On The Proposal To Repeal The Law On The Illegality Of The Communist Regime

Original Language Title: o návrhu na zrušení zákona o protiprávnosti komunistického režimu

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14/1994 Coll.


The Constitutional Court of the Czech Republic

On behalf of the United States

Plenum of the Constitutional Court of the Czech Republic decided on 21 February 2006. December 1993 on the

the design of the Group 41 members of Parliament of the Czech Republic to repeal of the law

No 198/1993 Coll., on the illegality of the Communist regime and on resistance

against him,

as follows:

The proposal is rejected.


On 15 December. September 1993 presented a group of 41 members of the Czech Parliament

Republic to the Constitutional Court on the basis of article. 87 para. 1 (b). and)

The Constitution of the Czech Republic to annul the Act No. 198/1993 Coll., on the illegality of the

the Communist regime and on resistance against it, and that conflict with the Constitution

The United States, by the Charter of fundamental rights and freedoms, constitutional law

The Czech National Council No. 4/1993 Coll. on measures associated with the dissolution of the

The Czech and Slovak Federal Republic, and certain international

the treaties.

The Constitutional Court examined the General and individual plaintiffs, objections

referring to the alleged non-compliance with Act No. 198/1993 Coll., with art. 1, art. 2

paragraph. 3, art. 78, 90 and 95 of the Constitution of the United States, with the constitutional

the Czech National Council Act No. 4/1993 Coll. on measures associated with the

dissolution of the Czech and Slovak Federal Republic, with the provisions of article. 1,

article. 2 (2). 2, article. 3 (2). 1, art. 15 paragraph 1. 2, article. 17, art. 37 para. 3,

article. 38 and 39, art. 40 para. 5 and 6 of the Charter of fundamental rights and freedoms No.

2/1993 Coll., article 4(1). 4, art. 15 paragraph 1. 1, art. 19, 24 and 26 of the

The International Covenant on Civil and political rights, the provisions of

article. 15 paragraph 1. 3 of the International Covenant on economic, social and

cultural rights and with the provisions of article. 6, 10 and 14 of the Convention on the protection of

human rights and fundamental freedoms.

Objections can be systematically broken down into three groups:

A. objected to sections 1-4 of Act No. 198/1993 Coll.

B. objection to section 5 of the Act No. 198/1993 Coll.

C. objections to articles 6 and 8 of Act No. 198/1993 Coll.


Objections against § 1-4 of Act No. 198/1993 Coll.

The assessment of each of the objections referred to in points 1, 2, 3 and 4 of the draft

a group of MPs hinges on findings – and at the outset of the Forum-whether and to what

extent these provisions constitute mandatory options, respectively.

the legal standards that the State undertake to or give it to a specific

behavior with those or those legal consequences for the person, group of persons,

or organization.

The first four sections of the Act dealing with the nature of the regime, its

the specific objectives, methods and structural features, rather than the nature of the

individuals of these or those rationales were members of organizations of

covered by the scheme.

The law talks about the "involvement" of individuals on a double level: about

involvement of members of the Communist Party of Czechoslovakia as a way of

the Government in the years 1948-1989 and co-responsibility among those "who

the Communist regime actively promoted "(§ 1 para 1 and 2 of law No.

198/1993 Coll.) -in this case, for crimes committed under the regime.

Co-responsibility for the way CCP members of the Government is expressed only in the introductory

the preamble of the law and may be seen as a stimulus to ponder for those

who were, and continue to remain members of the organisation, the management and

political practice is still more clearly diverged not only with basic

the values of humanity and the democratic rule of law, but also with their own

programs and laws.

This resolution is based on the degree of moral co-responsibility of the nature

a totalitarian dictatorship. Misconception is the idea that the party against

the company behaves diktátorsky, is able to act inside herself

democratically. This party was without any inkling of hierarchizována between the

the ruling and the controlled, its membership was manipulated

power centers and becoming at the same time instrument and its kind

captive those who "actively push forward".

If the obvious nature of the provisions of the first part of the declaratory Act.

198/1993 Coll., the minor is not necessary to examine the appellants ' arguments as referred to in

points 3 and 4 of the proposal-with the exception of the three objections.

The first one States that the declaratory provisions do not exclude the possibility of

use non-criminal sanctions contained in other laws, for example. in

the laws governing the rights and obligations of the pedagogical and scientific

workers, publicists, writers and other artists. This objection is

be rejected because it does not apply to the contested act itself, but

other, closer to the unmarked legal norms, on whose legal content

Act No. 198/1993 Coll. does not change anything.

Also, the argument that "involvement" or "collective

responsibility of the "fallen in the first part of the law is" above all ...

co-responsibility of the criminal law ", there is no moral-political and

not the juristickou nature of this part of the Act. This means that even

reviews historical period of the former Czechoslovakia does not exclude other

the views and conclusions than those expressed in the text of the law by Parliament. From

the perspective of scientific and journalistic activities do not constitute reviews

contained in the contested act opinion binding, namely-how to properly

notes the proposal of the Group of members-"or in the case that such phrases

are contained in the law of the law ".

Another element of the unconstitutionality of find the appellants in intention "... to

the law served as the expository in relation to judicial decision "-intent,

that the legislature in the text of the Act nowhere said so. The relevant plan is,

one that is legally relevant manner to be spoken.

Also, the introductory statement to the Parliament, "... that in its other activities will

based on this law, "cannot be held as a legal standard, which would

Parliament to oblige. It is the expression of the political will of a programmatic nature,

will found in a certain time and in a specific constellation of forces in Parliament,

that cannot be interpreted contrary to Parliament to modify things

within the limits of its competence and in the new and different, or contrary to the

the principle of the free exchange of views in the Parliament.

Constitutional democratic State does not interfere with Parliament's right to express

your will and your moral and political opinions in a way that in the framework of the

General principles of law deemed suitable and reasonable-and that, where appropriate,

the form of the rule of law, considers it appropriate and useful to this legal

the form of the Act to emphasize the social significance and reach of their statement. So

It was for example. the law, issued in the first Republic, which the

stated that t. g. Masaryk had become.

Overall, it is clear that the contested Law no new factual neformuluje

the nature of the crimes and that cannot be anything like it from the text of his first

part of the inferred. In addition, as the generelní standard for the assessment of any

acts in terms of their criminality, article 40, paragraph 1. 6 of the Charter

fundamental rights and freedoms, according to which "the crime shall be assessed and

the penalty shall be imposed according to the law effective at the time when the Act was committed.

A later law applies, if it is for the offender

more favourable. "

The appellants ' objections, however, are pointing to some of the General issues of the concept of

Czech law and the nature of the State and political regime in the years 1948 to

1989. A group of members of Parliament argues that the provisions of § 2 (2). 1

Act No. 198/1993 Coll. contains "... unconstitutional saying that political

mode in the years 1948 to 1989 was an illegitimate ". Its claim of legitimacy

This scheme is based on the continuity of the law the legal reception

national regulations as well as the continuity of international legal obligations of the

the period of the "old regime".

Essential nature of this claim is to be assessed in relation to the

the basic concept of the Constitution and the constitutional establishment of the Czech Republic.

As is known, the process of developing a modern constitutional State in Central Europe

has attained only after the first world war. While previously achieved

remarkable results were developed of process právněpozitivistické

the rules and guarantees, reinforcing legal certainty for citizens and the stability of the law.

Právněpozitivistická traditions, which are transferred to the post-war Institute

(including our Constitution of 1920), revealed, however, in a later development

more than once their weaknesses. The Constitution of the constructed on these foundations are

value neutral: consists of institutional and procedural framework

naplnitelný very different political content, because the criterion

constitutionality becomes compliance with competence and procedural framework of the constitutional

institutions and procedures, criteria, therefore, formally-rational nature. In

as a result, it has been accepted in Germany, National-Socialist

estate as a legal, although the contents of the vyhlodalo and then destroyed itself

the essence of the Weimar democracy. Legalistické the concept of political legitimation

It could be after the war, Slánský "meet old bellows new

wine "and then" legitimize "coup d ' état of February 1948, the formal compliance with

constitutional procedures. The principle of "the law is the law" was against injustice

in the form of the law as powerless. Note that injustice must remain

injustice, even when cloaked in the mantle of the law, was projected into the

the Constitution of post-war Germany, and currently, as well as to the Constitution of the United

of the Republic.

Our new Constitution is not based on value neutrality, not just

definition of institutions and processes, but accommodates to your text as well as specific

the regulatory idea of expressing the basic values of the inviolable

of a democratic society. The Constitution of the United States accepts and respects the

the principle of legality as part of the overall concept of the rule of law, does not bind

However, the positive law only on formal legality, but the interpretation and application

law makes their content-material sense, makes

the right to respect for fundamental democratic values of constitutive

the company also uses those values and legal standards measured. It

means even in continuity with the "old law" value a discontinuity is

the "old regime".

This concept of a constitutional State rejects formal-rational legitimacy

mode and formal legal State. Whatever the laws of the State, in the State

that is a democratic and proclaims the principle of the sovereignty of

the people, cannot be no other legitimate mode than democratic.

Any monopoly excludes from itself the Democratic

legitimacy. The starting point of our Constitution is the material-rational concept

legitimacy and the rule of law. On the system of the democratic constitutional State and

functioning democracy embodies the legality of its way undoubtedly

the legitimacy of the regime, however, is not entirely interchangeable with it. The less you can then

reduce the legitimacy of the formal legality of the arbitrary-legislation

This mode, in which only a few knew that the elections are not elections,

the parties are not parties, democracy is not a democracy and law is not the law of the

-at least in the sense of the rule of law, because the law was

politically, the schizophrenic split wherever entered the game

political interest in ruling.

Political regime is legitimate, if it is whole for approval by the majority of citizens.

Political regimes which lack democratic substance, avoid

empirically verifiable evidence in favor of ideological arguments and

mainly the aspects of formal-rational legality. This makes it easy to

the fact that the consolidated State power is not just a power-political

the bottom line, but at the same time a legally organized power. But just in

such policy regimes with the law and the legality of the legitimacy

breaks up the most. Therefore, the continuity of rights does not mean recognition of the

the legitimacy of the Communist regime. It cannot be argued that legitimate, each

acts or conduct, if it does not exceed the framework of the law, because

legality is utilitarian substitute for missing legitimacy.

The legitimacy of the political regime cannot be based only on the formal-legal

aspects, because the values and principles on which it is based, are not only mode

legal, but primarily of a political nature. Such principles of our Constitution,

as the sovereignty of the people, a representative democracy, the rule of law,

are the principles of the political organization of society, which are not arbitrary

fully definable. Pozitivněprávní adjustment of them is based on, but

the contents of these principles is not normative by modifying the exhausted-remains

something more.

For these reasons, based on the material-the rational basis of our

The Constitution, it is necessary to reject the idea of the appellants, that the political regime in

from 1948 to 1989 was legitimate. The wording of section 2 (2). 1 of the contested

the law on the illegitimate nature of the said political regime cannot be regarded as

as "unconstitutional".

The starting point of formally-legalistické argue is welcome

the claim that "Czech law is based on the sovereignty of the law". By

no knowledge of higher principle, namely the principle of the sovereignty of the people, that is

the bearer of supranational power, able to constitutive, while the law is

the product of the power within the State already constituted and institutionalized. In

the framework of the constitutional State are no longer the sovereignty, there are no longer just

competency. Czech law is not based on the sovereignty of the law.

The supremacy of the laws of lower legal standards does not imply their

the sovereignty. Not even in the sense of the scope of legislative competence in the

the framework of a constitutional State cannot talk about the sovereignty of the law. In the concept of

the constitutional law, on which it is based, the Constitution of the United States, it is not

law and justice and the subject of the free disposition of the legislature, and even

law because the legislature is bound by certain fundamental values, which

The Constitution declared inviolable. The Constitution of the United States for example. in the article.

9. 2 provides that the change of the essential elements of the Democratic

the rule of law is inadmissible ". The constitutive principles

a democratic society in the framework of this Constitution, built over a legislative

competency, and by "ultra vires" of Parliament. With these principles is

falls of the constitutional State. Delete any of these principles, made by

any, even as a majority or a unanimous decision

Parliament, could not be interpreted otherwise than as the removal

This constitutional State as such.


Objection to section 5 of the Act No. 198/1993 Coll.

The main subject of his critics is a group of members of the section 5 of the Act.

198/1993 Coll., according to which "the limitation period for criminal offences is

does not count time from 25. February 1948 to 29. December 1989, if from

for political reasons, which is incompatible with the fundamental principles of the rule of law

democratic State there has been no final conviction or acquittal

the indictment ".

In the opinion of the appellants "... a fact that gone and previously

the competent national authorities have been idle for some reason or failed

have caused the demise of some of the acts that the expiry of the limitation period,

has not been and is not part of the subjective page of the crime, there was a

independently of the will of the offender, and, therefore, must not be prejudicial to him. "

The Constitutional Court therefore addressed the question in the first place, for what reasons were

"before the competent national authorities of an idle or failed", and the question of

whether the reasons why avoid prosecution politically protected

Torts, meaning, the scope of their application, and social

the consequences of action entitle the section 5 of the Act No. 198/1993 Coll.

The Constitutional Court based on the findings of the constitutional legal texts

the Communist regime generally formulate generelní and for all the same

a valid principle of legality (or so-called socialist legality). Already

The Constitution of 9. may (No. 150/1948 Coll.) impose any citizen, regardless of

on the function or rank the obligation of the Constitution and laws

(section 30). Even more significantly, then the Constitution of 1960 (no 100/1960 SB., in the

as amended) in the article. Article 17(1). 1 compliance with the imposed

the legality of the citizens and the State and social organizations, in the article. 34

the Commission established that citizens are obliged to observe the Constitution and other laws, in

article. authorities imposed a 104 prosecution supervision over compliance with laws and

article. 106A demanded the submission of reports on the State of socialist legality.

These rules, however, have become a shell game and bezobsažnými everywhere

where's the political interest of the ruling saw appropriate. The basis of this

fact was a monopoly and bureaucratic centralized organization

political and State power, emanating not from a division of, but the concentration of

power and of the interaction of policy and State apparatus, as well as from the lack of

basic democratic ties to the company. Anchorage leadership

The Communist Party of Czechoslovakia in the society and the State (article 4 of the Constitution

in 1960) was not the cause, but then a manifestation of the fact that

attending the earlier strengthening monopoly on power. The authorities of the

the protection of legality, so get into the position we heard of monopoly

centers of power.

Documents from that period show not only the amount of cases in which political

and State authorities and their officers broke a rough way back then

applicable laws, but also some of the ways in which is so tragic. It was a

System de facto subordination of all institutions and organizations in the State

the ruling party's political apparatus of the directives and decisions without any inkling of

influential people. The nature and treatment of such decisions haven't touched nor

The Constitution and other legal standards: this decision was taken for the

constitutional and political backdrops often just as verbal instruction or

wish communicated by telephone.

Design of a group of MPs on the repeal of the law on the illegality of the

the Communist regime and on resistance against it, although it does not deny that the generally

in that time, there were irregularities which have not been prosecuted by the State,

Although he was aware of the reasoning, however, shows that these

cases not given in the scope and reach of importance worthy of special

attention and special solutions. Its argument is based group

members of the juristicky rather formulated reservations.

The Constitutional Court does not share the view of the appellants, that section 5 of the Act No. 198/1993

Coll. governing limitation periods and rates creates more (new) legal

obstacle limitation to those obstacles that already exist on the basis of section 67 para. 2

criminal law there are procedural exemption under (code of criminal procedure,

in particular, the immunity from jurisdiction of law in criminal proceedings according to § 10

the criminal procedure code).

The purpose of section 5 of Act No. 198/1993 Coll. is not to establish a new obstacle, but

declare that the limitation period for offences, nestíhaných

the former regime for political reasons, they could not run, although the run

should. In the assessment of section 5 of Act No. 198/1993 Coll. is not therefore generally of

Institute of limitation as such, nor on the introduction of new legal obstacles

run time periods, but about whether the Institute considered the limitation

real or fictional, where violations of legality in the whole big

the realm of legal life became part of the political and State-protected

illegality of mode. The provisions of section 5 of Act No. 198/1993 Coll. is not the norm

constitutive, but declaratory. Its subject is the finding that only in

a specified time period for a particular type of crime a limitation period

could not be carried out and for what reasons. It is known that in addition to those areas

life companies and individuals, in which the legal order in the years 1948-

1989 he held the real meaning and was based on the rule of law, were

the realm of the political interests of the ruling class, in which there was a legal status

uncertainty is maintained as a means of preventive protection mode and

tool handling company.

Part of this special regime, it was the political and State leadership

inspired by or tolerated crime people in political and State

functions, where, having regard to the actual or perceived interests of the ruling

layer was appropriate to act in conflict with their own laws. Argumentation

a group of MPs that were running at the time of the limitation period for this

the category of Government, political and crime carried out by the State, is not

credible. Political power based on the violence in principle, guard

to herself she custom executors, violence. Become used to stand

much rather the guarantor of their impunity and de facto criminal law

immunity. Obstacle to their prosecution could not be naturally

formulated publicly and positively by the law. Was the result of a negative

the State of law in the country, later also a promotion leading role of the COMMUNIST PARTY in the

the company even in the State on constitutional principle, but above all the direct

a product of the illegal practices of power groups, which a priori

"to the extent that the perpetrator was designed by their interest in" legibus

absolutus ".

An essential part of the concept of prescription of the criminal prosecution is the will,

the effort and the willingness of the State to prosecute the offence. Without this assumption cannot

be filled with the contents of the concept of the limitation period, nor a sense of this legal

the Institute. Only the long-term interaction of two elements: the will and efforts of the

State of the perpetrator punished and sustained risk of the offender, it may be

punished, is a sense of limitation. If the State of certain criminal offences and

some don't want to prosecute, is a prescription of unnecessary: in these

cases the limitation period does not actually exist and the limitation period

itself is fictional. The written law is deprived of the possibility of their application.

To the limitation of a crime could occur, he would have to run the process

his promlčování, IE. the period during which the State seeks to prosecute.

The limitation period is complete only if the continuous efforts of the State of

disability of the crime at the end of the limitation period will remain futile. This

the assumption in the years 1948 to 1989 in the realm of the politically protected offences

could not be satisfied. The status of the bulk and the State protected illegality

It was not the result of individual mistakes, missteps and negligence

misdeeds of individuals that could provide even a chance

any criminal prosecution, but the result of confident and collective

the behavior of the political apparatus and the State power as a whole, that the criminal

the prosecution of a priori exclude. Protection of the perpetrators by becoming so

versatile, how versatile was power system.

Therefore, you cannot agree with the opinion of the appellants, that the consciousness of a priori

nestíhatelnosti certain offences was not part of the subjective page

these crimes, and that this "quasi-prescription" took place outside of the will of the

the offender. For offenders under the political protection of State is different.

Their offense has been the de facto "barred" before was

committed. This fact she often just inspirativně to the next

crime. To understand the amount of time that passed from committing their

offences, such as the passage of the "Statute of limitations" which were not allowed to accrue,

would be completely protismyslnou the interpretation of the rule of law. It would be

This confirmation of the kind of "legal certainty" that the perpetrators of this

crime had already from the beginning of its activities, which consisted of the

State protected by impunity.

This "legal security" offenders, however, is a source of legal uncertainty for citizens

(and vice versa). In the contest of the two types of security gives the Constitutional Court

precedence over the legal certainty of civil society, which corresponds to the idea of

the rule of law. Another solution would be to issue a totalitarian mode

the dictatorship of the certificate rule of law, and thus a dangerous signal to the

the future: proof that crime can become beztrestným if it is implemented

en masse, organized, and for a long period under the protection of the Organization,

authorised the State. This would mean the loss of the credibility of the current legal

State and it would be a violation of the article at the same time. 9. 3 of the Constitution of the United

States, because "... cannot accept that an interpretation of legal norms

delete, or a threat to the foundations of a democratic State ".

From a subjective point of view of the perpetrators cannot be considered a reasonable

claim the certainty of this kind. The terms rule of law is

maintaining confidence in the durability of the State legislation. The perpetrators of this

type of crime do not have to mean continuity of the written law, but

the unwritten practices. It would be a violation of the written law, if continuity

even now, they could not be prosecuted for violation of the law, which is under the

the protection of the State committed.

All of these individual terms take on a meaning that is directly

proportional to the considerable extent to which this kind of State protected, respectively.

tolerated political crime being committed.

The appellants are based on the assumption that the offences for which this section

5 of law no 198/1993 Coll. are largely barred. This lose-z

the perspective of the appellants-the nature of stíhatelného Act, due to the prohibition of

retroactive criminal law, a decision on the article. 40 para. 6 of the Charter

fundamental rights and freedoms.

Article. 40 para. 6 of the Charter of fundamental rights and freedoms defines and limits the

the subject of the non-retroactivity of the law in two ways:

and) as far as "crime", and

(b)) when it comes to "penalties".

Trestností crime, according to the Czech criminal law doctrine means the opportunity to be

of an offence prosecuted, convicted and punished. The Foundation of criminal

liability is an offense that is defined by the exact description of its

characters, and also the so-called. material character, namely the crime scene for hazards

the company. It is the expression of the principle "nullum crimen sine lege", respectively.

"sine culpa '.

As for the "penalties" is based on the article. 40 para. 6 of the Charter of the

the terminology of the criminal law, contained in the Criminal Code of 29. 11.1961

# 140 Coll., as subsequently amended, in particular in the second section:

"Guidelines for sentencing" (section 31 et seq. of the Penal Code).

Saving the penalty means the determination of the type of sentence, as well as acreage

the penalty for those kinds of punishment, which are scaled. This is expressed

the criminal law principle "nulla poena sine lege". Article. 40 para. 6 of the Charter

This clearly does not allow for the retroactive effect of the law as regards the definition of the

that, and the amount of the penalty.

The Charter of fundamental rights and freedoms, criminal law is not the norm, but

exempts from different areas of law certain principles, which are considered

the Basic, and therefore worthy of increased legal protection. In the article. 40 para. 6 has

Therefore, mean nothing more than what it says, namely, that the definition of each

crime and criminality, which is under the criminal law

done by specifying the characteristics and the degree of social

the hazards of individual offences, cannot be "ex post" after committing a crime

subsequently changed to the detriment of the offender. The same demand Soars for

definition and determination of the amount of the penalty.

The question of the procedural prerequisites criminal punishable at all, and the more

the question of the limitation period, does not belong in the Czech Republic or in other democratic

States in the field of fundamental rights and freedoms of those principled nature,

which are referred to in article. 3 of the Constitution, part of the constitutional order, and of the constitutional

order of the Czech Republic, and the other shall be replaced by the constitutions of the usual

the chapter of the Constitution on fundamental rights and freedoms. The Constitution or the Charter of

the fundamental (and no other) rights and freedoms does not address detailed questions of criminal

law, but provides common ground and basic constitutive principles of the State and

rights at all. The Charter of fundamental rights and freedoms in article. 40 para. 6

discusses that you can in principle to prosecute offences (namely, those that

were defined by law at the time when the Act was committed), and does not regulate the

the question of how long these acts can be prosecuted.

As a result, the provisions on limitation and prescription periods, in particular

the provisions of, the period of time may be an act which is declared to be a criminal,

prosecuted, should not be understood as the subject of the article edits. 40 para. 6 of the Charter. Neither

article. 39 of the Charter, does not speak in favour of the appellants. Only the law can be

According to the article. 39 of the Charter, to establish "that the conduct is a criminal offence" and "what

the penalty, as well as what other harm to the rights or assets for his

committing to save ". The procedural prerequisites punishable are not subject

This reservation.

A group of Deputies sees in section 5 of the Act No. 198/1993 Coll. also violation of

article. 1 of the Charter of fundamental rights and freedoms of the equality of all people in the rights

because-as stated-the case of discrimination against one part of the citizens, as those

who have not been brought before a Court of a non-political reasons, will continue to be

enjoy the right not to be prosecuted, while those who for political reasons

have not been convicted or were exempted from prosecution, the law refuses.

The question of equality before the law must be considered always in connection with the

the nature of the case. The legislature must strive, when considering

things, seemingly, or just in certain formal aspects of the same,

the application of equality has not challenged the idea of fairness and proportionality,

which belongs to the conceptual aspects of the rule of law, the basic principle

the constitutional establishment of the United States (article 1 of the Constitution of the Czech Republic). In

If section 5 of Act No. 198/1993 Coll. seems like a reasonable and

fair to also for those offences that were previously out of will

political and Government leadership are exempted from prosecution, this

at least there was an additional option. So, by contrast, balances the inequality with the

those who previously could be brought to justice, because not only

they were not under special political protection, but the will and the interest of the State was

those crimes that they committed, to prosecute.

Equality of citizens before the law and in accordance with the then law required

versatile investigation of crimes and the uniform and fair use

criminal law, regardless of the person.

With regard to the principle of equality of citizens before the law § 5 of law No.

198/1993 Coll. does not create any special or extraordinary criminal

mode: in the case of section 5, is inadmissible, the principle of collective guilt and collective

responsibility does not change and the principle of the presumption of innocence, or the prohibition of

-retroactivity of the law, which means that the prosecution is only possible for

the acts, which were criminal offences at the time they were committed, and on the basis of

the law then in force, unless a later law for offenders

more favourable. The provisions of section 5 of Act No. 198/1993 Coll., amended only for the

that may occur for criminal prosecution, and defines only a certain range of

the offences for which it can become, namely those where this principle

equality of citizens before the law is for the credibility of the rule of law


From the definition of criminal offences in section 5 of the Act No. 198/1993 Coll. follows that

the prosecution, on the basis of this provision is out of the question:

1. in the case of offences for which the limitation period from the beginning of the period

i.e.. Since the 1930 's. 12.1989, already expired,

2. for those offences, for which the then regime of exception he

It reflected the efforts of breach of legality with the executor

to punish. For those exceptional cases mezinárodněprávně charged recognised

the principle of "ne bis in idem", even if the final judgments of the regime

have been extremely mild,

3. for those offences in respect of which there has been no final convictions

or charges for political reasons which is incompatible with

the fundamental principles of the legal order of a democratic State, but for reasons of

other than just these policy.

The comparability in terms of equality of citizens before the law is maintained in

that, as with other-previously stíhatelných-criminal offences, even in

This category earlier offences, which are afterwards

allows running of limitation periods, it can be assumed that not all

offences will be vypátrány, discovered and demonstrated, so probably

only a small part of this kind of crime. In fact, this is not

the categories of crime at all discriminated against, but in fact an advantage

by the time bonus, the long time that has elapsed between the committing of the

the crime, as well as interest on the timely removal of evidence and difficulties of proof after the

a long time make it difficult to punish the committed offences.


Objections to articles 6 and 8 of Act No. 198/1993 Coll.

1. pursuant to section 6 of Act No. 198/1993 Coll. regulates the special regime for the new

assessment of criminal offences, for which the conviction occurred, and which are

not covered by Act No. 119/1990 Coll., on the judicial rehabilitation. If it is proven

during the proceedings, that the conduct of the convicted person must be directed to the protection of fundamental

human and civil rights and freedoms, and not unfair

means, upon the motion cancels or mitigates the previously saved a penalty.

Members of the group argues in support of its proposal, that this adjustment is

discriminatory and contravenes the constitutional principle of the equality of all people before

by law, as well as the article. 40 para. 6 of the Charter of fundamental rights and freedoms, in accordance with

which assesses the crime and punishment shall be imposed according to law

effective at the time when the Act was committed.

The reasons that led the legislature to this legislation, are apparently

in fact, that those criminal acts, which have been proven motivation

protecting the fundamental rights and freedoms of man and citizen, were in

the former regime also considered as political offences and

attributed to an unusually high degree of social danger. Because

have been interpreted broadly as acts hostile political regime

as such, have been associated with disproportionately high penalties.

Reviewing these penalties, which may, pursuant to section 6 of Act No. 198/1993

Coll., is therefore not focused on violations, but subsequent recovery

the principle of civil equality adequate mitigation. and the abolition of

the punishment.

It remains to determine whether this additional, subsequent legislation is not contrary to

article. 40 para. 6 of the Charter of fundamental rights and freedoms, according to which

crime and punishment is levied shall be assessed according to the law effective at the time,

When the Act was committed. Or prohibition of the retroactivity of the law under the first sentence

paragraph. 6 article. 40 of the Charter, however, paragraph 6 of the contested act does not apply,

because the second sentence of paragraph 1. 6 article. 40 of the Charter permits the retroactive effect

the law, if it is more favourable to the offender. Due to the wording of § 6

Act No. 198/1993 Coll.: "on a proposal from the Court cancels or mitigates the punishment" is this

condition is met.

2. the last group of MPs from the opposition attacks the section 8 of Act No. 198/1993

Coll. and stated that the mandate of the Government by Parliament is too broad and vague.

Argues that the definition is missing in the case of grievances to which the

do not apply laws, defining the rehabilitation nature and scope of claims

authorised persons, the determination of the method of their application and the designation of authorities

that have claims to make decisions and their implementation. This-how to

It is stated in the proposal-is contrary to section 8 of Act No. 198/1993 Coll. article. 78 and article. 2

paragraph. 3 of the Constitution of the Czech Republic.

Regulatory competence through government regulation in

parliamentary systems, it may be the nature of the first separate regulatory

powers directly on the basis of the Constitution (in the Czech Republic article 78 of the Constitution).

In such cases, the Government is authorised to issue regulations for the implementation of

and within the limits of the law. This does not need any specific mandate


In some democratic States is the Constitution edited also derived

regulatory law of the Government on the basis of a delegation of the Parliament. In such

cases the constitutional framework that the clarification of such

the mandate must be directly in the law, and it is factually or both time, and that only

uncertain global mandate, the Government is not permitted. In doing so, the task to determine the

adequate and efficient coverage mandate, and to guard the Government

does not exceed the legal framework is a matter primarily of Parliament itself.

The Constitution of the United States knows only a single type of Decree. It's

only the provisions of the article. 78, which provides only two substantive conditions:

Government regulations, the Government may issue (even without the authorisation of Parliament) only to

to perform a specific Act and its limits. No other provisions of the

do not specify the way in which and to what extent these limits down. It

means that derive directly from the text of the law, which is the Government's regulation

is carried out. Pursuant to section 78 of the Constitution because the United States is to be assessed

even government regulations under the authority of section 8 of Act No. 198/1993 Coll.,

such a mandate, the Governments, albeit in the very framework of the range, in terms of the Constitution

still permitted.

The President of the Constitutional Court of the Czech Republic:

JUDr. Kessler v.r.

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