Found at the Constitutional Court of the Czech Republic No. 91 / 1994 Coll.
The finding of the Constitutional Court of the Czech Republic of 12 April 1994 concerning the proposal of the President of the Republic to abolish part of the provisions of Section 102 of Act No. 140 / 1961 Coll., Criminal Act, as amended by Act No. 557 / 1991 Coll. and Act No. 290 / 1993 Coll.
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20.05.1994
91
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided on 12 April 1994 in plenary on the proposal of the President of the Republic to repeal the provision contained in Section 102 of Act No. 140 / 1961 Coll., the Criminal Act, as amended by Act No. 557 / 1991 Coll. and Act No. 290 / 1993 Coll., and expressed in the words "Her Parliament, Government or Constitutional Court"
as follows:
The provision set out in Section 102 of Criminal Act No. 140 / 1961 Coll., as amended by Act No. 557 / 1991 Coll. and Act No. 290 / 1993 Coll., which is defined by the words "its Parliament, Government or Constitutional Court," shall be deleted from the date of the declaration of the finding in the Collection of Laws.
Reasons
(substantial part)
The President of the Republic submitted a motion to the Constitutional Court on 1 December 1993 for the annulment of the above-mentioned section of Section 102 of the Criminal Act, as amended by Act No. 290 / 1993 Coll., amending and supplementing the Criminal Act and the Act of the Czech National Council No. 200 / 1990 Coll., on Infringements.
In order to justify his proposal, the President of the Republic stated that the definition of the substance of the case in Paragraph 102 is contrary to Article 17 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter '), since the offence of defamation of Parliament, the Government and the Constitutional Court in the concept and the definition laid down by our criminal law is not, on the one hand, a" necessary measure' in our society and, on the other, the reasons for which the freedom of expression of the citizen can be restricted are not expressed in that definition. In addition, the draft offence of defamation by the state authorities of the Republic in the contested provision is characterised by indeterminate and enabling misinterpretation. According to the appellant, it does not specify what action a citizen must take, both in terms of form and content of defamation, against a protected object. The proposal then states that such an inaccurate wording allows for wide criminal liability, which may lead to a breach of the Constitution of the guaranteed right of freedom of expression.
The Chamber of Deputies of 7 January 1994 states on the proposal of the President of the Republic that the new text of Paragraph 102 of the Criminal Act responds only to the altered constitutional state resulting from the division of the Federation and the adoption of the Constitution of the Czech Republic. From the point of view of the Chamber of Deputies' statement, the motion to abolish only part of Section 102 of the Criminal Act is unclear when it accuses the law of inaccurate wording. According to the Chamber of Deputies, this inaccuracy is clearly not meant by the part of the law whose constitutionality is being challenged, but by the proposal of the untouched definition of "Who... Disgraces." Should the application of this provision be too widespread to violate the constitutionally guaranteed freedom of expression, the applicable rule of law - according to the Chamber of Deputies - provides a number of defence options against such unconstitutional intervention, including protection in proceedings before the Constitutional Court.
The Constitutional Court first addressed the question of the applicant's active legitimacy. In so doing, he considered the reservations which denied the right of the President of the Republic to file an application for annulment of the law or its individual provisions [pursuant to § 64 (1) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court], without the contraindication of this proposal by the Prime Minister or by his authorised member of the Government, since Article 63 (2) and (3) The Constitution allegedly makes the co-signature of the Prime Minister a condition for that proposal.
Having considered those reservations, the Court concluded that it was an interpretation which was inconsistent with the text and purpose of the Constitution and pointed out in this regard the difference in the wording of paragraph 2 and paragraph 3 of Article 63 of the Constitution. Article 63 (2) The Constitution contains a global expression of the undetermined extent (potential) of the powers that may be conferred by law on the President of the Republic. On the other hand, Article 63 (3) of the Constitution lays down in which cases the exercise of those powers (conferred on the President of the Republic pursuant to paragraph 2) requires the co-signature of the President or his authorised member of the Government. This is not the case generally in any manner of exercising the powers referred to in Article 63 (2), but only in such way as to exercise those powers as the President of the Republic exercises in the form of a "decision '(Article 63 (3) of the Constitution). This wording underlines the objective legal nature of such a decision: the exercise of powers amending or confirming the legal situation (even individual persons). The" decision issued' cannot therefore be understood as any "decision 'to a particular conduct. The proposal of the President of the Republic pursuant to Paragraph 64 (1) (a) of the Constitutional Court Act is not a" decision taken' but an initiative. By this proposal, the President of the Republic implements only his own right, while the right to give a decision and thereby to confirm or amend the state of law is for the Constitutional Court.
In addition, the Constitutional Court considered another reservation questioning both the applicant's active legitimacy and the Constitutional Court's competence to decide on the application. The Constitution, as known, confers on the Constitutional Court the right to decide on the unconstitutional nature of laws or their individual provisions. Since the proposal of the President of the Republic does not contest the unconstitutionality of the entire Section 102 of the Criminal Act, but only parts thereof, it is pointed out in the objections that the proposal does not concern a "single provision ', but only parts thereof, and since the Constitution does not provide for any decision on the parts of the individual" provision', it is considered that the proposal lacks the active legitimacy of the appellant and the Constitutional Court to decide on it.
These reservations should also be rejected. Article 87 Constitution cannot be interpreted in the sense of purely formal hierarchy of law, distinguishing sections, articles, paragraphs etc. "Individual provision" is simply not just a formal whole or a formal unit of a legal text, but every part of a legal text that - irrespective of its formal form - "sets individually," that is to say, it expresses - even in individual, i.e. partial issues - a certain legal situation, which is nevertheless a material-legal whole with a certain obvious meaning.
The protection of certain institutions against defamation contained in Section 102 of the Criminal Code is a legal provision in which those institutions are entitled to criminal protection within the scope of Section 102 of the Code, as well as a general obligation to avoid the fulfilment of the facts. It is not decisive that the term "Republic" is protected in the same paragraph - it is crucial that the part of Paragraph 102, which is required by the President of the Republic, is legally defined in substance. The appellant must not be forced to propose the abolition of those parts of individual sections of the law which he considers to be constitutional and which retain their meaning even after the repeal of other parts of the same section.
The objection of a possible variable interpretation which could jeopardise the principle of freedom of expression is, in itself, no longer sufficient grounds for the annulment of the contested section of Paragraph 102 of the Criminal Act. The facts of unconstitutionality are not determined simply by the possibility of disinterpretation of a particular rule of law, but it requires unequivocally finding a discrepancy in the text of the law already existing or resulting from it, which is to say, if the anticonstitutional interpretation of the meaning and text of the law is inevitable or realistic, or if the law inspires such interpretation by its nature.
The term "defamation" is a term that is not new in our legal order. In the territory of Bohemia and Moravia it is used continuously from the criminal law of 1852, it was taken over under the first republic in § 14 paragraphs 5 and 6 of the Act for the Protection of the Republic No. 50 / 1923 Coll., supplemented by Act No. 124 / 1933 Coll., and later in the criminal laws of the fifties and sixties. The "defamation" was understood as a gross reduction in seriousness and is interpreted in the current doctrine of criminal law as gross abuse, humiliation or ridicule, as a more gross assault on seriousness and honor, committed in an offensive manner.
The term "defamation" in itself today is no different than before. The difference which cannot be overlooked, however, is that Law No 50 / 1923 Coll. used the term "defamation" only in Paragraph 14, only in connection with the defamation of the Republic, that is to say, a concept which is not an expression for a particular institution with a specific competence, but is a symbol of the general organisation of the State. The protection of individual constitutional institutions was governed by this law in another way. In Paragraph 20, which is significantly comparable to § 102 of the current criminal law, there is talk of gross indecency to individual constitutional authorities only in very specific contexts: if they have been impaired in the exercise of their powers, in order to reduce their seriousness.
Similarly, the adjustment of these issues in other countries is differentiating. What makes the Czech Republic exceptional is not that it protects the particular facts of the offence of the Republic and the highest constitutional authorities, but the way in which it protects them: that it does not differentiate between the facts of the specific constitutional bodies entrusted with certain functions and with certain powers and the defamation of the Republic as a symbolic expression for the general organisation of the state. In a constitutional state, the protection of specific decision-making institutions is always narrower and more defined: it is limited to the fulfilment of their constitutional functions and by clearly defining only the necessary degree of intervention in civil rights, it is part of the overall system of control of power. In a constitutional state, such sovereign people also protect themselves and the primate of their civil rights against potential abuses of power, and thus against their own state and their own delegates.
From this point of view, it must also be borne in mind that the criminal law, in addition to the crime of 'defamation of Parliament, the Government or the Constitutional Court' pursuant to Paragraph 102, knows other provisions applicable to the similar criminal protection of these institutions. In Title Three, it defines offences against the exercise of the authority of a public authority as well as a public official. A clear correlate to the facts of § 102 contains in particular Sections 154 (2) and 156 (3) of the Criminal Act.
In the first case (Paragraph 154 (2)), the fact is formulated as a gross insult or slander of a public authority, in the second (Paragraph 156 (3)), a public authority. The theory of criminal law and judicial practice combines the same terms ("defamation" and "gross insult or slander"). This is an attack on the honour, reputation and seriousness of the institution, and a disrespectful speech can be made in different ways: verbally, in writing, graphically, through a gesture or even by a physical act that does not achieve the intensity of violence.
The extent to which the provisions of Articles 102 and 154 (2) and 156 (3) are in fact identical depends on the assessment of the context in which they are set up.
When it is established that there are identical provisions, there may be doubt as to the effectiveness of such a solution, but duplicity cannot be legally challenged, because the "superfluum non nocet" principle applies - it does not harm excess. The term "defamation of the Czech Republic" in the first part of Section 102 of the penal law, which is not the subject of the appellant's objections, remains a side of the view of the Constitutional Court. It should be noted that the term "Republic 'differs from the term" State bodies': it is an abstract expression expressing rather the general organisation of the State.
Otherwise, specific institutions of the state, such as Parliament, the Government or the Constitutional Court, which carry out a specific mission, are endowed with specific functions and powers and are "materialised" and related personnel equipment. By using the general and unambiguous term "state body 'in § 154 of the Criminal Act, state bodies are protected collectively and institutionally (as individual institutions), and in § 156 by individual public authorities.
In the case of, respectively, Sections 154 (2) and 156 (3) of the Criminal Act, the Title of the Third Criminal Law specifies the meaning and framework of the criminal protection provided. The institutions are not themselves the object of protection, in their "materialised" form, but the mission that they carry in a democratic society: their activities facilitate the unhindered function of the constitutional and legal state. The most important object of protection thus becomes a set of values on which the democratic state rests and on which it builds. Therefore, the facts of a criminal offence may only be fulfilled by a serious offence or by slander of a public authority or public authority if a public authority or public authority is, in a gross manner, attacked (i.e. by gross abuse and slander), directly in connection with the exercise of its powers: in the exercise or exercise of its powers.
As a result of this difference, it is clear that in Paragraph 102 there is a different definition of the substance of the facts for acts which would otherwise be punishable already under Sections 154 (2) and 156 (3) of the Criminal Act. Therefore, it is not possible to apply the sentence to § 102: superfluum non nocet. This duplicity, and yet the difference in the regulation, leads to interpretations that exclude Parliament, the Government and the Constitutional Court from the framework of state bodies, although they are state bodies, and provides them with a superior kind of legal protection, which is otherwise only common for the protection of abstract symbols of the state.
The law also lays down limits on the exercise of the fundamental rights and freedoms of citizens by defining the criminal protection of constitutional institutions in Section 102. However, the law in the rule of law is not merely an internal circular for the state apparatus, and the criminal law is not an internal directive for criminal justice. The law is a publicly published means which, above all, is to make it clear to citizens themselves what they can and cannot do and what they can and no longer can.
A clear line between freedom, which is a constructive basis for a democratic and critical society, and freedom that seeks to destroy general human and democratic values is also a condition for the exercise of civil rights. That is why democratic states recognise the legitimacy of certain restrictions on the exercise of civil and human rights and freedoms. The principle of rule of law is based on the priority of a citizen before the state, and hence on the priority of fundamental civil and human rights and freedoms. However, there is also a sense in the rule of law that such measures need to be minimised and, at the same time, faced with the temptation of the state and powerful individuals to gain more power in it than they necessarily need.
Since every law containing orders and prohibitions interferes with the freedom of an individual and his fundamental rights, it must be considered whether and to what extent the orders are clearly and accurately defined, but also whether they are proportionate, appropriate and necessary for their purpose.
In a constitutional state, it is not only important how they are able to interpret the laws of the courts, but also how the civil public will interpret them. The legal uncertainty of citizens means a loss of the credibility of the rule of law and an obstacle to civil activity at the same time. While even a layman can make an idea of the facts of Article 154 (2) and Article 156 (3), Article 102 of the Criminal Act raises doubts as to where the end of the criticism and the beginning of the defamation of the constitutional institutions is at all when the link of the facts to the mission or function, activity or at least the exercise of powers by the institutions is not determined. This does not even specify what is worthy of special criminal protection in these institutions, so that in this context the term 'defamation' becomes of considerable and indefinite importance. There is no doubt that this vague uncertainty can be seen as relinquishing the old superseded regimes, which, in general, kept the vague wording available on certain issues, which allowed for the interpretation of "ad usum Delphini 'according to the needs.
Another element of the rule of law is the principle of proportionality, i.e. an adequate correlation between the objective and the resources used. Article 102 of the Criminal Law on Civil Rights is laid down in particular in Article 17 of the Charter, which defines both freedom of expression and the limits of its possible restriction. Article 17 (4) The Charter can only be restricted by law to freedom of expression and the right to seek and disseminate information if it is about measures in a democratic society necessary to protect the rights and freedoms of others, the security of the state, public security and the protection of public health and morality. Article 4 (1) The Charter must have legal respect for fundamental rights and freedoms and, in accordance with paragraph 4, its substance and its meaning and limitations must not be misused for purposes other than those for which it has been established.
Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention ') also lays down similar claims on our rule of law in terms of the international legal obligations of the Czech Republic and lays down similar conditions to those laid down in Article 17 of the Charter, in particular limits legal interference in rights and freedoms to" measures in a democratic society necessary' for the protection of values which essentially coincide with Article 17 of the Charter (the text of the Charter was governed by Article 10 of the Convention). As a result, the concept of legality and legal restrictions on civil rights, as understood by the international community under the Convention, as well as their interpretation in the jurisdiction of the European Court of Human Rights, is of great importance for the assessment of Paragraph 102 of the Criminal Act.
According to the opinion of the European Commission on Human Rights and the European Court of Human Rights, only a legal standard formulated with sufficient precision to enable citizens to regulate their behaviour can be considered a law.
In a potential conflict between freedom of expression and the right of the State to limit it if necessary, the European Court of Human Rights is based on increased protection of the individual, because it considers freedom of expression to be one of the main foundations of democratic society, even if it comes to information or ideas that insult, shock or concern the state or part of the population. This corresponds, according to the opinion of that court, to the requirements of pluralism, tolerance and openness of democratic society. The freedom of the press, according to that court, provides public opinion with one of the best means of identifying and assessing the ideas and attitudes of political leaders. Freedom of political debate is the real core of the concept of democratic society. The European Court of Human Rights has therefore ruled that the limits of admissible criticism are therefore wider for a politician as such than for a private person: unlike a private person, a politician is inevitably and knowingly exposed to strict control of his own words and gestures from both journalists and the general public. Article 10 (2) The Convention also provides for the protection of the reputation of others and the protection of policies, in which case the protection requirement must be measured by an interest in free debate on political issues.
After consideration of all the circumstances and context in which Section 102 of the Criminal Act is based, the Constitutional Court of the Czech Republic has concluded that the indefinite and undefined criminal protection of Parliament, the Government and the Constitutional Court in § 102 of the Criminal Act goes beyond the constitutional order and international obligations of the Czech Republic, since, with sufficient criminal protection of the state authorities in § 154 (2) and § 156 (3), it brings its generality and indeterminity an element of superfluous protection which, moreover, deviates from both the generally recognised principles of the rule of law and from the framework which limits in Article 17 of the Charter of State's law on measures which are necessary by nature to preserve certain values. In Section 102 of the Criminal Act, it cannot be a necessary measure because the protection granted to state authorities in Sections 154 and 156 is sufficient and more precise in terms of defining the object of protection. The concept of Paragraph 102 of the Criminal Act is also contrary to the international obligations of the Czech Republic and the jurisdiction of the European Court of Human Rights.
In fact, by not defining the actual object of criminal protection in § 102, the supreme position is protected, i.e. a place in the institutional hierarchy of state authorities, although it should be the subject of the protection of the implementation of the mission and function that belongs to Parliament, the Government and the Constitutional Court in the life of a democratic society. Since the protection of the exercise of the power of state bodies, and thus their role in democratic society, contains and defines Article 154 of the penal law, and since the state authorities are undoubtedly also Parliament, the Government and the Constitutional Court, there is the notion that Article 102 introduces a kind of absolute institutional protection for those constitutional authorities, which in this case is not linked to the exercise of their powers. Thus, the interpretation of the concept of defamation loses its limits and its link to the function of these constitutional bodies. In § 102 of the Criminal Act, the term "defamation" does not take account of the intent of the perpetrator, nor of the extent to which the exercise of power and the role of a constitutional institution in a democratic system is at all comparable, in its form, to the classic insult to the Majesty's Majesty's Majesty.
This is directly inspired by the interpretation which is in breach, in particular, of Article 17 (4) of the Charter and Article 10 of the Convention, as it is not a measure in a democratic society for the reasons set out in those Articles necessary, and of Article 4 (4) of the Charter, according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance must be investigated, and the meaning and limitations must not be misused for purposes other than those for which they were established. It is also contrary to Article 1 of the Constitution, according to which the basis of the rule of law is respect for the rights and freedoms of man and citizen and which, together with Article 1 of the Charter, formates the primacy of fundamental rights and freedoms.
By linking the criminal protection of Parliament, the Government and the Constitutional Court to the protection of the "Republic 'in the common section, two different and comparable categories of the protected object are mixed. Whereas, in order to protect abstract concepts such as the" Republic "or the State symbol, the more general definition of" defamation "is common, the protection of those institutions should be linked to the role that is assigned to those institutions in a democratic society and thus to the way in which they perform that role. If, in the first case, it is about protecting ideas, it is about protecting the functional values of society, and it is about protecting democratic principles.
According to the observations of 10 January 1994 signed by the President The Chamber of Deputies responds to the new text of Paragraph 102 of the Criminal Act only to changes in the constitutional status resulting from the division of the State, with the proposal of the Constitutional Law Committee of the Chamber of Deputies to delete Paragraph 102 of the Criminal Act at that time not being accepted.
The Constitutional Court considers that, by adapting Paragraph 102 of the Criminal Act only to the division of the State, there is a contradiction between the concept of the protection of constitutional institutions, which remained valid for the "old regime," and the new constitutional order, as well as the international obligations of the Czech Republic, based on completely different constitutional principles.
Having taken into account all the circumstances and context of the Constitutional Court, the Constitutional Court finds that Article 102 of the Criminal Act, to the extent defined in Law No 290 / 1993 Coll. states that "its Parliament, the Government or the Constitutional Court 'is contrary to Articles 17 (4) and 4 (4) of the Charter, Article 10 (2) of the Convention, as well as to the principles of the rule of law and the primacy of fundamental rights and freedoms contained in Articles 1 and 3 of the Constitution of the Czech Republic and Article 1 of the Charter.
JUDr. Kessler v. r.
President of the Constitutional Court of the Czech Republic
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 91 / 1994 Coll., on the proposal of the President of the Republic to abolish part of the provisions of Section 102 of Act No. 140 / 1961 Coll., Criminal Act, as amended by Act No. 557 / 1991 Coll. and Act No. 290 / 1993 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.05.1994 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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