Found at the Constitutional Court of the Czech Republic No. 32 / 1997 Coll.

The judgment of the District Court in Olomouc sp. zn. 7 T 14 / 95 of 24 February 1995 and the order of the Regional Court in Ostrava - Branch in Olomouc sp. zn. 2 To 130 / 95 of 22 March 1995 are hereby repealed.

On 12 April 1995, a constitutional complaint against the abovementioned decisions was served on the Constitutional Court. By judgment of the Olomouc District Court of 24 February 1995, sp. zn. 7 T 14 / 95, the complainant was recognised as a guilty criminal offence of the failure to engage in armed forces pursuant to § 269 (1) of the Criminal Code and sentenced to prison for 12 months unconditionally. The complainant brought an appeal against that judgment, together with his parents, in which he pointed out in particular that he had already been convicted of a permanent refusal of military service by a judgment of the same court, sp. zn. 32 T 76 / 94 of 4 May 1994, and that, therefore, the interpretation of the fact that he had committed the rejection of a repeated calling order for a new offence would in fact mean that anyone who, for any reason, missed the deadline for applying for a civil service pursuant to Article 2 (1) of Act No. 18 / 1992 Coll., on a civil service, as amended, could be punished practically continuously until the age of 60 when the law expires. He therefore applied for acquittal. This appeal of the Regional Court in Ostrava - the Olomouc branch by order of 22 March 1995 sp. zn. 2 This 130 / 95, according to Section 256 of the Penal Code, was rejected on the ground that it did not detect any defects which would negatively affect the security of the clarification of the case or the defendant's right of defence. In his view, the Court of First Instance found, without any doubt, that on 15 June 1994 the defendant had personally taken over the call order from the district military administration, which required him to take up military basic service on 7 July 1994 with the military department in L., which he did not do within 24 hours of the deadline set in the call order. As regards the defendant's objection to the non-acceptability of repeated criminal penalties for the same conduct, the court stated that it was a criminal offence of the same kind, but a completely different act, defined by completely different facts.

The complainant points out that, in particular, the contested decisions overlook the provisions of Article 15 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), according to which no one may be forced to carry out military service if this is contrary to his conscience or to his religion. It thus concludes that it cannot be forced to carry out military service or by any person who, for any reason, misses the deadline laid down in § 2 (1) (a) of Act No. 18 / 1992 Coll., as amended by Act No. 135 / 1993 Coll., since the Act provides for no further procedure in this case.

Furthermore, the complainant also contests the infringement of Article 40 (5) of the Charter as it has already been convicted of permanently refusing military service. In this context, it states that repeated prosecution is also contrary to the Convention on the Protection of Human Rights and Fundamental Freedoms. Therefore, at the end of the constitutional complaint, the complainant requests that the Constitutional Court declare that the contested decisions are contrary to Articles 15 (3) and 40 (5) of the Charter.

The constitutional complaint was supplemented by a submission dated 14 September 1995, in which the complainant's lawyer makes further arguments supporting his opinion, in particular pointing out that the Civil Service Act also creates inequality in that, whereas it allows soldiers in the reserve to submit a request for civil service repeatedly every year, the recipient cannot rectify one missed period. He also pointed out the historical context of efforts to do a service without weapons, experience and regulation of European countries. This submission is accompanied by the judgment of the Supreme Military Court of Trencin of 16 August 1995, which gives rise to a legal opinion which conforms to the complainant's view that a summons may be sentenced only once for not taking the service that he intends to avoid permanently. He then added the opinion of the Ministry of Labour and Social Affairs on the procedure for refusing military service.

The President of the Chamber of the Regional Court in Ostrava - the Olomouc branch essentially referred to the reasoning contained in the judgment of the Court of First Instance and in the statement of the Court of Appeal.

The Constitutional Court requested the file of the District Court in Olomouc sp. zn. 7 T 14 / 95, from which it found that the complainant had been served on 3 June 1992. According to the witness, J. L., Officer of the District Military Administration in K., he should have already stated in this proceeding that he had refused military primary and civil service on grounds of religious belief, and that he would rather go to prison. The latter statement was then made clear by the complainant to the effect that, on the question of J. L., whether he was aware that he could go to prison for not joining the service, he replied that he was aware of it. Furthermore, the Constitutional Court found that, by judgment of the District Court in Olomouc sp. zn. 32 T 76 / 94 of 4 May 1994, the complainant was recognised as guilty of the failure to engage in armed forces under Paragraph 269 (1) of the Criminal Act because, even though, on 16 June 1993, he had personally taken over the call order which he was ordered to take up on 1 July 1993 until 12: 00 p.m. military basic service at the military service in H., he did not enter the service, even within 24 hours of the deadline. For this offence committed by anyone intending to avoid a permanent military active service or a special service who does not engage in armed forces, the complainant was sentenced to prison for 12 months with a probation period of 15 months. This judgment became final on 4 May 1994. Furthermore, it follows from the file that on 15 June 1994 the complainant took over a further call order which required him to enter the military basic service on 7 July 1994 by 12.00 hours at the military department in L. The complainant did not enter at this time. He justified his actions by requesting a deferral of basic military service on 23 June 1994. However, this request was rejected by the District Military Administration in K. as unfounded. Since that authority refused to refer its appeal to the superior authority, the complainant turned to that authority directly. However, the High Court of Appeal also rejected his appeal to the headquarters of the 2nd Army Corps and his request for review of the decision outside the appeal procedure addressed to the Ministry of Defence was rejected. On 30 January 1995, a constitutional complaint was lodged against those decisions in the administrative proceedings, which, however, was rejected by the order of the Constitutional Court, sp. zn. I. ÚS 26 / 95 of 18 April 1995 as manifestly unfounded on the ground that the possibility of refusing military service on grounds of conscience or religious belief is governed by the Civil Service Act and therefore the procedure under this law cannot be replaced by an institution of suspension of military service based on different reasons of a temporary nature. In the meantime, on 19 December 1994, the complainant was informed of the charge for the offence of discharging the armed forces in accordance with Section 269 (1) of the Criminal Act, which he was supposed to have committed without the military service on 7 July 1994. He was then sentenced for this offence by the decisions which are the subject of this constitutional complaint to an unconditional prison sentence of 12 months.

At the oral hearing on 18 September 1995, the complainant's legal representative submitted a decision of the Ministry of Justice of 4 September 1995, indicating that his request for pardon was rejected by the Minister of Justice. The complainant then asks the court whether its activities after the conviction and its objections to the constitutional complaint concerning the irreversible time limits laid down by the Civil Service Act could be regarded as proof that the civil service would have taken up, had it been given, evasive, by stating that only then would it seriously consider and act within the limits of the law.

In the hearing he was further heard as a witness by J. L., an employee of the District Military Administration in K., who stated that the complainant expressly refused not only the military service but also the civil service. It submitted comments on 3 June 1992 as evidence of this. It follows from this document that the complainant stated that he belonged to Jehovah's Witnesses and that he rejected both military and civil service, although it is clear to him that he is likely to go to prison for this. In addition, the witness stated that all the recipients are fully informed of the possibilities of the civil service and of the formalities for the declaration they have to make in the event of the choice of such service and within what period. The witness also confirmed that, in several cases, the goaltenders reject military and civil service, arguing that the civil service is also a kind of repression, which contradicts their conviction. Furthermore, he confirmed that if someone currently comes from the execution of a sentence for not joining the armed forces and there are, for example, no medical grounds for reviewing his duty to military service, it is an obligation to call him back within the next time. Therefore, the penalty served is not a reason for a differentiated procedure.

The subject of a constitutional complaint shall be the judgments of the courts in criminal proceedings. If the constitutional complaint is argued that the law which brought about the facts which are the subject of this complaint is Act No. 18 / 1992 Coll., as amended, then the Constitutional Court does not share that view. It is clear from the evidence made that the facts which occurred, i.e. the condemnation of J. Ř. in criminal proceedings, were, as a result of his unequivocal will, neither military nor civil service, and not as a result of missing the period laid down by the Civil Service Act and therefore unable to carry out civil service, even if he wanted to. Nevertheless, the Constitutional Court considers it necessary to comment on these objections as well.

The Constitutional Court has no doubt that the Civil Service Act is a law the issue of which is provided for in Article 15 (3) of the Charter. The question may be whether the relatively very short time limits for the exercise of the right to an alternative service provided by the Civil Service Act (contrary to the previously applicable Act No. 73 / 1990 Coll., which did not set any time limits), in conjunction with the provision of § 2 (2) of this Act, according to which the declarations made after the time limits are not taken into account, do not deviate from the limits of constitutionality. The Civil Service Act is undoubtedly a law which limits fundamental constitutional law. The Constitutional Court shares the view already expressed by the plenary of the Constitutional Court of the CSFR under the sp. zn. Documents so clearly as to exclude the possibility of interpreting the law that it would restrict the implementation of the fundamental constitutional law in a way incompatible with the principles laid down in Article 4 (3) and (4) of the Charter or even make it impossible to implement it.

Although the constitutional basis of the civil service right is contained in Article 15 (3) of the Charter, its content must be interpreted in conjunction with Article 9 of the Charter, which clearly states that forced labour or services cannot be regarded as military service or other service provided by law rather than compulsory military service. In this context, it should also be mentioned that, in this respect, the Czech legislation goes beyond the European Convention for the Protection of Human Rights and Fundamental Freedoms, from which Article 4 (3) (b) clearly states that it is not an infringement of the Convention if the rule of law of a Member State does not recognise the refusal of military service by reason of conscience. Thus, the right to civil service has not been explicitly included in the catalogue of internationally recognised human rights. Thus, the modification of the Czech Republic can generally be characterised as an adjustment which requires everyone who has been recruited under a law of law to fulfil his duty as a soldier or as a civilian servant. Therefore, because of conscience, there can be no exemption from any service, as is sometimes required. The adoption of such an opinion would be in direct conflict with the principle of equality. In addition, it should be noted that the regulation in the Czech Republic is very liberal compared to other countries in particular in that it does not provide for any verification or comisional examination of the request for civil service and therefore whether or not it fulfils the military obligation is decided by a de facto mandatory citizen himself. A credible proof of the grounds for refusal is therefore not required, as it is not possible for a person who refused to carry out a military essential service to be summoned to that service if, by his behaviour, he clearly demonstrates that the alleged reasons of conscience were fictional and false.

If the Civil Service Act provides that citizens must not be given unjustified advantages against those performing essential or alternative military services or exercises, then it is logical to deduce that, if acts leading to avoiding any service are tolerated, the principle of equality is violated. In other words, in the rule of law, failure to comply with the statutory obligation must be sanctioned. It is for the State to determine the penalty and its kind, taking into account the nature of the offence. The law of the Czech Republic provides only for criminal penalties in the event of no military or civil service. It will be up to the legislator to consider whether it is really necessary to choose only this kind of penalty for such cases. In a state that wants to be a state of law, the legitimacy of criminal sanctions can only justify the need to protect fundamental values from acts that are particularly dangerous to society and where there is no other solution. The reform should therefore always be based on the principle of subsidiarity and minimisation.

The facts of the crimes of non-establishment in the armed forces are set out in the provisions of Sections 269 and 270 of the Criminal Code, the criminal offence of non-establishment of civil service in Sections 272a and 272b of the Criminal Act. The subject of a constitutional complaint is the judgments of the courts by which the complainant has been convicted of a criminal offence pursuant to Article 269 (1) of the Criminal Code. The facts of the offence contain a definition of fairly precise and specific, stating that anyone intending to evade a permanent military active service will not engage in armed forces within 24 hours of the expiry of the period laid down in the call for action will be punished by deprivation of liberty for one year to five years. Therefore, the intention to continue the service is an essential feature of this fact. This character will stand out even more when compared to the facts of the offence under Section 270 (1) of the Criminal Code, which is formulated by the person who, albeit negligently, does not take up the service of the armed forces within 24 hours of the expiry of the period laid down in the notice of call. Also, the penalty is significantly more lenient for this act, which is not aimed at permanent service (in prison for up to two years). The same is true of the difference between criminal offences under Section 272a of the Criminal Act, which regulates the deliberate permanent avoidance of civil service, and under Section 272b, which formulate the facts of the "simple" non-inclusion of civil service.

As is apparent from the constitutional complaint and from the evidence made, the complainant has been sentenced twice for the offence under the provisions of Section 269 (1) of the Criminal Code. For the first time for not joining the military department in H. in July 1993, for the second time for disobeying the call order about a year later. None of the courts doubted that these were the same and repeated offences, even though the complainant argued from the outset that he had clearly stated already at the first conviction that he had not taken up the service permanently, even though he was aware of the criminal consequences. This defence was not dealt with at all by the Court of First Instance, and the Court of Appeal considered it decisive to reject the defence that the latter did not take place at a different time and that the profession of service was taken to another place. In the Constitutional Court's view, the solution to this problem lies at the heart of the constitutional complaint.

The Constitutional Court's task is to assess for any constitutional complaint whether the interpretation of the legislation applied by the Court has not deviated from the constitutional limits. Even an interpretation that may appear to be legal at first sight may be so extreme that it deviates from the limits of constitutionality, given the particular circumstances. As is apparent from Article 4 (4) of the Charter, in the application of the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. In addition, the court which decides on the guilt and punishment for crimes must respect the principle set out in Article 40 (5) of the Charter and Article 4 (1). Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms, that no one can be prosecuted or punished for the same act repeatedly, namely the principle of "no bis in idem '. In the present case, the General Court did not doubt that this principle had not been infringed, and the complainant is of the opposite opinion.

After consideration of all the circumstances, the Chamber of the Constitutional Court concluded that, in the case of the complainant, the contested judicial decisions infringed the principle of "ne bis in idem 'and thus the abovementioned fundamental rights guaranteed by the Constitution. If the criminal law in Paragraph 269 (1) provides for a significantly stricter penalty for those who do not take up military service with the intention of avoiding it permanently, it is unacceptable to interpret that provision in such a way that it is in fact temporary or short-term. In such an interpretation, the frequency of offences would in fact be determined by the number of professions for service issued by a military authority. There is no doubt that, even after the condemning judgment for the first such act, a new call order can be served, but its failure to obey cannot be regarded as a new offence if, in the previous court proceedings, the intention of not continuing the service has been established. In the view of the Constitutional Court, the complainant only remained on his former will not take up the service. It is therefore the same act and the same consequence, and thus the same act and not the new act. This identity cannot undermine the change in the various circumstances that make the act individualised, in the present case the profession at a different time and place.

In order to oppose the contested judicial decisions with the principle of non-reproducibility of criminal penalties for the same act as provided for in Article 40 (5) of the Charter, as well as Article 4 (1) of Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms, the Constitutional Court had no choice but to repeal those decisions.

The Constitutional Court assumes that this fundamental decision will guide the general courts in the future decision on the measure of punishment for those who permanently refuse to perform military or civil service. In the opinion of the Constitutional Court, the applicable criminal law provides sufficient scope to penalise such an intensity in such cases in order to avoid an undesirable advantage for those who violate the law against those who fulfil their obligations. In doing so, the Constitutional Court believes that legislative power will consider enacting sanctions other than imprisonment.