For The Vote Of The Unconstitutionality Of Section 23 (A). (B)) On Obtaining. Documents

Original Language Title: o vyslovení protiústavnosti § 23 písm. b) z. o cestov. dokladech

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355/2008 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled on 20 April. May 2008 in plenary consisting of the President of the

Paul Rychetského and the judges of the Court of Stanislav Duchoně, Bumpkin, Franz

Vlasta Formánkové, Vojena Güttlera, Paul Holländera, Ivana Janů,

Vladimir Crust, Dagmar Lastovecké, Jiří Mucha, Jan Jiří Musil,

Nykodýma, Miloslava Excellent, Eliška and Michaela Wagner of Židlické

the design of the Supreme Administrative Court to declare the unconstitutionality

the provisions of paragraph 23 (c). (b)) Law No 329/1999 Coll. on travel documents

and on the amendment of Act No. 283/1991 Coll., on the police of the Czech Republic, as amended by

Act No. 218/2002 Coll. and Act No. 320/2002 Coll., for participation 1.

The Chamber of deputies of the Czech Parliament, and 2. Senate of the Parliament of the CZECH REPUBLIC, as

the parties, with the consent of the parties, without an oral hearing, the



as follows:



The provisions of paragraph 23 (c). (b)) Law No 329/1999 Coll. on travel documents

and on the amendment of Act No. 283/1991 Coll., on the police of the Czech Republic, as amended by

Act No. 218/2002 Coll. and Act No. 320/2002 Coll., was in breach of article. 2

paragraph. 2, article. 4 (4). 1, art. 14. 1 and article. paragraph 36. 2 of the Charter of

fundamental rights and freedoms and article. 2 of the Protocol No. 4 to the Convention for the protection of

human rights and fundamental freedoms.



Justification



1. The Constitutional Court was on 25. June 2007 served the Supreme

Administrative Court to declare the unconstitutionality of section 23 (a). (b))

Act No. 326/1999 Coll. on travel documents and on the amendment of Act No.

283/1991 Coll., on the police of the Czech Republic, as amended by Act No 217/2002

Coll. and Act No. 320/2002 Coll. (hereinafter referred to as the "law on travel documents in the

as amended and effective to 31.12.2004 "). The appellant did so after

What in the cassation complaint, j. ch. ("the complainant"), led by

under SP. zn. 2 As 52/2004, concluded that the contested provisions,

to be used in solving the case, it is in breach of article. 14. 2 and

paragraph. 3 and article. paragraph 36. 2 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter") and that this conflict cannot be bridged even constitutionally Conformal

the interpretation.



(I).



Circumstances of the case



2. the marked things Salty municipal office by decision of 25.3.2003 No.

CP 02/03 upheld the request of the Police Presidium of the Czech Police Council

of the Republic, the Office of the criminal police and Investigation Department of economic

crime Prague 9, and against which the complainant was led by

prosecution for the offence of attempt to shorten the taxes, fees and

similar obligatory payments pursuant to § 8 para. 1, § 148 paragraph. 1, para. 4

the criminal code and for the offence of participation in a criminal organisation in accordance with §

163A para. 1 of the criminal code, no passports and no 330 33 330 33 205

206. an appeal from the complainant the regional authority of Central Bohemia region has rejected and

decision of the administrative authority of first instance upheld the decision of the

22.4.2003 reference inside. 3055/03. Defence to the complainant based on claim

that the prosecution of his person is unfounded and the removal of the special-purpose passports,

the administrative authorities have accepted and relied on the provisions of § 23 of the Act of

travel documents, if the as amended, containing an exhaustive

reasons, in compliance with which is an administrative authority shall in the administrative procedure

remove a travel document-in the case of (b). (b)) of the cited provision is

even if the request is received by the law enforcement officials on the withdrawal of the

travel document citizen, against which leads the prosecution for

an intentional criminal act. The action of the complainant in Prague municipal court judgment

of proposal No. 7 Ca 138/2003-30 has rejected as unfounded, referring

on the linking of administrative institutions legislation, in which the administrative authority

does not have the option of administrative discretion and must withdraw the travel document;

taking of evidence leads only in that direction, whether the request for withdrawal

the travel document it handed authority in criminal proceedings and whether the

This authority is leading against a citizen to whom the travel document should be withdrawn, the

prosecution for an intentional criminal act. The taking of evidence in the other direction is not

legally relevant, and therefore subjective position of the complainant to travel

abroad or an objection about the absence of reasons for the committal because of section 67

(a). and the criminal procedure code), considered it meaningless. In cassation complaints

the complainant argued the illegality of the judgment of the Administrative Court and pointed out the

that the administrations did not lead any evidence on the necessity of withdrawal

travel document and did not take into account the opinion of the District Court or

Prague-East, which has not complied with the design Authority participating in criminal proceedings

on the taking into custody of the complainant. When the proper taking of evidence, the administrative authority

had to find out that the withdrawal of travel documents after more than half a year from

the initiation of criminal proceedings was unfounded, as the complainant, whose

business is associated with frequent travel abroad, repeatedly stayed

outside the territory of the United States, as the police informed the Council and the

travel not banned; also called has been performed. blocking his

the passage at the border. The application and interpretation of the above quoted

the provisions of the law on travel documents, as carried out by the administrative

authorities, the complainant called the wrong one.



II.



The arguments of the applicant



3. The Supreme Administrative Court interrupted the proceedings in the case and submitted

The Constitutional Court motion of unconstitutionality from the top of the cited

the provisions, since in its view is the linking of the determining administrative

authority of the examination of the proposal without the explicit conferral of any options

administrative discretion about the reasons, proportionality and necessity to do so

serious interference, which is the withdrawal of the travel documents and therefore the restrictions

freedom of movement, contrary to the constitutional order of the Czech Republic.

The appellant admitted that the proposal for the withdrawal of the travel document and

made to measure is to serve to ensure the purpose of criminal prosecution and that the

authority in him active in relation to a specific crime and

a specific person to best assess the necessity of such a restriction. If there is a

However, the administrative authority which, in substance, be decided, deprived of the opportunities to assess

considerations of the police authority, to lead evidence on the conditions for the withdrawal of

travel document (except for the verification of the existence of the legal reason for the submission of

the proposal), weigh the arguments of the interested party and on that basis make

your own conclusion (possibly from a different design), it is not acceptable

the situation, as in any stage of the proceedings, there is room for

protection of the rights of the participant of such proceedings, because the right to significantly

limits and the judicial review to a mere assessment of the existence of the design and

the criminal proceedings. The administrative authority and the administrative court can only

to examine whether any of the is given relatively widely defined and with art. 14

paragraph. 3 of the Charter only loosely corresponding reason pursuant to § 23 of the Act of

travel documents; If is given, the administrative authority travel document

always withdraw or deny its release without the could have been addressed by

is such an interference with the rights of the citizen is inevitable to protect the rights

of third parties. Such an assessment would be carried out only to the requesting body

However, informally, without any possibility to review procedures and safeguards,

which is the procedure that can hardly be considered as fair process in

meaning of article 87(1). 6 (1). 1 of the Convention for the protection of human rights and fundamental freedoms

(hereinafter referred to as "the Convention"); Moreover, this situation is not ensured effective

judicial review of a decision of a public authority of the basic law in the

meaning of article 87(1). paragraph 36. 2 of the Charter.



4. The Supreme Administrative Court also considered whether the provision could not be

unload the Conformal manner, and constitutionally came to the conclusion that it cannot.

This way is possible only where a specific provision of the legal

the regulation allows a different interpretation, one is in accordance with the

the constitutional norms and the others are in conflict with them. In the present case

the interpretation of the contested provisions had to be based on the fact that the administrative authority

is obliged to expressly provided for by law the conditions next to examine whether, in the

particular case, the conditions restricting the fundamental right

laid down in article 4(1). 14 of the Charter, i.e.. He would have to ensure due process

corresponding to the fundamental principles of the administrative procedure, to determine the actual state of the

things, and the decision in the reasons deal with these facts.

Such an interpretation would, however, was in direct conflict with the statutory text.

The impossibility of such an interpretation of the evidence and the explanatory memorandum to the law on

travel documents (print), from which it is evident that the intention of

the legislature was the exclusion of the discretion of the administrative authority.

The Supreme Administrative Court added that it is aware that the Constitutional Court is the

the issues dealt with in the resolution of 26.3.2003 SP. zn. I. ÚS 52/03,

which rejected the constitutional complaint to be filed in a similar case with

on the grounds that the provisions transferred the administrative discretion of the administrative

authority to bodies active in criminal proceedings. To do this, the appellant

He noted that the discretion of the institution active in criminal proceedings, i.e..

discretion as to whether a proposal for withdrawal of the postponement will be given,

completely beyond judicial review; proposal for a decision of the administrative authority is not

and it's not about the intervention of the administrative authority, reviewable pursuant to the provisions of §

82 et seq.. administrative judicial procedure.



III.



Representation of the parties




5. The Chamber of deputies of the Parliament of the United Kingdom in its observations on the draft

of 14 July 1999. August 2007, signed by the Chairman of the Chamber of deputies by Ing. Miloslav

Ethiopian, zrekapitulovala the core arguments of the proposal and expressed to him

the opposition. The President of the Chamber of Deputies said that the wording of the contested

provision was made so that in accordance with art. 14. 3 of the Charter

was in the are listed listed the reasons for the limited freedom of movement and residence,

taking consideration of whether this limitation is necessary, it was left to the authority,

which of the withdrawal (or deny) requests, which is, in the case

the contested provisions of the authority in criminal proceedings. The logical impact

such adjustment was the exclusion of the discretion of the administrative authority,

that such an act. Resulting from the restrictions on the rights of the participants

the administrative procedure was in accordance with art. 14. 3 of the Charter considered

inevitable to maintain public order.



6. The Chamber of Deputies said it discussed the law in 3. the electoral

period and during the discussion in the Committee for public administration, regional

development and the environment, and in the second reading was not to the provisions of § 23

of any amendment. The Bill was approved on 21 February 2006. October

1999, and referred to the Senate of the Parliament of the CZECH REPUBLIC. The Senate Bill is discussed and

on 12 June 2006. November 1999 it with amendments, which, however,

the provisions of section 23 did not concern, returned to the Chamber of Deputies; the one about his

the version voted the day and the corresponding 30.11.1999 majority of all deputies it

the vote approved the. President of the Republic signed the Act of the day 14.12.1999

and the day was declared in 27.12.1999 the collection of laws under no. 327/1999 Coll.

The law was adopted in the prescribed manner and, therefore, the Chamber's President expressed

is of the opinion that the legislature acted in the belief that the adopted law

It is in accordance with the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), the constitutional

policy and the legal order of the Czech Republic. The decision on the constitutionality of

design of the contested decision, the Chamber of deputies to the constitutional

the Court.



7. the Senate of the Parliament of the Czech Republic in the comments to the proposal of 31 May.

July 10, 2007, signed by the President of the Senate MUDr. Přemysl Sobotka,

He stated that the law was discussed in the committees and on their recommendation he was with

amendments approved on 12 June 2006. November 1999 a significant majority;

of the 62 senators and senátorek voted for a proposal from 56 and 6 are

abstentions. Adopted amendments to the contested nesměřovaly

the provisions, however, were representatives of the comitology

the petitioner's vytknuto that the Government did not use options to change the current

the design of the legislation, according to which the administrative authority shall decide on the withdrawal of the

travel document at the request of various State authorities, for the reasons listed

neorganicky to act on the venue of the travel documents. In the committees has been

stated that the reasons for refusing or withdrawing the travel document should

be written in the legislation, in which this tool

According to arrangements, for which it is intended (which its purpose

is used). The competence of the decision refusing the issue or withdrawal of

the document should have the State bodies whose scope is for these relationships

by law, as defined in the context of such legislation is also created

the relevant guarantees the proper mode of a substantive consideration of the case, including the

the standard rights of the interested party and the possibility of a subsequent review.

For example. in the code of civil procedure could be modified to jurisdiction of the Court

decide on the detention of travel documents in the cases writ

a court ruling for failure to comply with financial commitments, in the code of criminal procedure would

could be the power bodies active in criminal proceedings to withhold travel

the edit document in the framework of ensuring the people and things in the prosecution of a citizen for

a specific offence, etc. The decision of law enforcement would

It was possible to challenge the complaints according to the rules of the criminal process by analogy

as is the case for example. on the binding or other reinsurance zkonů. The criminal procedure code

However, the scope of the law enforcement authorities in the direction of application of the

request to the Administration pasovému.



8. in addition to discussing the issues as described in

the Senate committees was also to some building links and

the latter considerations, which the Constitutional Court could take when assessing the

the constitutionality of the contested provisions into account. He recalled that the legislation

refusing or withdrawing travel documents for reasons stemming from

various areas of the regulation of social relations has its time

a conditional origin. In the early days of the Passport Law was primarily a tool

politically motivated restrictions on travel, which conforms

rooted in the police law and decision making within the arbitrary power of the State, with the

the development of other publicly legitimised restrictions on travel needs were to

This legislative base only mounted for more reasons. The Senate

an overview of the existing Passport joined the restrictions in the laws of the

1928, 1948 and 1965, when especially the latter two nominated by Passport accent

restrictions due to the interests of State security, and championed the will in

deciding on the denial of passport. The Senate stressed that only the law of the

travel documents from the year 1991 (No. 216/1991 Coll. on travel

documents and travel abroad) was compared to its predecessors

substantially different. He respected the constitutionally based presupposition that the citizen has the

the right freely to leave the territory of the State, and narrowed down the cases for which it was

possible to deny the release of the travel document, the legally defined cases.

Political reasons for the denial of the right to travel has become a thing of the past,

but the legislative structure of the law on travel documents remained

preserved. Forms of inertia caused by the refusal of

the document still decides administrative authority Passport instead of those organs, in

There is a need to limit the scope of the travel of the citizen for

the prevention of obstruction of the major decisions in the public interest. The Senate said,

that a valid travel document of the Act No. 326/1999 Coll. on the divided

disorder that edit, since newly declares the linking of decisions and

decision of the administrative authority of the passport in case of refusing travel

the document "application" of the relevant judicial authorities. An adjustment shall so

the ridiculous detour to a model in which it is not conceivable that a

"application" (in fact, however, the decision) the Court [in the case of (a))

of the cited provisions-note the Constitutional Court], even if only

formally, the administrative authority of the Passport.



9. plaintiff conditionally said the Senate in that period the provisions of

section 23 (a). (b)) of the law on travel documents, respectively. the currently valid

(substantively almost identical) the provisions of paragraph 23 (c). (c)), this makes the material

discuss cases, refusing or withdrawing travel documents and in a

respect is so restricted the right of the persons concerned on judicial protection against

invasion of their right freely to leave the territory of the State that belongs to the

fundamental rights and freedoms. Essence refusing the issue or withdrawal of

a travel document is to prevent or impede the obstruction of criminal cases

the prosecution, which is a feature of organically belonging to the purpose of the criminal proceedings.

This basically have legislated match resources and intensity of

the law granted to the defence of the person prosecuted. According to the Senate would be the solution

the problem could be achieved, for example, in a manner that was

implied in the debate of the committees of the Chamber, i.e.. consider whether a restriction

freedom of movement and residence (departure from the country) for reasons of public

order and protection of the rights of others within the meaning of article 87(1). 14. 3 of the Charter confer

authorities active in criminal proceedings. In the future, could be considered

form of a possible precautionary Act zamezujícího departure, since the

cross-compliance of citizen holding a travel document he leaves with at least

for travel to the Member States of the European Union becoming obsolete.



10. He reminded the Senate that in the case in question has already expressed to the proposal

the claimant maintained under SP. zn. PL. ÚS 48/05 (see below), in which

the applicant requested the cancellation of the provision of section 23 (a). (c))

the law on travel documents, as amended by law No 559/2004 Sb.

change paragraph 23 (b). (b)) of the Act in force until 31 December 2006.

December 2004 consisted only in that condition for refusing the issue or withdrawal of

travel document not be prosecution for any deliberate

offence, but for any offence that may be punishable by deprivation of

freedom for at least three years. At the conclusion of his observations of the Senate said that,

discussed the proposal of the law on travel documents within the limits of

The Constitution laid down the competence and constitutionally prescribed way and decided

This proposal in the majority belief that the Bill is in accordance

with the constitutional order of the Czech Republic and the international obligations of the State.

The decision on the constitutionality of the contested provisions to retain the Constitutional

the Court.



IV.



The abandonment of an oral hearing



11. According to the provisions of § 44 para. 2 Act No. 182/1993 Coll., on the constitutional

the Court, in the wording of later regulations (hereinafter referred to as the "law on the constitutional

the Court "), the Constitutional Court may, with the consent of the participants from the oral proceedings

refrain, if you cannot expect him to further clarification of the matter. Due to the


both the applicant in its proposal, as well as parties to the proceedings in the

remarks by President of the Chamber of deputies of the Parliament of the United Kingdom and

President of the Senate of the Parliament of the Czech Republic expressed its consent with the

abandonment of an oral hearing, and also due to the fact that the Constitutional Court

It considered that, since the meeting cannot be expected to further clarification of the matter, it was from the

the oral proceedings in the case dropped.



In the.



The diction of the contested legislation



12. the provisions of article 23 of the law on travel documents, as amended, and

effective 31 December 1998. in December 2004, and the provisions of subparagraph (a). (b))

used at the time of deciding the competent public authorities, was:



"The issue of a travel document shall be refused or issued the travel document,

shall be withdrawn at the request of



and the citizen) Court against which the enforcement of the Court decision

for failure to perform the maintenance obligation or financial commitment,



(b) the law enforcement agency) in criminal proceedings against which the citizen is

prosecution for an intentional criminal act, or



(c)) shall exercise the authority of the decision or its performance by arranging the

special legal regulation citizen who ignored her prison sentence

freedom for an intentional criminal act, if the penalty was not pardoned or

the sentence has not been barred. "



Vi.



Locus standi of the applicant and the assessment of the conditions of the proceedings



13. In the same legal matter, the appellant turned to the Constitutional Court has already in

October 2005, when he handed the proposal to repeal the provisions of paragraph 23 (c). (c)) of the Act

about travel documents, as amended by Act No. 561/2004 Coll.) the Constitutional Court ' ^ 1 '

the proposal under the provisions of § 43 para. 1 (b). (c)) and paragraph 2. 2 (a). (b)) of the Act

on the Constitutional Court rejected by order of 25.4.2007 SP. zn. PL. ÚS 48/05

(in the collection of the findings and resolutions of the Constitutional Court, published in the

electronic form see http://nalus.usoud.cz), since the applicant

proposed repeal of provisions that could not be used in solving the case.

The Constitutional Court pointed out that Act No. 561/2004 Coll. was the original

the provisions of § 23 repealed and replaced by a new one, so that the provisions of section 23 (a).

(c)) of the law on travel documents in the version cited the amendment effective as of

1 in the case could not be used, since the time

decisions of public authorities was a valid and effective part of

the rule of law. That conclusion did not change anything or navrhovatelovo

the claim that after the amendment to the law on travel documents, the text was

the existing paragraph 23 (b). (b) contained in (a)). c). The Constitutional Court reminded

the need to distinguish between a situation in which there is no change of the legal

provisions, from the situation where the contested provision was repealed and

replaced by the provision (or legislation) new, even in the

If their identical wording, since the existence of legal normative

Regulation (force) is being shaped by a unity of will and its normotvůrcovy

speech (speech publication), and therefore, no two identical content and

in a time of successive legislation has also their identity

normative (identity) [cf. resolution SP. zn. PL. ÚS 20/99 of

the date of 18.4.2001 (13/22 SbNU 349, 351 ^ 2), finding SP. zn. PL. ÚS 15/01 of

the date of 31.10.2001 (N 164/24 SbNU 201, 223, 424/2001 Coll.) ^ 3]. In addition, both

the provisions, though, agree that the issue of a travel document shall be refused

or issued the travel document shall be withdrawn at the request of a law enforcement agency

criminal proceedings have a material difference in the fact that, according to an earlier

the text of paragraph 23 (c). (b)) that happens against a citizen, against which it is conducted

prosecution for an intentional criminal act, while under the current wording of

section 23 (a). c) prejudice to citizen, against which criminal prosecution

for (even negligent) an offence for which can be punishable by deprivation of

freedom for at least three years.



14. now the employment the claimant has complied with the conditions of article 81(3). 95 para.

2 of the Constitution, since it seeks to give the unconstitutionality of the provisions of article 23 of the

(a). (b)) of the law on travel documents, as applicable and effective in

2004, which was applied in this case and in the proceedings on appeal

the complaint will be the Rapporteur of this application are correct.



15. Under section 67 para. 1 of the law on the Constitutional Court is given by reason

termination of the proceeding, if the law, other legislation or their

individual provisions, whose annulment is sought, shall

force before the end of the proceedings before the Constitutional Court; However, as the constitutional

the Court has already stated in the award of 6.2.2007 SP. zn. PL. ÚS 38/06 (pronounced

under Act No. 84/2007 Coll. and available on http://nalus.usoud.cz) according to the legal

the opinion resulting from the award to TechCrunch.com. PL. ÚS 33/2000 (10.1.2001 N

5/21 SbNU 29; 78/2001 Coll.), to which reference is made in the preamble of the award

SP. zn. PL. ÚS 42/03 dated 28.3.2005 (N 72/40 SbNU 703; 280/2006 Coll.)

If there is a judge of the General Court, concluded that the law, which has to be in

the solution of the case used-not only valid at that time, but also in the

time no longer valid, but still applicable-is in conflict with the constitutional

by law, it shall refer the matter to the Constitutional Court. The refusal to provide

assistance to the General Court, in its decision on the constitutionality or unconstitutionality

the applicable law, the Constitutional Court shall be considered as a reason for the emergence of

unsolvable situation of artificial legal vacuum; the decision of the General Court

itself on the unconstitutionality of applied provisions would then qualify

as the procedure conflicts with the Constitution, and it is contrary to the principle of

concentrated constitutional judiciary. In finding SP. zn. PL. ÚS 38/06

The Constitutional Court dealt with the question of whether the procedure under art. 95 para. 2 of the Constitution,

that opens up the space for the examination of the previous meeting

(or legal events) from the later, but already constitutionally Conformal

the legislation, the standard right-retroactivity is souladný with

the principle of the rule of law (article 1, paragraph 1, of the Constitution); distinguish cases

vertical and horizontal effect of fundamental rights and the formulation of the

the conclusion, according to which the right in the case of voicing;

the unconstitutionality of the law and the assessment has already cancelled the previous facts

negotiations with the law constitutionally compliant effects ex tunc on the

the public authority does not constitute a violation of the principle of the protection of the citizens ' confidence in the law,

Alternatively, interference with the legal certainty and acquired rights. The Constitutional Court is

According to the article. 95 para. 2 of the Constitution, shall undertake to examine the constitutionality of the

the contested provisions, even though it was no longer in force, on condition that the

addressee of the tempered reason of unconstitutionality is a public power. This is the case

in the present case and, therefore, in the context of the laws cited

the views expressed in the above findings, the conditions are met

for the substance of the projednatelnost application. Having regard to the provisions of

§ 35 para. 1 of the law on the Constitutional Court does not constitute earlier resolutions

The Constitutional Court, SP. zn. PL. ÚS 48/05 (see above) a barrier to matter

determined to remain.



VII.



The case law of the Constitutional Court, to the withdrawal of the travel document for citizens of the Czech

of the Republic of



16. The adoption of Act No. 326/1999 Coll. apply the provisions of § 17 (b). (b))

Act No. 216/1991 Coll. on travel documents Act, pursuant to which the

the issue of a travel document can be refused or issued by a travel

the document could be withdrawn to citizens, against which the criminal

prosecution. The former legislation did not provide for any additional criteria or

the conditions that had to be met for the establishment of discretionary powers

the administrative authorities, and in terms of the law, it would suffice, if administrative checked

authority of the relevant manner the existence of criminal prosecution of a person,

for example, the communication, the investigators, who led the prosecution. The constitutional

complaints contesting the decisions of administrative courts, the Constitutional Court refused to

as manifestly unfounded, arguing that the purpose of criminal proceedings

completely corresponds to the permissible restrictions on freedom of movement under article. 14. 3

As for the procedure of the Charter and within the limits of the constitutional exemption. In its resolution of

7.9.1999 sp. Zn. II. TC 95/98 (not published, available at

http://nalus.usoud.cz) stated that it is necessary to examine whether the application

the relevant provisions of the law on travel documents do not

disproportionate interference with the fundamental rights and freedoms of the individual, as

edit it herself and does not exclude a priori; the inadequacy of the intervention as

arbitrary decisions, which, however, cannot find where there could have been given a harder hit,

i.e.. limitation of personal freedom instead of restrictions on freedom of movement, and only

temporarily and outside the territory of Republic. The extent of the review activities of the administrative

the Court, the Constitutional Court stated that the Court "could not review the reasons of the criminal

prosecution, and thus the very basis for the interference with the freedom of movement. "



17. After the adoption of the Act No. 326/1999 Coll. progressed when the Constitutional Court

a review of the decision based on the application of the contested design

the provisions applied mutatis mutandis; the law on travel documents as law,

the implementation of restrictions on the freedom of movement provided for in article. 14. 3

Of the Charter, and that gives the possibility of law enforcement authorities request

restrictions on the freedom of movement of persons prosecuted for an intentional offence

detention of a travel document. In the matter of SP. zn. I. ÚS 52/03, mentioned

the claimant, in which he was removed at the request of the public prosecutor, criminal

prosecuted person travel document after a year and a half after the communication charges


While this person argued that the prosecution never nevyhýbala

or nemařila of the investigation, the Constitutional Court did not doubt, that only

authorities active in criminal proceedings on the basis of status and trends

criminal prosecution of a person should consider whether it is necessary to limit referred to

in a way its freedom of movement (resolution of 26.6.2003, unpublished,

available at http://nalus.usoud.cz).



18. Consequently, the Constitutional Court in its decision so far

practice in the question indicated limits in which it should be measured

restrictions on the freedom of movement of the individual. The question of the effective review of the decisions of the

Authority participating in criminal investigations in order to verify that the received

measures shall not preclude the possibility of arbitrariness in the event when exceeds the positives,

for example. public interest in these measures, yet kept open. In

this connection, however, it should be borne in mind that the subject of a constitutionally

legal review of administrative decisions of the boards of general courts

lead by the fifth part of the code of civil procedure as amended by the

31 December 2002, the existence of the legislation, which at that time

It showed a serious constitutionally legal deficits, which the Constitutional Court responded

fundamentally finding SP. zn. PL. ÚS 15/99 of 27.6.2001 (N

96/22 SbNU 329, 276/2001 Coll.).



VIII.



Constitutional limits on freedom of movement



19. Freedom of movement is one of the fundamental human rights and according to the article. 4

The Constitution is under the protection of the judiciary.



According to the article. 14 of the Charter



' 1. freedom of movement and residence is guaranteed.



2. everyone who is legally staying in the territory of the Czech and Slovak

The Federal Republic has the right to freely leave them.



3. these freedoms may be restricted by law if it is inevitable

for national security, maintenance of public order, health, or

protection of the rights and freedoms of others and for defined areas whether or not due to the

the protection of nature.



4. every citizen has the right to free entry on the territory of the Czech and Slovak

Federal Republic. A citizen cannot be forced to leave their homeland.



5. An alien may be expelled only in cases provided for by law. "



In accordance with article 2 of Protocol No. 4 to the Convention for the protection of human rights and

fundamental freedoms (hereinafter "Protocol 4" or "the Protocol")



' 1. everyone lawfully within the territory of a State, it has to

that territory the right to freedom of movement and freedom to choose their place of residence.



2. everyone has the freedom to leave any country, including his own.



3. No restrictions shall be placed on the exercise of these rights other than those

which are prescribed by law and are necessary in a democratic society in the interests of

national security, public safety, maintaining public order,

the prevention of crime, for the protection of health or morals or the protection of the rights and

freedoms of others.



4. The rights referred to in paragraph 1 may in some areas be made subject to

the limits laid down by law and justified by the public interest in

of a democratic society. "



20. The rights arising from the freedom of movement (article 14 of the Charter), you can claim

directly, immediately (article 41, paragraph 1, of the Charter, and on the other hand), not

through laws that would implement this provision. The constitutional

However, are not unlimited guarantees, freedom of movement is limited by the constitutional

the limits of. These restrictions generally summarize so that needs to be fixed

the law for reasons exhaustively provided for in paragraph 1. 3 article 14 of the Charter,

"if it is inevitable." Convention in Protocol No 4 guarantees

freedom of movement for citizens of the State concerned and the foreigners in a different way

(cf. "who lawfully") and provides for the

in the cases of paragraph 1. 3 of the Protocol provided for in the conditions, "if it is necessary

in a democratic society. "no other limits the Charter or Protocol

does not provide, and is therefore to be understood as the right to freedom of movement, which

includes not only the right to move and reside freely anywhere on the territory of the

The United States, but also the right to freely travel abroad and return

back.



21. in relation to the citizens of the United States constitutional adjustment permits the

the exercise of their freedom of movement was restricted by the intervention of a public authority. To be able to

This intervention be considered constitutionally permissible, must meet the three

terms and conditions:



-must be determined by law,



-must be aimed at legitimate objectives,



-must be the inevitable, and necessary in a democratic society.



VIII. 1)



The assessment of whether a restriction is in accordance with the law and whether it is justified by the

justified by the public interest



22. According to the provisions of § 2 and § 3 of the law on travel documents valid in the

the time for the complainant, could a citizen of the Czech Republic to leave its

territory only through a border crossing with a valid travel document

(passport), that he could be removed by a decision of the public authorities

authority in the cases referred to in paragraph 23, under whose (a). (b))

the purpose of the withdrawal of the travel document to ensure that citizen, against which the

was led by the prosecution for an intentional criminal offence, was in the interest of

the proper course of criminal proceedings can be reached. Restrictions on the movement of the citizen

The United States when traveling abroad was defined by law and

the contested provision thus matches the condition first.



23. the second Condition is that the action was a legitimate target. These

the targets are in the Charter and the Convention defined the so-called. "fuzzy concepts"-

national security, national security, public order, public

safety, the prevention of crime, for the protection of health or morals,

protection of the rights and freedoms of others, the protection of nature. Some of these concepts

are defined by the law, some of them, though widely used, e.g..

the term "public order", the rule of law, and therefore does not define clearly

the case-law of the courts are interpreted, and the decisions of the other institutions

of public authority. Of constitutionally legal point of view it is immaterial whether such

terms by the legislature or interpreted by the jurisprudence of populated, triage is,

that may not be further disseminated. By the contested provision, it was possible to reduce the

freedom of movement of individuals outside the territory of the United States as a result of his

in a prosecution for an intentional criminal act. The criminal proceedings leading to the

the proper detection of criminal offences and their fair punishment

Offenders (§ 1 (1) of the criminal procedure code) in order to protect the interests of

the company, the constitutional establishment of the Czech Republic, rights and legitimate

the interests of natural and legal persons (§ 1 of the Criminal Code) are generally

a legitimate public interest. The withdrawal of the travel document on the basis of

the contested provisions of the law on travel documents to restrict

the freedom of movement of the individual in the interest of one of the legitimate objectives

meets the requirements of the terms of the other.



VIII. 2)



The assessment of the indispensability of the restrictions of inevitability or



24. the third Condition provides that rights must be inevitable,

and necessary in a democratic society. These concepts are not in

The Charter and the Convention closer defined, it is clear, however, that entails a certain

the urgent social need, which represents the achievement of a space

discretion and justification of the legislature. If it is not provided for

by law, the characteristic features of this need can be inferred from the case-law.



25. The Constitutional Court in connection with the assessment of the necessity of the intervention of the authority

the public authorities with the rights and freedoms of the individuals held that "if permitted

the constitutional order of the Czech Republic to protect the rights, it is

only and exclusively in the interest of a democratic society, or in the

the interest of constitutionally guaranteed fundamental rights and freedoms of others; These include the

above all, the need for the general interest in the protection of society against

criminal offences, and that such offences were detected and punished.

It is therefore permissible only for the intervention of the State into the basic rights

or the freedom of a man who is a necessary intervention in that sense. To

to have not exceeded the bounds of necessity, there must be a system

adequate and sufficient guarantees, consisting of the respective

legislation and the effective control of their observance. " (see find

SP. zn. II. TC 502/2000 of 22.1.2001 (N 11/21 SbNU 83). Also from

the case-law of the European Court of human rights shows that, when assessing the

the intervention leading to the violation of the freedom of movement of the individual in this Court's

the principles set out in article. 2 of the Protocol No. 4 notes for example. the result of the

investigation, or the development of a particular case, and in this context

considering that the action was reasonable in relation to the intended objectives of the [cf.

for example. Baumann v. France case No. 33592/96, case Iletmis v.

Turkey, complaint # 29871/96 Luordo, http://www.echr.coe.int, in the matter.

Italy, complaint No. 29731/96, court judgments of the ECtHR case-law, overview,

No 6/2003, p. 317 (324) and others].



26. the purpose of the contested provision was of withdrawing or refusing to issue

a travel document to a person being pursued by for an intentional criminal offence

could not avoid prosecution, complicate or entirely escape him.

It is thus clear that the adequacy of the measures in terms of its

inevitability or necessity, may only be made on the basis of the status and

the development of criminal prosecution of the person concerned by the measure, and that this

the assessment authority acting in criminal proceedings. However, the code of criminal procedure

It does not provide the person prosecuted the procedural means by which it would reach


the effective review of the proportionality of the proposed measures on the application

law enforcement authority on the withdrawal of the travel document of a person accused

the person shall be decided in other than criminal proceedings.



27. The Constitutional Court therefore judged, above all the question of whether standard setting out the

limiting the scope of the facts under which can be limited by the freedom of

the movement of the holder of a travel document is in conflict with the constitutional order,

specifically, with art. paragraph 36. 1 of the Charter, according to which "everyone

can claim a set procedure, their right to an independent and

an impartial court and in cases specified in another body. " The purpose of the

and the purpose of this provision is to define the obligations of the State to provide

the protection of the rights of everyone, as in the rule of law there can be no situation,

in which the holder of rights could not obtain his protection (in court or other

authority). In General, that the State is there to its citizens (but also

visitors on its territory) to protect and provide guarantees

that their rights will be protected. As the Constitutional Court has already interpreted in the award

of the 29 SP. zn. PL. ÚS 73/06 (promulgated under no. 297/2008 Coll., and

available at http://nalus.usoud.cz), paragraph 4 of the article. 36 of the Charter (on which

basically refers to para. 1 article. 36 of the Charter textací "set out

the procedure ") refers to the law that governs the conditions and

details "in relationship to all the preceding paragraphs in the article. 36 of the Charter,

However, such a law, issued on the basis of the constitutional mandate,

the provision of article. 36 of the Charter, bound, from its content, therefore, cannot

depart. The sense and purpose of the "ordinary" law pursuant to art. paragraph 36. 4

Of the Charter is only to lay down the conditions and details of implementation to their

content (already) in the ústavodárcem article. 36 of the Charter enshrined rights, i.e.

conditions and details of a purely procedural nature. To each according to the article. 36

paragraph. 1 of the Charter, the right to seek protection of his rights in court or other

authority, with the conditions and rules for the implementation of this law,

the law, then such law, issued on the basis of the constitutional mandate, cannot

entitled each to seek protection of his rights in the Court or other authority in the

the situation completely negate and thus constitutionally guaranteed basic

the right, even if only in certain cases, to deny. Article 36 para. 1

The Charter of each constitutionally guaranteed by the possibility to seek the protection of their

in a Court of law or other authority, in all situations of infringements

(there is no constitutional restrictions). In other words, no person may not

be totally excluded from the law to seek the protection of their

rights, even if only in a specific case, since its right pursuant to art. paragraph 36. 1

Of the Charter would be voided. The opposite interpretation would also broke that anchorage

rights of every trend on the judicial and other authorities for the protection of

their rights made by the talented ústavodárcem the highest legal force-in

basically lost sense, as it might be for the situation

only the will of the legislature is annulled.



28. in the case under consideration, the contested provisions of the Act on travel

Unfortunately, the documents (and even now the valid provisions of the Act

It does not provide the administrative authority adjudicating on) the withdrawal of the travel document

the application Authority participating in criminal proceedings, any possibility of considerations in

the context of the third condition, as he was satisfied the legal reason-the request body

law enforcement officer who led against the person concerned of criminal

prosecution for an intentional offence-had administrative authority no

the scope for administrative discretion on the necessity or reasonableness of such

measures and travel document had to withdraw. Of constitutionally legal terms

It is not the key (but at the same time is not irrelevant-see further para. 33.)

whether the powers of the inevitability or the necessity to consider the use of the resource,

which limit the basic rights and freedoms in the interests of

the protection of other constitutionally protected values, is gifted with this or that authority

public authorities (administrative authority of the passport or the authority in criminal proceedings),

applicable is that its decision should not be excluded from effective judicial

checks. The contested decision of the law on travel documents of administrative

the authority does not provide any account, which, in effect, significantly

limited the possibilities for review by the administrative court. In other words,

Administrative Court could not challenge the decision of the administrative authority of the Passport

the part in which he refused to deal with the objections under nepodřaditelnými

contested statutory provisions, as the reverse of the administrative Passport

the authority would be in contradiction with this standard. The Constitutional Court therefore concludes that

the legislature in the contested provisions restrict the right of the holder of

the document to claim before the Court or other authority for protection of his rights in a

in a way, that the constitutionally guaranteed rights of interference assessment in terms of

the inevitability of the necessity of the restrictions on freedom of movement or the Court completely

has ruled out.



29. In short, the Constitutional Court does not dispute that refusing to issue or

the withdrawal of the travel document prescribed by law and justified

justified by the public interest (a legitimate aim) may be inevitable

(necessary) measures; decisions on such measures cannot, however, be

excluded from the actual judicial protection superseded judicial protection only

illusory.



30. the Constitutional Court in the above-cited finding pl. ÚS 73/06 express

also, exceptions to the principle of general judicial possibility

administrative decisions Tribunal, since according to the article. paragraph 36. 2 of the Charter, "who

claims that he was on their rights by a decision of the public authority is truncated

Administration, may apply to the Court to review the legality of such

the decision, unless the law provides otherwise. From the jurisdiction of the Court, however, must not be

ruled out reviewing the decisions relating to fundamental rights and

freedoms under the Charter. " The Constitutional Court pointed out that, even if

ústavodárce in the second sentence of the article. paragraph 36. 2 of the Charter delegates to the

the legislature admit of exceptions to the possibility to review administrative decisions

the Court, the constitutional mandate limited in the fact that from the review

jurisdiction of the Court should not be excluded decisions relating to fundamental

the rights and freedoms guaranteed by the Charter. Ústavodárce clearly

reflect the different relevance of fundamental rights and freedoms and the "ordinary"

rights and freedoms; those important rights of their different

the nature of the logically higher protection.



31. In the present case, the decision to withdraw the travel document

refers to the fundamental right to freedom of movement; referred to the legal exemption from the

the rule here is not allowed. The conclusions of the article. paragraph 36. 1 and

paragraph. 4 of the Charter apply in relation to the article. paragraph 36. 2 of the Charter, i.e. identically.

the law establishing the "terms and conditions" pursuant to art. paragraph 36. 4 of the Charter

not from the content of article. paragraph 36. 2 of the Charter. Therefore, each according

article. paragraph 36. 2 of the Charter, the right to judicial review of decisions of the institutions

public administration relating to the fundamental rights and freedoms, the conditions

and the rules of implementation of this law lays down the law, then such law,

issued on the basis of the constitutional mandate, cannot claim anyone even mentioned

only need to be within a certain range, completely ruled out. Article 36 para. 2

Of the Charter is not the law permitted no content restrictions of the right to judicial

review of decisions concerning fundamental rights and freedoms.

The contested provision does not preclude a decision of the administrative

authority to withdraw the Passport travel document were subjected to a court

the review, however, is in relation to the decision of the administrative authority of the Passport

capped and the review procedure (application) Authority participating in criminal proceedings

does not include.



IX.



No constitutional consequences, de lege ferenda



32. However, it follows from the above that, by saying the conflict under review

the legal provisions with the provisions of the basic law the conclusion garantujícími

The constitutional court challenges-and in particular for the absence of

effective judicial review-the very competence of the competent administrative

the authority to decide whether to issue a travel document or refuse the issued

travel document be withdrawn. It is obvious that the afore-mentioned is true not only in the

relation to the proposal of the law on travel documents,

but also in relation to the today valid and effective legislation.



33. the Constitutional Court is not to suggest in detail what lawmakers

legislation regarding the issue under consideration has the answer. Prior to its

the adoption of the legislators to thoroughly and consistently consider,

whether it is reasonable to deny the release of or the withdrawal of the travel document

decisions of administrative authorities and the administrative courts. In effect, it is

the reinsurance Institute; the decision about how it is to be used,

should rather do public authorities that control, in which the

such security instruments used, lead; review of such

the decision by the Court in the same proceedings carries with him a number of indisputable advantages.

It's not just about flexibility and greater knowledge of the reasons for which the competent

public authority, considered it necessary to provide access, but

above all-and further includes listed possible aspect of constitutional law

-the removal of unwanted mingling of different processes conducted by the different

authorities. Moreover, it pointed out in its observations to the Senate submitted a proposal.


By saying the unconstitutionality of the contested provisions of the Act on travel

Therefore, the Constitutional Court documents in any case is not going to regard

opinion, according to which the right wide discretionary power Administrative Office,

supplemented by judicial review in full the jurisdiction of the administrative courts, it is the

along the way, the legislature and had issue.



X.



The conclusion of the



34. the Constitutional Court referred to concluded that the provisions of paragraph 23 (c). (b))

Act No. 326/1999 Coll. on travel documents and on the amendment of Act No.

283/1991 Coll., on the police of the Czech Republic, as amended by Act No 217/2002

Coll. and Act No. 320/2002 Coll., did not allow the general courts to comply with their

obligations in the protection of fundamental rights and freedoms of the individual in

review of an application by the law in criminal proceedings at the withdrawal of

a travel document to a person against that leads the prosecution for intentional

the offense, in terms of the limits of the third condition, which represents

non-observance of principles enshrined in article. 2 (2). 2 and article. 4 (4). 1

Of the Charter. This was denied to individuals concerned of the right to effective judicial

the protection referred to in article. paragraph 36. 2 of the Charter, which ultimately led to the

infringement of article 81(1). 14. 1 and article. 2 of Protocol No. 4. The Constitutional Court therefore

the proposal of the applicant pursuant to article. 95 para. 2 of the Constitution upheld, saying that with the

regard to the article. 89 para. 2 of the Constitution, are the consequences of unconstitutionality identified

public authorities are obliged to incorporate into their practice, thus

in solving concrete cases cited provisions do not apply.



The President of the Constitutional Court



JUDr. Rychetský v.r.



To justify the award have taken different views under section 14 of Act No.

182/1993 Coll., on the Constitutional Court, as amended, judges

Vlasta Formankova, Pavel Holländer, Dagmar Lastovecká, Lippincott and

Elisabeth Wagner.



1, section 23 of the law on travel documents, as amended by Act No. 561/2004 Coll.

effective from January 1, 2005, reads as follows:



The issue of a travel document shall be refused or issued citizen travel

the document is to be withdrawn at the request of



and) Court is against the citizen enforcement of the Court decision,



(b)), the authorized court bailiff execution, if

clearly there is a danger that the citizen to a foreign country to frustrate the execution path,



c) Authority participating in criminal proceedings, if it is against a citizen are conducted

prosecution for an offence for which can be punishable by deprivation of

freedom for at least 3 years, or



(d)), which carries out or arranges for decision in accordance with

a special legal regulation, to refrain from doing the citizen imprisonment;

This does not apply if the penalty was pardoned him or his performance

barred.



2 note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 22, usn.

# 13, p. 349, 351



3 Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 24,

find no. 164, pp. 201, 223, promulgated under the 424/2001 Sb.

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