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HEADNOTES
1) The central principle for a court’s decision on the execution of a criminal judgment of a foreign state (based on international treaties) is a change in the conditions for serving the sentence, which can not result in an overall worsening of the convicted person’s position. This institution of execution of the criminal judgment of a foreign state is primarily an expression of society’s effort to mitigate the negative effects connected with serving a sentence abroad, sometimes in an environment that is culturally and socially different from European conditions. It is a legitimate aim of the legislature to protect its own citizens from these negative effects, going beyond the framework of the effects that belong to a particular type of punishment based on its own nature. The purpose of steps by the state that permit the execution of a foreign criminal judgment on its own territory is thus primarily a humanitarian influence on the convicted person, whose aim is to remove the excess of negative influences, at his own request, but not the reduction of a sentence, especially when preserving the length of a sentence is an express condition of the transferring state.
2)
The Constitutional Court emphasizes that cruelty and inhumanity of
treatment or punishment can not be measured according to criteria given
in advance, but always by thoroughly weighing all circumstances of a
case. However, generally we can assume that inhuman and cruel treatment
or punishment is always a combination of various factors that culminate
in an individual’s intense physical and psychological suffering.
However, merely serving a long prison sentence, if it takes place in an
environment that respects human dignity, is not, in and of itself, cruel
or inhuman treatment, if it is not accompanied by other serious
(objective) inadequacies in the manner in which that sentence is served,
as is standardized in the civilized world, or by the prisoner’s serious
health and psychological problems.
3) When the exclusive judicial authority of the state transferring the
perpetrator to serve his sentence is expressly preserved, the judicial
body that decides on execution of the judgment does not have the same
position as the judicial body that imposed the sentence. Thus, the Czech
authorities can not decide on objections aimed essentially against the
Thai conviction decisions, because the Czech Republic would then be in
conflict not only with the principle pacta sunt servanda, but also with
the principle of good faith, which are the foundation stone of
international treaty law, and their importance is strengthened by the
fact that they have been incorporated in the preamble of the UN Charter.
The principle of good faith is a fundamental rule of interpretation in
the analysis of the texts of international obligations. They must be
interpreted in good faith, taking into account the entire context of the
treaty, and in light of the aim and purpose for which it was concluded.
The aim and purpose of the treaty concluded between the Thai Kingdom
and the Czech Republic was to bring the petitioner, at his request, to
his home environment, closer to his family and friends, and enable him
to serve the remainder of his sentence at home, in his native land.
Therefore, in that light, the petitioner’s request, that the
Constitutional Court annul the decisions of the Czech general courts and
release the petitioner, will not stand. If the Constitutional Court
granted the petitioner’s request, it would violate not only Art. 1 par. 1
and par. 2 of the Constitution of the Czech Republic, but also its
trustworthiness in international relations.
CZECH REPUBLIC
COPNSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A Panel of the Constitutional Court composed of the chairman Vojen Güttler and judges Ivana Janů and František Duchoň ruled on this day in the matter of a constitutional complaint by the petitioner E. N., represented by JUDr. T. S., attorney, against a decision by the Municipal Court in Prague of 22 April 2004, file no. 6 To 162/2004, against a decision by the District Court of Prague 6 of 2 March 2004, file no. 3 T 127/2003, in its entirety, or, in the alternative, only in the verdict about the fact that the petitioner committed a crime under § 187 par. 1, par. 2 let. a) of the Criminal Code, with the participation of the Municipal Court in Prague and the District Court of Prague 6, as follows:
The constitutional complaint is denied.
REASONING
I.
1.
In his timely and duly filed constitutional complaint the petitioner
contested the decisions of the general courts cited in the introduction,
and proposed that the Constitutional Court annul them.
2.
The decision of the District Court of Prague 6 of 2 March 2004, file
no. 3 T 127/2003, decided in the petitioner’s matter on execution of a
decision under § 384d par. 1 of the Criminal Procedure Code (in the
version in effect through 31 October 2004) with reference to the text of
the Treaty between the Czech Republic and the Thai Kingdom on the
Transfer of Perpetrators and Cooperation in the Execution of Criminal
Judgments, promulgated as no. 107/2002 Coll.I.A. [Collection of
International Agreements] (further identified by its full name or only
the “Treaty”) given the existence of an unchanged verdict on guilty and
sentencing from the verdict of the Criminal Court of the Thai Kingdom of
21 July 1995, file no. 2806/2538-4493/2538 (the “Thai decision”), in
connection with the decision of the Provincial Court of Nonthaburi of 12
July 1996, file no. 2806/2538-4493/2538 (both together, the “Thai
decisions”) on a crime under § 4, § 7, § 8, § 15 par. 2, § 65 par. 2, §
66 par. 2, § 102 of the Act on Dangerous Narcotic Substances from 1979, §
3, § 7 of the Act on Measures to Suppress the Activities of Persons
Committing Crimes in Connection with Drugs from 1991 and § 33, § 80, §
90 of the Criminal Code, which he was to have committed, in brief, by
attempting to transport out of the territory of the Thai Kingdom, on an
airline, 5,607 grams of heroin for purposes of further distribution,
whereby he committed, under the Criminal Code of the Czech Republic, the
crime of non-permitted production and possession of narcotic and
psychotropic substances and poisons under § 187 par. 1, par. 2 let. a)
of the Criminal Code, and therefore, under § 384d par. 2 of the Criminal
Procedure Code the petitioner is to serve a prison sentence of forty
two years, ten months and thirteen days. Under § 39a par. 2 let. c) of
the Criminal Code he is assigned to serve his sentence in a high
security prison .
3. The
decision of the Municipal Court in Prague of 22 April 2004, file no. 6
To 162/2004, ruled on the petitioner’s appeal, and denied it under § 256
of the Criminal Procedure Code.
4.
The petitioner claims that the cited decisions violated his fundamental
rights guaranteed by Art. 7 par. 2 and Art. 8 par. 2 of the Charter of
Fundamental Rights and Freedoms and Art. 3 and Art. 6 of the Convention
for the Protection of Human Rights and Fundamental Freedoms.
5. The relevant provisions of the Charter of Fundamental Rights and Freedoms read as follows:
Article 7
(2) No one may be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
Article 7
(2) No one may be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
Article 8
(2) No one may be prosecuted or deprived of his liberty except on the grounds and in the manner specified by law. No one may be deprived of his liberty merely on the grounds of inability to fulfill a contractual obligation.
(2) No one may be prosecuted or deprived of his liberty except on the grounds and in the manner specified by law. No one may be deprived of his liberty merely on the grounds of inability to fulfill a contractual obligation.
6. The relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms read as follows:
Article 3
Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 6
Right to a Fair Trial
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Right to a Fair Trial
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
7.
In the constitutional complaint, the petitioner basically formulated
his objections into two areas. For one thing, according to the
petitioner, the general courts decided that he had committed the crime
of non-permitted production and possession of narcotic and psychotropic
substances and poisons under § 187 par. 1, par. 2 let. a) of the
Criminal Code, even though that decision was not preceded by a fair
trial, and for another, the general courts accepted a sentence whose
length is quite outside the scope of sentences imposed for a similar
offense in the Czech Republic, and the petitioner considers the sentence
to be cruel and inhuman.
8.
In relation to the first objection, as regards the substance of the
court’s decision under § 384d par. 1 of the Criminal Procedure Code, the
petitioner points to the fact that he was convicted of a crime under
the Czech Criminal Code, although under § 220 par. 1 of the Criminal
Procedure Code a court can make such a decision only about a fact that
is contained in the complaint. In this matter a complaint was not filed,
because the petitioner was not even told of the accusation. However,
the accusatory principle is one of the fundamental principles of a fair
trial. This objection is tied to the petitioner’s proposal that the
Constitutional Court annul the decision of the Municipal Court in Prague
of 22 April 2004, file no. 6 To 162/2004, and the verdict that the
petitioner committed the crime of non-permitted production and
possession of narcotic and psychotropic substances and poisons under §
187 par. 1, par. 2 let. a) of the Criminal Code, contained in the
decision of the District Court of Prague 6 of 2 March 2004, file no. 3 T
127/2003.
9. In the
constitutional complaint, the petitioner explains in more detail the
objection that the sentence that he is to serve in the Czech Republic is
disproportionate and cruel. He emphasizes that the District Court for
Prague 6 itself concluded, although it was not authorized to do so, that
the act described in the decision would have been classified in the
Czech Republic as the crime of non-permitted production and possession
of narcotic and psychotropic substances and poisons under § 187 par. 1,
par. 2 let. a) of the Criminal Code, for which he would face, in the
most extreme case, a prison sentence of ten years. In the decision
contested by the constitutional complaint, the District Court for Prague
6 accepted a prison sentence of forty two years, ten months and
thirteen days, out of which approximately nine years have been served,
including the time spent in detention. In view of the purposes of a
sentence defined in § 23 par. 1 of the Criminal Code the petitioner sees
the intent of the legislature that the imposition of a prison sentence
of a maximum of ten years is sufficient in scope to fulfill its
purposes. Therefore, the petitioner considers the key question to be
what is the priority in a case of conflict between two different ideas
of the need for a sentence to have an effect on the convicted person,
and thus also two ideas about what is a proportionate sentence. By
comparing his sentence to the length of the possible sentence that he
would receive under the Czech Criminal Code, the petitioner concludes
that his sentence is grossly disproportionate, cruel, and even inhuman.
As a result, it is therefore outside the guarantees provided by the
Charter of Fundamental Rights and Freedoms and by the Convention for the
Protection of Human Rights and Fundamental Freedoms.
10.
As the petitioner states further, the Supreme Court decided that the
sentence imposed by a court of the Thai Kingdom can be served in the
territory of Czech Republic. Apparently it was thus that court who erred
in the matter, because it accepted a disproportionate sentence.
However, in the petitioner’s opinion the Supreme Court decided only to
recognize the decision of a foreign court in the territory of the Czech
Republic, not that the sentence thus recognized will also be served, or
whether that sentence is consistent with the constitutional order of the
Czech Republic. Although the Criminal Procedure Code does not regulate
the procedure to be followed when a court concludes that a recognized
sentence is cruel, inhuman, or otherwise inconsistent with the
constitutional order of the Czech Republic, in the petitioner’s opinion
the court must always act with respect for constitutional principles.
Because the petitioner acknowledges that the court is not authorized to
reduce the sentence, he considers the only possible solution for the
court to decide that the sentence will not be served in the territory of
the Czech Republic and that the convicted person will be released. In
view of these arguments the petitioner asks the Constitutional Court to
annul both the contested decisions in their entirety, or to annul the
decision of the Municipal Court in Prague of 22 April 2004, file no. 6
To 162/2004, and the decision of the District Court of Prague 6 of 2
March 2004, file no. 3 T 127/2003, in the verdict that states that the
petitioner committed a crime under § 187 par. 1, par. 2 let. a) of the
Criminal Code. The petitioner also stated that he has filed an appeal on
a point of law in the matter and an application for a complaint on
violation of the law.
11.
For reasons of procedural carefulness, the petitioner again made his
petition at the Constitutional Court in a filing delivered on 16 May
2005 after the Supreme Court ruled that his appeal on a point of law was
denied as impermissible.
II.
12.
The Constitutional Court, pursuant to § 42 par. 4 of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations (the
“Act on the Constitutional Court”), sent the constitutional complaint
to the parties to the proceeding and to the secondary parties to the
proceedings, for their responses. In its response to the constitutional
complaint, the Municipal Court in Prague referred in full to the
reasoning of the contested decision (p. no. 27). The District Court for
Prague 6, as a party to the proceedings, likewise merely referred to the
legal opinion stated in the contested decision (p. no. 28). The
secondary party to the proceeding on the constitutional complaint, the
District Prosecutor’s Office for Prague 6, after the deadline set by the
Constitutional Court, and without more detail, proposed denying the
constitutional complaint (p. no. 41). In view of the fact that these
parties to the proceeding and the secondary party to the proceeding did
not submit any new evidence to the Constitutional Court, nor did they
submit any new claims related to the substance of the constitutional
complaint, the Constitutional Court did not send these appendices to the
petitioner for an answer. The petitioner was acquainted with the entire
content of the file through his legal representative on 1 February 2007
(p. no. 72).
13. The Municipal Prosecutor’s Office in Prague relinquished its status as a secondary party (p. no. 37).
14.
The Constitutional Court also, with reference to § 48 par. 2 of the Act
on the Constitutional Court requested a position statement from the
International Department of the Ministry of Justice (the “Ministry”) (p.
no. 46). In the first part of its statement the Ministry pointed out
that the Treaty between the Czech Republic and the Thai Kingdom on the
Transfer of Perpetrators and Cooperation in the Execution of Criminal
Judgments, promulgated as no. 107/2002 Coll.I.A., is an international
treaty that is, as regards the purposes and aims stated in the preamble,
not different from other international agreements concerning the
transfer of convicted persons to which the Czech Republic is a party
[The Convention on the Transfer of Convicted Persons of 23 March 1983
(no. 553/1992 Coll.), the Protocol to the Convention on the transfer of
Convicted Persons of 18 December 1997 (no. 26/2003 Coll.I.A.,
notification of correction of errors in the translation in part 49/2003
Coll.I.A.), the Convention on Transfer of Persons Convicted to a Prison
Sentence to Serve the Sentence in the State Where They are Citizens, of
19 May 1978 (no. 123/1978 Coll.), the Agreement between the Czechoslovak
Socialist Republic and the Socialist Federal Republic of Yugoslavia on
the Mutual Transfer of Convicted Persons to Serve Prison Sentences of 23
May 1989 (no. 473/1990 Coll.), the Agreement between the Czech and
Slovak Federal Republic and the Austrian Republic on the Mutual
Execution of Court Decisions in Criminal Matters of 20 May 1990 (no.
113/1992 Coll.), and the Agreement between the Czech Republic and the
Slovak Republic on Legal Assistance Provided by Judicial Bodies and
Regulating Certain Legal Relationships in Civil and Criminal Matters of
29 October 1992 (no. 209/1993 Coll.)].
15.
According to its statement, the Ministry considers the constitutional
complaint to be considerably confused, because the contested decision
does not contain any verdict concerning guilt. The Ministry considers
the description of the act, as provided in the contested decision, to be
a mere repetition of the description as stated by the Thai courts.
According to the Ministry the formulation of the verdict section of the
contested decision is perhaps somewhat unfortunate; nevertheless it is
evident from the reasoning that the court did not rule on the
petitioner’s guilt. The Ministry believes that the constitutional
complaint is de facto partly aimed against the verdict recognizing the
Thai decisions, as contained in the decision by the Supreme Court of 22
May 2003, file no. 11 Tcu 103/2003. The statement by the District Court
of Prague 6 of 2 March 2004, file no. 3 T 127/2003, that the
petitioner’s crimes correspond to the classification under § 187 par. 1,
par. 2 let. a) of the Criminal Code, is therefore evidently redundant.
At the same time, the Ministry expressed its belief that serving such a
long sentence in Thai prisons would not be a more proportionate or
humane alternative, and also that the petitioner was transferred to the
Czech Republic at his own request, and his transferred was guided by,
among other things, humanitarian motives. A decision that the petitioner
will not serve the full length of the sentence imposed by the Thai
courts would be in conflict with Art. 6 par. 2 of the Treaty.
16.
In his written answer to the Ministry’s statement (p. no. 55-58), the
petitioner again pointed to the text of the verdict in the contested
decision, whereby, according to the petitioner, the District Court for
Prague 6 decided that a crime was committed, not only on the execution
of a decision under § 384d par. 1 of the Criminal Procedure Code (in the
version in effect through 31 October 2004), regardless of the fact that
the words “is guilty” are absent from the contested decision. The
petitioner emphasizes that, in view of the text of Art. 6 par. 2 of the
Treaty, under which the receiving state is bound by the legal nature and
length of the sentence, the verdict of the District Court of Prague 6
is not only redundant, but also illegal. Finally, the petitioner states
that the Ministry’s statement regarding the humanitarian aspect of
receiving a convicted person under the Treaty is based on a failure to
understand the essence and purpose of a sentence. He maintains his
opinion that, although a sovereign state has the right to determine the
severity of a sentence for criminal conduct, in this case the sentence
imposed can be considered disproportionate, even cruel and inhuman in
the context of the Czech legal order.
17.
During the hearing before the Constitutional Court the petitioner did
not propose presenting any further evidence. In his closing statement
the petitioner’s attorney stated that he respects the status of the
Constitutional Court as a body for the protection of only constitutional
rights. According to the petitioner, the history of the matter so far
confirms the objection that the actions of the general court, which did
not conduct a fair trial, were unconstitutional. According to the
petitioner, the Valdice prison still has on record the sentence imposed
by the district court, of 42 years. He emphasized that formally there is
a decision by the district court that the petitioner committed a crime,
for which he was sentenced. That situation is unconstitutional in and
of itself, because the petitioner is thus viewed as having been
convicted by a Czech court under Czech law. In relation to the objection
of a cruel and inhuman sentence, the attorney added that serving a
sentence in Czech prisons is indisputably more acceptable than serving
it in Thai prisons. However, the sentence being served is several times
longer than the sentence that it would be possible to impose for a
similar crime in the Czech Republic. On principle it is thus a cruel
sentence. Therefore the petitioner maintains his proposal.
III.
18.
From the file of the District Court of Prague 6 file no. 3 T 127/2003
the Constitutional Court also determined that on 21 June 1995, file no.
2806/2538-4493/2538, the petitioner was convicted by the Criminal Court
of the Thai Kingdom for a drug offense under the Act on Dangerous
Narcotic Substances (another translation: the Act on Narcotics and
Narcotic Poisons) from the year 2522 of the Brahman calendar (1979 A.D.)
to a prison sentence of fifty years and a sentence of confiscation of
an exhibit.
19. By decision
of the Provincial Court of Nonthaburi of 12 June 1996, file no.
2806/2538-4493/2538, the petitioner’s sentence was reduced, based on a
royal pardon from King Bhumibol Adulyadej (Rama IX) by one seventh, i.e.
to 42 years, 10 months and 13 days. In a filing dated 25 September 2002
in Bangkok the petitioner applied, in accordance with the text of the
Treaty between the Czech Republic and the Thai Kingdom on the Transfer
of Perpetrators of Crimes and on Cooperation in the Execution of
Criminal Judgments of 26 April 2000 to begin the process of transfer to
the Czech Republic for execution of the sentence.
20.
The decision of the Supreme Court of 22 May 2003, file no. 11 Tcu
103/2003, recognized both of the above mentioned Thai decisions in the
territory of the Czech Republic, under § 384a par. 1 of the Criminal
Procedure Code (in the version in effect through 31 October 2004). On 13
January 2004 the petitioner was escorted from the Thai Kingdom to the
Czech Republic, and after a hearing before the District Court for Prague
6 he was taken into custody under § 384c par. 2 of the Criminal
Procedure Code (in the version in effect through 31 October 2004). On 2
March 2004 the District Court for Prague 6, and subsequently the
Municipal Court in Prague made the decisions contested by the
constitutional complaint, as stated above. The Supreme Court decided on
the appeal on a point of law that the petitioner filed concurrently, in
its decision of 24 February 2005, file no. 11 Tdo 211/2005, and denied
it under § 265i par. 1 let. a) of the Criminal Procedure Code.
21.
It is also evident from the file of the District Court of Prague 6 and
from documents sent by the Ministry of Justice that in the period after
the constitutional complaint was filed, the Provincial Court in
Nonthaburi decided, on 6 October 2004, under file no. BKh.Ph. 2988/2547,
that the royal pardon on the occasion of the birthday of the Thai queen
Sirikit reduced the petitioner’s total sentence by one-sixth, to 35
years, 8 months and 18 days. In the execution proceeding under § 455
par. 7 of the Criminal Procedure Code the District Court for Prague 6,
on 19 September 2005, by decision file no. 3 T 127/2003, reduced the
sentence accordingly. The documents requested by the Constitutional
Court from the file of the International Department of the Ministry of
Justice, file no. 1122/05-MO-M, also indicate, that on the occasion of
the 60th anniversary of the ascension to the throne of the Thai king,
Bhumibol Adulyadej (Rama IX), the petitioner received an additional
royal pardon, reducing the sentence by 5 years, 11 months and 13 days.
Thus, under the decision of the Provincial Court of Nonthaburi, file no.
BorKhor.OrPhor. 2726/2549, of 11 August 2006 the total length of the
sentence given to the petitioner by the Thai courts is 29 years, 9
months and 5 days.
22. The
Constitutional Court states that the constitutional complaint meets the
requirements provided by the Act on the Constitutional Court, and as
such it reviewed it for the claimed violation of the petitioner’s
rights. It concluded that the constitutional complaint can not be
granted.
IV.
Statutory Basis for the Contested Decisions
23.
The Constitutional Court must first point out that it is not a body for
the protection of any kind of subjective rights, but a body for the
protection of constitutionality, which follows from its settled case law
(available at www.judikatura.cz), based, in that sense, on Art.
83 of the Constitution, which defines the role of the Constitutional
Court. The Constitutional Court is also not a part of the general court
system, and therefore can not replace them in any phase of proceedings
or conduct itself as another level of them; thus, the Constitutional
Court can not assume to itself the right of review of their activities.
24.
In the presently adjudicated matter the Constitutional Court does not
dispute the petitioner’s opinion that the objections raised in the
constitutional complaint can generally be applied against the contested
decisions by the general courts on the execution of a decision by a
foreign court, and against the decision by the Supreme Court of 22 May
2003, file no. 11 Tcu 103/2003. Because under § 384a par. 1 of the
Criminal Procedure Code (in the version in effect through 31 October
2004) it decided to recognize a decision by a foreign court, it would,
in the Constitutional Court’s opinion, be possible to also raise the
possible violation of and individual’s fundamental rights and freedoms
against the decision by the Supreme Court, because in that kind of
proceedings (§ 384a of the Criminal Procedure Code in the version in
effect through 31 October 2004) the Supreme Court must decide with
respect for the constitutional order and the fundamental rights and
freedoms guaranteed in it, and interpret and apply a legal regulation as
much as possible in accordance with the essence of the fundamental
rights and freedoms. At the same time, it is evident from the mechanism
contained in the Criminal Procedure Code (in the version in effect
through 31 October 2004) that a decision to recognize a decision by a
foreign court is a necessary prerequisite for a court decision to
execute the decision of a foreign court (§ 384a of the Criminal
Procedure Code in the version in effect through 31 October 2004), so
these are decisions that relate to each and are related in content.
Thus, the protection of mandatory fundamental rights can not be reduced
in any phase of proceedings under Part Five of the Criminal Procedure
Code (in the version in effect through 31 October 2004).
25.
The decision of the District Court of Prague 6 in the matter of
execution of a decision by a foreign court in the petitioner’s matter
was made on the basis of § 384d of the Criminal Procedure Code, which
read as follows:
§ 384d
(1) The relevant court under § 14 to 18 shall rule on the execution of a decision by a foreign court in a public session by a decision. The convicted person must always have defense counsel in these proceedings.
(2) A sentence can be served in the Czech Republic in a greater scope than that permitted by Czech laws, if an international treaty by which the Czech Republic is bound so provides.
§ 384d
(1) The relevant court under § 14 to 18 shall rule on the execution of a decision by a foreign court in a public session by a decision. The convicted person must always have defense counsel in these proceedings.
(2) A sentence can be served in the Czech Republic in a greater scope than that permitted by Czech laws, if an international treaty by which the Czech Republic is bound so provides.
26. Such a treaty
is the Treaty between the Czech Republic and the Thai Kingdom on the
Transfer of Perpetrators and Cooperation in the Execution of Criminal
Judgments, signed on 26 April 2000 in Bangkok and promulgated as no.
107/2002 Coll.I.A. In relation to the objections in the constitutional
complaint, the Constitutional Court considers it suitable to quote these
articles from it:
Article 5
Preservation of Judicial Authority
As regards sentences that are to be served under this treaty, the transferring state shall keep the exclusive judicial authority concerning the decisions of its courts that imposed the sentences and any proceedings to review, adjust, or annul these decisions and sentences.
Preservation of Judicial Authority
As regards sentences that are to be served under this treaty, the transferring state shall keep the exclusive judicial authority concerning the decisions of its courts that imposed the sentences and any proceedings to review, adjust, or annul these decisions and sentences.
Article 6
Proceedings When a Sentence is Being Served
(1) Continuation of serving a sentence shall be governed by the regulations and procedures of the receiving state, including those that regulate the conditions for serving a prison sentence, protective measure, or other measure restricting a person’s liberty, and regulations that reduce the length of a prison sentence, protective measure or other measure restricting a person’s liberty by release on one’s own recognizance, conditional release, pardoning of a sentence.
(2) Except as provided in paragraph 3 of this article, the receiving state shall be bound by the nature and length of a sentence as imposed by the receiving state.
(3) No prison sentence shall be served in the receiving state so as to lengthen the period of the sentence provided in the decision of the court of the transferring state. The sentence served shall correspond as much as possible to the sentence imposed in the transferring state.
Proceedings When a Sentence is Being Served
(1) Continuation of serving a sentence shall be governed by the regulations and procedures of the receiving state, including those that regulate the conditions for serving a prison sentence, protective measure, or other measure restricting a person’s liberty, and regulations that reduce the length of a prison sentence, protective measure or other measure restricting a person’s liberty by release on one’s own recognizance, conditional release, pardoning of a sentence.
(2) Except as provided in paragraph 3 of this article, the receiving state shall be bound by the nature and length of a sentence as imposed by the receiving state.
(3) No prison sentence shall be served in the receiving state so as to lengthen the period of the sentence provided in the decision of the court of the transferring state. The sentence served shall correspond as much as possible to the sentence imposed in the transferring state.
V.
Objections against the Formal Requirementsof the Decision
27.
In relation to the petitioner’s object that the District Court for
Prague 6 decided inconsistently with the accusation principle, or
completely without a preceding criminal proceeding under the Czech
Criminal Procedure Code, the Constitutional Court must point to the
quite different purpose and particular concept of both the proceedings
on execution of a decision by a foreign court under Part Five of the
Criminal Procedure Code, in the version then in effect, and of criminal
proceedings, all of whose phases take place before domestic bodies
active in criminal proceedings, culminating in a court decision on guilt
and sentencing.
28.
Although the execution of foreign decisions is a proceeding under the
Criminal Procedure Code, its purposes, in contrast to the general
definition of the purpose of the Criminal Procedure Code (§ 1 of the
Criminal Procedure Code) is defined essentially differently, and
narrowly. Conceptually, and given the substance of the matter, there can
not be a concentrated (re)fulfillment of all principles governing the
criminal proceedings before the court that rules on the execution of a
foreign court’s decision. Such a concentration would necessarily have to
lead to performance of all steps, beginning with the opening of
criminal prosecution, and ending with a decision on the merits. In that
case there would de facto be a new proceeding, and in that regard there
would be, at a minimum, violation of the principle ne bis in idem.
However, in proceedings on execution of foreign decisions a domestic
court, in practice, continues the proceedings that took place and was
completed with binding effect by a valid and executable decision by the
relevant court in the foreign country whose jurisdiction is recognized
in the matter as regards a verdict on guilt and sentencing; it does not
decide on guilt and does not impose a sentence. Thus, in principle, the
decision of a domestic court is continued in the serving of the sentence
imposed by the decision of the foreign state.
29.
In his arguments, the petitioner points to the fact that the decision
of the District Court of Prague 6 included in the verdict a statement
that the petitioner, through the conduct described in the decisions by
courts of the Thai Kingdom, committed, “under the Criminal Code of the
Czech Republic, the crime of non-permitted production and possession of
narcotic and psychotropic substances and poisons under § 187 par. 1, 2
let. a) of the Criminal Code, and, under § 384d par. 2 of the Criminal
Procedure Code, shall serve a prison sentence of forty two years, ten
months and thirteen days.” It is quite clear from the verdict of the
contested decision (as it is contained without details of the facts in
the second paragraph in the reasoning of that judgment) and from the
reasoning, that the District Court for Prague 6 ruled in a proceedings
pursuant to section five, chapter twenty one of the Criminal Procedure
Code, in the version in effect through 31 October 2004, i.e. on
execution of a decision by a foreign court. The verdict of that judgment
refers to § 384d of the Criminal Procedure Code twice, and the District
Court for Prague 6 also expressly states that it is deciding “given an
unchanged verdict on guilt and sentencing” from the further specified
decisions by courts of the Thai Kingdom.
30.
Based on reviewing a number of documents in the relevant court file,
the Constitutional Court tends to believe that the petitioner,
represented by a qualified attorney, had not grounds for serious doubts
about the nature and essence of the proceedings conducted before the
District Court in Prague 6. In his appeal, the petitioner already raised
an objection analogous to that in the constitutional complaint. In that
regard, the Municipal Court in Prague, ruling in the appeal
proceedings, stated that “with this verdict the district court (note: in
Prague 6) only confirmed the requirement for the application of the
Treaty between the Czech Republic and the Thai Kingdom on the Transfer
of Perpetrators and Cooperation in the Execution of Criminal Judgments
under Article 3 let. a), consisting particularly of the requirement that
the acts for which a sentence was imposed meet the elements of a crime
under the legal regulations of the receiving state.”
31.
The Constitutional Court is of the opinion that the question of meeting
the conditions given by the Treaty between the Czech Republic and the
Thai Kingdom on the Transfer of Perpetrators and Cooperation in the
Execution of Criminal Judgments was already decided with binding effect
by the Supreme Court, in its decision of 22 May 2003, file no. 11 Tcu
103/2003, in which it decided to recognize the abovementioned decisions
by the courts of the Thai Kingdom. In that light, the cited part of the
verdict from the contested judgment of the District Court of Prague 6
appears redundant, although consistent with the cited Supreme Court
decision; in any case it appears to have no effect on the petitioner’s
constitutional rights. The Constitutional Court considers this objection
by the petitioner to be a mere formalistic criticism, which is not
capable of justifying annulment of the contested decisions in the scope
proposed, due to inconsistency with the rights and freedoms guaranteed
by the constitutional order.
VI.
32.
In the substantive part of the reasoning for the constitutional
complaint, the petitioner concludes that the contested decision violated
his fundamental right to not be tortured or subjected to cruel,
inhuman, or degrading punishment.
33.
Thus, it was the task of the Constitutional Court to determine whether
the decision made by the Czech Courts, to execute the Thai judgment,
violated the petitioner’s fundamental rights, in particular in view of
the length of the prison sentence. The following was taken into
consideration.
VI.a
Pacta Sunt Servanda
34.
The Constitutional Court states that the Czech Republic is bound by
international agreements, as follows from Art. 1 par. 2 of the
Constitution, under which “The Czech Republic shall observe the
obligations by which it is bound under international law.” This
provision reflects, among other things, the general natural law
principle accepted by the international community, pacta sunt servanda,
i.e. agreements should be observed. The degree to which a particular
state respects this principle is not only a contribution to
strengthening its own legal environment where citizen have confidence in
the law, but also a measure of the state’s trustworthiness in the
international community. It indicates a certain predictable conduct by
the subjects of international law, and permits the mutual expectation in
good faith that the commitments arising from international agreements
will be met, within the framework of the international ius cogens. A
certain order arising from international agreements appears to be the
most suitable environment for international cooperation, and within
that, the protection of a state’s interests, be they cultural, economic,
political, or humanitarian. Violation of international commitments
therefore does not lead only to international responsibility under
international law, but also to loss of the confidence of the
international community and to a worsening of cooperation between
states.
35. The Czech
Republic has a duty to observe its obligations arising from Art. 6 of
the Treaty between the Czech Republic and the Thai Kingdom on the
Transfer of Perpetrators and Cooperation in the Execution of Criminal
Judgments, published as no. 107/2002 Coll.I.A., regardless of the
domestic legal framework for substantive criminal law, as the petitioner
points out, or, more precisely, regardless of the length of sentence
that the legislature specified for similar conduct under the Czech
Criminal Code. The Czech Republic, as a party to the Treaty, when
signing it was undoubtedly aware of its domestic law and existing
international obligations (e.g. from the Convention for the Protection
of Human Rights and Fundamental Freedoms), and with that awareness it
undertook to fulfill the purpose of the treaty, i.e. to permit
foreigners who were imprisoned as a result of committing a crime to
serve their sentence in their own country. It can be assumed that
failure to fulfill the obligations arising from the Treaty would in
future make it more difficult, if not completely impossible, to
implement the substance of this exchange mechanism in the case of other
Czech citizens convicted and serving their sentence in the Thai Kingdom.
VI.b
Conflict of International Obligations
36.
The core of the petitioner’s arguments indicates that although he
himself initiated procedures under the Treaty between the Czech Republic
and the Thai Kingdom on the Transfer of Perpetrators and Cooperation in
the Execution of Criminal Judgments, he de facto considers
comprehensive performance of obligations under § 384d of the Criminal
Procedure Code, in the version in effect through 31 October 2004 (and
also corresponding to Art. 5 of the Treaty, under which the Thai Kingdom
retained exclusive judicial authority in the petitioner’s matter, and,
in particular, Art. 6 par. 2 of the Treaty, concerning the Czech
Republic’s obligation to respect “the legal nature and length of the
sentence”), as the executed Thai decisions provide, to be inconsistent
with other obligations of the Czech Republic, which are based in the
cited provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms, and similarly in the Charter of Fundamental
Rights and Freedoms. In this case the Constitutional Court on a general
level agrees with the petitioner’s implicit starting point, that in the
event of a conflict between obligations from treaties on the protection
of human rights and obligations from international treaties, the
obligation to protect fundamental rights always has priority. “Respect
for and protection of fundamental human rights are defining elements of a
substantively understood law-based state; therefore, in the event that a
contractual obligation protection a fundamental right and a contractual
obligation that is aimed at endangering that right, the first
obligation must prevail,” as the Constitutional Court concluded, with
reference to Art. 1 par. 1 of the Constitution, in judgment file no. I.
US 752/02 (judgment of 15 April 2003, available at
www.judikatura.cz). Thus, the obligation to protect a fundamental
right understandably limits the interpretation and application of a
domestic legal framework (§ 384d of the Criminal Procedure Code, in the
version in effect through 31 October 2004), even thought it expressly
permits a procedure pursuant to an international treaty. However, in the
presently adjudicated matter the Constitutional Court did not conclude
that a conflict between the Czech Republic’s international law
obligations exists, as explained below.
VI.c
Exclusive Judicial Authority of the Thai Court
37.
The traditional doctrine for analyzing relations in the area of
international cooperation in criminal matters is based on the principle
of the equality of sovereign states. An accompanying element of this
internal sovereignty is the power to provide or find law, and
subsequently to exercise these findings, generally called jurisdiction.
Fundamental factors limiting state jurisdiction are the principle of
territoriality, aimed at execution of state authority (only) in the
state’s territory and in its borders, as well as the principle of
passive personality, active personality, the principle of protection,
and the principle of universality (with reference to other authors, e.g.
Kloučková, S. – Fenyk, J.: Mezinárodní justiční spolupráce v trestních
věcech [International Judicial Cooperation in Criminal Matters], 2nd
updated and amended edition, Linde Praha, 2005, pp. 15-20, pp. 407-408).
The execution of a judgment from one state in the territory of a
foreign state necessarily leads to conscious and voluntary weakening of
the sovereignty of the state in whose territory the foreign judgment
will be executed. A state’s right to prosecute the crimes committed in
its territory through its own legal order is, in the case of some
serious crimes, a mere authorization, but also an obligation upon the
state, arising from international treaties. The agreement in the
international community as to the seriousness of conduct related to
business with drugs and psychotropic substances was expressed in a
number of international law documents, especially in the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, signed on 20 December 1988 in Vienna. In accordance with
fundamental sovereign equality and territorial inviolability of states
and the principle of not interfering in the domestic affairs of other
states, the parties to that Treaty undertook to criminally prosecute a
range of actions connected with the manufacture of drugs and
psychotropic substances, and the subsequent trade in and distribution of
them. The parties are also bound to set such sentences for these
crimes, including, e.g., prison sentences, that will take into
consideration the social gravity of these crimes. Decision-making
authority in such criminal matter is supposed to be exercised for
purposes of attaining the maximum effectiveness of enforcement measures
for those crimes, as well as in view of the urgent need to prevent the
commission of such crimes.
38.
In Article 5 of the Treaty between the Czech Republic and the Thai
Kingdom on the Transfer of Perpetrators and Cooperation in the Execution
of Criminal Judgments the parties expressly preserved their exclusive
judicial authority concerning the judgments made by their courts, the
sentences imposed by these courts, and any proceedings to review, amend,
or annul these judgments and sentences.
39.
In the case of proceedings on the execution of a criminal judgment by a
foreign state, when the exclusive judicial authority of the state
transferring the perpetrator to serve his sentence is expressly
preserved, the judicial body that decides on execution of the judgment
does not have the same position as the judicial body that imposed the
sentence. Because the court of the receiving state decides only on the
(continuation of) serving of the sentence, it fundamentally can not
decide on any objections against the already effective decisions on
guilty and the length of the sentence. Objections against the length of a
prison sentence, with reference to the differing legal orders of the
transferring and receiving state are fundamentally not subject to review
on proceedings under § 384d of the Criminal Procedure Code (in the
version in effect through 31 October 2004).
VI.d
Basic International Standards for Transfer of a Person for Execution of a Criminal Judgment
40.
In a case of implementing the transfer of a perpetrator for execution
of a judgment by a foreign state to the receiving state, especially in
the case of states from different social-cultural circles, questions
always necessarily arise about the compatibility of the legal orders,
principles controlling criminal punishment, or other social norms. The
states, motivated for a number of reasons by the interest in a
functioning mechanism for mutual transfer of convicted persons for the
execution of criminal judgments – to serve a sentence, as a rule, in the
state where the perpetrator is a citizen – have formulated rules in
international agreements that are to limit the negative effects of that
process on the convicted (transferred) persons. Such negative effects
are primarily any overall worsening of conditions and the substance of
serving a sentence by the convicted person in the receiving state,
compared to the situation in which the convicted person found himself in
the transferring state. Such overall worsening of the convicted
person’s situation can have a number of causes stemming from the
differences between the legal system.
VI.e
Cruel, Inhuman Punishment, and Degrading Punishment
41.
The Convention for the Protection of Human Rights and Fundamental
Freedoms, in Art. 3, and the Charter of Fundamental Rights and Freedoms,
in Article 7 par. 2, on which the petitioner relies, contain a
prohibition on torture and other forms of cruel, inhuman, and degrading
treatment, with no exceptions (cf. Art. 15 par. 2 of the Convention for
the Protection of Human Rights and Fundamental Freedoms). A similar
prohibition is contained in two other international law documents (The
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, promulgated as no. 143/1988 Coll.). However,
none of the provisions which the petitioner cites contains a more
detailed definition or delineation of particular conduct or the
relationship between the concepts “torture,” “cruel,” “inhuman,” and
“degrading.”.
42. The
Constitutional Court emphasizes that cruelty and inhumanity of treatment
or punishment can not be measured according to criteria given in
advance, but always by thoroughly weighing all circumstances of a case.
However, generally we can assume that inhuman and cruel treatment or
punishment is always a combination of various factors that culminate in
an individual’s intense physical and psychological suffering. However,
merely serving a long prison sentence, if it takes place in an
environment that respects human dignity, is not, in and of itself, cruel
or inhuman treatment, if it is not accompanied by other serious
(objective) inadequacies in the manner in which that sentence is served,
as is standardized in the civilized world, or by the prisoner’s serious
health and psychological problems. However, the petitioner did not
claim any such facts in the constitutional complaint.
VI.f
Proportionate Length of the Sentence
43.
In the present case, the question raised by the petitioner about the
proportionateness of the length of the prison sentence, or its “gross
disproportionateness,” in relation to the maximum permissible sentence
contained in the Czech Criminal Code for similar conduct, was not, and
could not have been, subject to review by the district court or the
municipal court, nor is it a constitutionally relevant objection in the
proceeding before the Constitutional Court. The petitioner was not
sentenced by a Czech court, but, as a Czech citizen, by a court of the
Thai Kingdom, for an intentional crime that he committed in the
territory of the Thai Kingdom, and under the legal order of the Thai
Kingdom. In our time, even a person without legal education has
sufficient knowledge to realize that different countries have different
legal orders, corresponding to the particular history of the particular
country and its social, economic, and cultural development, i.e.
including possible differences in punishment for crimes. In the case of a
serious crime, on whose elements the international community is in
agreement, the decisive factor is not only the subjective feeling of
“gross disproportionateness” of the sentence being served in comparison
to a reference level that the petitioner himself determines, e.g. by
reference to the sentencing levels contained in the (Czech) criminal
code.
44. Insofar as the
petitioner concludes that the punishment is proportionate or
disproportionate based on the will of the Czech legislature expressed in
the law, i.e. when he claims that the Czech legislature expressed its
idea of a proportionate punishment for conduct analogous to the
petitioner’s in § 187 of the Criminal Code (the crime of non-permitted
manufacture and possession of narcotic and psychotropic substances and
poisons), where, according to the petitioner, sentencing standards with a
maximum of ten years would be applied, and thus in comparison with that
provision the sentence being served appears disproportionate, cruel, or
inhuman, the Constitutional Court must equally point to the will of the
legislature expressed in other provisions, where it expressly enacted
in § 384d par. 2 of the Criminal Procedure Code, in the version in
effect through 31 October 2004, the possibility of serving in the Czech
Republic a sentence that is longer than that permitted by Czech law, if
provided by an international treaty. Likewise, the Constitutional Court
believes that the legislature expressed its will at the point when it
expressed consent with the Treaty between the Czech Republic and the
Thai Kingdom on the Transfer of Perpetrators and Cooperation in the
Execution of Criminal Judgments, signed in Bangkok on 26 April 2000,
which contains provisions on the binding nature of the length of a
sentence as imposed by the transferring state (Art. 6 par. 2 of the
Treaty), and also approved the Treaty at a time when it was aware of the
fate of this particular petitioner (see the transcript from the session
of the Chamber of Deputies of the Parliament of the CR of 15 February
2002 concerning Chamber of Deputies Publication no. 1018, available at
www.psp.cz, and the transcript of the session of the Senate of
the Parliament of the CR of 15 March 2002 concerning Senate Publication
no. 219, available at www.senat.cz).
45.
Thus, in the case of a decision on execution of a criminal judgment of a
foreign state n the territory of the Czech Republic, in proceedings on
the execution of decisions of foreign courts under § 384d of the
Criminal Procedure Code, in the version in effect through 31 October
2004, we can not conclude that intervention by the public authorities is
constitutionally disproportionate only from comparing the length of the
sentence and the sentencing standards for an analogous crime under the
Czech Criminal Code.
46. In
addition, we can point out, over and above the foregoing, that the
arguments of the petitioner, who considers the key question to be what
the priority is in a case of conflict between two different ideas of the
need for a sentence to have an effect on the convicted person, i.e. the
idea of the Czech legislature in the European social-cultural
environment, and the Thai legislature, anchored in different values, is
also weakened when face to fact with the cruel reality of the world-wide
phenomenon of serious crime connected with the manufacture and trade in
drugs, which has not had a significant decline in any of the affect
regions (see United Nations Publication: 2005 World Drug Report, Volume
1: Analysis. Volume 2: Statistics. UN Office on Drugs and Crime, ISBN
92-1-148203-8, Printed in Slovakia, June 2005. or United Nations
Publication: Report of the International Narcotics Control Board for
2005. International Narcotics Control Board, E/INCB/2005/1, ISBN
92-1-148209-7, ISSN 0257-3717, Printed in Austria, January 2006.) In
recent times we can see in European countries as well the trend to
increase punishment for the illegal drug trade (see European Monitoring
Centre for Drugs and Drug Addiction: Annual Report 2005: The State of
the Drug Problem in Europe. Office for Official Publications of the
European Communities, ISBN 92-9168-227-6, Luxembourg, 2005, p. 18). To
what extent this trend will manifest itself in the Czech legal order is a
topic for academic deliberation de lege ferenda.
VI.g
Legitimate Aim of the Execution of Thai Criminal Judgments in the Czech Republic
47.
It is evident to the Constitutional Court, on the basis of generally
known information from publicly available sources (daily reportage,
reports from international organizations), that the Thai Kingdom, thanks
to its location and geographic conditions, i.e. in the “Golden
Triangle,” has struggled for a long time with a high level of crime
related to the manufacture and trade of drugs. At the same time, it is
known that the petitioner is certainly not the only or first foreigner
convicted in the Thai Kingdom in connection with the illegal drug trade.
Drug smugglers are undoubtedly motivated by financial gain, as the
smuggled drug increases considerably in value with each international
border crossed, and that interest evidently outweighs the fear of
possible strict punishment or the awareness of the destructive effect of
drugs on the mental and physical health and family or social position
of drug users at the end of the distribution chain.
48.
In various states the aims of the legislature in the area of criminal
law, including sentences, are always derived from extra-legal
considerations based on political, social and moral principles, although
the execution of criminal justice itself is controlled purely by legal
principles. Therefore, the length of the sentence in and of itself can
not be disproportionate universally, but only in view of the particular
circumstances of the imposition of the sentence, the legal, social, and
cultural context. The sentencing standards for particular conduct set by
the legislature provide an acceptable (possible) sentence; the judicial
authority then, in particular circumstances, imposes the appropriate
sentence. In these bounds, in various legal environments, the
regulatory, protective, preventive, and individually repressive
functions appear in various proportions (cf. e.g. Kalvodová, Věra:
Postavení trestu odnětí svobody v systému trestněprávních sankcí. [The
Position of Prison Sentences in the System of Criminal Law Penalties.]
Masarykova univerzita v Brně [Masaryk University, Brno], 2002, p. 85.).
While the additional function of revenge is not particularly evident in
Czech criminal law theory, Thai doctrine considers it to be one of the
starting points for serious crimes (see Suparp, Utid: The Philosophy of
Criminology when Sentencing in Thai Courts: A Case Study of Intentional,
Negligent and Provoked Criminals. In Online Thailand Law Journal, Issue
2 - Spring, 2005. Http://www.thailawforum.com).
49.
The Thai Act on Dangerous Narcotic Substances from the year 2522 in the
Brahman calendar (1979 A.D.) indicates that a person who produced,
imports or exports narcotics will receive a life prison sentence. If the
crime is committed for purposes of distribution, it will be punished by
the death sentence. These provisions undoubtedly seem very strict in
the European context, and in part they allow the death sentence, which
is in sharp conflict with Protocol no. 13 to the Convention for the
Protection of Human Rights and Fundamental Freedoms, concerning repeal
of the death penalty under all circumstances. The petitioner was
originally given a prison sentence of 50 years; after taking into
account the royal pardons, it is 29 years, 9 months and 5 days. This is
undoubtedly a long-term sentence.
50.
It is also evident from the petitioner’s statement before the District
Court for Prague 6 that the conditions for serving the sentence in Thai
prisons were completely inadequate, with inadequate hygienic and social
facilities. The material conditions for serving a sentence in Thai
prisons, as described by the petitioner, completely fail to meet the
standards guaranteed in Europe by international law documents and Czech
domestic law. The dismal conditions for serving a jail sentences are
also documented in reports from international organizations
(approximately the same time of the petitioner’s sentence in Thailand is
described in the report Question of the Human Rights of All Persons
Subjected to Any Form of Detention or Imprisonment, in Particular:
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
published by the Commission on Human Rights as file no.
E/CN.4/2002/76/Add1 on 14 March 2002) and a number of publicly available
reports in the print and electronic media, reflecting the individual
experiences of other foreign nationals serving prison sentences in the
territory of the Thai Kingdom. Moreover, the petitioner’s statement
before the District Court for Prague 6 states that when serving his
sentenced he was placed in a cell together with perpetrators of serious
violent crimes, which exposed him to the danger of physical attacks.
This practice too, of placing perpetrators of drugs offenses in cells
together with the perpetrators of other crimes in Thai prisons is
subject to criticism on a number of grounds (see the cited Report from
the Commission on Human Rights, file no. E/CN.4/2002/76/Add1).
51.
The Constitutional Court sees the institution of execution of a
criminal judgment of a foreign state, in relation to the citizen of the
country where the judgment is to be executed, as having a different
purpose than that pursued by a Czech court when deciding on guilt and
sentencing, on the basis of all phases of criminal proceedings under the
Criminal Procedure Code. The central principle for a court’s decision
on the execution of a criminal judgment of a foreign state is a change
in the conditions for serving the sentence, which can not result in an
overall worsening of the convicted person’s position. This institution
of execution of the criminal judgment of a foreign state is primarily an
expression of society’s effort to mitigate the negative effects
connected with serving a sentence abroad, sometimes in an environment
that is culturally and socially different from European conditions. The
level of social and economic development in a particular country
generally also has an effect on the quality of conditions in prison
facilities, which are also reflected in the overall effects on the
convicted person of serving a sentence. Serving a sentence in
non-standard or extreme conditions undoubtedly reduces the effectiveness
of the primary functions of a sentence, as they are generally
understood by criminal law scholarship. It is a legitimate aim of the
legislature to protect its own citizens from these negative effects,
going beyond the framework of the effects that belong to a particular
type of punishment based on its own nature. The purpose of steps by the
state that permit the execution of a foreign criminal judgment on its
own territory is thus primarily a humanitarian influence on the
convicted person, whose aim is to remove the excess of negative
influences, at his own request, but not the reduction of a sentence,
especially when preserving the length of a sentence is an express
condition of the transferring state (Art. 6 par. 2 of the Treaty).
52.
Serving a prison sentence in an environment that is familiar to the
convicted person, including, for example, an environment where he can
communicate in his native language, undoubtedly performs its function
better, because there is not such a great loss of social and family
ties, which, for example, makes the convicted persons’ integration into
society after release less problematic. Thus, serving a sentence in
one’s native country offers more chances for effective fulfillment of
the function of punishment. Apart from that, it is evident that
execution of a foreign criminal judgment with a prison sentence in one’s
home country also eases the situation for the convicted person’s
relatives, who can thus more easily maintain the necessary contact with
him; easing the work load of consular offices in the transferring state
is also a positive accompanying effect.
53.
In his constitutional complaint, the petitioner claims that serving a
prison sentence in the Czech Republic of 42 years, 10 months and 13 days
(however, after taking into account the royal pardons it is 29 years, 9
months and 5 days), is in and of itself a cruel and inhuman punishment.
However, in view of the relevant case law of the European Court of
Human Rights, the Constitutional Court is of the opinion that the point
of the right not to be tortured or subjected to cruel, inhuman or
degrading treatment is protection of human dignity and an individual’s
physical and mental integrity. A cruel and inhuman punishment is one
that in its essence, purpose, or intensity causes intolerable physical
pain or serious psychological suffering. However, the Constitutional
Court does not believe that serving a long prison sentence, in light of
the petitioner’s arguments, in and of itself causes such suffering as
would be the result of cruel and inhuman treatment. In view of the
legitimate purpose of the legal framework permitting serving sentences
from Thai court judgments of a greater length than that permitted by the
Czech Criminal Code, which was primarily to mitigate the negative
effect of the conditions in Thai prisons on Czech citizens convicted in
Thailand, and regarding the petitioner’s own will, which he expressed
when he initiated his transfer to serve the criminal judgment in the
territory of the Czech Republic, the contested decisions of the general
courts do not appear to be disproportionate to the petitioner’s
interests protected by constitutional rights.
VI.h
Consideration of the Conditions for Serving the Sentence in Czech Prisons
54.
Although the petitioner does not object in more detail in the
constitutional complaint, the Constitutional Court also weighed whether
serving a long prison sentence could be considered cruel and inhuman in
view of the general conditions in Czech prisons, as guaranteed by Act
no. 169/1999 Coll., on Serving Prison Sentences and Amending Certain
Related Acts, as amended by later regulations. That states, among other
things (§ 2), that a sentence can be served only in a manner that
respects the personal dignity of the convicted person and limits the
damaging effects of being deprived of liberty; however, it may not
endanger the need to protect society. Convicted persons serving
sentences must be treated in a dignified manner so as to preserve their
health, and if the length of the prison sentence permits, to support
such positions and skills as will help the convicted persons return to
society and enable them, after their release, to live an independent
life in accordance with the law. The Czech legal framework for serving
prison sentences is generally judged positively, and international
organizations do not raise such objections against Czech prison
practices as would in any way affect the petitioner’s situation (see
Conclusions and Recommendations of the Committee against Torture: Czech
Republic. 03/06/2004. CAT/C/CR/32/2.). Even the consideration covering
the standards in Czech prisons does not lead the Constitutional Court to
conclude that with a long prison sentence there might be substantial
grounds to believe that such a sentence would in and of itself lead to
disproportionate physical or mental suffering, or cruel or degrading
treatment.
VI.ch
The Reality of Thai Royal Pardons
55.
Moreover, as regards the total length of the prison sentence that the
petitioner is serving, the Constitutional Court could not overlook the
fact that, in accordance with Art. 5 a Art. 6 par. 4 of the Treaty, the
Thai authorities can reduce, lighten, or end the petitioner’s sentence,
and the Czech authorities must respect and implement that decision. In
the Thai Kingdom, according to traditional doctrine, the king is
considered to be the source of power in the state. Court judgments are
announced in the name of the king. In that domestic legal order, royal
pardons are widely issued on the basis of a petition, or, for example,
on the occasion of important holidays and anniversaries in the royal
family) (Individual Royal Pardon, or Collective Royal Pardon). It is
evident from the documents in the file of the District Court of Prague 6
file no. 3 T 127/2003 that the petitioner’s sentence was reduced to 42
years, 10 months and 13 days, by a Thai court decision of 12 July 1996,
on the basis of a royal pardon. In the period after the constitutional
complaint was filed, the Provincial Court of Nonthaburi decided, on 6
October 2004, in file no. BKh.Ph. 2988/2547, that the petitioner’s total
sentence was reduced by a royal pardon on the occasion of the birthday
of the Thai queen Sirikit, by one sixths, to 35 years, 8 months and 18
days. On the occasion of the 60th anniversary of the ascension to the
throne of the Thai king, Bhumibol Adulyadej (Rama IX), the petitioner
received another royal pardon, shortening his sentence by 5 years, 11
months and 13 days, to a total of 29 years, 9 months and 5 days.
56.
In the Thai justice system a royal pardon is not an institution that
exists in the legal system only formally, or is used only in exceptional
cases, but it is applied in order to achieve a number of various aims,
which include, apart from correcting judicial error in individual cases,
guarantees of the equal rights of all convicted persons, the effort to
maintain stain unity, providing new chances to convicted persons,
emphasizing events of national importance, and maintaining international
relationships (Kalyanasuta, K. – Suriyawong, A.: The Criminal Justice
System and Community-based Treatment of Offenders in Thailand. Published
in: Annual Report for 2002 and Resource Material Series No. 61, Asia
and Far East Institute for the Prevention of Crime and the Treatment of
Offenders (UNAFEI), Tokyo, Japan, September 2003, p. 281. Available at
www.unafei.or.jp). The real, although in an individual case
uncertain, effect of the institution of a Thai royal pardon seems to be
confirmed by statistics: royal pardons granted in 1977-1999 each applied
to tens of thousands of convicted persons, who were released or had
their sentences reduced (ibid., gable on p. 282). Obiter dictum it is
possible, taking into account the fact that the petitioner was
originally given a prison sentence of fifty years, reduced three times
by royal pardons, to note that it is thus impossible to speak of the
total length of the petitioner’s sentence with absolute certainty.
VII.
Decision of the Constitutional Court
57.
The Constitutional Court reviewed the contested decisions of the
general courts in terms of constitutionality, and concluded that they
did not step out of the bounds of the constitutional order. The source
of the petitioner’s arguments is the length of the sentence, or
disproportionateness of the sentence imposed on him by the courts of the
Thai Kingdom. He criticizes the general courts for accepting, in their
decisions (recognition and execution of the judgment of a foreign state)
a sentence whose scope is beyond that of sentences imposed for a
similar offense in the Czech Republic. He considers the recognition and
execution of such a sentence to be unconstitutional, cruel and inhuman
treatment. The Constitutional Court emphasizes that in the adjudicated
matter it is not entitled, with reference to the international treaty,
to interfere in the jurisdiction of the Thai courts. It can not be
overlooked that the petitioner, although now in the territory of the
Czech Republic, is still, as regards guilty an sentencing, in the
exclusive judicial jurisdiction of the Thai authorities under Art. 5 of
the Treaty.
58. Thus, the
Czech authorities can not decide on objections aimed essentially against
the Thai conviction decisions, because the Czech Republic would then be
in conflict not only with the principle pacta sunt servanda, but also
with the principle of good faith, which are the foundation stone of
international treaty law, and their importance is strengthened by the
fact that they have been incorporated in the preamble of the UN Charter.
The principle of good faith is a fundamental rule of interpretation in
the analysis of the texts of international obligations. They must be
interpreted in good faith, taking into account the entire context of the
treaty, and in light of the aim and purpose for which it was concluded.
The aim and purpose of the treaty concluded between the Thai Kingdom
and the Czech Republic was to bring the petitioner, at his request, to
his home environment, closer to his family and friends, and enable him
to serve the remainder of his sentence at home, in his native land.
Therefore, in that light, the petitioner’s request, that the
Constitutional Court, due to formal error, which is far from reaching a
constitutional level, annul the decisions of the Czech general courts
and release the petitioner, will not stand. If the Constitutional Court
granted the petitioner’s request, it would violate not only Art. 1 par. 1
and par. 2 of the Constitution of the Czech Republic, but also its
trustworthiness in international relations.
59.
The Constitutional Court is convinced that these conclusions will
stand, not only in the context of other provisions contained in the
constitutional order of the CR, in particular the Charter, but also in
the context of other international obligations, in particular of the
Convention for the Protection of Human Rights and Fundamental Freedoms,
by which it is bound.
60. In
view of the foregoing the Constitutional Court did not incline toward
the petitioner’s opinion that the decisions by the general courts in the
execution proceedings violated his right to a fair trial or his right
not to be subject to cruel, inhuman or degrading punishment. After
thoroughly considering the purpose of the applied legal framework,
permitting a sentence to be served in the Czech Republic whose scope
exceeds that of sentences for similar offences, and after comparing the
specific conditions for serving a sentences in the Thai Kingdom and in
the Czech Republic, the Constitutional Court saw no grounds to annul the
contested decisions.
61.
Therefore, the Constitutional Court denied the constitutional complaint
in its entirety under § 82 par. 1 of the Act on the Constitutional
Court.
Instruction: Decisions of the Constitutional Court can not be appealed.
Brno, 21 February 2007
Instruction: Decisions of the Constitutional Court can not be appealed.