91/1994 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic held on 12 June 2006. April 1994 in plenary in the matter
President of the Republic on the proposal of cancellation provisions contained in § 102
Act No. 140/1961 Coll., the criminal code, as amended by Act No. 563/1991 Coll.
and Act No. 290/1993 Coll., and expressed by the words "its Parliament, Government
or the Constitutional Court "
as follows:
Provisions expressed in section 102 of the Criminal Code No. 140/1961 Coll., as amended by
Act No. 563/1991 Coll. and Act No. 290/1993 Coll., which is defined
the words "its Parliament, the Government or the Constitutional Court", the day of its publication
the finding in the journal of laws repealed.
(A substantial part)
President of the Republic submitted a 1. in December 1993 the Constitutional Court
the cancellation of the above section § 102 of the Penal Code, as amended by Act No.
290/1993 Coll., amending and supplementing the criminal code and the law of the United
the National Council No. 200/1990 Coll. on offences.
To justify its proposal, the President of the Republic stated that the definition of
the facts in § 102 is in breach of article. 17 of the Charter of fundamental rights
and freedoms ("the Charter"), because the crime of defaming Parliament,
the Government and the Constitutional Court in the concept and definition of our criminal
the law is both "necessary measures" in our society and, secondly,
the reasons for which you can restrict the freedom of expression of the citizen, not in this
definition are expressed. In addition, characterizes the crime proposal
defamation of State authorities of the Republic in the contested provision as vague
and to allow different interpretations. According to the claimant does not specify
out of the negotiations with the citizen, both as to form and
content defamatory speech, to the protected object. The proposal then infers
that this inaccurate wording enables a broad criminal responsibility,
that can lead to a violation of the Constitution guaranteed rights of freedom of
speech.
In the Chamber of deputies from December 7. January 1994 States the proposal for a
President of the Republic, that the new wording of section 102 of the criminal law responds
only the changed constitutional status resulting from the Division of the Federation and of the
the adoption of the Constitution of the United States. From a content perspective, observations
The Chamber of Deputies considered the proposal to repeal section 102 of the criminal section only
Act for vague, imprecise wording of the law when it complains. According to the
representation of the Chamber of Deputies, this obviously does not intend the inaccuracies
part of the law whose constitutionality is being challenged, but the design intact diction
"Who ... the old man". If the application of this provision too broad
There has been a violation of the constitutionally guaranteed freedom of speech, provides a valid
legal order-according to the Chamber of Deputies-against such
protiústavnímu intervention of a variety of defenses, including the protection of
in proceedings before the Constitutional Court.
The Constitutional Court dealt with the issue of locus standi of the first
the petitioner. To assess while denying the right of reservation, President
States to submit a proposal for the repeal of the law or its individual
the provisions of [pursuant to § 64 para. 1 (a)) of Act No. 182/1993 Coll., on the
The Constitutional Court], without the kontrasignace of this proposal, the Prime Minister or
a member of the Government's authorized by it, because the article. 63 para. 2 and 3 of the Constitution shall be
supposedly the countersignature of the Prime Minister as a precondition for the submission of such
the proposal.
After considering these objections, concluded that it is an interpretation which
It is not in accordance with the text and purpose of the Constitution, and points out in this case on the
the difference in the formulation of paragraph 2 and paragraph 3 of article. 63 of the Constitution. Article. 63 para.
2 of the Constitution contains the global expression of unspecified extent
(potential) of the powers that may be conferred on the President by law
of the Republic. By contrast, article. 63 para. 3 of the Constitution states, in which
cases, the exercise of those powers conferred by ((2) of the President
the President of the Republic) requires a general or his authorized Member
the Government. This is not generally in any way the exercise of
powers under art. 63 para. 2, but only when such a means of exercising
those powers that the President realizes the form "issued by the
the decision "(article 63, paragraph 3, of the Constitution). This formulation emphasizes the
objectively-the legal nature of such a decision: it is about the performance
powers, amending or confirming the legal status (of even
individual persons). "Decision" cannot be understood as a
any "decision" to a specific behavior. A proposal from the President of the Republic
According to § 64 para. 1 (b). and) of the Act on the Constitutional Court is not "issued by the
the decision ", but the stimulus. This design realizes the President of the Republic
only my right, while the right to issue a decision, and thus confirm the
or to change the legal status, it is for the Constitutional Court.
The Constitutional Court also considered another reservation for concern over how active
the evidence of the claimant, as well as the jurisdiction of the Constitutional Court on the proposal
decide. The Constitution--as we know--confers on the Constitutional Court the right to
decide on the unconstitutionality of laws or their individual
provisions. Because the proposal of the President of the Republic not challenging the unconstitutionality
the whole of section 102 of the criminal code, but only parts of it, points out in
objections to it, that the proposal does not apply to "individual", but only
parts of it, and because the Constitution does not stipulate anything about making a decision about the incremental
parts of the individual "provisions", it is considered that the proposal lacks
standing of the applicant and then the jurisdiction of the Constitutional Court about him
decide.
Also, these reservations must be rejected. Article. 87 of the Constitution cannot be
interpret in the sense of a purely formal hierarchy, distinguishing the rights
sections, articles, paragraphs, etc. "Individual provisions" is not just
only formal whole, or formal unit of the legal text, but each part of the
the legal text, which-regardless of its formal form-
"individually, establishes", IE. even in the individual expresses, IE.
minor issues-a legal status that is still
material-legal with a certain sense of the apparent total.
Protection of certain institutions before the corruption contained in § 102 of the criminal
the law is the legal provisions whose content is entitled to these institutions
on the criminal law protection to the extent referred to in § 102, as well as the General
obligation shall populate the merits should be avoided. It is not important that the
in the same section is protected as well as the term "Republic"--is crucial, that the
the portion of section 102, whose annulment is sought is the President of the Republic
content legally definable. The applicant must not be forced to
i suggest to cancel those parts of the individual sections of the Act,
which he sees as constitutional and which retain their sense even after cancellation
other parts of the same section.
The objection can be variable interpretation, which could jeopardise the principle of
freedom of expression, is not in itself sufficient grounds for cancellation of the already
the contested section § 102 of the Penal Code. The facts of the unconstitutionality
It is not intended, the mere possibility of misrepresentation of certain legal norms, but
requires clearly contrary findings in the text of the Act of an already existing
or from resulting, which comes in the account, if the unconstitutional
the interpretation of the meaning of the text and the law is unavoidable or real
předpokladatelný or, if the law by its very nature such an interpretation
inspires.
The term "defamation" then it is a term that is not in our legal system
novelty. In the territory of Bohemia and Moravia is used on an ongoing basis, starting with the already
criminal law from the year 1852, during the first Republic, he was taken to section 14
paragraph. 5 and 6 of the Act on the protection of the Republic # 50/1923 Coll., supplemented by
Act No. 124/1933 Coll., and later also to the criminal laws of the 1950s and
the 1960s. "Defamation" is understood as a gross reduction of the seriousness and
It is now the doctrine of criminal law is interpreted as a gross belittling,
potupení or ridiculed, as coarse attacks on the seriousness and the honor, committed
offensive manner.
The term "defamation" itself today does not understand differently than before. The difference,
that cannot be overlooked, however, lies in the fact that Act No. 50/1923 Coll.
He used the term "defamation" only in section 14, and only in connection with
Therefore, the concept of corruption of the Republic, which is not an expression for a particular
an institution with certain powers, but is a symbol of the overall arrangement of the
State. The individual protection of constitutional institutions regulate this law
in a different way. In section 20, which is semantically equivalent to § 102
the current criminal law, gross talks about neslušnosti against the
each of the constitutional authorities in quite specific contexts:
If there is interference with the exercise of their powers, in order to reduce their
the seriousness.
Similarly, the differencing is a modification of these issues in other countries. It,
the Czech Republic is exceptional, does not lie in the fact that protects the Special
substance of the offence and the highest constitutional authorities,
but in what way is it protects: so that nediferencuje
merits of the defamation of particular constitutional bodies entrusted with the
certain features and equipped with certain powers and defamation of the Republic
as a symbolic expression for the general arrangement of the State. In the constitutional State
is the protection of specific institutions with decision-making power always closer and
vymezenější: is limited to the performance of their constitutional functions and prominent
by defining only the necessary degree of interference with civil rights, is part of the
total power control system. In a constitutional State as sovereign
protecting yourself and the primacy of their civil rights against the eventual
abuse of power, and thus before the State and its delegates.
In this respect, it should be noted also that the fact that the criminal
the law in addition to the criminal offence of "defamation of the Parliament, the Government or the constitutional
the Court "under § 102 knows further provisions applicable to similar
criminal-law protection of these institutions. In the title of the third defining criminal
actions against the exercise of powers of public authority, as well as the public
agents. Obviously correlated to the merits of the section 102 shall contain in particular §
paragraph 154. 2 and § 156 para. 3 of the criminal code.
In the first case (article 154, paragraph 2) formulates the facts as
the gross insult or defamation of a public authority, in the second (section 156, paragraph 3)
then an officer. The theory of the criminal law and judicial practice combines with
the two terms ("defamation" and "gross insult or slander") identical
Essentials. As for the attack on the honour, reputation and authority, with
derogatory speech may be committed in various ways: verbally, in writing,
graphically, a gesture or even the physical act of nedosahujícím the intensity of the violence.
The extent to which the provisions of § 102 and § 154 para. 2 or § 156 para. 3
actually match, however, hinges on whether or not from the assessment of the context in which
are set.
When it detects that it is identical to the provisions, while one can doubt the
the effectiveness of such a solution, however, you cannot legally challenge the duplication, because the
apply the legal principle "superfluum non nocet"-redundancy is not harmful.
Party considerations the Constitutional Court remains the concept of "defamation of the United
the Republic "in the first part of section 102 of the criminal law, which is not subject to
the objections of the appellant. It should be noted that the term "Republic" is different from the
the concept of "public authorities": it is an abstract expression of a rather
the overall arrangement of the State.
Otherwise, it is the case with specific institutions of the State, such as the Parliament, the
the Government or the Constitutional Court, which fulfils a specific mission, the Constitution
endowed with specific functions and powers, and are "at it would materialise" and
competent personnel and equipment. Use of the General and straightforward
the term "public authority" in section 154 of the criminal code are in the range
set out the facts and State authorities protected collectively
institutionally (as individual institutions) and in section 156 and individual
public officials.
In the case of § 154 para. 2 and § 156 para. 3 of the criminal law States
the head of the third criminal law sense and the framework provided by the criminal law
the protection. Private object of protection are not institutions themselves, in their
"materialized" form, but the mission, which are in the Democratic
holders of the company: their work conveys an undisturbed function
constitutional and rule of law. The object of protection is the best way
becoming a set of values on which democracy rests and from which the
It is based on. It may therefore be the facts of the offence of gross insult
or defamation of a public authority or a public official only
If it is a public body or public official rough way
infected (i.e. the gross insult and slander), in direct connection with the performance of
their powers: in the performance or exercise of its powers.
As a result of this difference, there is no doubt that in § 102 other definition
merits for the works, which would otherwise be punishable no longer on
under section 154 para. 2 and § 156 para. 3 of the criminal code. It is therefore not
possible to section 102 apply sentence: superfluum non nocet. This dualie and
Yet the diversity of adjustment leads to contradictory interpretations, which are not being replaced
The Parliament, the Government and the Constitutional Court from the scope of the State authorities, although
the public authorities are, and provides them in § 102 of the parent type of the legal
protection, which is otherwise a normal symbols only for the protection of abstract
State.
The law defining the criminal law protection of constitutional institutions in § 102
It also lays down limits for the exercise of fundamental rights and freedoms of citizens. The law in
the rule, however, is not only an internal circular to the State apparatus and
criminal law is an internal directive for the criminal justice system. The law is
publicly published resource that has mainly citizens of the same
clearly indicate what is allowed and what not, and what can and what cannot.
The condition for the application of civil rights is a clear leadership boundaries
between the freedom that is a constructive basis for a democratic and critical
society and freedom, which is directed towards the destruction of general human and
democratic values. Therefore, the democratic States recognize the legitimacy of the
certain restrictions on the exercise of civil and human rights and freedoms. The principle of the
the rule of law is based on the priorities of the citizen against the State, and thus of the
priorities of fundamental civil and human rights and freedoms. In the nature of
the rule of law is, however, also note that contained such measures is
should be minimized, and at the same time face the temptation of State and powerful
individuals gain more power in it than absolutely need.
Because each act containing the commands and prohibitions of interferes with the freedom of
the individual and his or her fundamental rights, it is necessary to consider whether, and to what extent
are the commands of the law clearly and precisely defined, but also whether they are
its purpose proportionate, appropriate and necessary.
In a constitutional State, it is not only important that the way in which they are
able to interpret the laws by the courts, but also how these laws will be
to interpret the civil public. Legal uncertainty for citizens means a loss of
the credibility of the rule of law and an obstacle to civic activities.
While even a layman can make an idea on the merits § 154
paragraph. 2 and § 156 para. 3, in section 102 of the criminal law finds himself in
doubts about where is the end of the criticism and the beginning of the defamation of constitutional
institutions, if it is not at all binding facts happening nor intended to
Mission or function, activity or, at least, the authority and its performance
individual institutions. It is not even clear what is on these
institutions worthy of a special criminal law protection, so in these
context takes the term "defamation" gross considerably and indeterminate
the importance of. There is no doubt that this vague uncertainty can be understood
as a relic of the old vrchnostenských modes in certain
matters typically kept available the foggy formulations, which
allow the needs of interpretation "ad usum Delphini".
Another element of the rule of law is the principle of proportionality, i.e.. the corresponding
a reasonable correlation between the objective and the means used. The bounds for the
adequacy and acceptability of the intervention of § 102 of the criminal law to civil
rights are laid down in particular in article. 17 of the Charter, which defines how to
freedom of expression, and the boundaries of its possible limitations. According to the article. 17
paragraph. 4 of the Charter can be freedom of speech and the right to seek and disseminate
information limited by law only in the case of measures in a democratic
society is essential for the protection of the rights and freedoms of others, security
State, public security and public health and morality. On
the basis of the article. 4 (4). 1 of the Charter must store the obligations by law
respect the preservation of fundamental rights and freedoms, and pursuant to paragraph 4 shall
be investigated their essence and meaning and limitations must not be abused to
purposes other than those for which it was established.
Also article. 10 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to
"the Convention") puts a similar demands on our legal system from the perspective of
international legal commitments, the United States and foresees the conditions
as the article. 17 of the Charter, in particular, limits the legal interference with the rights and freedoms of the
"the measures necessary in a democratic society" for the protection of the values that
basically agree with the article. 17 of the Charter (the Charter text was
article. 10 of the Convention). Consequently, the assessment of section 102 of the criminal law
great importance to the concept of legality and the legal restriction of citizens ' rights, how to
It is understood by the international community on the basis of the Convention, as well as their
the interpretation of the jurisdiction of the European Court of human rights.
In the opinion of the European Commission of human rights, as well as the European
Court of human rights can be considered the only legal standard Act
formulated with sufficient precision to enable the citizen to its behavior
to regulate.
When potential conflict between freedom of expression and the right to state it in the
case of necessity limit is based on the European Court of human rights of
increased protection for the individual, because freedom of expression is considered to be one of
the main foundations of a democratic society, even if, in the case of
information and ideas that offend, shock or are of concern to the State, or
part of the population. This corresponds, in the opinion of that Court,
the demands of pluralism, tolerance, and openness of the Democratic
the company. Freedom of the press from that Court offers public opinion
one of the best resources to get to know and evaluate the ideas and attitudes
senior political leaders. Freedom of political discussion is
the real core of the concept of a democratic society. The European Court of
human rights therefore decided that permitted criticism are wider
in politics as such than for private individuals: Unlike private
the person is a politician inevitably and knowingly exposing a strict control
own words and gestures from both journalists and the general public.
Article. 10, paragraph 1. 2 the Convention allows you to protect the reputation of the other and policies shall enjoy the
This protection also, but in this case, it must be a requirement of protection
measured against the interest of the free discussion of political issues.
After consideration of all the circumstances and context in which it is section 102 of the criminal
the law set, the Constitutional Court of the Czech Republic came to the conclusion that
vague and nevymezená of the criminal law protection of the Parliament, the Government and the
The Constitutional Court under section 102 of the criminal code goes beyond the constitutional
order and the international obligations of the United States as sufficient
the criminal protection of State authorities in § 154 para. 2 and § 156 para. 3 brings
its obecností and extra protection because of the element, which, moreover,
nevymezeností of the object of protection is out as of the generally accepted principles
the rule of law, as well as from the frame of a containment in article. 17 of the Charter State interference
to civil rights on measures which are by their nature necessary for the
conservation of certain values. In § 102 of the criminal law cannot go on
the necessary measures so that the protection provided by the State authorities in the section
154 and 156 is sufficient and in terms of the definition of the object of protection
more accurate. The concept of section 102 of the criminal code in this respect also in
contrary to the international obligations of the United States and the jurisdiction of the European
Court of human rights.
Nevymezením actual object of criminal law protection in section 102 is in
the fact the Lords ' position, i.e. protected. place in the
the institutional hierarchy of the State authorities, although it should be
the subject of the protection of the realization of the mission and functions of the Parliament, Government and the
The Constitutional Court in the life of a democratic society. Because
protection of the exercise of the powers of the State authorities, and hence their role in
democratic society, contains and defines section 154 of the criminal code, and
because the authorities are no doubt the Parliament, the Government and the constitutional
the Court, the idea that a kind of absolute section 102 introduces
the institutional protection of those constitutional authorities, moreover, that in this
the case is not bound to exercise their powers. Lose interpretation
the concept of defamation of its limits and its link to the function of these constitutional organs.
In § 102 of the Penal Code, the term "defamation" disregarded even the intention to
the degree of risk of the offender or performance of the powers and tasks of the constitutional
institutions in a democratic system, and is comparable in its form
probably with a classic insult to the Majesty of his Majesty.
This is directly inspired by the interpretation which is in conflict with a particular
article. Article 17(1). 4 of the Charter and article. 10 of the Convention, because it's not about the measures in
democratic society for reasons listed in these articles is necessary,
In addition to the article. 4 (4). 4 of the Charter, which States that in applying the provisions of
the limits of fundamental rights and freedoms must be preserved and
the meaning and limitations must not be abused for purposes other than those for which
has been fixed. Is in conflict with article. 1 of the Constitution, according to which the Foundation
the rule of law is respect for the rights and freedoms of man and citizen, and that
along with the article. 1 of the Charter formulates the primacy of fundamental rights and freedoms.
Connecting the criminal law protection of the Parliament, the Government and the Constitutional Court on the
the protection of the "Republic" in the common section confuse the two
different and incomparable categories of the protected object. While for
the protection of abstract concepts, such as. "Republic" or State
the symbol is a more general wording of "defaming" the usual, for the said institutions would
protection should be bound to the role that such institutions in the Democratic
It is for the company, and by the way this task performs. If
in the former case the protection of philosophical values, as in the second of the
protection of the functional values of the company, and through them to
the protection of democratic principles.
According to the observations of 10. January 1994 signed by the Chairman of the
the Chamber's new wording § responds to 102 of the Penal Code only on the changes
constitutional State resulting from the Division of the State, the proposal
the Constitution Committee of the House on the deletion of section 102 of the criminal
the Act was not accepted at that time.
The Constitutional Court considers that by customizing § 102 of the Penal Code only on the
Division of the State produces a contradiction between the concept of protection of constitutional institutions,
which remained indebted to the "old" mode, and the new constitutional order, as well as
and international commitments of the Czech Republic, which are based on a completely
different constitutional principles.
After taking into account all the circumstances and context of the Constitutional Court considers
that section 102 of the criminal law to the extent specified in the Act No. 290/1993 Coll.
words: "the Parliament, the Government or the Constitutional Court" contradicts the article. Article 17(1).
4 and article. 4 (4). 4 of the Charter, article. 10, paragraph 1. 2 of the Convention, as well as the principles of
the rule of law and the primacy of fundamental rights and freedoms contained in the article. 1 and
article. 3 of the Constitution of the Czech Republic and in the article. 1 of the Charter.
JUDr. Kessler v. r.
the President of the Constitutional Court of the Czech Republic
