Found at the Constitutional Court of the Czech Republic No. 8 / 1995 Coll.
Findings of the Constitutional Court of the Czech Republic of 30 November 1994 concerning the application for annulment of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the execution of the prison sentence, as amended by Act No. 294 / 1993 Coll., and point 198 of Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on criminal proceedings (Criminal Code)
Valid
8
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided in plenary on 30 November 1994 concerning the appellant - the group of Members of the Chamber of Deputies of the Parliament of the Czech Republic and the party to the proceedings - the Chamber of Deputies of the Parliament of the Czech Republic on the application for annulment of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the enforcement of the sentence of imprisonment, as amended by Act No. 294 / 1993 Coll., and point 198 of Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on criminal proceedings (criminal order)
as follows:
The provisions of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the execution of the prison sentence, as amended by Act No. 294 / 1993 Coll., and of Section 198 of Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on the Criminal Procedure (Criminal Code), are hereby repealed, on the date of the publication of this finding in the Collection of Laws.
At the same time, the provisions of Sections 11 (a), 13 and 14 of the Decree of the Ministry of Justice of 21 April 1994 No. 110 / 1994 Coll., which lays down the order of execution of the prison sentence, shall cease to apply on the date of the publication of this finding in the Collection of Laws.
Reasons
On 23 February 1994, a group of 44 Members of the Chamber of Deputies of the Parliament of the Czech Republic submitted a proposal for the annulment of the provisions of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the execution of the prison sentence, as amended by Act No. 294 / 1993 Coll., which regulates the conditions as well as the procedure for the reassignment of sentenced persons from one type of prison to another. A group of Members argue that the amendment to the Act on the Enforcement of the Prisoner Act No 294 / 1993 Coll. by conferring such proceedings on the Director of the Prison and reviewing its administrative decision to the District Courts, came into conflict with the Constitution of the Czech Republic, as well as with the Charter of Fundamental Rights and Freedoms ("the Charter ').
The appellant accuses the new legislation of transferring the exercise of state power, which is solely for courts, to the executive authorities and thus allows them to decide on the restriction of the integrity of the person convicted.
It also argues that the amendment allows decisions by administrative authorities, which are not subject to the rules of procedure in these cases, to abolish legal authority and the enforceability of judgments on the classification of sentenced persons in different types of prisons. Finally, it stresses that the rights of the convicted persons which they otherwise have in administrative proceedings, as well as the right that only their legal judge at first and second instance should decide on the manner in which the sentence imposed on them by the Court is to be enforced.
In the course of proceedings before the Constitutional Court, the representative of the appellants within the meaning of the provisions of Section 63 of Act No. 182 / 1993 Coll., on the Constitutional Court, and of Section 95 (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended, extended the original proposal in such a way that, together with the provisions of the amended Act on the Enforcement of Penalties, the provisions of Act No. 292 / 1993 Coll., amending and supplementing the Code of Criminal Procedure, in the part which was repealed by the earlier § 324. According to that provision, he decided to change the manner in which the sentence was to be enforced, including the replacement, by the district court. As an alternative, he proposed that the Constitutional Court postpone for a reasonable period of time the enforceability of its finding of annulment of Sections 9 and 9a of the amended Act on the execution of a custodial sentence, thus giving the legislature time to amend the criminal order accordingly.
The extension of the proposal to abolish point 198 of Act No. 292 / 1993 Coll. is connected in substance with the proposal to repeal Sections 9 and 9a of Act No. 59 / 1965 Coll., as amended by Act No. 294 / 1993 Coll., to the extent that the additional consent of 44 Members to this extension can reasonably be assumed. Therefore, the Constitutional Court did not again request these signatures in the present case (§ 64 (6) of Act No 182 / 1993 Coll.). On the contrary, if such direct factual link had not been given, it would have been necessary to proceed in the sense of the last legal provision cited.
According to the appellants, the amended legislation on the exercise of the prison sentence and on criminal proceedings is in conflict with the provisions of Articles 39 and 40 of the Charter, according to which only the court decides on the sentence and other damage to the rights which can be imposed for the commission of a criminal offence. The contradiction is further seen in Article 38 (1) of the Charter, according to which no one may be removed from his legal judge. Finally, the contested provisions of the amendment to the law on the enforcement of prison sentences, as well as the repeal provisions of the amendment to the Code of Criminal Procedure, are contrary to the provisions of Articles 2, 4 and 90 of the Constitution which do not permit the executive authorities to exercise the jurisdiction of the judicial authority.
The application for annulment of the provisions of the Act pursuant to Article 87 (1) (a) of the Constitution has been submitted by a group of 44 Members of Parliament [Paragraph 64 (1) (b) of Act No. 182 / 1993 Coll.], who have appointed from among their ranks representation in the proceedings before the Constitutional Court, Dr Jaroslav Ortman. After finding that there are no grounds for rejecting the proposal (§ 43 (1) of Act No. 182 / 1993 Coll.) or for terminating the procedure (§ 67 of Act No. 182 / 1993 Coll.), the proposal was sent to the Parliament of the Czech Republic with a call for comments in accordance with the provisions of § 69 of Act No. 182 / 1993 Coll..
The Parliament of the Czech Republic, as a party to the proceedings, stated in its observations signed by Vice-President Jan Kasal of the Chamber of Deputies, that the purpose of the legislation adopted, according to the explanatory memorandum, was that the law according to which the court ruled on the inclusion of a sentenced person in a particular type of institution for practically the full execution of the sentence did not prove adequate and flexible. At this stage, the Court of First Instance could not, with a certain degree of probability, estimate how the convicted person would behave in terms of the execution of the sentence and how he would accept or reject resocialisation programmes. Therefore, an adjustment has been proposed to ensure the necessary permeability between the types of prisons, while allowing a convict whose position in the execution of the sentence has been aggravated by the decision of the warden to seek judicial protection. Therefore, the sentenced person in the execution of the sentence has not been deprived of judicial protection and is always able, if he does not agree with the decision, to request an independent court to review the decision of the warden. Finally, he wrote on the proposal by Parliament of the Czech Republic that it was up to the Constitutional Court to examine, within the framework of the division of powers between the powers of the legislature, the executive and the court, whether the contested provisions of the amendment to the law on the enforcement of prison sentences are in accordance with our legal order and to give the relevant decision.
Following the extension of the application, submitted in the course of the proceedings before the Constitutional Court by a representative of the appellants to whom the representative of the participant - Vice-President of the Chamber of Deputies of the Parliament of the Czech Republic - was present, the representative of the participant informed that he had no suggestions to supplement the evidence and that he persisted in his opinion.
Under the provisions of § 68 (2) of Act No. 182 / 1993 Coll. First of all, the Constitutional Court examined whether the legal rules which the appellant contends to be unconstitutional had been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.
The report of the Parliament of the Czech Republic, referring to the stenographic record of the meeting of the Chamber of Deputies, the House of Press No. 536 and the Collection of Laws, found that the amendment of the law on the enforcement of prison sentences was proposed by the Government of the Czech Republic, which thus exercised its right to a legislative initiative under Article 41 (2) of the Constitution. The Act was adopted by the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Articles 15 (1) and 106 (2) of the Third Constitution. The quorum prescribed by the provisions of Article 39 (1) and (2) of the Constitution has been respected, as the meeting of the Chamber of Deputies on 10 November 1993 took part in 158 Members, of whom 117 Members voted in favour of the law, 11 Members opposed and 30 Members abstained. The statutory procedure for the adoption of the Act was therefore fulfilled, as was its publication, since it was signed by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister (Article 51 of the Constitution) and was published in the Collection of Laws (Article 52 of the Constitution, Section 2 of the Act of the Czech National Council No. 545 / 1992 Coll., on the Collection of Laws of the Czech Republic) in the amount of 74, 1993, which was circulated on 10 December 1993. On that date, Act No. 294 / 1993 Coll., amending and supplementing Act No. 59 / 1965 Coll., on the Enforcement of Penalty, as amended by Acts No. 173 / 1968 Coll., No. 100 / 1970 Coll., No. 47 / 1973 Coll. and No. 179 / 1990 Coll., became effective and effective under its Article IV on 1 January 1994.
The stenographic record of the meeting of the Chamber of Deputies, the House of Press No. 535, 536 and the Collection of Laws also showed that the amendment of Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), No. 292 / 1993 was proposed by the Government of the Czech Republic, thereby exercising its right of legislative initiative within the meaning of Article 41 (2) of the Constitution. The Act was adopted by the Chamber of Deputies of the Parliament of the Czech Republic pursuant to Articles 15 (1) and 106 (2) of the Third Constitution. The quorum required by the provisions of Article 39 (1) and (2) of the Constitution has been respected, as the meeting of the Chamber of Deputies on 10 November 1993 took part in 155 Members, of whom 104 Members voted in favour, 10 Members opposed and 41 Members abstained. The constitutional procedure prescribed for the adoption of this Act was therefore fulfilled, as well as its publication, since it was signed by the President of the Chamber of Deputies, the President of the Republic, as well as by the Prime Minister (Article 51 of the Constitution) and was published in the Collection of Laws (Article 52 of the Constitution, Section 2 of the Act of the Czech National Council No. 545 / 1992 Coll.) in the amount of 74, in 1993, sent on 10 December 1993. By that date Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), as amended by Acts No. 57 / 1965 Coll., No. 58 / 1969 Coll., No. 149 / 1969 Coll., No. 48 / 1973 Coll., No. 29 / 1978 Coll., No. 43 / 1980 Coll., No. 159 / 1989 Coll., No. 178 / 1990 Coll., No. 303 / 1990 Coll., No. 558 / 1991 Coll., No. 25 / 1993 Coll., and No. 115 / 1993 Coll., validity. It became effective within the meaning of Article IV thereof on 1 January 1994.
(a) The Constitutional Court then examined, as required by the provisions of § 68 (2) of Act No. 182 / 1993 Coll., the content of the contested provisions of the amended law on the enforcement of the custodial sentence and of the amended Code of Criminal Procedure, in view of their compliance with constitutional laws and international treaties pursuant to Article 10 of the Constitution.
The contested provisions of Sections 9 and 9a of the amended Act on the execution of a custodial sentence are in particular contrary to Article 39 of the Charter. The point is that, although the damage to the rights which are affecting the sentenced as a result of the transfer to a more stringent type of prison is supported by the Act on the enforcement of the prison sentence and by the implementing regulation (Decree No. 110 / 1994 Coll., which gives rise to the order for the execution of the prison sentence), as a result of Amendment No. 294 / 1993 Coll., which is contradictory to the Charter and the Constitution in other directions, also affects the sentenced in a non-constitutional manner.
The opposition to the contested provisions of the amendment to the Act on the execution of a custodial sentence should also be noted in relation to Article 40 of the Charter. The decision to reassign a sentenced person from one type of prison to another, regardless of the rigour of their regime, is a decision on punishment for a criminal offence, which the Charter confers solely on the jurisdiction of a court, in no way on an administrative authority.
In order to assess the compliance or non-compliance of § 9 and 9a of the amendment to the Act on the execution of a custodial sentence with Article 40 (1) The Charter is an important term in the term "judgment on punishment." With reference to Paragraph 122 (1) (a) of the judgment condemning the sentence, it must contain a statement on the sentence, stating the legal provisions under which the sentence was imposed. If an unconditional custodial sentence has been imposed, the judgment must contain a statement on the manner in which that sentence is to be enforced (Section 39a, Section 81). It follows that the decision on the penalty is, on the one hand, the decision on the type and measure of the sentence, and, on the other hand, the decision on the method of execution of the prison sentence, which, within the meaning of Article 39a (2) of the Act, means the decision of the court to place the offender in a particular type of prison. If the decision referred to in § 122 (1) (a) (81) (3) is considered to be the original decision on punishment, then the decision to be transferred from one type of prison to another may be considered as a decision derived, even if the decision cited in § 122 (1) (3) does not explicitly mention it.
The fact that the transfer decision of the sentenced person is a decision derived from it cannot be inferred from the possibility of it being entrusted to a body other than the judicial authority. This derived character does not make it a decision of a completely different nature than the original decision to place a convicted person in a prison type. The Constitutional Court is of the opinion that the opposite is the case. Both the original and derived decisions, in the above sense, are punishments decisions. The argument supporting this conclusion could also be that the content of the amendment annulled and the statement of today's finding of a rehabilitated provision of Article 324 (3), under which paragraph 1 of the decision to change the way in which the prison sentence is to be enforced, which means, in particular, the reassignment of a convicted person from one rehabilitation group to another, was decided by the District Court.
The case can also be seen as follows, which leads to the same conclusions.
In its conceptual and content sense, the category of punishment has not only its quantitative, temporal dimension, but also its dimension of quality, indicating to what extent and how human freedom and dignity are affected. The combination of the dimensions indicated is also a legal requirement that, where an unconditional custodial sentence is imposed, the judgment must include a statement on how that sentence is to be enforced (§ 122 (1) (3)). This statement, therefore, is, in substance, a statement about the punishment, which attaches both its quantitative dimension and its qualitative dimension. This interpretation also supports the understanding of human rights and freedoms, as this is not only about the length of the sentence, but also about its relationship with the limits of these rights and freedoms and the intensity of intervention in rights and freedoms.
The inconstitutionality of § 9 and § 9a (1) of the Act on the execution of the prison sentence in the amended version (Act No. 294 / 1993 Coll.) cannot, in the view of the Constitutional Court, heal even the content of the provisions of § 9a (2) of the Act cited, in relation to Article 40 (1) of the Charter.
According to the last provision cited - § 9a (2) - against a decision to transfer to a prison with a stricter regime, the sentenced person may, within eight days of the date of service of his written copy, lodge an appeal with the district court in whose district is the prison whose principal has decided to transfer. The appeal has no suspensory effect. A special rule shall apply to proceedings before a court. This provision is the Civil Code (Act No. 99 / 1963 Coll., in the amended version, namely its provisions § 250l to 250s, which govern decisions on appeals against decisions of administrative bodies).
As already stated, the judgment on the sentence of a court as a court of first instance includes a decision on its type, size and manner of enforcement if an unconditional sentence has been imposed.
By contrast, a decision within the meaning of § 9a (2) of the amended Act on the execution of a custodial sentence and § 250l to 250s o. s. s.) is a decision only in an instance of appeal against which further appeals are not permitted (§ 250s (1) o. s.). In other words, the court receives first and exclusively as a second-degree court to decide on the manner in which the sentence is to be enforced pursuant to Paragraph 9a (2) of the amended law on the enforcement of the sentence and under the civil court order. This significantly impedes the possibility of defending a convicted person against a transfer decision, contrary to the earlier regulation in § 324 (3) (3) (d), according to which a complaint having suspensive effect was admissible against a decision to change the manner in which the sentence was to be enforced, i.e. the transfer. This nature and the consequences of the imprisonment now repealed in § 9a (2) of the Act on the enforcement of the prison sentence, as amended by Amendment No 294 / 1993 Coll., as assessed from the above point of view, are also, to a certain extent, evidenced by the specific figures on the number of prison sentences with a stricter regime. The report by the Ministry of Justice, covering the period from 1 January 1994 to 31 October 1994, shows that a total of 162 cases were decided on the transfer of sentenced to a prison with a stricter regime. They brought an appeal against those decisions to the District Court pursuant to § 250l to 250s o. s. o. In four of them it was decided to reject them, in one case the proceeding was terminated, in one postponement and in the remaining four cases no decision was yet taken at the date of the report (17 November 1994).
In summary, if the constitutional reassignment of convicted persons is already a court of the first instance, the lack of such a decision cannot be replaced by a judicial decision, which is merely a review of an administrative decision of the first degree, in the context of decisions on appeals against their decisions.
The decision on the transfer of a convicted person from one type of prison to the other director of that prison was entrusted to the court and entrusted to the administrative authority by giving the decision on the method of execution of the prison sentence. At the same time, the defendant was also removed from the court's ruling on the issue, or his lawful judge. The provisions of Sections 9 and 9a of the Act on the execution of a custodial sentence are thus contrary to Article 38 (1) of the Charter.
The extent to which state power in the form of criminal power, that is to say, the execution of a custodial sentence, including changes in the manner in which it is exercised, can only be exercised in the limits and in the manner laid down by the law, but it must only be a law that is not unconstitutional. However, the amendment to the Act on the execution of the prison sentence No 294 / 1993 Coll. shows such contradictions, as imported from above, as a result of which its provisions of Sections 9 and 9a are contradictory to Article 2 (3) of the Constitution.
The fact that the contested provisions of the amendment to the law on the enforcement of a custodial sentence mean, as a result of the withdrawal of the sentenced person in the course of the sentence, to his lawful judge (see contradiction with Article 38 (1) of the Charter), that the fundamental right and freedom of the sentenced person, i.e. personal freedom (Article 8 (1) of the Charter), is withdrawn from the protection of the judicial authority, which infringes Article 4 of the Constitution. This implies the non-constitutionality of the contested Sections 9 and 9a of the amendment to the Act on the Enforcement of Penalty No. 294 / 1993 Coll.
The inconstitutionality of the provisions cited in the amendment to the law on the enforcement of a custodial sentence, where it is seen by the appellants in contravention of Article 90 of the Constitution, is justified in the same way as in the case of a collision of the contested provisions with Article 40 (1) of the Charter. According to both provisions, only the court decides on guilt and punishment for crimes. So not an administrative body, even if it is just a matter of judgment.
In view of the fact that, for the reasons set out above, Article 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, a contradiction was found between the provisions of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the exercise of the sentence of imprisonment, as amended by Act No. 294 / 1993 Coll., on the one hand, and the articles of the Charter cited, as well as the Constitution, on the other hand, the Constitutional Court decided on the annulment of those legal provisions, on the date of the publication of that finding in the Rules of Law.
(b) Although the appellant pointed out only to the contradiction of the provisions cited in the amendment to the Act on the Enforcement of the Penalty No. 294 / 1993 Coll., as well as the amendments to the Code of Criminal Procedure No. 292 / 1993 Coll., with national constitutional law, the Constitutional Court, which is bound only by the petition's petition and not by its justification, dealt with the question of compliance of the contested legislation with the international treaties on human rights and fundamental freedoms which have been ratified and declared by the Czech Republic if they are bound by them (Article 10 of the Constitution). However, it did not find any discrepancies in this respect.
In addition to this examination, the Minimum Standard Rules for the Treatment of Imprisoned Persons, approved by the United Nations Economic and Social Council by Resolutions 663 C (XXIV) and 2076 (LXII), as well as the European Prison Rules, having the character of Recommendation R (87) 3 of the Council of Europe Committee of Ministers to the Member States, remain. None of these documents has the character of an international treaty within the meaning of Article 10 of the Constitution.
Since the Act No. 59 / 1965 Coll., on the enforcement of the sentence of imprisonment, as amended by Act No. 294 / 1993 Coll., implementing regulation, namely Decree No. 110 / 1994 Coll., which gives rise to the order of execution of the sentence of imprisonment, was necessary in accordance with § 70 (3) of the Act No. 182 / 1993 Coll., on the Constitutional Court, also to declare a loss of validity of its provisions, namely § 11 (a) and § 13 and 14, since they follow the repealed provisions of § 9 and 9a Act No. 59 / 1965 Coll., as amended by Act No. 294 / 1993 Coll.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 8 / 1995 Coll., on the application for annulment of Sections 9 and 9a of Act No. 59 / 1965 Coll., on the execution of the custodial sentence, as amended by Act No. 294 / 1993 Coll., and point 198 of Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on criminal proceedings (Criminal Code) |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.02.1995 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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