32/1997.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



IV. Chamber of the Constitutional Court of the Czech Republic held on 18 July 2005. September 1995 in

things a constitutional complaint the petitioner J. L. against the resolutions of the regional

the Court in Ostrava-branch in Olomouc, Czech Republic of 22 July. March 1995 SP. zn. 2

This 130/95 and the District Court against the judgment of 24 July 2003 in Olomouc. February

1995 SP. zn. 7 T 14/95



as follows:



The judgment of the District Court in Olomouc, SP. zn. 7 T 14/95 of 24 July. February

1995, and the resolutions of the regional court in Ostrava-branch in Olomouc, SP. zn.

2 130/95 of 22 December 1995 on March 1995 shall be repealed.



Justification



On 12 June 2006. April 1995 the Constitutional Court was delivered in a timely manner from the constitutional

complaint, which is directed against the abovementioned decision. The judgment of

The District Court in Olomouc, Czech Republic of 24 April. February 1995 SP. zn. 7 T 14/95 was

the complainant convicted offence non-runner services

the armed forces pursuant to section 269 paragraph. 1 of the criminal code and sentenced to

imprisonment to 12 months unconditionally. Against that judgment

the complainant filed an appeal with parents, in which mainly pointed out

the fact that a permanent rejection of military service has already

convicted, the judgment of the same court, SP. zn. 32 T-76/94

from day 4. in May 1994, and that therefore the interpretation that a rejection of the

repeated mobilization orders new criminal offence should in

fact meant that the one who for whatever reasons, time to miss out on an

applying for a civilian service according to § 2 (2). 1 of law No. 18/1992

Coll. on civilian service, as amended, may be subject to judicial

punished almost continuously until the age of 60, when ends branná

duty. Therefore, asked about the charges. This appeal County Court

in Ostrava-branch in Olomouc, its resolution of 22 December 2004. March 1995

SP. zn. 2 130/95 referred to in § 256 code of criminal procedure has rejected on the grounds that

found no defects that would have affected in a negative way

Security findings or the right of the accused to a defence. According to the

his opinion, the Court of the first degree without any doubt, he found that

the accused on 15 December. June 1994 personally took over the call-up from the

the district military administration, he was obliged to

military base service on 7 December. July 1994 for military

Unit in l., which has not made, or within 24 hours after the expiry of the period laid down in

povolávacím orders. As regards the objection of inadmissibility the defendant

repeated criminal penalty for the same Act, the Court stated that the

It was a crime of the same species, but this was a deed completely

another case entirely different facts.



The complainant points out that the contested decision is to ignore

the provisions of article. 15 paragraph 1. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"), pursuant to which no one can be forced to perform military

the service if it is contrary to his conscience or religious

a confession. Concludes that it cannot be forced to perform military service

nor the one who misses a deadline for any reason set out in § 2 (2). 1

(a). and) Act No. 18/1992 Coll., as amended by Act No. 133/1993 Coll., as

in this case the law does not contemplate any further action.



Furthermore, the complainant claims a violation of article i. 40 para. 5 of the Charter, since it was already

Once convicted for being permanently refused to perform military

the service. In this context, States that the repeated prosecutions is also

in contravention of the Convention on the protection of human rights and fundamental freedoms. Therefore,

at the conclusion of a constitutional complaint, the complainant requests that the Constitutional Court has declared

finding that the contested decision is in breach of article 88(3). 15 paragraph 1. 3 and article. 40

paragraph. 5 of the Charter.



The constitutional complaint was accompanied by submission of 14 July 2004. September 1995, in which the

the legal representative of the complainant provides additional arguments in support of its

opinion on, in particular, points out that the law on civil service

determined by an inequality in that direction, while soldiers in the backup allows you to

apply for civilian service repeatedly, once each year draftee

the missed deadline is already correct. Also drew attention to the historical

the context of the efforts of the service without weapons, experience and legislation

European countries. This filing is accompanied by a judgment of a higher

the military court in Trencin (Slovakia) of 16 December 2003. August 1995, which results in a

the legal opinion, which coincides with the opinion of the complainant, in

non-runner service made plans to avoid permanently may be

povolanec convicted only once. Then he put his opinion

The Ministry of labour and Social Affairs to the procedure for refusal to perform

military service.



The President of the Senate of the regional court in Ostrava-branch in Olomouc

Basically, to refer to the reasoning contained in the judgment of the Court of the first degree and in the

the preamble to the resolution of the Court of appeal.



The Constitutional Court requested the file District Court in Olomouc, SP. zn. 7 T

14/95, from which he found that the complainant was drafted April 3. June

1992. According to a witness, j. l., an officer in the military administration in the District, had

already in this proceeding noted that military service also rejects

civilian service because of religious convictions, and had noted that

I'd rather go to jail. The latter statement then the complainant stated

in the sense that the issue of j. l., whether she realizes that for the no-show policy

the service may go to jail, said he realizes this. Further

The Constitutional Court found that the judgment of the District Court in Olomouc, SP. zn.

32 T-76/94 of 4 December 2002. in May 1994, the complainant was convicted of a criminal

the crime his/her failure to service in the armed forces under section 269 paragraph. 1

the criminal code, because although on 16. June 1993 personally took over the

Barney, which he was saving to Board on 1 May 2004. July 1993 to

12 noon service at the military base of the military Department in this.

the service did not play, even within 24 hours after the deadline. For this

the offense, which is committed by the person who intends to avoid permanently

military active duty or special service not starting service in

the armed forces, the complainant was sentenced to imprisonment for a

12 months with a conditional postponement of a trial for 15 months. This

the judgment became legally valid on 4 October. May 1994. Furthermore, it is apparent from

that on 15 December. June 1994, the complainant took the next call-up,

He determined the obligation to take military service on 7 December.

July 1994 until 12 noon at the military cell in l. in this term

the complainant did not play. His conduct was motivated by the fact that 23. June 1994

asked for a deferment of military service. This, however, was his request

The district military administration in rejected as unreasonable. Due to the

the fact that the Authority rejected his appeal to advance the superior authority,

He turned the complainant directly to this body. Also higher pertaining

headquarters 2. Army Corps, however, his appeal was rejected by the and rejected

It was his request to review the decision outside the appeals procedure, which

He addressed to the Ministry of defence. Against those decisions in the administrative

submitted on 30 November. January 1995 of the constitutional complaint, which, however, was

resolution of the Constitutional Court, SP. zn. I. ÚS 26/95 of 18 December April 1995

rejected as manifestly unfounded, arguing that the possibility of refusing

military service for reasons of conscience or religious belief is

regulated by the civil service, and cannot therefore be the procedure under

This Act replaced the institutions delay military service, which is

based on different reasons of a temporary nature. In the meantime, was on 19.

December 1994 the complainant communicated to the accused for the crime of non-runner

service in the armed forces according to § 269 paragraph. 1 of the criminal code, which

nenastoupením should allow military service on 7 December. July 1994. For

This Act was condemned by the decisions which are the subject of this

a constitutional complaint, to the imprisonment of a duration of 12

months.



At a hearing on 18 July 2005. September 1995 presented a legal representative

the complainant, the decision of the Ministry of Justice of 4 February. September 1995,

from which it follows that his request for the mercy of the Minister of Justice

It has refused. The complainant then, to query the Court whether its activity after the conviction and

his objections in a constitutional complaint with regard to the non-refundable date fixed

the law on the civil service, can be considered as evidence that the civilian

He joined the service, if this option was given to him, he replied

evasively, when said that only then would it seriously considered and acted upon by

within the limits of the law.



At the hearing, was also questioned as a witness by j. l., an employee of the district

the military administration in the, who testified that the complainant expressly rejected

not only the military service, but also the civil service. As a proof of

He submitted the notes taken during the odvodním procedure of the day 3. June 1992. From

This document shows that the complainant stated that belongs to witnesses

Jehovah's witnesses and that the military service and civilian service, even if it is him

clearly, it's probably going to jail. The witness further stated that all

conscripts are thoroughly inform about the possibilities of the civil service and on the

the constituent declaration, which in the case of the choice of such a service must

do so, and in what period of time. The witness also acknowledged that in more cases


faced with the fact that military and civilian conscripts refuse service

argument that the civil service is also a kind of repression, which is contrary to the

their beliefs. Further confirmed that if currently it comes

someone from prison for his/her failure to service in the armed forces and

There are for example. medical reasons for revision of his obligation to the military

the service is obliged to summon him again in the nearest entrance

the term. Odpykaný punishment, therefore, is not a reason for a differentiated approach.



The subject of constitutional complaints are made by decisions of courts in criminal

control. If the constitutional complaint argued that the law, which

application of the events which are the subject of this complaint, it is

Act No. 18/1992 Coll., as amended, then the Constitutional Court

not share this view. From the evidence taken for it is obvious that this ongoing

fact, IE. j. r. conviction in criminal proceedings, were the result of his

quite clearly expresses the will not to Board or military or civilian

service, and not as a result of the fact that the time limit laid down by the law had

about the civil service and that the civil service do not, therefore, even if the

He wanted to. However, the Constitutional Court considers necessary to express themselves whether or not to

These objections.



The Constitutional Court has no doubts about the fact that the law on the civil service is

the law, which assumes that the provisions of article. 15 paragraph 1. 3 of the Charter.

The question may be whether a relatively very short time limits for exercising the right to

the alternative service law on civil service provided (on the difference

from the previously valid law No. 73/1990 Coll., which didn't set no time limits)

in conjunction with the provisions of section 2 (2). 2 of this Act, pursuant to which the

a statement received after the deadlines of no account, they don't depart from the limits of the

the constitutionality. The law on the civil service is undoubtedly the law which

the basic constitutional law limits. The Constitutional Court agrees with the thing you already

a Chamber of the Constitutional Court of CZECHOSLOVAKIA under SP. zn. PL. ÚS 79/92 of 10 March. December

1992, since the legislature is necessary to require having regard to the principles of

the rule of law and legal certainty, it defined the details for implementation of the law

rights according to art. 15 paragraph 1. 3 of the Charter, so as to avoid

the ability to interpret the law so that the implementation of the basic constitutional

rights restricted in a manner inconsistent with the principles set out in article 2(1). 4

paragraph. 3 and 4 of the Charter, or even the implementation of this law made it impossible.



The constitutional basis of the law on the civil service is contained in the article. 15 paragraph 1. 3

Of the Charter, its content is necessary, however, interpreted in conjunction with article. 9

Of the Charter, which clearly speaks of the fact that for forced labor or services cannot be

consider military service or other service provided by law instead of

compulsory military service. In this context, it is necessary to mention

the fact that in this respect Czech legislation beyond the European

Convention for the protection of human rights and fundamental freedoms, from whose article. 4

paragraph. 3 (b). (b)) it can be clearly inferred that it is not a violation of the Convention, if

legislation of the Member countries of the refusal of military service for reasons of conscience

does not recognize. The law on civil service was not already expressly covered

in the catalogue of internationally recognized human rights. Adjustment Of The United

States can be generally characterized as an edit, that after each,

who was taken away by the armed services act, requires to meet the staff

obligation, either as a soldier or as a person subject to civil

the service. Because of conscience cannot therefore be waived from any

services, as is sometimes required. The adoption of such an opinion would be in

stark contrast with the principle of equality. In addition, it should be noted that the adjustment in the

The Czech Republic is very liberal compared to other countries, in particular,

It does not provide any authentication or komisionelní review

Therefore, the civil service, and about whether a military obligation, or

fails, you shall act de facto mandatory citizen himself. Authentic card

Thus, the grounds for refusal does not require, as well as one who is not possible

He refused to do military service, the call to this service,

If his behavior clearly demonstrates that the alleged reasons of conscience

were fabricated and untrue.



If provided for in the law on civil service, that its performance must not be citizens of the

rise to an undue advantage against those who carry out basic or

substitute military service or exercise, then we can only logically infer

that would be tolerated if negotiations leading to avoid

any service, there would be a breach of the principle of equality. Otherwise,

in fact, in the rule of law must be non-compliance with the obligations laid down by law

sanctioned by. It is for the State to sanction and its kind of set, with

taking into account the nature of the offense. The legal order of the Czech Republic

the case of the no-show policy of military or civilian service provides only recourse

of the criminal law. The legislature to consider whether these cases

is it really necessary to choose only this kind of penalty. In a State that

the State wants to be legal, the legitimacy of criminal penalty

the need to protect only justified by fundamental values before the acts,

that are particularly dangerous for the company, and when other solutions

does not exist. Repression should, therefore, always had to be based on the principle of the

of subsidiarity and minimization.



The facts of the crime his/her failure to service in the armed

forces are formulated in paragraphs 269 and 270 of the criminal code,

the crime of his/her failure to civilian service, then in the section 272a, 272b or §

of the criminal code. The subject of the constitutional complaint is a decision of the courts,

which the complainant was convicted of an offence under section 269

paragraph. 1 of the criminal code. The facts of this crime

contains the definition of a relatively precise and specific when it states that anyone in

plan to avoid permanent military active service not starting service in

armed forces within 24 hours after the expiry of the period laid down in

povolávacím warrant, shall be punished by imprisonment for one to five

years of age. The essential feature of this is the intention of the facts leading to the

permanent non-runner for this service. This character will stand out even more when

compared to the substance of the offence under section 270 paragraph. 1

the criminal code, that is formulated so that the one who commits it,

albeit negligently, not starting the service in the armed forces within 24 hours after

the period laid down in the povolávacím warrant. Also, the penalty is for

This Act, not having the objective of permanent non-runner services, significantly

milder (imprisonment of up to two years). Similar is the difference between

offences under section 272a criminal act, which regulates the intentional

persistent avoidance of national service, and according to § 272b, which formulates

merits of the "plain" no-show policy of the civil service.



As follows from the constitutional complaint and the evidence taken, the complainant was

convicted of an offence under the provisions of section 269 paragraph. 1 of the criminal

the law twice. For the first time a non-runner to a military unit in the H.

July 1993, for the second time then for disobeying the mobilization order

approximately a year later. None of the courts, there was no doubt that it is

about the same two and repeated offences, and despite the fact that the complainant from

early argued that clearly no longer in the first conviction said that the injured

with the intention not to board this service permanently, although it is aware of the

penal consequences. With this defence, the Court of first degree he didn't deal

at all, the Court of appeal then considered applicable to the rejection of this

the defence that the no-show policy occurred in the second case, at another time and

that call to service was taken to another location. The solution to this

the problem lies in the opinion of the Constitutional Court, the core of the constitutional complaint.



An essential task of the Constitutional Court is a constitutional complaint for each assessment

whether the interpretation of applied legislation of court nevybočila

from the constitutional limits. (I) interpretation, which at first glance may appear to be

as the legal, may be, in the light of the particular circumstances, so

extreme that are diverted from the bounds of constitutionality. As is apparent from the provisions of article. 4

paragraph. 4 of the Charter, in applying the provisions about the limits of fundamental rights and

freedoms must be preserved, the nature and the meaning of. In addition, the Court,

who decides on guilt and punishment for criminal offences, it must respect the

the policy, which is expressed in the article. 40 para. 5 of the Charter, as well as in the article. 4

paragraph. 1 of Protocol No 7 to the Convention for the protection of human rights and fundamental

freedoms, that no one can be tried or punished again for the same Act

repeatedly, i.e. the principle of "ne bis in idem". General courts in the present

the case doubted that this principle has not been violated, the complainant

then it is the opinion of the opposite.



After considering all the circumstances, the Chamber of the Constitutional Court came to the conclusion that in the

If the complainant has challenged judicial decisions in violation of the

the principle of "ne bis in idem", and thus the above fundamental rights

guaranteed by the Constitution. If the criminal code in article 269 paragraph. 1

provides substantially more stringent punishment for the one who doesn't join the military

the service with the intention of avoiding her permanently, it is unacceptable to interpret this

the provisions so that it permanently is actually temporarily or for the short term. When such a

interpretation, the frequency of the crimes was determined by the fact the number of professions


to the service, the authority of the military administration. There is no doubt that, even after

conviction for the first such act can deliver to the mobilization

order new, its failure, however, cannot be considered as a new criminal

action, if it was in the previous judicial proceedings detected intent not to Board

the service permanently. In the opinion of the Constitutional Court the complainant at the next

profession no longer only remained on his previously revealed will of the service

not to Board. It is therefore about the same meetings and the same result, and therefore a

identical, and not a new deed. This identity cannot interfere with the change in the

individual circumstances that deed individualise, in this case

Thus the profession in another time and another place.



Conflict affected judicial decisions with the principle unrepeatability

criminal penalty for the same Act, which provides for the article. 40 para. 5

Of the Charter, as well as the article. 4 (4). 1 of Protocol No 7 to the Convention for the protection of

human rights and fundamental freedoms, the Constitutional Court had, than this

the decision to withdraw.



The Constitutional Court assumes that this will be a crucial decision for the

the general guideline for future decisions by the courts of punishment for those,

who persistently refuse to performing military service or civilian service. A valid

the Criminal Code provides, in the opinion of the Constitutional Court sufficient space

to ensure that in such cases the penalty was such an effort, to

There has been no undue advantage for those who violate the law, as opposed to those

who your obligations. While the Constitutional Court considers

It will consider the enactment of legislative power as well as other penalties than deprivation of

freedom.



The President Of The IV. the Chamber of the Constitutional Court of the Czech Republic:



JUDr. Param v in r.