On The Proposal To Repeal Section 9 And 9A Of The Act. About Imprisonment

Original Language Title: o návrhu na zrušení § 9 a 9a zák. o výkonu trestu odnětí svobody

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=42558&nr=8~2F1995~20Sb.&ft=txt

8/1995.



FIND



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)



as follows:



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.



Justification



(I).



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 Charter").



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.



II.



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.



III.



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.



IV.



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.



In the.



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

authority.



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

the punishment.



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.



Vi.



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.