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HEADNOTES
nder
the case law of the ECHR concerning Article 3 of the Convention, and
under Art. 3 of the Convention Against Torture, the Constitutional Court
reviewed whether there are substantial grounds to believe that the
complainant, if expelled, was in danger of torture (the “substantial
grounds test”). Here the Constitutional Court emphasizes that it is not
up to it to state factual violation of the ban on torture, and inhuman
and degrading treatment or punishment in Moldovan prisons, but on the
basis of the evidence presented the Constitutional Court finds that
there are substantial grounds to believe that there is a danger of
violation of that ban in the event of extradition.
The
priority of the obligations from agreements on the protection of human
rights, in the event of conflict between obligations under international
agreements, arises primarily from the content of these agreements, in
connection with Art. 1 para. 1 of the Constitution, under which the
Czech Republic is a state governed by the rule of law. The respect and
protection of fundamental rights are defining elements of the
substantively understood state governed by the rule of law; therefore,
in a case where a contractual obligation protecting a fundamental right
and a contractual obligation which tends to endanger that same right
exist side by side, the first obligation must prevail. The
Constitutional Court holds the opinion expressed in the judgment, the
legal conclusion of which the Minister of Justice disagrees with, that
no amendment of the Constitution can be interpreted to the effect that
it would result in restricting an already attained level of procedural
protection of fundamental rights and freedoms (Pl. ÚS 36/01, published
under no. 403/2002 Coll.). The scope of the concept of constitutional
order therefore can not be interpreted only with regard to Art. 112
para. 1 of the Constitution, but in view of Art. 1 para. 1 and 2 of the
Constitution, it is necessary to include in it ratified and promulgated
international agreements on human rights and fundamental freedoms.
Although after amendment of the Constitution (constitutional Act no.
395/2001 Coll.) agreements on the protection of human rights no longer
form an independent category of legal norms with priority in application
under the previous wording of Art. 10, nonetheless they are a special
group of norms, and at the same time represent a reference point of
view, both for the abstract review of norms under Art. 87 para. 1 of the
Constitution, and for proceedings on constitutional complaints.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A
Panel of the Constitutional Court decided on this day in the matter of a
constitutional complaint from the complainant V. M., presently in the
Custodial Prison O., against a decision of the Regional Court in Ostrava
of 4 December 2000, file no. 3 Nt 366/2000, a decision of the High
Court in Olomouc of 28 February 2001, file no. 2 To 10/2001, and a
decision of the Minister of Justice of the CR of 15 October 2002, ref.
no. 594/2001-MO-M, as follows:
The decision of the Regional Court in Ostrava of 4 December 2000, file no. 3 Nt 366/2000, the decision of the High Court in Olomouc of 28 February 2001, file no. 2 To 10/2001, and the decision of the Minister of Justice of the CR of 15 October 2002, ref. no. 594/2001-MO-M are annulled due to inconsistency with Art. 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms, Art. 3 of the Convention for the Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 7 of the International Covenant on Civil and Political Rights and Art. 7 para. 2 of the Charter of Fundamental Rights and Freedoms.
The decision of the Regional Court in Ostrava of 4 December 2000, file no. 3 Nt 366/2000, the decision of the High Court in Olomouc of 28 February 2001, file no. 2 To 10/2001, and the decision of the Minister of Justice of the CR of 15 October 2002, ref. no. 594/2001-MO-M are annulled due to inconsistency with Art. 3 of the Convention on the Protection of Human Rights and Fundamental Freedoms, Art. 3 of the Convention for the Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 7 of the International Covenant on Civil and Political Rights and Art. 7 para. 2 of the Charter of Fundamental Rights and Freedoms.
REASONING
I.
On
30 December 2002 the Constitutional Court of the CR received the
complainant’s constitutional complaint, in which he sought annulment of
the abovementioned decisions on ground of interference with rights
protected by Art. 3 and Art. 8 of the Convention on the Protection of
Human Rights and Fundamental Freedoms (notification no. 209/1992 Coll.,
the “Convention”).
The
Constitutional Court determined from the constitutional complaint and
contested decisions that the complainant is a citizen of the Republic of
Moldavia and that this state requested his extradition for criminal
prosecution on suspicion of committing the crime of theft of property in
an unusually wide scope under Art. 123 of the Criminal Code of the
Republic of Moldova. The contested decision of the Regional Court in
Ostrava decided that extraditing the complainant for criminal
prosecution to the Republic of Moldova is permissible ( § 380 para. 1 of
the Criminal Procedure Code). The contested decision of the High Court
in Olomouc denied the complainant’s complaint against the decision of
the Regional Court (§ 380 para. 2 of the Criminal Procedure Code). The
decision of the Minister of Justice permitted extradition of the
complainant to the Republic of Moldova for criminal prosecution (§ 382
para. 1 of the Criminal Procedure Code).
The
complainant contested these decision with a constitutional complaint,
because in his opinion Art. 3 of the Convention can be interpreted to
protect a foreigner from extradition to an applying state if the
foreigner would be exposed the risk of torture or inhuman or degrading
treatment or punishment in that state. If extradited, the complainant
will allegedly be exposed to treatment which is forbidden by Article 3.
In this regard, the complainant referred to Amnesty International
reports from 1997 to 2001 and cited sections which indicate that in
Moldova there is systematic arbitrary detention of suspects, bad
treatment by the police, and that there are cruel, inhuman and degrading
conditions in the jails.
The
complainant also relies on Art. 8 of the Convention, which guarantees
respect for family life. He states that he has a wife and son in the
Czech Republic, both Czech citizens, and applies to have his family life
respected by his not being extradited to the requesting state.
In
the constitutional complaint the complainant further disputed the
effectiveness of legal assistance provided in proceedings on the
permissibility on extradition; he stated that extradition materials are
not adequate in terms of the European Convention on Extradition, that he
did not commit the acts which are ascribed to him, and that he fled the
country on the basis of personal experience of torture and cruel and
inhuman treatment while he was being held unlawfully and after a warning
that he would be liquidated, for being a politically inconvenient
person, and also out of revenge. He sees the political reasons in the
fact that, as a member of the Christian-democratic front, he supported
joining Romania, and refused to boycott economic and legal reforms; the
reasons for revenge arise from the fact that he pressed for the
punishment of the murderers of another member of the same party,
criticized the inactivity of the authorities in the press, and accused
them of corruption. For these reasons the complainant petitioned for the
annulment of all contested decisions concerning his extradition.
At
the same time, the complainant submitted a petition to defer the
executability of the extradition decision, which he justified on the
grounds that in his case the effectiveness of protection depends on
evaluating the substance of the matter before he is forced to leave the
country.
II.
The
Constitutional Court first decided on the petition to defer
executability of the extradition decision, which it granted by decision
of 10 January 2003, ref. no. I. ÚS 752/02-10, because it found that the
conditions were met for issuing such a decision, as foreseen in § 79
para. 2 of Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations (the “Act on the Constitutional Court”),
and thus deferring executability is not inconsistent with an important
public interest, and that execution of the decision would mean
incomparably greater detriment for the complainant than can arise for
other persons if executability is deferred.
III.
For purposes of evaluating the constitutional complaint, the Constitutional Court requested the court file kept at the Regional Court in Ostrava under file no. 3 Nt 366/2000 in the matter of proceedings on extradition. It determined from the file that in the decision of the Regional Court in Ostrava which decided that extraditing the complainant for criminal prosecution to the Republic of Moldova is permissible under § 380 para. 1 of the Criminal Procedure Code, the court stated the acts for prosecution of which the complainant was to be extradited, and stated other findings from which it concluded that all conditions for extraditing the complainant set by the European Convention on Extradition (notification no. 549/1992 Coll.), had been met.
The
complainant was not a citizen of the Czech Republic, did not have
refugee status and had not been granted asylum, was not to be extradited
to an area of armed conflict, there were no serious reasons preventing
his extradition (e.g. humanitarian or health), extradition was requested
for acts punishable under the law of both states, criminal prosecution
was not barred by the statute of limitations or impermissible due to
another obstacle, and no other circumstances preventing extradition were
found. The court also stated that the submitted file materials did not
indicate any of the circumstances which the complainant raised in his
testimony, i.e. that the criminal prosecution was manufactured and had a
political background. Likewise, the acts for which he is to be
criminally prosecuted are not of a political, but a property-related and
violent nature. Therefore, it concluded that all conditions for
extradition had been met.
In
the contested decision of the High Court in Olomouc which denied the
complainant’s complaint against the decision of the Regional Court, the
appeals court stated that, in view of the changes in international
conditions, it was necessary to apply not only the agreement between the
CSSR and USSR on legal assistance and legal relationships in matters of
civil, family and criminal law (decree No. 95/1983 Coll.), the to which
the Czech Republic and the Moldovan Republic are successor states, but
secondarily also the European Convention on Extradition, although the
Moldovan Republic is not a party to that convention (sic! the Moldovan
Republic is a party with effect as of 31 December 1997). The court
further concluded that the complainant is being criminally prosecuted
for a serious crime, whereas his objections on the alleged political
background of his prosecution can not be supported by any credible
facts. The court stated that “on the basis of available information, the
democratic process is taking place in the Republic of Moldova,” “the
available information does not indicate that there is presently in
Moldova mass violation of fundamental human rights which would be the
subject of systematic criticism from the international community,” and
also took into account that the complainant’s statements “indicate a
progressive increase of the repressive procedures he cites on the part
of state bodies of the requesting state” (the complainant progressively
claimed additional repression, including torture). The court then again
evaluated the conditions for extradition (§ 379 para. 1 of the Criminal
Procedure Code and Art. 2 para. 1 of the European Convention on
Extradition) and determined that they had been met. The court did not
find the complainant’s family situation to be a reasons which would
prevent his extradition, and refused to subsume it under humanitarian or
other serious reasons preventing extradition. Thus, in the opinion of
the appeals court no legal obstacles exist preventing extradition of the
complainant to Moldovan justice authorities.
The decision of the Minister of Justice which permitted extradition of the complainant does not contain any reasoning.
The
Constitutional Court called on the parties to the proceedings to submit
position statements on the constitutional complaint. The Regional Court
in Ostrava, in its statement (of 25 March 2003, ref. no. Spr.
4538/2003), referred to the previous arguments by the general courts,
and proposed denying the constitutional complaint. The High Court in
Olomouc, in its statement (of 27 March 2003, ref. no. Sú 9/2003),
referred to its original decision, stated that it had tried, on the
basis of available information, to comprehensibly address the questions
of the permissibility of extraditing the complainant, and proposed
denying the constitutional complaint.
The
Minister of Justice, in response to the Constitutional Court’s request,
on 3 April 2003 (ref. no. M-610/2003) expressed the opinion that the
constitutional complaint should be denied insofar as it contests the
Minister’s decision, for one thing because of the Constitutional Court’s
inadequate jurisdiction to evaluate interference with rights guaranteed
by international agreements, and for another because the Minister’s
decision making did not violate any of the complainant’s rights
guaranteed by constitutional laws. Insofar as the constitutional
complaint contests the decisions of the general courts, the Minister of
Justice considers the complainant’s petition to be late.
Concerning
the Constitutional Court’s insufficient jurisdiction to evaluate
interference with rights guaranteed by international agreements, the
Minister of Justice believes that international agreements on
fundamental rights and freedoms do not have the force of a
constitutional act (by argument a contrario Art. 87 para. 2 of the
Constitution, a contrario Art. 88 para. 2 of the Constitution and
interpretation of Art. 89 para. 3 of the Constitution) and are not part
of the constitutional order (a contrario Art. 112 para. 1 of the
Constitution). The Minister of Justice argues with the opinion of the
Constitutional Court expressed in its judgment of 25 June 2002, file no.
Pl. ÚS 36/01 (published under no. 403/2002 Coll.), where, in part VII,
the Constitutional Court interpreted Art. 9 para. 2 of the Constitution
and concluded that the scope of the concept of constitutional order can
not be interpreted only with regard to Art. 112 para. 1 of the
Constitution, but also in view of Art. 1 para. 2 of the Constitution,
and it can also include ratified and promulgated international
agreements on human rights and fundamental freedoms. According to the
Minister of Justice, Art. 9 para. 2 of the Constitution does not permit a
“creative” interpretation of the Constitution and expanding the
enumerations provided in the Constitution. In contrast, according to the
Minister of Justice, this finding could be considered inconsistent with
Art. 9 para. 2 of the Constitution.
In
his statement, the Minister of Justice further states that the level of
protection of fundamental rights and freedoms achieved is not a
substantive requirement of a democratic state governed by the rule of
law, as only its most important attributes can be such (Art. 23 of the
Charter, Art. 2 para. 1, Art. 2 para. 3 and 4, Art. 5 and Art. 6 of the
Constitution). Moreover, amendments implemented by constitutional Act
no. 395/2001 Coll. do not necessarily mean reducing the existing
standard of the level of procedural protection. A legal framework which
provides that international agreements have priority in application over
statutes, under Art. 10 of the Constitution, is adequate, because if
the court did not apply such an agreement, the injured party could seek
protection of its right to a fair, lawful trial.
Concerning
the complainant’s substantive objections, the Minister of Justice
stated that in deciding to permit extradition he relied on the
evaluation of these questions by the general courts and the decisions of
bodies of the Ministry of the Interior in asylum proceedings.
Concerning the protection of human rights in Moldova in general, he
relied, in particular, on a report from the United States Department of
State, according to which, although certain problems have occurred in
some areas, nonetheless the Moldovan government generally respects human
rights. According to the Minister, excesses occur even in democratic
states, but the important thing is the effort to implement measures so
that human rights will not be violated. He also expressed his doubts
concerning the complainant’s claim that the cause of his persecution in
Moldova is his membership in the Christian Democratic party, as this
party is, according to information obtained, a parliamentary party. He
also believes that his decision is not the complainant’s final recourse
for protection of rights under § 72 para. 2 of the Act on the
Constitutional Court, and therefore the complainant’s petition to annul
the general court’s decisions should be denied for being late (§ 43
para. 1 let. b) of the Act on the Constitutional Court). The final
recourse in relation to decisions by general courts is a complaint
(under § 141 et seq. of the Criminal Procedure Code), on which the High
Court already decided on 28 February 2001.
The
Constitutional Court also requested a statement concerning the state of
human rights in the Republic of Moldova to entities which monitor the
condition of human rights, primarily the Office of the UN High
Commissioner for Refugees in Prague and the Czech Helsinki Committee.
The
Office of the UN High Commissioner for Refugees in Prague (the
“Office”) sent the Constitutional Court a statement of 13 March 2003, in
which it is of the opinion that human rights are violated in Moldovan
prisons, specifically the right to life and the ban on torture and other
cruel, inhuman, and degrading treatment. The Office reached this
conclusion after studying a statement from the UN High Commissioner for
Refugees in Chisinau and Moldovan human rights organizations (Lawyers
for Human Rights, the Helsinki Committee for Human Rights, and the
League for Protection of Human Rights), reports from the Committee
Against Torture and reports from the United States Department of State,
which it attached to the statement (“Report on the Visit to the
Transnitrian Region of the Republic of Moldova Carried out by the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment of Punishment, 27-30 November 2000”; “Alternative
Report to the Initial Report and the First Regular Report of the
Republic of Moldova on the Stage of Implementation of the International
Covenant on Civil and Political Rights” of January 2002; “U. S.
Department of State, Country Reports on Human Rights Practices, Moldova”
of 4 March 2002; “Raportul, Moldovan Helsinki Committee” of January
2003).
The Office states,
with reference to the report from the Moldovan Helsinki Committee (MHC),
that under current conditions the right to life, the ban on inhuman
treatment and the right to privacy of any of approximately 11,000
prisoners is de facto being violated. Tuberculosis and the HIV virus are
spreading uncontrollably in the prisons due to overcrowding. Detained
persons are held in overcrowded cells where ventilation practically does
not exist. Health inspections, X-rays, and medical assistance,
including medications, are completely lacking. Every tenth prisoner is
in an active phase of tuberculosis (1150 in 2001; 9.8 %), 178 prisoners
have HIV/AIDS. The number of deaths is climbing (50 annually, 3 % of
prisoners). The highest number of complaints filed during monitoring
visits in holding facilities concerns the presence of persons infected
with tuberculosis among other detainees. The probability of infection
with tuberculosis is forty times higher than it is outside prison
facilities. The MHC cites individual cases of people coming down with
tuberculosis. Detained persons are questioned without an attorney
presence, beatings, electric shock and shackles are used. Here to the
MHC cites individual cases. Funds available per prisoner are EUR 0.18
per day, two and a half times less than the Moldovan laws require, 40 %
of a prisoner’s minimum needs. Prisoners receive no food, fish, dairy
products, fruit, vegetables, etc., i.e. no food except bread. In
February 2001 at the police station in Tiganska St. in Chisinau, with a
capacity for 60 detainees, there were 238 detained persons; there is no
access to sunlight, the artificial light is very weak, the temperature
is high in view of the number of persons in a small unventilated space,
the detainees are not given mattresses or blankets and the prisoners
have no access to showers.
The
Office, with reference to the report from the United States Department
of State, also states that judges are influenced in their decision
making and corruption exists. The report from the United States
Department of State reports on the situation in Moldovan prisons
similarly to the MHC report.
The
“Report on the Visit to the Transnitrian Region of the Republic of
Moldova Carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment of Punishment, 27-30 November
2000,” sent by the Office, summarizes that in many cases “the severity
of the illtreatment alleged could be considered as amounting to
torture.” Another report from the same committee on a visit in the
Republic of Moldova on 10-22 June 2001 similarly states that in a great
number of cases the ill treatment is so severe that it can be considered
to be torture.
The Czech
Helsinki Committee responded to the Constitutional Court’s requested by a
statement of 24 March 2003, in which it referred to the report of the
Moldovan Helsinki Committee for Human Rights, which it attached (Human
Rights in the OSCE Region, Report 2002, International Helsinki
Federation for Human Rights), and which repeats the abovementioned
facts.
IV.
The
Constitutional Court’s task in this matter is to evaluate the contested
decisions from the point of view of violation of fundamental rights and
freedoms guaranteed by norms of the constitutional order of the CR. In
this regard, the Constitutional Court reviewed, first of all, the
violation claimed by the complainant of Art. 3 of the Convention,
because extradition would allegedly expose the complainant to treatment
which is forbidden by Art. 3, i.e. torture, or inhuman or degrading
treatment or punishment.
In
addition to the obligations arising from the Convention (i.e. of the
Convention on the Protection of Human Rights and Fundamental Freedoms)
the Constitutional Court also considered the obligations arising form
the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (promulgated under no. 143/1988 Coll., the
“Convention Against Torture”). Its Art. 3 para. 1 provides that no state
party shall expel, return, or extradite a person to another state if
there a serious reasons to believe that he would be in danger of torture
there. For purposes of determining whether such reasons exist, it is
necessary to take into account all related circumstances, in justified
cases including the existence of permanent gross, obvious or mass
violation of human rights in the particular state (cf. Art. 3 para. 2).
The ban on torture is also enshrined in Art. 7 para. 2 of the Charter of
Fundamental Rights and Freedoms and Art. 7 of the International
Covenant on Civil and Political Rights.
The
European Court for Human Rights (the “ECHR”) has in the past several
times considered the question whether it is in accordance with Art. 3 of
the Convention for a state party to the Convention to extradite or
expel a complainant to a state where the complainant claims that he will
be subjected to torture or inhuman or degrading treatment.
In
the case Soering vs. the United Kingdom, the complainant, who was to be
extradited for criminal prosecution to the USA, where he was in danger
of a death sentence, claimed that the circumstances of that punishment
are inhuman treatment or punishment (decision of 7 July 1989, no. 161,
11 E.H.R.R. 439). He considered important the routine postponement of
carrying out a death sentence for six to eight years after it is
imposed. The ECHR decided that the extraditing state has, under of the
Convention, a certain responsibility for possible subsequent ill
treatment of the extradited individual, and stated that “it would hardly
be compatible with the underlying values of the Convention ... were a
Contracting State knowingly to surrender a fugitive to another State
where there were substantial grounds to believe that he would be in
danger of being subjected to torture, however heinous the crime
allegedly committed. Extradition in such circumstances ... would plainly
be contrary to the spirit and intedment of the article.” The ECHR also
explained why it diverged from its settled practice and in this case
decided on the potential violation of the Convention: “It is not
normally for [the ECHR] to pronounce on the existence or otherwise of
potential violations of the Convention. However, where an applicant
claims that a decision to extradite him would, if implemented, be
contrary to Article 3 by reason of its foreseeable consequences in the
requesting country, a departure from this principle is necessary, in
view of the serious and irreparable nature of the alleged suffering
risked, in order to ensure the effectiveness of the safeguard provided
by that Article.”
Other
cases decided by the ECHR, which can be distinguished from the
complainant’s case and from the Soering case, illustrate the extension
of interpretation of Article 3 in the case law of the ECHR. In other
cases it decided whether violation of Art. 3 can take place in
connection with expulsion, where the source of the danger to the
complainant is not the public power of the receiving state, but other
circumstances. In the case D. v. United Kingdom, the complainant,
originally from the island of St. Kitts, who had been repeatedly
convicted in Great Britain for possession of cocaine, after his prison
sentence ended asked not to be expelled to St. Kitts, and objected that
he had been diagnosed with AIDS and that he was dependent on health care
and medications available in Great Britain (verdict of 2 May 1997, 24
EHHR 423). The ECHR emphasized that foreigners affected by expulsion
fundamentally have no claim to remain in the territory of the state
party to the Convention; nonetheless, under the very exceptional
circumstances of this case, and in view of fundamental humanitarian
concerns, it stated that carrying out the decision to expel the
complainant would be a violation of Art. 3 of the Convention.
Similarly,
in the case Ahmed vs. Austria the ECHR decided that expulsion to
Somalia would be violation of Art. 3 (verdict of 17 May 1996, 24 ECHR
278). The complainant faced a serious risk of torture of inhuman or
degrading treatment, caused by the factions in the on-going civil war.
This risk in and of itself was sufficient for the decision that
extradition would be a violation of the Convention.
Under
the case law of the ECHR concerning Article 3 of the Convention, and
under Art. 3 of the Convention Against Torture, the Constitutional Court
reviewed whether there are substantial grounds to believe that the
complainant, if expelled, was in danger of torture (the “substantial
grounds test”).
The decision
of the Regional Court in Ostrava indicates that the court did not
consider the question of substantial grounds, and merely stated that the
complainant should not be extradited to an area of armed conflict, and
that there are no humanitarian, health, or other serious grounds
preventing extradition. The High Court in Olomouc, in the reasoning of
its decision, stated that on the basis of available information, the
democratic process is taking place in the Republic of Moldova and “the
available information does not indicate that there is presently in
Moldova mass violation of fundamental human rights which would be the
subject of systematic criticism from the international community.” The
decision of the Minister of Justice does not contain reasoning, but
according to the position statement on the constitutional complaint the
Minister relied, in particular, on the report from the United States
Department of State, according to which “although certain problems have
occurred in some areas” (quoted from the statement of the Minister of
Justice), nonetheless the Moldovan government generally respects human
rights. According to the Minister, excesses occur even in democratic
states, but the important thing is the effort to implement measures so
that human rights will not be violated.
The
Constitutional Court examined whether substantial grounds exist to
believe that, if extradited, the complainant was in danger of torture,
reached an opinion completely different from the opinion of the general
courts, and found that the constitutional complaint is justified. The
statement form the Office of the UN High Commissioner for Refugees and
the attached monitoring reports are several sources which confirm,
independently of each other, that these substantial grounds exist.
Conditions in the Moldovan prisons, where the complainant, if
extradited, would be placed while being prosecuted and, if found guilty
by a court, while serving his sentence, are realistically threatened
interference in the complainant’s right to the ban on torture, and
inhuman and degrading treatment or punishment. In this regard the
general courts interfered with the complainant’s rights protected by
Art. 3 of the Convention on the Protection of Human Rights and
Fundamental Freedoms, Art. 3 of the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 7 of the
International Covenant on Civil and Political Rights and Art. 7 para. 2
of the Charter of Fundamental Rights and Freedoms. Here the
Constitutional Court emphasizes that it is not up to it to state factual
violation of the ban on torture, and inhuman and degrading treatment or
punishment in Moldovan prisons, but on the basis of the evidence
presented the Constitutional Court finds that there are substantial
grounds to believe that there is a danger of violation of that ban in
the event of extradition. The Constitutional Court is aware of the
gravity of the consequences of its judgment; nonetheless, its task in
this case is protection of fundamental rights, and it does not have the
jurisdiction to inform the appropriate bodies of the Council of Europe
of the inadequate observance of the standard of protection of human
rights in some Council of Europe member states.
In this situation, it was not necessary to consider the interference with other rights, raised by the complainant.
In
the complainant’s case, two international obligations of the Czech
Republic stand in conflict. On one side is the obligation of the Czech
Republic, as a part to the European Convention on Extradition (no.
549/1992 Coll. ), in which it agreed to extradite all persons who are
being prosecuted for a crime by the appropriate bodies of the applying
party (Art. 1). On the other side, the Czech Republic is also bound by
the cited international agreements on human rights and fundamental
freedoms. The Constitutional Court here states that in such a case it is
appropriate to give priority to obligations from the agreements on the
protection of human rights.
The
priority of the obligations from agreements on the protection of human
rights, in the event of conflict between obligations under international
agreements, arises primarily from the content of these agreements, in
connection with Art. 1 para. 1 of the Constitution, under which the
Czech Republic is a state governed by the rule of law. The respect and
protection of fundamental rights are defining elements of the
substantively understood state governed by the rule of law; therefore,
in a case where a contractual obligation protecting a fundamental right
and a contractual obligation which tends to endanger that same right
exist side by side, the first obligation must prevail.
Although
after amendment of the Constitution (constitutional Act no. 395/2001
Coll.) agreements on the protection of human rights no longer form an
independent category of legal norms with priority in application under
the previous wording of Art. 10, nonetheless they are a special group of
norms, and at the same time represent a reference point of view, both
for the abstract review of norms under Art. 87 para. 1 of the
Constitution, and for proceedings on constitutional complaints. In this
respect the Constitutional Court does not agree take the opinion of the
Minister of Justice, indicated by his statement on the constitutional
complaint. The Constitutional Court holds the opinion expressed in the
judgment, the legal conclusion of which the Minister of Justice
disagrees with, that no amendment of the Constitution can be interpreted
to the effect that it would result in restricting an already attained
level of procedural protection of fundamental rights and freedoms (Pl.
ÚS 36/01, published under no. 403/2002 Coll.). The scope of the concept
of constitutional order therefore can not be interpreted only with
regard to Art. 112 para. 1 of the Constitution, but in view of Art. 1
para. 1 and 2 of the Constitution, it is necessary to include in it
ratified and promulgated international agreements on human rights and
fundamental freedoms, for the reasons given above.
Even
if it were possible to grant that the Minister of Justice is correct
that the Constitutional Court does not have jurisdiction to decide on
violation of rights guaranteed by an international agreement, the
Constitutional Court would review potential violation of the ban on
torture and inhuman and degrading treatment guaranteed by Art. 7 para. 2
of the Charter of Fundamental Rights and Freedoms (the “Charter”) and
would reach the identical conclusion. The Constitutional Court presumes
that the Minister of Justice considers the Charter to be a referential
norm in proceedings on constitutional complaints, although the
Constitutional Court is bound, stricto sensu, by constitutional acts,
which the Charter is not, because under no. 2/1993 it was only
promulgated by resolution of the leadership of the Czech National
Council as a component of the constitutional order of the CR, and
constitutional Act no. 23/1991 Coll., which introduced the Charter as a
constitutional act, was deconstitutionalized by Art. 112 para. 3 of the
Constitution.
The
Constitutional Court also does not share the opinion of the Minister of
Justice concerning the lateness of the petition to annul the decisions
of the general courts. We must grant that the Minister of Justice is
correct that a mere statement that extradition is permissible does not
yet mean that a person will be extradited. However, unlike the Minister
of Justice, the Constitutional Court sees, precisely in this fact,
grounds why the Minister of Justice’s decision to permit extradition
must be understood as the last recourse which the law provides to
protect the complainant’s right. On the contrary, in view of the fact
that one of the attributes of a constitutional complaint is its
subsidiarity (under § 75 para. 1 of the Act on the Constitutional
Court), in the event that the complainant turned to the Constitutional
Court at the moment when the court’s decision on the permissibility of
extradition went into legal effect (§ 380 para. 3 of the Criminal
Procedure Code), and before permission to extradite was issued by the
ministry, his complaint would have to be denied as impermissible because
it did not exhaust all procedural means for protection of rights. The
constitutional judiciary is based, above all, on review of matters in
which unconstitutionality can not be corrected in any other manner, and
in the event that the Minister of Justice did not permit extradition,
there would simply be no interference in rights guaranteed by the norms
of the constitutional order through the decisions of the general courts.
In
this situation the Constitutional Court considered in what extent it is
appropriate to annul the decisions contested by the constitutional
complaint. It evaluated on one side the application of the principle of
minimizing interference with decisions of the Minister of Justice and
the general courts, and on the other side the complainant’s fundamental
right to personal freedom, as the complainant is placed in extradition
custody until a decision on extradition is issued. Thorough minimizing
of the Constitutional Court’s interference would prolong the period
during which the complainant’s freedom is restricted. Therefore, in this
case the Constitutional Court was convinced that protection of the
complainant’s personal freedom must prevail over the principle of
minimizing interference with the contested decisions, and decided as is
stated in the verdict.
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 15 April 2003
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 15 April 2003