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On The Proposal To Repeal Section 9 Paragraph 1. 4 Of The Act. On The Protection Against Alcoholism

Original Language Title: o návrhu na zrušení § 9 odst. 4 zák. o ochraně před alkoholismem

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299/1997.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 30 November. September 1997 in the plenary on the proposal of the regional court

in Hradec Králové on the repeal of § 9 para. 4 of the law of the Czech National Council.

37/1989 Coll., on protection from alcoholism and other addictions,



as follows:



The provisions of § 9 para. 4 of the law of the Czech National Council No. 37/1989 Coll., on

protection from alcoholism and other addictions, is repealed on the date of

publication of the finding in the journal of laws.



Justification



The regional court in Hradec Králové under the provisions of article. 95 para. 2 of the Constitution and

§ 64 para. 4 of law No. 182/1993 Coll., on the Constitutional Court, the proposal made by the

repeal the provisions of § 9 para. 4 of Act No. 37/1989 Coll., on the protection of

from alcoholism and other addictions. The District Court concluded

that the provisions of Act No. 37/1989 Coll. is in breach of article. 8

paragraph. 6 of the Charter of fundamental rights and freedoms ("the Charter"), and therefore

According to the provisions of § 109 paragraph. 1 (b). (b)) code of civil procedure (hereinafter

"the row") in its resolution of 16 December 2004. May 1997 No. 30 Ca 67/97-8

interrupted the proceedings for review of the decision of a public authority.



The regional court in Hradec Králové comes from the fact that the District Office in

Trutnov by decision of 3 July 2001. March 1997, SP. zn. Health. SPR 5/97-ST

order the MUDr. P of the constitutional obligation to submit to alcohol treatment therapy

psychiatric hospital, which treated was left to the consideration of the

přednostky Department of psychiatric hospitals. Against this decision

Mudr. P. z. filed a timely appeal, which sought

review of the decision.



Before the regulation hearing found the regional court in Hradec Králové,

that of the obligation to submit to the constitutional treatment is decided by the District National

the Committee, now a District Office. Puts forth that article 8 (2). 6 of the Charter

lays down the cases in which a person may be taken or kept in

Constitutional health care without their consent. Such measures must be

notified within 24 hours of court which decides about this location within seven

days. The proposal for the regional court in Hradec Králové was annexed a file 30 Ca

67/97.



The challenge of the Constitutional Court has sent the case to its statement to the Chamber

the Chamber of deputies of the Parliament of the Czech Republic. Concludes that the regional court in Hradec

Kings bases its conclusion on the fact that while article. 8 (2). 6 of the Charter

deciding on the location of the person into custody confers on the courts, the provisions of

§ 9 para. 4 of Act No. 37/1989 Coll. clearly provides that the

the obligation to submit to institutional care in cases of alcohol dependence

shall be decided by the District National Committee, now a District Office.



Alcohol addiction is treated in the wards of mental hospitals either

on an outpatient basis or in the form of institutional care. Residential care dependent persons

alcohol are subjected to on a voluntary basis (they log on) or obligatory

the basis of the decision of the District Office.



The mandatory alcohol treatment treatment of these persons picked up without further in

the deadline or this mandatory treatment. If a person is

dependent on alcohol, avoiding treatment-even against their will-forwarded to the

the medical facility providing in-patient care, this

medical devices must report within 24 hours of the locally competent

Court taking over such a person. The Court then, within seven days from the date on which the

assuming such a person to a medical institution without his consent,

the resolution decides whether to take the medical establishment was

due to legal reasons.



The Charter in article 6(2). 8 (2). 6 edits that only the law stipulates, in which

cases, a person may be taken or kept in institutional health care

without his consent. One of these cases is the regulation on mandatory

constitutional treatment, alcohol treatment decided District Office pursuant to § 9

paragraph. 4 of Act No. 37/1989 Coll., Act No. 48/1997 Coll., on public

health insurance and amending and supplementing certain related

laws, is to ensure that admission to institutional care shall be

the medical establishment in the case of compulsory treatment is denied. As well as

It is not possible to treat the patient prematurely from the statutory release on the release form.

Act No. 20/1966 Coll., on the health care of the people, as amended, and also

o. s. l., as amended, is the medical establishment that always take

person without her written permission to institutional care, to

-in accordance with the requirement of the Charter-to notify such acceptance to the Court that

the location of such a person in the clinic subsequently decides. From

for this reason, the Chamber of deputies of the Parliament of the Czech Republic

considers that the procedure for placing people in the mandatory constitutional treatment according to the

§ 9 para. 4 of Act No. 37/1989 Coll. is not contrary to the Charter.



Act No. 37/1989 Coll. was approved by the required majority of members

the legislature of the day 28. March 1989, was signed by the competent

constitutional factors of the Czech Socialist Republic and has been properly declared.



Article 8 of the Charter guaranteeing personal liberty in paragraph 6 specifies the binding,

that only the law stipulates in which cases a person may be taken

or kept in institutional health care without their consent. Such

the measures shall be notified within 24 hours of court about this location

shall decide within seven days. Therefore, the only court to a final decision on

This location, on the basis of the mandatory notification requirement

medical device. The exception is the receipt and possession of

the person in the clinic that he ordered a court in another proceeding,

(e.g. pursuant to § 72 of the Criminal Code). Article. 8 (2). 6 of the Charter creates

the basis for the detenčnímu control. On the basis of it was then amended by law

No. 20/1966 Coll., Act No. 563/1991 Coll., of 5 December. December

1991, which in its substantive edit § 23 para. 4, and in particular, section 24

contains the reference to the footnote no longer article. 8 (2). 6 of the Charter, at the time

introduced by the Constitutional Act No. 23/1991 Coll.



§ 23 para. 4 of Act No. 20/1966 Coll., as amended, no longer

exhaustively the grounds can be calculated by the patient without his consent

take care. These are the following cases:



and in the case of) disease laid down in a special regulation, which can be saved

mandatory treatment,



(b) if the person posing mark) mental illness or intoxication

threatens themselves or their surroundings,



(c)) is not possible due to the health of the ill request

and as for the urgent operations needed to save a life or

health.



In § 24. law is then laid down the obligation of notification of the competent

medical devices to within 24 hours of court announced, in whose district the

It is situated, the takeover of the patient without his consent to care.



There was also an amendment to s. l., by Act No. 519/1991 Coll.

November 5, 1991, when it was inserted into the law new provisions entitled

"Control for the vote on the admissibility of the takeover or kept in the Institute

health care "and that is contained in section 191a to 191g.



Judicial control of detention under these provisions is breaking up into two

parts:



1. The proceedings on the admissibility of the takeover to the Institute, where they will examine the legal

the reasons for such removal. The Court shall make an order within seven days.

Beneficiaries have the opportunity to appeal, which is, however, without suspensive

effect.



2. If the Court had pronounced that the takeover of the person was in accordance with the legal

reasons, continue with the procedure for the vote on the admissibility of its further

the possession of and a length of this holding. Already decided by the judgment within the time limit to

three months.



The Constitutional Court was thus forced to examine whether the provisions of § 9 para. 4 of the law

No. 37/1989 Coll. is contrary to the sense article. 8 (2). 6 of the Charter. § 9 para.

4 of Act No. 37/1989 Coll.:



"(4) on the obligation to submit to institutional care, termination, or

for subsequent outpatient care is decided by the District National Committee; the decision of the

on the obligation to submit to the Constitutional Court shall examine, on a proposal from the care of the person

to which the decision relates, her guardian or a person close to her. "



It should be noted that the 37zákon has been issued yet in the old mode,

However, the text of the amendments in the part has not been changed.



That provision therefore confers on the decision of the administrative authority the obligation to

-District to the National Committee, now [according to § 5 para. 1 (b)) law

No. 425/1990 Coll., on district offices, modify their scope and

some of the other measures related to the District Office.]



In this context, it is necessary to mention the § 13 para. 2 (a). (b))

Decree No. 187/1989 Coll., which is directly linked to the provisions of § 9 para.

4 of Act No. 37/1989 Coll., it states that the medical devices

provide residential care to dependent persons on the basis of the decision of the district

the National Committee (now the District Office). The contested provision of § 9

paragraph. 4 follow also the provisions of § 9 para. 7 and § 9 para. 5.

the law, which is working with the information on avoiding institutional care, or

their institutional care.



The whole proceedings is thus subordinate to both an administrative order duplicate and

the Civil Court of law. Act No. 71/1967 Coll., on administrative proceedings

(administrative code), and the Board of management and addresses the Act No. 99/1963 Coll., as amended by


amended, refers to the Appeals Court (section 247, paragraph 2

o. s. l.). The review procedure is then built on dispozitivním and

rather than the mandatory provisions of the parties.



In addition to the duplicates in the current proceedings legislation and to move

the powers of the Court. Administrative authority refers to § 247 paragraph. 2.

with the round, IE. the head of the second part of the fifth deciding on actions brought against

decisions of administrative bodies. The decision about whether to take over there from the

for legal reasons, however, the law confers on the Charter and pursuant to section 191a et seq.. about.

with the row before the courts. For this purpose was amended by row inserting special

the chapter "Control for the vote of the admissibility of the receipt or possession of at the Institute

medical care ".



Article 8 (2). 6 of the Charter, which follows on from article 5 (3). 1 (b). (e))

Convention for the protection of human rights and fundamental freedoms, talks about the

the measures, which shall be decided by the Court, not by the decisions of other

authorities. To the revised of the row was actually taken to edit

its detention procedures (almost in the literal text with the exception of certain time limits)

the previously applicable code of civil procedure (Act No. 142/1950 Coll.). This

the adjustment was abandoned, in connection with the adoption of Act No. 20/1966 Coll.

Historically, the US has a tradition dating back to the detention centre at the proceedings

of the last century. A revised substantive modification of Act No. 20/1966

Coll., on which has been discussed above, was then fulfilled the first condition of article.

8 (2). 6 of the Charter, that only the law stipulates in which cases can

the person be taken or kept in institutional health care without their

consent. It is therefore necessary to ensure that the second condition of article 8 (2) ^.

6 of the Charter, that the location of the person without her consent to Institute health

care shall be decided by the Court.



The provisions of § 9 para. 4 of Act No. 37/1989 Coll. is inconsistent with the

the quoted article 8 para. 6 of the Charter and is unconstitutional. Therefore, The Constitutional

the Court decided about its cancellation.



This finding does not preclude the establishment of procedures to implement the measures referred to in paragraph

23 para. 4 of Act No. 20/1966 Coll., as amended.



The President of the Constitutional Court:



JUDr. Kessler v. r.



The rights to bring the different opinions on the findings in the Protocol on the acts and

on its connection to the decision, stating their name pursuant to section 14 of the Act

No. 182/1993 Coll., on the Constitutional Court, judge took advantage of JUDr. Ivana Janů.