parties to the proceedings and from the public press (http: / / www.psp.cz), that the contested provision was adopted within the limits of the Constitution established competence and in a constitutional manner. Moreover, the appellant did not object to the legislative procedure.
Meritorious review of the proposal
General considerations
30. According to Article 6 (1) of the Convention, "[any] he has the right to have his case dealt with fairly, publicly and within a reasonable period of time by an independent and impartial court established by law, which shall decide on his civil rights or obligations or on the validity of any criminal charges against him '. The issue of the right to fair trial within the meaning of the right of access to the Court is addressed in the application of Article 6 (1) of the Convention by the case law of the European Court of Human Rights (hereinafter referred to as" the ECHR'). The right to a fair (orderly) process, the essential component of which is the right to be heard by an independent court, occupies a prominent place in a democratic society (cf. Case 9186 / 80 De Cubber v Belgium, for example).
(31) In the Engel and Others judgment against the Netherlands (complaint No 5100 / 71), the ECHR set out the test to be applied in the assessment of the nature of the sanction and attempted to draw a line between "criminal" and "disciplinary" areas. According to its conclusions, it is necessary, first of all, to establish whether the provision defining the offence falls under the legal system of the defendant State in the field of criminal law, disciplinary (disciplinary) law or both at the same time. However, this is only a basic starting point. The substance of the offence itself is of greater importance, but in particular the rigour of the sanction that is threatening the person concerned. In the case of Engel, sanctions have been assessed in the form of a simple and intensified ban on going out, transfer to the disciplinary unit and temporary strict barracks imposed on persons performing basic military service in the Netherlands. The penalties imposed against the disabled were resisted by complaints lodged with the competent superior, the decision of which was subsequently reviewed by the Supreme Military Court. The ECHR pointed out in the present case that the penalties imposed would undoubtedly be regarded as deprivation of liberty if imposed on a civilian. But if they are saved to a soldier, they may lack that character. Scope of Article 6 (1) The conventions are not subject to disciplinary penalties imposed in the course of military service only if they "do not exhibit restrictions that clearly deviate from the normal living conditions of the armed forces'. On the basis of this criterion, the ECHR has recognised the sanctions imposed on a strict barracks prison and the transfer to a disciplinary unit, not a simple or enhanced ban on going out. He stated that" it is not enough for the State to qualify as disciplinary in order to exonerate itself from the fundamental responsibility of providing a fair trial in criminal matters. "
32. Another decision by the ECHR in this area is the Campbell and Fell judgments against the United Kingdom (complaint Nos 7819 / 77 and 7878 / 77). Here, he dealt with the line between disciplinary and criminal matters and in the prison environment and stated: "The Convention does not prevent states from creating or maintaining differences between criminal and disciplinary law and to set boundaries between them. However, this does not imply that the classification thus determined will be decisive from the point of view of the Convention (...) justice cannot be stopped at the gates of the prison and prisoners cannot be deprived of the protection of Article 6 of the Convention. For this reason, the principles set out in Engel and others against the Netherlands and in the prison environment apply. '
33. The Constitutional Court also recalls in this connection the other caselaw of the European Court of Human Rights (e.g. Lauko v Slovakia, Case 26138 / 95, or Kadubec v Slovakia, Case 27061 / 95), according to which in cases where the complainant did not have the opportunity to have the judgment of the infringement examined by an independent and impartial court, the complainant's right to discuss his case was infringed by an independent and impartial court pursuant to Article 6 (1) of the Convention. In the Lauko / Slovakia judgment, the ECHR dealt with the judicial review of the fine for the offence against civil cohabitation imposed under Paragraph 49 of the then applicable Slovak law on infringements. In view of the amount of the fine (300 then Slovak kronor), the decision to impose a fine on an offence was not revisable in the administrative justice system, since the then Slovak law laid down a limit of 2 000 Sk from which the administrative decision could be examined in court. The ECHR has unanimously decided that Article 6 (1) of the Convention has been infringed.
34. According to Article 36 (2) of the Charter '[k], until it claims that it has been reduced in its rights by a decision of a public authority, it may appeal to the court to examine the legality of such a decision, unless otherwise provided for in the law. However, the review of decisions relating to fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court.' The Constitutional Court has dealt with this issue several times in the past with the exclusion of judicial review in the imposition of penalties. The following conclusions are drawn from the recap of this caselaw.
35. Compliance with the guarantees contained in Article 6 (1) of the Convention from the point of view of judicial review has been dealt with by the Constitutional Court in the context of decisions on fine-tuning. In the finding sp. zn. Pl. ÚS 28 / 98 (N 161 / 16 SbNU 185; 2 / 2000 Sb.) found that the refusal to review decisions of public authorities was not possible in the case of decisions concerning fundamental rights and freedoms under the Charter, the Constitution and the international conventions referred to in Article 10 of the Constitution. Any other procedure is contrary to Article 36 (2) of the Charter and Article 4 of the Constitution.
36. Following the case-law of the ECHR in Lauko v Slovakia and Kadubec v Slovakia, the Constitutional Court, by finding sp. zn. The Constitutional Court stated in this finding: "In the first Convention, Article 6 (1) of the First Convention provides for offences for which a fine of more than CZK 2,000 or a prohibition of action cannot be imposed. Therefore, the provision of Article 83 (1) of Act No. 200 / 1990 Coll., on infringements, as amended, which excludes from judicial review a judgment on an offence for which a fine of more than CZK 2 000 or a prohibition of action cannot be imposed, except where a forfeiture of a case has been declared or prevents a case of value exceeding CZK 2 000 is contrary to the provisions of Article 6 (1) of the first Convention." In assessing the constitutionality of administrative punishment, the Constitutional Court stressed that the person concerned must be able to request a review of the decision by the court. The review may not be refused where it concerns decisions relating to fundamental rights and freedoms under the Charter, the Constitution and international treaties under Article 10 of the Constitution.
37. On the judicial review of decisions given in disciplinary proceedings during the execution of the sentence of imprisonment, the Constitutional Court stated in the decision sp. zn. The Constitutional Court, by this finding on a proposal from the Supreme Administrative Court, annulled the then provision of Paragraph 76 (6) of the Act on the enforcement of a custodial sentence and amending certain related laws, as amended by: "Save as otherwise provided in that Act, decisions given in disciplinary proceedings shall not be subject to review of the court '. This provision, with the exception of a decision to forfeit or prevent a case, excluded decisions given in disciplinary proceedings from judicial review. According to the cited finding, the flat-rate exclusion of decisions given in the disciplinary proceedings from judicial review without their differentiation in terms of interference with fundamental human rights and freedoms of the sentenced is contrary to the constitutional guarantee of the right to judicial protection under Article 36 (1) and (2) of the Charter (paragraphs 29, 32 and 34 of the decision sp. zn. Pl. ÚS 32 / 08). It also does not comply with the criteria of the fair process guaranteed in Article 6 (1) of the Convention (point 34 of the sp. zn. Pl. ÚS 32 / 08).
38. Following this, the Constitutional Court stated that "[p] the settlement of a complaint against the imposition of disciplinary sanctions by the Prison Service authorities did not meet the requirements for the protection of rights against an impartial and independent tribunal. Denial of judicial protection is not in accordance with Article 36 (2) Documents possible in the case of decisions concerning fundamental rights and freedoms. The inconstitutionality of the provisions of Section 76 (6) of Law No 169 / 1999 Coll. is reflected in the fact that, on the basis of that provision, decisions given in disciplinary proceedings are excluded from judicial review on a flat-rate basis, with the sole exception of property (...). Indeed, the impact of certain disciplinary penalties constitutes a serious interference with fundamental rights and freedoms condemned beyond the limits laid down by the law on the enforcement of prison sentences. Decisions by which such disciplinary sentences have been imposed cannot be excluded from judicial review in situations where they concern fundamental rights and freedoms (Article 36 (2) of the Charter). Thus, the judicial review may rule out the libel in the imposition of certain of the most serious disciplinary penalties and thus exclude their adverse consequences for the possible decision on the suspension of the sentence '(point 32 of the decision sp. zn.
39. Finally, the Constitutional Court pointed out that "[c] the aim is not to obtain judicial review of all disciplinary sentences, but only to those who significantly interfere with the personal integrity of the sentenced. This procedure allows for the Charter in Article 36 (4). In the present case, the introduction of a broader judicial review would not paralyze the activities of the Prison Service authorities and would not affect the operationality and effectiveness of the disciplinary penalties imposed, because the law on the enforcement of the custodial sentence does not give rise to complaints against the decision to impose a disciplinary penalty (with the exception of the disciplinary penalty for forfeiture of the case), nor does it have suspensory effect for this area nor does the administrative action" (point 35 of the decision to impose a disciplinary penalty, p.
40. Subsequently, the Constitutional Court dealt with the nature of the reprimand as a disciplinary sentence under § 46 (3) (a) of the Act on the execution of a custodial sentence and amending certain related laws, only in refusal resolutions (e.g. sp. zn. I. ÚS 1785 / 08 or sp. zn. I. ÚS 2290 / 17; available at https: / / nalus.ujud.cz). In Resolution sp. zn. I. ÚS 3688 / 14 (U 3 / 76 SbNU 941), he stated, inter alia, that it was "one of the most moderate punishments if (subjectively viewed) not quite the least known by the law on the enforcement of prison sentences. In this context, the Constitutional Court considers that such a disciplinary offence and the imposition of such a sentence certainly do not fall within the concept of criminal charges' which would have to be decided by a judicial authority as required by Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms. For its different character and consequences, the disciplinary offence currently under assessment cannot be compared to criminal offences or administrative offences. The disciplinary offences of prisoners, as well as the penalties imposed, are of lower intensity than the criminal sanctions and aim to ensure normal order and discipline in prisons. One of their main functions is (negative) an incentive to fulfil the obligations laid down by law and internal rules, namely those persons who have already been convicted of the restriction of personal freedom by the ordinary court. 'The Constitutional Court concluded that" the proceedings for the imposition of a disciplinary penalty in the form of reprimand cannot be relied upon to protect the right to a fair trial, either in the form guaranteed by Articles 36 to 40 of the Charter or in the form protected by Article 6 of the Convention.
Application to the case under assessment
41. In assessing the constitutionality of the contested part of the provision of the second sentence of Paragraph 52 (4) of the Law on the enforcement of a custodial sentence in respect of the constitutional guarantees of a fair (due) process, the Constitutional Court, having regard to the provisions of the recap of the case-law of the European Court of Human Rights and the Constitutional Court, has reached the following conclusions. In accordance with Article 1: The Constitution is a sovereign, united and democratic rule of law based on respect for the rights and freedoms of man and citizen. Fundamental rights and freedoms are protected under Article 4 of the Constitution. The right to judicial protection is without doubt among the fundamental features of the rule of law.
42. Article 36 (2) The Charter states that anyone who claims to have been shortened on his rights by a decision of a public authority may appeal to the court to examine the legality of such a decision, unless otherwise provided for in the law. However, it must not be excluded from the jurisdiction of the court to review decisions relating to fundamental rights and freedoms under the Charter [see, to this effect, the find sp. zn.
43. The basic question to consider is whether the decision to impose a disciplinary penalty of up to CZK 5,000 pursuant to § 46 (3) (d) of the Act on the execution of a custodial sentence and to amend certain related laws, as amended by Act No. 276 / 2013 Coll., constitutes a decision which affects fundamental rights and freedoms under the Charter. From the text of the articles of the Charter below it can be concluded that this is the case. Article 1 of the Charter provides that people are free and equal in dignity and rights. The Charter lays down the principle that legal restrictions on fundamental rights and freedoms must apply equally to all cases which fulfil the conditions laid down. When applying the provisions on the limits of fundamental rights and freedoms, their substance must be investigated and such restrictions must not be misused for purposes other than those for which they have been established (Article 4 (3) and (4) of the Charter).
44. Moreover, as the Constitutional Court has already pointed out in the finding of the sp. zn. As a matter of principle, during the execution of the sentence, convictions are required to comply with such restrictions on rights and freedoms, the exercise of which would either be contrary to the purpose of the sentence or which cannot be enforced in relation to the execution of the sentence. The law examines the rights and freedoms which are limited and which the sentenced person is deprived of during the execution of the sentence. It follows that any further restrictions on rights and freedoms go beyond those laid down in the law, which are quantitatively calculated. Some disciplinary decisions may, depending on the nature and gravity of the sanction, be a significant interference with fundamental rights and freedoms by such further restrictions as may be imposed on the defendant. Such a decision must also be regarded as a disciplinary sentence, which punishes the sentenced to up to CZK 5,000, as it concerns the constitutional right to own property pursuant to Article 11 (1) of the Charter. Therefore, it cannot be excluded from the judicial review, as the Constitutional Court has already stated in the find of sp. zn. Pl. ÚS 32 / 08.
45. The contested provision of the second sentence of Section 52 (4) of the Act on the execution of a custodial sentence, which provides for an exclusion from the judicial review of the disciplinary penalty of up to CZK 5 000, also fails to respect the principles underlying the ECHR case law in the interpretation and application of Article 6 (1) of the Convention. According to that provision, any person has the right to have his case dealt with fairly, publicly and within a reasonable period of time by an independent and impartial court established by a law which decides on his civil rights or obligations or on the validity of any criminal charges against him.
46. The Constitutional Court accepts the appellant's argument, which pointed to a comparison with the judicial review of the fines imposed by the administrative authorities for offences which fully benefit from administrative protection. In view of the symmetry of possible sanctions and the above-mentioned accent on the difference in the damage felt between a person on the free side and a person whose freedom is limited, it is therefore not possible, in the light of the consequences of a much more severe penalty, to use the possibility of judicial review, as is the case in the case of an offence, the right to own the property of the sentenced person.
47. The second sentence of the contested provision of § 52 (4) of the Act on the enforcement of a custodial sentence therefore, in so far as it relates to the exclusion of the judicial review of the imposition of a disciplinary penalty pursuant to § 46 (3) (d) of the Act on the enforcement of a custodial sentence and to the amendment of certain related laws, as amended by Act No. 276 / 2013 Coll., could not, in view of its compliance with the constitutional order, namely the constitutionally guaranteed right of access to the court, be maintained. On the basis of those findings, the Constitutional Court concluded that the contested provision is contrary to Article 36 (2) of the Charter to that extent.
Conclusion
48. The Constitutional Court therefore concludes, for the reasons set out above, that the application is justified in the part which satisfies the procedural conditions of the procedure and therefore, pursuant to Paragraph 70 (1) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., as stated in operative part I.
49. In the remainder of the Constitutional Court, the Constitutional Court rejected the application under Paragraph 43 (1) (c) of the Law on the Constitutional Court, as amended by Act No 77 / 1998 Coll., as a proposal made by someone manifestly unauthorized (operative part II).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 305 / 2021 Coll., on the application for annulment of Paragraph 52 (4) of Act No. 169 / 1999 Coll., on the execution of the prison sentence and on the amendment of certain related acts, as amended by Act No. 181 / 2011 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.08.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Criminal law
Criminal law
The regulation text is for informational purposes only.
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