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HEADNOTES
The
principle of a law-based state, also comprising the principle of the
rule of law, requires utter dominance of rights as opposed to influences
exerted by an arbitrarily exercised power. This principle eliminates
the existence of arbitrariness and, naturally, prerogatives; it even
eliminates broadly conceived competences on the part of bodies holding
executive power, when such bodies exercise the functions of state
administration, partially formed by the police.
Order
in a law-based state is preconditioned by the state monopoly of power,
which is to serve to enforce the right to protection of citizens and to
ensure their freedoms. In a law-based state, merely the power
established and bounded by law legitimates the monopoly of power. Thus
state power may only be exercised with respect to the limits imposed on
it by the fundamental rights and freedoms of individuals.
Human dignity as a value is intrinsic to the foundations of the entire scheme of fundamental rights as contained within the constitutional order. The entitlement of every individual to enjoy respect and recognition as a human being is related to human dignity, implying a prohibition of rendering a man a mere object of a state’s will, or prohibition of exposing a person to such actions which cast doubts on such a person’s quality as a subject.
Human dignity as a value is intrinsic to the foundations of the entire scheme of fundamental rights as contained within the constitutional order. The entitlement of every individual to enjoy respect and recognition as a human being is related to human dignity, implying a prohibition of rendering a man a mere object of a state’s will, or prohibition of exposing a person to such actions which cast doubts on such a person’s quality as a subject.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A Panel of the Constitutional Court of the Czech Republic, consisting of Chairman Jiří Nykodým and Justices Stanislav Balík and Eliška Wagnerová (Justice Rapporteur), adjudicated on 29 February 2008 in the matter of a constitutional complaint filed by Mgr. Jan Šimsa, represented by JUDr. Jiří Machourek, an attorney at law with a registered office at No. 3, Moravské Sq., Brno, against a decision by the Supreme Court of 28 June 2007, file No. 4 Tz 47/2007, as follows:
I.
The decision by the Supreme Court of 28 June 2007, file No. 4 Tz
47/2007 violated a fundamental right of the petitioner guaranteed by
Art. 10 para. 1 of the Charter of Fundamental Rights and Basic Freedoms.
II. Therefore, this resolution shall be annulled.
II. Therefore, this resolution shall be annulled.
REASONING
I.
1.
In the constitutional complaint delivered to the Constitutional Court
on 30 August 2007, the petitioner sought the annulment of the
above-specified resolution, asserting that by such a resolution the
Supreme Court violated his fundamental right guaranteed by Art. 36 para.
1 of the Charter of Fundamental Rights and Basic Freedoms (hereinafter
“Charter”).
2. The
constitutional complaint is admissible (§ 75 para. 1 a contrario Act No.
182/1993 Coll. on the Constitutional Court, as amended by later
regulations (hereinafter “Act on the Constitutional Court”)), was filed
timely and meets other particulars required by law [§ 30 para. 1, § 72
para. 1 clause a) of the Act on the Constitutional Court].
3.
The petitioner claims that the violation of his right to a fair trial,
such violation being proclaimed in the constitutional complaint,
consisted particularly of the fact that the Supreme Court did not
discharge its reviewing obligations under the provisions of § 267 para. 3
of the Criminal Procedure Code in several aspects.
4.
In the petitioner’s opinion, the Supreme Court has failed to review
sufficiently, and from all aspects, the objection of absence of a
material attribute in accordance with § 3 para. 2 of the Criminal Code
regarding a criminal act of assault on public officials in accordance
with § 155 para. 1 of the Criminal Code, contained in the complaint on
the violation of the law, that is i.a. from the viewpoint of
circumstances under which the act was committed. The petitioner believes
that while the criminal prosecution against him was conducted for the
criminal act of assault on public officials, the case was actually a
political one. This results not only from the fact that the domiciliary
search was undertaken on the basis of commencement of criminal
prosecution for the criminal act of subversion of the state in
accordance with § 98 of the Criminal Code in the wording then in force,
but also from preserved materials secured by the Office of Documentation
and Investigation of the Crimes of Communism. The petitioner further
stated that both he and his wife, within the first-instance proceedings,
futilely demanded that a file from the State Police investigator,
containing a decision made by an investigator of the Investigation
Administration of the State Police in Prague of 6 January 1977, be
appended. On the basis of such decision this criminal prosecution in
accordance with § 160 para. 1 of the Criminal Procedure Code in the
wording then in force, for the criminal act of subversion of the state
in accordance with § 98 para. 1 of the Criminal Code (see the copy of
the decision of the Regional Administration of the National Security
Corps, State Police Branch in Brno of 31 May 1978, investigation file
No. VS-3/120-77), was commenced against him. The petitioner is convinced
that the criminal prosecution for the criminal act of subversion of the
state was in fact commenced in connection with the issue of Charter 77,
after which all the signatories thereof were subjected to domiciliary
searches, and the institute of commencement of a criminal prosecution
‘in general case’ was abused for the political persecution of persons
the regime found an inconvenience. Such persecution particularly took
place on days of various anniversaries or during various visits by
Communist functionaries, during which the appearance of anti-socialist
protestors could be expected. According to the petitioner, this was true
in his case, since he, alongside many other inconvenient persons, was
detained one day prior to a visit to Prague by L. I. Brezhnev, Secretary
General of the Communist Party of the Soviet Union. Within the scope of
this detention, the domiciliary search in question was conducted. The
petitioner emphasised that such a procedure was in conflict even with
the Criminal Procedure Code valid at the time, since the State Police
investigator was obliged to commence a criminal prosecution against a
specific person or to suspend the case. In the given instance, however,
on the basis of commencement of criminal prosecution “in general case”
on 6 January 1977, charges in accordance with the then valid provisions
of § 163 of the Criminal Procedure Code were never brought against him,
which according to the petitioner must also have been known to the
Regional Court – see leaf number 145 of the file. Nevertheless, he was
detained and domiciliary search at the petitioner’s flat was conducted
in the period of one year and five months from the date of the
commencement of criminal prosecution ‘in general case’. The petitioner
thus assumes that, in the context of Act No. 198/1993 Coll. on the
Lawlessness of the Communist Regime, with respect to the circumstances
of the case specified above, and with respect to the contents of the
filing of the petitioner and his wife within the first-instance
proceedings, the Supreme Court must have known that the petitioner had
been subject to persecution for a considerable period under the
Communist regime and, for this reason, the process was a political one.
(For a more apposite description of the situation at the time, the
petitioner has amended his constitutional complaint with a Notification
of Charter 77, as published in 1978 in Information on Charter 77).
5.
An additional circumstance of the case which, according to the
petitioner, the Supreme Court has not taken into account at all,
consisted of lapses by courts in both instances which concluded that
within a domiciliary search a person has to be neither called on to
voluntarily surrender an object nor instructed of the consequences of
failure to do so. In the case of forfeiture of an object under the
conditions of § 82 of the Criminal Procedure Code in the wording then in
force, the person holding the object in question had to be called upon
to hand it over. This error has never been rectified, not even by a
court of appeal. Additionally, the petitioner claims the conclusion of
the first-instance court that the medical report proved a National
Security Corps officer was struck in the face, cannot stand, since light
concussion was diagnosed solely on the basis of subjective information
from the aggrieved, and the haematoma and damage of oral mucosa could
have been caused by a fall of the aggrieved on a bed. The fact that the
aggrieved M. Bata sought medical care as late as the second day
following the incident is also of interest.
6.
The last aspect in which, according to the petitioner, the Supreme
Court has failed to discharge its obligation to review, and thus
violated the petitioner’s right to a fair trial, is the fact that the
Supreme Court has not acknowledged as justified the objection relating
to the inadequacy of the unconditional sentence of imprisonment awarded.
On the contrary, the Supreme Court stated that the court of the first
instance proceeded, in the assessment of evidence, strictly in
accordance with § 2 para. 6 of the Criminal Procedure Code, assessed the
evidence according to inner conviction based on careful consideration
of all the circumstances of the case separately and in combination,
coming to logically reasoned findings of a complete and factual nature.
In connection to this, the petitioner expressed surprise at hearing that
in the year 2007, the Supreme Court may state that the punishment could
have been considerably harsher, since the actions of the petitioner
might minimally have been defined as the criminal act of attempted
assault on public officials, according to a stricter definition as
specified under para. 2. The petitioner was astonished by the word
minimally, from which it may be concluded that the Supreme Court could
be considering that significantly harsher elements under the then valid
Criminal Code might have been fulfilled, such as the criminal act of
subversion of the state.
7.
Upon notice from the Constitutional Court, the Supreme Court,
represented by JUDr. Jiří Pácal, supplied a statement concerning the
constitutional complaint, which referred to reasoning pertaining to the
contested decision and the arguments contained therein. Moreover, the
Supreme Court noted that by stating that, with respect to the
circumstances of the case, the act in question could minimally have been
defined as the criminal act of attempted assault on public officials in
accordance with § 155 para. 1, para. 2 of the Criminal Code, the Court
meant that even a legal definition in accordance with § 8 para. 1, § 155
para. 1 and para. 3 of the Criminal Code was called into question.
Therefore, the Supreme Court concluded that since it can not be
considered that the contested resolution might have violated the right
of the petitioner to a fair trial, the review of the decision of the
Supreme Court from the viewpoint of the legal opinion stated therein is
inadmissible, and proposed that the constitutional complaint be denied
by a decision as clearly unjustified.
8.
Under the provisions of § 44 para. 2 of the Act on the Constitutional
Court, the Constitutional Court may, upon approval by the parties,
dispense with an oral hearing, unless such a hearing is expected to
clarify the case further. The parties granted their respective approvals
and an oral hearing was not held.
II.
9.
In order to assess the objections and statements of the petitioner and
the party to the proceedings, the Constitutional Court requested a file
from the Municipal Court in Brno, file No. 5 T 195/98, and a file from
the Supreme Court, file No. 4 Tz 47/2007, from which the Constitutional
Court ascertained the following facts.
10.
By judgment of the Municipal Court in Brno, dated 30 August 1978, file
No. 5 T 195/78 (leaf numbers 81-84 of the Municipal Court file), the
petitioner was found guilty of “assaulting Lt. M. Bata, an officer of
the National Security Corps, on 31 May 1978 at approximately 3.30 p.m.
in Šimsa’s flat in Brno, No.12 Volfova Street, during a domiciliary
search which was held on the basis of a decision made by an investigator
of the Regional Administration of the National Security Corps in Brno,
by knocking him on the bed and punching him in the face, i.e. violence
was used with the intention of affecting powers being exercised by the
public official.” This act was defined as the criminal act of assault on
public officials (§ 155 para. 1 clause a)) of the Criminal Code in the
wording then in force), and a sentence of imprisonment for eight months
was imposed on the petitioner. Within their reasoning, the Municipal
Court included that “(…) defence of the defendant was positively refuted
by testimonies by witnesses M. Bata and J. Domínek, who were heard by
the court in the trial. No contradictions were found in the testimonies
of these witnesses. Their testimonies and those of other witnesses – J.
Kratochvíl, V. Krystínek, and J. Žáček – were utterly consistent (…).
Therefore, the court fully believed the testimonies of the witnesses,
becoming evidence of an integral and clear nature. The evidence
specified above has neither been refuted nor queried by witness
testimonies by family members of the defendant – the defendant’s son M.
Šimsa and his wife PhDr. M. Šimsová. In this respect, both of these
witness testimonies stood alone in the light of other evidence, and the
Court has not taken the same into account as a consequence.” (p. 3 of
the judgment). Furthermore, the Court stated that the witness
testimonies clearly show that “the defendant, although he knew Lt. M.
Bata to be an officer of the Public Security Corps (since the court
believed the testimonies of witnesses concerning the fact they had all
proven their identities to the defendant at the defendant’s request
prior to the commencement of the domiciliary search), used violence
against this officer in order to prevent and affect the exercise of his
powers (…).” (p. 3 of the judgment). Therefore, the Court concluded the
domiciliary search of the petitioner’s flat was ordered in accordance
with the Criminal Procedure Code, and “it was the defendant who
improperly tried to obstruct the purpose of the same. Additionally, his
actions resulted in violence, which he used against one of the public
officials; this action exceeds not only the scope of the legal order,
but also of principles of decent conduct in general. In addition, the
attitude of the defendant within the trial has shown that he is not at
all aware of the inappropriateness of his behaviour.” (p. 4 of the
judgment).
11. The Municipal
Court took this decision under circumstances when, on the basis of a
decision by an investigator of the Investigation Administration of the
State Police in Prague, criminal prosecution for the criminal act of
subversion of the state in accordance with § 98 para. 1 of the Criminal
Code in the wording then in force, was commenced against the petitioner
on 6 January 1977. Within this criminal prosecution, a domiciliary
search of the petitioner’s flat at No. 12, Volfova Street in Brno was
ordered by decision of the Regional Investigation Administration of the
State Police on 31 May 1978, investigation file No. ČVS-3/120-77 (leaf
number 29 of the file), and by a decision of the Investigation
Administration of the State Police on the same date, file No.
VS-3/120-77 (leaf number 28 of the file). The order for the domiciliary
search was accounted for by a suspicion that the petitioner “at his home
and other rooms of the family house holds papers and materials which
result from and are connected with such activities.” Similarly, M. Bata
testified “it [the search] was ordered for the purpose of securing such
items as printed materials and similar objects bearing evidence of
potential criminal activity by J. Šimsa” (leaf number 8 of the file). In
the course of said domiciliary search, an incident allegedly took place
at approximately 3.30 p.m., when the petitioner allegedly “assaulted
Lt. M. Bata, the officer of the Regional Administration of the National
Security Corps, by rushing at him, punching him on the right jaw, and
even tried to assault him further.” (leaf number 2 of the file).
12.
For this reason, criminal prosecution for the criminal act of assault
on public officials was commenced against the petitioner by decision of
the Municipal Public Prosecutor’s Office in Brno of 1 June 1978, file
No. 2 Vp 59/78 (leaf number 2 of the file), and on the same day the
petitioner, on the basis of decision file No. 3 Pv 524/78, was taken
into custody in accordance with § 68 of the Criminal Procedure Code
(leaf number 23 of the file). Details on the decision and the testimony
of the petitioner and witnesses (leaf numbers 5-22 of the file) show
that the domiciliary search was attended by the petitioner (after being
brought from a preventive custody cell (!)), his wife PhDr. M. Šimsová;
the son of the petitioner M. Šimsa; J. Domínek and V. Krystínek,
officers of the State Police in Brno; and M. Bata, J. Kratochvíl, J.
Žáček, and M. Dvořák, officers of the Regional Administration of the
National Security Corps in Brno. Furthermore, M. Loukotková, an employee
of the District National Committee in Brno 5, and R. Sojka, chairman of
the Civic Committee No. 55 were present as disinterested parties;
however, the latter had to leave the scene for reasons of work prior to
the incident. All persons testified in accord that the subject of the
incident consisted of a private letter from Prof. Jan Patočka, dated 19
January 1977, addressed to the petitioner; the investigators wished to
dispossess the petitioner of the letter in spite of his objections that
the letter in question was private correspondence. However, the
testimonies differ when it comes to the description of subsequent
events. Testimonies by the investigators and M. Loukotková, the employee
of the District National Committee, are congruent to such extent that
the letter was seized by the petitioner and consequently handed to the
petitioner’s son; after the son was dispossessed of the letter and it
had been placed on a table, the wife of the petitioner seized it; in the
course of an attempt to take the letter from her, one of the
investigators, M. Bata, was thrown down onto a bed by the petitioner and
assaulted. However, their testimonies differ as to the description of
the way in which the son and then the wife of the petitioner were
dispossessed of the letter, that is whether or not they were subject to
violence or coercive grips; and as to the intensity of the assault on M.
Bata by the petitioner, that is whether the petitioner hit him once or a
number of times. On the contrary, the testimonies of the petitioner,
his wife and son diverge completely from the above-specified testimonies
of the investigators as to the description of the following events. The
petitioner, his wife and son congruently state that after the son had
been violently dispossessed of the letter, and the letter subsequently
being seized by the wife of the petitioner, the wife was cruelly and
painfully assaulted by the investigators attempting to seize the letter.
The petitioner, attempting to protect his wife with his own person,
pushed investigator M. Bata in such way that they both fell on the bed.
However, they deny that physical assault and punches took place
thereafter. The petitioner also stated that he had been informed neither
of the reasons for the domiciliary search nor of the materials and
papers to be dispossessed, and thus believes that the actions of the
investigators were not consistent with regulations.
13.
The protocol on the domiciliary search dated 31 May 1978 (leaf numbers
30-33 of the file) states that over forty papers, magnetic tapes, and
other movable items of property were dispossessed. From the nature of
the papers it is clear that the property in question principally
involved letters and typescripts, the contents of which consisted of
materials relating to Charter 77, as well as interviews with P.
Landovský and P. Kohout, letters from J. Patočka, lyrics by J. Hutka or
typescripts from V. Havel, L. Hejdánek, L. Chloupek and others.
14.
On 24 July 1978, the Municipal Public Prosecutor’s Office in Brno
brought an indictment (leaf numbers 48-50 of the file), according to
which the petitioner through his actions was alleged to have fulfilled,
both in terms of objective and subjective aspects, the elements of the
criminal act of assault on public officials in accordance with § 155
para. 1 clause a) of the Criminal Code in the wording then in force,
since he physically assaulted an officer of the National Security Corps
on duty in the course of the exercise of his powers. Furthermore, it
states that “our socialist society is concerned in protecting citizens
who, in the course of the exercise of their powers, protect our
socialist order, and the actions (of the petitioner) were a gross
infringement against this society’s protected interest.” (leaf number 50
of the file).
15. The
Municipal Court in Brno, by a decision made on 31 July 1978, file No. 5 T
195/78 (leaf numbers 56-57 of the file) returned the criminal case in
question to the prosecutor for additional examination in accordance with
§ 188 para. 1 clause f) of the Criminal Procedure Code in the wording
then in force, but, in accordance with § 67 clause b) of the Criminal
Procedure Code, it was ruled that the petitioner would remain in
custody. The court justified its resolution to return the case for
additional examination by the fact that the case had not been properly
clarified. In particular, clarity is lacking as to when exactly the
petitioner was detained, since the testimonies make it apparent that he
was brought to the domiciliary search from a preventive custody cell. In
addition there are discrepancies between the testimonies of witnesses,
which suffer from being very brief, rather vague and incomplete, this is
despite the relatively short time that has passed since the incident.
Therefore, the court concluded that it would be necessary to
re-interrogate in detail the defendant as well as all persons present at
the domiciliary search, since “(…) only in such a way it would be
possible to carefully ascertain the facts of the case, to properly
clarify the same and, through all available evidence, explain away
contradictions which were not dealt with during the preparatory
proceedings.” The court also stated that the provisions of § 36 para. 1
of the Criminal Procedure Code on necessary defence (with reference to a
resolution of the Supreme Court of the Czechoslovak Socialist Republic,
published in the Collection of Judgments and Rulings under No. 2/78)
were violated, since the defendant was interrogated on 1 June 1978
immediately following his detainment, even though his defence counsel
was elected by his wife as late as 5 June 1978; these investigative acts
having been thus administered early.
16.
Both the Municipal Public Prosecutor and the petitioner filed
complaints against this decision. The Municipal Public Prosecutor
reasoned his complaint (leaf numbers 66-67 of the file) by the fact that
the return of the case is unnecessary and uselessly lengthens the
preparatory proceedings, and that the evidence presented sufficiently
justifies the indictment brought. With respect to the unclear
determination of the time when the petitioner was taken into custody,
the prosecutor stated that following the commencement of the criminal
prosecution of the petitioner on 6 January 1977 for the criminal act of
subversion of the state, “on 30 May 1978, Šimsa was secured, since it
was an act in accordance with § 23 of Act No. 40/1974 (Act on National
Security Corps), when the officers of the National Security Corps are
entitled, for the purposes of carrying out necessary acts of service, to
detain a person for a maximum period of 48 hours.” The petitioner filed
a complaint to claim release from custody, since in terms of § 67 of
the Criminal Procedure Code, there were no specific circumstances to
justify a concern that he would obstruct the process of clarifying
important facts.
17. The
Regional Court in Brno by its decision dated 17 August 1978, file No. 6
To 305/78 (leaf numbers 69-70) annulled the contested decision of the
Municipal Court and imposed on them, in accordance with § 149 para. 1
clause b) of the Criminal Procedure Code in the wording then in force,
to re-try and adjudicate the case. In their reasoning, the Regional
Court concluded that all the witness testimonies presented sufficiently
justified the bringing of the indictment. As for the reproached
procedural error in the form of absence of legal representation of the
petitioner at the time of interrogation, the Regional Court stated that
“(…) reference of the first-instance court to the opinion of the Supreme
Court No. 2/78 Coll. is not justified. If other witnesses were heard
prior to a defence counsel being elected, it forms a formal error, that
is a violation of procedural regulations, although without any detriment
to proper clarification of the case (§ 2 para. 5 of the Criminal
Procedure Code).” The petitioner’s complaint about the decision to take
him into custody was denied. (His release was subsequently attempted by
the petitioner, his wife and several friends of the petitioner by way of
a number of filings containing requests for his release from custody,
in particular on the grounds of a deteriorating health condition
(ablation of kidney, allergy); however, all were denied as not being
justified). The Regional Court backed up this resolution by stating that
“during the domiciliary search, the defendant demonstrated in a way
more than evident, in connection with the scuffle over the given letter
from Dr. Patočka, that he does not wish to allow the absolute truth to
be ascertained.” As for health of the petitioner, they stated that
custody may be served directly in a medical centre determined for such
purposes.
18. Subsequently,
by the above-cited judgment (see clause 10), the Municipal Court in Brno
passed a verdict concerning the guilt and punishment of the petitioner.
The protocol on the trial dated 30 August 1978 (leaf numbers 71-80)
then states that the petitioner and witnesses M. Bata, J. Domínek, and
M. Loukotková gave testimony in person there. Upon a proposal by the
prosecutor and upon approval by the petitioner, statements by witnesses
J. Kratochvíl, V. Krystínek, M. Šimsa, Dr. M. Šimsová, R. Sojka, and M.
Žáček were read. At the conclusion, the petitioner again emphasised that
he neither hit nor intended to hit anybody and was not aware M. Bata
was an officer of the National Security Corps since he had not presented
any identification.
19.
Immediately following the delivery of the judgment, both the Municipal
Public Prosecutor and the petitioner, and subsequently his wife, filed
an appeal. The Municipal Public Prosecutor justified his appeal (leaf
number 94 of the file) i.a. by stating that the judgment of the
Municipal Court imposed a mild punishment on the petitioner and failed
to sufficiently consider all the circumstances of the petitioner’s
criminal actions. “The actions of the defendant pose a considerable
degree of danger to the public, since his actions significantly injured
the interests of our socialist society (…). The motives of the defendant
were aimed directly against the very nature of our order, which is also
proven by the fact that after the defendant was taken into custody, his
family and friends informed both citizens of our country and foreign
subjects on the matter incorrectly and untruthfully.” Therefore, the
prosecutor proposed that the Municipal Court impose a stricter
punishment of unconditional imprisonment to the extent of one half of
the penal rate (18 months). The petitioner’s appeal (leaf number 89 of
the file) stated discrepancies in the testimonies of the witnesses, and
the fact that his actions had definitely not been conducted with
criminal intent, since he had only protected his wife and thus he should
be cleared of the indictment. The petitioner concluded that, due to the
fact he had been led his entire life to an ideology designated by
Marxism as pseudoscientific, he is a victim of repression and lives with
a sense of injustice since he was not granted a state permit for
religious practice. The petitioner, in an amendment to his appeal dated
10 September 1978 (leaf number 96 of the file), added that the reasoning
of the contested judgment is contradictory to the actual situation, in
particular with respect to the allegation of assaulting Lt. Bata, since
this was clearly not the case and was not technically feasible. The
petitioner’s wife, in her appeal dated 13 September 1978 (amended by
addendum dated 27 September 1978) (leaf numbers 100-103 of the file),
presented that no order was given until then regarding forfeiture of the
given letter from Prof. Patočka in accordance with § 79 of the Criminal
Procedure Code, and when Lt. Bata during the domiciliary search
dispossessed the letter in spite of the above fact, he thus exceeded his
powers, and such forfeiture of the letter failed to comply with the
Criminal Procedure Code. She also did not agree with the procedure of
the court of the first instance, which did not carefully examine the
causal nexus between the injuries of Lt. Bata specified in the medical
report (which, in addition, was only issued as late as the following
day) and the actions of the petitioner. Furthermore, during the trial,
the court read her testimony and that of M. Šimsa merely in an
abbreviated form and skipped any such circumstances referring to the use
of violence by Lt. Bata. She then described the broader context of the
case of her husband, who was subjected to repression on the grounds of
his activities and for signing Charter 77, in the form of withdrawal of
the state permit for religious practice, domiciliary searches,
shadowing, preventive detentions, and suchlike. On the basis of the
above, she believes that the first-instance court arrived at its verdict
on incompletely ascertained facts on the case, and did not examine all
the objective and subjective circumstances which preceded and
accompanied the search.
20.
The Regional Court in Brno by its decision of 5 October 1978, file No. 6
To 353/78 (leaf numbers 115-119) refused all appeals filed as
unjustified. The court of appeal first stated that the preparatory
proceedings were commenced against the petitioner correctly for a
specific criminal act, and that other provisions of the law providing
for ascertainment of the actual facts of the case in the course of
further stages of the same were complied with, as well as the right of
the defendant to defence. Furthermore, the court examined whether the
act considered to constitute the criminal act was actually committed,
and whether said criminal act had been committed by the defendant; the
court concluded that “(…) if the court of the first instance evaluated
all the witness testimonies in such way so as to believe the same, then
the court of appeal finds no reason to change such a process in any way
whatsoever.” In particular, the court emphasised that there was no
reason to cast doubts on these testimonies, “since a completely
objective medical report has proven that physical violence against the
aggrieved actually occurred.” The court of appeal also found no point in
changing anything with respect to the finding that “the above-specified
physical assault took place under circumstances of the exercise of
powers (…).” As for the manner in which the defendant’s wife was
dispossessed of the letter in question, “(…) the court of the first
instance also explained why they did not trust the wife or son of the
defendant as witnesses, but did believe the other witnesses (…). If the
court of the first instance evaluates witness testimonies in a certain
manner and the incorrectness or inconclusiveness of such an evaluation
cannot be inferred, then by law the court of appeal cannot force the
court of the first instance to believe one group of witnesses and not
another.” As for the objection of the petitioner concerning the
domiciliary search being in conflict with the Criminal Procedure Code,
the Regional Court stated that this objection cannot stand since “(…)
the testimony of security bodies, and to some extent also the testimony
of the defendant, above all doubts mean that the defendant knew what was
in fact happening. If then, in the course of the domiciliary search,
the security body put aside i.a. a letter written by some (!) Patočka,
provided only following the collection of all the materials would it be
decided which items would be returned and which would not (…), then in
this connection it was not necessary to issue any separate resolution on
surrender of an object or forfeiture of the same. The order for
surrendering the object had already been stated as part of the order for
the domiciliary search, the purpose of which included the very
forfeiture of objects of relevance for criminal proceedings.” Therefore,
the court of appeal stated that even in this respect there was no
deviation from the scope of powers of the public officials when the
defendant’s wife was dispossessed of the letter in question. “The claim
that some violence was used against her is, in the light of the
above-specified testimonies of witnesses, completely unjustified.” The
court of appeal then summed up by aligning itself with the conclusion of
the court of the first instance, i.e. the circumstances of the case did
not allow for a conditional sentence, additionally stating “if the
defendant were truly interested in finding the truth of which he was
speaking, then surely he would not have any reservations to the criminal
proceedings being familiarised with the contents of the letter
concerned in the given case. However, he neither acted in such way nor
influenced his wife and son to make it possible for the security bodies
to study the contents of the given letter (…).” Subsequently, execution
of the punishment was ordered and the petitioner was removed for such
purpose to a penitentiary in Pilsen, from which he was, having served a
sentence of imprisonment for 8 months, released on 1 February 1979.
21.
On 18 May 2007, JUDr. J. Pospíšil, the Minister of Justice of the Czech
Republic, filed a complaint on the violation of the law against this
decision of the Regional Court, in favour of the petitioner (leaf
numbers 1-4 of the Supreme Court file), since he believed that this
decision violated the law in terms of the provisions of § 256 of the
Criminal Procedure Code, and with respect to the proceedings prior to
the given decision, in terms of the provisions of § 2 para. 6 and § 254
para. 1 of the Criminal Procedure Code, and § 3 para. 2, para. 4, § 23
para. 1, § 31 para. 1, § 58 para. 1, and § 155 para. 1 clause a) of the
Criminal Code. Within his reasoning, he also stated that even though the
evidence collected in the course of the criminal proceedings
sufficiently justified the conclusion that a physical conflict took
place between the defendant and the aggrieved, proper assessment of all
circumstances of the case gives ground for stating that the courts of
both instances had not assessed the case in a completely comprehensive
manner in the framework of legal provisions cited above. “In particular
within the scope of the evaluation of the degree of public danger posed
by the defendant’s actions, the fact the domiciliary search was
conducted in quite an excited atmosphere and in a condition of high
emotion was not taken properly into account, this emotive situation
resulting in such an action by the defendant which could be described as
rash. The motivation for such conduct was especially based on the fear
felt by the defendant for his wife and son, as the defendant believed
they were in imminent danger. The fact the defendant and his family
members tried to prevent confiscation of the letter, which for them
represented an important remembrance of their family friend, was also of
considerable importance.” In the Minister’s opinion, the circumstances
above should have been taken into account by the court in the assessment
of the case from the viewpoint of the provisions of § 3 para. 4 of the
Criminal Code. In connection to this, the consequence of the defendant’s
actions, by which an injury of minuscule extent occurred that in no way
caused incapacity to work, should have been taken into account. If the
court of the first instance did not take the above-specified objections
into account when deliberating on a verdict on the guilt in the criminal
case in question, then such a procedure must be considered to have
constituted a violation of the law as regards the provisions of § 2
para. 6 of the Criminal Procedure Code and § 3 para. 2, para. 4, and §
155 para. 1 clause a) of the Criminal Code.
22.
The Minister concluded that another error by the first-instance court
is contained in the sentence of punishment, specifically in that the
court passed an unconditional sentence of imprisonment. “Upon careful
evaluation of all the conditions and circumstances required for a
resolution on the punishment, it is clear that in the given case it was
not necessary to burden the defendant with a direct execution of the
punishment.” If the court, with respect to the issue of evaluation of
guilt, concluded that the criminal act had been committed, the court
should have proceeded in accordance with the provisions of § 58 para. 1
clause a) of the Criminal Code in the wording then in force, and impose a
conditional sentence or a different kind of punishment not related to
direct execution of punishment. “The imposed unconditional sentence of
imprisonment for 8 months was clearly disproportionate to the degree of
danger posed by the act to society, and to the personal condition of the
perpetrator.”
23. The
Minister then reproached the court of appeal for failing to discharge
the obligations to review imposed on them by the provisions of § 254
para. 1 of the Criminal Procedure Code, as the appeal court expressed an
opinion consistent with that of the Municipal Court. Upon careful
review of the procedure and deliberation of the court of first instance,
the court of appeal should have ascertained that the court of first
instance did not proceed correctly in evaluating the body of evidence in
the framework of the provisions of § 2 para. 6 of the Criminal
Procedure Code. Consequently, incorrect conclusions were inferred from
the evidence presented, in addition to which the appeal court did not
evaluate to a relevant degree all issues relating to the deliberation of
guilt and type of punishment administered. With respect to the above,
the Minister of Justice proposed that the Supreme Court adjudicate that
the contested verdict of the Regional Court violated the law to the
detriment of the petitioner and, therefore, the Supreme Court should
annul said verdict and all other decisions related thereto, including
the prior judgment of the Municipal Court, and what is more that the
Supreme Court itself should adjudicate the case.
24.
Upon request from the Supreme Court, the petitioner and the Supreme
Public Prosecutor’s Office, represented by JUDr. Y. Antonínová,
submitted their opinions concerning the complaint on the violation of
the law, and expressed their approvals of the same.
25.
The Supreme Court decided on the complaint on the violation of the law
by a verdict contested by the constitutional complaint by denying the
same in accordance with § 268 para. 1 clause c) of the Criminal
Procedure Code, and justifying their conclusion as follows. As for the
objection by the Minister that the court of the first instance, within
the assessment of the degree of public danger posed by the petitioner’s
action, did not carefully consider some circumstances of the case, the
Supreme Court stated that no errors relating to the merits of the case
may be pointed out with respect to the factual findings of the judgment
of the first-instance court, such findings implying that the
petitioner’s actions corresponded to all the elements of the criminal
act of an assault on public officials. When considering whether the
petitioner also met the material attribute of the criminal act, i.e.
whether the act amounted to a level of public danger greater than a
minuscule level (§ 3 para. 2 of the Criminal Code), the Supreme Court
concluded that the petitioner fulfilled the conditions increasing the
level of danger posed so that the same in the given case is greater than
minuscule, and added that “the Municipal Court in Brno, on the basis of
factual findings, correctly defined the level of public danger posed by
the act and designated the act as a criminal act of assault on public
officials (…). Mgr. Jan Šimsa hit the aggrieved with a fist to his face,
thus attacking the aggrieved’s head with a fist, and further
continuation of the assault by the defendant was prevented by the police
officers present.” (p. 4 of the decision).
26.
As for the Minister’s objection regarding an apparent disproportion
between the imposed sentence of imprisonment and the degree of public
danger posed by the act, the Supreme Court repeated the arguments of the
Municipal Court, which – with respect to the circumstances referred to
above intensifying the public danger of the criminal act and to the
interest in effectively applying general prevention of the imposed
sentence – inferred that an unconditional sentence of imprisonment was
necessary in order to achieve the purpose of punishment on the
defendant, despite the fact that the defendant had previously led a
decent life of a working man. Furthermore, the Supreme Court stated that
the Municipal Court had justified its resolution in a detailed and
apposite way and based the same on principles for imposing punishments
in accordance with § 31 para. 1 of the Criminal Code, and the sentence
of imprisonment was imposed on the defendant within the lower third of
the legal penal rate, which corresponds to the given degree of public
danger of the act. “(…) in their deliberation over the punishment, the
court had properly evaluated the personal and family background of the
defendant, and also justified why the circumstances of the case did not
allow for a conditional sentence, in accordance with § 58 para. 1 clause
a) of the Criminal Code” (p. 5 of the decision). Moreover, the Supreme
Court remarked that the petitioner did not confess to the criminal act
and denied that he had hit the aggrieved. “In the case under
consideration, neither clear disproportion to the degree of public
danger of the act, nor clear disproportion to the background of the
perpetrator is demonstrable.” In addition, the Supreme Court inferred
that “with respect to the enumerated circumstances of the given case –
attacking the head of the aggrieved with a fist, and further
continuation of the assault by the defendant having been prevented – the
possibility existed of legally defining the defendant’s action as the
criminal act of attempted assault on public officials, in accordance
with § 8 para. 1, § 155 para. 2 of the Criminal Code.”
27.
When reviewing the factual conclusions drawn by the courts of both
instances on the basis of evidence presented, the Supreme Court stated
that the Municipal Court had assessed the presented evidence properly
and in accordance with the provisions of § 2 para. 6 of the Criminal
Procedure Code, and based their conclusion on the guilt of the
petitioner on such evidence. When presenting evidence, the court of the
first instance particularly adhered to the principle of oral proceedings
(§ 2 para. 11 of the Criminal Procedure Code) and immediacy (§ 2 para.
12 of the Criminal Procedure Code). “The court expressed their
evaluative considerations and results of the same in a detailed and
convincing reasoning of the judgment, in which they presented the facts
they considered proven, the evidence serving as a basis for their
factual findings, and the considerations which governed their assessment
of the evidence presented; this was also amended with the arguments of
the court of appeal. Thus neither viewpoint makes it possible to
determine any violation of the law by the contested resolution.” (p. 6
of the decision).
28. At the
conclusion, the Supreme Court added to the opinion of the petitioner
that the decision to order the domiciliary search on leaf number 28 of
the file was backed up by approval from the General Public Prosecutor's
Office of the Czechoslovak Socialist Republic. Additionally, the
protocol on informing the defendant of the results of the investigation
on leaf number 41 of the file indicates that Mgr. J. Šimsa, the
defendant, was, on 19 July 1978, acquainted with the criminal file,
which the defendant confirmed by his signature. The assault on the
aggrieved M. Bata by the hand of Mgr. J. Šimsa, the defendant, was then
confirmed by witnesses J. Domínek, V. Kristýnek (investigators of the
State Police, Brno), J. Kratochvíl, J. Žáček (officers of the Regional
Administration of the National Security Corps), and M. Loukotková (a
disinterested party – an employee of the District National Committee in
Brno 5) (p. 7 of the decision). The Supreme Court concluded from the
above that neither the factual findings of the given case nor legal
conclusions deduced from the same diverged from legal limits of the
principle of the free evaluation of evidence, hence it cannot be
concluded that law was violated. Therefore, the Regional Court in Brno
did not err when they denied as unjustified the appeal of the petitioner
by a decision in accordance with § 256 of the Criminal Procedure Code,
which is now being contested.
III.
29.
The Constitutional Court obtained a publicly accessible document from
the Office of Documentation and Investigation of the Crimes of Communism
– Dinuš, P.: Českobratrská církev evangelická v agenturním rozpracování
StB (The Evangelical Church of Czech Brethren in STB Agency
Elaboration), Office of Documentation and Investigation of the Crimes of
Communism 2004 (available at
www.mvcr.cz/policie/udv/sesity/sesit11/cirkev.doc). This study
deals with documentation of the fight of the Communist secret police
against the Evangelical Church of Czech Brethren (ECCB) and provided the
Constitutional Court with the following facts.
30.
The Evangelical Church of Czech Brethren (ECCB) was the largest
Protestant church in the territory of the then Czech Socialist Republic.
Elaboration of the ECCB as an internal enemy of the state commenced
after February 1948 and ended with the fall of the Communist regime at
the close of 1989. The State Police ranked the ECCB as one of the most
“reactionary” and most dangerous churches: “Until the present time, the
Evangelical Church of Czech Brethren has not ceased to apply its
traditional orthodoxy, at some points exalted to extreme anti-socialist
forms. It has been a bastion of resistance against the socialist order
in the Czechoslovak Socialist Republic, has relations to right-wing and
anti-socialist subjects in order to jointly instigate and support
negative campaigns related to internal policy and aimed against the
Communist Party. Out of all the movements existing within the
Evangelical Church of Czech Brethren, ‘New Orientation’ – a formation of
clergy and laymen – is a proponent, bearer and promoter of hostile
attitudes against the state.” (p. 20 of the document). New Orientation
(NO) came into being in 1960-1962, as a result of secular changes within
the ECCB. To begin with the NO criticised the conformity of opinions of
church leaders with the then political situation. Later it proceeded to
criticise the management of the church and its Senior. The activities
of the NO focused on organising meetings for its members and issuing
various declarations, memorandums, resolutions, and letters aimed
against the practices of the State Police and church secretaries,
against atheism, against the monopolist position of the Communist Party
of Czechoslovakia, church regulations, against breaking off diplomatic
relations with Israel, Soviet occupation, discrediting innocent people,
arrests, political purges relating to individuals after 1970, and
suchlike. “Opposition activities which were, within the Evangelical
Church of Czech Brethren, conducted by members of New Orientation, were
considered by the State Police to form one of the significant aspects of
the security situation in the Czechoslovak Socialist Republic. The
active campaign by the State Police against ‘anti-socialist’ tendencies
and their demonstration in the church is, and logically must be, a part
of the accomplishment of a prospective mission to gradually liquidate
these capitalist anachronisms, otherwise it would not be possible to
consider the effectiveness and perspective of work in the given area.”
(p. 20 of the document). The State Police formally undertook operative
elaboration of the Evangelical Church of Czech Brethren on the basis of
the following political criminal acts: subversion of the state (§ 98),
sedition (§ 100), misuse of religious office (§ 101), damnification of
interests of the state abroad (§ 112), and obstruction of supervision
over church and religious institutions (§ 178) (p. 21 of the document).
“To elaborate cases and persons important to the State Police, use was
made of operative and technical means of the Monitoring Department, as
well as of co-operation with sections of the Public Security Corps
(inspecting motor vehicles, searching such vehicles and verifying
persons, inspecting registered persons with an emphasis on identifying
oppositional activities and their influence on other citizens).
Furthermore, co-operation existed with motorised patrols of the
Municipal Administration of the National Security Corps (in particular
at night when checking ‘persons of special interest’, church units, and
suchlike).” (p. 25 of the document).
31.
Jakub Trojan, Alfréd Kocáb, and Jan Šimsa (the petitioner) were
considered by the State Police to be “the most active and most
reactionary” persons involved in New Orientation.” (p. 12 of the
document). “In 1966, Jan Šimsa, Jan Dus, Jakub Trojan and other members
of the NO accused officers of the State Police of forcing evangelical
preachers to collaborate through psychological pressure and threatening
the use of weapons.” (p. 13 of the document). In 1973, A. Kocáb, J.
Trojan, and J. Šimsa were expelled by church leaders from the Peace
Department of the Synodal Council.
32.
On the basis of an analysis of the ‘operative situation’ in the early
1970s, destructive measures were implemented, including repressions
against leaders of the NO. On the grounds of organising a pamphlet
campaign focused against elections, members of the NO were convicted, on
25 July 1972, by the Municipal Court in Prague – J. Dus in accordance
with § 98 (subversion of the state) for 15 months, L. Hejdánek in
accordance with § 100 (sedition) for 9 months, both unconditional; H.
Hejdánková and J. Jirásek for shorter and conditional sentences, also in
accordance with § 100. At the end of February 1972, the Analytical
Department of the II Administration of the Federal Ministry of the
Interior submitted to the leaders of the Federal Ministry of the
Interior its “Information on the present situation in the Evangelical
Church of Czech Brethren”, in which the Department, “in the interests of
assisting the healthy elements of the church, and to reach final
settlement of the critical situation in the ECCB” recommended the
following measures be taken towards the leaders of the church: “(…) to
take Jan Šimsa, a minister of church, into custody and, according to
local jurisdiction, bring against him by way of the relevant Public
Prosecutor's Office charges for a criminal act in accordance with § 100
of the Criminal Code for distribution of illegal printed matter entitled
‘Facts, Comments, Events’, documented by testimonies of defendants L.
Hejdánek, H. Hejdánková, and J. Jirásek.” (p. 31 of the document).
33.
As at 1 July 1974, the Administration of Counterintelligence for
Fighting External Enemies (II Administration of the Federal Ministry of
the Interior) and the Administration of Counterintelligence for Fighting
Internal Enemies (X Administration of the Federal Ministry of the
Interior) were established and managed by the First Deputy of the
Minister of the Interior. Issues related to churches were
organisationally placed under the 5th Department of X Administration of
the Federal Ministry of the Interior, while issues related to
non-catholic churches, sects, and religious societies fell under the 2nd
Division of the same Department. At the level of regions, 2nd
Counterintelligence Departments were in charge.
34.
The “Report on activities and meeting the targets of the Administration
of the State Police in Brno for 1973” states that anti-regime opinions
were in particular held by the priest M. Heryán from Brno (codename:
Orient Mission) and J. Šimsa, a priest without the state permit required
for religious practice (codename: Ideolog Mission). “The objective of
the Ideolog Mission was to prevent, using any means possible, the
continuation of activities by Jan Šimsa, in particular by interrupting
such activities and ‘bringing disharmony’ to the group he formed around
himself.” (p. 60 of the document). On 1 January 1977, the Declaration of
Charter 77 was released, which was also signed by six ministers of the
ECCB deprived of the state permit for religious practice. In addition,
the NO started to centralise its activities around the precepts of
Charter 77 and VONS (Výbor na obranu nespravedlivě stíhaných – The
Committee for the Defence of the Unjustly Persecuted). “L. Hejdánek, M.
Rejchrt, J. Šimsa, B. Komárková, P. Brodský, J. Trojan, T. Bísek, M.
Balabán, and J. Dus were considered by the State Police to be the most
active members of the NO to sign the Charter. (…) According to the
materials of the State Police, J. Šimsa, after being deprived of the
state permit for religious practice in 1973, maintained broad liaisons
with the signatories of Charter 77, and participated in issuing
documents relating to the Charter.” (p. 17 of the document). “With
respect to all the above-named persons, the State Police, through the
agency or using technical means (eavesdropping, secret technical
searches, covert observation and photography, monitoring of
correspondence) discovered contacts to foreign countries.” (p. 18 of the
document).
35. According to
the plan of operations and the chief tasks of the Administration of the
State Police in Brno for the year 1978, “Jan Šimsa, a minister of the
church and signatory of Charter 77, the object of Ideolog Mission, was
targeted in 1978. As a result, Šimsa was convicted to an unconditional
sentence of imprisonment for eight months.” (p. 60 of the document).
According to the plans for the years 1980 and 1981, within the scope of
the Ideolog Mission “conflicts should be introduced to the circles of
liaisons of Jan Šimsa, and his ‘contact base’ should be disturbed by
disinformation; the objective of this being to ‘disintegrate negative
influence’.” (p. 60 of the document).
IV.
36. The Constitutional Court proceeded to adjudicate on the merits of the matter, employing the following maxims:
37.
An essential condition for the existence of an independent judiciary is
the trust of the public in the judges seeking just decisions adopted on
the basis of law. Without public trust in the judge’s procedure being
fair and in compliance with high moral standards, the judiciary cannot
function properly. The trust of the public in the judiciary is the most
precious value the judiciary has; such a trust is also one of the most
valuable virtues for each citizen of a state. H. de Balzac said: “Lack
of trust in a judicial system is the beginning of the end for society.”
However, the trust of the public is not given freely, it must be earned.
Maintaining it is more difficult than losing it. Years of hard work and
endeavour may be thrown away due to one lapse in judgment. Each and
every judge must bear this in mind when taking a decision in a case; a
judge, unlike the legislature, does not enforce their own will, but
should always enforce the law through a constitutionally conformable
interpretation.
38. In the
words of Justice Douglas: “The more transparent and outright the manner
of argument, the closer one is to democracy. This is reflected in
Cardozo’s ‘openness’. The principle of complete openness has the same
substantiation in state institutions’ agenda as in economy. A judiciary
discovering reasons for their choosing a course of action earns
understanding. Trust based on understanding is more permanent and
resolute than that based on fear and forced respect.” (Douglas, W.:
Stare Decisis, 49 Colum. L. Rev. 735, 754 [1949]).
39.
The principle of a law-based state, also comprising the principle of
the rule of law, requires utter dominance of rights as opposed to
influences exerted by an arbitrarily exercised power. This principle
eliminates the existence of arbitrariness and, naturally, prerogatives;
it even eliminates broadly conceived competences on the part of bodies
holding executive power, when such bodies exercise the functions of
state administration, partially formed by the police.
40.
Paraphrasing L. Fuller (Reason and Fiat in Case Law, 59 Harv. L. Rev.
376 [1946]), the judiciary’s objective should be to attain changes
through elementary value stability in such a way as outlines of the same
are contained in the core of a new constitutional order, and in such
way as was in the past defined by the Constitutional Court in relation
to the law and legal acts (cf. Judgments No. Pl. ÚS 19/93, published
under No. 14/1994 Coll., or file No. Pl. ÚS 42/02, published under No.
106/2003 Coll.).
41. When a
state administration, as conceived by a formal law-based state, was
strictly bound to the law in its formal sense, the material law-based
state is characterised by affirming super-positive values (as is implied
by Article 9 para. 2 of the Constitution of the Czech Republic) such as
human dignity, freedom, and justice, which represent the essential
requisites of a democratic law-based state. Upholding respect and
protection for human dignity and freedom is the greatest and most
universal function of the law.
42.
Order in a law-based state is preconditioned by the state monopoly of
power, which is to serve to enforce the right to protection of citizens
and to ensure their freedoms. In a law-based state, merely the power
established and bounded by law legitimates the monopoly of power. Thus
state power may only be exercised with respect to the limits imposed on
it by the fundamental rights and freedoms of individuals.
43.
Human dignity as a value is intrinsic to the foundations of the entire
scheme of fundamental rights as contained within the constitutional
order. The entitlement of every individual to enjoy respect and
recognition as a human being is related to human dignity, implying a
prohibition of rendering a man a mere object of a state’s will, or
prohibition of exposing a person to such actions which cast doubts on
such a person’s quality as a subject.
44.
In Judgment file No. IV. ÚS 412/04 (Collection of Judgments and
Rulings, Volume 39, Judgment No. 223, p. 353), the Constitutional Court
stated: “The focal point of the constitutional order of the Czech
Republic is the individual and their rights guaranteed by the
constitutional order of the Czech Republic. The individual is the base
of the state. The state and all its bodies are constitutionally bound to
protect and be considerate to the rights of the individual. The concept
of our constitutionality is not limited to the protection of
fundamental rights of individuals, such as a right to life or guarantee
of a right to a legal personality, but in accordance with the post-war
change in understanding human rights (as expressed e.g. by the UN
Charter or Universal Declaration of Human Rights), human dignity has
become the foundation for interpreting all fundamental rights; this i.a.
excludes a human being treated as an object. In this concept, issues of
human dignity are understood to be a part of the quality of a human
being, part of their humanity. The guarantee of inviolability of human
dignity makes it possible for people to develop their personalities
fully. These considerations are confirmed by the Preamble to the
Constitution of the Czech Republic, which declares human dignity to be
an inviolable value and the very core of the constitutional order of the
Czech Republic. Equally, the Charter of Fundamental Rights and Basic
Freedoms guarantees equality of people in dignity (Art. 1) and
guarantees the subjective right to maintain human dignity (Art. 10 para.
1)”.
45. The dignity of a man as a person acting of their own volition and responsibility is also the basis for the maxim nulla poena sine culpa – no punishment without culpability (similarly see resolution of the German Federal Constitutional Court BVerfGE 57, 250).
45. The dignity of a man as a person acting of their own volition and responsibility is also the basis for the maxim nulla poena sine culpa – no punishment without culpability (similarly see resolution of the German Federal Constitutional Court BVerfGE 57, 250).
V.
46.
Within the contested resolution, the Supreme Court stated that there is
nothing to object to the factual findings contained in the original
judgment of the first-instance court. The court allegedly respected the
principle of oral proceedings and principle of immediacy, which
allegedly made it possible to carefully assess each piece of evidence as
well as the evidence in aggregate. The alleged complicated conditions
of evidence in the case under review did not allow the Supreme Court to
cast doubts on the previous assessment of the body of evidence without
repeating the same.
47. The
Constitutional Court ascertained from the file of the Municipal Court
in Brno that the court directly heard only the petitioner, witness M.
Loukotková (an employee of the District National Committee, Brno 5, who
was brought by officers of the National Security Corps – leaf number 7
of the criminal file), witness J. Domínek (officer of the State Police),
and witness M. Bata (officer of the Regional Administration of the
National Security Corps in Brno) (see clause 18). Other witness
testimonies were read out, including those confirming the petitioner’s
version. It is completely clear from the above that the petitioner found
himself in a procedural situation unfavourable for him, despite the
fact that formally legal conditions were established for reading out
said testimonies. In this situation it can hardly be emphasised that the
principle of oral proceedings and the principle of immediacy were
adhered to, since if they were complied with, then only in relation to
the testimonies of witnesses unfavourable for the petitioner.
48.
Another fact not to be overlooked is that the trial took place after
the first-instance court assessed the evidence collected within
preparatory proceedings to be insufficient for hearing the criminal
case, and returned the case to the prosecutor for additional examination
(see clause 15). In their annulling resolution, the court of appeal
accepted the fact that witnesses had been heard in the case even before
the petitioner elected his defence counsel, and such a counsel thus
could not be present at their examination; also, the court of appeal
considered dismissible when and why the defendant had actually been
detained. Thus, all that had been done by the state power against the
petitioner previously was de facto approved, in particular the fact that
as early as January 1977, a criminal prosecution was commenced for the
criminal act of subversion of the state, without the petitioner being
informed of the charges. Another approved fact was that only as late as
31 May 1978, a domiciliary search was ordered within the scope of this
criminal prosecution, without the petitioner being heard in the case
previously and without the petitioner being informed of the reasons for
holding such a domiciliary search in advance, and without the petitioner
being informed of which materials and papers “he should be dispossessed
of” (see clause 12); the lawfulness of the permit for the domiciliary
search was not examined. From the decision of the court of appeal, each
reasonable and unbiased reader, even without a legal education,
understands that for the court of appeal the guilt of the petitioner was
actually proven as early as when the case was returned to the
first-instance court. The new deliberation of the first-instance court,
which conformed to the completely clear, however tacit, opinion of the
court of appeal, must also be evaluated within this context.
49.
The Supreme Court was in error when, whilst evaluating the complaints
on the violation of the law with respect to the contested resolution, it
was satisfied merely with the criminal file and the statement of the
public prosecutor and the petitioner. From the reasons specified above,
it should have been clear that the case must be clarified within an even
broader context, which for understandable reasons cannot be delineated
merely from the original criminal files. This broader context is
constituted by data which the Constitutional Court procured from public
sources (see Section III, clauses 29-35). Findings from these sources
complement the criminal file in terms of clarifying such gaps in
knowledge which were not (and could not have been) closed with evidence
in the original criminal proceedings, as the intentions of the State
Police were not even in compliance with the valid legal regulations
then. This broader context indicates that in fact any reason was sought
out to constrain the personal freedom of the petitioner, so as to
preclude his activities within the ECCB. This purpose of the complete
action against the petitioner seriously collides with the principles
specified under Section IV, and, first of all, represents a massive
assault on the petitioner’s human dignity, when the petitioner, not
covertly identified as ‘an object’ of measures taken by the state power
(see clause 35), was deprived i.a. of his own responsibility, since
irrespective of his own culpability he was to become, in one way or
another, a subject of repression of the state power, this due to his
conscience and civic conviction. The Constitution then valid
(Constitutional Statute No. 100/1960 Coll.) did not guarantee human
dignity as a fundamental right explicitly, however, this does not mean
that the state at the time was not obliged to honour it. Requirement for
respect to human dignity is part of the very foundations of European
civilisation, being formed from Antiquity through to Christianity and
Enlightenment, to the conclusions of the necessity of respecting human
rights arrived at following the bitter experience of Nazism. When the
Supreme Court did not annul the resolutions contested by the complaint
on the violation of the law, they continued to infringe the petitioner’s
human dignity, even though protection of fundamental rights is a duty
imposed on the Supreme Court by Article 4 of the Constitution of the
Czech Republic, and human dignity as a subjective right is explicitly
guaranteed today by Article 10 of the Charter.
50.
All this occurred despite the fact that the Constitutional Court with
their Judgments (see clause 40) in the past repeatedly called upon the
Supreme Court to change their attitude to interpretation of the law. By
applying long-held, but no longer constitutionally acceptable, formalist
approaches in evaluating cases, as well as the same attitude of the
Supreme Court to the interpretation of law, the trust of the public is
undermined as regards fair verdicts being passed based on law (see
clause 38). In the same way, this trust is also undermined by the
Supreme Court literally hiding behind the provisions of procedural
regulations (in this case the Criminal Procedure Code), without
expressing their true opinion and clarifying their attitude to acts
which were, prior to 1989, assessed to be criminal acts.
51.
The Constitutional Court did not deal with other violations of the
fundamental rights and freedoms objected to, since the findings
presented above fully sufficed in order to annul the contested
resolution.
52. Therefore,
the Constitutional Court has granted the constitutional complaint. In
accordance with the provisions of § 82 para. 2 clause a) of Act No.
182/1993 Coll. on the Constitutional Court, as amended by later
regulations, the Constitutional Court in their verdict defined the
fundamental rights and freedoms which were violated by the contested
resolution and proceedings preceding the same, and annulled the
resolution of the Supreme Court in accordance with the provisions of §
82 para. 3 clause a) of the Act on the Constitutional Court.Note: Decisions of the Constitutional Court cannot be appealed (§ 54 para. 2 of the Act on the Constitutional Court).
Brno, 29 February 2008