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HEADNOTES
A
constitutional principle can be derived from Article 1 par. 2 of the
Constitution, in conjunction with the principle of cooperation laid down
in Art. 10 of the EC Treaty, according to which domestic legal
enactments, including the constitution, should be interpreted in
conformity with the principles of European integration and the
cooperation between Community and Member State organs. If the
Constitution, of which the Charter of Fundamental Rights and Basic
Freedoms forms a part, can be interpreted in several manners, only
certain of which lead to the attainment of an obligation which the Czech
Republic undertook in connection with its membership in the EU, then an
interpretation must be selected with supports the carrying out of that
obligation, and not an interpretation which precludes its. These
conclusions apply as well to the interpretation of Art. 14 par. 4 of the
Charter.
The petitioners’ assertion, that the adoption into domestic law of the
European arrest warrant would disrupt the permanent relationship between
citizen and state, is not tenable. A citizen surrendered to an EU
Member State for criminal prosecution remains, even for the duration of
this proceeding, under the Czech state’s protection. The European
arrest warrant merely permits a citizen to be surrendered, for a limited
time, for prosecution in an EU Member State for a specifically defined
act, and after the proceeding is completed there is nothing preventing
her from returning again to Czech territory. In the case of a surrender
pursuant to a European arrest warrant, a citizen has the right to
defend herself against measures by criminal justice bodies, by means of
remedial measures, including even a possible constitutional complaint.
The first sentence of Art. 14 par. 4 of the Charter, which provides
that every citizen has the right to freely enter the Republic, as well
as its second sentence, which provides that no citizen may be forced to
leave his homeland, make entirely clear that the Charter precludes the
exclusion of a Czech citizen from the community of citizens of the Czech
Republic, a democratic state to which he is bound by the ties of state
citizenship. The text of Art. 14 par. 4 cannot itself, without further
arguments, unambiguously answer whether and to what extent it precludes
the surrender of a citizen, for a limited time, to an EU Member State
for a criminal proceeding being conducted there if, following the
conclusion of such proceeding, he has the right to return to his
homeland. Although a linguistic interpretation of the phrase, “forcing
to to leave one’s homeland” might include even such a relatively short
surrender of a citizen to a foreign state for a criminal proceeding.
The prohibition on “forcing one to leave his homeland” can be
interpreted either broadly or narrowly. In agreement with the
petitioner, the Constitutional Court concludes that, in order to resolve
the issue of the meaning of Art. 14 par. 4 of the Charter, its
objective purport must be sought. In assessing of the meaning of this
provision of the Charter, it is appropriate above all to take into
account the historical impetus for its adoption. The second sentence of
Article 14 par. 4 first appeared in Art. 15 par. 2 of the draft
Charter, in the 7 January 1991 report of the Constitutional Law
Committee of the Assembly of the People and the Assembly of the Nations
(see print 392, www.psp.cz). The Constitutional Court also
agrees both with the petitioner and with the parties to this proceeding,
that the experience with the crimes of the Communist regime played a
critical role in the constitution of the Charter. It played this role
even in the drafting of the current version of Art. 14 par. 4 of the
Charter, at the end of 1990 and beginning of 1991, that is, experience
that is still quite recent. This was especially the case in connection
with the “Demolition” operation, in which the Communist regime forced
troublesome persons to leave the Republic. A historical interpretation
of Art. 14 par. 4 of the Charter thus attests to the fact that it was
never concerned with extradition.
If Czech citizens enjoy certain advantages, connected with the status
of EU citizenship, then it is naturally in this context that a certain
degree of responsibility must be accepted along with these advantages.
The investigation and suppression of criminality which takes place in
the European area, cannot be successfully accomplished within the
framework of individual Member States, but requires extensive
international cooperation. The results of this cooperation is the
replacement of the previous procedures for the extradition of persons
suspected of criminal acts by new and more effective mechanisms,
reflecting the life and institutions of the 21st century. The
contemporary standard for the protection of fundamental rights within
the European Union does not, in the Constitutional Court’s view, give
rise to any presumption that this standard for the protection of
fundamental rights, through invoking the principles arising therefrom,
is of a lesser quality than the level of protection provided in the
Czech Republic.
These facts cannot be disregarded when determining the objective
meaning of Art. 14 par. 4 of the Charter. It is not in harmony with the
principle of the objective teleological interpretation, reflecting the
contemporary reality of the EU (i.e., that it is founded on the high
mobility of citizens in the framework of the entire Union area), for
Art. 14 par. 4 to be interpreted such that it does not even allow for
the surrender of a citizen, for a limited time, to another Member State
for a criminal proceeding concerning a criminal act committed by this
citizen in that state, as long as it is guaranteed that, following the
conclusion of the criminal proceeding the citizen will, at his own
request, be returned to the Czech Republic to serve any sentence imposed
(srov. § 411 par. 7 of the Criminal Procedure Code). Thus, the
surrender of a citizens for a limited time for criminal proceedings
being held in another EU Member State, conditioned upon their subsequent
return to their homeland, does not and cannot constitute forcing them
to leave their homeland in the sense of Art. 14 par. 4 of the Charter.
The Court can equally draw attention to the rules providing that Czech
citizens or persons with permanent residence status in the Czech
Republic may be sent to another Member State of the Union to serve a
sentence or for protective treatment or protective measures, but only if
they consent thereto (§ 411 par. 6 of the Criminal Procedure Code). It
follows therefrom that unless they give their consent, they will never
be sent abroad to serve a sentence of imprisonment.
The right of citizens to protection by the state is manifested in the
fact that it would represent a breach, among others, of Art. 14 par. 4,
Art. 36 par. 1 of the Charter and Art. 6 par. 1 of the Convention, for a
citizen were to be surrendered for criminal prosecution to a state
where the standards of criminal proceedings do not meet the requirements
for criminal proceedings enshrined in the Czech Constitutional order,
for ex., in the situation where the citizen’s right to fair process
(Art. 36 par. 1 of the Charter) would be genuinely threatened, or
alternatively where the citizen would be subjected to torture or other
inhuman or degrading treatment or punishment (Art. 3 of the Convention,
Art. 7 par. 2 of the Charter). However, such is not the case for the
European arrest warrant.
It is always necessary to remember the fact that all EU Member States
are also signatories of the European Convention for the Protection of
Human Rights and Fundamental Freedoms. Accordingly a citizen cannot not
be significantly affected in his rights due to the fact that his
criminal matter will be decided in another Member State of the Union, as
each EU Member State is bound by a standard of human rights protection,
which is equivalent to the standard required in the Czech Republic
while all Member States’ legal orders rest on the values to which our
state declared its allegiance only after 1989. The Czech Charter of
Fundamental Rights and Basic Freedoms also draws upon the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
Section 377 of the Criminal Procedure Code can be considered as
something of a safeguard, guaranteeing on the constitutional law plane
the protection of Czech citizens. According to this provision, the
request of a foreign state’s organ may not be granted if its granting
would constitute a violation of the Constitution of the Czech Republic
or such provision of the Czech legal order which must be adhered to
without exception, or if the granting of the request would damage some
other significant protected interest of the Czech Republic. This
principle, contained in the Twenty-Fifth Chapter, First Division of the
Criminal Procedure Code (designated as general provisions) thus applies
both to the classic extradition procedure pursuant to the Second
Division, and to proceedings on the surrender of persons between EU
Member States on the basis of the European arrest warrant, pursuant to
the Third Division of the same Chapter. Even though this provision of
the Criminal Procedure Code is introduced by the marginal heading
“Protection of the State’s Interests”, it can be deduced, primarily from
the text of its first sentence, that it is be concerned primarily with
the state’s interest in not violating a Czech citizen’s fundamental
rights enshrined in the Czech Republic’s constitutional order, of which
the Charter of Fundamental Rights and Basic Freedoms forms an integral
part (. . . if its execution would constitute a violation of the
Constitution of the Czech Republic or such provision of the Czech legal
order which must be adhered to without exception . . .).
Persons who are to be surrendered to another EU state retain the right
to submit against the relevant measures of organs taking part in
criminal proceedings a complaint which has suspensive effect (§ 411 par.
5 of the Criminal Procedure Code) and, in appropriate cases, a
constitutional complaint, and the deadline for the surrender of the
person does not run while the Constitutional Court is deciding (§ 415
par. 3 of the Criminal Procedure Code). These provisions preserve the
legal protection of citizens, or of other persons who should be
surrendered for criminal prosecution, and at the same time uphold the
condition that, in consequence of the surrender of a requested person,
the constitutional order of the Czech Republic will not be affected in
individual cases.
These principles are in conformity with the Framework Decision,
according to which nothing in it may be interpreted as prohibiting the
refusal to surrender a person for whom a European arrest warrant has
been issued when there are reasons to believe, on the basis of objective
elements, that the said arrest warrant has been issued for the purpose
of prosecuting or punishing a person on the grounds of his or her sex,
race, religion, ethnic origin, nationality, language, political opinion
or sexual orientation, or that that person’s position may be prejudiced
for any of these reasons. The Framework Decision does not prevent a
Member State from applying its constitutional rules relating to the due
process, the freedom of association, the freedom of the press and the
freedom of expression in other media. The Framework Decision also
expressly declares that no person may be removed, expelled or extradited
to a state where there is a serious risk that she would be subjected to
the death penalty, torture or other inhuman or degrading treatment or
punishment.
The assertion that the domestic law rules relating to the European
arrest warrant have disturbed the relationship between the citizen and
the state is, thus, not tenable. A citizen surrendered to an EU Member
State for criminal prosecution remains, even for the duration of that
criminal proceeding, under the protection of the Czech state. The
European arrest warrant merely permits, for a limited time, the
surrender of a citizen for his criminal prosecution in a Member State of
the Union for a specifically defined act, while following the
completion of this criminal proceeding, there is nothing preventing him
from returning back (where relevant even to serve his sentence in Czech
territory). The Criminal Procedure Code specifies the grounds upon
which the surrender of a person to another Member State of the Union
shall not occur (esp. § 411). Citizens have the right to defend
themselves against measure by organs acting in the criminal proceeding
by means of remedial measures, which have suspensive effect (see § 411
par. 5 of the Criminal Procedure Code), including even the possibility
of a constitutional complaint. In the case that the surrender of a
citizen would result in a breach of the constitutional order, the
surrender of the citizen will not occur.
In reaching these conclusions, it is necessary to take into account not
only the protection of rights of persons suspected of committing a
criminal act, but also the interests of the victims of criminal acts.
For the protection of the rights of victims and injured persons, it
generally appears more practical and fair for the criminal proceeding to
be held in the state in which the criminal act was committed (cf. the
conditions for the resolution of cases of two or more concurrent
European arrest warrants in § 419 of the Criminal Procedure Code and
Art. 16 of the Framework Decision). Since the execution of the European
arrest warrant, in the case a state is surrendering its own citizen, is
conditioned on reciprocity (§ 403 par. 2 of the Criminal Procedure
Code), the rules contested by the petitioners protect the rights of
persons who can be considered, according to the Czech Criminal Procedure
Code, as injured persons. It can generally be said that, in view of
the evidence that will found in the state where the criminal act
occurred, a criminal proceeding there will be quicker, more effective
and, at the same time, more reliable and just both for the defendant and
for any victim of the criminal act.
The Constitutional Court, therefore, does not concur with the
petitioners‘ arguments asserting that § 412 par. 2 of the Criminal
Procedure Code is in conflict with Art. 39 of the Charter because this
provision in no way defines the criminal offenses not requiring double
criminality. If it had been a substantive law enactment, that is if
certain conduct had been made criminal by means of a provision like §
412 par. 2 of the Criminal Procedure Code, that is, by enumerating them
without any sort of statutory definition, that would certainly
constitute a violation of Art. 39. of the Charter. The Constitutional
Court proceeds, however, from the fact that § 412 of the Criminal
Procedure Code is not a substantive law provision, rather a procedural
law one. A surrender pursuant to the European arrest warrant is still
not the imposition of punishment in the sense of Art. 39 and Art. 40 of
the Charter.
Persons suspected of having committed a criminal act and surrendered in
accordance with the European arrest warrant will not be prosecuted
under § 412 par. 2 of the Criminal Procedure Code; rather the criminal
proceeding will be conducted for criminal offenses defined in the
substantive law of the requesting EU state. The statutory enumeration
of criminal offenses in § 412 par. 2 of the Criminal Procedure Code
(Art. 2 par. 2 of the Framework Decision) serves merely for the
procedural steps taken by courts. That is to say, in cases where the
requesting state’s organ designates in the European arrest warrant the
conduct of the surrendered person as one of the categories of conduct
enumerated in § 412 par. 2 of the Criminal Procedure Code, or Art. 2
par. 2 of the Framework Decision, Czech courts do not ascertain the
criminality of this act according to the law of the Czech Republic. The
adoption of § 412 of the Criminal Procedure Code did not result in the
criminal law of all EU Member States becoming applicable in the Czech
Republic. It merely means that the Czech Republic is assisting the
other Member States in the enforcement of their criminal laws. Thus, §
412 of the Criminal Procedure Code does not impose on persons in the
Czech Republic (citizens, permanent residents, and others commonly found
within the territory) the obligation to know the criminal law of all EU
states.
Moreover, the enumeration of criminal offenses in § 412 par. 2 of the
Criminal Procedure Code or Art. 2 par. 2 of the Framework Decision
generally corresponds to conduct which is criminal even according to
Czech law, even though the titles of particular criminal offenses do not
necessarily correspond exactly to each other. The enumeration of
criminal offenses which do not require dual criminality is not given due
to the fact that it would otherwise be presumed that some of these
categories of conduct do not qualify as criminal offenses in one or more
of the Member States; rather the exact opposite, that it is conduct
which, in view of the values shared by the EU Member States, is criminal
in all of them. The reason for enumerating them in this fashion is to
speed up the execution of European arrest warrants, as the proceeding
for ascertaining the criminality of such acts under Czech law has been
dropped. In addition, in adopting this Framework Decision each EU
Member State expressed its agreement that all criminal conduct coming
within the categories defined in this way will also be criminally
prosecuted.
By dispensing with the principle of dual criminality in relation to the
Member States of the EU, the Czech Republic in no way violates the
principle of legality. As a general matter, the requirement of dual
criminality can be dispensed with, as a safeguard, in relations among
the Member States of the EU, which have a sufficient level of value
approximation and mutual confidence that they are all states as having
democratic regimes that adhere to the rule of law and are bound by the
obligation to observe this principle. It is precisely the situation,
where the level of approximation among the 25 EU Member States has
arrived at such a degree of mutual confidence, that they no longer feel
the need to cling to the principle of dual criminality.
The Constitutional Court takes as a starting proposition that the
surrender of Czech citizens or other persons authorized to stay on Czech
territory to another EU Member State for the purpose of their
prosecution will generally come into consideration only in the case
where their conduct, qualifying as a criminal offense, did not occur in
the Czech Republic, but in another Member State of the Union. Should
the commission of a criminal act occur partly abroad and partly in the
Czech Republic, then criminal prosecution in the Czech Republic would be
an option. An impediment to the surrender of such persons for a
criminal proceeding abroad (cf. § 411 par. 6 lit. d) of the Criminal
Procedure Code) thereby arises, to the extent that it would be more
appropriate, in view of the nature of the conduct in question, for the
prosecution to take place in another EU Member State, for ex., due to
the fact that decisive evidence is found there or the criminal deeds
played out primarily in that state, etc.
Pursuant to Art. 4 par. 7 of the Framework Decision, the executing
judicial authorities may refuse to execute a European arrest warrant
where it relates to offenses which have been committed in whole or in
part in the territory of the executing Member State, or in a place
treated as such. This provision, which affords domestic criminal
justice organs the possibility to weigh whether to refuse to execute the
European arrest warrant, protects the value of legal certainty, which
is also a value in European law and whose observance on the European
plane is a prerequisite for the Czech constitutional order permitting
the application of European law in the domestic legal order (in the case
of the implementation and application of the Framework Decision).
Although Article 4 par. 7 of the Framework Decision was not explicitly
implemented into the Czech legal order, in accordance with the principle
of the constitutionally conforming interpretation, Czech criminal
justice organs must pay heed to Czech citizens’ trust in the fact that
their conduct within the Czech Republic will be governed by Czech
criminal law. If Czech citizens remain within the territory of the
Czech Republic, domestic law is applied to their conduct, from which
also follows these persons’ constitutionally protected trust that legal
consequences laid down in Czech law will be attributed to their legal
conduct. The general value of legal certainty finds expression, on the
constitutional plane, in the principle formulated in Art. 39 of the
Charter, and on the sub-constitutional plane is expressed in the general
principle of § 377 of the Criminal Procedure Code, which applies
subsidiarily in relation to § 411 par. 6 lit. d) of the Criminal
Procedure Code, that is, it will only be applied in the case that a
criminal prosecution concerning the same act is not already in progress
in the Czech Republic. According to § 377 of the Criminal Procedure
Code, interpreted in the light of Art. 4 par. 7 of the Framework
Decision, a Czech citizen will not be surrendered to another EU Member
State due to suspicion of having committed a criminal offense, if it was
allegedly committed within the Czech Republic, except in cases where,
in view of the special circumstances of the commission of the criminal
act, priority must be given to holding the criminal prosecution in the
requesting state, for example, on grounds of adequate fact-finding
concerning the conduct in question, if in the greater part it occurred
abroad, or because prosecution in the given EU Member State would, in
that particular case, be more appropriate than that person’s prosecution
in the Czech Republic. It is appropriate for the court which may, but
need not, refuse to execute the European arrest warrant, to have
sufficient decision-making discretion, as in a whole host of cases it
would be appropriate for a person suspected of having committed a
criminal offense to be surrendered, even though his activity occurred
within the Czech Republic (for ex. organized criminal acts, which
naturally were brought to fruition in the another EU Member State).
This provision will be clarified in more detail only through the
decision-making practice in this phase of such proceedings; it is not
for the Constitutional Court to preempt that process.
The Constitutional Court would emphasize that the Czech constitutional order does not protect merely Czech citizens’ trust in Czech law, rather it similarly protects also the trust and legal certainty of other persons, authorized to stay within the territory of the Czech Republic (for ex., aliens having permanent residence status in the Czech Republic).
The Constitutional Court would emphasize that the Czech constitutional order does not protect merely Czech citizens’ trust in Czech law, rather it similarly protects also the trust and legal certainty of other persons, authorized to stay within the territory of the Czech Republic (for ex., aliens having permanent residence status in the Czech Republic).
“Distance”
criminal offences, that is, those usually committed by means of
computer technology, represents a specific category falling within the
terms of the territoriality principle, as it theoretically admits of the
possibility that conduct occurring in the Czech Republic could satisfy
the material elements of a criminal offense in another EU Member State.
The Constitutional Court concedes that, under quite exceptional
circumstances, the application of the European arrest warrant would be
in conflict with the Czech Republic’s constitutional order, especially
in the case that the “distance” delict would qualify as a criminal act
under the law of the requesting state, but would not qualify as such
under Czech criminal law, and perhaps would even enjoy constitutional
protection in the Czech Republic (for ex., within the framework of the
constitutional protection of free expression). The petitioners’
objections are justified in this respect. In such an, albeit unlikely,
case, the application of § 377 of the Criminal Procedure Code would come
into consideration, as it contains a mechanism for precluding the
unconstitutional consequences of the European arrest warrant, in the
sense stated above.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The Constitutional Court Plenum, composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická, in the matter of the petition submitted by the petitioners - a group of deputies of the Chamber of Deputies of the Czech Parliament and a group of senators of the Senate of the Czech Parliament, represented by Prof. JUDr. Aleš Gerloch, CSc., advocate with his office in Prague 2, at Botičská 4, proposing the annulment of § 21 par. 2 of Act No. 140/1961 Coll., as amended and the annulment of § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7 and § 412 par. 2 of Act No. 141/1961 Coll., on the Criminal Procedure Code, as amended, has decided as follows:
The
petition proposing the annulment of § 21 par. 2 of Act No. 140/1961
Coll., as amended and the annulment of § 403 par. 2, § 411 par. 6 lit.
e), § 411 par. 7 and § 412 par. 2 of Act No. 141/1961 Coll., on the
Criminal Procedure Code, as amended, is rejected on the merits.
REASONING
REASONING
I.
Definition of the Matter and Summary of the Petition
1.
On 26 November 2004, the Constitutional Court received a petition of a
group of deputies of the Chamber of Deputies of the Czech Parliament and
of a group of senators of the Senate of the Czech Parliament
(hereinafter “petitioners”) proposing that the above-designated
provisions of the Criminal Procedure Code and the Criminal Code be
annulled as of the day of the publication of the Court’s judgment in the
Collection of Laws.
2. In
the introductory part, the petitioners summarized the grounds and
circumstances of the adoption of the above designated legal provisions.
Sec. 21 par. 2 of the Criminal Code was adopted Act No. 537/2004,
amending that code, and § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7
and § 412 par. 2 of the Criminal Procedure Code were adopted by Act No.
539/2004 Coll., amending that code. According to the petitioners,
these provisions (hereinafter „the contested provisions“) conflict with
Articles 1, 4 par. 2, 14 par. 4 and 39 of the Charter of Fundamental
Rights and Basic Freedoms (hereinafter „the Charter“). By means of
these amendments the „European arrest warrant“ was implemented into the
Czech legal order, in conformity with the Framework Decision of the
Council of the European Union, No. 2002/584/JHA of 13 June 2002, on the
European arrest warrant and the surrender procedures between Member
States.
3. The petitioners
drew attention to the fact that initially, when the Government of the
Czech Republic submitted the draft bills including the above-mentioned
amendments, it proposed that Art. 14 of the Charter be amended at the
same time by the inclusion of a fifth paragraph, which would have read:
„Citizens can be surrendered to Member States of the European Union for
the purpose of criminal prosecution or of serving a custodial sentence,
if such results from those of the Czech Republic’s obligations as a
European Union Member State which cannot be restricted or excluded.“
The proposed amendment to the Charter was rejected by the Chamber of
Deputies on 2 April 2004. Afterwards the mentioned amendments to the
Criminal Code and the Criminal Procedure Code were adopted by the
Chamber of Deputies, even over the veto of the President of the
Republic, who had urged their unconstitutionality.
4.
According to the contested provisions, citizens of the Czech Republic
can be surrendered to a foreign state (that is, to a European Union
Member State) for the purpose of their criminal prosecution, which
follows from the exhaustively enumerated grounds impeding the surrender
of a requested person, listed in § 411 par. 6 lit. a) to e) of the
Criminal Procedure Code. These grounds do not include as a ground for
the refusal of the surrender of a person the fact that she is a Czech
citizen. The fact that a Czech citizen can be handed over to another EU
Member State follows not only from § 21 par. 2 of the Criminal Code and
§ 403 par. 2 of the Criminal Procedure Code, but also, albeit
indirectly, from § 411 par. 6 lit. e) and par. 7 of the Criminal
Procedure Code. These provisions represent a certain exception from the
obligation to hand over a citizen to another EU Member State. However,
by means of an argument a contrario, it also follows from these
provisions that the court shall always grant a request for the surrender
of a requested Czech citizen in the case that she should be surrendered
to another Member State for the purpose of criminal prosecution.
5.
The designated provisions are thus in conflict with Art. 14 par. 4 of
the Charter, according to which no citizen may be forced to leave his
homeland. The prohibition laid down in this article of the Charter is
clear and unconditional. The right of citizens not to be forced to
leave their homeland is a fundamental right which, in the sense of Art. 1
of the Charter is inherent, inalienable, illimitable, and not subject
to repeal. Thus, not even citizens themselves can give up or waive this
right in any way. The Charter does not allow for this fundamental
right to be restricted by statute. The Explanatory Report to the Draft
Amendment to the Charter, rejected by the Chamber of Deputies of
Parliament on 2 April 2004, as was stated above, was also in agreement
with this position. The petitioners make reference to the fact that the
Government of the Czech Republic, as the subject initiating the
amendments to the Criminal Code and the Criminal Procedure Code, changed
its arguments after the proposed amendment to the Charter was
rejected. Only as of April, 2004 did the Government start to argue that
an amendment to the Charter is not necessary, as the submitted draft
amendments to both criminal codes are not in any way in conflict with
it.
6. In the petitioners’
view, forcing a citizen to leave his homeland, in the sense of Art. 14
par. 4 of the Charter, is from the context analogous in nature to
expulsion abroad in the sense of par. 5 of the same Article. In both
cases, it occurs without the consent of the affected person. Moreover,
the consequence of such an encroachment by the state is to hinder
citizens’ entry into the territory of the Czech state, which is a
further right of citizens expressly recognized in the Charter (Art. 14
par. 4, first sentence, of the Charter). In the petitioners’ view, it
is necessary also to use an “argumentum a minori ad maius”. If the
Charter forbids forcing citizens to leave their homeland, by which can
be understood at the very least indirect forcing (indirect compulsion),
all the more does it forbid the surrender of a citizen, which
constitutes forcing by direct means, that is, by means of compelled
restriction on liberty in the form of taking him into surrender custody
and the subsequent surrender to the organs of an EU Member State.
. . . .
. . . .
III.
Conditions for the Petitioners’ Standing
40.
The petition which is before the Constitutional Court was submitted by a
group of forty-seven deputies of the Chamber of Deputies of the Czech
Parliament and a group of twenty-one senators, thus it satisfies the
conditions contained in § 64 par. 1 lit. b) Act on Constitutional
Court. The petitioners have thus fulfilled the conditions to have
standing.
. . . .
. . . .
V.
The Wording of the Contested Provisions of the Criminal Code and the Criminal Procedure Code
43.
The provision of § 21 par. 2 of the Criminal Code (Act No. 140/1961
Coll., as amended) proposed to be annulled reads: „Citizens of the Czech
Republic may be surrendered to another Member State of the European
Union solely on the basis of a European arrest warrant.“
44. The provisions of the Criminal Procedure Code (Act No. 141/1961 Coll., as amended) proposed to be annulled, read as follows:
§ 403 par. 2: „The Czech Republic may surrender its own citizens to other Member States of the European Union only on the condition of reciprocity.“
§ 403 par. 2: „The Czech Republic may surrender its own citizens to other Member States of the European Union only on the condition of reciprocity.“
§ 411 par. 6 lit.
e) (regulating one of the situations in which a court shall refuse to
surrender the requested person): “this person is a citizen of the Czech
Republic or has permanent residence status in the Czech Republic, whose
surrender is requested to execute a custodial sentence, or to undergo
protective treatment or protective education, and before the competent
court he declares for the record that he refuses to submit to the
execution of this sentence or to the protective measures in the
requesting state; such a declaration cannot be withdrawn.”
§
411 par. 7: „Where a person surrendered to a requesting state for
criminal prosecution is a citizen of the Czech Republic or a person
having permanent residence status in the Czech Republic, the court shall
make the surrender conditional on that person being returned to the
Czech Republic to serve his custodial sentence of imprisonment, or to
undergo protective treatment or protective education, if such a sentence
or if protective measures are imposed upon that person and, following
the judgment in the requesting state, he does not give his consent to
serving the sentence or undergoing the protective measures in the
requesting state. The court should proceed in this manner only in cases
that the requesting state provides an assurance that the person will
turned back over to the Czech Republic to serve the sentence of
imprisonment or to undergo protective measures. If the requesting state
does not provide this assurance, then the court shall refuse to
surrender the requested person.”
45.
§ 412 par. 2 (which is substantively related to par. 1 of the same
provision, enumerating the types of conduct for which Czech courts do
not ascertain their criminality under the law of the Czech Republic):
„Conduct under paragraph 1 is understood to mean
a) participation in a criminal organization,
b) terrorism,
c) trafficking in human beings,
d) sexual exploitation of children and child pornography,
e) illicit trafficking in narcotic drugs a psychotropic substances,
f) illicit trafficking in weapons, munitions and explosives,
g) corruption,
h) fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests,
i) laundering of the proceeds of crime,
j) counterfeiting currency,
k) computer-related crimes,
l)environmental crime, including illicit trafficking in endangered animal and plant species and in their varieties,
m) aiding in unauthorized border crossing and in unauthorized residence,
n) murder, grievous bodily injury,
o) illicit trade in human organs and tissues,
p) kidnapping, restriction on personal freedom, and hostage-taking,
q) racism and xenophobia,
r) organized or armed robbery,
s) illicit trafficking in cultural goods, including antiques and works of art,
t) fraudulent conduct,
u) extortion and the exaction of protection money,
v) counterfeiting and piracy of products,
w) forgery of public documents and trafficking therein,
x) forgery of means of payment,
z) illicit trafficking in nuclear or radioactive materials,
y) illicit trafficking in hormonal substances and other growth promoters,
aa) trafficking in stolen vehicles,
bb) rape,
cc) arson,
dd) crimes over which the International Criminal Court has jurisdiction to prosecute and punish,
ee) hijacking of aircraft or sea vessels,
ff) sabotage.“
„Conduct under paragraph 1 is understood to mean
a) participation in a criminal organization,
b) terrorism,
c) trafficking in human beings,
d) sexual exploitation of children and child pornography,
e) illicit trafficking in narcotic drugs a psychotropic substances,
f) illicit trafficking in weapons, munitions and explosives,
g) corruption,
h) fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities’ financial interests,
i) laundering of the proceeds of crime,
j) counterfeiting currency,
k) computer-related crimes,
l)environmental crime, including illicit trafficking in endangered animal and plant species and in their varieties,
m) aiding in unauthorized border crossing and in unauthorized residence,
n) murder, grievous bodily injury,
o) illicit trade in human organs and tissues,
p) kidnapping, restriction on personal freedom, and hostage-taking,
q) racism and xenophobia,
r) organized or armed robbery,
s) illicit trafficking in cultural goods, including antiques and works of art,
t) fraudulent conduct,
u) extortion and the exaction of protection money,
v) counterfeiting and piracy of products,
w) forgery of public documents and trafficking therein,
x) forgery of means of payment,
z) illicit trafficking in nuclear or radioactive materials,
y) illicit trafficking in hormonal substances and other growth promoters,
aa) trafficking in stolen vehicles,
bb) rape,
cc) arson,
dd) crimes over which the International Criminal Court has jurisdiction to prosecute and punish,
ee) hijacking of aircraft or sea vessels,
ff) sabotage.“
VI.
Classical Extradition and the Surrender of Persons among the Member States of the EU on the Basis of the European arrest warrant
46.
According to criminal law doctrine, extradition is understood as the
rendition/turning over of a person by a state on whose territory that
person is found to another state at the latter’s request for the purpose
of criminal prosecution or the carrying out of punishment. The
objective of extradition is to prevent the perpetrator of a criminal
offense from escaping criminal prosecution or the carrying out of
punishment by fleeing to another state. The duty of the state of
residence to render/extradite the perpetrator generally arises from a
treaty (extradition treaty, treaty on legal assistance in criminal
matters, etc.). Extradition itself is based on a large number of
principles, among which are included, for example, the principles of
reciprocity, of dual criminality, of the impermissibility for a state to
extradite its own citizens, of the impermissibility of extraditing in
respect of a designated category of criminal offenses, and of
specialty. Criminal law theory draws a distinction between substantive
and formal extradition law. Substantive extradition law refers to the
totality of conditions under which the duty to extradite a perpetrator
arises under international law. Formal extradition law then governs the
special proceeding before bodies of the requested state, which results
in a decision either to surrender or not to surrender the perpetrator,
thus the response to the requesting state’s request (Musil J.,
Kratochvíl V., Šámal P., Kurz trestního práva – Trestní právo procesní
[A Course of Criminal Law – Criminal Procedural Law], C.H. Beck, 2003).
47.
In Czech law the rendition (extradition) of persons to a foreign state
is governed by § 391 and following of the Criminal Procedure Code. The
proceeding as a whole is broken down into three phases, which are, the
preliminary investigation (§ 394 and foll.), the judicial decision (§
397, § 398), and the authorization and carrying out of the extradition
(§ 399). In the preliminary investigation stage, the state attorney
ascertains whether the conditions for extradition, according to the
substantive extradition law, are met. Following the preliminary
investigation, the competent court (which is generally the regional
court) decides as to whether extradition is permissible. The final
phase of the whole process is the decision of the Minister of Justice
authorizing the extradition of the person to the foreign state. Thus,
the Minister may do so solely in the case that the competent court (the
regional court or Supreme Court) decides that the extradition is
permissible. That does not mean, however, that in the case the court
decides in favor of extradition that the Minister must authorize the
person’s extradition. The cases in which the Minister may decide not to
authorize extradition are enumerated in § 399 par. 2 of the Criminal
Procedure Code. In making his decision, the Minister proceeds in
accordance with the canons of diplomatic relations between states, or in
the form of inter-ministerial relations, if the international agreement
so permits.
48. While the
classical extradition process is relatively drawn-out, as is
demonstrated in the Czech case (in other states this procedure is
similar) and takes place with the participation of the Minister of
Justice, as the representative of the executive, the surrender process
pursuant to Framework Decision of the European Council from 13 June
2002, on the European arrest warrant and the Surrender Process between
Member States, (2002/584/JVV), hereinafter “European arrest warrant”,
markedly simplified and sped up the entire process. Thus, in the
relations among the Member States, the European arrest warrant has
replaced classical extradition and represents a qualitatively entirely
different process. It is thus essential to distinguish between
classical extradition and the and surrender of persons among the Member
States of the European Union on the basis of the European arrest
warrant, which for that matter the Czech Criminal Procedure Code does as
well. The entire process of transfer or surrender is entrusted to the
competent courts, which are bound only by law, so that the intervention
of the executive in the final phase, as was the case with classical
extradition, drops out.
49.
According to the Preamble of the Framework Decision, the basic aim of
the European arrest warrant is to abolish, in the framework of the
European Union, the formal extradition procedure in respect of persons
who are fleeing justice after having been finally sentenced and to speed
up the extradition procedures in respect of persons suspected of having
committed a criminal offense. The objective set for the EU, that is,
becoming an area of freedom, security and justice leads to abolishing
classical extradition between individual Member States and replacing it
by a system of surrender between individual judicial authorities. The
traditional formal relations of cooperation between the central
authorities, or through diplomacy, which have prevailed up till now,
should be replaced by a system of free movement of judicial decisions in
criminal matters. Thus, persons suspected of having committed a
criminal offense will no longer be turned over on the basis of an
individual act of the executing state, rather directly on the basis of a
court decision in the requesting EU Member State, which thus has direct
effect in the executing state. The activities of central authorities
are replaced by cooperation between individual courts, and the role of
central authorities is thus limited to practical and administrative
assistance.
50. The
Framework Decision emphasizes that the mechanism for the European arrest
warrant is based on a high level of confidence between the Member
States of the EU, so that the implementation of a warrant can be
suspended only in the event of serious and persistent breach by certain
of the Member States of the principles set out in Art. 6 par. 1 of the
Treaty on the European Union, if such breach is formally determined by
the Council pursuant to Art. 7 of the Treaty on the European Union.
51.
A European arrest warrant is thus an individual legal act, issued by a
court of an EU Member State, seeking the arrest and surrender of the
requested person from another Member State. A European arrest warrant
does not apply in the case of minor criminal activities. It can only be
issued due to suspicion of the commission of a criminal offense for
which can be imposed a punishment of imprisonment with a maximum
possible sentence of at least 12 months, or for the condemnation to
imprisonment (or imposition of protective measures) of at least 4 months
in duration (cf. Art. 2 par. 1 of the Framework Decision and § 404 par.
2 of the Criminal Procedure Code). In the case of the thirty-two
expressly enumerated criminal offenses, if the punishment of
imprisonment with a maximum possible sentence of at least three years
can be imposed for them (in the requesting EU Member State), then the
dual criminality principle is dispensed with. In such a case it is
sufficient if the deed for which the surrender is requested is criminal
under the law of the requesting state (for an analysis of the institute
of the European arrest warrant, cf. for ex. Polák, P., Evropský zatýkací
rozkaz [The European Arrest Warrant], Právní fórum [Legal Forum], No.
2/2004, p. 76 and foll.).
VII.
The Substantive Conformity of the Contested Provisionswith the Constitutional Order
52.
The Constitutional Court is the judicial body for the protection of
constitutionalism, which reviews the constitutionality of all acts of
Czech Republic public authorities. Thus, its jurisdiction extends, in
principle, also to all Czech domestic norms which, pursuant to Art. 10a
and Art. 1 par. 2 of the Constitution carry out the Czech Republic’s
obligations towards the EU. The Czech Republic’s accession to the EU on
the basis of Art. 10a resulted in Constitutional Court’s jurisdiction
being restricted to a certain extent, just as was the case with other
state bodies. In view of the ECJ doctrine on the supremacy of Community
law, the Constitutional Court can exercise its jurisdiction in relation
to Community law norms only under certain circumstances. According to
the ECJ, in areas where Community law applies exclusively, it is
supreme, so that it cannot be contested by means of national law
referential criteria, not even on the constitutional level. According
to this doctrine the Constitutional Court would have no competence to
decide on the constitutionality of a European Law norm, not even in the
case that they are contained in legal enactments of the Czech Republic.
Its competence to adjudge the constitutionality of Czech norms is,
thus, restricted in the same respect.
53.
In its judgment no. Pl US 50/04 of 8 March 2006, the Constitutional
Court refused to recognize the ECJ doctrine insofar as it claims
absolute primacy of EC law. It stated that the delegation of a part of
the powers of national organs upon organs of the EU may persist only so
long as these powers are exercised by organs of the EU in a manner that
is compatible with the preservation of the foundations of state
sovereignty of the Czech Republic, and in a manner which does not
threaten the very essence of the substantive law-based state.
Understandably that, unless such an exceptional and highly unlikely
eventuality comes to pass, the Constitutional Court, guided by the
above-mentioned ECJ doctrine, will not review individual norms of
Community law for their consistency with the Czech constitutional
order. In this matter, however, the petitioners asserted that, by
adopting the European arrest warrant, just such a conflict with the
essential attributes of a democratic law-based state has come about.
54.
However, also in its judgment Pl US 50/04 the Constitutional Court
adumbrated a further exception to the position that it does not have any
competence whatsoever to review the constitutionality of Czech legal
enactments adopted to transpose or implement European law. In
situations where the Member States implement European law norms and that
implementation leaves Member States a certain area of discretion as to
the choice of means to accomplish the aim laid down in the EC norm, then
the Member State may review the resulting implementing norm in terms of
conformity with its own constitution. Member States enjoy freedom at
least to the extent of ensuring that, from among the choice of means
available to them under Community law, they select such means as are
consistent with their respective constitutions and avoid those in
conflict therewith. As a corollary to this doctrine announced in Pl US
50/04, where the delegation of authority leaves the member states no
room for discretion as to the choice of means, that is, where the Czech
enactment reflects a mandatory norm of EC law, the doctrine of primacy
of Community law in principle does not permit the Constitutional Court
to review such Czech norm in terms of its conformity with the
constitutional order of the Czech Republic, naturally with the exception
stated in paragraph 53.
55.
Although the contested provisions are of a mandatory nature, the
situation presented in this case is considerably different from that in
the Court’s judgment no. Pl US 50/04 in that it involves not Community
law in the classic sense, that is under the First Pillar, rather Union
law under the Third Pillar, in the form of a framework agreement. The
Constitutional Court concurs with the petitioner that the framework
agreement which formed the basis for the adoption of the contested norms
does not entail direct effect. The purpose of a framework decision is
the approximation of the laws and regulations of the Member States.
Framework Decisions are binding upon the Member States as to the result
to be achieved but shall leave to the national authorities the choice of
form and methods. Unless they are implemented into national law,
Framework decisions cannot be invoked against natural or legal persons.
Framework Decisions must be implemented by national legal acts, which
occurred in this case by the adoption of the provisions, portions of
which are proposed to be annulled.
56.
Despite the fact that the contested provisions were adopted for the
purpose of transposing a framework agreement, which leaves no room for
discretion as to the choice of means, it might still be the case that
the this is an enactment which the Constitutional Court may review for
its consistency with the Czech constitutional order. Whether it may
proceed in such a manner depends on the actual nature and status of
norms adopted under the Third Pillar, such as Framework Decisions.
57.
The questions concerning the nature and status of such Union acts stems
from several differences between them and traditional Community acts.
For ex., Framework Decisions are adopted pursuant to the legislative
process in Title VI. of the Treaty on the European Union within the
context of the „Third Pillar“, which means that, on the initiative
either of the Commission or of a Member State, it is adopted by the
Council acting unanimously, that is, with the assent of all Member
States, following consultation with the European Parliament. Direct
effect of such Framework Decisions is excluded by virtue of Article 34
par. 2 lit. b) of the EU Treaty. In this respect, among others, it is
distinguished from primary Community law (esp. of the founding treaties)
and classical secondary Community law, adopted by EU organs pursuant to
Art. 251-252 of the Treaty on the European Community. In addition, the
obligation to implement a Framework Decision is not enforceable by the
European Court of Justice, as Title VI of the EU Treaty does not include
an action for infringement of the Treaty (see. Art. 226 of the EC
Treaty). The Application of the European arrest warrant in the Member
States is subject to the ECJ’s jurisdiction, in the context of a
preliminary reference procedure under the conditions of Art. 35 par. 1
of the EU Treaty, in respect of issues of the validity and
interpretation of Framework Decisions (See Zemánek J.: Evropskoprávní
meze přezkumu ústavnosti transpozice rámcového rozhodnutí o
eurozatykači, Právní rozhledy č. 3/2006 [Zemánek J.: European Law Limits
on the Review of Constitutionality of the Transposition of the
Framework Decision on the European arrest warrant, Právní rozhledy
[Legal Horizons], No. 3/2006].
58.
The consequences of these differences for the current nature and status
of such norms in relation to Member State legal orders, has not as yet
been definitively and clearly settled in the case-law of the ECJ.
Although Art. 34 of the EU Treaty explicitly states that framework
decisions do not have direct effect, in its decision of the matter of
Maria Pupino, the ECJ held that the EU Treaty contains a principle of
loyal cooperation analogous to that laid down in Art. 10 of the EC
Treaty. In consequence of that principle framework decisions have
indirect effect (see Case C-105/03 Maria Pupino of 16 June 2005, paras.
42 -43, in Czechon the ECJ’s internet site, www.curia.eu.int.).
This means that national courts are under an obligation, „[w]hen
applying national law . . . [to] do so as far as possible in the light
of the wording and purpose of the framework decision in order to attain
the result which it pursues and thus comply with Article 34(2)(b) EU”
(Id, par. 43). The ECJ left open the issue of what obligation national
courts have in a situation where they cannot interpret their national
law in conformity with the Framework Decision. In other words, the ECJ
did not touch upon the problem of primacy, that is, whether, as is the
case in Community law, framework decisions take precedence over national
law and whether, in consequence thereof, national courts are obliged to
set aside national law that conflict with a framework decision. In
their written observations in that case Italy, Sweden, and the UK
insisted “on the inter-governmental nature of cooperation between Member
States in the context of Title VI of the Treaty on European Union”
(Id., par. 26). In her Opinion on the Maria Pupino Case, the Advocate
General emphasized that, while “[t]he lesser degree of integration under
the Treaty on European Union is apparent in the definition of a
framework decision, which excludes direct effect . . . . [t]he term
policies indicates that . . . the Treaty on European Union includes not
only inter governmental cooperation, but also joint exercise of
sovereignty by the Union,” (the Opinion of Advocate General J. Kokott in
the M. Pupino matter, paras. 31-32, delivered on 11 November 2004).
See also Zemánek J.: Eurokonformní výklad Rámcového rozhodnutí –
Povinnost nebo soudcovský aktivismus? [The Euro-Conforming
Interpretation of a Framework Decision – Duty or Judicial Activism?],
Jurisprudence No. 8/2005, p. 37 and foll.].
59.
Thus the ECJ itself in no way pronounced upon the issue whether the
supremacy principle applies as well to framework decisions. In the M.
Pupino case, neither did the ECJ even touch upon the delicate issues of
whether the principle of supremacy that it has expounded in relation to
Community law applies in the same way to Union law, whether framework
agreements are simply intergovernmental in nature, or whether some other
interpretation is possible. It can, in consequence, be stated that ECJ
doctrine concerning the exact nature of Union law acts such as
framework agreements is still evolving.
60.
Such a situation presents perhaps ideal circumstances for referring the
mentioned issues to the ECJ for a preliminary ruling. However, in view
of the fact that the Belgian Cour d’arbitrage has already referred to
the ECJ the issue of the framework decision’s validity, there is no
point in the Constitutional Court of the Czech Republic doing so as
well. To await the ECJ’s decision would not be entirely appropriate, as
in the interim the contested provisions will remain in force, and, in
accordance therewith, persons are subject to being transferred abroad
pursuant to a European arrest warrant. In such a situation the
Constitutional Court considers it as imperative to determine whether or
not such persons’ fundamental rights are threatened. In an effort to
deal with this dilemma, the Constitutional Court resolved to assess
whether the provisions implementing the Framework Decision could be
interpreted in a manner consistent with the Czech constitutional order.
As it has determined that such an interpretation is possible, there is
no need to await clarification by the ECJ of the above-indicated issues
of Union law.
VIII.
Assessment of the Contested Provisions’ Conformity with Art. 14 par. 4 of the Charter
61.
A constitutional principle can be derived from Article 1 par. 2 of the
Constitution, in conjunction with the principle of cooperation laid down
in Art. 10 of the EC Treaty, according to which domestic legal
enactments, including the constitution, should be interpreted in
conformity with the principles of European integration and the
cooperation between Community and Member State organs. If the
Constitution, of which the Charter of Fundamental Rights and Basic
Freedoms forms a part, can be interpreted in several manners, only
certain of which lead to the attainment of an obligation which the Czech
Republic undertook in connection with its membership in the EU, then an
interpretation must be selected with supports the carrying out of that
obligation, and not an interpretation which precludes its. These
conclusions apply as well to the interpretation of Art. 14 par. 4 of the
Charter.
62. The
petitioners’ assertion, that the adoption into domestic law of the
European arrest warrant would disrupt the permanent relationship between
citizen and state, is not tenable. A citizen surrendered to an EU
Member State for criminal prosecution remains, even for the duration of
this proceeding, under the Czech state’s protection. The European
arrest warrant merely permits a citizen to be surrendered, for a limited
time, for prosecution in an EU Member State for a specifically defined
act, and after the proceeding is completed there is nothing preventing
her from returning again to Czech territory. In the case of a surrender
pursuant to a European arrest warrant, a citizen has the right to
defend herself against measures by criminal justice bodies, by means of
remedial measures, including even a possible constitutional complaint.
VIII/a
63.
The new provisions of the Criminal Procedure Code, which allow for the
surrender of Czech citizens to another EU Member State for criminal
prosecution, without question mark a break with the previous statutory
provisions, which did not allow for (and even now do not allow for – see
§ 393 par. 1 lit. a) of the Criminal Procedure Code) the extradition of
citizens to foreign states for criminal prosecution being conducted
there. The Constitutional Court is of the view that one cannot deduce
the unconstitutionality of the contested provisions solely from the fact
that the Government of the Czech Republic, as the body which took
legislative initiative in respect of the amendments to both criminal
codes, initially considered it appropriate for the Charter of
Fundamental Rights and Basic Freedoms to be amended and that only after
its proposed amendment to the Charter was rejected in the Chamber of
Deputies did it begin to argue that it was not necessary to amend the
Charter.
64. The first
sentence of Art. 14 par. 4 of the Charter, which provides that every
citizen has the right to freely enter the Republic, as well as its
second sentence, which provides that no citizen may be forced to leave
his homeland, make entirely clear that the Charter precludes the
exclusion of a Czech citizen from the community of citizens of the Czech
Republic, a democratic state to which he is bound by the ties of state
citizenship. The text of Art. 14 par. 4 does not itself, without
further arguments, unambiguously resolve whether and to what extent it
precludes the surrender of a citizen, for a limited time, to an EU
Member State for a criminal proceeding being conducted there if,
following the conclusion of such proceeding, he has the right to return
to his homeland. Although a linguistic interpretation of the phrase,
“forced to leave one’s homeland” might include even such a relatively
short surrender of a citizen to a foreign state for a criminal
proceeding.
65. The fact
that the text of Art. 14 par. 4 of the Charter does not of itself
respond to this question (whether Czech citizens can be surrendered to
an EU Member State for the purpose of criminal proceedings being
conducted there), can be also illustrated by the example of the Slovak
Republic, to which the petitioners in any case made reference. Due to
the fact that it is based on the former Federal Charter of Fundamental
Rights and Basic Freedoms, the Slovak legal provisions, in their
essence, come closest to the Czech. The Constitution of the Slovak
Republic expressly declares, in its Art. 23 par. 4, the prohibition on
extraditing its own citizens. The amendment to its Constitution, No.
90/2001 of Collection of Laws omitted the concluding words “nor
extradite to another state”. Following its entry into force, Art. 23
par. 4 of the Slovak Constitution read as follows: “Every citizen has
the right to unrestricted entry into the Slovak Republic. Citizens
cannot be forced to leave their homeland, and they cannot be expelled.”
The Slovak text thus consistently distinguished the terms, “forced to
leave their homeland” and “expulsion” from “extradition” of citizens to
another state. In comparison with the Slovak text, Art. 14 par. 4 of
the Czech Charter is expressis verbis narrower and, in all respects,
speaks merely of the prohibition on forcing citizens to leave their
homeland.
66. The
prohibition on “forcing one to leave his homeland” can be interpreted
either broadly or narrowly. In agreement with the petitioner, the
Constitutional Court concludes that, in order to resolve the issue of
the meaning of Art. 14 par. 4 of the Charter, its objective purport must
be sought. In assessing of the meaning of this provision of the
Charter, it is appropriate above all to take into account the historical
impetus for its adoption. The second sentence of Article 14 par. 4
first appeared in Art. 15 par. 2 of the draft Charter, in the 7 January
1991 report of the Constitutional Law Committee of the Assembly of the
People and the Assembly of the Nations (see print 392,
www.psp.cz). The Constitutional Court also agrees both with the
petitioner and with the parties to this proceeding, that the experience
with the crimes of the Communist regime played a critical role in the
constitution of the Charter. It played this role even in the drafting
of the current version of Art. 14 par. 4 of the Charter, at the end of
1990 and beginning of 1991, that is, experience that is still quite
recent. This was especially the case in connection with the
“Demolition” operation, in which the Communist regime forced troublesome
persons to leave the Republic (for analogous examples, cf. Kavěna M.,
Základní právo občana nebýt nucen k opuštění své vlasti, Evropský
zatýkací rozkaz a mezinárodní trestní soud [The Fundamental Right of
Citizens of the Czech Republic not to Be Forced to Leave their Homeland,
the European Arrest Warrant, and the International Criminal Court],
EMP, No. 5/2004, p. 42 and foll.,, or Kysela J., Rok 2004 ve vývoji
vybraných institutů českého ústavního práva – 1. část [The Evolution of
Selected Institutes of Czech Constitutional Law in 2004 – 1st Part],
Právní rozhledy [Legal Perspectives], No. 12/2005, pp. 425-26). A
historical interpretation of Art. 14 par. 4 of the Charter thus attests
to the fact that it was never concerned with extradition.
67.
The intention of the constitutional framers is not alone a decisive
argument, where it is based on historical experience, particularly in
the circumstance where historical memory fades and cannot be passed on
to future generations, because they are bound up with the experience of
their own times. For this reason, the Constitutional Court sought the
objective meaning of Art. 14 par. 4, second sentence, of the Charter,
which must be gauged against contemporary life and institutions at the
start of the 21st century. In seeking the objective significance of the
indicated Charter provision, the Constitutional Court also took into
account the historical evolution of extradition as a legal institution.
As a general matter, the extradition of perpetrators of ordinary
criminality did not exist until the 19th century and, in view of the low
mobility of Europe’s inhabitants in those times, as well as the very
limited degree of cooperation among the then European states, did not
even constitute much of a weighty issue (cf. Čepelka Č. - Šturma P.,
Mezinárodní právo veřejné, Praha 2003, str. 353 [Public International
Law, Prague 2003, p. 353].
68.
The currently existing rules for extradition in the majority of
European states trace their origin to the model formed in the 19th
century. On the one hand, that model did not allow for judicial
decisions in criminal matters, including arrest warrants, to operate
directly in other states (cf. Musil J., Kratochvíl V., Šámal P., Kurz
trestního práva, str. 962 [A Course of Criminal Law – Criminal
Procedural Law], C.H. Beck, 2003, p. 962); on the other hand, the state
arrogated to itself total control and full criminal jurisdiction over
its own citizens (in the original conception of subjects), which no
third state whatsoever was permitted to exercise. Initially, the
traditional canon that a state does not extradite its own citizens for
criminal proceedings abroad, thus, did not by a long shot reflect a
citizen’s fundamental right not to be extradited, rather was the
manifestation of a state’s sovereign control over its own citizens in
the conception then current. The canon that a state did not extradite
its own citizens for criminal prosecution abroad had at that time a
strong justification in the widely prevailing distrust among the
competing European powers.
69.
Only later, after the tragic events which occurred, primarily in
Europe, in the first half of the 20th century, did the canon against the
extradition of one’s own citizens transform, from state-claimed
responsibility for their own citizens, into the principle of the
protection of one’s own citizens from extradition abroad. The practice
remained the same; only the justification therefore changed. On the
basis of their own historical experiences, certain states even went so
far as to incorporate this prohibition on extradition into their
constitutions (for ex., as regards neighboring states, Art. 55 par. 1 of
the Constitution of the Polish Republic or Art. 16 par. 2 of the Basic
Law of the Federal Republic of Germany). The prohibition on extradition
thus gradually shifted into the area of fundamental rights, which is
quite understandable in circumstances where the world still contains a
large number of non-democratic regimes which do not guarantee the right
to fair process measuring up to one’s own standards, for ex. those of EU
Member States.
70. It
cannot be overlooked that the current period is connected with an
extraordinarily high mobility of people, ever-increasing international
cooperation and growing confidence among the democratic states of the
EU, which places new demands on the arrangements for extradition within
the framework of the Union. A qualitatively new situation exists in the
EU. Citizens of the Member States enjoy, in addition to the rights
arising from citizenship in their own state, also rights arising from EU
citizenship, which guarantees, among other things, free movement within
the province of the entire Union. The EU is an area of freedom,
security and justice, which facilitates the free movement of citizens
while guaranteeing their safety and security (see the Preamble to the
Treaty on the EU). The European arrest warrant proceeds from this
reality and renders more effective the cooperation of organs taking part
in criminal proceedings. Cooperation between central state authorities
of Member States has been replaced by the direct cooperation of bodies
of the justice system and makes an exception to the principle
prohibiting the extradition of one’s own citizens for criminal
proceedings abroad.
71. If
Czech citizens enjoy certain advantages, connected with the status of EU
citizenship, then it is naturally in this context that a certain degree
of responsibility must be accepted along with these advantages. The
investigation and suppression of criminality which takes place in the
European area, cannot be successfully accomplished within the framework
of individual Member States, but requires extensive international
cooperation. The results of this cooperation is the replacement of the
previous procedures for the extradition of persons suspected of criminal
acts by new and more effective mechanisms, reflecting the life and
institutions of the 21st century. The contemporary standard for the
protection of fundamental rights within the European Union does not, in
the Constitutional Court’s view, give rist to any presumption that this
standard for the protection of fundamental rights, through invoking the
principles arising therefrom, is of a lesser quality than the level of
protection provided in the Czech Republic.
72.
These facts cannot be disregarded when determining the objective
meaning of Art. 14 par. 4 of the Charter. It is not in harmony with the
principle of the objective teleological interpretation, reflecting the
contemporary reality of the EU (i.e., that it is founded on the high
mobility of citizens in the framework of the entire Union area), for
Art. 14 par. 4 to be interpreted such that it does not even allow for
the surrender of a citizen, for a limited time, to another Member State
for a criminal proceeding concerning a criminal act committed by this
citizen in that state, as long as it is guaranteed that, following the
conclusion of the criminal proceeding the citizen will, at his own
request, be returned to the Czech Republic to serve any sentence imposed
(srov. § 411 par. 7 of the Criminal Procedure Code). Thus, the
surrender of a citizens for a limited time for criminal proceedings
being held in another EU Member State, conditioned upon their subsequent
return to their homeland, does not and cannot constitute forcing them
to leave their homeland in the sense of Art. 14 par. 4 of the Charter.
The Court can equally draw attention to the rules providing that Czech
citizens or persons with permanent residence status in the Czech
Republic may be sent to another Member State of the Union to serve a
sentence or for protective treatment or protective measures, but only if
they consent thereto (§ 411 par. 6 of the Criminal Procedure Code). It
follows therefrom that unless they give their consent, they will never
be sent abroad to serve a sentence of imprisonment.
VIII./b
73.
The petitioners made reference to the constitutions of Estonia (Art. 36
par. 2), Lithuania (Art. 13 par. 2), Poland (Art. 52 par. 4), Hungary
(Art. 69 par. 1) Slovenia (Art. 48), the FRG (Art. 16 par. 2), Finland
(Art. 9 par. 3), France (Art. 88-2 point 3), Italy (Art. 26), Portugal
(Art. 33 par. 3), or Spain (Art. 13 par. 3). The constitutions of these
countries either enshrine the right of citizens not to be extradited,
or lay down an exception for international agreements or particularly
only in relation to the EU. Since the constitution of a large number of
countries was amended in connection with the European arrest warrant
(the petition mentions the FRG and France), the petitioners deduce
therefrom the existence of a general, widely-shared constitutional
principle prohibiting a state from extraditing its own citizens.
According to them, the conclusion follows from this that the
implementation of the European arrest warrant in the Czech Republic
cannot be effected otherwise than subsequent to a constitutional
amendment.
74. The
Constitutional Court took into account the fact that in a number of
countries the constitution was actually amended in connection with the
implementation of the European arrest warrant (unless stated otherwise,
the following data is based on a report from the XXI. Congress of FIDE,
Dublin, June 2004, accessible at www.fide2004.org ). Apart from
Germany and France, referred to by the petitioners, also Slovenia
(Constitutional Act No. 24 – 899/2003) and Latvia, among others, can be
mentioned.
75. The
petitioners did not, however, cite the host of other EU Member States in
which the prohibition against extraditing one’s own citizens does not
at all qualify as an issue of constitutional principle and has not even
been introduced into sub-constitutional law. For example, in Greece the
prohibition against extraditing one’s own citizens has never been
considered a constitutional principle and was always dealt with by means
of a statute. A similar situation prevails in Denmark, where a mere
statutory revision was all that was required to change the existing
law. In the situation where the national constitution does not govern
the issue of extradition or surrender to foreign states of perpetrators,
it was not necessary to make any changes to the constitution, as was
the case in the Netherlands (in conformity with the decision of the
Dutch Council of State), Belgium, Luxembourg, and Sweden (see the
above-cited Report of the XXI Congress of FIDE). Due to its unique
constitutional situation, the adoption of acts governing the European
arrest warrant presents no substantial problem for Great Britain, as UK
law never contained a prohibition on the extradition of its own citizens
(cf. Čepelka, Č., Šturma, P., Mezinárodní právo veřejné [Public
International Law], Prague 2003, p. 354). On the contrary, British
lawyers have traditionally preferred this approach to that of the
European continental countries (cf. Biron, H.Ch. - Chalmers, K. E., The
Law and Practice of Extradition, London 1903, p. 13). The British
model, which always permitted the extradition of its own citizens, has
generally been followed by the Irish Republic and Malta (cf. Stanbrook,
I. - Stanbrook, C., Extradition: Law and Practice, 2nd ed., Oxford 2000,
p. 313, p. 385, p. 427).
76.
The petitioners cited the fact that, by an Act of 18 March 2004 (Dz.U.
2004, No. 69, pol. 626), Poland amended its Criminal Code, Criminal
Procedure Code, and its Code of Misdemeanors. Art. 55 par. 1 of the
Constitution (the petitioners incorrectly cite it as Art. 52 par. 4) was
in no way formally modified by this amendment. On 27 April 2005, the
Polish Constitutional Tribunal annulled, by its decision P 1/05, certain
provisions designated as amendments to the criminal enactments, due to
their conflict with Art. 55 par. 1 of the Constitution, according to
which the extradition of Polish citizens is prohibited (“The extradition
of a Polish citizen shall be forbidden.”) and according to its second
paragraph the extradition of persons suspected of non-violent political
crimes is prohibited. The Polish Constitutional Tribunal stated that
“surrender” in the sense of the European arrest warrant must a fortiori
be considered as coming within the term, “extradition”, in the sense of
Art. 55 of the Constitution.
77.
In this connection, the Czech Constitutional Court refers to the fact
that, in contrast to the wording of Art. 14 par. 4 of the Czech Charter,
the formulation of Art. 55 par. 1 of the Polish Constitution excludes
any form whatsoever of extradition of Polish citizens (inclusive also of
a surrender pursuant to the European arrest warrant). In comparison
with the Czech constitutional order, the Polish Constitution leaves no
room at all for it to be interpreted in harmony with the state’s
obligations towards the EU.
78.
In view of this fact, the Court cannot assent to the petitioners’ view
that a general constitutional principle prohibiting the extradition of
one’s own citizens to a foreign state can be deduced from a comparative
perspective and that, as a result, it is necessary to seek a
constitutional amendment before the European arrest warrant can be
implemented. In a number of EU Member States the constitution was not
amended. A constitutional amendment would be indispensable only in the
case that a statutory revision, required for the implementation of the
European arrest warrant, would be in conflict with the national
constitution, that is, in a situation where the national constitution
directly forbids the extradition or surrender of citizens to a foreign
state for the purpose of criminal prosecution.
VIII/c
79.
The general principle, according to which the Czech Republic shall
observe its obligations resulting from international law, is enshrined
in Art. 1 par. 2 of the Constitution of the Czech Republic. In
consequence, since the Constitution itself proclaims the value of being
open towards international law (cf. judgment No. Pl. US 31/03,
Collection of Judgments and Rulings of the Constitutional Court, Vol.
32, p. 143; published in the Collection of Laws as No. 105/2004 Coll.),
in principle a meaning should be attributed to the Constitution which is
conformable to international law.
80.
As of 1 May 2004, Art. 1 par. 2 of the Constitution of the Czech
Republic took on new significance in relation to the observance of
duties which arise for the Czech Republic from its membership in the
EU. As the Czech Republic has already emphasized in its case-law,
European law is founded on fundamental values, common to all EU Member
States. The Constitutional Court thus declared the Czech Republic’s
allegiance to the European legal culture and to its constitutional
traditions. The Constitutional Court also interprets constitutional
acts, above all the Charter of Fundamental Rights and Basic Freedoms, in
light of the general principle of law existing in all Member States of
the Union, (judgment No. Pl. US 5/01, Collection of Judgments and
Rulings of the Constitutional Court, Vol. 24, p. 79; published in the
Collection of Laws as No. 410/2001 Coll.).
81.
From Article 1 par. 2 of the Constitution, in conjunction with the
principle of cooperation enshrined in Art. 10 of the EC Treaty, follows a
constitutional principle according to which national legal enactments,
including the Constitution, should whenever possible be interpreted in
conformity with the process of European integration and the cooperation
between European and Member State organs (cf. the analogous decision of
the Polish Constitutional Tribunal K 15/04 of 31 May 2004, OTK ZU ser.
A., Part 5, No. 47, pp. 655 - 668 and, in particular as far as concerns
acts under the III. Pillar, the ECJ decision of 16 June 2005, in which
the Court held that the principle of conforming interpretation applies
also to framework decisions adopted within the confines of Charter of
the Treaty on European Union, see Case C-105/03 Maria Pupino, par. 43.)
82.
The constitutional principle that national law shall be interpreted in
conformity with the Czech Republic’s obligations resulting from its
membership in the European Union is limited by the possible significance
of the constitutional text. Article 1 par. 2 of the Constitution is
thus not a provision capable of arbitrarily modifying the significance
of any other express constitutional provision whatsoever. If the
national methodology for the interpretation of constitutional law does
not enable a relevant norm to be interpreted in harmony with European
Law, it is solely within the Constituent Assembly’s prerogative to amend
the Constitution. Naturally, the Constituent Assembly may exercise
this authority only under the condition that it preserves the essential
attributes of a democratic law-based state (Art. 9 par. 2 of the
Constitution), which are not within its power to change, and not even a
treaty pursuant to Art. 10a of the Constitution can assign the authority
to modify these attributes (cf. Holländer, P., Materiální ohnisko
ústavy a diskrece ústavodárce [The Substantive Heart of the Constitution
and the Constituent Assembly’s Discretion], Právník [The Lawyer], No.
4/2005)
83. It follows
therefrom that, to the extent that there are several interpretations of
the Constitution that are possible in accordance with the national
interpretive methodology, although only certain of them would result in
the Czech Republic fulfilling the obligations it undertook by its
membership in the European Union, that interpretation must be selected
which supports the fulfillment of those obligations, not one which would
hinder their fulfillment. The principle in Art. 1 par. 2 of the
Constitution will at the same time be upheld thereby. These conclusions
apply as well to the interpretation of Art. 14 par. 4 of the Charter.
Since the Constitutional Court interpreted the meaning of Art. 14 par. 4
of the Charter according to the domestic methodology for the
interpretation of the Constitution, it was not even necessary carry out a
weighing of the values and principles of European law and national
constitutional law which are relevant for consideration.
VIII./d
84.
The Constitutional Court’s judgment, published in the Collection of
Laws as No. 207/1994 Coll., to which the petitioners’ refer, define
citizenship “as a relationship between an individual and a state which
is not limited in duration and not restricted to the state's territory,
which, as a rule, is not revocable against the will of the individual,
and on the basis of which is founded an individual's capacity for
reciprocal rights and duties, consisting primarily of the right of the
individual to the state's protection both within its territory and
without, the right of the individual to reside in the territory, and the
right to take part in the administration of public affairs.”
(Collection of Judgments and Rulings of the Constitutional Court, Vol.
2, p. 7).
85. The right of
citizens to protection by the state is manifested in the fact that it
would represent a breach, among others, of Art. 14 par. 4, Art. 36 par. 1
of the Charter and Art. 6 par. 1 of the Convention, for a citizen were
to be surrendered for criminal prosecution to a state where the
standards of criminal proceedings do not meet the requirements for
criminal proceedings enshrined in the Czech Constitutional order, for
ex., in the situation where the citizen’s right to fair process (Art. 36
par. 1 of the Charter) would be genuinely threatened, or alternatively
where the citizen would be subjected to torture or other inhuman or
degrading treatment or punishment (Art. 3 of the Convention, Art. 7 par.
2 of the Charter). However, such is not the case for the European
arrest warrant.
86. Already
in 2003, the ECJ declared that “the Member States have mutual trust in
their criminal justice systems and that each of them recognizes the
criminal law in force in the other Member States even when the outcome
would be different if its own national law were applied” (Cases C-187/01
and C-385/01, the criminal proceeding against Hüseyin Gözütok
(C-187/01) and Klaus Brügge (C-385/01), [2003] ECR I-1345, par. 33). It
is always necessary to remember the fact that all EU Member States are
also signatories of the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Accordingly a citizen cannot not be
significantly affected in his rights due to the fact that his criminal
matter will be decided in another Member State of the Union, as each EU
Member State is bound by a standard of human rights protection, which is
equivalent to the standard required in the Czech Republic while all
Member States’ legal orders rest on the values to which our state
declared its allegiance only after 1989. The Czech Charter of
Fundamental Rights and Basic Freedoms also draws upon the European
Convention for the Protection of Human Rights and Fundamental Freedoms.
87.
In view of the mentioned principle of mutual confidence among the EU
Member States in the functioning of their criminal justice systems, the
Framework Decision proceeds from the assumption that the implementation
of a European arrest warrant may be suspended only in the event of a
serious and persistent breach of the principles set out in Art. 6 par. 1
of the EU Treaty (the protection of human rights) by certain Member
States, while such breach must be formally determined by the Council
pursuant to Art. 7 of the EU Treaty (10th recital to the Preamble).
88.
Section 377 of the Criminal Procedure Code can be considered as
something of a safeguard, guaranteeing on the constitutional law plane
the protection of Czech citizens. According to this provision, the
request of a foreign state’s organ may not be granted if its granting
would constitute a violation of the Constitution of the Czech Republic
or such provision of the Czech legal order which must be adhered to
without exception, or if the granting of the request would damage some
other significant protected interest of the Czech Republic. This
principle, contained in the Twenty-Fifth Chapter, First Division of the
Criminal Procedure Code (designated as general provisions) thus applies
both to the classic extradition procedure pursuant to the Second
Division, and to proceedings on the surrender of persons between EU
Member States on the basis of the European arrest warrant, pursuant to
the Third Division of the same Chapter. There is an ongoing scholarly
debate concerning the meaning of this provision (cf. Zemánek J.,
Evropsko-právní meze přezkumu ústavnosti transpozice rámcového
rozhodnutí o eurozatykači, Právní rozhledy č. 3/2006 [European Law
Limits to the Constitutional Review of the Transposition of the
Framework Decision on the European arrest warrant], Právní rozhledy
[Legal Perspectives] No. 3/2006).
89.
Even though this provision of the Criminal Procedure Code is introduced
by the marginal heading “Protection of the State’s Interests”, it can
be deduced, primarily from the text of its first sentence, that it is be
concerned primarily with the state’s interest in not violating a Czech
citizen’s fundamental rights enshrined in the Czech Republic’s
constitutional order, of which the Charter of Fundamental Rights and
Basic Freedoms forms an integral part (. . . if its execution would
constitute a violation of the Constitution of the Czech Republic or such
provision of the Czech legal order which must be adhered to without
exception . . .).
90.
Persons who are to be surrendered to another EU state retain the right
to submit against the relevant measures of organs taking part in
criminal proceedings a complaint which has suspensive effect (§ 411 par.
5 of the Criminal Procedure Code) and, in appropriate cases, a
constitutional complaint, and the deadline for the surrender of the
person does not run while the Constitutional Court is deciding (§ 415
par. 3 of the Criminal Procedure Code). These provisions preserve the
legal protection of citizens, or of other persons who should be
surrendered for criminal prosecution, and at the same time uphold the
condition that, in consequence of the surrender of a requested person,
the constitutional order of the Czech Republic will not be affected in
individual cases.
91. These
principle are in conformity with the Framework Decision, according to
which nothing in it may be interpreted as prohibiting the refusal to
surrender a person for whom a European arrest warrant has been issued
when there are reasons to believe, on the basis of objective elements,
that the said arrest warrant has been issued for the purpose of
prosecuting or punishing a person on the grounds of his or her sex,
race, religion, ethnic origin, nationality, language, political opinion
or sexual orientation, or that that person’s position may be prejudiced
for any of these reasons. The Framework Decision does not prevent a
Member State from applying its constitutional rules relating to the due
process, the freedom of association, the freedom of the press and the
freedom of expression in other media. The Framework Decision also
expressly declares that no person may be removed, expelled or extradited
to a state where there is a serious risk that she would be subjected to
the death penalty, torture or other inhuman or degrading treatment or
punishment.
92. There are
grounds for refusing a request to surrender a requested person in the
event, among others, that the criminal offense for which the European
arrest warrant is issued is covered by an amnesty issued in the Czech
Republic or that the criminal prosecution or punishment are
statute-barred in the Czech Republic if, under the Czech Republic’s own
criminal law enactments, it has jurisdiction to prosecute that criminal
act (§ 411 par. 6 lit. b) of the Criminal Procedure Code).
93.
The ne bis in idem principle is also preserved. According to § 411
par. 6 lit. c) of the Criminal Procedure Code, the surrender request
will be refused if, in respect of the same act, the requested person has
been finally judged in the Czech Republic or a foreign state, provided
that the sentence has already been served or is currently being served
or may no longer be executed, or if a final judgment has already been
passed in a criminal proceeding, either in the Czech Republic or another
Member State, and such decision may no longer be quashed through a
prescribed procedure.
94.
Last but not least, it should be emphasized that an ongoing criminal
proceeding brought by the Czech Republic against the requested person
takes precedence over the surrender of the requested person pursuant to a
European arrest warrant [according to § 411 par. 6 lit. d) of the
Criminal Procedure Code, the court shall refuse to surrender the
requested person in that case that he is being prosecuted in the Czech
Republic for the same act as that for which the European arrest warrant
was issued].
95. The
assertion that the domestic law rules relating to the European arrest
warrant have disturbed the relationship between the citizen and the
state is, thus, not tenable. A citizen surrendered to an EU Member
State for criminal prosecution remains, even for the duration of that
criminal proceeding, under the protection of the Czech state. The
European arrest warrant merely permits, for a limited time, the
surrender of a citizen for his criminal prosecution in a Member State of
the Union for a specifically defined act, while following the
completion of this criminal proceeding, there is nothing preventing him
from returning back (where relevant even to serve his sentence in Czech
territory). The Criminal Procedure Code specifies the grounds upon
which the surrender of a person to another Member State of the Union
shall not occur (esp. § 411). Citizens have the right to defend
themselves against measure by organs acting in the criminal proceeding
by means of remedial measures, which have suspensive effect (see § 411
par. 5 of the Criminal Procedure Code), including even the possibility
of a constitutional complaint. In the case that the surrender of a
citizen would result in a breach of the constitutional order, the
surrender of the citizen will not occur.
96.
In reaching these conclusions, it is necessary to take into account not
only the protection of rights of persons suspected of committing a
criminal act, but also the interests of the victims of criminal acts.
For the protection of the rights of victims and injured persons, it
generally appears more practical and fair for the criminal proceeding to
be held in the state in which the criminal act was committed (cf. the
conditions for the resolution of cases of two or more concurrent
European arrest warrants in § 419 of the Criminal Procedure Code and
Art. 16 of the Framework Decision). Since the execution of the European
arrest warrant, in the case a state is surrendering its own citizen, is
conditioned on reciprocity (§ 403 par. 2 of the Criminal Procedure
Code), the rules contested by the petitioners protect the rights of
persons who can be considered, according to the Czech Criminal Procedure
Code, as injured persons. It can generally be said that, in view of
the evidence that will found in the state where the criminal act
occurred, a criminal proceeding there will be quicker, more effective
and, at the same time, more reliable and just both for the defendant and
for any victim of the criminal act.
IX.
The Conformity of the Contested Provisions with other Provisions of the Charter
97.
The Constitutional Court considered as well the conformity of the
contested provisions, in particular § 412 paras. 1 and 2 of the Criminal
Procedure Code, with Article 39 of the Charter, according to which only
a law may designate the acts which constitute a crime and the penalties
or other detriments to rights or property that may be imposed for
committing them. The provisions of § 412 paras. 1 and 2 of the Criminal
Procedure Code implement the provisions of Art. 2 par. 2 of the
Framework Decision and represent a break with the principle that persons
are not extradited for criminal prosecution abroad, unless they are
suspected of having committed an act which is criminal both under the
law of the requesting state and the law of the surrendering state.
According to § 412 par. 1 of the Criminal Procedure Code, in cases where
the surrender is requested for a criminal offense for which it is
possible in the requesting state to impose a punishment of imprisonment
with an upper of at least three years or order protective measures
connected with restrictions on liberty lasting for at least three years,
and which consists in conduct which the requesting state organ
designates in the European arrest warrant as one or more of the
categories of conduct enumerated in paragraph 2, the court does not
ascertain whether it is a criminal offense under the law of the Czech
Republic. § 412 par. 2 of the Criminal Procedure Code thus enumerates
criminal offense for which the court, in connection with a proceeding on
surrender, does not ascertain their criminality under the law of the
Czech Republic.
98. It would
appear at first glance that the argument to the effect that § 412 is in
conflict with Art. 39 of the Charter could be rejected as excluded in
principle. First of all, it should be noted that Art. 1 par. 3 of the
Framework Decision makes the following general proviso: „This Framework
Decision shall not have the effect of modifying the obligation to
respect fundamental rights and fundamental legal principles as enshrined
in Article 6 of the Treaty on European Union.“ Thus, the Framework
Decision cannot be interpreted as requiring the Member States to do
anything that would violate fundamental rights, including the principle
of legality enshrined in Art. 39 of the Charter.
99.
The generally recognized principle of legality, embodied in Art. 39 of
the Charter, entails first and foremost the requirement that a state may
impose punishment upon a certain person solely on the basis of fair
notice in its own law that particular conduct is forbidden by that
state. In this manner, the state allow all persons subject to its law
to foresee the consequences of their conduct (general requirement of
foreseeability). There are two aspects to this requirement. First, the
state’s law must clearly and precisely define the conduct that is
prohibited (comprehensibility of the norm). According to the second,
there must be some connection between an accused’s conduct and the
territory or public interest of the state seeking to punish (a nexus,
that is, linkage to the criminal jurisdiction of that state), so as to
enable the concerned persons to be aware that their conduct calls forth
consequences foreseen in that state’s laws.
100.
Viewed from this perspective, the argument against § 412, taken
literally, would mean that the Czech Republic’s failed to respect the
principle of foreseeability of criminal law. But this argument
overlooks the fact that Art. 39 generally limits the Czech Republic in
the exercise of its own criminal jurisdiction. It does not explicitly
regulate the issue of the extradition or surrender of a person. In a
situation where Czech law authorizes the Czech Republic to extradite or
surrender a person within its jurisdiction, the Czech Republic is not
seeking to exert its criminal jurisdiction against an accused, so that
it would seem that Art. 39 does not apply. After all § 412 does not
define criminal offenses; for § 412 to come into play, the criminal
offenses must be properly defined in legislation of the state requesting
a person’s extradition or surrender. The situation where Art. 39, by
its explicit terms, clearly applies is where the Czech Republic itself
wishes to prosecute that person, in which case Art. 39 would without
question require that such prosecution be based on a criminal offense
precisely defined in its own criminal code. For these reasons, in
adopting § 412 of the Criminal Procedure Code, the Czech Republic does
not violate the principle of legality enshrined in Art. 39.
101.
The Constitutional Court, therefore, does not concur with the
petitioners‘ arguments asserting that § 412 par. 2 of the Criminal
Procedure Code is in conflict with Art. 39 of the Charter because this
provision in no way defines the criminal offenses not requiring double
criminality. If it had been a substantive law enactment, that is if
certain conduct had been made criminal by means of a provision like §
412 par. 2 of the Criminal Procedure Code, that is, by enumerating them
without any sort of statutory definition, that would certainly
constitute a violation of Art. 39. of the Charter. The Constitutional
Court proceeds, however, from the fact that § 412 of the Criminal
Procedure Code is not a substantive law provision, rather a procedural
law one. A surrender pursuant to the European arrest warrant is still
not the imposition of punishment in the sense of Art. 39 and Art. 40 of
the Charter.
102. Persons
suspected of having committed a criminal act and surrendered in
accordance with the European arrest warrant will not be prosecuted under
§ 412 par. 2 of the Criminal Procedure Code; rather the criminal
proceeding will be conducted for criminal offenses defined in the
substantive law of the requesting EU state. The statutory enumeration
of criminal offenses in § 412 par. 2 of the Criminal Procedure Code
(Art. 2 par. 2 of the Framework Decision) serves merely for the
procedural steps taken by courts. That is to say, in cases where the
requesting state’s organ designates in the European arrest warrant the
conduct of the surrendered person as one of the categories of conduct
enumerated in § 412 par. 2 of the Criminal Procedure Code, or Art. 2
par. 2 of the Framework Decision, Czech courts do not ascertain the
criminality of this act according to the law of the Czech Republic. The
adoption of § 412 of the Criminal Procedure Code did not result in the
criminal law of all EU Member States becoming applicable in the Czech
Republic. It merely means that the Czech Republic is assisting the
other Member States in the enforcement of their criminal laws. Thus, §
412 of the Criminal Procedure Code does not impose on persons in the
Czech Republic (citizens, permanent residents, and others commonly found
within the territory) the obligation to know the criminal law of all EU
states.
103. Moreover, the
enumeration of criminal offenses in § 412 par. 2 of the Criminal
Procedure Code or Art. 2 par. 2 of the Framework Decision generally
corresponds to conduct which is criminal even according to Czech law,
even though the titles of particular criminal offenses do not
necessarily correspond exactly to each other. The enumeration of
criminal offenses which do not require dual criminality is not given due
to the fact that it would otherwise be presumed that some of these
categories of conduct do not qualify as criminal offenses in one or more
of the Member States; rather the exact opposite, that it is conduct
which, in view of the values shared by the EU Member States, is criminal
in all of them. The reason for enumerating them in this fashion is to
speed up the execution of European arrest warrants, as the proceeding
for ascertaining the criminality of such acts under Czech law has been
dropped. In addition, in adopting this Framework Decision each EU
Member State expressed its agreement that all criminal conduct coming
within the categories defined in this way will also be criminally
prosecuted.
104. The fact
that § 412 does not establish legal grounds for criminal prosecution in
the Czech Republic still does not, however, exhaust the issue as to
whether Art. 39 has been violated. As a provision concerning
cooperation in criminal matters between independent states, this matter
cannot be viewed strictly from the perspective of the Czech Republic.
It must also be borne in mind that persons with the Czech Republic’s
jurisdiction might also be subject to the criminal jurisdiction of other
states. This is so where they have engaged in conduct partly in Czech
Republic and partly in other countries, or conduct in the Czech Republic
that has effects in other countries. This legal regulation must be
viewed in a broader context, as it involves a transnational situation,
and it must be remembered that legal systems other than the domestic
system will apply to such situations. This aspect of the situation
brings into play a further dimension of the protection provided by Art.
39 of the Charter.
105.
This further dimension of Art. 39 is the fact that it prohibits the
Czech Republic from participating in or directly assisting another state
in effecting a criminal prosecution that does not respect the
principles of legality. This would occur in a situation where the Czech
Republic does not itself punish a person, rather it surrenders a
suspect to a state which does not respect the principle of legality. It
is also necessary to take into account the significance of the ECHR
jurisprudence on Art. 3 (the Case of Soering v. the United Kingdom,
which forbids the States Parties to the ECHR to send a person to a state
which is not bound by the prohibitions on cruel or arbitrary treatment
and which does not give assurances that it will not violate this
prohibition.
106. In light
of the above-discussed considerations of the further aspects of the
principle of legality, the Constitutional Court can consider whether
dispensing with the dual criminality requirement results in a violation
of Art. 39. The dual criminality requirement is typically a safeguard
against states having a treaty obligation to hand over someone for
punishment for conduct which in itself did not deem to merit
punishment. It was an assurance against the obligation to collaborate
or acquiesce in conduct by a receiving state that does not respect the
principle of legality, that is, the prohibition of cruel, arbitrary or
unjust treatment or punishment. The general notion is that if both
states in question find a particular type of conduct worthy of
punishment, then the extraditing state can hardly view punishment for
such conduct as cruel, arbitrary and against the principle of legality.
107.
By dispensing with the principle of dual criminality in relation to the
Member States of the EU, the Czech Republic in no way violates the
principle of legality. As a general matter, the requirement of dual
criminality can be dispensed with, as a safeguard, in relations among
the Member States of the EU, which have a sufficient level of value
approximation and mutual confidence that they are all states as having
democratic regimes that adhere to the rule of law and are bound by the
obligation to observe this principle. It is precisely the situation,
where the level of approximation among the 25 EU Member States has
arrived at such a degree of mutual confidence, that they no longer feel
the need to cling to the principle of dual criminality.
108.
After concluding that that principle of legality in Art. 39 does not
require the principle of dual criminality as an indispensable component
of the extradition process, the Constitutional Court turned attention to
considering whether the surrender of persons pursuant to the Framework
Agreement do not comport with Art. 39. It is evident that this Article
would prohibit the Czech Republic from surrendering a person to another
state for criminal prosecution, if that other state has not sufficiently
defined in its law that the conduct the accused is alleged to have
engaged in is prohibited by that state. But nothing in the Framework
Decision requires the Czech Republic to act in this manner. In
addition, even should the prohibited conduct be clearly and precisely
defined in the law of a state which seeks to assert criminal
jurisdiction over a person, the principle of legality still requires a
nexus (see the interpretation above) between the alleged conduct and the
state seeking to prosecute.
109.
International law recognizes several legitimate grounds for a state to
assert its criminal jurisdiction. The generally recognized grounds are
the nationality principle, the protective principle, universality
principle, the territoriality principle. Apart from some minor
exception with which the Court need not occupy itself, the first three
jurisdiction principles do not present a significant problem in relation
to the requirement of a nexus. In terms of the nexus requirement,
nothing has changed from the previous state of affairs where citizens of
the Czech Republic and other persons within its jurisdiction were and
remain liable, according to the legal order of a given state, for
criminal acts which they committed abroad. The territoriality
principle, which provides the foundation for the operation of
substantive criminal law on the territory of a foreign state (including
EU Member States), applied and still applies to all persons, if they
commit a criminal act on the territory of those states. Therefore, the
petitioners’ notion that it is necessary to publish the criminal
legislation of all the remaining 24 EU Members States is not apposite.
Although it is, on the whole, generally accepted, the territoriality
principle brings certain problems of application in its wake. For
example, while it is generally acknowledged that a state may exert its
criminal jurisdiction for conduct occurring on its territory, which
alone suffices for a nexus to be found, still the territoriality
principle also extends to cases where a state extends it jurisdiction to
conduct which, although it occurred outside of its territory, its
consequences affected its territory.
110.
The Constitutional Court takes as a starting proposition that the
surrender of Czech citizens or other persons authorized to stay on Czech
territory to another EU Member State for the purpose of their
prosecution will generally come into consideration only in the case
where their conduct, qualifying as a criminal offense, did not occur in
the Czech Republic, but in another Member State of the Union. Should
the commission of a criminal act occur partly abroad and partly in the
Czech Republic, then criminal prosecution in the Czech Republic would be
an option. An impediment to the surrender of such persons for a
criminal proceeding abroad (cf. § 411 par. 6 lit. d) of the Criminal
Procedure Code) thereby arises, to the extent that it would be more
appropriate, in view of the nature of the conduct in question, for the
prosecution to take place in another EU Member State, for ex., due to
the fact that decisive evidence is found there or the criminal deeds
played out primarily in that state, etc.
111.
Pursuant to Art. 4 par. 7 of the Framework Decision, the executing
judicial authorities may refuse to execute a European arrest warrant
where it relates to offenses which have been committed in whole or in
part in the territory of the executing Member State, or in a place
treated as such. This provision, which affords domestic criminal
justice organs the possibility to weigh whether to refuse to execute the
European arrest warrant, protects the value of legal certainty, which
is also a value in European law and whose observance on the European
plane is a prerequisite for the Czech constitutional order permitting
the application of European law in the domestic legal order (in the case
of the implementation and application of the Framework Decision).
Although Article 4 par. 7 of the Framework Decision was not explicitly
implemented into the Czech legal order, in accordance with the principle
of the constitutionally conforming interpretation, Czech criminal
justice organs must pay heed to Czech citizens’ trust in the fact that
their conduct within the Czech Republic will be governed by Czech
criminal law. If Czech citizens remain within the territory of the
Czech Republic, domestic law is applied to their conduct, from which
also follows these persons’ constitutionally protected trust that legal
consequences laid down in Czech law will be attributed to their legal
conduct. The general value of legal certainty finds expression, on the
constitutional plane, in the principle formulated in Art. 39 of the
Charter, and on the sub-constitutional plane is expressed in the general
principle of § 377 of the Criminal Procedure Code, which applies
subsidiarily in relation to § 411 par. 6 lit. d) of the Criminal
Procedure Code, that is, it will only be applied in the case that a
criminal prosecution concerning the same act is not already in progress
in the Czech Republic.
112.
According to § 377 of the Criminal Procedure Code, interpreted in the
light of Art. 4 par. 7 of the Framework Decision, a Czech citizen will
not be surrendered to another EU Member State due to suspicion of having
committed a criminal offense, if it was allegedly committed within the
Czech Republic, except in cases where, in view of the special
circumstances of the commission of the criminal act, priority must be
given to holding the criminal prosecution in the requesting state, for
example, on grounds of adequate fact-finding concerning the conduct in
question, if in the greater part it occurred abroad, or because
prosecution in the given EU Member State would, in that particular case,
be more appropriate than that person’s prosecution in the Czech
Republic. It is appropriate for the court which may, but need not,
refuse to execute the European arrest warrant, to have sufficient
decision-making discretion, as in a whole host of cases it would be
appropriate for a person suspected of having committed a criminal
offense to be surrendered, even though his activity occurred within the
Czech Republic (for ex. organized criminal acts, which naturally were
brought to fruition in the another EU Member State). This provision
will be clarified in more detail only through the decision-making
practice in this phase of such proceedings; it is not for the
Constitutional Court to preempt that process.
113.
The Constitutional Court would emphasize that the Czech constitutional
order does not protect merely Czech citizens’ trust in Czech law, rather
it similarly protects also the trust and legal certainty of other
persons, authorized to stay within the territory of the Czech Republic
(for ex., aliens having permanent residence status in the Czech
Republic).
114. “Distance”
criminal offences, that is, those usually committed by means of computer
technology, represents a specific category falling within the terms of
the territoriality principle, as it theoretically admits of the
possibility that conduct occurring in the Czech Republic could satisfy
the material elements of a criminal offense in another EU Member State.
The Constitutional Court concedes that, under quite exceptional
circumstances, the application of the European arrest warrant would be
in conflict with the Czech Republic’s constitutional order, especially
in the case that the “distance” delict would qualify as a criminal act
under the law of the requesting state, but would not qualify as such
under Czech criminal law, and perhaps would even enjoy constitutional
protection in the Czech Republic (for ex., within the framework of the
constitutional protection of free expression). The petitioners’
objections are justified in this respect. In such an, albeit unlikely,
case, the application of § 377 of the Criminal Procedure Code would come
into consideration, as it contains a mechanism for precluding the
unconstitutional consequences of the European arrest warrant, in the
sense stated above.
115.
Even though the contested provisions of the Criminal Procedure Code
might be applied in an unconstitutional manner, such a hypothetical and
unlikely situation does not provide grounds for their annulment. The
Constitutional Court has already several times in its case law stated
that “theoretically every provision of a legal enactment can naturally
be applied incorrectly, hence even in conflict with constitutional acts,
which in and of itself does not constitute grounds for the annulment of
a provision which can conceivably be incorrectly applied.” (Judgment
No. Pl. US 8/98, published as No. 300/1998 Coll.). In other words, if a
legal enactment is capable of being interpreted in several ways, only
certain of which are unconstitutional, then a constitutionally
conforming interpretation must be selected (Judgment No. Pl. US 48/95,
published as No. 121/1996 Coll.) The purpose of a general norm control
proceeding is not, however, to resolve every single hypothetical
situation which have not as yet come to pass, even though they may occur
at some point. If the Constitutional Court were to proceed in this
manner, it would go beyond the proper function appertaining to it within
the framework of general norm control, and supplant the protection of
fundamental rights which, in the nature of things, the ordinary and
administrative courts must also provide.
116.
As far as concerns the contested provisions’ conformity with Art. 8 of
the Charter, that is, with the right to personal liberty, the
fundamental rights enshrined in this Article are ensured in the steps
that criminal justice organs must take, as prescribed under § 409 and
foll. of the Criminal Procedure Code.
117.
By way of conclusion, the Constitutional Court would point out that the
EU Council may, after consultation with the European Parliament, expand
the list of criminal offenses, enumerated in Art. 2 par. 2 of the
Framework Decision, for which the double criminality principle does not
apply, by adding further categories of criminal offenses (Art. 2 par. 3
of the Framework Decision). It can does so only by unanimous decision,
that is, solely with the assent of the Czech Republic’s representative.
When weighing whether to assent to the expanded list of those criminal
offenses, that representative will also take into consideration the
requirements of the Czech constitutional order. Naturally, repeated
Constitutional Court review of such amended Czech criminal acts is not
excluded.
118. In view of
all of its above-stated legal conclusions, the Constitutional Court has,
pursuant to § 82 par. 1 of Act No. 182/1993 Coll., on the
Constitutional Court, as amended, rejected the petition on the merits.
Notice : No appeal lies against a Constitutional Court judgment.
Notice : No appeal lies against a Constitutional Court judgment.
Brno, 3 May 2006
Dissenting Opinion
of justices Eliška Wagnerová and Vlasta Formánková
I would like to emphasize that my dissenting opinion does not contest the Framework decision on the European arrest warrant (hereinafter “European arrest warrant”), rather I have reservation concerning its implementation by the national legislature, thus it is directed against the statement of judgment and the reasoning.
My
reservations in relation to the majority opinion are of a dual
character. First, in my view, the majority let pass the opportunity for
the Czech Constitutional Court to formulate a doctrine of in relation
to the EU Third Pillar, that is in the field of Justice and Home Affairs
cooperation in criminal matters of the EU Member States (that is, to
part of “Union law”). My second reservation concerns the method of
assessing the implementation of the European arrest warrant into the
Czech legal order, in other words, in relation to which constitutional
norm should this implementing act be assessed.
1.
The majority’s reasoning rests on the application of the doctrine formulated by the Constitutional Court in its Judgment No. Pl. US 50/04, which however concerned Community law, that is, enactments which form a part of the acquis communautaire and the “First Pillar” of the EU. In this judgment, the Constitutional Court formulated a doctrine according to which the Czech Republic is, in view of Art. 10a of the Constitution of the Czech Republic, empowered to transfer certain powers of its organs to organs of the EC (EU). It was further stated in that judgment that it is necessary to find the grounds for the operation of Community law in the Czech Republic must be found in the dogma that the ECJ evolved in relation to Community law. In other words, the Constitutional Court at that time did not find, directly in the Constitution, the grounds for Community law to operate in the Czech milieu. However it also found in the Constitution the bounds for such operation, namely in Art. 9 par. 2 and in Art. 1 par. 1 of the Constitution of the Czech Republic.
1.
The majority’s reasoning rests on the application of the doctrine formulated by the Constitutional Court in its Judgment No. Pl. US 50/04, which however concerned Community law, that is, enactments which form a part of the acquis communautaire and the “First Pillar” of the EU. In this judgment, the Constitutional Court formulated a doctrine according to which the Czech Republic is, in view of Art. 10a of the Constitution of the Czech Republic, empowered to transfer certain powers of its organs to organs of the EC (EU). It was further stated in that judgment that it is necessary to find the grounds for the operation of Community law in the Czech Republic must be found in the dogma that the ECJ evolved in relation to Community law. In other words, the Constitutional Court at that time did not find, directly in the Constitution, the grounds for Community law to operate in the Czech milieu. However it also found in the Constitution the bounds for such operation, namely in Art. 9 par. 2 and in Art. 1 par. 1 of the Constitution of the Czech Republic.
Today’s
majority opinion shifts this doctrine, formulated by the Constitutional
Court not even two months previously, by asserting that the Czech
Republic’s accession to the EU resulted „to a certain extent to the
limition upon the Constitutional Court’s jurisdiction“ and that „where
the Czech enactment reflects a mandatory norm of European law, in
principle the doctrine of supremacy of Community law does not permit the
Constitutional Court to review such Czech norm in terms of its
conformity with the constitutional order of the Czech Republic.“ In
actuality, in the cited judgment the Constitutional Court declared that
in the case that powers are re-delegated from EC (EU) organs to organs
of the Czech Republic (this still concerns the First Pillar of the EU),
the Constitutional Court will review legal norms resulting from that
re-delegation from the perspective of the Czech constitutional order, in
which case, however, it will interpret it with a view toward the ECJ
case law on those principles which are identical with the principles
contained in the Czech constitutional order.
In
assessing the implementation of treaty law arising from the Third
Pillar, the majority opinion rested on these considerations. However, I
cannot concur with this approach to the problem. First and foremost,
in the Third Pillar of the EU, a transfer, pursuant to Art. 10a of the
Czech Constitution, of a part of the Czech organs‘ powers to organs of
the EU did not occur, nor could it have. Whereas the First Pillar of
the EU is constructed on an enumeration of the substantively defined
powers of the EC organs, if Art. 10a of the Constitution is applied in
the case of the Third Pillar, that would represent a „blank check“ given
to the EU organs in vaguely defined areas, or an entirely „framework“
definition – that is, in the criminal agenda connected with justice and
police. Since criminal law, by its very nature, is that field which
most intrudes upon the fundamental rights, and above all into their very
foundation, that is, into the liberty of the individual, such a
„blanket“ transfer of powers to the EU organs, pursuant to Art. 10a of
the Constitution, did not comport with the essential attributes of a
democratic law-based state (Art. 9 par. 2 of the Constitution of the
Czech Republic). After all, according to the Czech Constitutional
Court’s jurisprudence (III US 31/97), both respect for the individual
endowed with fundamental rights and the state’s obligation to protect
the fundamental rights of individual persons constitute an immanent
component the essential attributes of a democratic law-based state. It
is a question, which in my view must be answered in the negative,
whether the Czech Republic is even permitted to transfer to EU organs,
pursuant to Art. 10a of the Constitution, some part of its powers in the
field of criminal law, with the consequence that the Czech Republic
would be giving up constitutional control over this field, even assuming
the reservation that the Czech organs would reassume these powers,
should they be carried out by the EU in conflict, above all withe Art. 9
par. 2 of the Czech Constitution. My doubts about the possibility to
transfer even precisely defined powers in the field of criminal law
stems from the fact that, as of yet, the EU does not have its own
constitution containing a catalogue of fundamental rights springing from
commonly shared conceptions of the liberty of persons and of the
possibilities to restrict them. In my conception the constitution is
the unique legitimizing instrument which restricts the powers of the
authorities of organized society, in the given case the EU authorities,
exercise in this sensitive area, that is, in criminal law, even if
merely on the plane of norm creation. The web of international
agreements on which today’s European Union is constructed does not, in
my view, provide a sufficient guarantee of the protection of individual
freedom in the literal sense.
I
am thus convinced that, in the context of the Third Pillar, adopted
framework agreements are, by their nature, “intergovernmental
agreements”, with all the consequences flowing therefrom. In terms of
positive law, one can refer to Art. 34 par. 3 lit. b) of the Treaty on
the EU, according to which framework decisions are a form of secondary
union law that are binding only in terms of the objective set down
therein. According to Art. 34 par. 2 lit. b) of the Treaty on the EU,
framework decisions do not have direct effect and their application in
national legal orders is left to implementation by national
legislatures. “By including into the Treaty on the EU the provision
that direct effect is excluded, the Member States wished, in particular,
to prevent the ECJ’s doctrine on the direct effect of directive from
being extended to framework decisions as well” (decision of the German
Federal Constitutional Court of 18 July 2005, no. 2 BVR 2236/04).
The
nature of framework decisions excludes their classification as
international treaties under Art. 10 of the Czech Constitution, alone
due to the fact that they lack a constitutionally foreseen process of
internal ratification (the assent of Parliament); thus, the preventive
control of their constitutionality by the Constitutional Court is ruled
out. In my view, the implementation of framework decisions is subject
solely to the strictures of Art. 1 par. 2 of the Czech Constitution, and
is subject to full constitutional review only in the case of
implementation of the framework decision by act of the national
legislature. I concur with the judgment to the extent that the national
implementation cannot be enforced through ECJ proceedings, however,
from my perspective, the view expressed in the judgment to the effect
that implementation can be enforced by the European Commission bringing
political and administrative pressure to bear on the Member States is
unacceptable, as I consider it in conflict with the attributes of a
democratic law-based state, in which politics must confine itself within
the bounds prescribed in constitutional principles.
All
this led me to the conviction that the doctrine formulated by the
Constitutional Court in relation to Community law cannot be applied in
relation to acts in the Third Pillar, or to national enactments
implementing framework decisions. In such cases, the threshold for
review cannot be lowered all the way to the level of the essential
attributes of the democratice law-based state, or the fundamental
attributes of national sovereignty. On the contrary, in such cases the
entire constitutional order must be applied as a referential criteria
for the adjudication of constitutionality of the implemented framework
decision. Accordingly, I think it necessary to observe that, when
voting in the Council, the representative of the Government should
always be mindful of the fact that their vote for the proposed act,
which will need to be transposed into the Czech legal order, must pass
muster from the perspective of the entire Czech constitutional order.
2.
I have no objections to the objective interpretation of Art. 14 par. 4 of the Charter given in the Court’s opinion. Nonetheless, if its application as a referential standard was ruled out in this case, in my view it is only with great difficulty that one can comprehend the fact that in the entire Part VIII of the judgment, the implementation of the European arrest warrant is defined in relation to it. The majority opinion adopted the same approach in relation to the review of the contested provisions in terms of Art. 39 of the Charter, which according to the majority opinion is a guarantee tied to substantive law, not to procedural law, the contested provisions of the Criminal Procedure Code are nonetheless, further reviewed from its perspective.
2.
I have no objections to the objective interpretation of Art. 14 par. 4 of the Charter given in the Court’s opinion. Nonetheless, if its application as a referential standard was ruled out in this case, in my view it is only with great difficulty that one can comprehend the fact that in the entire Part VIII of the judgment, the implementation of the European arrest warrant is defined in relation to it. The majority opinion adopted the same approach in relation to the review of the contested provisions in terms of Art. 39 of the Charter, which according to the majority opinion is a guarantee tied to substantive law, not to procedural law, the contested provisions of the Criminal Procedure Code are nonetheless, further reviewed from its perspective.
In
my view, the contested provisions should have been reviewed first and
foremost in relation to Art. 8 of the Charter, particularly with
emphasis on the issue of whether the domestic rules can be adjudged to
be proportional. In my opinion it is not proportional, especially due
to the fact that Art. 4 par. 7 of the Framework Decision was not
implemented in the part which provides that a Member State can refuse to
execute a European arrest warrant where it relates to offences which
were committed in whole or in part within the Czech Republic or in some
place treated as such, or which were committed outside the territory of
the issuing Member State and the law of the Czech Republic does not
allow prosecution for the same offences when committed outside its
territory.
It is after all
evident that a person suspected of a criminal offense (typically a
citizen of the Czech Republic or a person with long-term or permanent
residence in the Czech Republic), if faced with the execution of a
European arrest warrant, finds herself in a situation which for her is
less advantageous than that if she had been prosecuted in the Czech
Republic, where she speaks the language, knows the cultural milieu in
the wide sense of the word, has a better understanding of the domestic
legal order and of the values to which it is subject. If this provision
had been implemented, then it would have been possible to take these
criteria into consideration when deciding on the European arrest
warrant. I am convinced that, at the present, it is not possible to do
so. I do not agree with the view that § 377 of the Criminal Procedure
Code can be applied in such cases. This is due not only to its purpose,
as appears from the part in the margin which designates it, but
especially due to the fact that the structure of § 411 par. 6 of the
Criminal Procedure Code, which regulates the refusal to surrender a
requested person, is the structure of a mandatory provision with an
exhaustive enumeration of grounds which admits of no further extension
of the grounds foreseen therein.
For
that matter, as far as concerns the right to personal liberty as the
criterion of review, one can refer to the decision of the Appellate
Committee of the House of Lords in the matter, Office of the King’s
Prosecutor, Brussels v. Cando Armas, of 17 November 2005. The opinion
of Lord Hope contained therein (par. 24) is based on the conviction that
in applying the European arrest warrant, “the liberty of the subject is
at stake here, and generosity must be balanced against the rights of
the persons who are sought to be removed under these procedures.” In
her opinion, Baroness Hale (par. 60) then added that it would be
unfortunate if the judicial authorities in other Member States, using
the form of warrant prescribed by the Framework Decision, were to find
that the English judicial authorities were unable to implement it. In
her view, the chosen approach must be true to the spirit and
requirements of the Framework Decision, of course, under the condition
that they properly safeguard the liberty of the individual.
Conclusion
According to Art. 34 par. 2 lit. b) of the Treaty on the EU, the purpose of Framework decisions is the approximation of laws and regulations of the Member States in the area of justice and home affairs. In contrast to the field of civil law, however, criminal law is that field of law in which are manifested the values particular to each individual Member State of the EU and which is also very sensitive since, after all, it is tied to the intrusion of public power into the personal liberty of individuals. The values which a society has gained through its experience and which its members share are prominently projected into the definition and interpretation of particular criminal offenses, as well as into the area of criminal procedural. Therefore, I cannot accept even the premise, contained in the judgment, that a sufficient level of value convergence exists among EU Member States.
Conclusion
According to Art. 34 par. 2 lit. b) of the Treaty on the EU, the purpose of Framework decisions is the approximation of laws and regulations of the Member States in the area of justice and home affairs. In contrast to the field of civil law, however, criminal law is that field of law in which are manifested the values particular to each individual Member State of the EU and which is also very sensitive since, after all, it is tied to the intrusion of public power into the personal liberty of individuals. The values which a society has gained through its experience and which its members share are prominently projected into the definition and interpretation of particular criminal offenses, as well as into the area of criminal procedural. Therefore, I cannot accept even the premise, contained in the judgment, that a sufficient level of value convergence exists among EU Member States.
The
rules contained in the Spanish Criminal Procedure Code, which was
incorporated into it as an „anti-terrorist amendment“, can be given as
an example of differing value conceptions, undoubtedly founded on
experience, on the possible interference with personal freedom.
According to it, a suspect can be held in „incommunicado detention“ (a
sort of solitary confinement) for up to 10 days. During this period,
that person is denied contact either with other persons, such as
relatives, embassy, and similarly, or with an attorney or a doctor of
their choice. After this period expires, that is, in the course of
possible further pre-trial custody, the competent judge or tribunal can
decide, if the investigation so requires, to impose an additional three
days of incommunicado detention.
This
situation was repeatedly criticized by the UN Commission on Human
Rights when, for ex., in its resolution for the year 2003 declared that
“prolonged incommunicado detention may facilitate the perpetration of
torture and can in itself constitute a form of cruel, inhuman or
degrading treatment or even torture.”(UN Commission on Human Rights,
resolution 2003/32, para 14; cited according to Human Rights Watch,
January 2005, vol. 17, No. 1 (D), p. 24).
One
can cite, as a value anti-pole, the decision of the Appellate Committee
of the House of Lords (UK) of 8 December 2005 whether torture or other
cruel, inhuman, or degrading treatment is permissible. In his opinion
(par. 51) Lord Bingham stated, among other things, the “the English
common law has regarded torture and its fruits with abhorrence for over
500 years . . . . The issue is one of constitutional principle, whether
evidence obtained by torturing another human being may lawfully be
admitted against a party to proceedings in a British court, irrespective
of where, or by whom, or on whose authority the torture was inflicted.
To that question I would give a very clear negative answer.” In his
opinion, Lord Hoffman stated (paras. 82-83): “The use of torture is
dishonourable. It corrupts and degrades the state which uses it and the
legal system which accepts it. . . . [T]he rejection of torture by the
common law has a special iconic importance as the touchstone of a humane
and civilised legal system.” Lord Hope noted (par. 126) that “[v]iews
as to where the line [of acceptability] is to be drawn may differ
sharply from state to state.” Lord Carswell pointed out (par. 150):
“[T]he use of torture . . . would shock the conscience, abuse or degrade
the proceedings and involve the state in moral defilement.”
It
is open to question whether the Czech Constitutional Court would
consider as torture, cruel or inhuman treatment the holding of suspects,
to whom the presumption of innocence applies, in the circumstances and
for the period of time which is permitted by incommunicado detention.
It is certain that Art. 8 par. 3 of the Charter of Fundamental Rights
and Basic Freedoms guarantees a person accused of or suspected of having
committed a criminal act, that within 48 hours they will either be
released or turned over to a court, which must decide within 24 hours
either to place that person in pre-trial detention or release him. In
addition, Art. 37 par. 2 of the Charter guarantees each person, as a
component of fair process, the right to assistance of council from the
beginning of any proceeding.
What
follows from these cases is that the conception of values connected
with criminal proceedings varies from state to state, just as they
diverge in their appraisal of what is in other states permitted by law,
even despite the fact that all Member States of the EU are signatories
of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. As the Constitutional Court held in its judgment
Pl. US 36/01, however, it is not permissible to decrease the standard
for the protection of human rights that has been attained.
The
European arrest warrant is, in itself, definitely a highly necessary
and desirable legal institution, without which the EU, which is, among
other things, characterized by the free movement of persons, simply
could not get by. Nor can one disregard the heightened security risked
shared by all states associated in the EU. Nonetheless, I am still of
the view that the European arrest warrant was implemented in the Czech
Republic in a negligent fashion. My reservation tied up to the failure
to implement Art. 4 par. 7 of the Framework Decision was actually in the
light of the above-mentioned minimal requirement, which would however
have significantly contributed to the proportionality of the legislative
solution contained in the Czech criminal law acts.
Brno 3 May 2006
Brno 3 May 2006
Dissenting Opinion
of justice Stanislav Balík
With the notion that the petition should be granted, I voted against the judgment on the merits dismissing the petition, for the following reasons.
Enchanted as always
when working with the Constitution and the Charter of Fundamental
Rights and Basic Freedoms (hereinafter “Charter”) by the gorgeous rich
language in their preambles, I caressed first of all the little word,
homeland, in Art. 14 par. 4, second sentence of the Charter. Choosing
whether the word, patria or “country” [this word was in English in the
original text], sounds better to me, personally I choose the older of
these two words. There are definitely more synonyms for the word,
homeland, the one closest to my heart – even despite the fact that a
mobile phone user must first learn the T9 system – is fatherland, or
perhaps also home. Although the issue is sometimes couched in the sense
of “to force someone to leave the Czech Republic” (cf. also J. Filip,
Evropský zatýkací rozkaz před ústavními soudy [The European Arrest
Warrant before Constitutional Courts], Časopis pro právní vědu a praxi
[The Journal for Legal Science and Practice], No. 2/2005, p. 162), in my
view this does not concern leaving rei publicae, rather leaving patriae
or – if you please – native soil, in the spirit of Kollár it is “ . . .
this land, first my cradle, now the nation of my coffin”.
The
concept of homeland, encompassing within itself the attributes of home
and ancestry, corresponds to the designation of a language as mother
tongue or Muttersprache or langue maternelle etc. The surrender of a
citizen for criminal prosecution or the serving of a sentence – and I am
now focusing strictly on a linguistic issue - is without doubt to tear
him away from his above-described roots. “Homesickness and the
inability to speak with someone in one’s native language influences the
quality of verse in terms of themes, style and even language”, also in
the case of a poet who justifiably wrote about his own work “ore legar
populi perque omnia saecula fama vivam”, while for our purposes we
should not overlook the fact that this exile took place in the context
of the same Roman Empire, nonetheless in language terms rather Greek
Pont (comp. also the Ovidius, in The Encyclopedia of Europe’s
Personalities from Antiquity to the Present, Prague 1993, p. 494).
Let
us move on, however, to the most practical problems which a surrendered
person might encounter, even should the right to an interpreter be
fully respected, “let us spend” with him in mosaic one of his “model”
days in proper order.
x x x
In
order to present our hero, for the time being he is still not, and may
never be, a criminal as, in the first place, the presumption of
innocence applies, in the second place, moreover, it might be shown in
the future that, for ex., he never committed the act for which he was
accused. For that matter, the following could happen to him as well:
He
is placed in a cell with a Portuguese prisoner. The exchange of “Bom
dia” for “topry ten”, occasionally “tekuji” or “obrigado”, otherwise a
pair in silence. Where will be that Ptahotepa “relief” brought on “when
a person is at least listened to”? (Papyrus versus Ptahotepa,
translated by Z. Žába, Prague 1971, p. 35).
K obědu alfődi gulásleves. S „paprikou“ to snad nebude problém, jak však vykouzlit zápor a přidat maďarsky slůvko „žlučník“.
For
lunch there will be alfődi gulásleves. It will not be a problem with
“paprika”, but how to conjure up the drawback/antithesis and add the
little Hungarian word, “gall bladder”.
In
the afternoon, δικηγ?ρος will come on a visit, accompanied for sure by
one of many court interpreters specialized in xenophobia, thus it will
not be difficult to find an exhaustive interdisciplinary response to the
question: „Ειναι Τσ?χος σ?μερα στην ?λλ?δα ακ?μα ο ξ?νος;“ There
remains the utterly trivial matter of organizing from the detention
prison the replacement of the advocate ex offo for a defense attorney
with a power-of-attorney, which the accused’s spouse will certainly
gladly take care of, when she can buy with her entire monthly salary a
return air-ticket, Prague – Solun or Prague – Athens, and to be on the
safe side she gets Euros in exchange for the Czech Crowns (which she got
by emptying out the savings account for building their house), in case
the Greek attorney rates by chance happen to be a tad higher than the
Czech rates.
In the evening
renal colic put in an appearance. Thanks to Monteverdi’s madrigal and
to listening several time to an Italian production of Don Giovanni, it
will be possible – before he succeeds on the state holiday in making
contact with the Czech consulate – to say to the Italian doctor at
least, “Non lasciate mi morire!”. Have we thought through, however, how
that will be for a patient who does not have health insurance in Italy?
The maxim, “Primum vivere deinde philosophari”, definitely also applies in this case.
x x x
Does Czech historical memory really not reach further back than to the “Rehabilitation Action”?
I
do not wish at the present to enter into the expert discussion of
historians on concrete historical events within the confines of Europe’s
multi-national coexistence, but we should probably understand “each
other” [these words were in English in the original text]. I would thus
recommend one to read, for example, the excellent study in legal
history authored by Jiří Kejř, “Hus’ Trial” (Prague 2000).
“Immediately
after Hus’ death – it is not even necessary to repeat it – in Bohemia
resounded with outrage over the unjust and unfounded judgment, as
expressed by the missive of protest sent to Constance by the nobility
already on 2 September 1415, in which it was shown that Hus neither
confessed nor was found guilty. The Council of Constance was denounced
even in Basel as an unjust judgment on Hus, as the Czech repeatedly
declared in their statements. . . . But, what conclusions have modern
historians drawn on this issue? After all, the mere question as to
whether the judgment in Constance was passed justly and in conformity
with law, whether it honestly reflected Hus’ guilt, whether it was not a
product of the judges’ partiality and influenced by political
interests, has been responded to with irreconcilable divergence,” writes
Jiří Kejř, among other things, and he adds, “Let us not indulge in the
excessive hope that following our study there will not remain a strong
residuum of the previous condemnations with which it was so difficult to
reconcile.”
Hus’ trial,
held outside of his homeland with judges of other nationalities, with
Latin as the language of the proceeding, errors in the defense caused by
the failure to adapt the rules of Canon procedure. Did not these
considerations reverberate as well in the heads of those who formulated
Art. 14 of the Charter?
Each
moderately educated Czech was familiarized, during her school years,
with the fate of Karel Havlíček Borovský. The “Banishment” in Brixen,
that is a city situated in the Hapsburg joint-state. One of the recent
submissions is the following:
“During
the night between 15 and 16 December 1851, he was arrested and, with
police escort, taken to the Tyrolean city of Brixen, where he was forced
to live for more than three years. Being cut off from Czech society
and public activity induced in Havlíček severe internal crises, but it
did not break him” (cf. Who Was Who in our History through 1918, Prague
1993, p. 97).
Can we be
certain that elementary and secondary school students in Czech schools
have not until today heard this (possibly even traditional)
interpretation?
I ask myself
this question in order to meditate on the legal consciousness of
citizens of the Czech Republic de lege ferenda in the moment when their
Government proposed, together with the amendment to the Criminal
Procedure Code and the Criminal Code, an amendment to Art. 14 of the
Charter.
I asked myself this
question in connection with the debate preceding the adoption of the
Framework Decision of the Council of the European Union, No.
2002/584/JHA of 13 June 2002, what is nearly already long ago from the
contemporary perspective of persons with short historical memories. Do
we know “each other”? [these words were in English in the original
text] Acting as devil’s advocate I made only a few marginal
Anglo-American comments on the praise in the judgment’s reasoning of the
British model of extradition – “convicts servants” [these words were in
English in the original text] in the North-American Colonial period,
the American Fugitive Slave Act of 1850 or the 1857 decision of the
Supreme Court of the United States of America in the Dred Scott case . .
.
Let us devote a moment to reciprocity . . .
x x x
Cui prodest?
Are there really so many Europeans who commit what are, from the Czech perspective, criminal offenses, after whom the criminal justice authorities would pine and who would otherwise escape punishment? Or did the intent to transpose more than was necessary prevail?
Are there really so many Europeans who commit what are, from the Czech perspective, criminal offenses, after whom the criminal justice authorities would pine and who would otherwise escape punishment? Or did the intent to transpose more than was necessary prevail?
I
forgot about my humble period of law practice and briefly had some
doubts that pre-trial detention in the Czech Republic is Europeanized in
a qualified manner.
Further consequences occurred to me; I promised myself that I would await a consoling response.
x x x
As has been shown, the legislature is something of a Superbus.
In
its statement of views on the petition, the Chamber of Deputies
emphasized that the Parliament is the sovereign representative of the
constituent and legislative power, thus it is not bound by the legal
opinion of the person proposing an amendment to the Charter and is
entitled to adopt its own view on a matter.
And
what about perhaps listening to the view of the public? Couldn’t it be
said of a greater number of views that “more is more”? Was the adage,
“Measure twice, cut once”, forgotten?
I
was interested by the responses to questions connected with the
practical realization of the discussed legal rules. I did not find in
the record from the debates in the Assembly any allusion which would
lead me along these tracks. I asked myself then whether the deputies
had available comparative law data concerning of the system for
detention and the course of the preliminary proceeding in individual
countries, whether they had available information on the numbers and
levels of interpreters, what they knew about the guarantees of the right
to a defense, whether there was some awareness concerning the rules
governing the compensation of damage for incorrect official conduct (see
the record from the Constitutional Court’s public hearing held on 3 May
2006).
I will paraphrase
what I learned. Those who were not members of the “Guarantee” Committee
voted by putting their trust in that Committee’s report, alternatively
in the officer from their parliamentary club. I admit that the response
to the question on the degree to which President’s position in his veto
message was objectively thought through; however, out of concern for
the sudden drop in the level of optimism on the state of political
culture, I deemed it more advisable to let such considerations remain
hypothetical.
Does not norm
truth, however, fall within the constitutional conformity of a statute,
in the case under review projected into certainties that citizens of the
Czech Republic will actually be under the protective wing of their
homeland, even in common situations which are outlined above?
x x x
I
have attempted to climb down from the heights of the definition of a
law-based state to examples from practice indicating that a unified
model of the law-based state, or criminal law policy, does not as yet
exist. And the divergences, for which a person facing a criminal
proceeding is not necessarily prepared, might significantly worsen his
position, for ex. in the pre-trial proceedings.
A further subject for consideration presents itself.
A further subject for consideration presents itself.
I
quote from the speech of the Paris bâtonnier [translator’s note -
President of the Bar Association] Jean–Marie Burgubur at the occasion of
the Opening of the Judicial Year in Paris on 18 November 2005:
„Yes, justice is in a poor state, and if judges have clearly told you that, Mr. Minister, advocates are going to repeat it once again.
„Yes, justice is in a poor state, and if judges have clearly told you that, Mr. Minister, advocates are going to repeat it once again.
-
What is the case, for example, with the presumption of innocence? It
is a lovely theme to enchant a solemn assembly, but is this presumption
reflected as well in the conduct of the investigating judge, the
representative of the prosecution or the judge deciding whether to leave
a person at liberty or place him into custody, the JLD (Juge des
Libertés et de la Détention), who could be called the judge of liberty –
so exceptionally – and of detention – so frequently?
That
is to say, the presumption of innocence has its place in the statutes,
similarly as in treaties, however, in practice in the course of a court
dispute when a judge – whether an investigating judge or the judge
deciding whether to leave a person at liberty or place him into custody -
must decide, at that point the presumption of innocence no longer
exists.
Of course, we have
in our country money laundering, organized crime, even terrorism, all of
which would be a reason for a judge to simply and without more adopt a
police and security decision: a certain person is brought before a
judge, it is thus necessary to lock him up. Not guilty, we say?
-
There are so many unjustified cases of placing persons into custody
(and most of the required matters in a file are, according to the
current method, already under the control of the examining judge),
combined with others already being detained or being prosecuted, that it
is impossible, just as evidence is losing cogency and the danger of the
investigated person is often smaller than evident.
Is
it disgraceful to refer here to the scandalousness of placing people in
custody just as much for the too often, even systematic, resort to this
means, as for the conditions in which such detention occurs? The
condition of our custodial facilities puts our country into the
situation in which it breaches the most basic human rights.
What
is the most significant factor for recidivism? Incarceration, the
conditions in which the punishment of imprisonment is carried out. The
failure to observe the condition of respecting detainees and their
dignity leads to recidivism, which neither an electronic bracelet nor
measures extending punishments is able to prevent.
Advocates
cannot remain silent about this deplorable and outrageous situation
which the European Commissioner for Human Rights recently condemned,
especially as regards the Paris detention prison.
It
is not merely a matter of money; it is above all a lack of political
will. I would do wrong if I failed to censure this situation.” (cf.
J.-M.Burgubur, Respektujte advokáty [Respect Advocates], Bulletin
advokacie [The Bulletin of Advocacy], No. 3/2006, p. 7).
Is
this the solitary voice of the elected representative of more than 6000
advocates registered in the top French bar association?
x x x
It
would certainly be possible to repeat the President’s arguments, as
well as those of the petitioners. The overwhelming majority of them
refer to it with a comment that merits attention even for the future.
But I should not forget my own reflection de lege ferenda.
The resolution of the substantive criminal law relations primarily in a procedural enactment is unsystematic, to say the least.I
t seems to me appropriate to adopt the Criminal Code and the Criminal Procedure Code in the same time frame.
Wouldn’t
it be more appropriate to reach agreement on a “European” definition of
the constituent elements of serious criminal offense and a unitary form
of criminal proceeding against the accused of such offenses?
Wouldn’t
it be possible to establish in each state at least one specialized
“alien” pre-trial detention prison for just such cases?
x x x
The reasoning of the judgment proceeds, among others, from the Constitutional Court’s case law in the sense that “theoretically every provision of a legal enactment can naturally be applied incorrectly, hence even in conflict with constitutional acts, which in and of itself does not constitute grounds for the annulment of a provision which can conceivably be incorrectly applied”.
x x x
The reasoning of the judgment proceeds, among others, from the Constitutional Court’s case law in the sense that “theoretically every provision of a legal enactment can naturally be applied incorrectly, hence even in conflict with constitutional acts, which in and of itself does not constitute grounds for the annulment of a provision which can conceivably be incorrectly applied”.
This
dissenting opinion rests on the principle of dubitandi. It is not the
classic in dubio pro reo, although it should sound in its favor. I did
not get the impression that I have an unambiguous response in all cases
to the questions which I have attempted haphazardly to select and submit
to the kind reader.
I see
the unconstitutionality of the contested provisions primarily in the
fact that, in my view, the legislative rush caught the legislature
rather unprepared, and as far as concerns the resolution of the
relations of the bill to amend the statute together with the bill to
amend the Charter, impetuous up to the outer edge of constitutional
conformity of the constitutional amendment process and the legislative
process. This is an issue in the resolution of which it would probably
be best not to test how much the Constitutional Court will bear but, on
the contrary, proceed with respect for the constitutional order, just as
the person who submitted the proposed amendment originally attempted to
do in the Parliament of the Czech Republic. In the existing situation
then, as regards their constitutionality, the contested provisions of
the Criminal Procedure Code and the Criminal Code are open to question,
to say the least, and for a host of relevant reasons, to which the
petitioners, the President, even my co-dissenting colleague, draw
attention in this proceeding.x x x
Completely at the end - as they often say in a certain milieu – “to be fair”. Let us imagine that this dissenting opinion were the final word of a defendant. With all respect to interpreters, I would ask that they attempted “from the hip” an exercise in translation, and if possible literally, into Finnish, Hungarian, Modern Greek, Dutch, . . . French, and English.