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The Constitutional Court of the Czech Republic
On behalf of the United States
The Constitutional Court of the Czech Republic decided in plenary on 30 November. November 1994 in
the case of the claimant group of members of Parliament
The United States and the party-the Chamber of deputies of Parliament
The United States on the proposal to repeal section 9 and 9a of the Act No. 59/1965 Coll. on
imprisonment, as amended by Act No. 294/1993 Coll., as well as
section 198 of Act No. 293/1993 Coll., amending and supplementing Act No.
141/1961 Coll., on criminal court proceedings (code of criminal procedure)
Repealing the provisions of § 9 and 9a of the Act No. 59/1965 Coll. on the execution of a sentence
deprivation of liberty, as amended by Act No. 294/1993 Coll., and the provisions of section 198
Act No. 293/1993 Coll., amending and supplementing Act No. 141/1961
Coll., on criminal court proceedings (code of criminal procedure), and the date of publication of this
This finding in the statute book.
At the same time cease to have the validity of the provisions of section 11 (b). and), § 13 and 14
Decree of the Ministry of Justice of 21 June. April 1994 no. 110/1994
Coll. issuing the order of imprisonment, on the date of
the publication of this finding in the statute book.
On 23 December 2005. February 1994 brought a group of 44 members of the Chamber of Deputies
The Parliament of the United Kingdom proposal to repeal the provisions of § 9 and 9a of the law
No. 59/1965 Coll. on imprisonment, as amended by Act No.
294/1993 Coll., regulating the conditions and procedure for changing gears
convicts from one prison to another type. A group of Deputies claim
the amendment to the Act on the execution of prison sentence No. 294/1993 Coll.,
he entrusted the management of the Director of the prison and this review of its administrative
decisions of the district courts, came into conflict with the Constitution of the United
States, as well as with the Charter of fundamental rights and freedoms (hereinafter referred to as
The appellant complains that the new legislation that puts the power of State authority,
belonging only to the courts, to the bodies of executive power and allows them to
decide on the restriction of the inviolability of the person convicted.
Further argues that the amendment acknowledges that the decisions of the administrative authorities,
on that, however, does not apply in such cases, the administrative code, break the
legal enforceability of judgments and power on the classification of sentenced to
individual types of prisons. Finally, stresses that this cancels
prisoners rights that otherwise have in administrative proceedings, as well as the right to
to the lawful judge only in the first and second instance decisions
about how prison saved them by the Court.
In the course of the proceedings before the Constitutional Court extended the representative of the appellants in the
the meaning of the provisions of section 63 of Act No. 182/1993 Coll., on the Constitutional Court, and section 95
paragraph. 1 of Act No 99/1963 Coll., the civil procedure code, as amended
novel, original design, so that, together with the provisions set out
the amended law on imprisonment was also cancelled
the provisions of Act No. 293/1993 Coll., amending and supplementing the criminal
the order, in the part that was deleted earlier 324 tr. § 9-under this
the provisions of decision about changing the method of enforcement of a sentence, even on
changing gears, District Court. As an alternative, he proposed to the Constitutional Court
He put on an appropriate period of enforceability of their findings about the repeal of section 9 and
9A of the amended law on imprisonment and providing
the legislature time to the appropriate amendment to the code of criminal procedure.
Design on the cancellation of the extension point 198 of Act No. 293/1993 Coll.
is materially associated with the proposal to repeal section 9 and 9a of the Act No. 59/1965 Coll.
as amended by Act No. 294/1993 Coll., to the extent that the additional agreement of 44
members with this extension can reasonably be expected. Therefore, The Constitutional
the Court in the present case these signatures again did not request (section 64 (6)
Act No. 182/1993 Coll.). Where such direct substantive binding has not been
given, on the contrary, it would be necessary to proceed within the meaning of the last cited
the statutory provisions.
According to the appellants ' assertion, the amended legislation on imprisonment
deprivation of liberty and criminal procedure conflicts with the provisions of article.
39 and 40 of the Charter, according to which only the Court decides on the sentence, and the other
injury to the rights that can be imposed for the offence. The contradiction
It is also seen with the provisions of article. 38 para. 1 of the Charter, according to which
No one shall be deprived of his lawful judge. The contested provisions
amend the law on imprisonment, as well as the cancellation
the provisions of the amendment to the code of criminal procedure, are finally, contrary to the provisions
article. 2, 4, and 90 of the Constitution, which does not allow them to bodies of executive power
exercise scope belonging to the judicial power.
Proposal to repeal provisions of the Act referred to in article. 87 para. 1 (b). and) of the Constitution
brought a group of 44 members of Parliament [§ 64 para. 1 (b)) of law No.
182/1993], who from their ranks have mandated representation in proceedings before the
The Constitutional Court of JUDr. Jaroslav Ortmana. After finding out that there are
the reasons for the rejection of the proposal, or (section 43, paragraph 1, of Act No. 182/1993 Coll.)
or for the termination of the proceeding (article 67 of Act No. 182/1993 Coll.), the proposal was in the
accordance with the provisions of section 69 of Act No. 182/1993 Coll. sent to Parliament
The United States with a call for comment.
Parliament of the Czech Republic, as a party to the proceedings, in its observations,
signed by the Vice-President of the Chamber of deputies by Ing. Jan Kasal, stated,
that the purpose of the adopted legislation, according to the explanatory memorandum, was that
the legislation, according to which the inclusion of the convicted person to a certain type of Institute
for virtually the whole sentence, the Court ruled
not worked as adequate and flexible. The Court could not at this stage with a certain
probability estimate of the person's performance in terms of
the sentence will behave and how it will be received or, conversely, to refuse
resocialization programs. Therefore, the scheme, which was designed to ensure
the required permeability between different types of prisons, and also allows
in order to convict, whose position in the sentence, decision
the Director of the prison worsened by, sought court protection. Convicted in
the sentence was not deprived of legal protection and always has the option, if the
with the decision, ask the independent court for judicial review
decision of the Director of the prison. In conclusion, the answer to the notice of Parliament
The United States, wrote that it is up to the Constitutional Court, in the context of the separation of powers
among the powers of the legislative, Executive and judicial, to assess whether the contested
the provisions of the amendment to the Act on the execution of prison sentence are in accordance
with our legal system, and issued the decision.
Following the extension of the proposal raised in the course of the proceedings before the
The Constitutional Court, to which the appellants ' representative was present representative
participant-Deputy Chairman of the Chamber of deputies of the Czech Parliament
the Republic, said the representative of a party that does not have any proposals to supplement the
the taking of evidence and that maintains its opinion.
According to the provisions of § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court
first of all whether the legal standards the unconstitutionality
the appellant argues, have been received and issued within the limits of the Constitution laid down
competency and constitutionally prescribed way.
The Parliament of the United Kingdom from the message, referring to a verbatim
the record of the meeting of the Chamber of Deputies, House No. 536 printing and Collections
laws, it was found that the amendment to the law on the execution of prison sentence
freedom proposed by the Government of the United States, which has made use of their right to
legislative initiative pursuant to article. paragraph 41. 2 of the Constitution. The law was adopted
Deputies of the Parliament of the Czech Republic pursuant to article. 15 paragraph 1. 1 and
article. paragraph 106. 2 third sentence of the Constitution. The quorum prescribed provisions of the article. 39
paragraph. 1 and 2 of the Constitution have been complied with, for the meetings of the Chamber of deputies of the day
November 10, 1993 was attended by 158 members, of which for the adoption of
the law 117 members, voted against the 11 members of the boat and 30
abstaining. Constitutionally prescribed way of adoption of the law
He was met, as well as of its release, as it has been signed by the President
The Chamber of Deputies, the President of the Republic and the Prime Minister (article 51
The Constitution), and was announced in the journal of laws (article 52 of the Constitution, § 2 of the Act
The Czech National Council No. 542/1992 Coll. on the collection of laws of the Czech Republic)
the amount of 74, 1993, which was sent out on 10. December 1993. From this day
became Act No. 294/1993 Coll., amending and supplementing Act No. 59/1965
Coll. on imprisonment, as amended by laws No. 174/1968 Coll.,
No 100/1970 Coll., No 47/1973 Coll., and no 179/1990 Coll., valid and effective
He became, according to his article. (IV) on January 1. January 1994.
From the stenografického record of the meeting of the Chamber of Deputies, House
print no. 535, 536, and the laws it was further found that the amendment
Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), no.
292/1993 Coll., the Government proposed to the United States, taking advantage of its rights
legislative initiative within the meaning of article 87(1). paragraph 41. 2 of the Constitution. The law has been
adopted by the deputies of the Parliament of the Czech Republic pursuant to article. 15
paragraph. 1 and article. paragraph 106. 2 third sentence of the Constitution. The quorum required
the provisions of the article. paragraph 39. 1 and 2 of the Constitution have been complied with, since the meeting of the
The Chamber of Deputies on 10. November 1993 was attended by 155 votes
of which voted for the adoption of Law 104 deputies, against the city
10 members and 41 abstentions. The Constitution prescribed
how you receive and this Act was therefore met, as well as its
the issue, as it was signed by the President of the Chamber of Deputies, the President of the
States, as well as the Prime Minister (article 51 of the Constitution), and was declared in
The collection of laws (article 52 of the Constitution, § 2 of the Act of the Czech National Council No. 545/1992
SB.) in the amount of 74, 1993, which was sent out on 10. December 1993. This
the date became Act No. 293/1993 Coll., which amends and supplements Act No.
141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by laws
No 57/1965 Coll., no. 58/1969 Coll. No 149/1969 Coll. No 48/1973 Coll., no.
29/1978 Coll., No 43/1980 Coll., no 159/1989 Coll., No 178/1990 Coll. No.
303/1990 Coll. No 558/1991, no. 25/1993 and no. 115/1993 Coll.
the validity of. Effective in terms of its article. (VI) on January 1. January 1994.
and Then the Constitutional Court examined), as it stores the provisions of § 68 para.
2 Act No. 182/1993 Coll., the content of the contested provisions in the revised
the law on imprisonment, as well as the amended Criminal
the order, in terms of their compliance with the constitutional laws and international
the contracts referred to in article. 10 of the Constitution.
The contested provisions of section 9 and 9a of the amended law on the enforcement of punishment
the deprivation of liberty are at odds primarily with art. 39 of the Charter. The point is, that the
injury to the rights that affect the convicted person as a result of the reclassification of the
the more restrictive type of prison, have a foothold in the Act on the enforcement of punishment
deprivation of liberty and the implementing rules thereto (Decree of the Ministry of
Justice No. 110/1994 Coll., which is issued to the order of imprisonment
freedom), but as a result of Amendment No. 294/1993 Coll., which is contradictory with the
The Charter and the Constitution in other directions, the injury affects the convicted person
also, institutional manner.
The contradiction of the contested provisions of the amendment to the Act on the execution of prison sentence
freedom should be noted in relation to the article. 40 of the Charter. Deciding on the
transfer of the convicted person from one prison to another type, regardless of
on the severity of their regime, is deciding on the punishment for the crime, which
The Charter confers on the exclusive jurisdiction of the Court in any case to the administrative
For the assessment of compliance or non-compliance of section 9 and 9a of the amendment to the Act on the enforcement of
a sentence with the article. 40 para. 1 of the Charter is an important concept
the term "Court of the sentence". With reference to the provisions of § 122
paragraph. 1 tr row conviction must include a statement of the sentence with
indication of legal provisions under which the punishment was meted out. If it was
stored an unconditional prison sentence must contain the operative part of the judgment
about how the performance of this sentence (section 39a, 81 tr.). It follows,
the ruling on the punishment is both a decision on the type and area of punishment,
Firstly, decisions about how to imprisonment, which, within the meaning of
§ 39a para. 2. the Act. means of a court decision on the classification of the offender to
a specific type of prison. If this decision, which refers to section
paragraph 122. 1 tr row in parentheses (section 39a, 81 tr.), can be considered as original
decision on the punishment, then the decision on the reclassification from one type of
prison to another can be considered as derived, even if the decision is
about him cited § 122 para. 1 tr row explicitly.
From the fact that the decision on the reclassification of the convicted person's decision
derived, you cannot without further inferred the possibility was given to another
authority before the Court. This character does not make it a derived
the decision of an entirely different nature than the original decision on the classification
the convicted person to a type of prison. The Constitutional Court is of the opinion that this is
on the contrary. Both the original and derived, in the above
sense, are decisions about punishment. The argument supporting this conclusion
could be the content of the amendment repealed, and today's verdict finding
rehabilitated the provisions of § 324 tr row, according to the paragraph 1 of the
change the way of imprisonment, thus understood, in particular,
transfer of the convicted person from one group to the other nápravně educational,
the District Court ruled.
Thing can be seen even in the following way, which leads to the same conclusion.
The content on your pojmovém and the meaning of the sentence not only for its category has
quantitative, time dimension, but also their qualitative dimension,
testifying about the extent to which and the manner in which it is affected by human
freedom and dignity. Connection dimension is expressed and implied
the legal requirement that if stored an unconditional prison sentence
freedom must include the operative part of the judgment about how the performance of this sentence
(article 122, paragraph 1 tr row). Also, this statement is therefore in essence
the statement about the sentence, přiřazujícím to its quantitative dimension and dimension
qualitative. This interpretation has the support in the understanding of human rights and
freedoms, because it's not just about the length of the sentence, but also about its relationship to the limits
These rights and freedoms and the intensity of the interference with the rights and freedoms.
Unconstitutionality of section 9 and section 9A(1). 1 of the law on imprisonment in
amended by amended (Act No. 294/1993 Coll.) cannot in the opinion of
The Constitutional Court, compensate for, or the provision of section 9a of the paragraph. 2 of the cited
the Act, in relation to the article. 40 para. 1 of the Charter.
According to the last of the cited statutory provisions-section 9a, paragraph 2. 2-against
the decision of the redeployment to the prison with the stricter regime may convicted
within eight days from the date of delivery of the written copy of the appeal to the
the District Court in whose district the is a prison whose Director for reclassification
decided to. The appeal does not have suspensory effect. The proceedings before the Court
covered by a specific regulation. By the code of civil procedure is
(Act No. 99/1963 Coll., as amended, specifically its provisions
section 250 l up to 250s, governing decisions on appeals against
decisions of administrative authorities).
As already stated, deciding on punishment by the Court as a Court of
prvostupňovým includes the decision of its kind, measuring and how
performance, if it was saved, imprisonment.
By contrast, a decision within the meaning of section 9a, paragraph 2. 2 the amended law on the
imprisonment and section 250 l up to 250s of the row is a decision
only repair the instance against which the other remedies are not acceptable
resources (section 250s (1) o. s. l.). In other words, the Court is to
deciding how to imprisonment under section 9a, paragraph 2. 2
the amended law on imprisonment and civil
Code of civil procedure receives first and exclusively as a Court of second instance.
This is significantly impeded by the ability of the defense of the convicted person against a decision of the
the redeployment, and that unlike earlier 324 in the editing section of paragraph 1. 3 tr.
Round 3, according to which the decision on changing the method of enforcement of the sentence, IE. and about the
the reclassification, was allowed the complaint, which was to have suspensory effect. About this
the nature and impact of imprisonment now zrušované regulation in § 9a
paragraph. 2 of the law on imprisonment, as amended by Amendment No.
294/1993 Coll., as assessed from the above perspective, testifies to a certain
extent, specific data on numbers of reclassification of inmates to prisons with
the stricter regime. From the message of the Ministry of Justice, involving
period from 1. January 1994 until 31 December 1999. October 1994, it follows that for reclassification
sentenced to prison with the more restrictive regime, it was decided by the
162 cases. Against those decisions have filed an appeal of convictions
means to the District Court under section 250 l up to 250s CCP total in
ten cases. In four of them, it was decided to dismiss them,
in one case, the proceedings were stopped in one adjourned in
the remaining four cases, it was not at the date of the submission of the report (17.
November 1994) have not yet decided.
Collectively, if the inmates only on constitutional changes
the basis of the decision of the Court as a Court of first instance already, cannot be
the lack of such a decision is replaced with a judicial decision, which
a review of the decision is a mere administrative authority in
decisions on appeals against their decisions.
Conferring of deciding on the reclassification of the convicted person from one type of prison to
the second Director of the prison was a question of deciding how performance
imprisonment, his repossessed or change the Court and entrusted to the
administrative authority. There was also the fact that the convicted person was in
the question, not yet decided by the Court, this Court, or his
lawful judge withdrawn. The provisions of § 9 and 9a of the amendment to the Act on the enforcement of
imprisonment are so inconsistent with the article. 38 para. 1 of the Charter.
How can state power in the form of criminal, i.e. be able to. the performance of the sentence
freedom, including changes to the way this power, exercised only within the limits and
in ways that are determined by law, so must, however, go just about the law, which
It is not unconstitutional. The amendment of the law on imprisonment No.
294/1993 Coll., however, such contradictions, as inferred from above, in the
the result is its provision of section 9 and 9a of the contradictory and with the provisions of
article. 2 (2). 3 of the Constitution.
The fact that the contested provisions of the amendment to the Act on the execution of prison sentence
freedom means as a result of the withdrawal of the convicted person in question
changing gears in the course of enforcement of the sentence of his lawful judge (see a contradiction with the
article. 38 para. 1 of the Charter), is the basic right and
freedom of the convicted person, IE. personal freedom (article 8, paragraph 1, of the Charter)
It takes away from the protection of the judicial power, which violates article. 4 of the Constitution. Out of the said
unconstitutionality of infected stems § 9 and 9a of the amendment to the Act on the enforcement of punishment
imprisonment no 294/1993 Coll.
Unconstitutionality cited provisions of the abovementioned amendment to the Act on the enforcement of punishment
imprisonment, if the petitioner is seen in their conflict with the article.
90 of the Constitution, it is justifiable in the same way as in case of collision
the contested provisions with article. 40 para. 1 of the Charter. According to both the provisions of the
only the Court decides on guilt and punishment for criminal offences. Therefore not
administrative authority, even if it was the case just a question of deciding on the
Due to the fact that it was for these reasons within the meaning of section 70 para. 1
Act No. 182/1993 Coll., on the Constitutional Court, found a discrepancy between the
the provisions of sections 9 and 9a of the Act No. 59/1965 Coll. on the execution of prison sentence
freedom, as amended by Act No. 294/1993 Coll., on the one hand, and the cited
articles of the Charter, as well as the Constitution, on the other hand, the Constitutional Court decided on
cancellation of these statutory provisions, the date of publication of this award
in the collection of laws.
(b) notify the applicant only) even though the conflict cited the provisions
amendment to the Act on the execution of prison sentence No. 294/1993 Coll., as well as
the amendment to the criminal procedure code no. 292/1993 Coll., with national ústavněprávními
provisions, the Constitutional Court, being bound only Petite design, not the
on the grounds of official duties, within the meaning of the provisions of § 68 para. 2
Act No. 182/1993 Coll., on the Constitutional Court, also dealt with the issue of compliance
the contested legislation with the international conventions on human
rights and fundamental freedoms, which have been ratified and promulgated,
If the Czech Republic is bound by them (article 10 of the Constitution). In this respect,
However, any discrepancies found.
Outside the scope of this examination will remain the minimum standard rules for the
the treatment of imprisoned persons, approved by the economic and Social Council
The U.N. resolutions No. 663 C (XXIV) and 2076 (LXII), as well as the European
prison rules having the nature of the recommendations of the Committee of Ministers of the Council of Europe
No R (87) 3 to Member States. None of these documents does not in fact
the character of international agreements within the meaning of article 87(1). 10 of the Constitution.
As to Act No. 59/1965 Coll. on imprisonment, in
amended by Act No. 294/1993 Coll., implementing regulation has been issued, namely
Decree of the Ministry of justice no. 110/1994 Coll. issuing the
the order of imprisonment, it was necessary in the report, pursuant to section 70 para.
3 of Act No. 182/1993 Coll., on the Constitutional Court, also say the loss of
the validity of its provisions, and that section 11 (b). and) and § 13 and 14, since the
its contents are linked to the repealed provisions of section 9 and 9a of the Act No. 59/1965
Coll. on imprisonment, as amended by Act No. 294/1993 Coll.
The President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
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