The Constitutional Court found No 434 / 2006 Coll.
The Constitutional Court's finding of 3 May 2006 on the application for annulment of § 21 (2) of Act No. 140 / 1961 Coll., Criminal Act, as amended, and on the annulment of § 403 (2), § 411 (6) (e), § 411 (7) and § 412 (2) of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended
Valid
The Constitutional Tribunal found
Text versions:
08.09.2006
434
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 3 May 2006 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimir Kórka, Dagmar Lastovecká, Jiří Mucha, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Group of Members of the Parliament of the Czech Republic and the group of Senators of the Senate of the Czech Republic to abolish § 21 paragraph 2 of Act No. 140 / 1961 Coll., the Criminal Act, as amended, and to repeal § 411 paragraph 6 (e), § 411 (7) and § 412 (2) of Act No 141 / 1961 Coll.
as follows:
The application for annulment of Article 21 (2) of Act No. 140 / 1961 Coll., Criminal Act, as amended, and for annulment of § 403 (2), § 411 (6) (e), § 411 (7) and § 412 (2) of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended, is rejected.
Reasons
Definition and recap of the proposal
1. On 26 November 2004, the Constitutional Court received a proposal from a group of Members of the Chamber of Deputies of the Parliament of the Czech Republic and a group of Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the draftsmen ') on the date of the declaration of findings in the Collection of Laws.
2. In the introductory part, the appellants summarised the reasons and circumstances for adopting the legislation referred to above. Paragraph 21 (2) of the Criminal Act was adopted by amendment of this Act No. 537 / 2004 Coll. and § 403 (2), § 411 (6) (e), § 411 (7) and § 412 (2) of the Criminal Code were adopted by its amendment No. 539 / 2004 Coll. According to the appellants, these provisions (hereinafter referred to as "the contested provisions') are contrary to Articles 1, 4 (2), 14 (4) and 39 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter '). By those amendments the so-called "European Arrest Warrant" was implemented into the Czech legal order, in accordance with Framework Decision 2002 / 584 / JHA of the Council of the European Union of 13.6.2002 on the European Arrest Warrant and the surrender procedures between Member States ("Framework Decision").
3. The applicants pointed out that initially the Government of the Czech Republic, at the same time as the draft amendments mentioned above, also proposed an amendment to Article 14 of the Charter by inserting a fifth paragraph, which was intended to read: "A citizen may be transferred to a Member State of the European Union for criminal prosecution or for the execution of a custodial sentence if this results from obligations of the Czech Republic as a Member State of the European Union which cannot be restricted or excluded." The draft amendment to the Charter was rejected by the Chamber of Deputies on 2 April 2004. After that, the amendments to the third law and order were adopted by the Chamber of Deputies and against the veto of the President of the Republic, who argued their unconstitutionality.
4. According to the contested provisions, a citizen of the Czech Republic can be transferred abroad (i.e. to a Member State of the European Union) for the purpose of prosecuting him, which is due to taxiously defined reasons preventing the transfer of the requested person referred to in § 411 (6) (a) to (e) of the criminal order. Among these reasons it is not stated that the reason for refusing the transfer of a person is that it is a Czech citizen. The fact that a Czech citizen can be extradited to another EU Member State results, in addition to Article 21 (2) of the Act and Article 403 (2) of the Order, also from the provisions of § 411 (6) (e) and § 411 (7) of the Order, even indirectly. These provisions constitute some exception to the obligation to issue a citizen to another EU Member State. At the same time, it follows from these provisions, using the argument and contrario, that the court will always comply with the request for the transfer of the requested Czech citizen when he is to be transferred to another Member State for the purpose of prosecution.
5. The provisions indicated are therefore contrary to Article 14 (4) of the Charter, according to which a citizen must not be forced to leave his country. The prohibition in this article of the Charter is clear and unconditional. The right of a citizen not to be forced to leave his country is a fundamental right which, within the meaning of Article 1 of the Charter, is inalienable, inalienable, unbiased and irrevocable. A citizen can't even possess it. The Charter does not allow this fundamental right to be restricted by the law. The explanatory memorandum to the proposed amendment to the Charter, rejected by the Chamber of Deputies of the Parliament of the Czech Republic on 2 April 2004, was also agreed. The appellants pointed out that the Government of the Czech Republic, as the promoter of the amendment to the Criminal Act and the Criminal Code, changed its argument after its proposal to amend the Charter was rejected. It was only from April 2004 that the government began to argue that an amendment to the Charter was not necessary, as the amendments tabled by both criminal codes do not contradict it.
6. According to the appellants, forcing a citizen to leave his country, within the meaning of Article 14 (4) of the Charter, is of a similar nature to the expulsion of a stranger within the meaning of paragraph 5 of that Article. In both cases, this is against the will of the person concerned. Moreover, the consequence of this state intervention is to prevent a citizen from entering the territory of the Czech State, which is another right expressly recognised by the Charter (Article 14 (4), sentence of the first Charter). According to the applicants, "argument and minori ad maius' must also be used. If the Charter prohibits forcing a citizen to leave the country, which can be understood as a minimum indirect coercive (indirect coercion), it is all the more likely to prohibit its transmission, which is forced by direct means, i.e. through forced restriction of freedom in transfer detention and subsequent surrender to EU Member State authorities.
7. The appellants argue with the interpretation of the Charter, which was justified by the constitutional consistency of the contested provisions by the then Minister of Justice K. Cermak in his speech in the Chamber of Deputies. According to him, Article 14 (4) The Charter prevents state authorities from exerting pressure on individuals to leave the Republic, as was the case with the so-called 'Asana'. According to the appellants, the objective sense of Article 14 (4) of the Charter, which is independent of the historical motives of the adoption of this regulation, should be sought. It is incorrect to rely on the legislator's historical motives, but rather it must be based 'on the text of the law, which alone can support objective conclusions on the meaning and purpose of the rule of law, even in a changing social context'.
8. From the constitutional point of view of the contested scheme, the national civil relationship between the State and the citizen is disrupted. In this context, the appellants referred to the finding of the Constitutional Court published under No 207 / 1994 Coll., under which the citizen has the right to protection by the State. The contested provisions are in conflict with this, and any modification of this principle would be possible only on a constitutional level, not merely legal.
9. The ban on expatriation of their own citizens is, according to the applicants, a general principle recognised in the EU countries, as evidenced by the citation of the relevant constitutional provisions of a number of EU Member States. Illustration is particularly a Slovak solution, where the amendment to Constitution No. 90 / 2001 Z. changed the original provision of Article 24 (3) of the Constitution of the Slovak Republic by giving every citizen the right to free entry into the Slovak Republic. It is not possible to force a citizen to leave the country, it is not possible to expel him or to extradite him or another state. ") the words" or to extradite another state "have been deleted. Constitutional change has also occurred in Germany or France. From a comparative point of view, it is therefore not possible to break the principle of protection of state citizens and to pass them on to the EU State for criminal proceedings without the relevant constitutional change.
10. According to the appellants, the contested regulation (inter alia, § 412 (2) of the Rules of Procedure) is also contrary to Article 39 of the Charter, according to which: "Only the law determines which conduct is a criminal offence and what punishment, as well as other damage to rights or property, may be imposed for its commission. 'Paragraph 412 (2) of the Rules of Procedure takes over the verbatim adaptation of Article 2 (2) of the Framework Decision, according to which for the offences listed there for the transfer of a person to criminal proceedings abroad, there is no need for double criminality. The appellants argue that, apart from the name, there is no definition of such offences. It will therefore be possible for a Czech national to be handed over for prosecution abroad without being handed over for an act that would be criminal under Czech law. As a particularly serious problem, the appellants see this in those acts that can be committed" remotely, "for example by means of computer technology. This may be a wide range of negotiations which will fall under the list of Section 412 (2) (k) of the Order (" computer crime "). In such cases, knowledge of all criminal rules of EU countries is required. As a problem, though smaller, the applicants see this as a problem for those acts that can only be committed in the territory of a given state, even if this may be a problem in the development stages of the crime. Some of the negotiations referred to in Article 412 (2) of the Rules of Procedure do not have an equivalent in the Czech legal order, e.g. arson referred to under (cc) of that provision. In the case of trade in stolen vehicles pursuant to § 412 (2) (aa) of the Third Order, it is alleged that blame in the form of negligence may be taken into account in some EU countries and that citizens could only find out about them through a detailed study of foreign criminal law. It is certainly not possible to require citizens to be experts in the law of all EU countries, as this would be contrary to the principle of" ultra posse nemo tenetur. "The legislator will be obliged to address this problem at the level of the law, e.g. by publishing a list of criminal standards in the 25 EU countries.
11. The appellants pointed out that, as regards the compatibility of the contested provisions with the constitutional order of the Czech Republic, it cannot be argued that, as a result of the principle of the primacy of European law over domestic law, there was an indirect modification of the constitutional order, namely Article 14 (4) of the Charter. This could only be argued if the Framework Decision was a directly applicable Community act, which it is not. Meaning of Article 14 (4) The Charter cannot be modified by the principle of Euroconformal interpretation either, as the obligation of the State to interpret domestic law in line with European law is not unlimited and does not go so far as to force the Member State and its courts to interpret national rules, including the Constitution, contrary to its wording. Article 14 (4) The Charter prohibits force to leave the country without exception, so that its Euroconformal interpretation in the sense that forced leave of the country is allowed under certain circumstances would clearly be an interpretation going against the text of that Article.
Recital of the essential parts of the observations of the parties
12. To the invitation of the Constitutional Court they submitted observations as parties to the proceedings pursuant to § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as "the Law on the Constitutional Court" Chamber of Deputies of the Parliament of the Czech Republic and Senate of the Parliament of the Czech Republic.
13. According to the Chamber of Deputies, Paragraph 21 (2) was added to the Criminal Act by Act No. 537 / 2004 Coll., which was discussed by the Chamber of Deputies in the 4th parliamentary term, as House Press No. 514. The bill was passed at 3rd reading on 30 June 2004 and, after approval by the Senate, it was returned to the Chamber of Deputies on 23 August 2004 for reconsideration.
14. Paragraph 403 (2), § 411 (6) (e), § 411 (7) and § 412 (2) were added to the Code of Criminal Procedure by Act No 539 / 2004 Coll., which also discussed the Chamber of Deputies in the 4th parliamentary term, such as the House Press No. 533. The bill was passed at 3rd reading on 30 June 2004 and, after approval by the Senate, it was returned to the President of the Republic, on 23 August 2004, to the Chamber of Deputies for reconsideration. Against the veto of the President of the Chamber of Deputies, the necessary number of votes remained in the laws adopted on 24 September 2004. Subsequently, both laws were signed by the President of the Chamber of Deputies of Parliament and the Prime Minister and duly declared in the Collection of Laws.
15. On the substance of the matter, the Chamber of Deputies stated that the repeal of the contested provisions would not change the fact that, under the European arrest warrant, a Czech citizen could be transferred to another Member State of the European Union, and, on the contrary, citizens of the Czech Republic would lose their position more favourable than those who are not citizens of the Czech Republic. While the Government has submitted to the Chamber of Deputies, together with those amendments to both criminal codes, the draft amendment to the Charter, but the Chamber of Deputies stressed that Parliament of the Czech Republic is a sovereign representative of the constitutional and legislative power. He was therefore not bound by the legal opinion of the author of the amendment to the Charter (in this case the Government of the Czech Republic) and was entitled to take his own view on the matter.
16. In the context of the proposal submitted, the Chamber of Deputies distinguishes between two types of surrender of citizens of the Czech Republic on the basis of a European arrest warrant. First, it is a surrender for the execution of a prison sentence or protective treatment or protective education, which is subject to the consent of a citizen of the Czech Republic, pursuant to § 411 (6) (e) of the Rules of Procedure. It cannot therefore be said that there is a breach of Article 14 (4) of the Charter, since a citizen's disagreement will justify the decision to refuse the transfer. It is also about the transfer of a citizen of the Czech Republic to another EU Member State for prosecution, which is not conditional on the consent of a citizen. When discussing the Chamber of Deputies, it was reached that this issue was not contrary to Article 14 (4) of the Charter, arguments that could be divided into three groups.
17. The first arguments were historic. When adopting the Charter, the legislature responded to the practice before 1989, when the ruling regime forced many citizens to leave the Republic, although they did not want to do so. Article 14 (4) The Charter is to be understood as a period response to the "Asanation" action from the period of the Czechoslovak standardisation regime. It follows from the historical interpretation that at the time of the adoption of the Charter, the legislator did not mean a ban on expulsion of citizens abroad for prosecution, but a ban on expulsion of its own citizens. In the majority view of the House, it is clear that the words used in the second sentence of Article 14 (4) "forced to leave the country" are to be seen as a non-refundable process, not as a temporary transfer of a person to a third State for prosecution, after which the citizens of the Czech Republic will not be obstructed on their return to the country. The historical method of interpretation was also used by the Constitutional Court, for example, in the context of Article 12 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), where it stated, inter alia, that:" Article 12 (2) of the Constitution, which states that no person may be deprived of his citizenship, reacts, in particular, to the institution of withdrawal of citizenship from before November 1989 and seeks to prevent such interference in citizens' rights'.
18. The second group was a comparative argument. Czech legislation is the nearest Slovak legislation. In the Constitution of the Slovak Republic, an explicit ban on the extradition of own citizens was expressed in Article 23 (4), according to which: "Every citizen has the right to free entry into the territory of the Slovak Republic. It is not possible to force a citizen to leave his country, it is not possible to expel him or to extradite him." Following the amendment of the Constitution by Act No. 90 / 2001 Z. z., which deleted the final words "nor to issue to another state," the marked article of the Slovak Constitution reads: "Every citizen has the right to free entry into the territory of the Slovak Republic. A citizen cannot be forced to leave the country, and cannot be expelled." The Slovak regulation therefore consistently distinguishes the terms "force to leave the country" from "extradition of another state."
19. The last argument is that one of the constitutional requirements imposed on the Czech Republic is also compliance with obligations under international law (Article 1 (2) of the Constitution). From Article 2 The Act concerning the conditions of accession of the Czech Republic and other countries to the European Union shows that, from the date of accession, the provisions of the original Treaties and of the acts adopted by the Community institutions and the European Central Bank before the date of accession become binding on the new Member States and apply under the conditions laid down in those Treaties and in this Act. Failure to adopt the arrangements for implementing the European Arrest Warrant would infringe Article 1 (2) of the Constitution.
20. The Chamber of Deputies noted that even if the appellants' opinion was correct that Article 14 (4) of the Charter prohibits the transfer of citizens of the Czech Republic to another EU Member State, it would not be possible to conclude on the unconstitutionality of the contested provisions. In such a case, the conflict of fundamental rights under Article 14 (4) of the Charter and the constitutionally protected value provided for in Article 1 (2) of the Constitution should be dealt with by their reciprocal measurement, as is apparent from the case-law of the Constitutional Court (see, for example, the find sp. zn. The Chamber of Deputies also stated that the provisions of Paragraph 412 (2) of the Rules of Procedure are identical to the exhaustive list referred to in Article 2 (2) of the Framework Decision on a European Arrest Warrant, which does not give Member States the possibility of diverging legislation. This implementation does not change the criminal responsibility of Czech citizens for the actions they commit in the territory of EU Member States. The citizens of the Czech Republic have been affected by and are affected by the criminal laws in force in the territory of other European Union countries if they commit criminal activity in the territory of those States (principle of territorial integrity).
21. It follows from the opinion of the Senate of the Parliament of the Czech Republic that the debate in the Senate when discussing both amendments resulted in the conclusion that the content of Article 14 (4) of the Charter does not prevent the implementation of the European Arrest Warrant. Article 14 (4) The Charter is expressed by the ban on excommunication, expulsion, expulsion, etc., which is an obvious "reminiscence link to the period of totalitarian power," so the term "expulsion" was not used but "forced abandonment of the country." The transfer to criminal proceedings in an EU Member State is a substantially different category as it does not disturb the civil union. Criminal prosecution in the EU does not necessarily have to take place in a binding manner, and voluntary submission of the accused to individual commuting procedures can be envisaged. Article 14 (4) of the Charter does not prohibit the extradition of a citizen into an EU Member State for the purpose of criminal prosecution.
22. The traditional concept of extradition for criminal prosecution is not a "core constitutional category," but it is based rather on the principles of criminal law. When a state is based on the principle of personality, it usually does not issue its citizen, the State gives priority to the principle of territory.
23. The Senate also pointed out the historical context of the ban on extradition at the level of the law. The imperial ban on extradition of subjects from 1772 and its inclusion in the penal code of 1852 corresponded to the period peak of the consolidation of absolute power, with its territorial and personnel expression. In the European Union, on the contrary, borders are losing meaning. Citizens of the Czech Republic are also EU citizens, using, inter alia, freedom of movement within the Union. These rights and freedoms are also balanced by the acceptance of some responsibility in creating a single European legal area. All EU Member States must comply with European standards of the rule of law, including the application of the principles of a fair process. Moreover, Article 7 of the EU Treaty provides for the possibility of suspending the rights of a Member State in a situation where serious violations of the rule of law by that State are found.
24. Critics of the proposals of the two amendments were based in the Senate debate on the fact that the purposeful interpretation of Article 14 (4) of the Charter would be a bad example for the future. It is not necessary to interpret the clear and understandable rule of the Charter, but it is necessary to go through the adaptation of the provisions of the Charter in question in order to allow the implementation of Union law without contrary to constitutional order. The restrictive interpretation of the provisions on fundamental human rights and freedoms is unacceptable.
25. As regards the appellants claimed to break the principle of mutual criminality, the criticism of some senators pointed out that, so far, there has been minimal harmonisation of criminal standards in the European area. On the contrary, the supporters of the two amendments pointed out that, in principle, this would be a penalty for the perpetrators of crimes committed in the territory of a given foreign State. In addition, all negotiations that break double-sided criminality are in fact also criminal under Czech law, and are only otherwise named.
26. In accordance with Article 42 (3) of the Law on the Constitutional Court, a statement by the Minister of Justice was requested. According to this statement, the fact that the previous Minister of Justice (Mr Čermák) submitted, at the same time as the draft amendments to the Criminal Law and the Criminal Code, also the draft amendment to Article 14 (4) of the Charter did not mean that the amendment to that provision of the Charter was necessary. It did so only in view of the failed attempt to ratify the Statute of the International Criminal Court, which showed the inconsistency of the views of both the professional and lay public on the interpretation of Article 14 (4), second sentence, of the Charter. At the time, the Ministry presented a proposal for an amendment to the Charter in the event that Parliament took the view that such an amendment was necessary.
27. In addition to the linguistic and systematic interpretation argued by the appellants, it is necessary to examine this provision of the Charter in its entirety and to take into account in particular the circumstances of its creation and other context. The proclamed ban on extradition of citizens abroad did not include any of the institutes in the Czechoslovak or Czech past. On the contrary, the institutions of 1920 and 1948 protected the right quite different, namely the right to move out of the territory of the Czechoslovak State. Article 14 (4) of the second Charter must be understood as a guarantee against the violent eviction of politically inconvenient persons.
28. The Minister referred to Article 23 (4) of the Constitution of the Slovak Republic in the same sense as the Chamber of Deputies. The Czech Constitution has never included a ban on expatriation (an extradition ban) and it does not include such a ban today. Similarly, the comparative arguments put forward by the applicants will not stand up. Like the Czech Constitution, neither extradition nor the Hungarian, Spanish and Swedish Constitution are prohibited. This depends on the constitutional tradition of a particular state, whether the question of extradition is a question of constitutional or not.
29. He also referred to the last case-law of the EC Court (hereinafter the "ECJ ') in Case C-105 / 03 Maria Pupino of 16.6.2005, in particular the obligation to interpret domestic law in line with the Framework Decision issued under the Union's obligations under the III Pillar. The Court of Justice of the ECJ in the field of the III Pillar has to attach the same effects as in the first pillar, for the reasons of the declaration made by the Czech Republic when acceding to the EU (Declaration No 26 of the Czech Republic on Article 35 of the EU Treaty, Final Act to the Treaty of Accession of the Czech Republic and other countries to the EU, published under No 44 / 2004 Coll.). No fundamental right of a citizen under the Charter can be affected by the transfer to an EU country, as the death penalty is abolished in those countries, the right of defence is guaranteed and Article 6 of the EU Treaty also binds those countries to the protection of human rights.
30. The Charter concerns the conditions of criminal liability and regulates the principle of "nullum crimen sine lejno," which is by its very nature a principle of substantive criminal law. Paragraph 412 (2) of the Rules of Procedure does not affect this principle because it does not lay down new conditions of criminal liability, but regulates the conditions for the application of the procedural institution of surrender on the basis of a European arrest warrant. In such cases, criminal proceedings shall be conducted abroad and the task of the prosecutor and the court in the transfer proceedings shall not be to examine the question of whether a particular person has committed a crime, but only to assess whether the conditions for the transfer of that person to another EU Member State are given. Whether the action described in the European Arrest Warrant is a criminal offence is always provided for by the law of the requesting Member State. By transposing Article 2 (2) of the Framework Decision on a European Arrest Warrant, the review of the bilateral criminal proceedings for which surrender is requested is not completely withdrawn but limited. The offence of an act under Czech law will not be assessed only if two conditions are cumulatively met, i.e. that it is an offence for which a custodial sentence of at least three years may be imposed in a Member State, or that a protective measure involving a restriction of freedom of at least three years is imposed, and that the offence consists in the conduct referred to in Article 412 (2) of the Rules of Procedure.
31. All in § 412 (2) of the Rules of Procedure are criminal in all EU countries and are also criminal in the Czech Republic. If the list of criminal acts in § 412 (2) of the Rules contains concepts which our law does not know, this does not mean that these are non-criminal acts in the Czech Republic. For example, "arson" corresponds to the facts of the offences defined in § 179 or 180 of the criminal law (general threat) and may, for example, in the case of computer crime, be an act of fraud (§ 250 tr. of the law) or damage to foreign rights (§ 209 tr. of the law).
32. In any event, if the judicial authority of the requesting Member State indicates in the European Arrest Warrant that it considers the act to be one of the acts referred to in Article 2 (2) of the Framework Decision, this does not mean that our judicial authorities shall decide without further delay to transfer the requested person. On the contrary, should a public prosecutor already have reasonable doubts in the context of the preliminary proceedings about subsumption of action under one of the criminal offences referred to in Article 2 (2) of the Framework Decision, he should request additional information from the judicial authority of the requesting Member State to remove such doubts.
33. Moreover, the abolition of the review of the mutual criminal conduct is nothing new in the area of judicial cooperation in criminal matters. The Czech Republic has since 1992 been a Contracting Party to the European Convention on Mutual Assistance in Criminal Matters (No 550 / 1992 Coll.), which does not require the fulfilment of the conditions of mutual criminal conduct (interpretation of Article 5 of that Convention and contrario) to provide legal assistance to the requesting State.
34. On Article 4 (7) of the Framework Decision, the Minister stated that the reasons set out in this Article are optional and it is therefore up to the Member State to decide whether or not to transpose them into its legal order. These are essentially grounds of refusal, identical to the optional reasons for refusal of extradition pursuant to Article 7 (1) and (2) of the European Convention on Extradition (No 549 / 1992 Coll.), so it is not a completely new institute. The reason for the refusal of a European arrest warrant pursuant to Article 4 (7) (a) of the Framework Decision shall apply only if the Czech law enforcement authorities have already initiated criminal proceedings for a criminal offence committed in Czech territory, which is the same as that for which a European arrest warrant has been issued, if the person has been convicted of such an offence and the sentence has been executed, executed or cannot be executed, or the transfer is prevented by another obstacle not bis in idem [§ 411 (6) (c) and (d) of the Order]. According to the Minister, it is not always appropriate to use this institute. For example, this may be a distance crime of illegal crossing the state border under Article 171a (3) of the Act. The reason for the rejection of the European Arrest Warrant under Article 4 (7) (b) of the Framework Decision was not transposed into the Czech legal order.
35. To express the Chamber of Deputies and the Senate, the appellants submitted a comprehensive reply in which they reiterated the substance of their arguments in the proposal. Where the Chamber of Deputies has recognised in its observations the possibility of applying the principle of proportionality in order to resolve the conflict between Article 14 (4) of the Charter and Article 1 (2) of the Constitution, the appellants state that the principle of proportionality is only relevant if it leads to two rules or the need to respect two values for incompatible consequences. In this case, this is not a collision, because by applying to international legal obligations, the Czech Republic certainly did not want to weaken the standard of protection granted by national law to its citizens. In this context, they referred to Article 17 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), according to which no international legal commitment can lead to a weakening of the national protection of the rights and freedoms of individuals. In addition, Article 1 (2) The Constitution is a commitment by the state and not by individuals.
36. The application for annulment of Paragraph 412 (2) of the Rules of Procedure was made by the appellants, on the one hand, because they are abandoning the principle of mutual criminality, on the other, because it does not contain an account of the facts of the offences, but only their names. They pointed out the fundamental principles of criminal law, with the fact that these requirements constitute the fundamental principles of a democratic rule of law on which to insist, so that the condition of Article 9 (2) of the Constitution is fulfilled.
37. As regards the Senate's observations, the appellants pointed out that the substance of the problem is the wording in Article 14 (4) of the Charter, i.e. "forced to leave the country '. The transfer of a citizen to another EU country will undermine the citizens' trust in its state of protection against other countries, which is also a consequence of national sovereignty, which also exists in the EU. In this respect, the appellants referred to the decision of the Federal Constitutional Court of Germany of 18.7.2005, according to which" the extradition of a citizen to another State distorts the citizen's special relationship with the legal system in which he is involved '. The appellants do not share the Senate's conclusion that EU states respect the same standard of human rights protection and pointed out the results of the European Court of Human Rights decisions, when 18 judgments against Austria, 12 against Belgium, 10 against Finland, 50 against France, 100 against Greece, 67 against Italy, 17 against Hungary, 44 against Poland and 15 against the United Kingdom were issued in 2005 alone.
38. In the second part of their reply, the appellants pointed out the problems associated with the implementation of the Framework Decision on the European Arrest Warrant, which affects two constitutional problems. The first is the contradiction with Article 14 (4) of the Charter and the second is the violation of the fundamental principles of the democratic rule of law. The implementation of the European Arrest Warrant does not respect the unexceptional constitutional ban on the transfer, extradition or otherwise forcing its own citizens to leave the state. It also does not respect the fundamental legal principles inherent to all EU Member States, which are the predictability of law, the principle of legality and the principle of formal publicity of law. In particular, these principles were infringed by abandoning the principle of mutual criminality, which, perhaps the only one, could legitimise the potential possibility of extraditing persons who committed criminal acts in that State to another EU State.
39. As regards the issue of European law, the appellants pointed out the conclusions of the finding on the part of Mr Pl. ÚS 50 / 04, where the Constitutional Court stated that the priority of European law is not absolute and that Member States can reserve reservations in particular on issues where the principles of the democratic rule of law or the area of protection of fundamental rights and freedoms are at stake.
Conditions for the applicant's active legitimacy
40. The proposal, which is subject to the examination of the Constitutional Court, was submitted by a group of forty seven Members of the Chamber of Deputies of the Parliament of the Czech Republic and a group of twenty-one Senator, in accordance with the conditions contained in Paragraph 64 (1) (b) of the Law on the Constitutional Court. Therefore, the conditions of active legitimacy are met on the part of the applicants.
Constitutional conformity of the legislative process
41. The Constitutional Court, in accordance with Paragraph 68 (2) of the Law on the Constitutional Court, must first assess whether the contested law has been adopted and issued within the limits of the Constitution laid down by competence and by a constitutional procedure. According to data from the Chamber of Deputies of the Parliament of the Czech Republic, publicly available on its website (http: / / www.psp.cz), both the draft law amending the criminal law and the draft law amending the criminal order were submitted to the Chamber of Deputies by the Government of the Czech Republic on 12 November 2003. Both proposals were approved on 30 June 2004 by resolutions of the Chamber of Deputies Nos 1224 and 1225. Of the 183 Members present, 92 were opposed to the draft amendment to the criminal law. 93 of the 185 Members present were opposed to the draft amendment to the Code of Criminal Procedure and 85 were opposed.
42. The draft amendment to the penal law was then approved, on 29 July 2004, by votes 35 of the sixty-two senators present (resolution 339), the draft amendment to the penal order was approved on the same day by the same number of votes (resolution 400). The President of the Republic returned both laws, on 23 August 2004, to the Chamber of Deputies, which, with the vote of 101 Members and 105 Members, remained on the amendment to the criminal law, on the returned laws. Both laws have been properly declared under No 537 / 2004 Coll. and No 539 / 2004 Coll. It follows from the above findings that both laws were adopted and issued in the prescribed manner.
Dedication of the contested provisions of the Criminal Act and the Criminal Code
43. To repeal the proposed provision of Paragraph 21 (2) of the Criminal Act (Act No. 140 / 1961 Coll., as amended), it reads: "A citizen of the Czech Republic may be transferred to another Member State of the European Union only on the basis of a European arrest warrant."
44. The proposed provisions of the Code of Criminal Procedure (Act No. 141 / 1961 Coll., as amended) read as follows:
Paragraph 403 (2): "The Czech Republic may transfer its own citizen to another Member State of the European Union only on reciprocal terms."
Paragraph 411 (6) (e) (governing one of the situations where a court rejects the transfer of a requested person): "this person is a national citizen of the Czech Republic or has a permanent residence in the Czech Republic, his transfer is required for the execution of a custodial sentence or protective treatment or protective education and the person before the competent court declares in the Protocol that he refuses to submit to the execution of that sentence or safeguard measure in the requesting State; This declaration shall not be withdrawn. '.
Paragraph 411 (7): "Where a national of the Czech Republic or a person residing in the Czech Republic is transferred to the requesting State for criminal prosecution, the court shall make the surrender conditional upon that person being returned to the Czech Republic for the purpose of serving a custodial sentence or protective treatment or protective education, if such a penalty or protective measure is imposed on him and after a judgment has been delivered in the requesting State, that person does not consent to the execution of the sentence or protective measure in the requesting State. This is the case only if the requesting State has provided a guarantee that it will transfer the person to the Czech Republic for execution of the sentence or safeguard measure. In the absence of a guarantee by the requesting State, the court shall refuse the transfer of the requested person. '.
45. Paragraph 412 (2) (which is in substance related to paragraph 1 of the same provision, calculates negotiations where the Czech court does not detect their criminality under the law of the Czech Republic):
"The acts referred to in paragraph 1 shall mean:
(a) participation in a criminal organisation;
(b) terrorism;
(c) trafficking in human beings;
(d) child sexual abuse and child pornography,
(e) illicit trafficking in drugs and psychotropic substances;
(f) illicit trafficking in arms, ammunition and explosives;
(g) corruption;
(h) fraud, including fraud affecting the interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests;
(i) the legalisation of the proceeds of crime;
(j) counterfeiting of currency;
(k) computer crime;
(l) environmental crime, including illicit trade in endangered species and plant species and their breeds and varieties;
(m) facilitation of illegal crossing of the national border and of illegal residence;
(n) murder, serious injury to health,
(o) illicit trade in human organs and tissues;
(p) kidnapping, restriction of liberty and hostage taking,
q) racism and xenophobia,
(r) organised or armed robbery;
(s) illicit trafficking in cultural goods, including antiques and works of art;
(t) fraudulent conduct;
(u) extortion and recovery of protection money;
(v) counterfeiting and piracy of products,
(w) forgery of public documents and trafficking in public documents;
(x) counterfeiting of means of payment;
(z) illicit trafficking in nuclear or radioactive materials;
(y) illicit trafficking in hormones and other growth promoters;
(aa) trade in stolen vehicles;
(bb) rape,
(cc) arson,
(dd) offences under the jurisdiction of the International Criminal Court,
(ee) hijacking of an aircraft or vessel;
(ff) sabotage. ';
Classic extradition and transfer of persons between EU Member States based on a European Arrest Warrant
46. According to the doctrine of criminal law, extradition means the extradition of a person by the State in whose territory he is located, by another State in his or her capacity, for the purpose of prosecution or for the execution of the sentence. The goal of extradition is to prevent the perpetrator from escaping the prosecution or execution of the sentence by fleeing to another state. The obligation of the State of residence to extradite the offender is usually established on the basis of an international agreement (exclusive contract, legal aid contract in criminal matters, etc.). The actual extradition is based on a number of principles, including, in particular, the principle of reciprocity, mutual criminality, the inadmissibility of extradition, the inadmissibility of extradition for a specified range of offences and specialities. The theory of criminal law distinguishes material and formal exclusive law. Material Extradition Law is a summary of the conditions under which an obligation to the extradition of the perpetrator arises under international law. Formal extraditional law then regulates the special procedure before the authorities of the requested State, at the end of which the decision not to issue or extradite the offender is the answer to the request of the requesting State (Musil J., Kratochíl V., Šámal P., Court of Criminal Law, C. H. Beck, 2003).
47. Extradition of persons abroad in Czech law is governed by the provisions of § 391 et seq. The whole procedure has three stages, i.e. the preliminary investigation (paragraphs 394 et seq.), the court ruling (paragraphs 397, 398) and the authorisation and execution of the issue (paragraphs 399). In the framework of the preliminary investigation, the prosecutor shall ascertain whether the conditions for extradition under material extradition are met. After the preliminary investigation, the competent court, normally the Regional Court, shall decide, on a proposal from the Prosecutor, whether extradition is admissible. The final stage of the process is the decision of the Minister of Justice to allow a person to be extradited. The Minister may do so only if the competent (regional or Supreme) court has ruled that extradition is admissible. However, this does not mean that, in the case of a positive decision by the court, the Minister must authorise the extradition. Paragraph 399 (2) of the Rules of Procedure lists cases where the Minister may decide not to allow extradition. The Minister shall then act in accordance with the principles of diplomatic relations between the States or in the form of interministerial relations, where permitted by international agreements.
48. While the classic extraditional process is relatively lengthy, as demonstrated by the Czech example (in other countries this procedure is similar), and is taking place with the participation of the Minister of Justice as a representative of executive power, the transfer process under the Framework Decision of the European Council of 13 June 2002 on the European Arrest Warrant and Transfer Procedures between Member States (2002 / 584 / JVV) represents a significant simplification and acceleration of the process. Thus, the European Arrest Warrant replaces, in a relationship between EU Member States, classical extradition and is a qualitatively completely different procedure. It is therefore necessary to distinguish between the classic extradition and the surrender of persons between Member States of the European Union on the basis of a European arrest warrant, as is the Czech Code of Criminal Procedure. The entire extradition or transfer process is entrusted to the competent courts, which are governed by the law only, so that the executive intervention falls out at the final stage, as is the case with classical extradition.
49. According to the preamble to the Framework Decision, the fundamental purpose of the European Arrest Warrant is to abolish, within the European Union, the formal extradition procedure which avoids justice after the final judgment has been delivered, and to speed up the procedure of extradition of persons suspected of committing a crime. The objective set for the EU, namely to become an area of freedom, security and justice, resulted in the abolition of the classic extradition between Member States and its replacement by a system of transfer between the various judicial authorities. The traditional formal relations of cooperation between central government or diplomatic bodies which have so far prevailed are replaced by a system of free movement of judicial decisions in criminal matters. Therefore, the person suspected of committing a crime will no longer be issued on the basis of an individual act of the executing State, but directly on the basis of a court decision in the requesting EU State, which thus has a direct effect in the executing State. The activity of central government bodies is replaced by the cooperation of individual courts and thus the role of central government bodies is limited to practical and administrative assistance.
50. The Framework Decision underlines that the European Arrest Warrant mechanism is based on a high level of trust between EU Member States, its implementation can therefore only be suspended in the event of a serious and persistent breach of the principles set out in Article 6 (1) of the EU Treaty by a Member State, provided that such breach is formally established by the Council in accordance with Article 7 of the EU Treaty.
51. The European Arrest Warrant is therefore an individual legal act issued by the court of an EU Member State requiring the arrest and transfer of the requested person from another Member State. The European Arrest Warrant shall not apply to biased crime. It may only be issued to suspects for the commission of offences for which a custodial sentence (or other measure restricting freedom) in the requesting EU Member State may be imposed with an upper limit of at least 12 months, or to persons sentenced to prison (or protection measure) of at least 4 months (cf. Article 2 (1) of the Framework Decision and Article 404 (2) of the Rules of Procedure). In the case of the 32 expressly mentioned offences, where double criminality is possible (in the requesting EU Member State), a maximum sentence of at least three years shall be imposed. It is sufficient, therefore, if the act for which surrender is requested is criminal under the law of the requesting State (for analysis of the European Arrest Warrant Institute, e.g. Polák, P., European Arrest Warrant, Legal Forum No 2 / 2004, p. 76 et seq.).
Content compliance of the contested provisions with the constitutional order
52. The Constitutional Court is a judicial authority for the protection of constitutionality which examines the constitutionality of all acts of public authorities of the Czech Republic. In principle, its competence also applies to the Czech national standards which, in accordance with Articles 10a and 1 (2) of the Constitution, implement the obligations of the Czech Republic towards the EU. As with other state bodies, Article 10a The Constitution of the Czech Republic's accession to the EU to some extent also to limit the powers of the Constitutional Court. In view of the ESD doctrine on the primacy of Community law, the Constitutional Court may exercise its power to the standards of that law only under certain circumstances. According to the ECJ, in areas governed solely by Community law, this right has priority and cannot be denied by the reference criteria of national law, even at constitutional level. According to this doctrine, therefore, the Constitutional Court does not have the power to rule on the constitutionality of European law standards, even in situations where they are contained in Czech legislation. His competence to assess the constitutionality of Czech standards is therefore limited, in the same sense.
53. In the sp. zn. The Constitutional Court refused to recognise the ECJ doctrine if it required absolute Community law. He stated that the delegation of part of the powers of the national authorities to the EU institutions may continue as long as those powers are exercised by the EU institutions in a manner compatible with the preservation of the foundations of the national sovereignty of the Czech Republic and in a way that does not jeopardise the very nature of the material rule of law. It is understandable that if this exceptional and highly unlikely situation does not occur, the Constitutional Court, led by the above-mentioned doctrine of the ECJ, will not examine individual standards of Community law in terms of their compliance with the Czech constitutional order. On this point, however, the appellants argued that the adoption of the Euro Arrest Warrant was in such a breach with the essential elements of the democratic rule of law.
54. The Constitutional Court has also outlined other exceptions to the opinion that it does not have the power to review the constitutionality of the legislation of the Czech Republic adopted as a transposition or implementation of European law. In a situation where Member States implement European law standards and this implementation leaves a Member State with discretion as to the choice of means to achieve the objective set by the European law standard, the Member State may review the result in terms of compliance with its own constitution. Member States are therefore free to choose the funds provided for by Community law to ensure those objectives by selecting those funds that comply with their Constitution and excluding those that conflict with the Constitution. As a result of this doctrine, expressed in the findings of the Pr. Pl. ÚS 50 / 04, where the delegation of powers does not give a Member State any discretion as to the choice of funds, i.e. where the Czech legislation reflects a binding standard of European law, the doctrine of the primacy of Community law does not in principle allow the Constitutional Court to review such a standard from the point of view of conformity with the constitutional order of the Czech Republic, but with the exception of point 53.
55. Thus, although the contested provisions are by nature mandatorial, the situation in this case is substantially different from that dealt with in the sp. zn. The Constitutional Court agrees with the applicants that the Framework Decision, which was the basis for adopting the contested standards, does not have a direct effect. The purpose of the Framework Decision is to approximate the laws, regulations and administrative provisions of the Member States. Framework decisions are binding on the Member States as to the result to be achieved, leaving the choice of forms and means to the national authorities. The Framework Decision cannot be relied on against natural or legal persons without national transposition. The Framework Decision must therefore be implemented by national legal acts, which has become the provisions in which part of it is proposed for annulment.
56. Although the contested provisions have been adopted for the purpose of transposing the Framework Decision, which does not give any discretion as to the selection of funds, this may still be the case where the Constitutional Court can examine them in terms of compliance with the constitutional order. Whether it can do so will depend on the current nature and status of standards adopted under the third pillar, such as framework decisions.
57. Questions concerning the nature and position of such Union acts stem from differences between them and traditional Community law standards. For example, framework decisions are adopted in accordance with the legislative procedure laid down in Title VI of the EU Treaty under the so-called 'third pillar', i.e. on a proposal from either the Commission or a Member State, are approved unanimously by the Council, i.e. by the agreement of all Member States, after consulting the European Parliament. As mentioned above, the direct effect of such a Framework Decision is excluded by Article 34 (2) (b) of the EU Treaty. This makes it, inter alia, different from the primary Community law (in particular the founding agreement) and the classic secondary Community law created by the EU institutions pursuant to Article 251 - 252 of the EC Treaty. Moreover, the obligation to implement the Framework Decision is not enforceable by the European Court of Justice because Title VI of the EU Treaty does not know the infringement action (see Article 226 of the EC Treaty). However, it is enforceable by the European Commission's political and administrative pressure on the Member States. Therefore, in the absence of a proper transposition of the Framework Decision, this will not have a direct effect [see Article 34 (2) (b) of the Treaty]. The application of the European Arrest Warrant in the Member States is subject to the jurisdiction of the European Court of Justice in matters of validity and interpretation of the Framework Decision in the context of the preliminary ruling procedure, under the conditions of Article 35 of the EU Treaty (see Zemánek J.: European legal limits for the review of the constitutionality of the transposition of the Euroarrest Framework Decision, Legal Perspective No 3 / 2006).
58. The consequences of these differences for the current nature and position of such standards, in relation to the legal order of the Member State, have not yet been definitively and clearly expressed in the ECJ case-law. Although Article 34 of the EU Treaty explicitly states that framework decisions do not have a direct effect, it stated in the Maria Pupino ECJ ruling that the EU Treaty contains the principle of loyal cooperation, analogous to that laid down in Article 10 of the EC Treaty. As a result of this principle, framework decisions have indirect effect (see Case C-105 / 03 Maria Pupino of 16.6.2005, paragraph 42 - 43, Czech on Internet address ESD http: / / www.curia.eu.int. This means that national courts are obliged "to interpret, as far as possible, national law in the light of the wording and purpose of the Framework Decision in order to achieve the result pursued by the Framework Decision and thus to comply with Article 34 (2) (b) of the EU Treaty '(there, paragraph 43). The ECJ left open the question of the obligation for national courts to interpret their national law in accordance with the Framework Decision. In other words, the ECJ did not touch on the problem of priority, i.e. whether, as in the case of Community law, framework decisions take precedence over national law, i.e. whether national courts are obliged to postpone their national law to a secondary course if it is contrary to the Framework Decision. In their written observations on that case, Italy, Sweden and the United Kingdom insisted on" intergovernmental cooperation between Member States under Title VI of the EU Treaty' (paragraph 26). The Advocate-General in Mr Pupino pointed out that "the less close cooperation of the Treaty on European Union is evident in the definition of the Framework Decision, which excludes direct effect. The term" policy 'indicates that the EU Treaty contains not only inter-state cooperation, but also a common exercise of Union sovereignty' (Opinion of Advocate General Kokott in Mr Pupino, 11 November 2004, paragraph 31, 32). See also Zemánek J.: Euroconformal interpretation of the Framework Decision - obligation or judicial activism?, Jurisprudence No 8 / 2005, p. 37 et seq.
59. Thus, the ECJ itself has not stated in any way whether the principle of priority also applies to framework decisions. In the case of M. Pupino, the ECJ also did not touch on such questions as to whether the principle of priority which it has interpreted in relation to Community law applies in the same way to Union law, whether the framework decisions are, by their nature, intergovernmental or any other interpretation. It can therefore be concluded that the ECJ case law on the precise nature of Union law acts such as Framework Decisions is still in progress.
60. Such a situation may constitute an ideal situation for the submission of these problems to the ECJ as a preliminary question. However, given that the Belgian Cour d'Arbitrage has already submitted a question concerning the validity of the Framework Decision, there is no reason for the Constitutional Court of the Czech Republic to proceed the same way. Waiting for the decision of the ECJ would not be entirely appropriate, as the contested provisions remain effective and can, according to them, be transferred on the basis of a European arrest warrant. In this situation, the Constitutional Court considers it absolutely necessary to decide whether or not the fundamental rights of such persons are at risk. In an effort to resolve this dilemma, the Constitutional Court decided to assess whether the provisions implementing the Framework Decision can be interpreted in accordance with the Czech constitutional order. Since it decided that such an interpretation is possible, it is not necessary to wait for the ECJ to clarify the above-mentioned issues of Union law.
Assessment of compliance of the contested provisions with Article 14 (4) of the Charter
61. Article 1 (2) of the Constitution, in conjunction with the principle of cooperation laid down in Article 10 of the EC Treaty, shows the constitutional principle that domestic legislation, including the Constitution, is to be interpreted in accordance with the principles of European integration and the cooperation of Community and national authorities. Therefore, if there are several interpretations of the Constitution, which are part of the Charter of Fundamental Rights and Freedoms, and only some of them lead to a commitment that the Czech Republic has assumed in connection with its membership in the EU, an interpretation that supports the implementation of this commitment and not an interpretation that makes it impossible. These conclusions also apply to the interpretation of Article 14 (4) of the Charter.
62. There is no justification for the appellants' claim that the national adoption of the European Arrest Warrant would undermine the permanent relationship between the citizen and the State. A citizen transferred to an EU Member State for criminal proceedings remains under the protection of the Czech State during the duration of this procedure. The European Arrest Warrant allows only a limited period of time to be handed over to a citizen for prosecution in an EU Member State for a specifically defined act, with nothing preventing him from returning to the Czech Republic after the end of the procedure. A citizen has the right to defend himself against the measures taken by law enforcement authorities on surrender under the European arrest warrant, including any constitutional complaint.
63. The new Code of Criminal Procedure, which allows a citizen of the Czech Republic to be transferred to another EU Member State for criminal proceedings, will undoubtedly break the previous Code of Criminal Procedure which does not allow [and does not yet allow - see Section 393 (1) (a) (3)] of the extradition of citizens abroad for criminal proceedings there. The Constitutional Court takes the view that the unconstitutional nature of the contested provisions cannot be inferred only from the fact that the Government of the Czech Republic, as a promoter of both amendments to the criminal codes, first considered it appropriate to amend the Charter of Fundamental Rights and Freedoms, and only after the rejection of the draft amendment to the Charter in the Chamber of Deputies, began to show that it was not necessary to amend it. The Constitutional Court agrees with the legal opinion expressed by the Chamber of Deputies, according to which Parliament of the Czech Republic is a representative of the constitutional and legislative power and was therefore not bound by the legal opinion of the author of the amendment to the Charter.
64. Article 14 (4) of the Charter, according to which the first sentence of which every citizen has the right to free entry into the territory of the Republic, and according to the second sentence, a citizen cannot be forced to leave his country, certainly makes it impossible to exclude a Czech citizen from the community of citizens of the Czech Republic as a democratic state to which he is bound by the ties of citizenship. From the very text of Article 14 (4) of the Charter, it cannot be unequivocally answered, without further arguments, whether and to what extent it precludes the temporary transfer of a citizen to an EU Member State for criminal proceedings pending there, if he has the right to return to his country after the completion of that procedure. A language interpretation of the term "forced to leave the country" may also encompass such relatively short-term transfer of a citizen to criminal proceedings abroad.
65. The fact that the text of Article 14 (4) The Charter does not in itself answer the question of whether a Czech citizen can be transferred to an EU Member State for criminal proceedings there, it can also be illustrated by an example of Slovak, which the applicants also invoke. Slovak legislation is its basis in the former Federal Charter of Fundamental Rights and Freedoms the closest Czech regulation. In the Constitution of the Slovak Republic, an explicit ban on the extradition of own citizens has been expressed in Article 23 (4). After the amendment to Constitution No 90 / 2001 Z. z., which deleted the final words "or to publish to another state," the label of the Slovak Constitution reads: "Every citizen has the right to free entry into the Slovak Republic. A citizen cannot be forced to leave the country, and cannot be expelled." The Slovak legislation therefore consistently distinguished and distinguishes the terms "force to leave the country" and "expulsion" from "extradition" to another state. Czech adaptation of Article 14 (4) The charter is, compared to the Slovak version, expressis verbis narrower and has always spoken and spoken only about the ban on forcing a citizen to leave the country.
66. The concept of banning "forced to leave the country" can be interpreted both extensively and strictly. The Constitutional Court, in agreement with the appellants, considers that in order to resolve the issue of the meaning of Article 14 (4), The Charter must seek its objective meaning. In order to assess the importance of this provision, the Charter has its place in particular the historical motives for adopting such an adjustment. Article 14 (4), second sentence, of the Charter, first appeared in the report of the Constitutional Committees of the People's House and the House of Nations of 7 January 1991 (see Press 392, http: / / www.psp.cz) under Article 15 (2) of the draft Charter. The Constitutional Court agrees, both with the appellants and the parties to this proceeding, that the experience of the crimes of the Communist regime played an indispensable role in shaping the Charter. This role was also played in the creation of the current Article 14 (4) of the Charter at the turn of 1990 and 1991, a very recent experience, mainly linked to the "Asanation 'event, in which the Communist regime forced uncomfortable persons to leave the Republic (by analogy, for example, John M., the fundamental right of a Czech citizen not to be forced to leave his country, the European Arrest Warrant and the International Criminal Court, EMP 5 / 2004, p. 42 et seq., p. 43, or Akola J., Year 2004 in the development of selected institutes of Czech constitutional law - Part 1, Legal Divisions No 12 / 2005, p. 425 - 426). The historical interpretation therefore shows that Article 14 (4) of the Charter has never concerned the extradition.
67. The intention of the Constitution, based on historical experience, which, in a situation where historical memory is shortened, is indivisible to future generations because they are linked to period experiences, is not itself a decisive argument. The Constitutional Court therefore sought the objective meaning of Article 14 (4) of the Second Charter, which is to be measured by the current realities of the early 21st century. The Constitutional Court also took into account the historical genesis of the extradition legal institute when seeking the objective meaning of the labelled provision of the Charter. The exposition of perpetrators of general crime did not, in principle, exist until the 19th century, nor did it pose a more serious problem, given the low mobility of the European population at the time, as well as the very limited degree of cooperation between the then European States (cf. Blade No. - Šturma P., International Public Law, Prague 2003, p. 353).
68. The current interpretation of the extradition has, for most European countries, its origins in the 19th century model. On the one hand, he did not allow direct effectiveness of the judgment in criminal matters, including an arrest warrant in another State (cf. Musil J., Kratochíl V., Šámal P., Course of Criminal Law, C. H. Beck, Prague 2003, p. 962), and, on the other hand, he had full control and full jurisdiction over his own citizens (in the original concept of subordinates), which were not to be carried out by any third State. The principle that the State traditionally did not extradite its own citizens to criminal proceedings abroad, so initially it did not reflect far from the fundamental right of citizens not to be extradited, but rather expressed national sovereignty over their citizens in its present concept. At that time, the principle of non-extradition of its own citizens for criminal proceedings abroad had a strong justification for the widespread mistrust between rival European powers.
69. Only later, following the tragic events that occurred particularly in Europe in the first half of the 20th century, the principle of non-extradition of its own citizens was transformed from the state-owned responsibility for its own citizens to the principle of protecting its own citizens from extradition. The practice remained the same, only her reasoning changed. Some states, on the basis of their historical experience, have gone so far as to incorporate the prohibition of extradition into their constitutions (e.g. Article 55 (1) of the Constitution of the Republic of Poland or Article 16 (2) of the Federal Law of Germany as regards neighbouring countries). Thus, the ban on extradition has gradually moved into the area of fundamental freedoms, which is completely understandable in a situation where there are still many undemocratic regimes in the world that do not ensure the right to a fair trial in standards of their own, for example, EU Member States.
70. It cannot be forgotten that the current time is linked to the extremely high mobility of people, increasing international cooperation and increasing confidence among democratic EU states, which puts new demands on the regulation of extradition within this Union. There is a qualitative new situation in the EU. The citizens of the Member States also have, in addition to the civil rights of their Member States, the rights of EU citizens, which, among other things, guarantee them freedom of movement throughout the Union. The EU is an area of freedom, security and justice which facilitates the free movement of citizens while ensuring their security and protection (see the preamble to the EU Treaty). The European Arrest Warrant is based on these realities and makes cooperation between law enforcement authorities more effective. It replaces the cooperation of the central government of EU Member States by direct cooperation of judicial authorities and makes an exception to the principle of banning extradition of citizens for criminal proceedings abroad.
71. In this context, when Czech citizens are beneficiaries of the benefits of EU citizenship, it is natural that a certain degree of responsibility must also be accepted with these benefits. Investigating and combating crime in the European area cannot be successfully carried out within an individual Member State, but requires broad international cooperation. As a result of this cooperation, the replacement of earlier extradition procedures for criminal suspects is a new more effective mechanism reflecting the 21st century reality. According to the Constitutional Court, the current standard of protection of fundamental rights within the European Union does not give rise to any reason to believe that this standard of protection of fundamental rights, through the application of the principles arising therefrom, is of lower quality than that provided in the Czech Republic.
72. When finding the objective meaning of Article 14 (4) of the Charter, these facts shall not be omitted. It is not in line with the principle of objective teleological interpretation, reflecting the reality of the current EU, based on the high mobility of citizens throughout the Union, in order to ensure that Article 14 (4) The Charter was interpreted in such a way that it did not allow a limited time limit for the transfer of a citizen to another Member State for the purpose of criminal proceedings involving a criminal offence committed by that citizen in that State, provided that it is guaranteed that, at its own request, it will be handed back to the Czech Republic for a possible execution of the sentence (cf. Section 411 (7) of the Order). The time-limited transfer of a citizen to criminal proceedings taking place in another EU Member State, conditional upon his subsequent retransfer to his home country, is therefore not, and cannot be, a requirement to leave the country within the meaning of Article 14 (4) of the Charter. Similarly, it can be pointed out that a citizen of the Czech Republic or a person residing permanently in the Czech Republic will be handed over to another Member State only with his consent [§ 411 (6) (e)]. It follows that, without his consent, no one will be transferred abroad to serve the prison sentence.
73. The applicants referred to the Constitution of Estonia (Article 36 (2)), Lithuania (Article 13 (2)), Poland (Article 52 (4)), Hungary (Article 69 (1)), Slovenia (Article 48), Germany (Article 16 (2)), Finland (Article 9 (3)), France (Article 88-2 (3)), Italy (Article 26), Portugal (Article 33 (3)) or Spain (Article 13 (3)). The constitutions of those countries lay down the right of state citizens not to be extradited or, where appropriate, to provide for exceptions to international treaties or, namely, only in relation to the EU. Since there has been a change in the Constitution in many countries in connection with the European Arrest Warrant (the proposal states Germany and France), the applicants import the existence of a general, widely shared constitutional principle prohibiting the expatriation of their own citizens abroad. According to them, it is concluded that the execution of the European arrest warrant in the Czech Republic cannot be implemented otherwise than after the previous constitutional amendment.
74. The Constitutional Court has taken into account that, in many countries, the amendment of the domestic constitution has actually taken place in connection with the implementation of the European Arrest Warrant (the following data according to the XXI reports). FIDE Congress, Dublin, June 2004, available at http: / / www.fide2004.org, unless otherwise specified). In addition to the appellant mentioned by Germany and France, Slovenia (Constitutional Law No 24-899 / 2003) and Latvia may be mentioned.
75. However, the draftsmen did not mention a number of other EU Member States, where the ban on the extradition of their own citizens did not at all pose a question of constitutional principle and was not even enshrined in the law of the sub-constitutional. For example, in Greece, the ban on extradition has never been seen as a constitutional principle and has always been addressed only at the level of the law. Similarly, it was in Denmark, where it was also sufficient to change the current state of affairs to simply change the law. In a situation where the national constitution does not regulate the issue of extradition or transfer of perpetrators abroad, there was no need to make any constitutional changes in the Netherlands (in accordance with the decision of the Dutch State Council), Belgium, Luxembourg or Sweden (see the reports at the aforementioned XXI. FIDE Congress). In the specific constitutional situation of Great Britain, the modification of the European Arrest Warrant was not a more fundamental problem, because the British right to ban extradition of its own citizens never lasted (cf. Čepelka, No., Šturma, P., International Public Law, Prague 2003, p. 354). On the contrary, British lawyers themselves traditionally ruled this solution above the regulations of European continental countries (cf. Biron, H. Ch. - Chalmers, K. E., The Law and Practice of Extradition, London 1903, p. 13). The British model, which has always allowed the extradition of its own citizen, generally follows the Irish Republic and Malta (cf. Stanbrook, I. - Stanbrook, C., Extradition: Law and Practice, 2nd ed., Oxford 2000, p. 313, p. 385, p. 427).
76. Poland amended the criminal law, the criminal order of the judicial and criminal law of 18 March 2004 (Dz. U. 2004, No 69, p. 626). This amendment was not formally amended by Article 55 (1) of the Polish Constitution (the applicants incorrectly mention Article 52 (4)). On 27 April 2005, the Polish Constitutional Tribunal annulled, by Decision P 1 / 05, certain provisions marked by the amendments to the Code of Criminal Procedure for the Conflict with Article 55 (1) of the Polish Constitution, according to which the exposition of a Polish citizen ("Ekstradycja bywatela polskiego is prohibited ') and under which the second paragraph prohibits the exposition of persons suspected of political crimes of a non-violent nature. The Polish Constitutional Tribunal stated that, under the concept of extradition, within the meaning of Article 55 of the Constitution, a fortiori should also be placed under the transfer within the meaning of the European Arrest Warrant.
77. In this context, the Czech Constitutional Court points out the fact that the wording of Article 55 (1) of the Polish Constitution excludes any form of extradition of a Polish citizen (including a transfer under the European Arrest Warrant), as opposed to Article 14 (4) of the Czech Charter. Thus, compared to the Czech constitutional order, the Polish Constitution does not give any room for its possible interpretation consistent with the state's obligations towards the EU.
78. In view of these facts, it cannot be said to the appellants that, from a comparative point of view, the existence of a general constitutional principle of banning their own citizens from abroad and that a constitutional change must be required to implement the European arrest warrant. There has been no constitutional change in many EU Member States. Constitutional change is necessary only where the legal change, brought about by the implementation of the European Arrest Warrant, would be contrary to the domestic constitution, that is, in a situation where the domestic constitution excludes the extradition or transfer of a citizen to a foreign state for the purpose of its prosecution.
79. The Constitution of the Czech Republic enshrined in Article 1 (2) the general principle that the Czech Republic complies with its obligations under international law. The Constitution should therefore be substantially attached to the importance of conformal from the point of view of international law, as the Constitution itself is open to value vis-à-vis international law (cf. the find sp. zn.
80. Since 1 May 2004, Article 1 (2) of the Constitution has gained new meaning in relation to compliance with the obligations arising for the Czech Republic from its membership of the EU. As the Constitutional Court has already pointed out in its caselaw, European law is based on fundamental values common to all EU members. The Constitutional Court thus applied to European legal culture and its constitutional traditions. In the light of the general legal principles existing in all the Member States of the Union, the Constitutional Court also interprets constitutional provisions, in particular the Charter of Fundamental Rights and Freedoms (Ref.
81. The provisions of Article 1 (2) of the Constitution, in conjunction with the principle of cooperation laid down in Article 10 of the EC Treaty, imply a constitutional principle according to which domestic legislation, including the Constitution, is to be interpreted, as far as possible, in line with the processes of European integration and cooperation of the European institutions and bodies of a Member State (see, mutatis mutandis, the decision of the Polish Constitutional Tribunal C 15 / 04 of 31 May 2004, OTK Ser. A., amount 5, 47, p. 655 - 668, and, in particular, as regards the provisions of the III Pillar, the ECJ decision of 16 June 2005, according to which the principle of conformal interpretation also applies to Framework Decisions adopted under Title VI of the Treaty on European Union, see Case C-105 / 03 Maria Pupino, paragraph 43).
82. The constitutional principle of the interpretation of domestic law in line with the obligations of the Czech Republic arising from its membership of the European Union is limited by the possible importance of the constitutional text. Article 1 (2) The Constitution is therefore not capable of altering the meaning of any other explicit constitutional provision. If the domestic methodology of the interpretation of constitutional law does not allow the relevant standard to be interpreted in accordance with European law, it is only up to the constitutioners to change the constitution. However, that power may be exercised by the legislature only on condition that the essential requirements of the democratic rule of law (Article 9 (2) of the Constitution) are maintained, which are not available to the legislator, therefore the power to amend those requirements cannot be transferred by the contract provided for in Article 10a of the Constitution (cf. Holländer, P., Material outbreak of the Constitution and the discrepancy of the Constitution, Lawyer 4 / 2005).
83. It follows, therefore, that, if there is, according to the domestic interpretation methodology, a number of possible interpretations of the Constitution, with only some of them leading to a commitment that the Czech Republic has assumed by its membership in the European Union, an interpretation that supports the implementation of this commitment, not an interpretation that makes it impossible. This will also preserve the principle of Article 1 (2) of the Constitution. These conclusions also apply to the interpretation of Article 14 (4) of the Charter. Since the Constitutional Court interpreted the meaning of Article 14 (4) The Charter according to the domestic methodology of the interpretation of the Constitution did not even need to be measured in the light of the values and principles of European and constitutional domestic law.
84. The finding of the Constitutional Court, published under No 207 / 1994 Coll., referred to by the applicants, "defined citizenship as a permanent, locally unlimited legal relationship between a natural person and a State which is generally irrevocable against the will of a natural person, on the basis of which its entities arise reciprocal rights and obligations, consisting in particular of the right of a natural person to be protected by the State in its territory and beyond, the right of residence in its territory and the right to participate in its administration of public affairs' (Opinion sp.
85. The right of a citizen to protection by the State is manifested, inter alia, in the violation of Article 14 (4), in conjunction with Article 36 (1) of the Charter and Article 6 (1) of the Convention, if a citizen is transferred to a State where the standards of criminal proceedings would not comply with the requirements laid down for criminal proceedings by the Czech constitutional order, for example in a situation where the citizen's right to a fair trial (Article 36 (1) of the Charter), or where the citizen could be subjected to torture or other inhuman or degrading treatment or punishment (Article 3 of the Convention, Article 7 (2) of the Charter). That is not the case with the European Arrest Warrant.
86. The ECJ already noted in 2003 that "Member States have mutual trust in their criminal justice systems and each recognises the criminal law in force in another Member State, even if the application of its own right would result in a different outcome" [Cases C-187 / 01 and C-385 / 01, criminal proceedings against Hüseyin Gözütok (C-187 / 01) and Klaus Brügge (C-385 / 01), (2003) ECR I-1345, paragraph 33]. It must always be remembered that all EU Member States are signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Therefore, a citizen cannot be more significantly affected by his rights by deciding on his criminal case in another Member State of the Union, since each EU Member State is bound by a standard of protection of human rights equivalent to the standard required in the Czech Republic, with the legal order of all Member States being based on values to which our State applied only after 1989. The Czech Charter of Fundamental Rights and Freedoms is also based on the European Convention for the Protection of Human Rights and Fundamental Freedoms.
87. The Framework Decision, having regard to the principle of mutual trust between EU Member States in the functioning of their criminal justice, is based on the fact that the implementation of the European Arrest Warrant can only be suspended in the event of a serious and persistent breach of the principles laid down in Article 6 (1) of the EU Treaty (protection of human rights) by a Member State, the infringement being formally established by the Council in accordance with Article 7 of the EU Treaty (paragraph 10 of the preamble).
88. The provision of Paragraph 377 (3) of the Code, according to which the request of an authority of a foreign state cannot be met if its execution would infringe the Constitution of the Czech Republic or such provision of the legal order of the Czech Republic, on which it is necessary to insist without reservation, or if other significant protected interest of the Czech Republic would be harmed by the execution of the request, can be regarded as a guarantee guaranteeing the protection of the Czech citizen at a constitutional level. This principle, contained in the title of the 25th section of the First Order (referred to as the General Provisions), therefore applies both to the classic procedure for issuing pursuant to Section Two and to the procedure for transferring a person between EU Member States on the basis of a European arrest warrant under Section Three of the same Title. The importance of this provision is still under discussion (cf. Zemánek J., European legal limits of the review of the constitutionality of the transposition of the Euroarrest Framework Decision, Legal Outlooks No 3 / 2006).
89. Although this provision of the Code of Criminal Procedure is provided by the marginal clause "protection of the interests of the State," it can be concluded, in particular, from the text of its first sentence, that it will be of particular interest to the State in order not to infringe the fundamental rights of the Czech citizens enshrined in the constitutional order of the Czech Republic, which includes the Charter of Fundamental Rights and Freedoms (... if it were to be dealt with in breach of the Constitution of the Czech Republic or such provision of the law of the Czech Republic, on which it should be maintained without reservation).
90. The person to be transferred to another EU State shall be maintained the right to lodge a complaint against the relevant measures of the law enforcement authorities which has suspensory effect (Section 411 (5) of the Rules of Procedure) and, where appropriate, a constitutional complaint, while the time limit for the transfer of a person is not running for the period during which the Constitutional Court decides (§ 415 (3) of the Rules). These provisions maintain the protection of the citizen and, where appropriate, of another person to be transferred to criminal proceedings, while at the same time maintaining the condition that the constitutional order of the Czech Republic is not affected individually as a result of the transfer of the requested person.
91. These principles are consistent with the Framework Decision, according to which nothing can be interpreted in such a way as to prohibit the refusal of the surrender of a person to whom a European arrest warrant has been issued, where, on the basis of objective facts, there are grounds for believing that that arrest warrant was issued for the purpose of prosecuting or punishing that person on the basis of his sex, race, religion, ethnic origin, nationality, language, political belief or sexual orientation, or that the status of that person could be impaired for any of those reasons. The Framework Decision shall not prevent a Member State from applying its constitutional principles concerning the right to a fair trial, freedom of association, freedom of the press and freedom of expression in other media. The Framework Decision also expressly states that no one should be relegated, expelled or extradited to a State in which there is a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
92. The reason for rejecting the request for surrender of the requested person is, inter alia, the situation where the offence for which the European arrest warrant is issued is covered by the amnesty granted in the Czech Republic, or the prosecution or enforcement of the sentence is suspended in the Czech Republic if the prosecution of the offence falls within the scope of the criminal law of the Czech Republic [§ 411 (6) (b)].
93. The principle of ne bis in idem is also preserved. Pursuant to Article 411 (6) (c) of the Rules of Procedure, a request for surrender shall be rejected if the requested person has already been convicted in the Czech Republic or in a foreign State for the same act by a final decision and the sentence has already been executed or is being executed or is no longer possible to execute, or the criminal proceedings have been terminated in the Czech Republic or another Member State by a final decision unless such decisions have been annulled in the prescribed procedure.
94. Last but not least, it should be stressed that criminal proceedings pending against a requested person in the territory of the Czech Republic take precedence over the surrender of the requested person under the European Arrest Warrant (pursuant to Paragraph 411 (6) (d) (3) of the Rules of Procedure), the court rejects the transfer of the requested person if the requested person is prosecuted in the Czech Republic for the same offence for which the European Arrest Warrant has been issued).
95. There is therefore no substantiated argument that the national regulation of the European Arrest Warrant would undermine the relationship between the citizen and the State. A citizen transferred to an EU Member State for criminal proceedings remains under the protection of the Czech State during the duration of criminal proceedings. The European Arrest Warrant allows only a limited period of time to be handed over to a citizen for prosecution in a Member State of the Union for a specifically defined act, with nothing preventing him from returning (possibly to the execution of a sentence in the Czech Republic) after this criminal proceedings. The Code of Criminal Procedure specifies the reasons for which the transfer of a person to another Member State of the Union will not take place (see Section 411). A citizen has the right to defend himself against the measures of law enforcement authorities by means of remedies which have suspensory effect (see Section 411 (5) of the Rules of Procedure), including any constitutional complaint. If the transfer of a citizen would violate constitutional order, the transfer of a citizen will not take place.
96. In these conclusions, account must be taken not only of the protection of the rights of persons suspected of committing a crime, but also of the interests of victims of crime. In general, the protection of the rights of victims and victims appears to be more practical and fair in order for criminal proceedings to take place in the State in which the offence was committed (cf. the conditions for dealing with a case of multiple European arrest warrants in § 419 of the Code and Article 16 of the Framework Decision, where one of the basic conditions is consideration of the question of the crime scene). Since the implementation of the European Arrest Warrant in the transfer of its own citizens is conditional on the possibility (Section 403 (2) of the Rules of Procedure), the appellant's contested regulation protects the rights of persons who consider themselves damaged under the Czech Code of Criminal Procedure. In general, it can be said that in the state where the crime occurred, taking into account the evidence in that State, criminal proceedings will be faster, more efficient and, at the same time, more credible and fairer for both the defendant and the potential victim of the crime.
Compliance of the contested provisions with other provisions of the Charter
97. The Constitutional Court has considered the compliance of the contested provisions, in particular Article 412 (1) and (2) of the Rules of Procedure, and Article 39 of the Charter, according to which only the law determines which act is a criminal offence and what penalty, as well as any other damage to rights or property, may be imposed for its commission. Paragraph 412 of the Rules implements the regulation of Article 2 (2) of the Framework Decision and breaks the principle that persons do not go abroad for criminal prosecution unless there is a suspicion of an offence being committed which is punishable both by the law of the requesting State and by the State of transmission. Pursuant to Article 412 (1) of the Rules of Procedure, where a surrender is required for offences for which a custodial sentence of at least three years may be imposed in the requesting State, or where a protective measure involving a restriction of freedom of at least three years, and which consists of a conduct which is designated by the requesting State as one or more of the acts referred to in paragraph 2, the court shall not determine whether the offence is a criminal offence under the law of the Czech Republic. Paragraph 412 (2) of the Rules of Procedure lists the offences in which the court does not detect their criminal offences under the law of the Czech Republic in connection with the transfer proceedings.
98. At first glance, it would appear that the argument that Paragraph 412 is contrary to Article 39 of the Charter could be rejected as being excluded. In particular, it should be noted that Article 1 (3) of the Framework Decision provides that "this Framework Decision is without prejudice to the obligation to respect fundamental rights and general principles of law, as enshrined in Article 6 of the EU Treaty '. Therefore, the Framework Decision cannot be interpreted as requiring a Member State to do something which would constitute a breach of fundamental rights, including the principle of legality enshrined in Article 39 of the Charter.
99. The universally recognised principle of legality contained in Article 39 of the Charter requires, in particular, that a State may impose a penalty on a person only on the basis of the proper information contained in its own law under which certain conduct is prohibited by that State. In this way, the State gives all entities the opportunity to anticipate the consequences of their actions (general requirement for predictability). This requirement has two aspects. The first is that state law must clearly and accurately define the conduct that is prohibited (clarity of the standard). According to the second, there must be a link between the conduct of the accused entity and the territory or the public interest of the State seeking to punish (nexus, that is to say, a link to the criminal jurisdiction of that State) in order to enable the entity concerned to realise that its conduct will result in the consequences of the envisaged laws of that State.
100. Seen from this perspective, the argument against Paragraph 412 of the order, taken literally, would mean that the Czech Republic failed to respect the principle of predictability of criminal law. But this argument ignores the fact that Article 39 of the Charter generally limits the Czech Republic in its own criminal jurisdiction. It neither regulates extradition nor surrender. In a situation where Czech law empowers the Czech Republic to exposition or transfer a person in its jurisdiction, the Czech Republic does not apply its criminal jurisdiction against the accused, so it would appear that Article 39 of the Charter does not apply. Finally, Paragraph 412 of the Rules of Procedure does not define criminal offences and, in order to apply that provision, those offences must be precisely defined in the law of the State requesting the extradition or surrender of a person. Article 39 of the Charter, as it stands, applies precisely where the Czech Republic wishes to prosecute the person. In such a case, it is unconditionally that Article 39 of the Charter requires that such criminal prosecution should be conducted only for the offence specifically defined in its criminal law. For the reasons set out above, the Czech Republic has not infringed the principle of legality enshrined in Article 39 of the Charter by adopting the provisions of Article 412 of the Rules of Procedure.
101. The Constitutional Court therefore does not agree with the appellants' argument that Article 412 (2) of the Rules of Procedure is contrary to Article 39 of the Charter, since this provision does not in any way define criminal offences which do not require mutual criminal treatment. If it were a substantive law establishing criminal conduct in the way that Paragraph 412 (2) of the Rules of Procedure, namely merely by naming it without any legal definition, it would certainly be contrary to Article 39 of the Charter. However, the Constitutional Court is based on the fact that Paragraph 412 (2) of the Rules of Procedure is not a provision of substantive law but a procedural law. The surrender under the European Arrest Warrant is not yet a penalty within the meaning of Articles 39 and 40 of the Charter.
102. Persons suspected of committing a crime and transmitted under a European arrest warrant shall not be prosecuted for criminal activity pursuant to Article 412 (2) of the Rules of Procedure, but criminal proceedings shall be conducted for offences defined in the substantive law of the requesting EU State. The legal calculation of offences in § 412 (2) of the Rules of Procedure (Article 2 (2) of the Framework Decision) serves only for the procedural procedure of the court. In fact, if the authority of the requesting State designates in the European arrest warrant the conduct of the transferred person as one of the acts referred to in § 412 (2) of the Rules of Procedure and Article 2 (2) of the Framework Decision, it does not detect the criminal nature of such an act under the law of the Czech Republic. The adoption of Paragraph 412 of the order does not therefore result in the criminal law of all EU Member States becoming applicable in the Czech Republic. It only means that the Czech Republic is helping other EU Member States to enforce their criminal law. Thus, the provision of Section 412 of the Rules does not impose an obligation to know the criminal law of all EU countries for persons in the Czech Republic (citizens, residents and other persons normally located in its territory).
103. In addition, the list of offences in § 412 (2) of the Rules of Procedure and Article 2 (2) of the Framework Decision generally corresponds to acts which are criminal even under Czech law, even though the name of the relevant offence may not exactly be the case. The list of offences which do not require double criminality is not due to the assumption that some of these acts are not a criminal offence in any of the Member States, but rather the fact that they are acts which, with regard to shared values, are criminal in all EU Member States. The reason for this listing is to hasten the execution of the European Arrest Warrant, because the criminal investigation procedure under Czech law will fail. Moreover, by adopting this Framework Decision, each EU Member State has expressed its agreement that all criminal acts falling within such generally defined categories will also be prosecuted.
104. The fact that Article 412 of the Rules of Procedure does not provide a legal basis for criminal prosecution in the Czech Republic does not call into question whether or not Article 39 of the Charter has been infringed. As a provision concerning cooperation in criminal matters between independent states, this issue cannot be seen only from the perspective of the Czech Republic. It should also be borne in mind that persons covered by the jurisdiction of the Czech Republic may also be subject to the criminal jurisdiction of other states. This may occur when their actions took place partly in the Czech Republic, partly in another state, or their behaviour in the Czech Republic caused consequences in another state. This legislation must therefore be seen more widely, as it concerns interstate contexts, and it must be remembered that legal systems other than domestic, Czech, will be applied in such cases. This aspect brings another dimension to the protection provided for in Article 39 of the Charter.
105. With this additional dimension Article 39 The Charter is the fact that it prevents the Czech Republic from participating or directly assisting another state that does not respect the principle of legality in the implementation of criminal penalties. This would happen in a situation where the Czech Republic itself would not punish and would hand over the defendant to a State that does not respect the principle of legality. It must also take into account the importance of the decision of the European Court of Human Rights under the provisions of Article 3 of the Convention (Soering v United Kingdom), which prohibits the Member States of the Council of Europe from issuing a person to a State which is not bound by a ban on cruel or arbitrary treatment and which does not guarantee that he will not breach that prohibition.
106. In the light of the considerations on other, above, aspects of the principle of legality, the Constitutional Court may assess whether abandoning the requirement of double criminality constitutes an infringement of Article 39 of the Charter. The demand for bilateral crime is a typical insurance policy against states with a contractual obligation to penalise someone for acts which in themselves do not give reason for penalising them. It was a guarantee against the commitment to cooperate or tolerate the behaviour of the recipient State, which did not respect the principles of legality, the prohibition of cruel, arbitrary or unfair treatment or punishment. The basic idea is that if both countries concerned find certain types of conduct worthy of punishment, then the issuing State can hardly argue that punishment for such conduct would be cruel, arbitrary or contrary to the principle of legality.
107. Thus, by abandoning the principle of mutual criminality in relation to EU Member States, the Czech Republic will not violate the principle of legality. Generally speaking, the demand for mutual criminality can, as an insurance policy, be abandoned in a relationship between EU Member States that has a sufficient level of convergence of values and mutual trust, democratic regimes that respect the principles of "rule of law" and are bound by the obligation to respect this principle. This is precisely the situation where the level of convergence between 25 EU Member States has reached such a level of mutual trust that it no longer feels the need to cling to the principle of mutual criminality.
108. The Constitutional Court, having concluded that the principle of legality under Article 39 of the Charter does not require that the principle of double criminality be maintained as a necessary component of the transfer process, has turned its attention to the question of whether the transfer of a person under the Framework Decision does not contradict Article 39 of the Charter. It goes without saying that this article would prohibit the Czech Republic from transferring a person for the purpose of prosecution to a State which would not clearly define in its law that the conduct of the accused is criminal in that State. But there is nothing in the Framework Decision that requires the Czech Republic to do so. Moreover, even if this behaviour in a State that intends to exercise its criminal jurisdiction against a person were precisely defined, the principle of legality still requires a nexus (see above) between the alleged conduct and the state intending to prosecute.
109. International law recognises several legitimate aspects enabling the State to exercise its criminal jurisdiction. These generally accepted aspects are the principle of nationalism, protection, universality and territorial integrity. In addition to a few minor exceptions, which need not be addressed, the first three principles do not pose any serious problem in relation to the Nexus requirement. Thus, from the point of view of the requirement of the nexus, there is no change in the previous situation where the citizens of the Czech Republic and other persons under its jurisdiction have been and are responsible, under the rule of law of the state, for those offences committed abroad. All persons have been affected by and are affected by the principle of territorial integrity, establishing the scope of substantive criminal law in the territory of foreign States (including EU States), if they commit criminal activity in the territory of those States. Therefore, the considerations of the applicants on the need for national publication of criminal legislation by all other 24 EU Member States are not appropriate. The principle of territory, although generally accepted in general, brings some application problems. For example, it is generally recognised that the State can exercise its criminal jurisdiction for the conduct carried out on its territory, which is already sufficient to recognise the nexus. However, the principle of territorial integrity also involves the exercise of the State's competence in an act which, although occurring outside its territory, has affected its territory.
110. The Constitutional Court assumes that the transfer of a Czech citizen or other person legally present in the territory of the Czech Republic for the purpose of its prosecution to another EU Member State will be subject to regular consideration only if the conduct involving the commission of a criminal offence took place not in the Czech Republic but in another Member State of the Union. If a crime is committed by work abroad, by work in the Czech Republic, criminal prosecution in the Czech Republic will be considered. This will create an obstacle to the transfer of a person to criminal proceedings abroad [cf. § 411 (6) (d) of the Rules of Procedure], unless, in view of the nature of the conduct in question, there is a more effective prosecution in another EU Member State, for example because evidence is crucial in that State, the action took place mainly in that State, etc.
111. Pursuant to Article 4 (7) of the Framework Decision, the executing judicial authority may refuse the execution of a European arrest warrant where the offence has been committed in whole or in part in the territory of the executing Member State or in a place deemed to be such territory. This provision, which gives the home judicial authority the option of considering whether to refuse the execution of a European arrest warrant, protects the value of legal certainty, which is also the value of European law and the observance of which at European level is a prerequisite for Czech constitutional order to allow the application of European law in domestic law (in this case the implementation and application of the Framework Decision). Article 4 (7) of the Framework Decision was not explicitly implemented in the Czech legal order, but, in accordance with the principle of constitutionally conformal interpretation, the Czech judicial authority must take into account the trust of Czech state citizens that their conduct in the Czech Republic is regulated by Czech criminal law. If a Czech citizen stays in the territory of the Czech Republic, domestic law is applied to his or her conduct, which also implies the constitutionally protected trust of that person in that his or her legal conduct is subject to the legal consequences laid down by Czech law. The general value of legal certainty is found in the area of constitutional law in principle as defined in Article 39 of the Charter and in the level of sub-constitutional law is expressed in the general principle of the provision of Article 377 (3) of the Code, which applies retrospectively to Article 411 (6) (d) of the Rules, therefore it will be applied only if the same action is not pending in the Czech Republic.
112. According to Article 377 (3) of the Code, interpreted within the meaning of Article 4 (7) of the Framework Decision, the Czech citizen will therefore not be transferred to another EU Member State on suspicion of an offence to be committed on the territory of the Czech Republic, except where, in view of the specific circumstances of the crime, the prosecution in the applicant State must be given priority, for example because of the proper identification of the facts of the conduct which had been committed for the most part abroad, and the prosecution in that Member State of the Union is more appropriate than the prosecution of that person in the Czech Republic. Consideration of a court which may or may not refuse to execute a European arrest warrant is appropriate here, as in many cases it is appropriate that a person suspected of committing a criminal offence be transferred, even if his activity takes place in the territory of the Czech Republic (e.g. an organiser of a criminal offence, however, implemented in another Member State of the Union). However, it is not for the Constitutional Court, at this stage, to anticipate this practice, that the decision-making practice will be more detailed.
113. The Constitutional Court points out that the Czech constitutional order does not only protect the trust of Czech citizens in Czech law, but also protects the trust and legal certainty of other persons legally residing in the Czech Republic (e.g. persons of foreign nationality with permanent residence in the Czech Republic).
114. The specific category, which falls under the principle of territorial integrity, constitutes offences of distance, committed in particular through computer technology, which in theory admit that the consequences of the conduct which takes place in the Czech Republic can fulfil the facts of the crime in another EU Member State. The Constitutional Court admits that, under very exceptional circumstances, the application of the European arrest warrant could be contrary to the constitutional order of the Czech Republic, in particular if the distance offence was a criminal offence under the law of the requesting State, but would not be a criminal offence under Czech criminal law, possibly even enjoy constitutional protection in the Czech Republic (e.g. in the framework of the constitutional protection of freedom of speech). In this respect, the applicants' objections are well founded. In such a case, although unlikely, the application of Paragraph 377 (3) of the Code, containing a mechanism to prevent the unconstitutional consequences of the European Arrest Warrant, would take place in the sense set out above.
115. Therefore, even if the contested provisions of the rules of procedure may be applied unconstitutionally, such a hypothetical and unlikely situation is not a reason for their annulment. The Constitutional Court has already stated in its caselaw that "theoretically, of course, any provision of the law can be applied incorrectly, that is to say contrary to the constitutional rules, which in itself cannot be the reason for the annulment of such an incorrectly applicable provision. '(Opinion sp. v. ÚS 8 / 98, Collection of Finals and Order of the Constitutional Court, Volume 12, Found No 141; published under No. 300 / 1998 Coll.). In other words, if the law is capable of having multiple interpretations, and only one of them is unconstitutional, it is necessary to choose the interpretation of the constitutionally conformal (the finding of Pol. However, the purpose of the general standard control procedure is not to address all individual hypothetical situations that have not yet occurred, although they may sometimes occur. If the Constitutional Court had acted in this way, it would have exceeded its role as part of the general control of standards and would have replaced the protection of fundamental rights which, by virtue of the nature of the cases, must also be provided by general and administrative courts.
116. As regards the compliance of the contested provisions with Article 8 of the Charter, i.e. the right to personal freedom, the fundamental rights enshrined in this Article shall be ensured in the procedure of the judicial authorities prescribed in accordance with Paragraph 409 et seq. of the Code of Criminal Procedure.
117. In conclusion, the Constitutional Court notes that the EU Council, after consulting the European Parliament, may extend the list of offences referred to in Article 2 (2) of the Framework Decision for which the principle of double criminality is not required to apply to other types of crime (Article 2 (3) of the Framework Decision). It can do so only by unanimous decision, i.e. only with the consent of the representative of the Czech Republic, who will also take into account the requirements of the Czech constitutional order in his possible agreement to extend the list of such offences. At the same time, of course, a re-review of the amended Czech criminal regulations by the Constitutional Court will not be excluded.
118. In view of all the above-mentioned legal conclusions, the Constitutional Court rejected the application.
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 the Judges Stanislav Balík, Vlasta Formánková and Eliška Wagner to decide.
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Regulation Information
| Citation | The Constitutional Court found no. 434 / 2006 Coll., on the application for annulment of § 21 paragraph 2 of Act No. 140 / 1961 Coll., Criminal Act, as amended, and on the annulment of § 403 paragraph 2, § 411 paragraph 6 (e), § 411 paragraph 7 and § 412 paragraph 2 of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.09.2006 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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