In The Matter Of The Proposal Of The President Of Republic For Annulment Of The Part Of The Criminal Code

Original Language Title: ve věci návrhu prezidenta rep. na zrušení části trestního zákona

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91/1994 Coll.


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the finding in the journal of laws repealed.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


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


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


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


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

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