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HEADNOTES
Neither Art. 38 par. 2 of the Charter nor Art. 17 par. 1 establish
unrestricted rights to public consideration of a case, or to
information, respectively. In both cases it is up to the legislature, to
what extent it restricts, by statute, the right to public consideration
of a case or the right to information. In view of the fact that a
number of provisions of the Charter are related to each other, they must
be interpreted together, systematically, and in mutual subordination,
whereby “the Charter precisely and strictly regulates the freedom of the
legislature.” In evaluating whether a statute limiting fundamental
rights and freedoms is constitutional or not, it is usually necessary to
consider aspects of legal philosophy, legal history, and comparative
law.
The Czech lands traditionally considered constitutional a legal
framework based on the premise that the presence of the public is
conceived as a guarantee of public review of the justice system, and at
the same time that special emphasis is laid on the interests and benefit
of a juvenile in cases of restricting the presence of the public in
proceedings against a juvenile.
The right to a public trial is a fundamental right of the party to the
proceedings, and not a fundamental right of the court or judge.
The contested provision of § 54 par. 1 of the Act on Juvenile Courts is
also consistent with Art. 6 par. 1 of the Convention, which permits
barring the public … during all or part of the trial … if required in
the interests of minors, or … if, in view of special circumstances, a
public trial could be contrary to the interests of justice.
In the Constitutional Court’s opinion, it is not always necessary to
relate the court’s educational activity, or the educational effect of
criminal proceedings on a recipient of information, to identification of
the perpetrator. For purposes of education for respect for rights and
justice, the more important information is certainly that concerning the
factual findings and the legal evaluation of them, which can be
obtained, with the contested provisions in effect, by a public
announcement of the verdict, and which can be freely expressed and
disseminated without any substantive limitation. In this regard we can
not overlook the right to moderate provided to the chairman of a court
panel in § 54 par. 3 of the Act on Juvenile Courts.
The
negative effects of the limitation on freedom of speech to the benefit
of this modification of the right to privacy do not appear to be
significant, compared to the positive effects provided by the potential
effects of the Act in suppressing the criminal careers of juvenile
delinquents.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The
Plenum of the Constitutional Court, composed of Stanislav Balík
(Judge-Rapporteur), František Duchoň, Vlasta Formánková, Vojen Güttler,
Pavel Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil,
Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová a
Michaela Židlická decided on 8 November 2005 in the matter of a petition
from the District Court in Kladno, represented by panel chairman Mgr.
L. K., seeking the annulment of § 53 par. 1 and § 54 of Act no. 218/2003
Coll., on Liability of Juveniles for Illegal Acts and on Juvenile
Courts and Amending Certain Acts (the Act on Juvenile Courts), with the
participation of the Chamber of Deputies of the Parliament of the Czech
Republic and the Senate of the Parliament of the Czech Republic, as
follows:
The petition is denied.
REASONING
I.
1.
On 2 June 2004 the Constitutional Court received a petition from the
District Court in Kladno in which the petitioner seeks the issuance of a
judgment whereby the Constitutional Court would annul § 53 par. 1 and §
54 of Act no. 218/2003 Coll., on Liability of Juveniles for Illegal
Acts and on Juvenile Courts and Amending Certain Acts (the Act on
Juvenile Courts), (the “Act on Juvenile Courts”).
2.
The petitioner stated that proceedings are being conducted at the
District Court in Kladno, file no. 4 Tm 25/2004, in the criminal matter
of the defendant juvenile L. B. et al., who is charged with committing
the crime of theft under § 247 par. 1 let. b), d) and par. 3 let. b) of
the Criminal Code, and other crimes. In this criminal matter, the
District Court in Kladno is required, in the case of the defendant
juvenile L. B. and other defendants, to apply the Act on Juvenile Courts
as a whole, including at the moment when it decides to order and
conduct trial proceedings.
3.
According to the petitioner § 54 par. 1 of the Act on Juvenile Courts
is inconsistent with Art. 96 par. 2 of the Constitution of the Czech
Republic (the “Constitution”), and with Art. 38 par. 2 of the Charter of
Fundamental Rights and Freedoms (the “Charter”), and § 53 and § 54 par.
2, 3 of the Act on Juvenile Courts are inconsistent with Art. 17 par.
1, 4, 5 of the Charter.
4.
The petitioner pointed to the fact that before § 54 par. 1 of the Act on
Juvenile Courts went into effect, the regulation contained in § 200 or §
297 par. 3 let. a) of the Criminal Procedure Code applied to the
presence of the public at a trial and public sessions involving
juveniles. Under this regulation, the reasons when an exception from the
principle of a public trial can be permitted were precisely and
strictly defined. The court had to decide on the individual application
of such an exception within an adjudicated matter, and this was and is a
decision of a procedural nature, against which there is no remedy. The
District Court in Kladno concludes, from its own experience and from
other data, that before the Act on Juvenile Courts went into effect,
cases in which the public was excluded “were a negligibly small number,
insignificant; in comparison to other matters it would be far below one
percent, and we could surely speak of tenths of a percent out of all the
matters tried by a court,” whereas since the Act on Juvenile Courts
went into effect, the public is absent from seven to eight percent of
criminal matters tried at the District Court in Kladno. In the
petitioner’s opinion, the Act on Juvenile Courts does not in the least
stick to “the principles of a democratic and law-based state, and denies
and endangers” one of the fundamental constitutional safeguards,
consisting of the public exercise of the judicial power, and is grossly
inconsistent with, in particular, Art. 96 par. 2 of the Constitution,
which permits the public to be barred only in exceptional cases, and
this exclusion, although “on the basis of statute, of almost a tenth of
criminal matters from the regime of public trial is not in accordance
with the spirit of the Constitution. The petitioner also explains that
the public nature of court proceedings means the right “of any citizen,
and of person who are not citizens of the state exercising the judicial
power,” to take part in the trial and in public sessions.” This also
declares the willingness on the part of the state to exercise the
judicial power democratically, transparently, publicly, and on the basis
of laws. The presence of the public in the courtroom has an
informational and educational function, and is a means of public
inspection of the justice system.
5.
The petitioner disagrees with the fact that, as a result of applying §
53 par. 1 and § 54 par. 2, 3 of the Act on Juvenile Courts, the interest
of the juvenile is given precedence over arranging that the widest
possible public has direct and correct experience of the activity of the
courts, in particular, that “people come into contact with it
regularly, and become familiar with it, as members of the public at
court proceedings, if the state defines itself as law-based and
democratic (Art. 1 of the Constitution) and wants to be seen as such by
the citizens who live in it.” The petitioner points to the fact that
since the Act on Juvenile Courts went into effect, the courts in
proceedings against juveniles are in the position of so-called “chamber
justice.” The petitioner points out that Constitutional Court judgments
often cite the principle of proportionality as the standard for
evaluating the constitutionality of a statutory norm. In its opinion,
“the legislature inappropriately and in an unbalanced manner elevated
the interest of the individual above the interest of society as a whole,
which, incidentally, is composed of precisely such individuals as the
defendant juvenile.” The petitioner believes that the public and the
media can not be restricted in their access to information to such a
wide degree, involving such a large group of persons, solely on the
basis of a hypothetical possibility of a negative effect on the future
life of the defendant juvenile who is being prosecuted. Based on the
cases of the murder of a teacher that is being “followed by the media”
it concludes that the protection from disclosure of information pursued
by the Act on Juvenile Courts is “completely ineffective.”
II.
6.
In response to notice from the Constitutional Court, the Chamber of
Deputies of the Parliament of the CR, through its Chairman, PhDr. L. Z.,
submitted a statement under § 69 of Act no. 182/1993 Coll., on the
Constitutional Court, as amended by later regulations. It stated that
the Act on Juvenile Courts approaches the handling of illegal acts in
the wider context of all their moral and social aspects. In contrast to
the criminal codices for adults, criminal law for juveniles is oriented
at the future, and the focus of its interest therefore lies in passing
measures that can prevent recidivism. The legislature’s intent was to
include in the Act on Juvenile Courts the starting point of a so-called
“restorative” (renewing) justice system, which emphasizes society’s
balanced, just reaction to a juvenile’s crime, which does not deny its
joint responsibility for his failure, and draws consequences from it not
only for the juvenile, but also for addressing the problems of other
involved persons and groups connected with the crime. The provisions of §
3 par. 5, § 53 and § 54 of the Act on Juvenile Courts establish the
special rights of juveniles to be protected from invasion of their
personal privacy in order to minimize the possible stigmatizing
consequences of a trial and its results in matters handled by juvenile
courts. The special interest in protecting the privacy and personality
of a juvenile justifies keeping information about his illegal acts
confidential over the constitutionally protected principle of court
proceedings being public and the right to information, for purposes of
the greatest elimination of damaging effects of the proceedings on a
juvenile, including effects which defame his person, and on the basis of
the constitutional principle of the presumption of innocence. The
specific rights of juveniles contained in § 53 and § 54 of the Act on
Juvenile Courts must also be considered in relation to Art. 32 par. 1,
second sentence, and Art. 32 par. 6 of the Charter. The Chamber of
Deputies of the Parliament of the CR also pointed out that neither the
right to information nor the principle of public court proceedings is
absolute. The possibility of restricting the presence of the public in
criminal proceedings against a juvenile and restricting the right to
information also arises from important international treaties by which
the Czech Republic is bound. It is necessary to take into consideration
Art. 96 par. 2 of the Constitution, Art. 38 par. 2 of the Charter and
Art. 36 par. 1 of the Convention, as well as Art. 40 par. 2.2 point vii)
of the Convention. In contrast to the petitioner’s position, the
Chamber of Deputies of the Parliament of the CR believes that the
approved provisions of § 53 and § 54 of the Act on Juvenile Courts
optimally balance the interest of the defendant juvenile on one side,
and the aims that are to be achieved by the principle of public trials
on the other side. In conclusion, it stated its position that the
legislative assembly acted in the belief that the Act is consistent with
the Constitution, the constitutional order, and the legal order of the
Czech Republic. According to the Chamber of Deputies of the Parliament
of the CR, it is up to the Constitutional Court to evaluate the
constitutionality of the Act in connection with the petition from the
District Court in Kladno.
7.
The Senate of the Parliament of the Czech Republic, through its
chairman, Doc. JUDr. P. P., in its statement recapitulated the
petitioner’s arguments, and stated that in discussions in the committees
and the full Senate there were no comments to the provisions contested
by the petition. However, certain opinions from the general debate must
be pointed out, which were addressed at the then-discussed draft of the
Act on Juvenile Courts. The majority agreed that the aim of the Act on
Juvenile Courts is to achieve better results in balancing juvenile
delinquency and criminality in general, especially in terms of
recidivism and delinquents’ further criminal career. Negative
developments can be stopped only at the age level of juveniles, using
positive methods. The report of the constitutional law committee
emphasized that the draft Act paid attention to ensuring the reduction
of undesirable “labeling” of a young perpetrator, which is addressed by
restricting the publication of information about accused and convicted
juveniles, including newly implemented penalties for violating these
bans. Dissenting opinions were based on the conviction that a clear and
tough warning (threat) is necessary at all age levels in order to stop
criminality. The Senate of the Parliament of the CR underscored that
indirect constitutional support for the contested provisions can be
found especially in Art. 32 of the Charter. Comprehensive protection of
juveniles is contained in the Convention on the Rights of the Child of
1989, which points out, in Art. 40 par. 2, that the privacy of the child
is to be fully respected at all stages of criminal proceedings. The
Senate also points out that in passing the contested provisions the
legislature was also encouraged by conclusions from other international
documents in the field of treatment of delinquent juveniles. These were
UN documents, especially the “Standard Minimum Rules for the
Administration of Juvenile Justice” (the “Beijing rules” – General
Assembly resolution 40/33 of 1989), but also documents from the Council
of Europe, e.g. Resolution R (87) 20, on social reactions to juvenile
delinquency. The appropriateness of the contested statutory provisions
(exceptions from constitutional rights) must be seen through the prism
of the significance of the particular regulation of juvenile courts.
There is naturally a greater emphasis supporting the subjective rights
of juveniles than on “collective” values, e.g. inspection of the
judiciary by the people; still, the aim of the special protection given
to juveniles in criminal proceedings rests in the public interest in the
possibility of stopping the increase in crime. Exceptions from the
constitutional right to a public hearing before a court and the right to
disseminate information are directly connected to the purpose stated in
§ 1 of the Act on Juvenile Courts. The Senate of the Parliament of the
CR also pointed out that the legislature acted within the intentions of
the case law of the European Court of Human Rights. The Senate also
pointed out that Art. 96 par. 2 of the Constitution and Art. 38 par. 2
of the Charter permit the existence of exceptions provided by law. The
right to seek out and disseminate information can also be restricted by
law consistently with Art. 17 par. 4 of the Charter. The contested
provisions, § 53 par. 1 and § 54 par. 2, 3, are a “very subtle statutory
restriction.” The low intensity of the exception is shown by, for
example, the fact that under no. 3 let. e) of the “Ethical Codex of
Journalists of the CR” a journalist is called on to strictly observe the
rule not to identify the relatives of delinquents or the victim without
their clear consent. The Senate stressed that the contested provision, §
54 par. 3, last sentence, of the Act on Juvenile Courts gives the court
panel chairman the possibility to weigh whether, in the event of a
conflict between the freedom to disseminate information and the right to
protection of privacy, the priority given to one or the other right is
justified. The necessity of the restriction on the right to disseminate
information stated in the contested provisions brings positive effects
in terms of the statute serving to dampen the criminal careers of
juvenile delinquents, while the negative effects of restricting freedom
of expression to the benefit of this modification of the right to
privacy do not appear to be significant. In conclusion the Senate of the
Parliament of the CR states that it passed the draft Act on Juvenile
Courts by a majority, that the draft Act is in accordance with the
constitutional order of the Czech Republic and the state’s international
obligations. It is up to the Constitutional Court to evaluate the
constitutionality of the provisions contested by the petition and to
reach a decision.
III.
8.
The Constitutional Court, in accordance with § 68 par. 2 of Act no.
182/1993 Coll., on the Constitutional Court, as amended by later
regulations, considered the question whether the statute whose
provisions are claimed to be unconstitutional was passed and issued
within the bounds of constitutionally provided jurisdiction and in a
constitutionally prescribed manner. The statute is Act no. 218/2003
Coll., on Liability of Juveniles for Illegal Acts and on Juvenile Courts
and Amending Certain Acts (the Act on Juvenile Courts). In this regard,
the Constitutional Court determined from the relevant parliamentary
publications, shorthand transcripts, and voting records, that the
Chamber of Deputies of the Parliament of the CR duly approved the draft
Act at its session on 21 May 2003, and the Senate of the Parliament of
the CR approved the draft in the version approved by the Chamber of
Deputies of the Parliament of the CR at its session on 25 June 2006.
After being signed by the president and the prime minister, the Act was
promulgated in the Collection of Laws, in part 79, as no. 218/2003 Coll.
The Act was thus passed and issued within the bounds of
constitutionally provided jurisdiction and in a constitutionally
prescribed manner.
IV.
9. The provisions which the petitioner contests and seeks to have annulled read as follows:
Ҥ 53
1) Unless this Act provide otherwise, no one may make public, in any manner, any information which provides the first name or names and family name of the juvenile, or which contains information that would make it possibly to identify the juvenile.
§ 54
1) Persons who may take part in the trial and public sessions are only the defendant juvenile, his two confidantes, his defense counsel, legal representatives, and immediate family members, siblings, spouse or companion, the victim and his authorized representative, witnesses, experts, interpreters, the relevant body for social protection of children, officials from the Probation and Mediation Service, and the representative of the school or educational institution. At the juvenile’s request the trial or public session can be held publicly.
(2) Publishing information about the trial or a public session that would lead to identifying the juvenile in the media or otherwise is forbidden. It is likewise forbidden to publish and text or any depiction concerning the identity of the juvenile.
(3) The verdict is announced publicly in the trial in the presence of the juvenile. A guilty verdict may be published in the media only without stating the name and family name of the juvenile, and with the provision of appropriate protection of the juvenile from undesirable effects of such publication. The panel chairman may, taking into account the nature and type of fault and the appropriate protection of the interests of the juvenile, decide on a different manner of publication and related restrictions. An objection against such a ruling is not permitted.”
Ҥ 53
1) Unless this Act provide otherwise, no one may make public, in any manner, any information which provides the first name or names and family name of the juvenile, or which contains information that would make it possibly to identify the juvenile.
§ 54
1) Persons who may take part in the trial and public sessions are only the defendant juvenile, his two confidantes, his defense counsel, legal representatives, and immediate family members, siblings, spouse or companion, the victim and his authorized representative, witnesses, experts, interpreters, the relevant body for social protection of children, officials from the Probation and Mediation Service, and the representative of the school or educational institution. At the juvenile’s request the trial or public session can be held publicly.
(2) Publishing information about the trial or a public session that would lead to identifying the juvenile in the media or otherwise is forbidden. It is likewise forbidden to publish and text or any depiction concerning the identity of the juvenile.
(3) The verdict is announced publicly in the trial in the presence of the juvenile. A guilty verdict may be published in the media only without stating the name and family name of the juvenile, and with the provision of appropriate protection of the juvenile from undesirable effects of such publication. The panel chairman may, taking into account the nature and type of fault and the appropriate protection of the interests of the juvenile, decide on a different manner of publication and related restrictions. An objection against such a ruling is not permitted.”
V.
10.
The Constitutional Court first considered the question whether the
petitioner – the District Court in Kladno – is authorized to file a
petition to annul the contested provisions. The petitioner correctly
stated that it must apply the contested provisions in criminal
proceedings, because a criminal charge has been filed before it against a
juvenile defendant and the next step is thus to order a trial. The
Constitutional Court concluded that the contested provisions are related
to the petitioner’s decision-making activity, and therefore the
District Court in Kladno is an authorized petitioner under Art. 95 par. 2
of the Constitution and § 64 par. 3 of the Act on the Constitutional
Court.
VI.
11.
After this determination the Constitutional Court turned to evaluating
the content of the contested provisions of the Act on Juvenile Courts in
terms of their consistency with the constitutional order of the Czech
Republic [Art. 87 par. 1 let. a) of the Constitution].
The
petitioner’s petitioner presented two constitutional law objections,
that § 54 par. 1 of the Act on Juvenile Courts is inconsistent with Art.
38 par. 2 of the Charter (the right to public consideration of one’s
case) and that § 53 par. 1 and § 54 par. 2, 3 are inconsistent with Art.
17 par. 1, 4 a 5 of the Charter (the right to information). The third
objection is that the contested provisions of the Act on Juvenile Courts
violate the proportionality between the interest in protection of
privacy of criminally prosecuted juveniles on the one hand, and the
right to information on the other hand, to the benefit of protection of
privacy of criminally prosecuted juveniles.
The
Constitutional Court first states that neither Art. 38 par. 2 of the
Charter nor Art. 17 par. 1 establish unrestricted rights to public
consideration of a case, or to information, respectively. In both cases
it is up to the legislature, to what extent it restricts, by statute,
the right to public consideration of a case or the right to information.
In view of the fact that a number of provisions of the Charter are
related to each other, they must be interpreted together,
systematically, and in mutual subordination, whereby “the Charter
precisely and strictly regulates the freedom of the legislature “ (cf.
F. Šamalík, Charakter ústavního pořádku a jeho ochrana [The Nature of
the Constitutional Order and Its Protection], Právník [The Lawyer] no.
1/1998, p. 23). In evaluating whether a statute limiting fundamental
rights and freedoms is constitutional or not, it is usually necessary to
consider aspects of legal philosophy, legal history, and comparative
law.
12. The general legal
consciousness traditionally sees the right to public consideration of a
matter as an instrument of public inspection of the justice system. The
purpose of public trials “is so that everyone can see for himself how
justice is handled by the state, which inspection by the public makes
impossible the partiality of judges” (see. the entry “Public” in:
Riegrův slovník naučný [Rieger’s Educational Dictionary], IX, Prague
1872, p. 997). This purpose for public trials was long considered the
only on in the Czech lands. The case law of the Czechoslovak Supreme
Court from the First Republic repeatedly provides that “the only purpose
which the law pursues by a provision on a closed public trial is for
court proceedings not to be conducted without permitting public
inspection of them.” In this single purpose for making trials public
there is, under the law, no difference between proceedings before a jury
and before a panel of judges, and even with a jury the law does not
pursue the intent of having the powerful effect of the mood of the
listeners in the jury chamber influence the jury” [see decision no.
4336/1932 in: F. Vážný, Rozhodnutí Nejvyššího soudu československé
republiky ve věcech trestních [Decisions of the Supreme Court of the
Czechoslovak Republic in Criminal Matters] (“Vážný”), XIII, 1932, p.
568]. The Supreme Court of the First Republic similarly concluded that
“the purpose of the law is public review of the execution of justice,
judging in the light of day, not in the dark secrecy of court
proceedings. Thus, the concept of public hearings is presented as the
antithesis of secrecy, and it is only a question of practicality to what
extent access to proceedings for the public can be arranged while
preserving the inviolable postulate of the unacceptability of influences
which negatively affect the legal conduct of proceedings and on persons
participating in them” (see decision no. 1729/1925, in: Vážný, VI,
1925, p. 549).
Czechoslovakia
between the wars belonged, along with Germany (in 1923) and Austria (in
1928) to the states that passed laws on juvenile courts [cf., e.g., H.
Válková, Odpovědnost za mládež z pohledu trestní politiky
[Responsibility for Youth from the Viewpoint of Criminal Policy], in: E.
Bezouška, V. Bednář (eds.), Nečtiny 1999-2005, Plzeň 2005 (“Válková,
Responsibility”), p. 128-129]. The provision of § 48 par. 1 of Act no.
48/1931 Coll. of Laws and Judgments specially regulated the barring of
the public in proceedings against a juvenile, in contrast to the general
regulation of criminal proceedings. Under that provision, the judge
could bar the public with the consent of the defense counsel or legal
representative and provided that it was “for the benefit of the
defendant.” The benefit of the juvenile was also emphasized in the
court’s decision to bar the public from the trial and public sessions
concerning a juvenile in § 233 of the Criminal Code no. 87/1950 Coll.
and in § 297 par. 3 let. a) of the Criminal Code no. 141/1961 Coll.
The
Constitutional Court concluded from the foregoing legal history review
that the Czech lands traditionally considered constitutional a legal
framework based on the premise that the presence of the public is
conceived as a guarantee of public review of the justice system, and at
the same time that special emphasis is laid on the interests and benefit
of a juvenile in cases of restricting the presence of the public in
proceedings against a juvenile. The Constitutional Court adds that § 101
of Constitutional Charter no. 121/1920 Coll. of Laws and judgments was
analogous to Art. 38 par. 2 of the Charter, because even at that time it
was possible for “the public to be barred from trials only in cases
provided by law.”
In the
Constitutional Court’s opinion, the foregoing traditional premise is
also met by the contested § 54 par. 1 of the Act on Juvenile Courts.
Under that provision, it is left to the minor whether to choose the
alternative provided by the last sentence of § 54 par. 1 of the Act on
Juvenile Courts, i.e. to propose whether a trial or a public session be
held in public, or not. Although, according to that provision, only the
juvenile can formally make the proposal, it can not be overlooked that
he will be able – given the mandatory defense counsel in proceedings
against him – to consult his defense counsel. In contrast, the contested
regulation does not permit the court to bar the public from a trial or
public session without statutory grounds, and to resolve on his own the
question of whether – in the petitioner’s words – “there is a documented
willingness on the part of the state to execute the judicial power
democratically, transparently, on the basis of laws.” Thus, the right to
a public trial is a fundamental right of the party to the proceedings,
and not a fundamental right of the court or judge. In its decision
making practice since the Act on Juvenile Courts went into effect, the
Constitutional Court has not come across a juvenile who, in connection
with the application of § 54 par. 1 of the Act on Juvenile Courts,
sought protection of his right to a public trial under Art. 38 par. 3 of
the Charter, because the contested provisions logically narrows the
incidence of such a situation considerably.
The
Constitutional Court agrees with the doctrine that the Act on Juvenile
Courts is consistently subject to the interests of juveniles. It does so
in view of the age and intellectual maturity of juveniles. In the
effort to minimize the stigmatization of juveniles as a result of court
proceedings, these principles are reflected in § 54 par. 1 of the Act on
Juvenile Courts. The legislature also began with the consideration that
the requirement of protecting the personal privacy of juveniles during
the entire proceedings also arises from the interest in protecting them
from the damaging effects of the outside environment and publicity (cf.
A. Sotolář, K ochraně soukromí mladistvých podle zákona o soudnictví ve
věcech mládeže [On the Protection of Privacy of Juveniles under the Act
on Juvenile courts], Trestněprávní revue [Criminal Law Revue] no.
4/2004, p. 128-129).
The contested provision of § 54 par. 1 of the Act on Juvenile Courts is also consistent with Art. 6 par. 1 of the Convention, which permits barring the public … during all or part of the trial … if required in the interests of minors, or … if, in view of special circumstances, a public trial could be contrary to the interests of justice. The Constitutional Court is aware that “with a certain amount of oversimplification” we can see the two abovementioned opposite trends in contemporary criminal policy development in this area. The first trend, which is characteristic of Great Britain and partly of Scandinavia, where, neoclassical criminal law doctrine is promoted, modeled on the USA, based on the indeterminism of individual will and the resulting consequences – the right of society to react strictly and uncompromising to any violation of criminal law norms, regardless of age, mental or moral maturity of the perpetrator. Here the degree of responsibility is determined by the degree of gravity of the crimes committed, not specifically by the person of the perpetrator. The second trend, which is applied in, e.g. Austria, Switzerland, Germany, and the Czech Republic, is based, in contrast, on the key role played by age and the closely related level of intellectual and spiritual development attained; in contrast, the significance of the particular gravity of the offense committed recedes into the background (see Válková, Responsibility, p. 132). This second trend, which is also followed in the Czech Republic, has also found support, in relation to the contested § 54 par. 1 of the Act on Juvenile Courts, in a number of international documents in the field of treatment of juvenile delinquents, e.g. the Convention on the Rights of the Child of 1989, in the so-called “Beijing Rules” – UN resolution 40/33 “Standard Minimum Rules for the Administration of Juvenile Justice” of 1989[sic, should be 1985], and not least the Recommendation of the Council of Ministers to the member states of the Council of Europe concerning new methods of dealing with juvenile delinquency and the mission of juvenile justice [volume.( 2003) 20) (“Recommendation Rec (2003) 20”]. Regarding the conclusion that “where appropriate in view of the age and other characteristics of the child and the circumstances surrounding the criminal proceedings, this general interest [in the open administration of justice] could be satisfied by a modified procedure providing for selected attendance rights and judicious reporting. (see decision of the European Court of Human Rights in the matter T. v. United Kingdom of 16 December 1999, Application no. 24724/94, and V. v. United Kingdom of 16 December 1999, Application no. 24888/94)).
The contested provision of § 54 par. 1 of the Act on Juvenile Courts is also consistent with Art. 6 par. 1 of the Convention, which permits barring the public … during all or part of the trial … if required in the interests of minors, or … if, in view of special circumstances, a public trial could be contrary to the interests of justice. The Constitutional Court is aware that “with a certain amount of oversimplification” we can see the two abovementioned opposite trends in contemporary criminal policy development in this area. The first trend, which is characteristic of Great Britain and partly of Scandinavia, where, neoclassical criminal law doctrine is promoted, modeled on the USA, based on the indeterminism of individual will and the resulting consequences – the right of society to react strictly and uncompromising to any violation of criminal law norms, regardless of age, mental or moral maturity of the perpetrator. Here the degree of responsibility is determined by the degree of gravity of the crimes committed, not specifically by the person of the perpetrator. The second trend, which is applied in, e.g. Austria, Switzerland, Germany, and the Czech Republic, is based, in contrast, on the key role played by age and the closely related level of intellectual and spiritual development attained; in contrast, the significance of the particular gravity of the offense committed recedes into the background (see Válková, Responsibility, p. 132). This second trend, which is also followed in the Czech Republic, has also found support, in relation to the contested § 54 par. 1 of the Act on Juvenile Courts, in a number of international documents in the field of treatment of juvenile delinquents, e.g. the Convention on the Rights of the Child of 1989, in the so-called “Beijing Rules” – UN resolution 40/33 “Standard Minimum Rules for the Administration of Juvenile Justice” of 1989[sic, should be 1985], and not least the Recommendation of the Council of Ministers to the member states of the Council of Europe concerning new methods of dealing with juvenile delinquency and the mission of juvenile justice [volume.( 2003) 20) (“Recommendation Rec (2003) 20”]. Regarding the conclusion that “where appropriate in view of the age and other characteristics of the child and the circumstances surrounding the criminal proceedings, this general interest [in the open administration of justice] could be satisfied by a modified procedure providing for selected attendance rights and judicious reporting. (see decision of the European Court of Human Rights in the matter T. v. United Kingdom of 16 December 1999, Application no. 24724/94, and V. v. United Kingdom of 16 December 1999, Application no. 24888/94)).
13.
In evaluating the constitutionality of the contested provisions § 53
par. 1 and § 54 par. 2, 3 of the Act on Juvenile Courts, the
Constitutional Court began – as regards the general legal philosophy
view – with the same consideration as when evaluating the
constitutionality of § 54 par. 1 of the Act on Juvenile Courts.
The
Constitutional Court also considered the issue of the right to
information from several viewpoints. It took into account that in the
Czech lands it is traditionally seen as logical that the public access,
and thus to a certain degree also the ability to exercise the right to
information directly in court proceedings, is limited. It has repeatedly
been ruled that “it is a question of practicality, to what extent
access to a trial can be arranged for the public” (see decision no.
1729/1925, in: Vážný VL, 1925, p. 549 or decision no. 4218/1932, in:
Vážný XIII, 1932, p. 340).
The
Constitutional Court is aware that on a secondary level a public trial
has a potential educational role for the court (see K. Klíma, Ústavní
právo [Constitutional Law], Dobrá Voda (2002, p. 338). Naturally, the
implementation of the right to information is also supposed to serve
this aim. In this regard the Constitutional Court took into
consideration the fact that recommendation Rec (2003) 20, in Art. V,
point 25, last sentence, expressly states the requirement not to make
public information that identifies the juvenile perpetrator and his
victim.
In the
Constitutional Court’s opinion, it is not always necessary to relate the
court’s educational activity, or the educational effect of criminal
proceedings on a recipient of information, to identification of the
perpetrator. For purposes of education for respect for rights and
justice, the more important information is certainly that concerning the
factual findings and the legal evaluation of them, which can be
obtained, with the contested provisions in effect, by a public
announcement of the verdict, and which can be freely expressed and
disseminated without any substantive imitation. In this regard we can
not overlook the right to moderate provided to the chairman of a court
panel in § 54 par. 3 of the Act on Juvenile Courts.
The
Constitutional Court also took into account the fact that a similar
limitation on the freedom to seek out and disseminate information is
also found in Art. 3 let. e) of the Ethical Codex of Journalists of the
CR.
14. Finally, the
Constitutional Court evaluated the contested provisions in terms of the
proportionality of the relationship between the interest in protection
of privacy of criminally prosecuted juveniles on one side and the right
to information on the other side. It concluded that the legislature did
not exceed the bounds provided for it by the Charter.
In
this regard the petitioner only stated that the public has been absent
since 1 January2004 in a “mass” of seven to eight percent of cases. The
Constitutional Court quite agreed with the position of the Senate of the
Parliament of the CR, that the negative effects of the limitation on
freedom of speech to the benefit of this modification of the right to
privacy do not appear to be significant, compared to the positive
effects provided by the potential effects of the Act in suppressing the
criminal careers of juvenile delinquents.
15.
After the parties agreed, the Constitutional Court, under § 44 par. 2
of the Act on the Constitutional Court, waived a hearing, and after
conducting proceedings, it denied the petition from the District Court
in Kladno to annul § 53 par. 1 and § 54 par. 1 , 2, 3 of the Act on
Juvenile Courts, because these provisions in abstracto are not
inconsistent with Art. 96 par. 1, 2 of the Constitution, Art. 38 par. 2 a
Art. 17 par. 1, 4, 5 of the Charter (§ 70 par. 2 of the Act on the
Constitutional Court).
Notice: Decisions of the Constitutional Court can not be appealed.
Brno, 8 November 2005
Notice: Decisions of the Constitutional Court can not be appealed.