38/1999 Coll.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled the day 3. February 1999 in the plenary on the proposal of the Supreme
Court to repeal section 22 of the paragraph. 1 the armed services Act No. 92/1949 Coll., as amended by
amended, and paragraph 269 and 270 of the Criminal Code No. 140/1961 Coll.
as follows:
The proposal is rejected.
Justification
16 December 2002. July 1998 tabled by the Senate judicial College of the Supreme
the Court of the Constitutional Court according to article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to
"the Constitution"), the proposal to repeal section 22 of the paragraph. 1 the armed services Act No. 92/1949
Coll., as amended, (hereinafter referred to as "military law") and article 269 and
270 of the Criminal Code No. 140/1961 Coll. (hereinafter referred to as the "criminal code"). According to the
article. 95 para. 2 of the Constitution, the Court may do so, if there is a conclusion that
the law, which is to be used in solving the case, is in conflict with the constitutional
by law. The proposal also refers to § 224 of paragraph 1. 5 of Act No. 141/1961 Coll.,
the criminal procedure (code of criminal procedure), as amended,
According to which the Court suspends criminal prosecution if it is considered that the law, which
use in a criminal case is relevant for deciding on guilt and punishment,
is in conflict with the constitutional law or international treaty, which has
precedence over the law, and in such case shall submit the matter to the constitutional
the Court.
Since 22 March. July 1998 was another appeal of the judicial college
The Supreme Court submitted to the Constitutional Court completely identical to the proposal on the
the cancellation of the same law, this proposal was rejected for the
inadmissible by order of the Constitutional Court of 4 March. November 1998 sp.
Zn. PL. ÚS 21/98 due to the fact that the discussion of this design prevents
obstacle pendens.
The Constitutional Court found that the proposals of the two chambers of the Supreme Court of
completely identical to the proposal. It follows that a decision on the application for revocation
the legislation previously filed will be understood as a matter of rozsouzenou
on the same proposal further. It does not change the fact that both
the Chambers of the Supreme Court have presented the same proposal on the basis of the procedure for
specific cases, to each other and their different aspects.
The proposal of the Supreme Court to repeal section 22 of the paragraph. 1 the armed services act and section 269
and 270 of the criminal code points out that part of the military conscription
It is also a business obligation, i.e.. the obligation to carry out in a timely and
military active service. Commencement and termination of duties (section 20
the armed services Act) is defined in section 21 and 22 of the defence law. Business
the obligation to discharge troops ends. In section 22 of the armed services act
Adjusts the total five reasons allowing the release of a citizen army.
Among them is not mentioned as a reason for the release of criminal conviction
his/her failure to service in the armed forces, pursuant to section 269 of the criminal code,
Hence, this obligation continues after a final conviction for the
referred to the offence.
The proposal also States that this legal provision the competent military
authorities of stores anyone who has a business obligation to perform military
call service and ensure that it has met. The authorities of the military administration must
do so until than citizen this obligation fulfilled. The provisions of the
section 269 of the criminal code does not deprive the authorities of the military obligations
such a citizen again to military active duty call.
The Constitutional Court its findings of 18 May. September 1995 SP. zn. IV. TC 81/95
(published under no. 32/1997 Coll.), as well as other findings came to the
the conclusion that for the crime of his/her failure to service in the armed forces
under section 269 paragraph. 1 of the criminal code can be a citizen convicted of only
Once, and each of the other military service non-runner, in which
the accused only lingers on his previously revealed will of military service
not to Board, it is the same deed, because it is the same acts and the same
the consequences. A further prosecution in this case, is considered as a breach of the
the principle of "ne bis in idem", IE. the principle that no one may be prosecuted for an offence
for which he has already been finally convicted or acquitted. This, according to
opinion of the Supreme Court creates a situation where on the one hand the fulfilment of
significant civil obligations enforceable and is not on the other side then
the authorities of the military administration to an obligation by law to insist on execution
military service. If the Office acted in violation of the
by law.
This situation is considered by the Supreme Court in terms of the rule of law for the
unbearable. In a legal state of fulfillment of obligations must be enforceable and
failure to comply with relevant legal obligation or sanctioned by the
the State should have from storage of such obligations. A situation where a citizen
through the formal obligations in the law enshrining this obligation does not realistically,
While State authorities as a result of enshrining this obligation in the law
they are obliged to take on its fulfillment, is unconstitutional. The law must be
a clear and sufficiently precise so that citizens and public authorities to
to regulate their behavior. For each of the law to a broader fundamental rights
individuals need to consider whether and to what extent are its commands
clearly and accurately defined and whether they are appropriate, necessary and proportionate to the
its purpose. Legal uncertainty for citizens arising from indistinct and
inaccurate definition of the statutory provisions means the loss of credibility
the rule of law.
For these reasons, it considers the Supreme Court considered necessary to give the provision of section
22 paragraph 1. 1 the armed services act in accordance with the requirement of article. 2 (2). 2
The Charter of fundamental rights and freedoms ("the Charter"), and that clarification
the reasons for dismissal from the army for further supplementing the case, namely the
the case has been finally convicted persons for the crime of his/her failure to service
in the armed forces, pursuant to section 269 of the criminal code.
In this sense, the Chair of the Supreme Court the day she turned 10. August
1998 the Minister of defence. On 9 April. September 1998, received a reply stating
the modifications proposed armed services Act Defense Minister rejects, therefore, that
the newly proposed military law does not include provisions on the
the release of the troops, and that from the perspective of the equality of citizens, some of the
them to relieve the military just because for the rejection of military
the service has already been punished. This concerns particularly exceptional service
a State of emergency or a State of war. In connection with the
the preparation of a new armed services Act also proposes amendments to section 269 paragraph.
1 of the criminal code.
Representation of the Chamber of deputies of the Parliament of the Czech Republic according to § 69
Act No. 182/1993 Coll., on the Constitutional Court, expresses doubts about the
the proposal of the Supreme Court. Indicate in particular that: "you can have Doubts about
whether in application of State power in the adjudicated cases pursuant to § 22
paragraph. 1 the armed services can act with strict respect for the constitutional findings
the Court, relating to the subject, found non-compliance with article. 2 (2). 2
The Charter of fundamental rights and freedoms. ... The appellant in terms of the
the possible cancellation of the provision sufficiently clarified the reasons
It led to the opinion on the unconstitutionality of the aforementioned State,
respectively of the cited provision of the armed services to the law. ". According to the cited
representation does not constitute an obligation of State authorities to send citizens
reuse of conscription in a given context is relevant. Additionally,
States that any additions to section 22(2). 1 the armed services more reason to act
the release of the troops of conviction under section 269 of the criminal
the Act could, in effect, lead to the fact that the performance was
military service in the future, a kick and a citizen, who was for this
the offence convicted and later manifested the will of military service
complete. Representation of the Chamber of Deputies agrees with the request for
accurate, clear and unambiguous definition of the individual provisions of the
regulations. It considers, however, that when considering the matter will be taken into
consider whether, in the case of section 22 paragraph 1. 1 the armed services act is actually
only about the incompleteness of the provisions resulting from the findings of the
The Constitutional Court or whether maintaining the current version of this provision is to
justified by the concern to not publish the reasons for discharge from the army as well as on the
citizens sentenced for his/her failure to service in the armed forces.
The embedding of such further because it would jeopardise the performance of tasks
the armed forces, in particular in times of military emergency State.
As regards the proposal to repeal section 269 and 270 of the Penal Code, notes
The Chamber of deputies to the fact that both the ústavností and the definition of
the constituent elements of the offence under section 269 of the criminal code is in
their findings have already repeatedly dealt with the Constitutional Court. In this context,
expressed the opinion that the facts of this crime is relatively
exactly and specifically defined. Points out also that the Constitutional Court
It took the view that these provisions, no matter how obviously requires adjustment,
is not inherently unconstitutional, as evidenced by e.g. constitutional
Court No. 32/1997.
In conclusion, the representation of the Chamber of Deputies stated that both the criminal law and
military law have been approved by the required majority of the members of the legislative
Ward, signed by the competent constitutional actors and duly promulgated. For
This state of affairs could not be other than to express the opinion that the legislature
He acted in the belief that adopted laws are in accordance with the Constitution,
the constitutional order and our rule of law. It is up to the Constitutional Court, in
the context of the examination of the proposal to assess the constitutionality of these laws and adopted the
the relevant decisions.
On the proposal of the Supreme Court to repeal that legislation is
the interveners also expressed, who welcome the efforts to address the issue of
exercising the right to refusal of military service. In their opinion, is
need to section 22 paragraph 1. 1 the armed services Act repealed, provided that it would not be
the interpretation of the so-called. other circumstances the demise of military
the obligations under point (d)) of this provision include the previous
final conviction for persistent refusal of military service. If the problem
only a misinterpretation of "other circumstances", then the side
the participants did not consider it necessary to interfere with section 22 paragraph 1. 1 the armed services act.
Indicate on section 11 para. 1 of law No. 18/1992 Coll., on civilian service, in
as amended, under which they can obtain the release of the troops of the person
which were "legally convicted of a refusal to perform military service or
military exercise motivated by reasons of conscience or religious
religion ", but only provided that the legal force of the judgment occurred
before the effective date of Act No. 73/1990 Coll., on civilian service, i.e.. 14.
in March 1990. According to the interveners would be sufficient to cancel in §
11 (1) 1 of law No. 18/1992 Coll., only the words: "before the effective date of Act No.
73/1990 Coll. on civil service ". With regard to paragraph 269 and 270 of the criminal
the law, propose the interveners their cancellation of the constitutional
by providing the Court with the deadline for the new regulation.
II.
The proposal of the Supreme Court pursuant to art. 95 para. 2 of the Constitution and according to § 64 para. 4
Act No. 182/1993 Coll. is not transmitted to the Constitutional Court jurisdiction
specific court cases. The task of the Constitutional Court-and it's available on request
any of the general courts-is only to determine whether this or that law,
to be the ordinary court in resolving things used or not in
conflict with the Constitution, constitutional laws, the Charter, as well as international
agreements pursuant to art. 10 of the Constitution.
The discovery of the constitutionality of the contested provisions of the Act has the nature of control
abstract standards, as in the assessment of the constitutionality of this provision
The Constitutional Court decides, without having discussed or assessed the
the specific thing that is the subject of the proceedings before the general courts and which
forced the Court to request a decision of the Constitutional Court on the constitutionality of
the regulation, which is to be applied in a particular case.
The Constitutional Court, after considering the proposal to repeal section 22 of the paragraph. 1 the armed services act
and section 269 and 270 of the criminal code, as well as opinions on this proposal
It took the view that, despite any reservations about the proposal to edit so far
repeal of these provisions for their conflict with the Constitution is not namítaný
reasonable grounds.
Procedure for refusal to perform military service for reasons of conscience or
religion regulates Act No. 18/1992 Coll., as amended
regulations, according to which the Declaration of refusal of military service of the
reasons may submit inductee not later than 30 days from the end outlet
control. In section 1 (1). 1 of the law on civil service provides that the person who
refusing to perform military service for reasons set out above, shall be subject to
the obligations of the civil service, whose failure to meet is sanctioned by section 272a-
272d criminal law. As regards persons who refuse to execute
military service yet, it did not show substantial grounds for conscience or
religion or have not followed the statutory time limit for their statements, modifying
two variants of the Criminal Code penalty: section 269 is focused on persons who
take no part in military-active status permanently to avoid it, and section
270 affects anyone who fail to participate, albeit negligently, in service
armed forces within 24 hours after the expiry of the period laid down in
povolávacím orders.
The existing legislation reflects the constitutional requirement of article 15 paragraph 1. 3
Of the Charter in a somewhat weakened form, so the reason for the conflict with its own
conscience or religion is in law No. 18/1992 Coll., as amended by
amended, somehow, simply "covered by" personal statement
of the person concerned. The criminal code in section 269 also again underlines the subjective
page, because the structure of this provision are two aspects:
intention not to Board military service and personal speech indicative of persistence
This intention. The interpretation of these terms puts surely greater demands
on the adjudication of the matter the general courts. The decision on the refusal of the military
service of conscientious objectors should be based on the fundamental ideological objections
nature, not just a reluctance to fulfill the civic duty. According to the
The Charter must be a contradiction with its own conscience or religious
confession, a serious moral decision.
You can accept that the proposed repeal of the statutory provisions would be likely to
allow the new legislation was drafted, perhaps so that the military
administrations expressly made it impossible to exercise active recruiting among those again
military service those who have already been sentenced for the same offence before or
exempted from prosecution. The same effect would surely achieve a grade
Group to the categories of persons fulfilling the conditions of release from troops in section 22
paragraph. 1 the armed services act, as stated in a letter to the Chair of the Supreme
Court to the Minister of Defense. But it would hardly be possible simply by the inclusion of the
these cases under the term "other circumstances", which may be by letter
d) section 22 para. 1 the armed services act grounds for discharge from the army, as the
This is a very vague concept, which is, moreover, subject to the
the consent of the military administration. In doing so, the objection of the Defense Minister, that in terms of
the equality of citizens, some of them cannot be exempted from conscription only
because, for refusal of military service were no longer punished, weakens
the fact that another group of people, namely those which are required to be civil
service, deprived of the duty and is released from the troops [paragraph 21
paragraph. 4 and § 22 para. 1 (b). e) armed services law]. You can also be considered
the new formulation in the criminal code would more clearly and blindingly
the courts can and should clarify that the principle of "ne bis in idem" is over
all laws. Regardless, however, the Constitutional Court is of the opinion that in
a democratic legal State which is seen primarily as a material
the rule of law, cannot accept the use of valid legal provisions
in a manner which is contrary to some of the fundamental constitutional principles,
which can undoubtedly be considered as well as the procedural principle of "ne bis in idem"
Article 40, paragraph 1. 5 of the Charter. The Constitutional Court believes that the obligation to
the courts found the law not only search for direct, specific and
explicit instructions in the legal text, but also the obligation to identify and
articulate, what is the specific law, even where it comes to the interpretation of the
abstract standards, the constitutional principles, the provisions of the Charter and the obligations of
arising from international agreements. Such an interpretation of space and its
the meaning is undoubtedly where it comes to the application of the law,
that are not already completely satisfactory, but are not inherently
nor unconstitutional. Of the many conceivable interpretations of the law should be, in any
If you use only one that respects the constitutional principles (if
such an interpretation is possible) and to repeal provisions of the Act for unconstitutionality
proceed only if the provision in question cannot be used without
have been violated, the constitutionality of (the principle of minimizing the intervention).
This is especially true of section 269 and 270 of the criminal code. With regard to the
the right to refuse military service, illuminating the Constitutional Court for its
the obligation to point out that this is a right which is constitutionally bound to
meet the conditions of article 81(3). 15 paragraph 1. 3 of the Charter and must therefore be all courts
understood as special adjustment of freedom of conscience, which is one of the
the basic constitutional freedoms. A similar correction also exists in other
European countries, where this right is subject only to the essential
reasons inherent in the freedom of conscience. In this context, can only be to the edge
point out for example. the decision of the Federal Constitutional Court of GERMANY, which
did not recognize as a reason for a denial of service is concerned that in the event of war (per
the existence of the GDR), the Germans would have to shoot against the Germans (Entscheidungen,
SV. 12, p. 45), as this ground has not reached the value of the argument
principled in nature.
Also in the Czech Republic, that only applies if the performance of the military
service an essential moral conflict our own conscience, can the intensity of
This internal conflict to establish constitutional protection of a subjective
rights of freedom of conscience against the established legal requirements. For this
the situation of the article. 15 paragraph 1. 3 of the Charter does not permit the State to forced performance
military service.
As regards the principle "ne bis in idem", is expressed by the words
"No one can be prosecuted for an offence for which he has already been finally
convicted or acquitted "(article 40, paragraph 5). Next
criminal prosecution for the same offense is so basic constitutional law
procedural in nature. The term "Act" (Act) cannot be identified with the
the term "negotiations". More meetings can be seen on your summary
as a fact, in the case of the negotiations, which are located in the mutual
the internal relationship of direct relation, so as to more expressions of the same crime.
Therefore, every time the assessment of the individual case is necessary to examine not only
compelling reasons of conscience and persistence, but also by common internal
the connectedness of the repeating discussions of the same person.
The Supreme Court proposed to section 269 and 270 of the criminal code, §
22 paragraph 1. 1 the armed services act on the basis of the interpretation, which spells out the cycle
and the mutual interdependence of the behavior of the military administration and the courts. States that
military administration of section 22 paragraph 1. 1 the armed services Act enables
recruiting among those to take up military service, whose failure to
establishing an offence, and section 269 of the criminal code does not exclude a recurring
a conviction for this offence. The unconstitutionality of all of these standards is
seen in contradiction; military administration is committed to
require the punishment of such persons, even in cases in which it is-according to the
the opinion of the Constitutional Court-the need to apply the principle of "ne bis in idem",
However, the general courts feels bound to always and again each
no-show policy of military service, understood as a new offense.
According to the opinion of the Supreme Court, this creates a situation that is in terms of
the rule of law be unbearable, because on the one hand, the law imposes a citizen
specific important duty, but to fulfill this obligation is
unenforceable. The Constitutional Court, however, is of the opinion that in the present case, it is not about
the enforceability of obligations, since that obligation requiring active
meeting people is ever enforced? It is not about to fulfill this obligation, but
about the prosecution of its failure. It is a matter for the courts, which must each
individual case considered, mutatis mutandis, to its circumstances. This is heading
for example. (I) of section 294 of the criminal code, according to which it is not a crime
behaviors that show the characters section 270 of the criminal code, the degree of
However, the company has hazard small. On the other hand, however, in
matters under section 269 and 270 of the criminal code is not-depending on the circumstances
the individual case-excluded or actual sentencing.
On the interpretation of the law unreasonable response Minister of justice administration
complaint for violations of the law in cases of conviction for reuse
no-show policy of military service for persons who have previously refused to permanently
military service for reasons of conscience and religion, and have been for
has previously been convicted. Let it be said that in a different context
She said complaints for violation of the law to the Supreme Court in the case of
the person, who was sentenced to imprisonment in duration of one
year unconditionally and that-although the military service has carried out-later
again going on a five-day military exercise. It is in this
the case was argued in the complaint section 294 of the criminal code and the
the inadequacy of the fixed penalty.
In fact, however, it is not about whether military law something "allows" and
criminal law "does not preclude" something, but rather about whether both laws
in the entire context of the constitutional order, namely that something military
the law instructs the military administrations to initiate criminal proceedings in the aforementioned
cases and whether the criminal code instructs the general courts of these persons
prosecute again for the same offense and in the light of the applicable constitutional
understanding. However, that is not. On the contrary, the constitutional principle of the article. 40 para. 5
The Charter clearly and unequivocally excludes a conviction for the same offence again.
As regards the proposal to repeal section 22 of the paragraph. 1 the armed services act,
First of all, the Constitutional Court concluded that in terms of the principle of "ne bis in idem"
You cannot reuse recruiting among those to military active duty military administration
due to the wording of the Act to be excluded in the armed services only if
that this law was to be interpreted without regard to subsequent judicial protection
citizens. Referred to the constitutional principle applies only to criminal
prosecution and against this prospect affords sufficient protection. This follows
clearly from the text of article 40, paragraph 1. 5 of the Charter, according to which no one can
be prosecuted for an offence for which he has already been finally convicted or
acquitted. It can therefore be argued that-although recruiting among those again
military law itself expressly prohibited by-is in the cases of the persons
for the denial of service already once convicted or released from
the indictment, their profession from the perspective of the principle of proportionality,
that is true in the legal State, unnecessary, as it is not an appropriate means to
the desired objective, namely the performance of the services, if the Court fulfills his
obligation and applies the principle of "ne bis in idem" everywhere it is obliged to so
to do so. The crux of the problem is not the behavior of the military administrations, but
in particular general courts in the case that the principle of "ne bis in idem"
do not respect.
In this situation, therefore, look for other options on site interpretation
the armed services act where mobilization military administrations in the final
the effect is hitting on the constitutional principles and bringing the State wasted expenditure not only
the Court, but also the legitimate defence expenditure for disabled people. The State must
count on the fact that it will bear the costs of such defense wherever in
as a result of maladministration affected costs
defence (in the case referred to under no. 32/1997 Coll. costs paid
The Ministry of Justice). Is the Defense Minister, to consider the options
the solution to this irregularity by way of internal instructions.
The nature of the section 22 para. 1 the armed services act and referred to circumstances not
the repeal of this provision. Guarantees the constitutional principle of "ne bis in idem"
It should be in the cases re recruiting among those to perform military service
Search in particular for the judiciary. Constitutionally Conformal adjudication
remains the primary means by which not only provides effective protection
the rights guaranteed by the Charter, but it can and has also encourage the authorities of the military
management to the search for such ways, which would prevent the leadership
unnecessary and costly litigation by the State. The Constitutional Court left
before as well, as it has already made in its award of 28 June. August 1997 sp.
Zn. IV. TC 82/97, to repeat the general courts, that "If the criminal code in
the provisions of § 269 paragraph. 1 provides for a more severe penalty for substantially of
who does not board the military service with the intention of avoiding her permanently, it is
unacceptable to interpret this provision so that it permanently is actually temporarily
or in the short term. In this interpretation, the frequency of crimes was
determined by the number of vocations to the service actually, institution of military management
issues. There is no doubt that, even after the conviction in the first such act
It is possible to deliver a new call-up, its failure, however, cannot be
rate as the new offense, if it was in the previous judicial proceedings
intention not to board service detected permanently. " The existing case-law
The Constitutional Court is therefore unique and offers plenty of interpretative
instruments to the courts, where there has been a breach of the principle "ne bis
in idem, intervened. To do this, it will be sufficient in the current legislation so far
the text of paragraph 269 and 270 of the criminal code, however, the Constitutional Court can
imagine that in the future will better match the needs of this
issue. The Constitutional Court decides, however, only "de lege lata", and
Therefore, he had no choice but to state that neither section 269 and 270 of the criminal code
cannot be characterized as unconstitutional, if their interpretation
It does not exclude an interpretation of the constitutional principle of article 40, paragraph 1. 5 Documents y
respects.
The President of the Constitutional Court:
in the z.. Haboob in r.
Vice Chairman
Different opinion on the matter have taken pursuant to section 14 of Act No. 182/1993
Coll., on the Constitutional Court, judges JUDr. Ivana Janů and JUDr. Pavel
Param v.
