The Constitutional Court found no 341 / 2010 Coll.
The Constitutional Court's finding of 29 September 2010, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
03.12.2010
341
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court, under sp. zn. Pl. ÚS 32 / 08, decided on 29 September 2010 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Jana, Vladimir Krok, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Administrative Court of 10 November 2008 on the abolition of § 76 (6) of Law 169 / 1999 Coll.
as follows:
Paragraph 76 (6) of Act No 169 / 1999 Coll., on the enforcement of a custodial sentence and on the amendment of certain related laws, as amended by: "Unless otherwise provided for by that law, decisions given in disciplinary proceedings shall not be subject to review by the court. 'shall be deleted on 30 June 2011.
Reasons
1. The Supreme Administrative Court has filed an application for annulment of the above mentioned text § 76 paragraph 6 of Act No. 169 / 1999 Coll., on the execution of a prison sentence and on the amendment of certain related laws, for a conflict with the constitutional order of the Czech Republic. He did so in connection with the decision on the appeal complaint against the defendant of the Prison Service of the Czech Republic, lodged against the order of the Municipal Court in Prague dated 19.10.2006 No 10 Ca 297 / 2006-23, which rejected the action of A. Ž. against the decision of the Prison Service of 21.10.2004. By this decision, the claimant was sentenced to disciplinary action pursuant to § 46 (1) and § 3 (f) of Act No. 169 / 1999 Coll., on the execution of the sentence of imprisonment and on the amendment of certain related laws (hereinafter referred to as the "Act on the enforcement of the sentence of imprisonment '), consisting of placing in a closed ward for a period of 5 days. The decision was based on the grounds that the applicant infringed Articles 28 (2) (j) and (3) (b) of the Act on the enforcement of a custodial sentence because it owned unauthorised items which could harm health or endanger life by nature.
2. The applicant lodged a complaint against the decision to impose disciplinary action, which was rejected by the Prison Service decision of 21 October 2004. The applicant's decision was contested by an administrative court action because he did not agree with the conclusion of the Prison Service that the conditions for imposing that disciplinary sentence were met. By order of 19 October 2006 No 10 Ca 297 / 2006-23, the Municipal Court in Prague refused his application. He referred to the legislation in Section 76 (6) of the Act on the execution of a prison sentence according to which decisions of the Prison Service in disciplinary proceedings, with the exception of disciplinary penalties for forfeiture of a case and a decision to prevent a case, are excluded from judicial review. On the basis of this jurisdiction, the application was dismissed as inadmissible under § 46 (1) (d) of Act No. 150 / 2002 Coll., by the Administrative Rules.
3. Against this order of the Municipal Court in Prague, the applicant lodged a complaint alleging that the exclusion of a judicial review of the case concerning the imposition of a disciplinary sentence would be contrary to Article 36 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter '). This is a penalty imposed by an administrative authority which affects the effective tightening of the execution of the prison sentence. In particular, it prevents the possibility of being transferred to a prison with a more moderate regime under § 39b of the Criminal Code. A further consequence is the prohibition of parole of prison sentences.
4. The Supreme Administrative Court ("the appellant '), in its preliminary legal assessment of the case, concluded that the provision of Paragraph 76 (6) of the Act on the enforcement of a custodial sentence excluding decisions given in disciplinary proceedings (with the exception of the disciplinary penalty for forfeiting the case and the decision to prevent the case) from judicial review, is contrary to the constitutional order of the Czech Republic. Therefore, pursuant to Article 95 (2) of the Constitution of the Czech Republic and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as" the Law on the Constitutional Court'), he submitted an application for annulment of that provision for the following reasons.
5. Persons serving a custodial sentence shall be required to comply with the enforcement regime in accordance with a final judgment given in criminal proceedings. Although this punishment is traditionally called a 'prison sentence', it is essentially a restriction of personal freedom, the degree of which is given by law. This conclusion is based on the text of the law on the enforcement of a custodial sentence, which distinguishes in Paragraph 27 between the restriction and the waiver of certain rights during the execution of that sentence. Other measures that interfere with the rights of the convicted are only allowed once again within the limits defined by law. The process of storing them, given their severity, should not lack adequate defence tools, eliminating any degree of insolence or inadequacy.
6. The present case concerns an assessment of the disciplinary sentence imposed on the sentenced person in the course of the execution of the prison sentence of the Czech Republic in relation also to Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '). The appellant referred to some of the decisions of the European Court of Human Rights (hereinafter referred to as" the ECHR') in this area. The test applied by the ECHR to assess the nature of the sanction, i.e. whether a penalty is "criminal ', was formulated in the judgment of the Court of Justice in Engel and Others v Netherlands of 8 June 1976. In it, the ECHR attempted to draw a line between" criminal' and "disciplinary 'areas. In the judgment in Campbell and Fell v United Kingdom of 28 June 1984, Series A No 80, the ECHR dealt with the line between disciplinary and criminal matters in the prison environment and found that the principles laid down in the Engel judgment also apply in the prison environment.
7. According to the appellant, the similarity between the penalties imposed in the course of the execution of the sentence pursuant to § 43 (1) (sic - rightly: § 46 (3) (f), (g), (h) of Law No 169 / 1999 Coll. and the penalties recognised by the ECHR as falling under Article 6 (1) of the Convention. The current system of appeals against the decisions to impose disciplinary penalties imposed pursuant to Article 46 (3) (f), (g), (h) of the Act on the execution of prison sentences is thus manifestly contrary to Article 6 (1) of the Convention. The appellant pointed out that in the ECHR's decision "Engel and Others v Netherlands', the Supreme Military Court decided in the last national instance in proceedings concerning a complaint against disciplinary penalties. Complainants were thus granted protection in the next stage of the review before a judicial authority (even if it was a military court), compared with the legislation in the Czech Republic.
8. The appellant pointed out that a complaint lodged pursuant to Article 52 of the Code on the execution of a prison sentence, decided by the warden (or an authorised member of the Prison Service), cannot, in relation to the gravity of some of the penalties imposed, be regarded as adequate protection to guarantee an independent review of the disciplinary sentence imposed. The appellant does not consider the possibility of defending the defendant's rights with the SA as being equivalent to that of the defendant in court proceedings where the defendant does not have the position of a party to the dispute. Nor can the Ombudsman's supervision, due to the "optional" nature of his recommendation, which the Prison Service may not accept at all, be regarded as a full protection of his rights. Therefore, the issue of the provision of Section 76 (6) of the Act on the enforcement of a custodial sentence is the exclusion of judicial review for all disciplinary sentences (except for the forfeiture of the case), without further differentiation according to the gravity and consequences of which at least some of these sentences interfere with fundamental rights and freedoms under the Charter, so that their review should not be excluded from the jurisdiction of the court on a flat-rate basis.
9. Thus, the right of a sentenced person to freedom of movement and residence is limited only, as expressly provided for in Section 27 (2) of the Act on the execution of prison sentences. According to the appellant, a sentenced person cannot be subjected to arbitrary, arbitrary or abuse of the status of Prison Service staff in the course of the sentence of imprisonment. In the event of the imposition of a detention sentence in a closed ward or solitary confinement, significant interference in the law protected by Article 7 (2) of the Charter could occur (in the presence of these negative phenomena), under which no one may be tortured or subjected to cruel, inhuman or degrading treatment or punishment. There could also be a breach of Article 10 (1) of the Charter, according to which everyone has the right to maintain his human dignity. The appellant also referred to the provisions of Paragraph 27 (4) of the Act on the execution of a custodial sentence, under which: "The court shall decide on the restrictions to be applied against the sentenced person in the execution of the sentence against which the prosecution is being prosecuted and, if the grounds for the detention are fulfilled, the court shall decide under a special law." It is therefore a question of whether this provision is directly contrary to Paragraph 76 (6) of the same Law.
10. The appellant also pointed out the inconsistency of the legislator's procedure, which explicitly allowed judicial review only in the event of the imposition of a disciplinary penalty for the forfeiture of a case (Section 52 (4) of the Act on the enforcement of a custodial sentence). The result is a situation where, under current legislation, it is possible to examine the correctness of the imposition of a disciplinary penalty for forfeiting a case of poor value, but this possibility is excluded, for example, when preventing a high-value package from being adopted or when deciding to place itself in solitary confinement. It is also impossible to overlook the impact of the disciplinary measure imposed on the decision on a possible conditional release of the sentenced. According to established judicial practice, when deciding on a request for conditional release, the court takes account of the conduct of the court during the execution of the sentence. The imposition of a disciplinary sentence thus determines the court's consideration of the defendant's conduct. In the event of refusal, a further application for conditional release may not be lodged until one year.
11. In accordance with the provisions of Section 69 (1) of the Constitutional Court Act, the Constitutional Court requested the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
12. The President of the Chamber of Deputies stated briefly that the contested provision of the law on the enforcement of prison sentences has remained unchanged since its adoption. According to the Government's proposal, Paragraph 76 (6) of Law No 169 / 1999 Coll. was worded as follows: "Decisions given in disciplinary proceedings are not subject to review by a court; This shall not apply to a decision to forfeit or to prevent items whose review may be sought to the extent and under the conditions laid down in a specific regulation. '; (This special provision is the Civil Code) On the basis of the amendments contained in the resolutions of the Committee on Petitions and the Committee on Defence and Security, Paragraph 76 (6) has been amended to the present date. The explanatory memorandum to the provisions of Paragraph 76 (6) referred, in relation to the exclusion of decisions given in disciplinary proceedings from judicial review, to the (then) wording of § 248 (2) (f) of the Civil Code.
13. Similarly, the President of the Senate of the Parliament of the Czech Republic stated that the contested provision was not subject to any legislative amendment during its period of validity. While Senate committees have taken different positions on the draft law, it has focused mainly on the issue of newly introduced or altered legal institutions for the execution of prison sentences. The issue of judicial review of decisions given in disciplinary proceedings was not specifically addressed by the legislator.
14. The Constitutional Court pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic decides to repeal the laws or their individual provisions if they are contrary to the constitutional order. In this procedure, the Constitutional Court assesses the content of the law or other legislation in terms of their compliance with the standards of the constitutional order and ascertains whether they have been adopted and issued within the limits of the Constitution of the Czech Republic in a specified jurisdiction and in a constitutionally prescribed manner (Section 68 (2) of the Law on the Constitutional Court). It is clear from the observations of the two chambers of the Parliament of the Czech Republic that Act No. 169 / 1999 Coll. was adopted and issued in a constitutionally prescribed manner and within the limits of the competence laid down by the Constitution of the Czech Republic.
15. After this finding, the Constitutional Court decided to examine the text of Paragraph 76 (6) of Act No. 169 / 1999 Coll., on the enforcement of the prison sentence and on the amendment of certain related laws, in view of its compliance with the constitutional order of the Czech Republic and concluded that the proposal was justified. The designated provision, the revocation of which is proposed, reads as follows: "Save as otherwise provided in this law, decisions given in disciplinary proceedings shall not be subject to review by the court '.
16. In order to clarify clearly the issue, it is appropriate to refer also to the relevant provisions. In particular, it is Paragraph 46 (1) of the Act, which states that: "A disciplinary offence is a wrongful violation imposed by law or on the basis of which an obligation, order or discipline is imposed during the execution of the sentence." According to paragraph 2 of the same provision: "Disciplinary punishment may be imposed on the sentenced. The disciplinary sentence shall not be imposed if the purpose of the trial itself can be achieved by discussing the disciplinary offence with the sentenced. 'In § 46 (3) of the same Act, the list of disciplinary penalties is: reprimand, reduction of the allowance by up to one third of up to 3 calendar months, prohibition of acceptance of one package in a calendar year, penalty up to CZK 1 000, forfeiture of a case, placement in a closed department up to 28 days (except for the period specified for the specified tasks of the treatment programme), full day placement in a closed department up to 20 days, withdrawal of benefits resulting from previous disciplinary remuneration.
17. According to Article 52 of the Act, the sentenced person has the right to file a complaint against him within 3 days of the date of notification of the decision imposing disciplinary action. The only suspensive effect is a complaint against the imposition of disciplinary punishment for forfeiture. The decision to prevent a case shall be subject to the right of the offender to lodge a complaint with suspensive effect within 3 days of the date of notification of the decision. Within five working days of the submission of the complaint, the warden of the prison or an authorised member of the Prison Service shall decide on the complaint. A staff member who has imposed disciplinary action or who has decided to prevent a case may not be authorised to decide on a complaint. The Director-General of the Prison Service shall decide on the complaint against the decision of the warden. A review of the decision to forfeit the case or to prevent the case from being brought before a court may be sought under the conditions laid down in a specific law to the same extent that such review is possible in infringement proceedings.
18. The Constitutional Court has dealt with the issue of judicial review several times in the past in terms of maintaining constitutional guarantees of a fair process. All of its decisions are common to the fact that it dealt with the constitutionality of decisions for which no judicial review was possible. The recap of this caselaw results in the conclusions set out below.
19. In the finding of sp. zn. Pl. ÚS 9 / 2000 of 17.1.2001 (N 8 / 21 SbNU 55; 52 / 2001 Coll. *) in assessing the constitutionality of the so-called administrative punishment, the Constitutional Court stressed that the person concerned had to be allowed to have the decision taken against it examined by the court. The review may not be refused if it is a decision concerning fundamental rights and freedoms under the Charter, the Constitution of the Czech Republic and international treaties under Article 10 of the Constitution of the Czech Republic.
20. Compliance with the guarantees contained in Article 6 The Constitutional Court also dealt with the Convention from the point of view of judicial review in the context of decisions on fines. In the finding of 23.11.1999 sp. zn. Any other procedure is contrary to Article 36 (2) of the Charter and Article 4 of the Constitution of the Czech Republic.
21. The issue of the right to fair trial within the meaning of the "right to trial," in application of Article 6 (1) of the Convention, is also addressed by the case law of the European Court of Human Rights. In its judgment in Engel and Others v Netherlands of 8 June 1976, it provided for a test to be applied in the assessment of the nature of the penalty 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 imposed on persons carrying out basic military service in the Netherlands, in the form of a simple and intensified ban on going out, transfer to a disciplinary unit and temporary strict barracks, were assessed. The penalties imposed against the disabled were resisted by complaints lodged with the appellant, the decision of which was subsequently reviewed by the Supreme Military Court. The ECHR pointed out in the case at hand that the penalties imposed would undoubtedly have been regarded, if imposed on a civilian, as deprivation of liberty. 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:..." to exonerate the state from its fundamental responsibility to provide a fair trial in criminal matters, it is not enough to qualify certain wrongdoing as disciplinary. "
22. The next judgment of the ECHR in this area is the "Campbell and Fell v United Kingdom 'judgment of 28 June 1984, Series A No 80. Here he dealt with the line between disciplinary and criminal matters in the prison environment and stated that:" The Convention does not prevent states from creating or maintaining differences between criminal and disciplinary law and to set boundaries between them. It does not, however, imply that the qualifications thus determined will be decisive from the point of view of the Convention... justice cannot stop 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 the prison environment apply. "
23. The appellant of the contested provision of Paragraph 76 (6) of Act No 169 / 1999 Coll., on the enforcement of a custodial sentence and on the amendment of certain related laws, does not therefore respect the principles underlying the caselaw of the ECHR in the interpretation and application of Article 6 (1) of the Convention, under which everyone 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 the law, which decides on his civil rights or obligations or on the legality of any criminal charges against him.
24. After examining the content of Paragraph 76 (6) of Act No. 169 / 1999 Coll., on the execution of a custodial sentence and on the amendment of certain related laws, the Constitutional Court reached the following conclusions in terms of constitutional guarantees of a fair process. In accordance with Article 1 of the Constitution of the Czech Republic, the Czech Republic is a sovereign, unified and democratic rule of law based on respect for the rights and freedoms of man and citizen. According to Article 4 of the Constitution of the Czech Republic, fundamental rights and freedoms are protected by judicial authority. The right to judicial protection is without doubt one of the fundamental features of the rule of law.
25. The Charter in Article 36 (1) provides for the right of everyone to seek his or her right in an independent and impartial court and, in specified cases, another authority. According to paragraph 2 of that Article, anyone who claims to have been shortened on his rights by a decision of a public authority may apply to the court to examine the lawfulness of such a decision, unless otherwise provided for by the law. However, in no way shall a review of decisions relating to fundamental rights and freedoms under the Charter be excluded from the jurisdiction of the court.
26. The fundamental question in this case is whether any of the decisions imposing disciplinary sanctions (see above) are decisions which affect 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). Article 7 (2) of the Charter provides that no one may be tortured or subjected to cruel, inhuman or degrading treatment or punishment.
27. The law on the enforcement of prison sentences provides for restrictions and waivers of certain rights of the convicted persons in Article 27. 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 are such further restrictions on the status of sentenced and may, depending on the nature and gravity of the penalty, be a significant interference in his fundamental rights and freedoms (e.g. placing in a closed ward for up to 28 days, placing in a closed compartment for all days, decision to place in a closed compartment or in solitary confinement). Such decisions must be regarded, for the reasons set out above, as decisions concerning fundamental rights and freedoms. They cannot therefore be excluded from judicial review (Article 36 (2) of the Charter).
28. The lack of current legislation is that it does not distinguish between disciplinary penalties in terms of the severity of their impact on the status of sentenced persons. In fact, under Section 76 (6) of the Act on the execution of a custodial sentence, all decisions imposed in disciplinary proceedings (with the exception of a decision to forfeit or prevent a case) are excluded from judicial review. The legal exclusion of judicial review applies both to disciplinary sentences of a more moderate nature (such as reprimand or reduction of allowance or fine) and to disciplinary sentences, which undoubtedly significantly interfere with the rights and freedoms of the sentenced (placing in a closed ward for up to 28 days, placing in a closed compartment for up to 20 days or placing in solitary confinement for up to 20 days) and which represent a substantial increase in the existing restriction of freedom. The manner in which these sentences are carried out is detailed in Section 49 of the same Act. In the disciplinary punishment of placing in solitary confinement, the sentenced does not work, does not participate in the treatment programme, is not allowed to smoke, read daily newspapers, books or other publications, except legal, educational or religious literature, and buy food and things personal, except sanitary. It is not lawful for him to rest in a bed, except for the time of the inner order. The same applies to the disciplinary punishment of placing in a closed ward, except that the sentenced is obliged to perform the cleaning and cleaning work necessary to ensure the normal operation of the prison.
29. The exclusion of decisions given in disciplinary proceedings from judicial review, without differentiation of their seriousness, cannot be maintained in the light of the requirements of Article 36 (2) of the Charter and Article 6 (1) of the Convention, as set out above. The paradox of existing legislation is that judicial review is permitted in matters relating to property (forfeiture of a case), while judicial review is excluded in matters relating to serious interference in the individual sphere of the sentenced person (placing in a closed ward, placing in solitary confinement). Greater protection is thus granted to the protection of property than to the personal sphere of man, even the condemned.
30. The imposition of disciplinary measures also affects the possible suspension of the sentence. When deciding on such a request, the sentenced courts shall take account of his conduct during the execution of the sentence. The disciplinary measures imposed may thus affect the court's decision in this case.
31. It can therefore be concluded that the current system does not allow for effective procedural protection against the decision imposed by the disciplinary procedure in the exclusion of judicial review. This fact was also pointed out in the expert literature in the evaluation of the forthcoming draft law on the execution of the prison sentence:... "the proposal provides the condemned with a relatively wide possibility of" complaining, "but on the other hand, a relatively narrow opportunity to initiate an administrative or judicial procedure in which their objections would be decided by an independent and impartial body without having to turn directly to the Constitutional Court." (V. Mikule and O. Novotný at the work of Prisons and Law, in Pocta D. Hendhne on 70th birthday, C. H. Beck, 1997, p. 232- 237).
32. The flat-rate exclusion of decisions given in disciplinary proceedings from judicial review (with the exceptions set out above) without their differentiation in terms of interference with the fundamental human rights of the sentenced is contrary to the constitutional guarantee of the right to a fair trial under Article 36 (1) and (2) of the Charter. The hearing of a complaint against the imposition of disciplinary sanctions by the Prison Service authorities does not meet the requirements for the protection of rights from 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 Paragraph 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 (see above). So, paradoxically, greater protection is admitted where there has been an intervention in property rights, while the sphere of interference in the human personality remains without the possibility of judicial control. 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 exclude the libel in imposing certain of the most serious disciplinary penalties and thus exclude their adverse consequences for the possible decision on suspension of the sentence.
33. In this context, reference can also be made to the specific circumstances of the case of the convicted applicant, established from the file sp. zn. 9 As 2 / 2008 of the Supreme Administrative Court. A disciplinary sentence has been imposed on the sentenced in the form of placing him in a closed ward for 5 days for: "owning illegal items that could, by their nature, harm health or endanger life." These items were, according to the Prison Service, "an amateur-made transformer and an amateur-made pencil battery case." According to the convicted prosecutor, it was not a transformer, but a malfunctioning electronic component found in a walking yard where they were found in large quantities. This dispute over the nature of the said parts was not addressed at all at the subsequent stages of the procedure and thus the very reason for the disciplinary punishment remained in question.
34. On the basis of the above findings, the plenary of the Constitutional Court concluded that Paragraph 76 (6) of Law No 169 / 1999 Coll. was contrary to 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 on the Protection of Human Rights and Fundamental Freedoms. It therefore decided to abolish it pursuant to Paragraph 70 (1) of the Constitutional Court Act without oral hearing, using Paragraph 44 (2) of the same Act, since the parties to the proceedings agreed to waive the oral hearing.
35. The aim is not to obtain judicial review for all disciplinary sentences, but only for 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 wider 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, since the law on the enforcement of the custodial sentence does not admit complaints against the decision to impose a disciplinary penalty (with the exception of the disciplinary penalty for forfeiting the case), nor does it have suspensory effect for this area, nor does the administrative justice action.
36. In the procedure for the control of standards, the Constitutional Court acts as the so-called negative legislator, entitled to abolish the contested legislation only. In order to remove the inconstitutionality of the contested provision of Law No 169 / 1999 Coll., a positive response by the legislator is necessary, with the aim of adopting a constitutional conformal regulation of a differentiated review of the decision to impose disciplinary penalties in cases where the sentence imposed significantly interferes with the personal integrity of a person, even a convicted person. The legislator will also resolve the question of the practicality and effectiveness of this review procedure, i.e. whether it will entrust them to the general courts in which criminal proceedings are conducted or whether they will be carried out by administrative courts. Therefore, the Constitutional Court postponed the annulment of the contested provision until 30 June 2011 in order to provide Parliament of the Czech Republic with sufficient time to adopt adequate legislation.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by judges Pavel Holländer and Jiří Nykodemou to decide.
*) NB: Collection of finds and orders of the Constitutional Court, Volume 21, Found No. 8, p. 55, published under No. 52 / 2001 Coll.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Found by the Constitutional Court No. 341 / 2010 Coll., on the application for annulment of § 76 paragraph 6 of Act No. 169 / 1999 Coll., on the execution of a custodial sentence and on the amendment of certain related laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.12.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0