Judgment no. I. ÚS 4503/12 – the Constitutional Court on expulsion for an indefinite period of time

21 August 2014

The applicant of Ukrainian nationality was found guilty of several crimes. A number of sanctions were imposed on him including the expulsion for an indefinite period of time. In his constitutional appeal, the applicant argued that such a sanction was disproportionate and it violated his right to a family life and freedom of movement. He submitted that he lived in the Czech Republic for fifteen years, twelve of which he spent living with his partner. He had no connection to Ukraine any longer because he had not been there for approximately 10 years. The courts’ justification for his expulsion merely referring to protection of health and property of Czech citizens in one sentence was not sufficient in the applicant’s view.

Every penal sanction must respect the principles of proportionality and subsidiarity of penal repression (the ultima ratio principle). When determining the length of a sanction in a concrete case, a court must – bearing in mind the ultima ratio principle – take account of four basic criteria: 1. proportionality of the sanction with respect to the nature and gravity of the crime, taking into consideration the relative gravity of a given crime within the framework of crimes in the special part of the Criminal Code; 2. individual prognosis of the offender, i.e. possibility of his or her correction; 3. the situation of the offender in terms of his or her social, cultural and family ties in host country and the country where he should be expelled to, as well as interests and welfare of the offender’s children; and 4. prognosis of risk or danger to people, property or other general interests. If such considerations are not made and reasoned, the right to a fair trial is violated as well as the nulla poena sine lege (no punishment without law) principle.

Justice Ivana Janů filed a dissent in this case. She noted that the applicant did not contest the punishment before ordinary courts and therefore his complaints concerning the expulsion’s proportionality should have been regarded as inadmissible. The Constitutional Court did not stick to its subsidiary role in this case. Justice Janů also observed that the applicant was expelled for two years before. Since this sanction had not led to correction of the applicant before, Justice Janů found it logical that he faced stricter punishment, now.