The Constitutional Court found No. 38 / 1999 Coll.

Motion denied.

On 16 July 1998, the Senate of the Criminal College of the Supreme Court submitted a proposal to the Constitutional Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') for the annulment of Article 22 (1) of the Law No. 92 / 1949 Coll., as amended, (hereinafter referred to as" the Law') and Articles 269 and 270 of the Criminal Act No. 140 / 1961 Coll. ("the criminal law '). Article 95 (2) The Constitution may do so if it is concluded that the law to be applied in the resolution of the case is contrary to the constitutional law. The proposal also refers to Article 224 (5) of Act No 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, according to which the court shall suspend the prosecution, if it considers that the law, the use of which is relevant for the decision on guilt and punishment in the case in question, is contrary to a constitutional law or an international treaty which takes precedence over the law, is to bring the case before the Constitutional Court.

Since, on 22 July 1998, another Chamber of the Criminal College of the Supreme Court was presented to the Constitutional Court with a completely identical proposal for the annulment of these legal rules, this proposal was rejected for inadmissibility by the order of the Constitutional Court of 4 November 1998, sp. zn.

The Constitutional Court found that the proposals of the two Chambers of the Supreme Court were entirely identical. It follows that the decision on the application for annulment previously submitted will have to be seen as a matter judged against the same proposal. This does not change the fact that the two chambers of the Supreme Court have submitted an identical proposal on the basis of specific cases which have different aspects of each other.

The proposal of the Supreme Court to abolish § 22 (1) of the Law of Defense and § 269 and 270 of the Criminal Act points out that a duty of service, i.e. an obligation to board and carry out an active military service, is also part of the duty of defence. The creation and termination of service (Paragraph 20 of the Law of Defense) is regulated in Sections 21 and 22 of the Law of Defence. The duty of service shall end with the release from the army. In Section 22 of the Law of Defense, a total of five reasons for the release of a citizen from the army are regulated. Among them, no conviction for a criminal offence under Section 269 of the Criminal Code is mentioned as a reason for dismissal, which implies that this obligation persists even after a final conviction for that offence.

The proposal also states that such legal arrangements require the competent military authorities to call on anyone who has a duty to carry out military service and to ensure that they comply. Military authorities must do so until the citizen has fulfilled this obligation. Paragraph 269 of the Criminal Act does not exempt the authorities of the military administration from the obligation to re-invite such a citizen to military active service.

The Constitutional Court concluded by its finding of 18 September 1995, sp. zn. IV. ÚS 81 / 95 (published under No. 32 / 1997 Coll.), as well as other findings, that, for the offence of the non-establishment of a service in the armed forces pursuant to § 269 (1) of the Criminal Act, a citizen may be sentenced only once and every further non-establishment of a military active service, in which the defendant only persists on his former will not to join the military service, is the same fact, as it is the same conduct and the same consequences. Further prosecution in such a case is considered to be a violation of the "ne bis in idem 'principle, that is, the principle that no one can be prosecuted for an act for which he has already been convicted or acquitted. In the view of the Supreme Court, this creates a situation where, on the one hand, the fulfilment of a significant civil obligation is not enforceable and, on the other hand, the military authorities are required by law to insist on carrying out military service. If they hadn't, they would have acted against the law.

This situation The Supreme Court, from the point of view of the rule of law, is intolerable. In a legal State, compliance with an obligation to enforce and non-compliance with a significant statutory obligation must be sanctioned or the State should withdraw from imposing such an obligation. The situation in which, despite the formal imposition of the obligation in the law, a citizen does not have this obligation in reality, while the state authorities, as a result of the imposition of that obligation in the law, are obliged to insist on its fulfilment is unconstitutional. The law must be clear and precise enough so that citizens and public authorities can regulate their behaviour. For each law interfering with the fundamental rights of an individual, it is necessary to consider whether and to what extent its orders are clearly and accurately defined and are appropriate, necessary and proportionate to their purpose. The legal uncertainty of citizens resulting from the indistinct and inaccurate definition of legal provisions means the loss of credibility of the rule of law.

For the above reasons, The Supreme Court considers it necessary to bring the provisions of Paragraph 22 (1) of the Law of Defense into line with the requirement of Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), specifying the reasons for their dismissal by supplementing them with a further case, namely the case of persons who are legally convicted of the offence of non-recruitment of armed forces under Section 269 of the Criminal Law.

In this sense, the President of the Supreme Court turned to the Minister of Defence on 10 August 1998. On 9 September 1998, the Minister of Defence received a reply to the communication that the proposed amendment to the Defence Law was rejected because the newly proposed defence law no longer contained provisions on the release of the troops and that, in terms of equality of citizens, some of them could not be relieved of their military obligations simply because they were already punished for refusing military active service. This concerns a particularly exceptional service in a state of state or war. The amendment of Section 269 of the Criminal Act is also proposed in connection with the preparation of the new Law of Defence.

The expression of the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, expresses doubts about the proposal of the Supreme Court. It states, in particular, that: "Doubts may also be taken as to whether, in the application of state power in the cases under examination under Paragraph 22 (1) of the Law of Brandenburg, inconsistency with Article 2 (2) of the Charter of Fundamental Rights and Freedoms may be seen in strict respect of the findings of the Constitutional Court relating to this matter... In view of the possible repeal of the provision in question, the appellant did not sufficiently clarify the reasons which led him to take the view of the unconstitutional nature of the above-mentioned condition and, respectively, of the provision of the defence law cited. 'According to the cited statement, the obligation of the public authorities to send back call orders to citizens in a given context is not considered relevant. Furthermore, it is noted that the possible addition of Paragraph 22 (1) of the Defense Act to the further reason for the dismissal of the army consisting of a conviction under Section 269 of the Criminal Act could also, in its consequences, result in the military service being rendered impossible in the future by a citizen who was sentenced for the offence and later showed his will to carry out the military service. The House of Deputies' comments agree with the requirement for precise, clear and unambiguous definition of the various provisions of legislation. It considers, however, that when assessing the case, it will be necessary to take into account whether, in the case of Paragraph 22 (1) of the Law of Defense, it is in fact merely an incompleteness of that provision resulting from the relevant findings of the Constitutional Court or whether the maintenance of the current wording of that provision is justified by the interest of not extending the grounds for the dismissal of the military and the citizens convicted of not joining the armed forces. The anchoring of such a further reason could jeopardise the performance of the armed forces' tasks, especially at the time of the state's armed alert.

As regards the proposal to abolish Sections 269 and 270 of the Criminal Act, the Chamber of Deputies points out that the Constitutional Court has already reexamined its findings by defining both the constitutional nature and the nature of the offence. In this context, he took the view that the facts of the crime were fairly precise and specifically defined. It also points out that the Constitutional Court has taken the view that, although it seems to require adjustments, that provision is not, in substance, unconstitutional, as demonstrated by the finding of the Constitutional Court, for example, No 32 / 1997 Coll.

Conclusion of the comments The Chamber of Deputies states that both the criminal law and the defence law have been passed by the necessary majority of the legislators, signed by the relevant constitutional authorities and properly declared. In this state of affairs, it can only be said that the legislature acted in the belief that the laws adopted comply with the Constitution, the constitutional order and our rule of law. It is up to the Constitutional Court to examine the constitutionality of these laws and to take the relevant decisions in the context of the draft.

The proposal by the Supreme Court to repeal that legislation was also addressed by the interveners who welcome the desire to address the issue of the exercise of the right to deny military service. In their view, Article 22 (1) of the Defence Act should be repealed provided that it would not be possible to include in the interpretation of the so-called other circumstances of the termination of the military obligation under point (d) of that provision the prior final conviction for the permanent denial of military service. If the problem lies only in the misinterpretation of "other circumstances," then the interveners would not consider it necessary to abolish Paragraph 22 (1) of the Defence Act. They also draw attention to Article 11 (1) of Act No. 18 / 1992 Coll., on Civil Service, as amended, according to which a person who has been "legally convicted of refusing military service or military exercises motivated by reasons of conscience or religion 'may be released from the army, provided that the legal power of the judgment has occurred before the entry into force of Act No. 73 / 1990 Coll., on civil service, i.e. before 14 March 1990. In the opinion of the interveners, it would be sufficient to delete only the words" before the Act No. 73 / 1990 Coll., on Civil Service "in Paragraph 11 (1) of Act No. 18 / 1992. As regards paragraphs 269 and 270 of the Criminal Act, the interveners propose that they be annulled by the finding of the Constitutional Court with a deadline for reregulation.

The proposal of the Supreme Court pursuant to Article 95 (2) of the Constitution and Article 64 (4) of Law No 182 / 1993 Coll. does not transfer to the Constitutional Court the power to rule on specific judicial cases. The task of the Constitutional Court - at the request of any of the general courts - is only to determine whether the law to be used by the General Court in the resolution of the case is, or is not, contrary to the Constitution, the constitutional laws, the Charter, as well as the international treaties under Article 10 of the Constitution. The determination of the constitutionality of the contested provision of the law is a matter of control of an abstract standard, since, when assessing the constitutionality of that provision, the Constitutional Court decides without examining or examining the specific case which is the subject of proceedings before the general courts and which has forced the General Court to request a decision by the Constitutional Court on the constitutionality of the provision to be applied in a particular case.

The Constitutional Court, having considered the application for annulment of Article 22 (1) of the Law of Defense and Articles 269 and 270 of the Criminal Act, and the opinions on that proposal, has concluded that, despite all reservations regarding the previous regulation, the proposal for annulment of those provisions for their opposition to the Constitution is not justified.

The procedure for refusing military service on grounds of conscience or religion is governed by Act No. 18 / 1992 Coll., as amended, according to which the declaration of refusal of military service on those grounds may be lodged by the deceased no later than 30 days after the end of the withdrawal procedure. Paragraph 1 (1) of the Civil Service Act provides that those who refuse to carry out military service for those reasons shall be subject to the obligation of civil service whose failure to comply is sanctioned in Sections 272a to 272d of the Criminal Act. With regard to persons who refuse to perform military service, even if they have not demonstrated serious grounds of conscience or belief or have not complied with the legal deadline for their declaration, the criminal law regulates two variants of punishment: § 269 is aimed at persons who do not engage in military active service on a permanent basis, and § 270 affects anyone who does not, albeit negligently, engage in armed forces within 24 hours of the expiry of the period laid down in the call for action.

The existing legislation reflects the constitutional requirement of Article 15 (3) The documents in a somewhat weakened form, so that the reason for the conflict of conscience or religion is in Act No. 18 / 1992 Coll., as amended, somewhat "covered" by the personal statement of the person concerned. The penal law in Section 269 also reiterates the subjective aspect, since two aspects are the structure of this provision: the intention not to engage in military service and the personal expression of the persistence of that intention. Interpretation of these formalities certainly places greater demands on the assessment of the case by general courts. The decision to refuse military service on the grounds of conscience is to be supported by fundamental objections of an idea nature, not merely by a desire to fulfil this civic obligation. According to the Charter, it must be a contradiction with its own conscience or religion, a serious moral decision.

It may be accepted that the proposed repeal of the legal provisions would probably allow for a new legislation, perhaps even in such a way as to make it expressly impossible for military administrations to call again for active military service to those who were previously convicted or acquitted for the same act. The same effect would certainly be achieved by the inclusion of that group in the list of persons meeting the conditions for the release from the army in § 22 (1) of the Defence Act, as stated in the letter from the President of the Supreme Court of the Minister of Defence. However, this would hardly be possible by simply including these cases under the term "other circumstances', which may constitute grounds for dismissal under paragraph (d) (22) (1) of the Defence Act, since it is a very vague concept, the use of which is also linked to the approval of the military administration. In so doing, the defence minister's objection that, in terms of equality between citizens, some of them cannot be relieved of their military obligations simply because they have already been punished for refusing military service weakens the fact that another group of persons, namely those obliged by civil service, is relieved of their duties and is dismissed from the military [§ 21 (4) and § 22 (1) (e) of the Law of Defence]. It can also be considered that the new wording in the penal code could and should be made clear to the courts that the 'no bis in idem' principle is above all laws. Notwithstanding this, the Constitutional Court considers that, in a democratic rule of law, which is understood primarily as a material rule of law, the application of the legal provision in force cannot be permitted in a way contrary to some of the fundamental constitutional principles, which can undoubtedly be seen as the procedural principle of" ne bis in idem 'in Article 40 (5) of the Charter. The Constitutional Court is convinced that the duty of the courts to find the right is not only to seek direct, specific and explicit guidance in the legal text, but also to identify and formulate what is a specific law, even where it concerns the interpretation of abstract standards, constitutional principles, provisions of the Charter and obligations arising from international treaties. The scope of such interpretation and its importance is undoubtedly greater where the application of legal regulations is concerned, which are no longer entirely satisfactory, but are not in principle even unconstitutional. Of the many conceivable interpretations of the law, only one that respects constitutional principles (if such an interpretation is possible) must be used, and the repeal of the provisions of the law for non-constitutionality must be allowed only if the provision concerned cannot be applied without violating the constitutionality (principle of minimising intervention).

This is particularly true of § 269 and 270 of the Criminal Act. As regards the very right to refuse military active service, the Constitutional Court considers it its duty to emphasise that it is a right which is constitutionally bound to comply with the condition of Article 15 (3) of the Charter and must therefore be understood by all courts as a special provision for the freedom of conscience, which is one of the fundamental constitutional freedoms. There are similar arrangements in other European countries, where this right is only bound to fundamental reasons inherent in freedom of conscience. In this context, it can only be pointed out, for example, that the decision of the Federal Constitutional Court of Germany, which did not recognise as a reason to deny the service of concern that, in the event of a war (for the existence of the GDR), the Germans would have to fire against Germans (Entscheidungen, St. 12, p. 45), because that reason did not achieve the value of an argument of principle.

In the Czech Republic, too, the intensity of this internal conflict may be based on the protection of the constitutional subjective right of freedom of conscience against the statutory obligations imposed. In this context, Article 15 (3) of the Charter does not allow the State to enforce the military service.

As regards the principle of "no bis in idem ', it is expressed in the Charter by the words" No one may be prosecuted for an offence for which he has already been convicted or acquitted' (Article 40 (5)). The impossibility of further prosecution for the same act is thus a fundamental constitutional right of a procedural nature. The term "act 'cannot be identified with the term" conduct'. A number of different negotiations can be seen as a single act in their totality, when it comes to acts that are in a direct connection with each other in the internal relationship, so it is more of a manifestation of the same act. Therefore, in any assessment of an individual case, it is necessary to examine not only the serious reasons for conscience and the persistence of the intention, but also the interconnections of the same person's repetitive actions.

The Supreme Court proposes the abolition of both Sections 269 and 270 of the Criminal Act and of Section 22 (1) of the Defence Act on the basis of an interpretation which makes clear the cycle and consistency of the mutual conduct of military administration and courts. It states that the military administration of Section 22 (1) of the Law of Defense allows for the re-call to take up a military active service, the non-compliance of which constitutes a criminal offence, and Section 269 of the Criminal Act does not preclude repeated convictions for that offence. The unconstitutional nature of all these standards is seen in conflict; Military administration feels obliged to require the punishment of such persons even in cases where, according to the opinion of the Constitutional Court, the principle of "no bis in idem" needs to be applied, but the general courts feel bound by each individual non-military service to be seen as a new offence.

In the view of the Supreme Court, this creates a situation which is intolerable from the point of view of the rule of law, because, on the one hand, the law imposes a specific significant obligation on a citizen, but it is inenforceable to fulfil that obligation. However, the Constitutional Court considers that in the present case it is not about the enforceability of the obligation, since what obligation requiring active action is even enforceable? It is not about fulfilling this obligation, but about prosecuting its failure. This is a matter for the courts which each individual case must reasonably consider in its circumstances. For example, Article 294 of the Criminal Act, according to which it is not a criminal act of conduct, which shows the characteristics of § 270 of the Criminal Act, whose degree of danger to society is however small. On the other hand, however, in cases under Section 269 and 270 of the Criminal Act, the imposition of the sentence is not - according to the circumstances of an individual case - excluded either.

The Minister of Justice responded to the excessive interpretation of the law by lodging a complaint for a violation of the law in cases of retrial for non-military service to persons who had previously permanently refused military service for reasons of conscience and religion and had previously been convicted. In another context, it has turned to the Supreme Court in the case of a person who has been sentenced to imprisonment for one year unconditionally and who - although he has performed military service - did not later resume five-day military exercises. It was in this case that Article 294 of the criminal law and the inadequacy of the prescribed sentence were referred to in the complaint.

In fact, it is not a question of whether a defence law "allows" something, and the criminal law "does not" exclude "anything," but much more of a question of whether both laws command something in the whole context of constitutional order, namely whether the defence law commands military administrations to initiate criminal prosecution in those cases, and whether the criminal law commands the general courts to prosecute these persons again for the same act, even in view of the constitutional principles in force. That is not the case. On the contrary, the constitutional principle of Article 40 (5) of the Charter clearly and unambiguously excludes a retrial for the same act.

As regards the proposal to abolish Paragraph 22 (1) of the Law of Defence, the Constitutional Court first concluded that, in the light of the principle of "no bis in idem ', the resuming of military active service by the military administration cannot be completely ruled out in the light of the wording of the Law of Defence only if that law was interpreted without regard to the subsequent judicial protection of citizens. That constitutional principle applies only to criminal prosecution and provides sufficient protection against this eventuality. This is clear from the text of Article 40 (5) of the Charter, according to which no one can be prosecuted for an offence for which he has already been convicted or acquitted. It can therefore be argued that - even if the re-summons do not expressly prohibit the law of defence in itself - in the case of persons who have already been convicted or acquitted of a service once, their reoccupation, in terms of the principle of proportionality, which is in force in the rule of law, is unnecessary because it is not an appropriate means of achieving the desired objective, namely the performance of the service, if the court fulfils its duty and applies the" no bis in idem' principle wherever it is obliged to do so. Therefore, the core of the problem is not the conduct of military administrations, but, above all, general courts, if they do not respect the principle of 'no bis in idem'.

In this situation, it is therefore appropriate to seek other possibilities for interpreting the law of defence where the calling of military administrations in the final effect comes to constitutional principles and brings unnecessary costs to the state not only judicial but also to the legitimate defence of the disabled. The State must assume that it will cover the costs of such defence wherever, as a result of maladministration, the defence costs have been incurred (in the case mentioned under No 32 / 1997 Coll., the costs have been paid by the Ministry of Justice). It is up to the Minister of Defence to consider the possibilities of resolving this irregularity through internal instructions.

The nature of § 22 (1) of the Defence Act and those circumstances do not support the annulment of that provision. The guarantee of the constitutional principle "ne bis in idem 'must be sought in the judicial authority in cases of recalling for military service. The Constitutional Conformance of the Courts remains the primary means of providing not only effective protection for the rights guaranteed by the Charter, but can and should also encourage military authorities to seek such routes and ways to prevent unnecessary and costly litigation by the State. The Constitutional Court has no choice but to repeat to the Constitutional Court, as it had already done in its finding of 28 August 1997 in sp. zn. IV. ÚS 82 / 97, the General Court, that" if the criminal law in Paragraph 269 (1) provides for a significantly stricter penalty for those who do not engage in 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 the 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 comply cannot be regarded as a new offence if the intention of not continuing the service has been established in previous court proceedings. "The case law of the Constitutional Court is therefore clear and provides sufficient interpretative instruments for courts to intervene where there has been a breach of the' no bis in idem 'principle. In the current legislation, Article 269 and 270 of the Criminal Act will suffice, however the Constitutional Court can imagine a regulation that will be better suited to the needs of this issue in the future. However, the Constitutional Court only decides" de lato' and therefore has no choice but to state that neither Section 269 and 270 of the Criminal Law can be characterised as unconstitutional unless their interpretation excludes an interpretation which respects the constitutional principle of Article 40 (5) of the Charter.