Matter Of A Constitutional Complaint Against The Judgment Of The Supreme Court

Original Language Title: ve věci ústavní stížnosti proti rozsudku Nejvyššího soudu

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106/2003 Coll.

Constitutional Court
On behalf of the Czech Republic

Plenum of the Constitutional Court decided on 26 March 2003 in the matter of the constitutional complaint
VW (V) against the Supreme Court decision of 17 October 2002 sp.
Brand. 15 Tz 47/2002


Resolution of the Supreme Court dated 17 October 2002 sp. Ref. 15 Tz 47/2002 is
void for inconsistency with Art. 15 paragraph. 1 of the Charter of Fundamental Rights and Freedoms.


Constitutional complaint delivered to the Constitutional Court on 7 November 2002, the complainant
seeks annulment of the Supreme Court dated 17 October 2002 sp. Ref. 15
Tz 47/2002, dismissing a complaint for violation of the law filed
minister of justice in favor of the complainant.

The complainant was the judgment of the former Lower Military Court in Brno PSP
47 dated January 7, 1954 sp. brand. T 2/54 found guilty of committing a criminal offense
evasion of duties according to § 270 para. 1 point. b)
Act no. 86/1950 Coll., the Penal Code. This offense allegedly committed by
that on November 1, 1953 refused to wear a uniform, take
assigned gun and perform military service, while referring to their religious beliefs
. For this offense he was sentenced to imprisonment
period of two and a half years and at the same time been spoken for three years
loss of honor civil rights and the loss of rights referred to in § 44 par. 2 of the Criminal
Law no. 86/1950 Coll.

Against this judgment, which became final on January 7, 1954, filed
Minister of Justice in favor of the complainant's infringement complaint
law, which argued that the judgment of the law was violated in ust. §
2. 3 of Law no. 87/1950 Coll., on criminal procedure (criminal procedure
), in relation to § 270 para. 1 point. b) Law no. 86/1950
Coll., the Penal Code, for the reasons mentioned in § 1 para. 1 and 2
Act no. 119/1990 Coll., on Judicial Rehabilitation, as amended

The Chamber of the Supreme Court considered the complaint for violation of the law
On May 29, 2002, the Resolution sp. Ref. 11 Tz 205/01 decide, having regard to the current
different decision-making practice of the Boards of the Supreme Court of
referral to the Grand Chamber of the Criminal Division. A key question
labeled it, whether at the complainant can be viewed as a criminal offense, or whether it
complainant only realized constitutionally guaranteed
religious freedom, but in conflict with the Constitution imposed
obligations to the state and society .

In the contested order the Grand Chamber of the Supreme Court dated 17 October 2002
sp. Ref. 15 Tz 47/2002 Grand Chamber particularly noted that the contested decision
correctness and accuracy of the previous management
assessed in proceedings on a complaint for violation of the law ex tunc, ie. by
factual and legal situation which existed at the time when the contested decision
complaints for violation of the Act issued.

The provisions of § 2 para. 1 of the Act on Judicial Rehabilitation was directly from
Act repealed a conviction for such offenses, which were declared
offenses contrary to the principles of a democratic society that respects
civil and political rights
freedoms guaranteed by the Constitution and reflected in international documents and international legal norms
. The criminal offense of evading duties according to §
270 para. 1 point. b) Criminal Law no. 86/1950 Coll.
not included in the provisions of § 2 para. 1 of the Act on Judicial Rehabilitation. Since
not contested by order of the Grand Chamber of the Supreme Court considered
complainant's conviction for illegal just because
during its commission referred to his religious beliefs.
If the legislature did not consider it necessary to cancel such conviction
directly from the law, then it is not a crime, which statements for the offense itself would
contrary to international documents, international legal norms and principles
democratic society that respects
guaranteed civil rights and political freedoms. Therefore, according to the Supreme Court nor
conviction for that offense is not of itself be considered incompatible with
democratic and legal principles and without further spot therein
violation of the law.


In the constitutional complaint counters that the Supreme Court did not address the specific
criminal case, but pronounced
general considerations on whether at the time could lead to criminal prosecution for lawful

Crime of evading duties, he totally ignored
legal opinion of the Constitutional Court expressed in particular in the judgment in file. Ref. II.
US 285/97, completely overlooked the question of a special entity and consisted of i
judges, who should be excluded from the negotiations.

According to the complainant, the existence of legal obligations
itself sufficient reason to restrict religious freedom. According to the complainant
must be met additional requirements, ie. That military service would have
serve to secure the rights and freedoms of others and would have to conform
just requirements of morality, public order and the general welfare in a democratic
company. Those requirements, however, military service in
communist regime could not comply. Military service, as the complainant
he said all was not used to secure the rights and freedoms of others, but
should serve to protect armed regime that systematically and continuously
violated human rights, the criminal, illegitimate and reprehensible.
From this point of view, in the view of the complainant's religious freedom
unduly limited not only in the sense of Art. 18 and Art. 29 paragraph.
2 of the Universal Declaration of Human Rights (hereinafter the "Declaration"), but also art. 9, paragraph. 1 and 2
European Convention on human rights (hereinafter

The complainant further believes that the assessment of his case
not matter whether the Minister of Justice filed or not filed a complaint in
other cases in favor of persons who have acted as he did,
however other motives . Although the Supreme Court in its decision
refers to Art. 1, Art. 2 paragraph. 1 and Art. 3. 1
Charter of Fundamental Rights and Freedoms (the "Charter"), but according to the complainant || | its decision precisely these provisions violated when it is applied so as
by the petitioner sought the advantages at the expense of others. Conversely
complainant feels to be discriminated against, while the constitutional complaint
noted that no international treaty or national legislation
distinguish whether someone refused military service because he has some
religious beliefs or not .

The complainant also considers that the Supreme Court had violated the contested decision
right to a fair trial guaranteed by Art. 36 para. 1 of the Charter and Article
. 6 Sec. 1 of the Convention. In his opinion, he had the Grand Chamber, which was
case was presented in order to unify the legal view taken by various
Chamber of the Supreme Court, to analyze the legal conclusions in similar
earlier decisions, not just 'copy' previous denials decision
5th criminal Chamber of the Supreme court.

The complainant also disagrees with the Supreme Court, according to which the procedure was
Chief Military District Court in Brno, at the request
complainant's lawyer said the misleading information about judicial
rehabilitation, will not be prevented from exercising his rights
judicial rehabilitation. The complainant believes that his former attorney
has not made an informal inquiry, but inquiry official, and incumbent Chief
was to act in accordance with § 52 of the Criminal Procedure Code, ie. To act as required
importance and educational purpose criminal proceedings.
Complainant therefore acted in good faith, that the chief's answer is correct and the proposed
judicial rehabilitation has failed.

In light of all the above facts, the complainant believes that
Supreme Court in its decision violated his constitutional rights under Article
. 18 and Art. 29 of the Declaration, Art. 9, paragraph. 1 and 2, Article . 6 Sec. 1
Convention and Art. 36 para. 1 of the Charter.

Document dated 17 March 2003, the complainant added his constitutional complaint so that
also criticized the violation of the right to freedom of conscience under Art. 15 paragraph. 1
Charter, for reasons that are discussed in the reasoning of the judgment
Constitutional court dated March 11, 2003 sp. . I. ÚS 671/01.


At the invitation of the Constitutional Court filed a constitutional complaint as
party the Supreme Court. Chairman of the Grand Chamber in its
statement said that a complaint for violation of the law in favor of VW (V)
been referred to the Grand Chamber to unify
decisions of the Chambers of the Criminal Division. Chamber of the Supreme Court
occupy on that issue two opinions.

According to one can not be convicted of an offense avoidance
service obligations pursuant to § 270 para. 1 point. b) Criminal Law no. 86/1950 Coll.

Regarded itself as incompatible with democratic and legal principles and
outset it finds violations of the law, even though the original
conviction occurred during the period from 25 February 1948 to January 1, 1990 for
deed committed after May 5, 1945. No express
right to refuse to fulfill statutory obligations towards the State, including
military, not based according to this view, neither the Declaration nor
international treaties on human rights, even in democratic states such
criminal punishment permissible even in cases where there is no possibility
alternative service.

The second view is based on the belief that in a situation where there
alternative to their military service in the event that its
performance led to the denial of religious beliefs of a citizen, could be his
offense which implemented the Constitution and international conventions
guaranteed freedoms, considered a criminal offense.

As further stated the chairman of the Grand Chamber, ended efforts to unify disparate existing practice
Chambers win the first opinion, although this
view prevailed in the nine-member Grand Chamber
narrowest possible majority. Chairman of the Grand Chamber in its opinion, sufficient
doubt about the representativeness of the opinion that the contested decision
prevail, especially given the fact that some were
Chambers Grand Chamber represented by more than one judge.


Intervener on a constitutional complaint, the Minister of Justice,
expressed the contested decision in its opinion of 16 1, 2003
disapproval. The Minister of Justice believes that the complainant
violation of the provisions of § 2 para. 3 of Law no. 87/1950 Coll., On
Criminal Procedure (Criminal Procedure Code) in relation to the provision. § 270 para .
1 point. b) Criminal Law no. 86/1950 Coll., for the reasons set out in
§ 1 para. 1 and 2 of Act no. 119/1990 Coll., on Judicial

Minister of Justice believes that a violation of equality under Article
. (§ correctly) then in force 1 of the Constitution, since the disparities between
accorded the rights and obligations clearly imposed built into a disadvantageous position
all citizens who want to exercise constitutionally guaranteed religious freedom
practically implement compared to those whose beliefs | || lacked a spiritual dimension. At that time, valid constitutional law no. 150/1948 Coll
., Called. 9 May Constitution, granted by Article. (Rightly §) 16 paragraph. 1
every citizen of the state the right to choose any religious belief; On the other hand
strictly defined in § 34 para. 1 and 2, the basic duty
citizen to the state, among them the obligation related to defense
homeland. In this situation, the complainant was able to get his
religious beliefs only at the cost of criminal consequences when
which as believers came into conflict with their duties as citizens at
defense of the country.


Given that a complaint for violation of the law ruled large
Appeal Criminal Division of the Supreme Court, in accordance with resolution
Plenum of the Constitutional Court published as an announcement of the Constitutional Court no.
8/2001 Coll. to discuss constitutional complaint against this decision
relevant Plenum of the Constitutional Court.

After the Constitutional Court found that the constitutional complaint met all the formal requirements
and that was filed in a timely manner, he proceeded to
assessment on the merits.



Constitutional complaint is contested above designated
Supreme Court decision in which the Supreme Court was based on the thesis according to which the proceedings
complaint for violation of the law considered the "correctness" (correctly legality)
contested decision and "correctness" (correctly legality)
previous proceedings ex tunc, ie according to the factual and legal situation at the time was
contested decisions issued, respectively. when it was hearing that this
preceded the decision nova (new facts and evidence) are

The default view does not, however, in the opinion of the Constitutional Court exercisable
completely. Interpretation and sebestarších criminal provisions, if due
usable procedural means by the courts today, with implications for the assessment
criminal prosecution of the person is with effects extending into the personal sphere
such persons can not be executed regardless of today
valid constitutive values ​​and principles of democratic rule of law

As expressed in the constitutional order of the Czech Republic. Only thus
limited, value discontinuously, can understand the continuity of the "old
law" (see Constitutional Court Pl. US 19/93 - Collection of
resolution of the Constitutional Court, vol. 1, no. 1 - promulgated under no. 14/1994
Coll.), the application (legality) is the subject of contemporary management of
complaint for violation of the law.

Similarly, the application of the "old law" expressed by the European Court of Human Rights
(decision on Streletz, Kessler, Krenz v. Germany
dated 22 March 2001) when, among other things. Stated that " State courts, which replaced the previously existing
State can not be criticized for applying and interpreting
then applicable legal standards done in the light of the principles of controlling
become subject to the principle of the rule of law (rule of law). "
Do concisely this idea is elaborated in the Opinion of Judge Levits,
supplementary reasons for the decision. He said: "It seems that
interpretation and application of the law depends generally on the political regime in which
law works as a subsystem. (...) The differences in the interpretation and application of law
between the democratic and socialist systems cover
all important elements of law. (...) This brings us to the question whether after
regime change from a socialist to a democratic
is legitimate to apply the "old" law (...) such interpretative and | || application procedures which are inherent to the new democratic political regime
. I want to say that in my opinion there is no other solution
possible. Democratic States can allow their institutions to apply
law, which has its origins in předdemokratickém mode
only in a manner that is inherent in a democratic political order (
in the sense in which that term is interpreted in traditional democracies).
use other methods of application of law (from which it follows achieve a different result from
the same legal text) would undermine the very core of "ordre public
" democratic state. (...) Strictly speaking, the interpretation and application of legal norms
socialist or other undemocratic
methodologies (with intolerable consequences for the democratic system) should
should be from the perspective of a democratic system deemed to be defective. (...)
In my opinion I am a challenge, which is derived from the inherent
universality of human rights and democratic values, which are bound
all democratic institutions. At least since the Nuremberg
process is the concept of a democratic order in the world
very well understood, and therefore predictable for everyone. "

With the views expressed by the judge LEVITS Constitutional Court fully agrees.
| || second

Given that the proceedings on a complaint for violation of the law should be reviewed
legality of the proceedings and decisions identified above in relation to the conviction
(also marked above) a criminal offense
evasion of duties, it is necessary to examine whether the contested
Supreme court decision did not violate fundamental rights
complainant, including his fundamental right to freedom of conscience, which is
contained in Art. 15 paragraph. 1 of the Charter.

a) Freedom of conscience is constitutive importance for the democratic rule of law, respecting
liberal idea strengths responsible dignified human beings
before the state - ie. the idea of ​​reverence (respect and protection) to the State || | rights of man and citizen [Art. 1. 1 of the Constitution of the Czech Republic (hereinafter
"Constitution")]. Rather, it is peculiar to totalitarian political regimes that do not respect
autonomy of individual conscience, when trying to help even
repressive penal policy of suppressing freedom of conscience
individuals, thus forcing him to accepting the will of the ruling, which is | || claim to be the only right decision, and in this sense only
ethical decisions. This trend can be observed in Czechoslovakia, respectively.
Czech constitutional level. Thus the Constitutional Charter no. 121/1920 Coll., As
present Charter, did not provide for the possibility of lawful restrictions on the freedom of conscience
which explicitly included. Called. 9 May Constitution no. 150/1948 Coll
. While in § 15 he declared freedom of conscience, but it also negated
by providing that freedom of conscience can not be grounds for denial
fulfilling civic duties stipulated by the common law.
Constitution of the Czechoslovak Socialist Republic no. 100/1960 Coll.
longer freedom of conscience does not even mention.

Freedom of conscience is reflected in the decisions taken in individual

Certain specific situations, namely the "here and now", perceived as deeply spend
obligation. It is not the attitude of individuals to abstract problems
valid once and for all and in all situations.
The decision dictated by conscience in terms of fusion for individuals
binding moral norms with him assess the situation. It is therefore an integration standards identified
with an assessment of the facts. A decision dictated by conscience
based on the existence of conscience itself, rather than on specific
religious or ideological notions.
Structural feature of conscience is in addition to the standard correspondence and also to the situation and personal experience
unconditional obligations.

It follows that liberty of conscience should not be confused with freedom
faith nor religious freedom. Unlike these freedoms is
decision dictated by conscience always specific, because its subject is
particular behavior in a particular situation. Abstract, general or absolute
may be just grounds or maxims that create a norm
already conscience at the moment accepted. A decision dictated by conscience
them can be found normative reasoning that apply in resolving the conflict between
such a principle or maxim and binding legal norm
to the contrary. But the situation is always individualized time, place and
specific circumstances. It is essential that this is a serious, moral, on
categories of good and evil oriented decisions [cf. eg.
Decision of the Constitutional Court in Germany, BVerfGE 12, 45 (55)] that the individual experiences as a binding obligation
or as an unconditional order for a particular

In the specific moral character and his relationship with personal moral
truthfulness or sincerity, that the decision gives
unconditional, is the distinction between a decision made solely
referring to political or ideological motivation (in terms of external variables | || nepromítnuté the inner moral plane) or psychological condition (which
there is no need to make a moral judgment).

B) Freedom of conscience is one of the so-called. Fundamental rights absolute, ie.
To those which can not limit the common law, whose purpose would be to limit such
absolute fundamental right, in this case, freedom of conscience
. Every law on the one hand reflects the public interest and on the other side
formulates and moral beliefs of the parliamentary majority, which makes
was adopted, and thus formulates moral beliefs of most
society, which reflects the composition of parliament. If an individual
conscience in violation of a specific legal standard, certainly
such a fact can result in a non-binding legal norms, even if only in
relation to the person to whom conscience dictates specific legal norm disrespect.
Freedom of conscience can, however, affect the applicability or enforceability
such provisions in relation to those whose conscience is abhorrent.
When considering whether, in the event of such a conflict of legal norms specifically
exercise of freedom of conscience has finally appointed to enforce
freedom of conscience, it is necessary to consider whether such a decision would not interfere with the
fundamental rights of third parties or that uphold freedom of conscience
not prevent other values ​​and principles contained in the constitutional order of the Czech Republic as a whole
(constitutionally immanent limitation of fundamental rights and freedoms


It is fundamentally the Supreme Court to consider whether the decision contested
complaints for violation of the law violated the law.
Constitutional Court's task is to assess whether the Supreme Court elected statutory interpretation
provisions violate fundamental rights and freedoms of the complainant, respectively.
Assess whether you can possibly find such an interpretation
applied provisions of the Act, which would have fundamental rights and freedoms
violate the complainant.

Constitutional complaint is justified, since the contested decision of the Supreme Court
did not take adequately into account the complainant's fundamental right arising from Art. 15
paragraph. 1 of the Charter to freedom of conscience understood in the above sense and
range. Although the complainant had pointed to their religious beliefs
refusal (avoidance) service (military) duty was actually
manifesting personal decision dictated by conscience, where the maxim
stemming from faith or religious convictions complainant merely || | participate.

Earlier Constitutional Court decision on the conflict of duties

His military service with the fundamental rights
focused primarily on conflict of responsibilities of freedom of religion (cf..
Decisions in matters sp. Ref. II. ÚS 285/97, Collection of Decisions
Czech Constitutional court, vol. 12, no. 117; al. Ref. II. ÚS 187/2000,
Collection of Decisions of the Constitutional court, vol. 21, no. 40). Due to differences
freedom of conscience and freedom of religious belief landed
above Constitutional Court examined the relationship initially contested decision to
freedom of conscience within the meaning of Article. 15 paragraph. 1 of the Charter. The Constitutional Court is
considers that the rejection of his military service can be done from
reasons unrelated to the religious beliefs and that such
Charter protects freedom.

Supreme Court did not assess the legality of duties
complaints for violation of the law of the contested decision and the procedure which preceded it
, in the light of Article. 15 paragraph. 1 of the Charter, which had
reasons mentioned above. The fact that so. 9 May Constitution denied freedom of conscience
character called. Absolute Rights, passed by definition
political regime which started in February 1948. The new restrictions on the freedom of conscience
interrupted the continuity of the understanding of freedom of conscience as an absolute | || law as it protects the constitutional charter of 1920. the post-February
constitutional structures of freedom of conscience is legally, philosophically
deviates from the development of fundamental rights, which began Nuremberg Tribunal and
continued adoption of the Universal Declaration of human rights.

For the democratic rule of law, which the Czech Republic should be
normative statement arising from Art. 1. 1 of the Constitution, is
unacceptable that the Supreme Court had interpreted § 267 paragraph. 3 of Law no.
141/1961 Coll., on criminal procedure (criminal procedure Code), as amended
amended, so that the review of the legality of the contested decision means
interpretation applied the "old law" in accordance with the former
contemporary jurisprudence . For the same reason, it is not possible to
when considering whether a complaint for violation of the law of the original
contested decision is lawful, not taken into account and weighed
fundamental rights and principles of Czech constitutional order, in which it contested
affected by the decision. Ignoring these reference standards and principles renders the contested
Supreme Court decision not only for defective subjective
violation of the complainant, but, in the Constitutional Court considers it necessary beyond
adjudicated matter noted, even incomprehensible to society, for | || undermines its legal, respectively. institutional awareness and contribute to the existing
distrust in the judiciary, in the sense that the Czech courts can not protect
citizens' rights in relation to state power, as manifested itself excessively. So
diminishes confidence in the material and understood the democratic legal statehood
Czech Republic. Unless the principle of continuity
be destructive in relation to the Czech constitutional statehood, it is necessary to insist upon the application
"old law" to the value discontinuity with him and
reflect this approach in judicial decisions.

If the Supreme Court overlooked the effect of Article. 15 paragraph. 1 of the Charter on the interpretation
§ 267 paragraph. 3 of the Criminal Procedure Code, in conjunction with § 270 para. 1 point. b)
Act no. 86/1950 Coll., the Penal Code, which actually occurred, because
mentioned provisions of the Criminal Procedure Code interpreted restrictively and furthermore
subject of his considerations in relation to the cited provisions of the Criminal Code
it was only right to religious convictions, not freedom of conscience in
dimension of absolute rights, continued to infringe the freedom of conscience
complainant, who began the judgment of conviction in 1954. the Supreme court in its decision
this interference not removed, and failed
so their obligation to provide protection to the fundamental law, as required by Article. 4

Conflict with other fundamental rights whose violation was argued
been in this situation should be examined.

Chairman of the Constitutional Court:

JUDr. Holeček vr

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