The Constitutional Court found no 355 / 2008 Coll.
The Constitutional Court's finding of 20 May 2008 in the case of an application to declare unconstitutional the provisions of § 23 (b) of Act No. 329 / 1999 Coll., on travel documents and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on travel documents), as amended by Act No. 217 / 2002 Coll. and Act No. 320 / 2002 Coll.
Valid
The Constitutional Tribunal found
Text versions:
26.09.2008
355
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 20 May 2008 in plenary, composed of the President of the Court of Paul Rychett and the Judges Stanislav Balík, František Duchona, Vlasta Formánková, Mran Güttler, Pavel Holländer, Ivana Jana, Vladimir Krórek, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodemí, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Supreme Administrative Court on the Declaration of the Inconstitutional Act No. 229 / 2002 Coll., on Travel Documents and on the Amendment to Act No. 320 / 2002 Coll.
as follows:
Paragraph 23 (b) of Act No. 329 / 1999 Coll., on travel documents and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on travel documents), as amended by Act No. 217 / 2002 Coll. and Act No. 320 / 2002 Coll., was contrary to Articles 2 (2), 4 (1), 14 (1) and 36 (2) of the Charter of Fundamental Rights and Freedoms and Article 2 of Protocol 4 to the Convention on the Protection of Human Rights and Fundamental Freedoms.
Reasons
1. The Constitutional Court received on 25 June 2007 a proposal from the Supreme Administrative Court to declare the inconstitutionality of the provisions of § 23 (b) of Act No. 329 / 1999 Coll., on travel documents and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by Act No. 217 / 2002 Coll. and Act No. 320 / 2002 Coll., hereinafter referred to as "the Act on travel documents in force and effective until 31.12.2004 '. The appellant did so after having concluded, in proceedings concerning the appeal lodged by J. Ch (" the complainant') under sp. zn. 2 As 52 / 2004, that the contested provision to be applied in the resolution of the case is contrary to Articles 14 (2) and (3) and Article 36 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and that that contradiction cannot be bridged by a constitutional interpretation.
Circumstances of the case
2. In the designated case, by decision of 25 March 2003 No CP 02 / 03, the Municipal Office of the Czech Republic, the Office of the Criminal Police and Investigation Office, the Department of Economic Crime Prague 9, and removed the complainant against whom a criminal prosecution was brought for an attempt to reduce the tax, tax and similar compulsory payments pursuant to § 8 (1), § 148 (1) and § 163a (1) of the Criminal Code, passport No 330 33 205 and No 330 33 206. The Complainant's appeal was rejected by the Regional Office of the Central Bohemian Region and confirmed the decision of the administrative body of the first instance by decision of 22.4.2003 No 3055 / 03. The defence of the complainant based on the allegation that the prosecution of his person is unfounded and the removal of passports is purposeful, the administrative authorities did not accept and referred to the provisions of Paragraph 23 of the Travel Documents Act in its then-in-force version, containing the grounds of taxation against which the administrative authority is obliged to withdraw the travel document in administrative proceedings - in the case of point (b) of the provision cited, if it receives a request from the criminal authority to withdraw the travel document to a citizen against whom the criminal prosecution is against a criminal offence. By judgment of 5 May 2004 No 7 Ca 138 / 2003-30 of the complainant, the Municipal Court of Prague dismissed the action as unfounded, stating that the administrative authorities were bound by a rule in which the administrative authority had no discretion and had to withdraw the travel document; the evidence leads only to the fact that a request for withdrawal of a travel document has been made, that it has been filed by a criminal authority and that that authority has led against a citizen to whom the travel document is to be withdrawn, criminal prosecution for an intentional offence. The evidence in another direction is not legally relevant and therefore considered the complainant's subjective position to travel abroad or to object to the absence of grounds for imposing the arrest on the ground of Paragraph 67 (a) of the Code of Criminal Procedure to be irrelevant. In the complaint, the complainant contested the illegality of the judgment of the administrative court and pointed out that the administrative authorities did not have any evidence of the need for the removal of the travel document and did not take into account the view of the District Court of PrahaEast, which did not comply with the application by the criminal authority to take the complainant into custody. With due evidence, the administrative authority would have to find that the withdrawal of travel documents more than half a year after the start of the criminal prosecution was unfounded, since the complainant, whose business is linked to frequent travel abroad, has repeatedly stayed outside the territory of the Czech Republic, which he informed the Police Council about and which he has not prohibited from travelling; the so-called border crossing block has also not been implemented. The application and interpretation of the above mentioned provisions of the Travel Documents Act, as implemented by the administrative authorities, was found wrong by the complainant.
Arguments of the appellant
3. The Supreme Administrative Court suspended the proceedings in question and submitted to the Constitutional Court an application to declare the unconstitutionality of the provision referred to above because, in its view, the binding nature of the decision-making administrative authority submitted by the proposal without expressly conferring any discretion on the grounds, proportionality and necessity of making such a serious intervention, which is the withdrawal of travel documents and therefore the restriction of freedom of movement, is contrary to the constitutional order of the Czech Republic. The appellant admitted that the proposal to withdraw the travel document and the action taken was intended to ensure the purpose of the prosecution and that the authority active in it could best assess the necessity of such a restriction in relation to specific crime and to a particular person. However, where the administrative body which is in a factual situation is deprived of the possibility to assess the consideration of a police authority, to provide evidence of the conditions for the withdrawal of a travel document (except for the verification of the existence of a legal basis for the submission of a request), to consider the arguments of the party and, on that basis, to draw its own conclusion (possibly different from the proposal), an unacceptable situation arises as, at no stage in this procedure, there is no scope for the protection of the rights of the party to such proceedings, since the regulation significantly limits the judicial review to a mere assessment of the existence of the proposal and criminal proceedings. Thus, both the administrative authority and the administrative court can only examine whether one of the relatively broad definitions is given and, with Article 14 (3) of the Charter, only freely corresponding reasons under Article 23 of the Travel Documents Act; where it is given, the travel document must always be withdrawn or refused to be issued by the administrative authority without being able to deal with whether such interference in the rights of the citizen is essential for the protection of the rights of third parties. Such an assessment would only be carried out by the applicant body, but informally, without any procedure and guarantees of review, which is a procedure which can hardly be considered a fair trial within the meaning of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '); Moreover, an effective judicial review of the decision of a public authority on fundamental law within the meaning of Article 36 (2) of the Charter is not ensured in this situation.
4. The Supreme Administrative Court also considered whether the provision could not be interpreted in a constitutional manner and concluded that it could not. This method is only considered where a provision of the law allows different interpretations, one complying with constitutional standards and the other contravenes them. In the present case, the interpretation of the contested provision would have to be that the administrative authority is obliged, in addition to the conditions expressly laid down by law, to examine whether, in a particular case, the conditions of limitation of the fundamental right laid down in Article 14 of the Charter are met, i.e. to ensure a proper procedure corresponding to the fundamental principles of the administrative procedure, to establish the facts of the case and to deal with those facts in the decision. However, such an interpretation would be directly contrary to the legal text. The impossibility of such interpretation is also indicative of the explanatory memorandum to the Travel Documents Act (House Press 272), which shows that the legislator intended to exclude the discretionary power of the administration. The Supreme Administrative Court added that it was known that the Constitutional Court dealt with the issue in its Resolution of 26.3.2003 sp. zn. I. ÚS 52 / 03 (see below), which rejected a constitutional complaint lodged in a similar case on the grounds that the provision transferred administrative discretion from the administrative authority to the law enforcement authorities. In addition, the appellant noted that the discretion exercised by the law-enforcement authority, that is to say, the consideration of whether a motion to withdraw a travel delay would be made entirely beyond judicial review; the application is not a decision of an administrative authority and it is not an intervention of an administrative authority which can be examined in accordance with the provisions of § 82 et seq.
Observations of the parties
5. The Chamber of Deputies of the Parliament of the Czech Republic, in its observations on the proposal of 14 August 2007, signed by the President of the House, Mr Miloslav Vlček, recalled the main arguments of the proposal and expressed its opposition to it. The President of the Chamber of Deputies stated that the text of the contested provision had been drafted in such a way that, in accordance with Article 14 (3), The Charter has been limited in the taxiously stated reasons for the freedom of movement and residence, while the consideration of whether such a restriction is necessary has been left to the authority requesting the withdrawal (or refusal of extradition), which, in the case of the contested provision, is the law enforcement authority. The logical impact of such an adjustment was to exclude the discretion of the administrative authority which decides on such an act. In accordance with Article 14 (3) of the Charter, a restriction on the rights of the parties to the administrative procedure was deemed necessary to maintain public order.
6. The Chamber of Deputies stated that it had discussed the law during the third parliamentary term and during the discussions in the Committee on Public Administration, Regional Development and the Environment and at second reading no amendment was tabled to the provisions of Section 23. The bill was approved on 21 October 1999 and forwarded to the Senate of the Parliament of the Czech Republic. The Senate discussed the bill and, on 12 November 1999, it brought it back to the Chamber of Deputies with amendments which did not, however, concern Article 23; it voted on its version on 30 November 1999 and approved it by a vote by the relevant majority of all Members. The President of the Republic signed the Act on 14.12.1999 and was published in the Collection of Laws under No. 329 / 1999 Coll. The law was therefore adopted in the prescribed manner and the President of the House expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution of the Czech Republic (hereinafter the Constitution), the constitutional order and the legal order of the Czech Republic. The Constitutional Decision was left to the Constitutional Court by the House of Deputies by means of the contested decision.
7. The Senate of the Parliament of the Czech Republic, in its observations on the proposal of 31 July 2007, signed by the President of the Senate MUDr. 62 Senators and Senators in attendance voted in favour of Proposition 56 and 6 abstained. The amendments adopted did not go to the contested provision, but in the comitology proceedings, it was argued to the representatives of the appellant that the Government did not make use of the possibility of amending the existing legislation according to which the administrative authority decides to withdraw the travel document at the request of various state authorities for reasons which are factually non-organic in the travel document law. It was noted in the committees that the reasons for not issuing or withdrawing a travel document should have been entered in the legislation in which this instrument would follow the adjustment of the relations for which it is intended (for which it serves). The power to decide not to issue or withdraw a travel document should be exercised by the national authorities whose jurisdiction is legally defined for such relations, since, under such legislation, a system is also established for the appropriate guarantees of the proper conduct of the case, including the standard rights of the party concerned and the possibility of subsequent review. For example, in the civil Code of Judicial Procedure, the jurisdiction of the court to decide on the detention of a travel document in cases of enforcement of a judicial decision for failure to comply with financial obligations could be governed by the law; in the Code of Criminal Procedure, it could be the power of law to detain a travel document in the context of the provision of persons and goods in the pursuit of a citizen for a particular offence, etc. The decision of the law enforcement authority could be challenged by complaints under the rules of the criminal process, as is the case, for example, for detention or other reinsurance operations. However, the Code of Criminal Procedure does not give the jurisdiction of law enforcement authorities to apply the application to an administrative body.
8. In addition to that description of the discussion of the issue in the committees, the Senate has also expressed its views on some of the following contexts and on the preamble to the consideration that the Constitutional Court might take into account when assessing the constitutionality of the contested provision. He recalled that the legislation on the non-extradition or withdrawal of travel documents, for reasons arising from various areas of social relations regulation, had a long-term conditional origin. In the early days of passport law, it was primarily an instrument of politically motivated travel restrictions, which was in line with police law and decision-making within the framework of the state's will, with the development of other publicly legitimate travel restrictions, other reasons were merely attached to this legislative basis. The Senate added an overview of the current arrangements for passport restrictions in the laws of 1928, 1948 and 1965, when the latter, in particular, highlighted passport restrictions due to the interests of national security and absolutely desired in the decision to refuse the passport. The Senate pointed out that only the law on travel documents of 1991 (Act No. 216 / 1991 Coll., on travel documents and travel abroad) was substantially different from its predecessors. He respected the constitutionally based assumption that a citizen had the right to leave the territory of the state freely and reduced cases for which it was possible to deny the issue of a travel document to cases legally defined. The political reasons for denying the right to travel have become a thing of the past, but the legislative design of the Travel Document Act has been preserved. The inertia of the form has caused the administrative body to still decide on the refusal of the travel document instead of those in whose jurisdiction it is necessary to restrict the travel of a citizen to prevent the obstruction of important decisions in the public interest. The Senate stated that the valid Act on Travel Documents No. 329 / 1999 Coll. further accents the disorderly nature of the regulation as it redeclares the binding decision and decision of the passport administration regarding the refusal of the travel document "applications' by the competent judicial authorities in question. It is therefore absurd to refer to a model in which it is not conceivable that the" application '(in fact) of the court [in the case of point (a) of the provision cited - a statement by the Constitutional Court] should be decided, even if only formally, by the administrative body.
9. The Senate has conditionally testified to the appellant that the period provision of Paragraph 23 (b) of the Travel Documents Act, or currently in force (in substance almost identical) of Paragraph 23 (c), makes it impossible to deal in substance with cases of non-extradition or withdrawal of travel documents and, in some sense, the right of the persons concerned to judicial protection against interference with their right to travel freely from the territory of the State belonging to fundamental rights and freedoms. The true nature of the travel document is to prevent cases of harassment or obstruction of criminal prosecution, which is an organically related function for the purpose of criminal proceedings. The resources and intensity of the legally granted defence are to be in accordance with this principle. According to the Senate, the solution to the problem could be achieved, for example, in the way indicated in the debate of the Senate committees, i.e. by considering the necessity of restricting freedom of movement and residence (leaving the country) on grounds of public policy and the protection of the rights of others within the meaning of Article 14 (3) of the Charter to entrust law enforcement authorities. In the future, the form of a possible safeguard act to prevent travel could also be considered, as the cross-compliance of a citizen's travel by holding a travel document becomes, at least, obsolete for travel to the Member States of the European Union.
10. The Senate recalled that, in the present case, it had already expressed its views on the appellant's proposal under sp. zn. The substantive amendment to the provision of Paragraph 23 (b) of the Act in force until 31 December 2004 was merely that the condition of not issuing or withdrawing a travel document should not be criminal prosecution for any intentional offence but for an offence for which a custodial sentence of at least three years may be imposed. Finally, the Senate stated that it had discussed the draft law on travel documents within the limits of the Constitution established competence and in a constitutional manner and agreed on this proposal in a majority belief that the draft law was in line with the constitutional order of the Czech Republic and the international obligations of the State. The decision on the constitutionality of the contested provision was left to the Constitutional Court.
Abandonment of oral proceedings
11. Under Article 44 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), the Constitutional Court may, with the consent of the parties, waive the oral hearing unless it is not possible to expect further clarification of the case. Since both the appellant in his proposal and the parties in the proceedings in the observations of the President of the Chamber of Deputies of the Parliament of the Czech Republic and the President of the Senate of the Parliament of the Czech Republic expressed their agreement to abandon the oral hearing and, furthermore, the Constitutional Court considered that further clarification could not be expected from the hearing, the oral hearing in the case at hand was abandoned.
Derogation of the contested legislation
12. Paragraph 23 of the Travel Documents Act, in its version in force and effective until 31 December 2004, and, within it, the provisions of point (b) used at the time of the decision of the competent public authorities, read:
"Issue of a travel document shall be refused or issued shall be withdrawn upon request
(a) a court of a citizen against whom enforcement is ordered of a court order for failure to fulfil maintenance obligations or financial obligations;
(b) an authority in criminal proceedings to a citizen against whom criminal proceedings are brought for an intentional offence; or
(c) the institution which executes the decision or arranges its enforcement under a special law, to a citizen who has not performed a custodial sentence for an intentional offence if the sentence has not been waived or the execution of the sentence has not been suspended. ";
Active legitimacy of the applicant and assessment of the conditions of the procedure
13. In the same legal case, the appellant referred the application to the Constitutional Court in October 2005, when he made an application for annulment of the provisions of Section 23 (c) of the Travel Documents Act as amended by Act No 559 / 2004 Coll. (1) The Constitutional Court referred the application in accordance with the provisions of Sections 43 (1) (c) and (2) (b) of the Constitutional Court Act by order of 25.4.2007 sp. zl. The Constitutional Court pointed out that by Law No 559 / 2004 Coll. the original provision of Paragraph 23 was repealed and replaced by a new provision, so that Paragraph 23 (c) of the Travel Documents Act, as amended, could not be used in the complainant's case since 1 January 2005, since it was not a valid and effective part of the rule of law at the time of the decision of the public authorities. In this conclusion, neither did the appellant's claim that, following the amendment to the Travel Documents Act, the text of Paragraph 23 (b) was included under (c). The Constitutional Court recalled the need to distinguish the situation in which there is no change in the legal provision from that in which the contested provision has been repealed and replaced by a new provision (where applicable by law), even in the case of their identical wording, since the normative existence of the legislation (validity) is constituted by a single legislator's will and speech (publication of the speech), and therefore, in the case of two content identical and, at the time of successive legislation, their legal identity (identity of validity) [cf. Resolution sp. sp. zn. Pl. In addition, both provisions, although they agree that the issue of a travel document is refused or the travel document issued is withdrawn at the request of the criminal authority, show a material difference in that, according to the earlier wording of Paragraph 23 (b). (b) this will be the case against a citizen against whom criminal prosecution is being prosecuted for an intentional offence, whereas, in accordance with the current wording, Article 23 (1) (b) applies. (c) a citizen subject to criminal prosecution for a (even negligent) offence for which a prison sentence of at least three years may be imposed shall be affected.
14. The appellant has now fulfilled the conditions of Article 95 (2) of the Constitution in so far as it calls for the declaration of unconstitutionality of the provisions of Article 23 (b) of the Travel Documents Act, as in force and in force until 31 December 2004, which was applied in the present case and in the appeal proceedings, the appellant will examine the accuracy of the application.
15. According to Article 67 (1) of the Constitutional Court Act, the reason for the termination of proceedings is, however, given if the law, other legislation, or its individual provisions, the annulment of which is proposed expires before the end of the proceedings before the Constitutional Court; However, as already stated by the Constitutional Court in the judgment of 6 February 2007 in sp. zn. Pl. ÚS 38 / 06 (published under No 84 / 2007 Coll. and available at http: / / nalus.ujud.cz), according to the legal opinion resulting from the finding of sp. zn. Pl. ÚS 33 / 2000 of 10.1.2001 (N 5 / 21 SbNU 29; 78 / 2001 Sb.), which is also referred to in the reasoning of the finding of sp. zn. Pl. ÚS 42 / 03 of 28.3.2006 (N 72 / 40 SbNU 703; 280 / 2006 Sb.), the judge of the General Court of the Court of First Instance is required to conclude that the law to be used - thus not only in that period of validity, but also in that period, but also not applicable, but is still applicable in the constitutional law. The Constitutional Court considers the refusal to provide assistance to the General Court by its decision on the constitutionality or unconstitutionality of the applicable law as the reason for the insoluble situation of an artificial legal vacuum; the decision of the General Court itself on the unconstitutionality of the provisions applied would then qualify as a procedure contrary to the Constitution, contrary to the principle of concentrated constitutional justice. In the decision sp. zn. distinguished the cases of vertical and horizontal application of fundamental rights and formulated the conclusion that the genuine retroactivity in the event of the declaration of the unconstitutionality of an already repealed law and the assessment of previous acts by constitutionally conformal legislation with the effects of ex tunc on the public side does not constitute a breach of the principle of protection of citizens' trust in law, possibly interference with legal certainty or acquired law. The Constitutional Court is therefore in accordance with Article 95 (2) The Constitution is required to examine the constitutionality of the contested provision as a matter of principle, even if it has already been repealed, on condition that the public authority is the addressee of the alleged reason for the unconstitutionality. This is also the case in the present case, and therefore, in the context of the cited legal opinions expressed in the above findings, the conditions for the substantive negotiation of the proposal are met. With regard to the provisions of Paragraph 35 (1) of the Constitutional Court Act, the earlier order of the Constitutional Court, sp. zn. Pl. ÚS 48 / 05 (see above) does not constitute an obstacle to the matter decided.
Jurisdiction of the Constitutional Court on the withdrawal of the travel document of a citizen of the Czech Republic
16. Until the adoption of Act No. 329 / 1999 Coll. the provision of § 17 (b) of Act No. 216 / 1991 Coll., on travel documents and travel abroad, under which the issue of the travel document may have been refused or the travel document issued may have been withdrawn from the citizen against whom the criminal prosecution was brought. The legislation at the time did not lay down any other criteria or conditions that had to be fulfilled for the establishment of the discretion of the administrative authorities and, from the point of view of the law, it was sufficient for the administrative authority to verify in a relevant way the existence of criminal prosecution of a person, for example by communicating the investigator who led the prosecution. The Constitutional Complaints contesting the decisions of the administrative courts of the Constitutional Court rejected the Constitutional Court as manifestly unfounded on the grounds that the purpose of the criminal proceedings was fully in line with the permissible restriction of freedom of movement provided for in Article 14 (3) of the Charter and that it was a procedure within the limits of the constitutional exception. In its resolution of 7.9.1999 sp. zn. II. ÚS 95 / 98 (not published, available at http: / / nalus.ujud.cz), he stated that it was necessary to examine whether the application of the relevant provisions of the Travel Documents Act did not involve disproportionate interference with the fundamental rights and freedoms of the individual, as the regulation itself does not exclude this and the priori; the disproportionate nature of the intervention has been described as an insolence, but cannot be found where more severe intervention could have been given, i.e. restrictions on personal freedom rather than restrictions on freedom of movement, only temporarily and outside the territory of the Republic. As regards the scope of the review activity of the Administrative Court, the Constitutional Court stated that the Court "could not examine the grounds for prosecution and hence the very basis for interference with freedom of movement."
17. Following the adoption of Act No. 329 / 1999 Coll., the Constitutional Court treated the decisions based on the application of the draft contested provision accordingly; the travel document law has been designated as the law implementing restrictions on freedom of movement referred to in Article 14 (3) of the Charter and which gives the authorities active in criminal proceedings the opportunity to apply for restrictions on the freedom of movement of a person prosecuted for an intentional offence by withdrawing a travel document. In the case sp. zn. I. ÚS 52 / 03, referred to by the appellant, in which, at the request of the prosecutor, the travel document was withdrawn after a year and a half after the indictment was notified, alleging that the criminal prosecution had never been evaded or obstructed by an investigation, the Constitutional Court did not doubt that only law enforcement authorities may consider, on the basis of the state and development of the criminal prosecution of a person, whether it is necessary to limit his freedom of movement in that manner (resolution of 26 June 2003, not published, available at http: / nalus.ujud.cz).
18. It can therefore be concluded that the Constitutional Court indicated in its current decision-making practice in the question in question the limits in which restrictions on the freedom of movement of individuals should be measured. The question of an effective review of the decision of the criminal authority in order to verify that the measure taken does not preclude the possibility of indiscretions when it exceeds the positives, such as the public interest in those measures, remains open. In this context, however, it should be borne in mind that the decisions of the Administrative Chambers of the General Courts, acting in accordance with the fifth part of the Civil Code, as amended by 31.12.2002, were the subject of a constitutional review at the time of a serious constitutional deficit, to which the Constitutional Court reacted in a fundamental manner by finding sp. zn.
Constitutional limits on freedom of movement
19. Freedom of movement is one of the fundamental human rights and pursuant to Article 4 The Constitution is under the protection of the judiciary.
Article 14 of the Charter
"(1) Freedom of movement and residence is guaranteed.
(2) Anyone who is legally present in the territory of the Czech and Slovak Federal Republic has the right to leave them freely.
(3) Such freedoms may be restricted by law if this is necessary for the security of the state, for the maintenance of public order, for the protection of health or for the protection of the rights and freedoms of others and for the protection of nature in designated territories.
(4) Every citizen has the right to free entry into the territory of the Czech and Slovak Federal Republic. A citizen cannot be forced to leave his country.
(5) A stranger may be expelled only in cases provided for by law. "
Article 2 Protocol 4 to the Convention on the Protection of Human Rights and Fundamental Freedoms ("Protocol 4 'or" Protocol')
"1. Anyone legally staying in the territory of a Member State shall have the right to choose his place of residence in that territory.
2. Everyone is free to leave any country, even their own.
3. No restrictions may be imposed on the exercise of these rights except those laid down by law and necessary in a democratic society in the interests of national security, public security, maintaining public order, preventing crime, protecting health or morale, or protecting the rights and freedoms of others.
4. The rights referred to in paragraph 1 may be subject in certain areas to restrictions laid down by law and justified public interest in a democratic society. ';
20. The right of freedom of movement (Article 14 of the Charter) may be sought directly, immediately (Article 41 (1) of the Charter and contrario), not by means of laws implementing this provision. However, constitutional guarantees are not unlimited; freedom of movement is limited by constitutional limits. In general, these restrictions may be summarised in such a way that they must be laid down by law for the reasons set out in paragraph 3 of Article 14 of the Charter, if necessary. The Convention in Protocol 4 guarantees freedom of movement for citizens of the State concerned and foreigners in a different way (cf. "who is staying legally") and provides for restrictions in the cases referred to in paragraph 3 of Article 2 The Protocol provided for "if necessary in a democratic society." No other limits of the Charter or Protocol should therefore be understood as a right that includes not only the right to move and settle freely anywhere in the Czech Republic, but also the right to travel freely abroad and return.
21. With regard to the citizens of the Czech Republic, constitutional arrangements allow the exercise of their freedom of movement to be restricted by public intervention. In order to be considered as constitutionally permissible, the intervention must fulfil three conditions:
- must be laid down by law,
- must be directed towards a legitimate objective,
- must be inevitable or necessary in a democratic society.
Assessment of whether the restriction is lawful and whether it is justified by a justified public interest
22. According to the provisions of Sections 2 and 3 of the Travel Documents Act applicable at the time applicable to the complainant, a citizen of the Czech Republic could only leave the territory through a border crossing with a valid travel document (passport), which could be withdrawn by a decision of the public authorities in the cases referred to in § 23, under which point (b) of which the purpose of the removal of the travel document was to ensure that the citizen against whom the criminal prosecution was brought for a criminal offence was in the interests of the proper conduct of criminal proceedings for detention. The restriction on the movement of a Czech citizen when travelling abroad was defined by law and thus the contested provision corresponds to the first condition.
23. The second condition is that the intervention should be directed towards a legitimate objective. These objectives are defined both in the Charter and in the Convention by so-called "harsh concepts' - state security, national security, public order, public security, crime prevention, health or morality protection, protection of the rights and freedoms of others, protection of nature. Some of these concepts are defined by law, some of them, although widely used, such as" public policy ', do not clearly define the rule of law and are therefore interpreted by the case-law of the courts or decisions of other public authorities. From a constitutional point of view, it is irrelevant whether these terms are fulfilled by the legislator or interpreted by the case-law, which is decisive that they must not be extended further. It was possible to limit the freedom of movement of an individual outside the Czech Republic as a result of his criminal prosecution for an intentional crime. The criminal proceedings leading to the proper detection of criminal offences and the fair punishment of their perpetrators (§ 1 (1) of the Criminal Code) in order to protect the interests of society, the constitutional establishment of the Czech Republic, the rights and legitimate interests of natural and legal persons (§ 1 of the Criminal Act) are generally of legitimate public interest. The removal of a travel document on the basis of the contested provision of the Travel Documents Act, which allows the restriction of the freedom of movement of an individual in the interests of one of the legitimate objectives, thus meets the requirements of the other.
Assessment of the necessity or necessity of the restriction
24. The third condition states that interference with rights must be inevitable or necessary in a democratic society. These concepts are not further defined in the Charter or the Convention, but it is clear that they involve a certain urgent social need, the clarification of which constitutes an area of discretion and justification by the legislator. If this is not provided for by law, the characteristics of this need can be derived from the caselaw.
25. The Constitutional Court, in the context of assessing the necessity of intervention by a public authority in the rights and freedoms of an individual, has stated that "if the constitutional order of the Czech Republic places a breakthrough in the protection of rights, it is only and exclusively in the interests of the protection of democratic society, possibly in the interests of the constitutionally guaranteed fundamental rights and freedoms of others; This includes, above all, the necessity given by the general interest in protecting society from criminal offences and in identifying and punishing such acts. Therefore, only such intervention of State authority in the fundamental right or freedom of a person is permitted, which is necessary in that sense. In order not to exceed the limits of necessity, there must be a system of adequate and sufficient guarantees, consisting of appropriate legislation and effective monitoring of compliance with them." (cf. Sf. ÚS 502 / 2000 of 22.1.2001 (N 11 / 21 SbNU 83). It also follows from the case-law of the European Court of Human Rights that, in assessing the intervention leading to an infringement of the freedom of movement of an individual, that court, within the framework of the principles laid down in Article 2, Protocol 4 takes note, for example, of the outcome of the investigation or development of a particular case and, in this context, considers whether the intervention was appropriate in relation to the intended objective [see, for example, Case No 33592 / 96 Baumann v France, Case No 33592 / 96 Iletmis v Turkey, Case No 29871 / 96, http: / / www.echr.coe.int, Luordo v Italy, Case No 32190 / 96, Court case-law, Review of ECHR judgments, p. 6 / 2003, p. 317 (324) and Others].
26. The purpose of the contested provision was to withdraw or refuse the issue of a travel document so that the person prosecuted for an intentional offence could not avoid, make it difficult for him or her to escape altogether. It is therefore clear that the proportionality of the measure in terms of its necessity or necessity can only be assessed on the basis of the state and development of the prosecution of the person concerned by the measure and that that assessment is for the law enforcement authority. However, the Code of Criminal Procedure does not provide the person being prosecuted with a means of effectively reviewing the adequacy of the proposed measure, as the request of the criminal authority to withdraw the travel document from the person being prosecuted is decided in a non-criminal procedure.
27. The Constitutional Court has therefore examined in particular the question of whether a standard which imposes a limitation on the scope of the facts under which the freedom of movement of the travel document holder may be restricted is contrary to the constitutional order, namely Article 36 (1) of the Charter, according to which "Everyone may seek his or her right by an independent and impartial court and, in specified cases, by another authority." The purpose and purpose of this provision is to lay down the obligation of the State to grant protection to everyone, since there cannot be a situation in a legal State in which the right-holder cannot obtain protection (in a court or other institution). As a general rule, the state is here to protect its citizens (but also those who are present on its territory) and to provide guarantees that their rights will be protected. As already explained by the Constitutional Court in the judgment of 29 January 2008 in sp. zn. Pl. ÚS 72 / 06 (published under No 291 / 2008 Coll. and available at http: / / nalus.ujud.cz), paragraph 4 of Article 36 of the Charter (referred in essence to in paragraph 1 of Article 36 of the Charter of Textions "established by the procedure '), although it refers to a law which regulates" conditions and details' in the session to all the preceding paragraphs of Article 36 of the Charter, however such a law issued on the basis of a constitutional mandate is bound by Article 36 of the Charter, it cannot therefore deviate from its content. The purpose and purpose of the "ordinary" law referred to in Article 36 (4) The Charter is merely to lay down the conditions and details of implementation as regards its content (already) by the legislator in Article 36 of the Charter of anchored rights, namely those of a purely procedural nature. Where everyone has, pursuant to Article 36 (1): The Charter of the right to seek the protection of its rights in a court or other body, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued on the basis of a constitutional mandate, cannot deny anyone's right to seek the protection of their rights in a court or other body in which the situation is completely negligent and thus a constitutionally guaranteed fundamental right, even in certain cases. Article 36 (1) Each Charter is constitutionally guaranteed the possibility of seeking protection of its right in a court or other body in all situations of infringement (there is no constitutional restriction). In other words, no person can be completely excluded by law from the possibility of seeking protection of his right, even if only in a specific case, since his right under Article 36 (1) of the Charter would be annulled. The opposite interpretation would also indicate that the anchoring of everyone's right to appeal to judicial and other bodies of protection for the protection of their rights made by the legislator - gifted by the highest legal force - would in fact lose meaning, since it could only be annulled by the legislator's will for the situation.
28. In the case under consideration, the contested provision of the Travel Document Act did not (and does not now provide a valid provision of the law) provide the administrative authority deciding to withdraw the travel document for a request to the criminal authority under the third condition, since if a legal reason was fulfilled - the request of the criminal authority which led the person concerned to prosecute for an intentional offence - the administrative authority had no room for administrative discretion as to the necessity or proportionality of such a measure and had to withdraw the travel document. From a constitutional point of view, it is not crucial (but at the same time it is not irrelevant - see paragraph 33 below) whether the power to consider the necessity or necessity of using a device which limits the fundamental right or the freedom of an individual in order to protect other constitutionally protected value is conferred on either one or the other public authority (the administrative or criminal authority), the decisive being that its decision must not be excluded from effective judicial control. The contested provision of the Travel Documents Act did not give any consideration to the administrative authority, which, in consequence, significantly limited the possibility of reviewing its decision by the administrative court. In other words, the administrative court could not call into question the decision of the administrative passport authority in the part in which it refused to deal with objections which were not classified under the contested legal provision, since the reverse procedure of the administrative passport authority would be contrary to that standard. The Constitutional Court thus concludes that the legislature in the contested provision limited the right of the holder of a travel document to seek protection of his rights in such a way that the constitutionally guaranteed assessment of the interference with the rights in view of the necessity or necessity of restricting the freedom of movement by the court completely excluded it.
29. In short, the Constitutional Court does not deny that the refusal to issue or withdraw a travel document provided for by law and justified by a justified public interest (legitimate objective) may constitute an unavoidable (necessary) measure; the decision on such a measure cannot, however, be excluded from actual judicial protection replaced by judicial protection only by illusory.
30. The Constitutional Court also expressed its views on the exceptions to the principle of general judicial review of administrative decisions by the Court in the above-mentioned finding of Pl. ÚS 72 / 06, since under Article 36 (2) of the Charter: "Who claims to have been shortened on his rights by a decision of a public authority may refer the court to examine the lawfulness of such a decision, unless otherwise provided for by law. However, the review of decisions concerning fundamental rights and freedoms under the Charter shall not be excluded from the jurisdiction of the court. 'The Constitutional Court pointed out that, although the legislator in the second sentence of Article 36 (2) The Charter delegates to the legislature the granting of exceptions to the review of administrative decisions by the court, this constitutional authorisation is limited to the fact that a judgment on fundamental rights and freedoms guaranteed by the Charter must not be excluded from the review powers of the Court. The Constitution clearly reflected the different relevance of fundamental rights and freedoms and" ordinary' rights and freedoms; the greater rights are protected logically by their different nature.
31. In the present case, the decision to withdraw the travel document concerns the fundamental right to freedom of movement; the legal exception to the rule is therefore not allowed here. The conclusions referred to in Article 36 (1) and (4) of the Charter are identical in relation to Article 36 (2) of the Charter, i.e. the law setting out "conditions and rules' in accordance with Article 36 (4) The Charter may not derogate from the content of Article 36 (2) of the Charter. If, therefore, everyone has, pursuant to Article 36 (2): The Charter of the right to judicial review of decisions of public authorities relating to fundamental rights and freedoms, with the conditions and rules governing the exercise of that right laid down by law, such a law, issued under constitutional authority, cannot completely exclude any such right, even to a certain extent. Article 36 (2) The Charter is not permitted by the law, and there is no restriction on the right to judicial review of decisions concerning fundamental rights and freedoms. While the contested provision does not preclude the decision of the administrative passport authority on the withdrawal of the travel document from being subject to judicial review, it is, however, limited in relation to the decision of the administrative passport authority and does not include the review of the procedure (s) of the law enforcement authority.
Constitutional provisions of the Treaty
32. It follows from that, however, that, in the absence of an effective judicial review, the competent administrative authority itself has the power to decide whether it will refuse to issue a travel document or the travel document issued, by declaring a breach of the statutory provision under review with provisions guaranteeing fundamental rights. It is clear that the said provision applies not only to the proposal for the provision of the Travel Documents Act concerned, but also to the legislation currently in force and effective.
33. It is not up to the Constitutional Court to give the legislator a detailed indication of the legislation to be adopted on the subject under consideration. Before adopting it, however, it will be up to the legislator to carefully and consistently consider whether it is acceptable for the administrative authorities and administrative courts to decide on the refusal to issue or withdraw a travel document. It is in effect a reinsurance institution; the decision to apply it should rather be taken by the public authorities which conduct the proceedings in which such a means of protection is to be used; the review of such a decision by a court in the same proceedings carries a number of undisputed advantages. It is not just about operationality and greater knowledge of the reasons for which the competent public authority considered it necessary to proceed, but, above all - and this also includes a possible aspect of constitutional law - to eliminate the undesirable intermingling of various processes conducted by different authorities. The Senate also pointed this out in its comments on the proposal. Therefore, by stating the unconstitutional nature of the contested provision of the travel document law, the Constitutional Court does not in any way intend to testify to the view that the broad discretion of the administrative authority, supplemented by a judicial review in full jurisdiction by administrative courts, is the way the legislator should and must take.
Conclusion
34. The Constitutional Court of the Czech Republic concludes that the provisions of § 23 (b) of Act No. 329 / 1999 Coll., on Travel Documents and Amendment to Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on Travel Documents), as amended by Act No. 217 / 2002 Coll. and Act No. 320 / 2002 Coll., did not allow the General Court to fulfil its obligations in the protection of fundamental rights and freedoms of individuals when examining the request of the authority acting in criminal proceedings for the withdrawal of a travel document to the person against whom the criminal prosecution for an intentional offence is based on a third condition, which constitutes a failure to respect of the principles enshrined in Article 2 (2) (2) and Article 4 (1) of the Charter. This denied the individual concerned the right to effective judicial protection under Article 36 (2) of the Charter, which ultimately led to an infringement of Article 14 (1) of the Charter and Article 2 of Protocol 4. The Constitutional Court therefore considers that the appellant's application under Article 95 (2) The Constitution has complied with Article 89 (2) The consequences of the unconstitutionality found by the public authorities are required to be reflected in their decision-making practice, i.e. not applying the provision when dealing with specific cases.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In order to justify the finding, they took different positions in accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Judges Vlasta Formánková, Pavel Holländer, Dagmar Lastovecká, Jan Musil and Eliška Wagner.
1) Paragraph 23 of the Act on Travel Documents, as amended by Act No 559 / 2004 Coll., effective from 1.1.2005, reads: "The issue of a travel document to a citizen shall be refused or the travel document issued shall be withdrawn at the request of (a) the court, if the citizen is ordered to execute a judicial decision, (b) the judicial executor, in charge of the execution of the enforcement proceedings, if there is a clear risk that the citizen would thwart the execution by way of a travel order, (c) the judicial authority acting in criminal proceedings, if the citizen is prosecuted for a criminal offence for which may be punishable for at least 3 years, or (d) the authority which executes the decision or enforcement thereof under a specific law, has not been punishable; This shall not apply if he has been pardoned or has been barred. ';
2) NB: Collection of finds and orders of the Constitutional Court, Volume 22, p. 13, p. 349, 351
3) NB: Collection of finds and orders of the Constitutional Court, Volume 24, Found No. 164, p. 201, 223, issued under No. 424 / 2001 Coll.
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Regulation Information
| Citation | The Constitutional Court found no. 355 / 2008 Coll., in the case of the motion to declare the inconstitutionality of the provisions of § 23 (b) of Act No. 329 / 1999 Coll., on travel documents and amending Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on travel documents), as amended by Act No. 217 / 2002 Coll. and Act No. 320 / 2002 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.09.2008 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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