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HEADNOTES
If,
thanks to the applicable procedures, the interpretation even of the
very old criminal law norms is carried out at the present by a court
with consequences for adjudging the criminal prosecution of a person,
that is with consequences intruding into his or her personal sphere, it
may not be carried out without regard to the constitutive values and
principles of the democratic law-based state, such as they are expressed
in the Czech Republic’s currently valid constitutional order. It is
only in this restrictive sense, that of value discontinuity, that one
may conceive of continuity with „old law“ the application (legality) of
which is the subject of contemporary proceedings on a complaint of a
violation of the law.
The freedom of conscience is manifested in decisions made by the
individual in certain concrete situations, that is, “here and now”, felt
as a profoundly experienced duty. Apart from the correlation of the
norm and the situation, the structural characteristic of conscience
consists also in a personally experienced sense of an unconditional
duty.
The
freedom of conscience is classified among the absolute fundamental
rights which may not be restricted by ordinary statute. In the case of
the conflict of a legal norm with a concrete assertion of the freedom of
conscience, it is necessary to weigh whether the assertion of the
freedom of conscience is not barred by other values or principles
contained in the Czech Republic’s constitutional order as a whole
(constitutionally immanent restriction upon fundamental rights or
freedoms).
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The
Plenum of the Constitutional Court decided on 26 March 2003 in the
matter of the constitutional complaint of V.W. (V.) against the 17
October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002 as
follows:
The
17 October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002 is
quashed due to its conflict with Art. 15 para. 1 of the Charter of
Fundamental Rights and Basic Freedoms.
REASONING
I.
By
a constitutional complaint delivered to the Constitutional Court on 7
November 2002, the complainant prayed for the annulment of the 17
October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002, which
turned down on the merits the complaint of a violation of the law
submitted in the complainant’s favor by the Minister of Justice.
By
the 7 January 1954 judgment of the former Lower Milityry Court in Brno
PSP 47, file no. T 2/54, the complainant was found guilty, pursuant to §
270 para. 1, lit. b) of Act No. 86/1950 Coll., the Criminal Act, of the
criminal offense of evading the service duty. It was alleged that he
committed this offense in that on 1 November 1953 he refused to put on
his uniform, to accept the arms allocated to him, and to perform
military service, all the while alluding to his religious convictions.
For his criminal offense he was sentenced to imprisonment for a period
of two and a half years and, at the same time, he was declared to have
forfeited for a period of three years his honorable rights of
citizenship and the rights laid down in § 44 para. 2 of the Criminal
Act, No. 86/1950 Coll.
This
decision, which became final and enforceable on 7 January 1954, was
subsequently contested when the Minister of Justice submitted a
complaint of a violation of the law in favor of the complainant. The
complaint was argued to the effect that the judgment violated § 2 para. 3
of Act No. 87/1950 Sb, on Criminal Judicial Proceedings (the Criminal
Procedure Code), in relation to § 270 para. 1, lit. b) of Act No.
86/1950 Coll., the Criminal Act, on the grounds stated in § 1 paras. 1
and 2 of Act No. 119/1990 Coll., on Judicial Rehabilitation, as
subsequently amended.
The
competent Supreme Court panel heared the 29 May 2002 complaint of a
violation of the law, and, in view of the divergent decisional practice
of Supreme Court panels, in its ruling, file no. 11 Tz 205/01, decided
to refer the matter to the Grand Senate of the Criminal Collegium. It
designated as the decisive question whether the complainant’s conduct
can be viewed as a criminal offense or whether the complainant was, by
these means, merely asserting his religious freedom guaranteed by the
Constitution, yet in conflict with his duties towards the state and
society, as laid down in the Constitution.
In
the reasoning of the contested 17 October 2002 ruling by the Supreme
Court Grand Senate, file no. 15 Tz 47/2002, the Grand Senate stated
first and foremost that, in a proceeding on a complaint of a violation
of the law, it adjudicates the correctness of the contested decision, as
well as the correctness of the proceeding leading up to it, ex tunc,
that is, in accordance with the factual and legal situation prevailing
at the time the decision contested in the complaint of a violation of
the law was issued.
On the
strength of § 2 para. 1 of the Act on Judicial Rehabilitation, judgments
of conviction were quashed, ex lege, if the convictions were for such
acts as were declared to be criminal offenses in conflict with
principles of a democratic society respecting civil, political rights
and freedoms guaranteed by the Constitution and expressed in
international documents and international legal norms. The criminal
offense of evading the duty to serve under § 270 para. 1, lit. b) of the
Criminal Act, No. 86/1950 Coll., is not listed in § 2 para. 1 of the
Act on Judicial Rehabilitation. In view thereof, according to the
reasoning of the contested ruling, the Supreme Court Grand Senate could
not consider the complainant’s conviction unlawful merely due to the
fact that, when he committed it, he referred to his religious
convictions. If the legislator did not consider it necessary to quash
such convictions ex lege, then it is not an act, the declaration of
which as a criminal offense would, in and of itself, conflict with
international documents, international legal norms, and the principles
of a democratic society repecting guaranteed civil and political rights
and freedoms. Therefore, in the Supreme Court’s view, a conviction for
the given criminal offense cannot, in and of itself, be considered as
incompatible with democratic and legal principles, and such conviction
cannot, without more, be seen as a violation of the law.
II.
In
his constitutional complaint the complainant objects primarily to the
fact that the Supreme Court did not concern itself with the specific
criminal matter, rather it expressed general considerations concerning
whether criminal prosecution for evading the service duty was
permissible during the given period, that it entirely overlooked the
proposition of law expressed by the Constitutional Court, for example,
in its judgment in the matter file no. II. ÚS 285/97, and entirely
passed over the issue of the special subject, and that the Senate was
composed even of judges who should have been excluded from the hearing.
In
the complainant’s view, the existence of a statutory duty is not, in
and of itself, a sufficient reason for restricting religious freedoms.
According to the complainant, further prerequisites must be fulfilled,
such as, that the military service would have to function to ensure the
rights and freedoms of other people and would have to correspond to the
just requirements of morality, public order, and general good in a
democratic society. However, military service in a communist regime
could not have met these requirements. As the complainant stated,
military service could not at all have functioned to ensure the rights
and freedoms of other people, rather it was meant to serve for the armed
protection of a regime which engaged in the long-term and systematic
infringement of human rights, was criminal, illegitimate, and
despicable. From this perspective, the complainant’s religious freedom
was, in his view, excessively restricted not only in the sense of Art.
18 and Art. 29 para. 2 of the Universal Declaration of Human Rights
(hereinafter „Declaration“), but also of Art. 9 paras. 1 and 2 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter „Convention“).
The
complainant further considers that it is not decisive for judging his
case whether the Minister of Justice has or has not submitted in other
cases complaints in favor of persons who behaved in the same manner as
he, although from other motives. While the Supreme Court refers in its
decision to Art. 1, Art. 2 para. 1 and Art. 3 of the Charter of
Fundamental Rights and Basic Freedomes, nonetheless, it was precisely
these provisions which, in the complainant’s view, it violated by its
decision, when it applied them as if the complainant had demanded
advantages to the detriment of other persons. The complainant considers
that, on the contrary, it is he who has been subjected to
discrimination, and in his constitutional complaint he remarks that no
international treaty, nor any domestic law, distinguishes as to whether
someone has refused military service due to the fact that he does or
does not have a certain religious conviction.
The
complainant also considers that the Supreme Court has, in the contested
decision, infringed his right to fair process guaranteed by Art. 36
para. 1 of the Charter and Art. 6 para. 1 of the Convention. In his
view the Grand Senate, to which the matter had been referred for the
purpose of unifying the propositions of law espoused by various Supreme
Court panels, should have analyzed the legal conclusions in previous
similar decisions and not merely „copied“ the previous negative decision
of the 5th Panel of the Supreme Court Criminal Collegium.
The
complainant further disagrees with the Supreme Court‘s view that he was
not hampered in asserting his right to judicial rehabilitation by the
conduct of the Head of the Local Military Court in Brno, who, in
response to the question posed by the complainant’s legal counsel, gave
misleading information concerning judicial rehabilitation. The
complainant believes that his then legal counsel did not ask the
question informally, rather officially, and that it was the Head’s duty
to act in accordance with § 52 of the Criminal Procedure Code, that is
to conduct himself as is called for by the significance and formative
purpose of criminal proceedings. The complainant, thus, acted in good
faith that the Head’s response was correct and did not submit the
proposal for judicial rehabilitation.
In
view of all the above-stated facts, the complainant considers that, by
its decision, the Supreme Court has infringed his constitutionally
guaranteed rights under Art. 18 and Art. 29 of the Declaration, Art. 9
paras. 1 and 2 and Art. 6 para. 1 of the Convention, and Art. 36 para. 1
of the Charter.
The
complainant supplemented his constitutional complaint in his submission
of 17 March 2003, in which he also criticized the Supreme Court for
infringing his right to the freedom of conscience under Art. 15 para. 1
of the Charter of Fundamental Rights and Basic Freedoms, on the grounds
expanded upon in the reasoning of the 11 March 2003 Constitutional Court
judgment, file no. I. ÚS 671/01.
III.
At
the Constitutional Court’s request, the Supreme Court, as a party to
the proceeding, gave its views on the submitted constitutional
complaint. The Chairman of the Grand Senate stated that the complaint
of a violation of the law in favor of V.W. (V.) was referred to the
Grand Senate for its decision on grounds of unification of the
decisional practice of the Criminal Collegium panels. Supreme Court
panels had adopted two different views on the question at issue.
According
to one view, a conviction, pursuant to § 270 para. 1, lit. b) of the
Criminal Act, No. 86/1950 Coll., for the criminal offense of evading the
service duty cannot, in and of itself, be considered as incompatible
with democratic and legal principles and one cannot, without more, spot
in it a violation of the law, even though the original conviction
occurred during the period from 25 February 1948 and 1 January 1990 for
an act committed after 5 May 1945. According to this view, neither the
Declaration nor any international treaty on human rights establishes a
right to refuse to fulfill a statutory duty towards the state, including
military duty, and such a criminal prosecution is permissible even in
democratic states and even in cases where the possibility of alternative
service does not exist.
The
second view is based on the conviction that, in a situation where no
alternative to the performance of basic military service existed for
cases when such performance would require a citizen to violate his
religious convictions, an act by which he exercised a freedom guaranteed
by the constitution and by international conventions cannot be regarded
as a criminal offense.
As
the Chairman of the Grand Senate further stated, the effort to unify the
previously divergent decisional practice of panels ended with the
victory of the first view, although this view prevailed in the
nine-member Grand Senate by the narrowest possible margin. In his
pleading the Chairman of the Grand Senate expressed doubts as to whether
the view which prevailed in the contested decision was sufficiently
representative, especially in view of the fact that certain panels had
more than one judge representing them in the Grand Senate.
IV.
In
his 16 January 2003 pleading, the Minister of Justice, a secondary
party to the proceeding on the constitutional complaint, expressed his
disagreement with the contested decision. The Minister of Justice
considers that in the complainant’s case there was a violation of § 2
para. 3 of Act No. 87/1950 Sb, on Criminal Judicial Proceedings (the
Criminal Procedure Code), in relation to § 270 para. 1, lit. b) of the
Criminal Act, No. 86/1950 Coll., on the grounds stated in § 1 paras. 1
and 2 of Act No. 119/1990 Coll., on Judicial Rehabilitation.
The
Minister of Justice considers that there was an infringement of
equality under Art. (correctly §) 1 of the then in force Constitution,
for the non-uniformity between recognized rights and imposed duties
quite unequivocally placed in an unfavorable position every citizen who
actually wished to exercise her constitutionally guaranteed religious
freedom, as against those whose convictions lacked spiritual
dimensions. Art. (correctly §) 16 para. 1 of the constitutional act in
effect at that time,, No. 150/1948 Coll., the „9th of May Constitution“,
recognized to each citizen of the state the right to select any
religious faith whatsoever; on the other hand, § 34 paras. 1 and 2 laid
down the citizens‘ basic duties to the state, among which was also the
duty connected with defense of the homeland. Under that state of
affairs, the complainant could remain true to his religious convictions
only by incurring criminal law consequences, and, as a result of that
situation, as a believer, he came into conflict with his duties as a
citizen for the defense of the state.
V.
In
view of the fact that the Grand Senate of the Supreme Court’s Criminal
Collegium decided this complaint of a violation of the law, in
conformity with the Constitutional Court Plenum’s resolution published
as Constitutional Court Notice No. 8/2001 Coll., it is the
Constitutional Court Plenum which is competent to hear the
constitutional complaint against this decision.
Once
the Constitutional Court had ascertained that the constitutional
complaint met all formal requirements and that it has been timely
submitted, it proceeded to the consideration of the matter on the
merits.
VI.
1.
The constitutional complaint contests the above-designated decision of the Supreme Court in which the Supreme Court proceeded from the thesis, according to which, in a proceeding on a complaint of a violation of the law, it adjudicates the „correctness“ (correct legality) of the contested decision as well as the „correctness“ (correct legality) of the proceeding leading up to it ex tunc, that is, in accordance with the factual situation and state of the law at the time in which the contested decision was issued, or when the proceeding which led up to the decision was held; new facts and evidence are not admissible.
The constitutional complaint contests the above-designated decision of the Supreme Court in which the Supreme Court proceeded from the thesis, according to which, in a proceeding on a complaint of a violation of the law, it adjudicates the „correctness“ (correct legality) of the contested decision as well as the „correctness“ (correct legality) of the proceeding leading up to it ex tunc, that is, in accordance with the factual situation and state of the law at the time in which the contested decision was issued, or when the proceeding which led up to the decision was held; new facts and evidence are not admissible.
In
the Constitutional Court’s view, this starting thesis may not be
applied without reservation. If, thanks to the applicable procedures,
the interpretation even of the very old criminal law norms is carried
out at the present by a court with consequences for adjudging the
criminal prosecution of a person, that is with consequences intruding
into his or her personal sphere, it may not be carried out without
regard to the constitutive values and principles of the democratic
law-based state, such as they are expressed in the Czech Republic’s
currently valid constitutional order. It is only in this restrictive
sense, that of value discontinuity, that one may conceive of continuity
with „old law“ (see Judgment of the Constitutional Court, Pl.19/93 –
Collection of Judgments and Rulings of the Czech Constitutional Court,
Vol. 1, No. 1 – published as No. 14/1994 Coll.), the application
(legality) of which is the subject of contemporary proceedings on a
complaint of a violation of the law.
The
European Court of Human Rights also expressed similar views as to the
application of „old law“ (judgment in the case of Streletz, Kessler and
Krenz v. Germany of 22 March 2001), where, among other things, it stated
that “the courts of such a State, having taken the place of those which
existed previously, cannot be criticised for applying and interpreting
the legal provisions in force at the material time in the light of the
principles governing a State subject to the rule of law.” This idea was
expanded upon in an even more meaningful manner in the separate opinion
of Judge Levits, supplementing the reasoning given in the judgment. He
stated: “It shows clearly that interpretation and application of the
law depend on the general political order, in which the law functions as
a sub-system. (…) The differences in interpretation and application of
the law between democratic and socialist systems cover all important
elements of the law. (…) That brings us to the question whether, after a
change of political order from a socialist to a democratic one, it is
legitimate to apply the “old” law (…) according to the approach to
interpretation and application of the law which is inherent in the new
democratic political order. I would like to stress that in my view
there is no room for other solutions. Democratic States can allow their
institutions to apply the law – even previous law, originating in a
pre-democratic regime – only in a manner which is inherent in the
democratic political order (in the sense in which this notion is
understood in the traditional democracies). Using any other method of
applying the law (which implies reaching different results from the same
legal texts) would damage the very core of the ordre public of a
democratic State. (…) Consequently, interpretation and application of
national or international legal norms according to socialist or other
non-democratic methodology (with intolerable results for a democratic
system) should from the standpoint of a democratic system be regarded as
wrong. (…) In my view, that is a compelling conclusion, which derives
from the inherent universality of human rights and democratic values, by
which all democratic institutions are bound. At least since the time
of the Nuremberg Tribunal, that conception of the democratic order has
been well understood in the world and it is therefore foreseeable for
everybody.”
The Constitutional Court entirely concurs with the view expressed by Judge Levits.
2.
In view of the fact that what is to be reviewed in the proceeding on the complaint of a violation of the law is the legality of the above-designated proceeding and decision in relation to the condemning decision (also designated above) for the criminal offense of avoidance of the duty to serve, it is necessary to review whether the contested Supreme Court decision did not result in the violation of the complainant’s basic rights, including his basic right to the freedom of conscience, contained in Art. 15 para. 1 of the Charter.
2.
In view of the fact that what is to be reviewed in the proceeding on the complaint of a violation of the law is the legality of the above-designated proceeding and decision in relation to the condemning decision (also designated above) for the criminal offense of avoidance of the duty to serve, it is necessary to review whether the contested Supreme Court decision did not result in the violation of the complainant’s basic rights, including his basic right to the freedom of conscience, contained in Art. 15 para. 1 of the Charter.
a)
The freedom of conscience has constitutive significance for the
democratic law-based state which respects the liberal idea of the
primacy of responsible and dignified human beings before the State –
that is, the idea of esteem (respect and protection) by the state for
the rights of persons and citizens [Art. 1 para. 1 of the Czech
Constitution (hereinafter, “Constitution”)]. In contrast, it is
characteristic of a totalitarian political regime that it does not
respect the autonomy of the individual conscience, as it attempts, even
with the aid of a repressive criminal policy, to suppress the freedom of
conscience of the individual, and by this means to compel her to accept
the will of the ruling elite, which claims recognition for its
decisions as the sole good decisions and, in that sense, the sole
ethical decisions. This pattern can be seen even at the Czechoslovak,
or Czech, constitutional plain. Thus the Constitutional Charter, No.
121/1920 Coll., just as the current Charter, does not provide for the
possibility that freedom of conscience, which both expressly lay down,
could be restricted by statute. While § 15 of the Constitution of 9 May
1950, No. 150/1948 Coll., declared the freedom of conscience, it
negated it at the same time by laying down that the freedom of
conscience does not provide grounds for the refusal to fulfill civic
duties as laid down in ordinary law. The Constitution of the
Czechoslovak Socialist Republic, No. 100/1960 Coll., did not even make
reference to the freedom of conscience.
The
freedom of conscience is manifested in decisions made by the individual
in certain concrete situations, that is, “here and now”, felt as a
profoundly experienced duty. It is not a matter of the individual’s
attitude toward abstract problems, valid once and for all and in all
situations. In the case of decisions dictated by conscience, it is the
fusion for the individual of binding moral norms with the situation as
evaluated by her. It is the integration of recognized norms with an
assessment of the factual situation. A decision dictated by consciences
is based on the existence of the conscience itself, and not on specific
religious or ideological conceptions. Apart from the correlation of
the norm and the situation, the structural characteristic of conscience
consists also in a personally experienced sense of an unconditional
duty.
It follows from this
that the freedom of conscience cannot be conflated either with the
freedom of faith or with the freedom of religion. In contrast to these
two freedoms, a decision dictated by conscience is always concrete, as
the subject thereof is concrete conduct in a concrete situation. It is
only the reasons or maxims which co-create the norm which the conscience
accepts in a given moment that can be abstract, general or absolute. A
decision dictated by conscience can find in them its normative
justification, which applies when resolving the conflict between such
principle or maxim and the legal norm binding one to the opposite
conduct. Of course, the situation is always individualized by time,
place, and concrete circumstances. What is fundamental is that it
concerns a solemn moral decision oriented toward the category of good
and evil [compare, for example, the judgment of the FRG Constitutional
Court in BverfGE 12, 45(55)], which the individual experiences as a
binding duty or an unconditional order to behave in a certain fashion.
The
distinction between it and a decision made solely in reference to a
political or ideological motivation (which is an external quantity not
penetrating into the internal moral sphere) or to a psychological
condition (which exists without the necessity to engage in moral
judgment), consists in its specific moral character and its relationship
to the personal moral truthfulness or earnestness which lends to the
decision its sense of unconditionality.
b)
The freedom of conscience is classified among the absolute fundamental
rights, that is, those which may not be restricted by ordinary statute,
the purpose of which would be to restrict such an absolute fundamental
right, in this case the freedom of conscience. Each statute expresses,
on the one hand, the public interest and, on the other, formulates the
moral convictions of the parliamentary majority, thanks to which it was
adopted, and in this manner formulates the moral conviction of a
majority of society, which the composition of Parliament reflects. If a
certain legal norm is in conflict with an individual conscience,
certainly this fact cannot lead to the consequence that such legal norm
is non-binding, even if only in relation to the person whose conscience
directs him not to respect the specific legal norm. The freedom of
conscience can, however, have an effect on the applicability or
enforceability of such legal norm in relation to those persons to whose
conscience it is repugnant. In weighing whether, in the case of such a
conflict of a legal norm with a concrete assertion of the freedom of
conscience, the freedom of conscience ultimately wins out, it is
necessary to weigh whether such a decision would encroach upon the
fundamental rights of third persons or whether assertion of the freedom
of conscience is not barred by other values or principles contained in
the Czech Republic’s constitutional order as a whole (constitutionally
immanent restriction upon fundamental rights or freedoms).
VII.
In
principle it is a matter for the Supreme Court to judge whether the law
was violated by the decision contested in a complaint of a violation of
the law. It is the task of the Constitutional Court to adjudge whether
the interpretation of statutory provisions selected by the Supreme
Court infringes any of the complainant‘s fundamental rights and
freedoms, or to adjudge whether an interpretation of the applied
statutory provisions can be found which would not infringe any of the
complainant’s fundamental rights and freedoms.
The
constitutional complaint is well-founded as the Supreme Court, in the
contested decision, did not take sufficiently into account the
complainant’s fundamental right, arising from Art. 15 para. 1 of the
Charter, to freedom of conscience as understood in the above-stated
sense and extent. Although the complainant referred to his religious
convictions, the refusal (evading) of service (military) duty was in
fact a manifestation of his personal decision dictated by conscience, in
which maxims flowing from the complainant’s faith or religious
convictions merely had played a part.
Previous
Constitutional Court decisions relating to the conflict between the
duty to report for military service and fundamental rights have
concentrated primarily upon the conflict between this duty and the
freedom of religious conviction (compare decisions in the cases file no.
II. ÚS 285/97, Collection of Judgments and Rulings of the Czech
Constitutional Court, Vol. 12, No. 117; and file no. II. ÚS 187/2000,
Collection of Judgments and Rulings of the Czech Constitutional Court,
Vol. 21, No. 40). Due to the divergence of the freedom of conscience
and the freedom of religious conviction expounded above, the
Constitutional Court first reviewed the relationship of the contested
decision to the freedom of conscience in the sense of Art. 15 para. 1 of
the Charter. The Constitutional Court is of the view that the refusal
to report for military service may be made on grounds not related to
religious conviction and that the Charter protects even that freedom.
The
Supreme Court failed to carry out the duty, which it had for the
above-stated reasons, to adjudge the legality of the decision contested
in the complaint of a violation of the law, as well as the proceeding
leading up to it, in the light of Art. 15 para. 1 of the Charter. The
fact that the Constitution of 9 May denied the freedom of conscience its
character as an „absolute“ right followed alone from the essence of the
political regime enthroned in February, 1948. The new restrictions
upon the freedom of conscience breached the continuity of the conception
that the freedom of conscience is an absolute right, as it was
protected by the Constitutional Charter of 1920. The post-1948
constitutional formulation of the freedom of conscience deviated, in
terms of legal philosophy, from the development of fundamental rights
which was begun by the Nuremburg Tribunal and continued with the
adoption of the Universal Declaration of Human Rights.
For
a democratic law-based state, which the Czech Republic should be
according to the normative instruction flowing from Art. 1 para. 1 of
the Constitution, it is unacceptable for the Supreme Court to interpret §
267 para. 3 of Act No. 141/1961 Coll., on Criminal Judicial Proceedings
(the Criminal Procedure Code), as subsequently amended, such that the
review of the legality of a contested decision is understood to entail
an interpretation of the applicable „old law“ in accord with the then
contemporary jurisprudence. For the same reason, when considering the
legality of the original decision contested by the complaint of a
violation of the law, it could not fail to take into account and weigh
the fundamental rights and principles of the Czech constitutional order
which the contested decision encroached upon. To overlook these norms
of reference and principles does not merely render the Supreme Court’s
decision defective due to the infringement of the complainant’s
individual rights. In addition, and the Constitutional Court deems it
necessary to make this observation outside of the strict confines of the
case before it, it renders the decision incomprehensible for the
society, for its legal, even constitutional, consciousness, and
contributes to the existing lack of faith in the judiciary in the sense
that Czech courts prove incapable of protecting the rights of citizens
in relation to state power, when that manifests itself in an excessive
manner. In this way, confidence in the substantive conception of the
Czech Republic’s character as a democratic law-based state is
diminished. If the principle of legal continuity is not to have a
destructive impact in relation to the Czech Republic‘s character as a
constitutional state, when applying „old law“ the value discontinuity
with that law must consistently be insisted upon, and this approach must
be reflected in judicial decisions.
The
Supreme Court in fact overlooked the operation of Art. 15 para. 1 of
the Charter on the interpretation of § 267 para. 3 of the Criminal
Procedure Code, in conjunction with § 270 para. 1, lit. b) of Act No.
86/1950 Sb, the Criminal Code, as it restrictively interpreted the
mentioned provisions of the Criminal Procedure Code and, moreover, the
object of its consideration in relation to the cited provisions of the
Criminal Code was solely the right to religious conviction, not the
freedom of conscience in its dimension as an absolute right. To the
extent it did so, it continued in the encroachment upon the
complainant’s freedom of conscience which began with the judgment of
conviction in 1954. The Supreme Court did not, by means of its
decision, cure this encroachment and, thus, failed to respect the duty,
placed upon it by Art. 4 of the Constitution, to accord protection to
fundamental rights.
Under
the circumstances, it is not necessary to review possible conflicts with
other fundamental rights, the infringement of which have been alleged,
Notice: Constitutional Court decisions may not be appealed.
Brno, 26 March 2003
Notice: Constitutional Court decisions may not be appealed.
Brno, 26 March 2003