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Date of publication of this finding in the journal of laws shall be repealed part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