103/1997.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic held on 9 April. April 1997 in the plenary on the proposal

The District Court in Kutná Hora on the cancellation of part of the provisions of section 171 paragraph 2. 1

(a). (d)) of the Criminal Code No. 140/1961 Coll., as amended,



as follows:



Date of publication of this finding in the journal of laws shall be repealed part

the provisions of section 171 paragraph 2. 1 (b). d) of Act No. 140/1961 Coll., the criminal

Act, as amended, expressed by the word "constitutional".



As to the remainder, if it was proposed to reverse the cancellation section of this

the provisions on 1 January. September 1995, the proposal is rejected.



Justification



(I).



The Constitutional Court received on 21 February 2006. October 1996 proposal by the District Court in the Czech Republic

Mount the cancellation provisions of § 171 section of paragraph 2. 1 (b). (d)) of the criminal

Act No. 140/1961 Coll., as amended, is expressed by the word "constitutional".

The court hearing under SP. zn. 6 T-13/96 criminal case against

the accused, a youthful P. H., 3. May 9, 1979, Carpenter

The educational Institute of youth, whom Stone Lhota was made

the prosecution for the crime of obstructing the performance of official decisions pursuant to § 171

paragraph. 1 (b). (d)) of the criminal code, which should happen by day

September 26, 1995, he left the Institute on vacation with the term return to 20

28 hours of the day. September 1995, and within the prescribed period to the Institute

did not return, although the judgment of the District Court of 12 July 2005 in Liberec.

November 1986, SP. zn. P 514/78 he was ordered institutional care, which

According to the indictment, had allowed serious negotiations, in order to frustrate the purpose of the constitutional

education, which had been imposed by the Court.



The District Court in Kutná Hora by order of 19 December 2003. September 1996 the criminal

the prosecution conducted against a juvenile p. h. pursuant to § 224 of paragraph 1. 5 the criminal

order cut off when essentially identified with that argument, Defense Attorney

the accused about the unconstitutionality of the provisions of section 171 paragraph 2. 1 (b). (d))

the criminal code, in part, that is criminal and undermining the purpose of the

institutional care.



In support of its proposal, the District Court in Kutná Hora said that, based on

mainly from the fact that within the meaning of the provisions of article. 9 of the Convention on the rights of the child

(hereinafter referred to as "the Convention"), it is possible to separate a child from his parents against their

will only in the case that it is necessary in the interest of such a separation of the child.

That provision of the Convention is then in the legal order of the Czech Republic

built just Institute of institutional care, which may thus be

ordered only in the interest of the child. If it is therefore possible to institutional care

order solely in the interests of the child, then the provisions of section 171 paragraph 2. 1 (b).

(d)) of the criminal code, as amended by Act No. 152/1995 Coll., which was to

of the cited provision inserted the word "constitutional", contrary to the general principle,

that cannot be the perpetrator or a participant in a crime because, on

which protection is the relevant provision, the violation of which it is determined.

Such prosecution of a child who refuses to undergo exclusively in

his interest has ordered institutional care, according to the appellant the same

logic as the criminal prosecution of the person who attempted to commit suicide, for

instructions for participation in the suicide a criminal offence under section 230 criminal

law, or the prosecution of a juvenile, which was entrusted to a judicial decision

one of the parents and will ask the other parent to this decision

disregarding and in breach of such a decision it has taken away from education

the parents, whose education was entrusted to the young, for the instructions to

the offence of abduction under section 216 of the criminal code. In this context,

the applicant also points out the doubts as to the appropriateness of that provision

expressed in the commentary to the criminal law, which was published in 1995 in the

publishing company c. h. Beck/SEVT. The Tribunal is therefore convinced that the

the contested part of the provisions of the criminal law is in conflict with the constitutional

policy in the United States, in particular with article. 9 of the Convention, therefore, proposes to its

the abolition on January 1. September 1995, whereas that of the contested

the provisions of any person have any rights, and therefore, in accordance with the

the principle of legal certainty should be revoked on the same date,

the Act No. 152/1995 Coll. took effect.



The Chamber of deputies of the Parliament of the Czech Republic, whose declaration

The Constitutional Court has taken under section 69 of Act No. 182/1993 Coll., on the constitutional

the Court, in its written observations, signed by the Chairman of Ing. Miloš

Zeman basically points out that the Convention, which lays down the principle that the child

does not have to be separated from their parents against their will, however, Convention

He admits such separation of the child from the parents, which is needed in order to

of the child and which is addressed to the competent authority on the basis of a judicial decision

in accordance with applicable law in the relevant proceedings. Similarly, The Charter

fundamental rights and freedoms ("the Charter") States that the minor children

they may be separated from their parents against their will, only by a court decision

on the basis of the law. These basic principles of the Convention and the Charter are made

law of the family code, the code of civil procedure, the law on education

devices and other standards lower legal force, in particular decrees

The Ministry of education, youth and sports. Constitutional education comes

into account when the child's upbringing is seriously compromised, or it cannot be

other serious reasons to secure, and also where the aims

provide children and youth with negative phenomena of preventative behavior

educational care. Act No. 152/1995 Coll., to supplement the provisions of § 171

the criminal code so that it extended the protection of judicial decisions against the

undermining the purpose of obstructing or also for the protection of a judicial decision

ordering institutional care. In the explanatory memorandum to the Act No. 152/1995

SB. to the provision the petitioner stated that under the applicable so far

the provisions of section 171 paragraph 2. 1 (b). (d)) of the criminal code was a criminal offence

just undermining or impede protective treatment or protective care.

Obstructing or impeding the performance of an essential institutional care by a person against whom

This measure is directed, was not punishable, even under section 171 paragraph 2.

3 of the criminal code. Yet in terms of the content of these institutes and material

the reasons for their saving is not in practice between the trade and the constitutional

bringing up the more pronounced difference, and the danger to society

represent young people on the run from protective or institutional care, is

also the same. For this reason, the originator of the draft law No. 152/1995

Coll. suggested as well affect the cases of serious impediment or obstruction

protective and institutional care. It is undeniable that the originator of the proposal

had in mind only, and in particular institutional care designed for problematic

Youth, even if there is a next to such institutional care and institutional care

for abandoned or orphaned children. In the comments it is assumed that this not

the very sensitive resolution of the types of institutional care in the criminal code may

actually lead to believe that any escape from the orphanage must be

as well as escape from the educational Institute for youth

increased educational care. In a certain way out of this State, that

It was the adoption of the amendment to the provisions of section 171 paragraph 2. 1 (b). (d)) of the criminal

the law is the necessity to ensure that all relevant authorities carefully examined

circumstances, motives, consequences of the conduct of a minor and criminal

proceedings due to undermining or obstructing an official decision gave

only in cases when it is filled with the facts of the offence

undermining of institutional care ordered by a minor of educational reasons. When

the possible compliance of the application for annulment of the contested provisions shall then

in the observations does not recommend its cancellation retroactive to 1. September 1995, having regard

on the unsuitability of the introduction of retrospective laws to our

the rule of law. The observations also confirmed that law No. 152/1995 Coll. was

approved by the necessary majority of members of the legislature on 29. June

in 1995, he was signed by the respective constitutional officials, and has been duly declared.

In conclusion, the representation is then expressed the opinion that the legislature

He acted in the belief that the law is adopted in accordance with the Constitution of the United

Republic (hereinafter referred to as "the Constitution"), the constitutional order of the Czech Republic and

our legal order, and it is up to the Constitutional Court to examine the constitutionality of the

the contested provisions and issued the relevant decision.



II.



Of the 32 reports těsnopisecké. a meeting of the Chamber of deputies of the Czech Parliament

Republic (print 1675 and 1803), held on 20 and 21. -30. June

1995, indicates that Act No. 152/1995 Coll., which amends and supplements the

Act No. 140/1961 Coll., the criminal act, as amended,

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended, the Czech National Council Act No. 283/1991 Coll., on the

Police of the Czech Republic, as amended, law No.

191/1994 Coll. on higher court officials, and Act No. 59/1965 Coll. on

imprisonment, as amended, which outside of the

the other was the amendment of section 171 paragraph 2. 1 (b). (d)) of the criminal

the law was on 29. June 1995 adopted by the necessary majority of votes, the

126 votes (3 MEPs voted against, 29 abstentions).


The Act was proclaimed in the amount of 40/1995 Coll. which was sent out June 2. August

1995, consequently, that was accepted and published in the limits of a constitutionally

set out competences and constitutionally prescribed manner (section 68, paragraph 2,

Act No. 182/1993 Coll.).



III.



The object of the criminal offence of obstructing the performance of an official decision, which

the official facts outlining the provisions of section 171 of the criminal

the law, is of interest to the proper enforcement of decisions of State authorities. Already in the

Introduction it should be noted that not all decisions of the courts or other

State bodies are decisions which this provision

protected. The amendment to the Criminal Code made by Act No. 152/1995 Coll.

supplement with effect from 1. September 1995 the contested provision so that

extended the protection of judicial decisions against the undermining of the purpose or impede the

their performance also for the protection of the judicial decision ordering the constitutional

education. The effectiveness of the amendment to the criminal law was referred to the criminal

offence under the provisions of section 171 paragraph 2. 1 (b). d) only such conduct that

frustrate the purpose of the treatment of difficult or protective or safety education-

Therefore, the purpose of the safeguard measures imposed under the criminal law.



Constitutional education in contrast to protection measures is the Institute

family law. As for the educational measures imposed pursuant to § 45 para. 3

the Act on the family. Under that provision, the Court may order the constitutional

education, if the child is seriously endangered or seriously impaired

and other educational measures have led to remedy or if other

for serious reasons cannot parents raising a child to be secured. If there is a

It must be in the interests of a minor, the Court may order institutional care in

If other educational measures had been. Important reasons

the Court may extend institutional care up to one year after reaching the

the age of majority.



From what has been stated, it follows that the constitutional education, more specifically,

the Court's decision on the regulation of institutional care, by their nature, fall outside the ambit of the

the framework of the provision of section 171 paragraph 2. 1 of the criminal code, as amended, that

in principle, the Court's decision to protect performance, or other Government

authorities that are issued in connection with criminal proceedings, when it is in

the essence of the penalty hearing, which defeats the purpose of detention served,

violations of the regime provided for certain types of penalties or trade

measures. Protective measures, including, in addition to preventing stuff also

protective treatment and protective education, covered by the protection of

the contested provisions of section 171 paragraph 2. 1 (b). (d)) of the criminal code, are

one of the types of criminal sanctions and is therefore subject to

already committed the offence and conviction for the offence, or

that would be, apart from the person of the offender, a criminal offence. (They are also

stored either by itself as the only possible means of or instead of

punishment, or in addition to punishment-but always in the context of already

committed a criminal offence.)



When considering the design of the petitioner on the merits test the deletion of the words

"constitutional" provisions of section 171 paragraph 2. 1 (b). (d)) of the criminal code, in the

as amended, it is therefore necessary to be aware of the distinct character of the legal

the Institute for constitutional education compared to institute protective care, to which

both the Chamber of deputies in its observations, as well as the explanatory memorandum to the

amend the draft Act No. 152/1995 Coll., constitutional education basically

likens. The basic condition for the imposition of protective education of juvenile

According to section 84 of the criminal code is his conviction for a crime that

He committed. Persons under 15 years of age while the trade education in management of stores

civil, but again only on the condition that such person has committed

already Act that would be--not to mention the age of the perpetrator of a criminal offence--(§

86 of the Penal Code). Protective education as one of the protective

measures (article 71 of the Criminal Code), which should serve to achieve the purpose

the criminal law, is a form of criminal penalties. By contrast, the constitutional

education represents the educational measure to create the

the most favourable conditions for the education of a minor child and is primarily

Educational, not punitive measures. It is also in many cases

nařizována when raising a child unable to secure another

individual care, for example, even in the situation raised by the de facto absence of

appropriate person that could provide education. Realistically, therefore, come in

to account for situations where a minor his behavior did not have prior to the regulation

institutional care itself give cause for this measure, which the Court

fixes in the child's interest to ensure his proper upbringing. Thus, institutional care

cannot be understood as a form of sanction or obligation to the child, while

If the conditions no longer exist, that institutional care has necessitated regulation, the Court

institutional care. On institutional care should therefore be regarded as

in the extreme case the solution properly unsecured education of the child, as it has

referring to the Convention, whose provisions should, in the opinion

The Constitutional Court, the contested provisions be assessed. This Convention, which is

undoubtedly, the international treaty on human rights and fundamental

freedoms, was a form of communication from the Federal Ministry of foreign

things in the collection of laws promulgated under no. 104/1991 Coll., after with the Convention

expressed its approval of the Federal Assembly of the Czech and Slovak Federal

The Republic and the President of the Czech and Slovak Federal Republic it

has ratified. The ratification instrument was deposited with the Secretary-General of the

The United Nations, depositary of the Convention, on July 7. January 1991. After the dissolution of the Czech and Slovak

The Federal Republic has taken over the rights and obligations of the Czech Republic

referred to the international treaty under art. 5 (3). 2 constitutional law of the Czech

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

and Slovak Federal Republic, its succession to this agreement with

valid from 1. January 1993 announced by letter to the Minister for Foreign Affairs

The United States, which was deposited with the Secretary-General of the United Nations as

depositary of the Convention on 22 November. February 1993, and its adoption has been confirmed by the day

July 7, 1993. The Convention, to which the Czech Republic within the meaning of article 87(1).

10 of the Constitution, in its preamble emphasises that the child for its

physical and mental immaturity, needs special safeguards and care. In the article. 3

paragraph. 1, the Convention provides that the child's best interests must be a primary consideration when

any actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative or

legislative bodies. This provision has the nature of standard of nationally

actionable ("self-executing"). Ready to use is

standard fit, having regard to his diction (... the child's interest.

any activity) that is sufficient and clear enough that the mandatory

those to whom it is addressed-national-were able to

adjust their behavior accordingly. Considered from the perspective of this

Article of the Convention, then the child's interest cannot be regarded as reasonable and appropriate

such a solution form, which makes it a young person, that is, whether

for whatever reasons, cannot cope with the orphanage.

The Constitutional Court therefore concluded that to address cases of non-

clearly in the interest of the minor ordered institutional care-

criminal law resources, such as the contested provision (without

In addition, a distinction was made in any way and would take into account the various reasons leading to the

Regulation of institutional care), even when the particular modifications to the criminal

the law relating to juveniles, is in breach of article. 3 (2). 1 of the Convention,

and, therefore, the proposal of the applicant for annulment of the contested provisions

meet the.



On this conclusion could change anything or the reasons that the legislature

led to the adoption of the contested provisions, namely the protection of society against

the danger of that for her to represent young people on the run from the constitutional

education, as when weighing the two in conflict of interests, i.e. standing. just

protection of the interest of the society interested in the proper training and

harmonious development of every child, it is the interest of the

the child, who is to be regarded as predominant.



The proponent of the proposed cancellation of the contested provisions of the back

to the effective date of the Act No. 152/1995 Coll., i.e.. to date, 1. September 1995,

The Constitutional Court has not complied with, since the abolition of the requirement to prevent back

maintaining legal certainty, apart from the fact that in a situation where the constitutional

the Court repealed the provisions of the Penal Code, the same effects, what would

annulment of the contested provisions brought back, basically ensures

the provisions of § 71 para. 1 and 3 of Act No. 182/1993 Coll.



For completeness, and completely at the end it should be added that the applicant namítaný

the contradiction of the contested provisions with article. 9 of the Convention, which essentially provides for the

the conditions which must be adhered to in cases of separation of the child from parents

against their will, was not found.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.