341/2010 Sb.
FIND
The Constitutional Court
On behalf of the Republic of
The Constitutional Court under the SP. zn. PL. ÚS 32/08 held 29 June. September 2010 in plenary
in the composition of Stanislav Duchoň, Package, Vlasta Formankova, Turgut
Güttler, Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar
Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský,
Miloslav Výborný, Elisabeth Wagner, and Michael Židlická of the proposal
The Supreme Administrative Court of 10 December. 11.2008 the abolition of section 76, paragraph. 6
Act No. 169/1999 Coll., on the execution of the sentence of imprisonment and change
some related laws
as follows:
The provisions of section 76, paragraph. 6 of Act No. 169/1999 Coll. on the execution of prison sentence
freedoms and amending certain related laws, as amended by:
"Unless otherwise provided in this Act, subject to the decision issued in the
kázeňském review of the management of the Court. ", is repealed on 30 April 2005. June 2011.
Justification
(I).
1. The Supreme Administrative Court handed the proposal to abolish the top marked text
section 76, paragraph. 6 of Act No. 169/1999 Coll., on the execution of the sentence of imprisonment and of
change some of the related laws for inconsistency with the constitutional order
Of the Czech Republic. He did so in the context of the decision on the appeal
the complaint of the plaintiff and the. Ps.. ("plaintiff") against the defendant to Prison
service of the Czech Republic, filed against resolutions of the municipal court in Prague
of 19 December 2003. 10.2006 no. 10 Ca 297/2006-23, which was rejected
action and.. against the decision of the prison service of 21 June. 10.2004.
This decision was the plaintiff stored the penalty under section 46 disciplinary paragraph. 1
(a). 3 (b). f) of Act No. 169/1999 Coll. on the execution of prison sentence
freedoms and amending certain related laws (Act on the
imprisonment ") consisting in placement in a closed
the Department for a period of 5 days. The decision was justified by the fact that the plaintiff
infringed section 28 paragraph. 2 (a). (j)) and paragraph. 3 (b). (b)) of the law on imprisonment
imprisonment, because he owned the unauthorized objects that could
by their nature cause damage to health or endanger life.
2. Against the decision of the disciplinary punishment, the applicant filed a complaint,
that was rejected by decision of the prison service of 21 June. 10.2004.
This decision, the applicant challenged the action in the administrative justice system, because
He disagreed with the conclusion of the prison service about the fact that the conditions were met
for the imposition of disciplinary punishment thereof. The city court in Prague by the resolution
of 19 December 2003. 10.2006 no. 10 Ca 297/2006-23 of his claim refused. He bequeathed
on legal adjustment in section 76, paragraph. 6 the law on imprisonment,
the decision by the prison service in the kázeňském control, with
the exception of the disciplinary penalty of forfeiture of things and the decision to prevent things,
excluded from judicial review. On the basis of this competency exclusions
an action according to § 46 paragraph refused. 1 (a). d) of Act No. 150/2002 Coll.
the administrative court rules, as inadmissible.
3. the resolutions of the municipal court in Prague handed the claimant appeal
the complaint, which was motivated by the fact that the exclusion of judicial review in the matter of
concerning the disciplinary penalty is in his case, in breach of article.
paragraph 36. 2 of the Charter of fundamental rights and freedoms (the "Charter"). This is
a penalty imposed by the administrative authority, which has an impact on the factual
the tightening of the imprisonment. In particular, it prevents the possibility of
reclassification to a prison with a more moderate regime under section 39b of the criminal law.
Another consequence is the freeze-out conditional release from prison
the deprivation of liberty.
4. The Supreme Administrative Court (hereinafter "the applicant") for a preliminary
the legal assessment of the case concluded that the provisions of section 76, paragraph. 6
the law on imprisonment, a negative decision issued in
kázeňském control (with the exception of disciplinary penalty of forfeiture of things and
the decision to prevent things) from judicial review, is in contradiction with the
the constitutional order of the Czech Republic. Therefore, in accordance with article handed. paragraph 95. 2
The Constitution of the Czech Republic and § 64 paragraph. 3 of Act No. 182/1993 Coll., on the
The Constitutional Court, as amended, (hereinafter referred to as "the law of
The Constitutional Court ") proposal to repeal this provision set out below
reasons.
5. the persons, carrying out a sentence of imprisonment, are required to submit to
the mode of imprisonment pursuant to a final judgment in a criminal
the proceedings. Even though this punishment is traditionally called a "sentence of imprisonment",
It is essentially about the limitation of personal freedom, whose rate is given by
by the law. This conclusion follows from the text of the law on the execution of prison sentence
freedom, which in the provisions of section 27 makes a distinction between restrictions and deprivation
some rights for the performance of this punishment. Other measures, which is
all the rights of convicts, are permissible only within the limits of
as defined by the law. The process of storing them, due to their
the severity, not lacking adequate tools to defend, to eliminate the
any degree of arbitrariness or unfairness.
6. In the case in question is an assessment of the disciplinary penalty imposed
a prisoner during imprisonment Prison Service
The Czech Republic also in relation to the article. 6 (1). 1 to the Convention for the protection of human
rights and fundamental freedoms ("the Convention"). The appellant pointed out
on certain decisions of the European Court of human rights (referred to hereinafter as
"The ECHR") relating to this area. The test, which is applied to the ECTHR
the assessment of the nature of the sanctions, that is. whether certain sanctions is "criminal", was
formulated in the judgment of this Court in the matter of the "Engel and others against
The Netherlands ' of 8 February. June 1976. The ECHR HAS tried to define
the line between "criminal" and "disciplinary". In the judgment in case
"Campbell and Fell against the United Kingdom" of 28 October 1999. June 1984,
the series and no 80, ECHR HAS dealt with the border between disciplinary and criminal
areas in the prison environment, and noted that the principles laid down in the
the judgment of the "Engel" also applies in the prison environment.
7. the appellant is so given the similarity between the sanctions placed on the
during the enforcement of a sentence under section 43, paragraph. 1 (sic-correctly: section 46 (3))
(a). (f)), g), (h)) Act No. 169/1999 Coll. and sanctions, which the ECHR HAS acknowledged
as falling under article mode. 6 (1). (l) of the Convention. The existing system
appeal against a decision imposing a disciplinary punishment
levied under section 46 paragraph. 3 (b). (f)), g), (h)), the law on the enforcement of the sentence
deprivation of liberty is so clearly in breach of article. 6 (1). 1 of the Convention.
The appellant pointed out that in the decision of the ECTHR "Engel and others.
Netherlands "the decider in the last instance in the proceedings of the national
complaints against the rules of the superior military court sentences. The complainants
so was granted, as opposed to the legislation in the Czech Republic,
protection in the next stage of the review, before a judicial authority (even if the
It was the military court).
8. the applicant pointed out that the complaint filed under section 52 of the Act
of imprisonment, of which shall be decided by the prison director (or
the authorized employee of the prison service), could not, in relation to the
the severity of some of the sanctions imposed, be regarded as corresponding to the
protection guaranteeing an independent review of the disciplinary penalty imposed.
The possibility of the convicted person to defend their rights at the dozorujícího State Prosecutor
the applicant shall not be considered as equivalent to the status of the convicted person in the proceedings in the
Court, where the convicted person does not have the position of the parties to the dispute. As a full
the protection of his rights should not be considered or the supervision of the Ombudsman, from the
"optional" nature of the recommendations issued by him that the prison
the service may accept. The problem of the provisions of section 76, paragraph. 6
the law on the execution of the sentence of imprisonment is therefore applies to judicial review
for all disciplinary penalties (with the exception of the forfeiture of things) without their
more differentiation according to the severity and consequences, with a minimum of
some of these punishments interfere with fundamental rights and freedoms referred to in
Charter, so their review should therefore not be at a flat rate of powers
the Court excluded.
9. the right of the convicted person to freedom of movement and residence is therefore only limited,
as expressly provided for in section 27. 2 of the law on the execution of prison sentence
freedom. Appellant convicted cannot be in the course of performance
the sentence of imprisonment incurred, or abuse of discretionary power to arbitrariness
the position of the employees of the prison service. In the case of the imposition of punishment
the location of the closed department or in solitary confinement could occur (when
the existence of these negative phenomena) to significant interference to the rights
the protected article. 7. 2 of the Charter, according to which no one shall be subjected to torture
or subjected to cruel, inhuman or degrading treatment or
the punishment. It could also be in violation of the article. 10, paragraph 1. 1 of the Charter, according to which
everyone has the right to preserve his human dignity. Projector
i pointed out to the provisions of section 27. 4 of the law on the execution of prison sentence
freedom, according to which: "the restrictions that will be applied to
inmates in the prison, which is guided by the prosecution, and
the grounds are met, the binding, the Court decided by a special Act. ".
Therefore, it is questionable whether this provision is in direct contradiction with section 76, paragraph.
6 of the same Act.
10. The appellant also pointed out the inconsistency with the procedure of the legislature,
which expressly allowed the judicial review only in the case of disciplinary
the penalty of forfeiture of things (section 52, paragraph 4, of the law on the execution of prison sentence
freedom). The result is a situation where the current legislation it is possible
judicially review the accuracy of the disciplinary penalty of forfeiture of things
scant values, but this option is excluded, for example. in the prevention
the adoption of the package in high value or when a decision on the location of the
solitary confinement. Also, you cannot overlook the influence of imposed discipline on the
deciding on any conditional release of the convicted person. According to the
settled judicial practice of the Court when deciding on the request of the convicted person about
conditional release to freedom taken into account always on what was his
behaviour during imprisonment. Disciplinary penalty so determines the
account of the Court about the conduct of the convicted person. In the case of rejection can be more
the request for conditional release to lodge up to a year.
II.
11. In accordance with the provisions of § 69 paragraph. 1 of the law on the Constitutional Court's
The Constitutional Court has requested representation of the Chamber of Deputies and the Senate of the Parliament
Of the Czech Republic.
12. the President of the Chamber of deputies in simple observations stated that the
the contested provisions of the law on imprisonment has remained
unchanged since its adoption. According to the Government's proposal sounded the provisions of § 76
paragraph. 6 of Act No. 169/1999 Coll., as follows: "the decision issued in kázeňském
the proceedings are not subject to court review; It does not apply to decisions on
forfeiture or the prevents things, whose review you can pursue in the
the extent and under the conditions laid down by the specific regulation. ". (This
a special provision is the code of civil procedure), on the basis of amendments
the proposals contained in the resolutions of the Committee on Petitions and the Committee for the defence and
safety was the provision of section 76, paragraph. 6 modified to its current form.
The explanatory memorandum to the provisions of section 76, paragraph. 6 point, regarding the exclusion
the decision issued in the kázeňském proceedings of the judicial review on (then
the valid wording of § 248, paragraph). 2 (a). (f) the code of civil procedure).
13. The President of the Senate of the Parliament of the Czech Republic similarly stated that
the contested provision was not for its validity subject to
any legislative changes. Senate committees may adopt a draft law
different opinions, but the discussion focused in particular on the
the issue of the newly introduced or stages rotating legal institutions performance
the sentence of imprisonment. The issue of judicial review of the decision of the
kázeňském was not issued in the proceedings of the legislature's attention expressly
given to.
III.
14. The Constitutional Court according to article. paragraph 87. 1 (a). and the Constitution of the Czech Republic)
decide on the repeal of the laws or their individual provisions if they are
contrary to the constitutional order. In this procedure, the Constitutional Court shall examine the
the content of the Act or other legislation from the point of view of their compliance with the
the standards of constitutional order and to determine whether they were adopted and issued in
the limits of the Constitution of the Czech Republic set out competences and constitutionally
in the prescribed manner (section 68, paragraph 2, of the Act on the Constitutional Court). From
the expression of both chambers of the Parliament of the Czech Republic, it is obvious that the law No.
169/1999 Coll. was adopted and issued a constitutionally prescribed manner and within the limits of
the competences laid down in the Constitution of the Czech Republic.
IV.
15. After this discovery came the Constitutional Court to assess the text of § 76
paragraph. 6 of Act No. 169/1999 Coll., on the execution of the sentence of imprisonment and of
changes to some related laws, as regards its compliance with the
the constitutional order of the Czech Republic and came to the conclusion that the proposal is
reasonably. Tagged provisions, whose cancellation is proposed as follows:
"Unless otherwise provided in this Act, subject to the decision issued in the
kázeňském review of the management of the Court. ".
16. To clarify the issue, it is appropriate to point out, even on the
the provisions of related. In particular, § 46 paragraph. 1 thereof
the law, according to which: "the offence is caused by violation of the rules of
prescribed by law or on the basis of the obligations imposed, order or
discipline during the enforcement of a sentence. ". In accordance with paragraph 2 of the same provision applies,
that: "for a disciplinary offence can be convicted to save the disciplinary punishment.
Disciplinary punishment shall not be imposed if by discussing disciplinary
misdemeanor with a convict can be achieved by reference to the purpose. ". In § 46 paragraph.
3 of the same Act is an enumeration of the disciplinary punishments, which are: a reprimand, reduction of
hair loss no more than about one-third of up to 3 calendar months,
the ban on the adoption of a single package in a calendar year, a fine of up to 1
USD, forfeiture of things, the location of the closed Department for up to 28 days
(with the exception of the period laid down for the implementation of the intended tasks of the treatment programme),
full-day placement in a closed Department for up to 20 days, the location of the
solitary confinement for up to 20 days, withdrawal of benefits resulting from previous disciplinary
rewards.
17. Pursuant to section 52 of that law has condemned the law within 3 days from the date of
notification of the decision of disciplinary punishment to lodge against him
the complaint. Suspensory effect only has a complaint against the imposition of discipline
the penalty of forfeiture of things. Against a decision to prevent the perpetrator
disciplinary offence and a person that the decision to prevent the matter directly
concerns, right within 3 days from the date of notification of this decision to file a complaint,
which has a suspensory effect. Decide on a complaint within 5 working days from the
of the Director of the prison or a duly authorised employee of the prison
the service. The decision on the complaint cannot be empowered employee who
disciplinary punishment imposed or decided to prevent things. About complaints
against the decision of the Director of the prison shall decide the General Director of the prison
the service. A review of the decision on the confiscation of things or prevent things
the Court can sue under the conditions laid down by specific legal
Regulation to the same extent as is possible in such a review procedure
about the offense.
In the.
18. The Constitutional Court has on several occasions in the past dealt with the issue of
judicial review of aspects of the conservation of the constitutional guarantees of a fair
process. All of its decision, it is common that dealt with ústavností
the decision, which was not possible judicial review. A recap of this
case law under the conclusions below.
19. In finding SP. zn. PL. ÚS 9/2000 of 17 December 1999. 1.2001 (N 8/21 SbNU 55;
52/2001 Coll.) ^ * in the assessment of the constitutionality of the so-called. administrative punishment
The Constitutional Court stressed that the person concerned must have the opportunity to leave the
the decision against it to review by the Court. The review could not be denied in
If that is the decision, relating to the fundamental rights and
freedoms under the Charter, the Constitution of the Czech Republic and international treaties
According to the article. 10 of the Constitution of the Czech Republic.
20. The respect of the guarantees contained in the article. 6 of the Convention from the perspective of the
the review, the Constitutional Court dealt with also in connection with decisions about
the police fines. In the award of 23 July. 11.1999, SP. zn. PL. ÚS 28/98
(N 161/16 SbNU 185; 2/2000 Sb.) He said that the refusal of protection in the
matters, review of the decisions of public authorities is not possible in the case,
It is a decision, relating to the fundamental rights and freedoms
According to the Charter, the Constitution of the Czech Republic and the international conventions referred to in article.
10 of the Constitution of the Czech Republic. Any other approach is in contrary to article. 36
paragraph. 2 of the Charter and article. 4 of the Constitution of the Czech Republic.
VI.
21. The issue of the right to fair proceedings within the meaning of the "right to a court",
in application of the article. 6 (1). 1 of the Convention, the case-law of the European
Court of human rights. In the decision in the matter of the "Engel and others against
The Netherlands ' of 8 February. June 1976 established the test, which is applied
in assessing the nature of the penalties, and tried to define the boundary between the
"criminal" and "disciplinary". According to its findings, it is primarily
necessary to determine whether the provisions defining the offence belongs to according to
the legal system of the respondent State in areas of criminal law,
disciplinary (disciplinary) rights or both at the same time. This, however,
represents the only fundamental basis. Greater importance of
tort, in particular, however, the severity of the sanction, which the person concerned is threatened. In
the case of "Engel" have been assessed penalties imposed on persons executing
basic military service in the Netherlands, in the form of plain and zostřeného
the prohibition of the transfer, to walks disciplinary unit and temporary strict
four prison. Against the imposed sanctions are disability defended
complaints submitted to the Board of the officer whose decision then
reviewed the Top military court. The ECTHR in the case stressed that the stored
the punishments would no doubt have been treated as if it were stored, civilian
for the deprivation of liberty. However, if stored in a soldier, can this
the character of Miss. The scope of the article. 6 (1). 1 the Convention shall disciplinary punishments
stored in the course of military service, truly reflected only, provided that the
"do not show restrictions that seem to deviate from the normal life
conditions in the armed forces ". On the basis of this criterion, the ECTHR has recognised
for the deprivation of liberty sanctions strict prison and four
transfer to a disciplinary unit, rather than a plain or zostřený ban
walks. He stated that: "... to the State from the base
responsibility to provide a fair trial in criminal matters,
It is not enough to qualify as a disciplinary offence ".
22. Another judgement of the ECTHR anywhere in this area is the decision in
"Campbell and Fell against the United Kingdom" of 28 October 1999. June
1984, series A No. 80. Here dealt with the border between disciplinary and
criminal areas even in the prison environment, and stated that: "the Convention
shall not prevent the States create or maintain differences between the criminal law and
disciplinary law and establish the boundaries between them. This, of course,
It does not follow that such skills will be crucial in terms of
The Convention ... Justice cannot stop at the gates of the prison and prisoners
they cannot be deprived of the protection of the article. 6 of the Convention. For this reason, the principles
set out in the judgment of the Engel and others against the Netherlands and in prison
environment ".
23. The applicant, the contested provisions of section 76, paragraph. 6 of Act No. 169/1999
Coll. on the imprisonment and amendment to certain related
laws, therefore, does not respect the principles underlying the case law of the ECTHR in the
the interpretation and application of article 6 (1). 1 of the Convention, according to which everyone has
the right to the matter in a fair, publicly and in
a reasonable time by an independent and impartial court, established by the
the law, which shall decide on its civil rights or obligations or
the legitimacy of any criminal charges against him.
VII.
24. After examining the content of section 76, paragraph. 6 of Act No. 169/1999 Coll., on the performance of
imprisonment and amending certain related laws, of
the point of view of the constitutional guarantees of due process, the Constitutional Court decided to
the following conclusions. In accordance with article 1 of the Constitution of the Czech Republic is
Czech Republic a sovereign, unified and democratic legal State
based on respect for the rights and freedoms of man and citizen. The fundamental rights and
freedom according to article 4 of the Constitution of the Czech Republic under the protection of the Court
to be able to. The right to judicial protection belongs without a doubt among the basic features
the rule of law.
25. the Charter in article 36 paragraph. 1 ensures everyone's right to pursue
laid down in the manner of their rights before an independent and impartial court and in
the cases provided for in the case of another authority. In accordance with paragraph 2 of the same article
Anyone who claims that he was on their rights is truncated by a decision of the authority
public administration, may apply to the Court to review the legality of
such a decision, unless the law otherwise. From the jurisdiction of the Court, however, in
no case shall be excluded a review of a decision relating to the
fundamental rights and freedoms under the Charter.
26. The basic question in the case is whether any of the decisions about
disciplinary punishment (see above) are the decisions which the
affect fundamental rights and freedoms under the Charter. From the text below
articles of the Charter can be inferred that this is so. The provisions of the article. 1 of the Charter
provides that people are free and equal in dignity and rights. The Charter of
enshrines the principle that legal restrictions on fundamental rights and freedoms must
pay equally for all cases that meet the specified conditions.
In the application of the provisions on limits of fundamental rights and freedoms must be
investigated their nature and such restrictions must not be abused for other
purposes other than for which it was established (article 4, paragraph 3 and 4 of the Charter). In the article.
7. 2 of the Charter provides that no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.
27. The law on imprisonment regulates the provision of section 27
restrictions and deprivation of certain rights of inmates. In principle, the period of
imprisonment are required to undergo such a conviction limits the rights of
and freedoms, whose performance would either conflict with the purpose of the penalty, or
that cannot be applied due to the enforcement of the sentence. The law exhaustively
calculates the rights and freedoms that are limited and that the person's
After a period of imprisonment deprived. It follows from this that any additional restrictions
rights and freedoms already go beyond the limits in the Act exhaustively
calculated. Any decision on disciplinary penalties are such
a further reduction of the position of the convicted person, and can be, depending on the
the nature and severity of the penalties, significant intervention into its fundamental rights and
freedoms (e.g. into the closed position of the Department up to 28 days, day
location up to the closed Department decisions on placement in a closed
Department or to solitary). Such a decision must be considered, from above
the reasons given for decisions concerning fundamental rights and freedoms.
They cannot therefore be excluded from judicial review (article 36, paragraph 2,
Of the Charter).
28. The lack of current legislation is the fact that no distinction
between the kázeňskými sentences in terms of the severity of their impact
on the position of the convicted person. Of judicial review are based on the
the scheme of section 76, paragraph. 6 the law on imprisonment, be excluded
all decisions of the stored in the kázeňském control (with the exception of the decision on the
forfeiture or the prevents things). The statutory exclusion of judicial review is
How to apply the disciplinary punishment milder nature (such as a reprimand or
hair loss or reduction of the fine), as well as disciplinary penalties, which
undoubtedly largely interfere with the rights and freedoms of the convicted person
(location in the closed Department for up to 28 days, day-long location into
the closed Department for up to 20 days or location to solitary confinement for up to 20 days)
and mean substantial toughing the existing restrictions on freedom. Way
the performance of these penalties is detailed in section 49 of the same Act. When
kázeňském the sentence to a convicted person in solitary location does not work, does not participate in
the treatment program, he's not allowed to smoke, read newspapers, books
or other publications, in addition to legal, educational or religious
literature, and buy food and personal effects, with the exception of the
hygiene needs. He's not allowed to rest on a bed outside the period of time to
the internal regulations. As well, even in the kázeňském of punishment
the location to a closed unit, with the difference that the person is
obliged to perform janitorial work, and the work necessary to ensure normal
the operation of the prison.
29. The exclusion of the decision issued by the Court in the proceedings of the kázeňském
the review, without differentiation of their seriousness, cannot compete in terms of
the requirements of article 36, paragraph. 2 of the Charter and article. 6 (1). 1 of the Convention, as
mentioned above. The paradox of the current legislation is the fact that in the
matters relating to assets (forfeiture of things prevent the things) is the Court of
the review allowed, while in the cases relating to serious interference in the
essentially the personality of the convicted person to the location of the sphere (a closed Department
the location of the solitary) judicial review is excluded. Greater protection is so
granted the protection of the personal sphere of human assets than, though the convicted person.
30. Disciplinary action also has an effect on any conditional
release from prison. When deciding on such requests
the convicted person, the courts shall take into account for his behavior during the performance of this punishment.
Imposed disciplinary measures may affect the decision of the Court in this
things.
31. Consequently, the present system does not allow that the prisoner, when
the exclusion of judicial review, effective procedural protection against a decision
that is stored in the kázeňském control. This fact was pointed out in
the literature in the evaluation of the forthcoming draft law on performance
sentence: "... the proposal provides inmates fairly wide
the ability to "complain", on the other hand, the relatively narrow option
invoke a custom action for administrative or judicial proceedings in which their
objections to decide independent and impartial authority, without having to
turn right on the Constitutional Court. Â «(Mikule and Novotný at work
The prison system and the law, in a tribute to d. Hendrychovi to 70. birthday, C. H.
Beck, 1997, pp. 232-237).
32. The flat-rate exclusion decision issued in kázeňském management of
judicial review (with the exceptions listed above) without their differentiation
with regard to the fundamental human rights of the convicted person is in breach of
with the constitutional guarantee of the right to a fair trial under the article. paragraph 36. 1 and 2
Of the Charter. Consideration of complaints against disciplinary punishment by the authorities
The prison service does not meet the requirements for the protection of the rights before an impartial and
an independent tribunal. Denial of judicial protection is not provided for in article. paragraph 36.
2 of the Charter can in case that this is a decision relating to the
fundamental rights and freedoms. Unconstitutionality of the provisions of section 76, paragraph. 6 Act No.
169/1999 Coll. manifests itself primarily in the fact that they are based on the
the decision issued in the kázeňském control to a flat rate excluded from the Court of
the review, with one exception relating to assets (see above). Greater
protection is thus paradoxically admits there, where there was an intervention in the
property rights, while the sphere of intervention into the realm of man personality
remains without the possibility of judicial control. The impact of certain disciplinary punishments
a serious intervention into fundamental rights and freedoms of the convicted person
above the limits laid down by the law on the execution of the sentence of imprisonment. The decision,
which such disciplinary punishments imposed, cannot be excluded from the
review by the Court in a situation where they concern fundamental rights and freedoms
(article 36, paragraph 2, of the Charter). Judicial review may exclude the discretionary power when
some of the most serious disciplinary records storage, and exclude
their adverse consequences for the eventual decision on conditional
release from prison.
33. In this context, it can be pointed out on the specific circumstances of the case
the convicted person of the plaintiff, identified in the file SP. zn. 9 As of 2/2008 Supreme
Administrative Court. Sentence was imposed disciplinary punishment in the form of
location up to the closed Department for 5 days after that: "he owned
the unauthorized objects that by their nature could damage health,
or endanger life. " These subjects were, according to prison service
"amateur-made transformers, and amateurs made up the sleeve on the finger
the battery ". According to the Prosecutor, the convicted person was no transformer, but about
broken electronic parts, which found on the vycházkovém yard, where
they were in large quantities. This dispute about the nature of the mentioned parts
not in the subsequent stages of the above-mentioned proceedings ever solved, and thus remained
calling into question its own reason for disciplinary punishment.
34. On the basis of the above findings, it was the Constitutional Court plenum to
the conclusion that the provisions of section 76, paragraph. 6 of Act No. 169/1999 Coll. is contrary
with the article. paragraph 36. 1 and 2 of the Charter. Does not match or the criteria of the fair
process, guaranteed in article. 6 (1). 1 of the Convention for the protection of human rights and
fundamental freedoms. Therefore, to decide on its cancellation under section 70, paragraph. 1
the law on the Constitutional Court without oral hearing for the use of section 44, paragraph. 2
the same law, because the participants in the proceedings with the abandonment of an oral hearing
They agreed to.
35. The goal is not the achievement of judicial review for all disciplinary punishments,
but only for those that significantly interfere with personal integrity
of the convicted person. This method allows the Charter legislation in the article. paragraph 36.
4. The introduction of a wider judicial review should, in the case of neparalyzovalo
the operation of the prison service, and should not affect the flexibility and
the effectiveness of the imposed disciplinary penalties because the law on the enforcement of punishment
imprisonment does not confer a complaint against the decision on the imposition of
disciplinary penalty have suspensive effect (with the exception of disciplinary punishment
forfeiture of things) and so does not have a suspensory effect for this area or
the action in the administrative justice system.
36. In the procedure of inspection standards, the Constitutional Court acts as a so-called.
the negative of the legislature, legislation empowered only to repeal.
To remove the neústavnosti the contested provisions of Act No. 169/1999 Coll.
the positive reaction of the legislature is necessary, aimed at the adoption of the
constitutionally nuanced review editing decisions overview of the deposit of
disciplinary sanctions in those cases where the penalty imposed significantly
interferes with the personal integrity of man, even if the convicted person. The lawmakers
It will solve the question of practicality and effectiveness of this review
management, that is. whether it is entrusted to the general courts, that are under the criminal
proceedings, or whether it will be carried out by the administrative courts. Therefore, the Constitutional Court
put down the effectiveness of the annulment of the contested provisions to 30. June 2011 to
as provided by the Parliament of the Czech Republic for long enough to
the adoption of adequate legislation.
The President of the Constitutional Court:
JUDr. Rychetský in r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the judges took the decision of the Assembly, Paul
Holländer and Jiří Nykodým.
* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 21,
find no 8, page 55, under no 52/2001 Sb.
