In The Matter Of The Application For Revocation Of Section 22 Paragraph 1. 1 The Armed Services Act

Original Language Title: ve věci návrhu na zrušení § 22 odst. 1 branného zákona

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=47599&nr=38~2F1999~20Sb.&ft=txt

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.