1993/12/21 - Pl. ÚS 19/93: Lawlessness

21 December 1993

HEADNOTES:

 

1. Our new Constitution is not founded on neutrality with regard to

values, it is not simply a mere demarcation of institutions and

processes, rather it incorporates into its text also certain governing

ideas, expressing the fundamental, inviolable values of a democratic

society.  The Czech Constitution accepts and respects the principle of

legality as a part of the overall basic outline of a law-based state;

positive law does not, however, bind it merely to formal legality,

rather the interpretation and application of legal norms are

subordinated to their substantive purpose, law is qualified by respect

for the basic enacted values of a democratic society and also measures

the application of legal norms by these values.  This means that even

while there is continuity of "old laws" there is a discontinuity in

values from the "old regime". This conception of the constitutional

state rejects the formal-rational legitimacy of a regime and the formal

law-based state.  Whatever the laws of a state are, in a state which is

designated as democratic and which proclaims the principle of the

sovereignty of the people, no regime other than a democratic regime may

be considered as legitimate.  Any sort of monopoly on power, in and of

itself,

2. An indispensable component of the concept of the

limitation of the right to bring a criminal prosecution is the

intention, efforts and readiness on the part of the state to prosecute a

criminal act.  Without these prerequisites, the content of the concept

is not complete, nor can the purpose of this legal institute be

fulfilled.  That happens only if there has been a long-term interaction

of two elements:  the intention and the efforts of the state to punish

an offender and the ongoing danger to the offender that he may be

punished, both giving a real meaning to the institute of the limitation

of actions.  If the state does not want to prosecute certain criminal

acts or certain offenders, then the limitation of actions is pointless: 

in such cases, the running of the limitation period does not take place

in reality and the limitation of actions, in and of itself, is

fictitious.  

3. Neither in the Czech Republic, nor in other

democratic states does the issue of the procedural requirements for a

criminal prosecution in general, and that of the limitation of actions

in particular, rank among the principal fundamental rights and basic

freedoms which form a part of the constitutional order of the Czech

Republic and, thus, take the place of the usual chapter in a

constitution on fundamental rights and basic freedoms found in other

constitutions. Neither the Constitution nor the Charter of Fundamental

(and not of other) Rights and Basic Freedoms resolve detailed issues of

criminal law, but set down, in the first place, uncontested and basic

constitutive principles of the state and of law.  Article 40, para. 6 of

the Charter of Fundamental Rights and Basic Freedoms1) deals with the

issue of which criminal acts may in principle be prosecuted (namely

those which were defined by law at the time the act was committed) and

does not govern the issue of for how long these acts may be prosecuted.
 

 

CZECH REPUBLIC

CONSTITTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


 On

21 December 1993, the Plenum of the Constitutional Court of the Czech

Republic, concerning the petition submitted by a group of Deputies to

the Parliament of the Czech Republic seeking the annulment of Act No.

198/1993 Coll., regarding the Lawlessness of the Communist Regime and

Resistance to It, decided thusly: The petition is rejected.
 


REASONING
 

On

15 September 1993, a group of 41 Deputies of the Parliament of the

Czech Republic submitted a petition requesting that the Constitutional

Court, on the basis of Article 87, para. 1, letter a) of the

Constitution of the Czech Republic, annul Act No. 198/1993 Coll.,

regarding the Lawlessness of the Communist Regime and Resistance to It,

due to its incompatibility with the Constitution of the Czech Republic,

the Charter of Fundamental Rights and Basic Freedoms, the Constitutional

Act of the Czech National Council No. 4/1993 Coll., on Measures

connected with the Dissolution of the Czech and Slovak Federal Republic,

and certain international treaties.
 

Since

the submission of the petition met the requirements of § 64 of Act No.

182/1993 Coll., on the Constitutional Court, and the petition was

admissible under § 66 of the same statute, the Constitutional Court

instituted a proceeding and requested the Parliament of the Czech

Republic to give its opinion on the petition within the time period

designated by law.
 

The Constitutional Court classified the raised objections into three groups:
A. Objections to §§ 1 through 4 of Act No. 198/1993 Coll.2)
B. Objections to § 5 of Act No. 198/1993 Coll.4)
C. Objections to §§ 6 and 8 of Act No. 198/1993 Coll. 6) 7)
 


 A. Objections to § 1 through 4 of Act No. 198/1993 Coll.2)
 

The

overall conceptual approach to the problems of the contested statute

are expressed primarily in points 2.1, 2.2 and 2.3 of the petition.  In

particular, it is stated in these points that Czech law is founded on

the sovereignty of statutory law and on the principal of legality

derived from it.  From this point of view, the petitioners criticize the

provisions of § 2, para. 1 of the statute2), according to which the

political regime during the period from 1948 - 1989 was illegitimate,

and label this statement as "unconstitutional".  It is clear from the

context that this term does not mean a situation that is "praeter

constitutionem" [outside of the constitution] but "contra

constitutionem" [against the constitution], therefore

anti-constitutionality.  The reasoning of the group's opinion makes

reference to the fact that the Czech Republic is one of the legitimate

successor states to the now defunct Czechoslovakia and that the

inherited statutes and other legal regulations, as well as the legal

obligations of the former Czechoslovakia remain in force in it.  This

"substantive continuity of domestic and international rights" is,

according to the petitioners, an indication of the legitimacy of the

governmental and political regime during the period from 1948 - 1989.
 

The

petitioners object that a doctrinaire evaluation of an historical

period of the former Czechoslovakia, introduced in the form of a

statute, excludes other opinions and conclusions resulting from

scholarly knowledge of historical facts, by which means the freedom of

research is restricted (Article 15, para. 2 of the Czech Charter of

Fundamental Rights and Basic Freedoms3)).  Then in points three and

four, they make arguments against the attempt - evidently presumed - on

the part of the legislators to understand and interpret the provisions

of §§ 1 through 4 of Act No. 198/1993 Coll.2) as the basis for sanctions

in criminal law, employment law and in other areas of the law. 

According to the opinion of the petitioners, with the phrasing

concerning crimes, persecution, murder and so forth, as well as the

phrasing concerning the responsibility or joint responsibility of

persons, the statute creates the impression that concepts bearing a

direct relationship to substantive criminal law are involved, and that

this responsibility or joint responsibility is borne by an entire group

of persons for whom not even the declaratory nature of the provisions

rules out collective or individual imposition of non-criminal sanctions.
 

The

explanatory report for the statute proceeds from the fact that ". . .

with the exception of the very brief Act No. 480/1991 Coll., concerning

the Period of Non-Freedom, ...there has not been a more comprehensive

definition and characterization of the injustice and crime of the

dictatorship, by which the whole society became so deeply and

systematically marked.  The society had very bad feelings about this

absence of legal regulation, especially in relation to particular

persons who were the persons responsible for the mentioned state of

affairs and were not punished for their crimes, while on the other hand,

no moral exoneration of the opponents of the communist regime took

place.
 

In the Preamble and

the whole first part of the statute (§§ 1 through 4), it is asserted

that the Communist Party of Czechoslovakia, its leadership and its

members are responsible for the manner of rule during the period from

1948 - 1989, then the characteristics of this manner of rule are

mentioned, and § 1 describes the approach " ...which the communist

regime, its active supporters and those exercising power used in its

decision-making about directing the government and about the fate of the

citizens" (Explanatory report).  Thereafter, it expresses the joint

responsibility of those who supported the communist regime for crimes

committed and other arbitrary acts (§ 1, para. 2), a regime founded on

the basis of communist ideology is declared to be criminal, illegitimate

and abominable (§ 2, para. 1), as is likewise the Communist Party of

Czechoslovakia, as well as other organizations founded upon the same

ideology (§ 2, para. 2). §§ 3 and 4 express moral recognition of those

citizens who put up resistance to this regime, as well as of its

innocent victims.
 

The

evaluation of individual objections depends on the determination - a

limine fori - whether and to what extent these provisions are legal

norms of an imperative or of a dispositive nature which bind the state

or give it discretion to act in a certain way with this or some other

legal consequences for persons, groups of persons or organizations.
 

It

is possible to fully concur with the opinion of the group of Deputies

that the sentences in the first part of the statute have only a general

character, without at the same time conceding that they thereby become

binding legal norms.  It is also possible to agree, again without

conceding them to be binding legal norms, that they are provisions which

are worded "axiomatically and broadly", that they do not make use of

precisely and specifically defined concepts, that established legal

concepts with precise contents have not been used, as well as with the

designation of the sentences as declaratory norms.
 

Contrary

to the assertion of the petitioners, however, neither the text of the

statute itself nor the Explanatory Report give any grounds at all for

inferring that the first part of Act No. 198/1993 Coll., regarding the

Lawlessness of the Communist Regime and Resistance to It, might have

created, in the area of substantive criminal law or in some other area

of the law, a legal duty or a statutory power of the state to prosecute

certain persons, or to inflict non-criminal sanctions upon them.  The

precondition for a criminal act is the definition of its elements.

Nothing in §§ 1 through 42) can be understood as the designation of the

material elements of a criminal act.
 

The

first part of the statute represents the moral-political viewpoint of

the Czech Parliament, the purpose of and the grounds for which are

explained in the above-mentioned quotation from the Explanatory Report. 

The first four paragraphs of the statute are concerned with the nature

of the regime, its specific aims and methods and its structural

characteristics, not at all with the nature of individuals who, out of

some motive or another, were members of organizations upon which the

regime relied.
 

The statute

discusses the "joint responsibility" of individuals on two levels:  the

joint responsibility of the members of the Communist Party of

Czechoslovakia (KSČ) for the manner of rule in the years 1948 - 1989 and

further the joint responsibility of those "who actively supported the

communist regime" (§ 1, paras. 1 and 2 of Act No. 198/1993 Coll.2)) - in

this instance for the crimes committed by the regime.  In both cases,

the differentiation of the levels of political and moral, and not of

criminal, responsibility of individuals is concerned, and is

characteristic of Parliament's initiative to reflect upon the past.
 

The

joint responsibility of members of the KSČ for the manner of rule is

expressed only in the Preamble to the statute and should be understood

as an effort to instigate reflection on the part of those who were, or

from then on continue to be, members of an organization, the leadership

and political activities of which over and over again departed markedly,

not only from the basic values of humanity and of a democratic

law-based state, but also from its own program and laws.
 

This

distinction in the degree of moral joint responsibility results from

the nature of a totalitarian dictatorship.  It is an erroneous notion to

assume that a party which conducts itself toward society in a

dictatorial manner is able to act internally in a democratic fashion. 

This party was also stratified between the governing and the governed,

its membership base was manipulated by the centers of power and, at the

same time, it became an instrument, even a certain type of captive of

those who "actively supported the regime."
 

We

cannot criticize the Parliament for the fact that, in its

moral-political, jural-political proclamation, it did not make use of

customary legal terminology.  In this respect, this portion differs from

§§ 5 and 6 of the statute, in which - and in which alone - crimes are

not spoken of, but which uses the precise terminology of criminal law: 

"criminal act".  At the same time, the Explanatory Report gives no

evidence of any effort to introduce a new definition of the material

elements of a crime into the criminal law, when it explains § 2 with the

words:  "With the exception of cases involving the infringement of the

provisions of the criminal law then in force, the words abomination and

criminality must be considered rather as terminology from the domains of

politics and morals."
 

If

the declaratory character of the provisions of the first part of Act No.

198/1993 Coll. is undeniable, it is not necessary to scrutinize the

petitioners' particular arguments - with the exception of three of them.
 

The

first of these objections states that a declaratory provision does not

exclude the possibility of making use of non-penal sanctions contained

in other legal norms, for example, in statutes governing the rights and

duties of educational employees and research assistants, journalists,

writers and artists. This objection must be rejected because it does not

relate to the contested statute itself but to other legal norms not

more specifically designated, none of the legal substance of which is

changed by Act No. 198/1993 Coll.  Also, the term "non-criminal

sanctions" is vague.  The so-called lustration law, for example, does

not impose sanctions, rather it sets the prerequisites for holding

certain offices which, in consideration of their nature and political

significance, have a constitutional stature in those countries founded

on the principle of the law-based state.
 

Likewise

the petitioners make the further objection that the "joint

responsibility" or "collective responsibility" dealt with in the first

part of the contested statute is "firstly . . . joint responsibility

under criminal law", but this objection must be rejected because this

part of the statute is of a moral-political, and not a juridical,

character.  This means that the appraisal of an historical period of the

former Czechoslovakia in no way excludes opinions and conclusions other

than those expressed in the text of Parliament's statute.  The freedom

of research guaranteed by Article 15, para. 2 of the Charter3) as well

as by international legal acts is not affected thereby.  From the point

of view of scholarly and journalistic activities, the evaluation

contained in the contested statute does not represent a binding opinion,

"not even", as the group of Deputies' petition rightly observed, "in

the case that such sentences are contained in legal acts designated as

statutes" (page 2 of the petition).
 

The

petitioners find a further element of anti-constitutionality in the

intention " ...that the statute serve an interpretive function in

relation to court decisions" - an intention which the legislators never

expressed in the text of the statute.  A relevant intention is one that

is expressed in a legally relevant manner.  An objection to the wording

of an Explanatory Report cannot be the subject of review or a decision

of the Constitutional Court.  Moreover, the conditional nature of the

Explanatory Report's expression ("should serve ...if need be also for a

decision of the court in this field") does not show a clear intention.
 

Also

the introductory declaration of Parliament, " . . . that in its future

activities it will use this statute as its point of departure", cannot

be considered a legal norm which would bind Parliament.  It concerns an

expression of political will of a programmatic character, a will

established at a certain time and with a certain line-up of forces in

Parliament, a fact which may not be interpreted inconsistently with the

right of Parliament, in the area and within the bounds of its

competence, to adjust the matter differently at another time, nor

inconsistently with the principle of the free exchange of views on the

floor of the Parliament.
 

The

constitutional foundation of a democratic state does not deny the

Parliament the right to express its will as well as its moral and

political viewpoint by means which it considers suitable and reasonable

within the confines of general legal principles - and possibly in the

form of a statute, if it considers it suitable and expedient to stress

its significance in the society and the scope of its declaration in the

legal form of a statute.  Such an example was the statute issued under

the First Republic which stated that T. G. Masaryk deserves credit for

the building of the state.
 

On

the whole, it is evident that the statute under attack does not define

the material elements of any new criminal act and that nothing analogous

can be deduced from the text of the first part of it.  In addition,

Article 40, para. 6 of the Charter of Fundamental Rights and Basic

Freedoms1) applies as a general norm for judging any sort of act from

the perspective of its criminal nature, and according to it "criminal

liability for an act shall be considered and punishment shall be imposed

in accordance with the law in force when the act was committed.  A

later statute shall be applied only if it is more favorable to the

defendant."
 

However, the

objections of the petitioners are directed at certain general issues of

the fundamentals of Czech law and the nature of the governmental and

political system during the period from 1948 to 1989.  Above all, the

group of Deputies objects that the provisions of Sec. 2, para. 1 of Act

No. 198/1993 Coll. contain "the unconstitutional statement that the

political system during the period from 1948 to 1989 was illegitimate."

Its assertion concerning the legitimacy of this regime rests upon the

principle of the continuity of law, the given reception of the domestic

legal acts and the continuity of the international legal obligations

from the period of the "old regime"; on page 3 of its petition, it

concluded:  "If the statutory statement concerning the illegitimacy of

the governmental and political system during the period from 1948 to

1989 were correct and remained in effect, than the legal acts adopted

during the stated period would no longer have been valid as of 1 August

1993; naturally, this did not occur, for legal certainty is one of the

basic characteristics of a state based upon law, and that certainty

depends upon the constancy of legally expressed principles in particular

areas of the law, on the constancy of legal relations" and so on (point

2.3 of the petition).
 

It is

necessary to evaluate an objection of such a fundamental nature in

relation to the basic outline of the Constitution and the constitutional

foundation of the Czech Republic.
 

As

is known, the process of the creation of the modern constitutional

state in Central Europe was not completed until after the First World

War.  At the same time, remarkable results in the positivistic

elaboration of procedural rules and guarantees had already been achieved

earlier, and they strengthened citizens' legal certainty and the

stability of laws.  However, the positivistic tradition carried over

into the post-war constitutions (including the Czechoslovak constitution

from 1920), in its later development many times exposed its weakness. 

Constitutions enacted on this basis are neutral with regard to values: 

they form the institutional and procedural framework, fillable with very

diverse political content, because the criteria for constitutionality

then becomes the observance of the jurisdictional and procedural

framework of constitutional institutions and procedures, thus criteria

of a formal rational nature.  As a consequence of this, in Germany the

National Socialist domination was accepted as legal, even though it

gnawed out the substance and in the end destroyed the basic foundations

of the Weimar democracy.  After the war, this legalistic conception of

political legitimacy made it possible for Klement Gottwald to "fill up

old casks with new wine".  Then in 1948 he was able, by the formal

observance of constitutional procedures, to "legitimate" the February

Putsch.  In the face of injustice, the principle that "law is law"

revealed itself to be powerless.  Consciousness of the fact that

injustice is still injustice, even though it is wrapped in the cloak of

law, was reflected in the post-war German Constitution and, at the

present time, in the Constitution of the Czech Republic.
 

Our

new Constitution is not founded on neutrality with regard to values, it

is not simply a mere demarcation of institutions and processes, rather

it incorporates into its text also certain governing ideas, expressing

the fundamental, inviolable values of a democratic society.  The Czech

Constitution accepts and respects the principle of legality as a part of

the overall basic outline of a law-based state; positive law does not,

however, bind it merely to formal legality, rather the interpretation

and application of legal norms are subordinated to their substantive

purpose, law is qualified by respect for the basic enacted values of a

democratic society and also measures the application of legal norms by

these values.  This means that even while there is continuity of "old

laws" there is a discontinuity in values from the "old regime".
 

This

conception of the constitutional state rejects the formal-rational

legitimacy of a regime and the formal law-based state.  Whatever the

laws of a state are, in a state which is designated as democratic and

which proclaims the principle of the sovereignty of the people, no

regime other than a democratic regime may be considered as legitimate. 

Any sort of monopoly on power, in and of itself, rules out the

possibility of democratic legitimacy.  The starting point of our

Constitution is the substantive-rational conception of legitimacy and

the law-based state.  In the overall structure of a democratic

constitutional state and of a functioning democracy, legality mutatis

mutandis undoubtedly embodies a part of the legitimacy of the regime,

however, these concepts are not quite interchangeable.  In a regime, in

which hardly anybody was unaware that the elections were not elections,

that the parties were not parties, that democracy was not democracy and

that the law was not law [at least not in the sense of a law-based

state, since the application of the law was politically schizophrenic

and everywhere discarded when the interests of those governing entered

into the picture], in such a regime it is even less possible to reduce

the concept of legitimacy to that of the formal legality of normative

legal regulation.
 

A

political regime is legitimate if, on the whole, the majority of

citizens accepts it.  Political regimes which lack democratic substance

avoid empirical verifications of legitimacy in favor of ideological

arguments, primarily from the perspective of formal-rational legality. 

In this they are facilitated by the fact that consolidated governmental

power is not just a fact of political power, but at the same time of

legally organized power.  However, it is precisely in such a regime that

politics most differs from law and legality from legitimacy.  For this

reason, not even the continuity of law signifies recognition of the

legitimacy of the communist regime.  It cannot be asserted that every

act or all conduct, so long as it does not cross over the line given by

law, is legitimate, because, in this way, legality becomes a convenient

substitute for an absent legitimacy.
 

The

legitimacy of a political regime cannot rest solely upon the formal

legal component because the values and principles upon which a regime is

built are not just of a legal, but first of all of a political nature. 

Those principles of the Czech Constitution, such as the sovereignty of

the people, representative democracy, and a law-based state, are

principles of the political organization of society, which are not

entirely normatively definable.  Positive law proceeds from them,

however normative regulation does not make up the full contents of these

principles - something apart from it remains.
 

For

these reasons, on the basis of the substantive rational starting point

of the Czech Constitution, the petitioners' concept, that the political

regime during the years from 1948 to 1989 was legitimate, must be

rejected. The phrasing of § 2, para. 12) of the contested statute

concerning the illegitimate nature of that regime cannot be considered

unconstitutional.
 

The

petitioners' assertion that "Czech law is based on the sovereignty of

statutory law" is the point of departure for their formal, legalistic

arguments.  For that is substituted a higher principle, namely the

principle of the sovereignty of the people, who are the bearers of

supra-governmental power, constitutive power, while statutes are the

product of an already constituted and institutionalized internal state

power.  Within the concept of a constitutional state, there are no

longer sovereign powers, there are only competencies.  Czech law is not

founded on the sovereignty of statutory law.  The precedence of statutes

over legal norms of a lower order does not signify their sovereignty. 

It is not possible to speak of the sovereignty of statutory law, not

even in the sense of the scope of the legislative power within the

bounds of a constitutional state.  Within the concept of the

constitutional state, upon which the Czech Constitution is based, law

and justice are not subjects for the unfettered discretion of the

legislators, not even subjects for a statute, for the legislators are

bound by certain basic values which the Constitution has declared as

inviolable.  For example, the Czech Constitution provides in Article 9,

para. 2 that "changes of the essential requirements for a democratic

law-based state are impermissible." Thus, the constitutive principles of

a democratic society in the framework of this Constitution are placed

beyond the legislative power and are thus "ultra vires" of the

Parliament.  A constitutional state stands or falls with these

principles.  To do away with any of these principles, by whatever means

carried out, whether by a majority or an entirely unanimous decision of

Parliament, could not be otherwise interpreted than as the elimination

of this constitutional state as such.
 


B. Objections to § 5 of Act No. 198/1993 Coll.4)
 

The

main object of the group of Deputies' criticism is § 5 of Act No.

198/1993 Coll., according to which "the period of time from 25 February

1948 until 29 December 1989 shall not be counted as part of the

limitation period for criminal acts if, due to political reasons

incompatible with the basic principles of the legal order of a

democratic state, [a person] was not finally and validly convicted or

the charges [against him] were dismissed."
 

According

to the petitioners' view " ...the fact that state bodies, which no

longer exist and formerly had competence over criminal matters, were,

for whatever reason, inactive or ineffectual and brought on the

termination of criminal liability for certain acts by virtue of the

expiration of the limitations period, was not and is not a component of

the subjective element [the mens rea or culpability requirement] of a

criminal act, came about independently of the will of the offender, and

therefore may not be to his detriment."
 

Thus,

the Constitutional Court is, in the first place, concerned with the

question why the "formerly competent state bodies [were] inactive or

ineffectual", and further with the question whether the reasons for

their failure to criminally prosecute politically shielded offenses, by

their significance, their extent and their consequences to society,

justify the measures in § 5 of Act No. 198/1993 Coll.4)
 

At

the same time, the Constitutional Court proceeds from the recognition

that the constitutional law texts of the communist regime merely

formulated a principle of legality that was general and equally

applicable to all (or the so-called socialist legality).  As early as

the Constitution of 9 May (No. 150/1948 Coll.), the duty to uphold the

constitution and laws (§ 30) was imposed on every citizen regardless of

office or official position.  Then even more markedly, the Constitution

from 1960 (No. 100/1960 Coll., as later amended), in its Article 17,

para. 1, imposed upon citizens, as well as upon state and societal

organizations, the observance of legality; in Article 34 it provided

that citizens are obliged to uphold the constitution and laws; Article

104 placed the duty to supervise the observance of the laws upon the

offices of the prosecutor; and Article 106a required the submission of

reports on the state of socialist legality.
 

However,

these legal norms became fictional and hollow whenever the party

recognized such to be advantageous for its political interests.  Its

monopoly on political and governmental power and the bureaucratically

centralized organization of them were constructed upon this simple

expedient, and they resulted, never from the division, but from the

concentration of power and from firmly linking the political and

governmental bodies, as well as from the lack of basic democratic

relations in society.  The anchoring of the Communist Party's leading

role in society and state (in Article 4 of the 1960 Constitution) was

not the cause, rather the resulting manifestation, of the realities

which had much earlier led to the strengthening of this power monopoly.
 

According

to a commentary on the Czechoslovak Constitution published in Prague in

1988 (under the principal editing of St. Zdobinský), in addition to

using direct political action, the Communist Party of Czechoslovakia

also accomplished its leading role, in particular, "by means of state

bodies, principally legislative committees, national committees, state

administrative bodies, courts and the procurator" (page 68).  The

authorities in charge of the protection of legality thus became

instruments of the central monopoly power.
 

In

the period from 1948 to 1989, the regime of illegality that went

unprosecuted attained a massive scope:  starting with the purges in

1948, through the illegal way in which agriculture was collectivized,

the transfer of 77,500 employees of administrative bodies to

manufacturing work in 1951, the arrests and executions in the context of

the so-called fight against agents of imperialism, to the preparations

for invasion of the Warsaw Pact armies, the illegality of the so-called

normalization process and the firings and prosecutions of political

dissidents on a massive scale.
 

Documents

from that period show not only the amount of instances in which

political and governmental bodies and their agents violated in a gross

fashion the laws then in force, but also several of the means with which

it was possible.  They concerned the system of the genuine subjugation

of all institutions and organizations in the government to the political

directives of the governing party and to decisions of persons

influential in places of power.  Such decisions were not regulated

either by the Constitution or by other legal norms:  these decisions

were received in the constitutional and political hinterland, often only

as oral instructions or as requests communicated by telephone.
 

A

onetime employee of a body of the Central Committee of the Czechoslovak

Communist Party (ÚV KSČ), the historian Karel Kaplan, who was a member

of the party's commission investigating matters relating to the

political trials of the 1950's quoted, in 1976 in his open letter to

Vasil Bilak, the testimony of Ladislav Kopøiva, who was the Minister of

State Security in 1950-1951.  When the commission began to discuss the

issue of Kopøiva's responsibility for mass arrests and illegal

convictions, Karel Kaplan wrote that Kopøiva defended himself with these

words:  "I was just carrying out the orders of the Party.  It is, after

all, absolutely clear that I could not have arrested ministers and the

General Secretary of the Party on my own initiative.  However, if I had

not carried out this order, I would have been convicted together with

the others (letter published in Hans-Peter Riese:  Citizen's Initiatives

for Human Rights, Europäische Verlangsanstalt 1977, page 105).
 

It

follows from this fact that Act No. 198/1993 Coll. is linked to Act No.

480/1991, on the Period of Non-Freedom, which in § 1 describes the

ongoing and massive way in which legality was violated by the communist

regime, in these words:  "During the period from 1948 to 1989, the

communist regime violated human rights as well as its own laws."
 

Although

the Deputies' petition seeking the annulment of the statute regarding

the Lawlessness of the Communist Regime and Resistance to It, does not

generally dispute that, during the given period, illegal activities

occurred and that the state did not prosecute them, even though it knew

about them; however, it is clear from the type of arguments they make

that, as regards the extent and implications of these cases, they do not

consider them worthy of special attention or special resolution. 

Rather, the group of Deputies bases its arguments on juristically worded

objections which can be summarized as follows:
1) paragraph five4)

creates a new legal impediment to the limitation of actions in the sense

meant under § 67, para. 2 of the Criminal Act.  By excluding the period

from 25 February 1948 until 29 December 1989 from the running of the

limitation period, it considerably extends the limitation period,

leading to the destabilization of rights and an infringement of

citizens' legal certainty;
2) paragraph five4) infringes a principle

of law-based states, that criminal liability may not be revived once it

has been extinguished by the expiration of the limitation period, and

it introduces retroactive effect (retroactivity) of statutes, otherwise

permissible only in instances where the subsequent statute is more

favorable to the offender.  According to the petitioners, this situation

violates Article 40, para. 6 of the Charter of Fundamental Rights and

Basic Freedoms1), as well as the Czech Republic's international legal

obligations;
3) alongside the preceding argument on the

anti-constitutionality of retroactivity, the petition also raises its

incompatibility with Article 1 of the Charter5) concerning the equality

of all persons before the law and Article 40, para. 6 of the Charter,

1)  according to which the criminal liability of an act should be judged

in accordance with the laws in force when the act was committed.
 


Ad B/1
 

The

introduction of new legal impediments to the running of the statutory

period limiting the right to bring a criminal prosecution is not, in and

of itself, unconstitutional, which means that the Constitutional Court

would not be required to deal with the matter at all.  However, this

claim relates to issues which affect the evaluation of the other

objections raised against § 5 of Act No. 198/1993 Coll.,4) so that we

can not pass over it.
 

Act

No. 198/1993 Coll. itself does not alter the regulation of the legal

institute of the limitation of criminal prosecutions.  According to §

67, para. 2 of the Criminal Act No. 140/1961 Coll., as subsequently

amended, periods of time when it was not possible to bring an offender

before a court due to legal impediments, as well as periods when he

remained abroad, are not counted as part of the limitation period.  Nor

does the length of the limitation period set down in § 67, para. 1 of

the Criminal Act change:  it is 20 years when the act permits the

imposition of an exceptional punishment, ten years if the upper limit of

the sentencing scale is likewise ten years, five years if the

punishment could be as long as three years, and three years for other

criminal acts.
 

Paragraph

five of Act No. 198/1993 Coll.4) neither modifies the scale of the

limitation period nor creates any further (new) legal impediments to the

running of the limitation period beyond those which, on the basis of §

67, para. 2 of the Criminal Act, already exist (a procedural exemption

under the Code of Criminal Procedure, in particular an exemption from

the jurisdiction of bodies active in criminal proceedings under § 10 of

the Code of Criminal Procedure).
 

According

to its sense, § 5 of Act No. 198/1993 Coll.4) does not establish a new

impediment, rather, for criminal acts, which on political grounds were

not prosecuted by the regime then in power, it declares the period of

time during which the limitation period could not run, even though it

should have run.  Therefore, in assessing § 5 of Act No. 198/1993

Coll.,4) we are not concerned either generally with the institute of the

limitation of actions as such, or with the introduction of a new

statutory impediment to the running of the limitation period, rather

with the question whether the institute of the limitation of actions

should be viewed as real or as fictional for a period when the

infringement of legality in the entire sphere of legal life became a

component of the politically as well as governmentally protected regime

of illegality.  Paragraph five of Act 198/1993 Coll.4) is not a

constitutive norm, rather a declaratory norm.  It is merely a

declaration that during a certain stretch of time and for a certain type

of criminal act the limitation period could not run, as well as the

reasons therefor.  It is well-known that, apart from those areas of

societal and individual life where the legal order from 1948 to 1989

retained a certain real significance and was based on legality, there

were also spheres of the ruling class' political interest in which a

condition of legal uncertainty existed and which the regime maintained

as a measure of preventive self-defense and as an instrument for the

manipulation of society.
 

The

criminal behavior of persons in political and governmental positions,

inspired or tolerated by the political and governmental leadership, was a

component of this peculiar regime when, in consideration of its actual

or supposed interests, the governing class found it expedient to

contravene even its own laws.  The group of Deputies is not at all

credible in its arguments that the limitation period was running during

that era even for this category of governmental and political criminal

behavior, that carried out entirely by the state.  Political power

founded on violence should, in principle, take care not to rid itself of

those who are carrying out its violence.  The state became much rather a

guarantor of their non-sanctionability and their actual criminal law

immunity.  Naturally, the impediment to their criminal prosecution could

not be expressed publicly in the form of positive law.  This impediment

was the consequence of the poor condition of legality in this country,

later even the elevation to a constitutional principle of the leading

role of the KSÈ in the state and society, but especially the direct

result of the illegal practices of those in power, who, to the extent of

their interests, guaranteed in advance that the offender would be

"legibus absolutus" [legally absolved].
 

An

indispensable component of the concept of the limitation of the right

to bring a criminal prosecution is the intention, efforts and readiness

on the part of the state to prosecute a criminal act.  Without these

prerequisites, the content of the concept is not complete, nor can the

purpose of this legal institute be fulfilled.  That happens only if

there has been a long-term interaction of two elements:  the intention

and the efforts of the state to punish an offender and the ongoing

danger to the offender that he may be punished, both giving a real

meaning to the institute of the limitation of actions.  If the state

does not want to prosecute certain criminal acts or certain offenders,

then the limitation of actions is pointless:  in such cases, the running

of the limitation period does not take place in reality and the

limitation of actions, in and of itself, is fictitious.  Written law is

deprived of the possibility of being applied.  In order for a criminal

act to become statute-barred, it would be necessary for the process

involved in the running of the limitation period to proceed, that is, a

period of time during which the state makes efforts to criminally

prosecute the offender is necessary.  An action is barred at the end of

the limitation period, only if at that time the ongoing efforts of the

state to prosecute a criminal act remain futile.  This prerequisite

cannot be met for the category of politically protected offenses from

1948 until 1989.  The condition of mass, state-protected illegal

activities was not the consequence of individual errors, blunders,

negligence or misdeeds, which would have left open some possibility for

criminal prosecution, rather it was the consequence of the purposeful

and collective behavior of the political and state authorities as a

whole, which ruled out criminal prosecution in advance.  By these means,

the protection of offenders became as universal as the system of power.
 

Therefore,

we cannot agree with the petitioners' position that an a priori

awareness of the non-prosecutability of certain offenses was not a part

of the subjective element of these criminal acts and that this "quasi

limitation of actions" ran independently of the intent of the offender. 

The situation is different for offenders under the political protection

of the state.  Their criminal act was de facto "statute-barred", even

before it was committed.  This fact sometimes functioned precisely as an

incentive to additional criminal acts.  To understand the period of

time which passed from the commission of their criminal acts as the

running of a "limitation period" which was not permitted to run, would

mean a quite paradoxical interpretation of a law-based state.  That

would be the validation of the type of "legal certainty" which the

perpetrators of such criminal acts already had when they began their

activities and which consists of state assured immunity from criminal

liability.
 

This "legal

certainty" of offenders is, however, a source of legal uncertainty to

citizens (and vice versa).  In a contest of these two types of

certainty, the Constitutional Court gives priority to the certainty of

civil society, which is in keeping with the idea of a law-based state. 

Some other solution would mean conferring upon a totalitarian

dictatorship a stamp of approval as a law-based state, a dangerous

portent for the future:  a sign that crime may become non-criminal, so

long as it is organized on a massive scale and carried out over a long

period of time under the protection of an organization so empowered by

the state.  That would mean the loss of credibility of the present

law-based state, as well as the current infringement of Article 9, para.

3 of the Constitution of the Czech Republic " ...legal norms may not be

interpreted so as to justify eliminating or jeopardizing the

foundations of a democratic state."
 

It

cannot be considered reasonable to make a claim to legal certainty of

this sort, not even from the subjective perspective of an offender.  A

requirement for a law-based state is the maintenance of a state of trust

in the durability of legal rules.  The perpetrators of this type of

criminal activity do not have the continuity of written law in mind,

rather that of unwritten practices. It would be an infringement of the

continuity of written law, if the violation of law, which was committed

under the protection of the state, could not even now be criminally

prosecuted.
 

All of these

individual points of view gain significance in direct proportion to the

considerable extent to which this form of state protected or tolerated

political criminal behavior was committed.  In forced labor camps and in

the so-called auxiliary technical battalions alone, over 200,000

persons were held during this period of time.  As is known, nearly a

quarter of a million persons have already been rehabilitated on the

basis of the statute on court rehabilitation.
 

Although

we take into consideration that in many of the cases it may only have

been a matter of the unreasonable harshness of the criminal law regime

then in force, or "strict law", in may of these cases of rehabilitation,

the power apparatus' violation of its own legal principles was an

important, if not the principal factor.
 


Ad B/2
 

One

of the principal objections to the provisions of § 5 of Act No.

198/1993 Coll.,4) concerning the Lawlessness of the Communist Regime and

Resistance to It, makes reference to its inconsistency with Article 40,

para. 6 of the Charter of Fundamental Rights and Basic Freedoms. 1) The

petitioners are working from the assumption that criminal acts, with

which § 5 of Act No. 198/1993 Coll.4) are concerned, are for the most

part statute-barred.  In the view of the petitioners, these acts thus

become no longer punishable, yet, in spite of that, they should once

again become, with retroactive effect, the potential objects of criminal

prosecution.  In their opinion, this outcome is inconsistent with the

prohibition of retroactivity in criminal law, expressed in Article 40,

para. 6 of the Charter of Fundamental Rights and Basic Freedoms. 1) They

contend that any criminal liability which is extinguished by the

expiration of the limitation period may not be revived and that, by

means of a subsequent law, it is only possible to decriminalize an act

or to abolish fines, as well as to reduce, but never to extend, the

period of limitations.  They further assert that to introduce a new

definition of the material elements of a criminal act, or to set a

higher sentence rate or more severe conditions for criminal liability,

including the repeal of the statute of limitation for certain criminal

acts and new legal impediments to the running of the limitation period,

is permissible only prospectively.
 

The

petitioners come to their conclusions regarding the retroactive effect

of a statute in the case of § 5 of Act No. 198/1993 Coll.4) on the basis

of the substantive law understanding of the institute of the limitation

of criminal prosecutions, although not even in criminal law doctrine

has the ongoing dispute between the proponents of the substantive nature

of the institute of the limitation of actions and the proponents of its

procedural nature been resolved.
 

For

this reason, it is necessary to assess to what extent the provisions of

Article 40, para. 6 of the Charter of Fundamental Rights and Basic

Freedoms1) or Article 15 of the International Convention on Civil and

Political Rights (No. 120/1976 Coll.) prevents a subsequent amendment to

the procedural rules, making possible the subsequent running of the

limitation period in those special cases when the prior political regime

prevented it from running.
 

Under

Article 40, para. 6 of the Charter, 1) criminal liability for an act

should be judged and punishment imposed in accordance with the laws in

effect when the act took place.  A subsequent statute shall be applied

if it is more favorable to the offender.  Article 15 of the Convention

is worded according to the same sense and, in addition, para. 2 it makes

possible to punish acts in accordance with "the general principles of

law recognized by the community of nations."
 

Article

40, para. 6 of the Charter of Fundamental Rights and Basic Freedoms1)

defines and restricts the prohibition on the retroactive effect of

statutes in two respects, namely:
a) if a "criminal act" is concerned, or
b) if the "imposition of punishment" is concerned.
 

According

to Czech criminal law theory, the criminal nature of an act is

understood to mean the possibility to be prosecuted for a criminal act,

found guilty of it and punished for it.  The basis for criminal

responsibility is the criminal act, which is defined by means of a

precise description of its characteristics and also by what is referred

to as its objective characteristics, namely, by the danger the act poses

for society.  It is the expression of the principle "nullum crimen sine

lege" ["no crime without law"] or "sine culpa" ["without fault"].
 

With

regard to the "imposition of punishment", Article 40, para. 6 of the

Charter1)  takes as its starting point the terminology of criminal law,

contained in the Criminal Act from 29 November 1961, No. 140 Coll., as

subsequently amended, especially that in the second section:  "General

Principles for the Imposition of Punishment" (§ 31 and following of the

Criminal Act).  The imposition of punishment is understood to mean the

determination of the type of punishment as well as the term of

imprisonment for those types of punishments which have gradations. 

Therein is expressed the criminal law principle, "nulla poena sine lege"

["no punishment without law"].  Article 40, para. 6 of the Charter1)

manifestly does not permit the retroactivity of a statute where the

definition of criminality or the severity of punishment is concerned.
 

The

Charter is not made up of norms of criminal law, but of certain

principles, which are drawn from various areas of law and which are

considered as fundamental, thus worthy of increased legal protection. 

Nothing more was intended by Article 40, para. 61) than what is stated,

namely that the definition of individual criminal acts and of their

criminal nature, which is effected under the Criminal Act by the

designation of their specific characteristic features and the degree of

danger which the individual acts pose to society; it may not be "ex

post", an amendment to the detriment of the offender adopted

subsequently to the commission of an act.  The same requirements are

also set for the definition and the setting of the length of

punishment.  The second sentence of para. 6 defines the prohibition of

the retroactivity of law only in this sense and to this extent (compare

the text, "subsequent statutes shall be applied ...").
 

Neither

in the Czech Republic, nor in other democratic states does the issue of

the procedural requirements for a criminal prosecution in general, and

that of the limitation of actions in particular, rank among the

principal fundamental rights and basic freedoms which, under Article 3

of the Constitution, form a part of the constitutional order of the

Czech Republic and, thus, take the place of the usual chapter in a

constitution on fundamental rights and basic freedoms found in other

constitutions.
 

The argument

that the limitation of actions is an institute of substantive criminal

law is not crucial to judgment in this matter, not only due to the fact

that the issue is an ongoing subject of dispute in criminal law doctrine

and that in several other democratic states it is considered, for the

most part, as a procedural law institute, but first and foremost due to

the fact that neither the Constitution nor the Charter of Fundamental

(and not of other) Rights and Basic Freedoms resolve detailed issues of

criminal law, but set down, in the first place, uncontested and basic

constitutive principles of the state and of law.  Article 40, para. 6 of

the Charter of Fundamental Rights and Basic Freedoms1)  deals with the

issue of which criminal acts may in principle be prosecuted (namely

those which were defined by law at the time the act was committed) and

does not govern the issue of for how long these acts may be prosecuted.
 

As

a consequence, the regulations on the limitation of actions and on the

limitation period, especially those setting the period during which an

act which is declared to be criminal may be prosecuted, cannot be

understood to be an area governed by Article 40, para. 6 of the Charter.

1) Neither does Article 39 of the Charter speak in favor of the

petitioners.  According to Article 39 of the Charter, only by law is it

possible to designate "which action is a criminal act" and "what sort of

punishment, as well as what sort of other detriment to rights or

property, can be imposed for committing them." The procedural

requirements for prosecution are not the subject of this reservation.
 

From

among the European judicature, we can refer to the same point of view

of the Federal Constitutional Court of the FRG, which in 1969 ruled that

the prohibition on the retroactivity of statutes did not apply to the

statute of limitations:  the subsequent designation of criminality or of

a higher possible punishment fall under this prohibition, but not the

limitation of actions, governing the period of time during which an act

which is declared to be criminal may be prosecuted and leaving the

criminality of an act unaffected.  (Volume 25, page 269 and following,

Collection of Decisions).

[X 1)

The statute on the "tolling" of the limitation period for the unlawful

acts of the SED [the Socialist Unity Party of East Germany] of March

1993 proceeds from the same point of view.  Under this statute, in

calculating the period of limitation for the prosecution of acts which

were committed during the rule of the unlawful regime of the SED, but on

the basis of the explicit or presumed wishes of the state or party

leadership of the former GDR [German Democratic Republic], such acts

were not prosecuted on political or other grounds incompatible with the

free order of a law-based state, the period from 11 October 1949 until 2

October 1990 shall not be counted.  Thus, a criminal prosecution may be

instituted for acts which were already "statute-barred" before then. 

Later, a second statute regulated more precisely the running of the

limitation period and excluded the criminal prosecution of acts which

were statute-barred by a later deadline of 27 September 1993.]
 

 

Ad B/3
 

The

group of Deputies also detect in § 5 of Act No. 198/1993 Coll.4) a

violation of Article 1 of the Charter of Fundamental Rights and Basic

Freedoms5) concerning the equality of all persons before the law because

- as they assert - it involves discrimination against one segment of

the citizenry because those who were not put on trial, for reasons that

were not political, will still enjoy the right not to be prosecuted,

while this right is denied others, if for political reasons they were

not convicted or the charges against them were dropped.
 

Equality

before the law must always be judged in relation with the nature of the

matter at issue.  When assessing matters that are apparently, or even

only in certain formal respects, identical, legislators must make

efforts that they do not contradict the ideas of justice and

reasonableness, which belong among the conceptual requirements of a

law-based state, of the fundamental principles of the constitutional

establishment of the Czech Republic (Article 1 of the Constitution of

the Czech Republic5)).  In the case of § 5 of Act No. 198/1993 Coll.,4)

it seems reasonable and just to extend the possibility of criminal

prosecution for those criminal acts which, by the will of the political

and state leadership, were earlier exempted from that possibility.  In

contrast to what the Deputies' contend, this is the way to rectify the

inequality with those who had already faced the possibility of being put

on trial because, not only were they not under special political

protection, but it was the state's wish and in its interest to prosecute

them for the criminal acts which they committed.
 

Even

under the law then in force, the principle of the equality of citizens

before the law required a general investigation of criminal acts and a

consistent and just application of the criminal law without regard to

the identity of the offender.
 

With

regard to the principle of the equality of citizens before the law, § 5

of Act No. 198/1993 Coll.4) does not establish any special or

extraordinary criminal law regime:  § 5 does not permit the principle of

collective guilt or collective responsibility, nor does it alter the

principle of the presumption of innocence or the prohibition of the

retroactivity of statutes, which means that criminal prosecution is only

possible for acts which were criminal at the time of their commission,

and only on the basis of the law then in force, unless the subsequent

statute is more favorable for the offender.  § 5 of Act No. 198/1993

Coll. merely alters the period of time during which a criminal

prosecution may take place and defines only a certain category of such

criminal acts for which this may be done, meaning those that the

principle of the equality of citizens before the law makes necessary in

order for a law-based state to maintain its credibility.
 

It

follows from the definition of the criminal acts in § 5 of Act No.

198/1993,4) that criminal prosecution on the basis of this provision is

ruled out:
1. in the case of criminal acts the period of limitation

for which has already expired since the start of the limitation period,

that is since 30 December 1989;
2. in the case of criminal acts, when

the former regime, as an exception, considered it expedient to show an

effort to punish violations of legality by its agents; for these

exceptional cases, the internationally recognized principle "ne bis in

idem" applies, even if the final judgment of the former regime was

extraordinarily lenient;
3. in the case of criminal acts which did

not result in a final, valid conviction or where the charges were

dropped, not on political grounds incompatible with the basic principles

of a law-based state, but on grounds other than exactly political ones.
 

From

the perspective of the equality of citizens before the law,

comparability of treatment is maintained even in the respect that

similarly to other - earlier punishable - criminal acts, it can be

presumed that in this category of previous criminal acts, for which the

limitation period has had the chance to run only afterwards, far from

all of these criminal acts will be tracked down, discovered and proven,

so that obviously only a small part of this category of crimes is

concerned.  In reality, this category of criminal acts is not at all

less favorably treated; it has actually enjoyed an advantage because the

punishment of these acts is made more difficult due to the additional

time, a long period, which has passed since the commission of the act,

as well as the offenders' interest in the speeding removal of evidence

and the difficulty of proving things after a long time interval.
 

It

is likewise necessary to carefully consider that, even from the

perspective of the law in effect at the time this type of criminal

behavior was done, the failure to prosecute these criminal acts was even

in conflict with the principle of equality contained in the

constitution at that time, as well as with the definition of principles

in the criminal law of the time, and, not the least, with the then valid

constitutional duty of "strict maintenance of socialist legality". 

From this perspective, § 5 of Act No. 198/1993 Coll.,4) only makes up

for this deficiency of constitutionalism and legality and this lack of

equality of citizens.

 

C. Objections to §§ 66) and 87) of Act No. 198/1993 Coll.

1.

§ 6 of Act No. 198/1993 Coll.6) creates a special regulatory scheme for

the reconsideration of criminal acts which had resulted in a conviction

and to which Act No. 119/1990 Coll., on judicial rehabilitations, does

not apply.  If it is proven in the proceeding that the sanctioned action

was an effort to protect basic human and civil rights and freedoms, and

not by unreasonable means, upon petition the court shall quash or

mitigate the sentence already imposed.
 

In

the reasoning of its petition, the group of Deputies make the objection

that this legislative scheme is discriminatory and contravenes the

constitutional principle of the equality of all persons before the law,

as well as Article 40, para. 6 of the Charter of Fundamental Rights and

Basic Freedoms, 1)  which requires that criminal liability for an act be

judged and punishment be imposed in accordance with the law in effect

when the act was committed.
 

The

reasons which led the legislators to adopt this legislative scheme

evidently consist in the fact that, under the earlier regime, those

criminal acts for which the offender had a demonstrable motive of

protecting the fundamental rights and basic freedoms of humans and

citizens, were also adjudged to be political offenses, and such persons

were found guilty of creating an unusually high degree of danger to

society.  Since they were interpreted more or less as acts hostile to

the political regime as such, an excessive punishment was attached to

them.  Therefore, the reconsideration of these sentences, which might

come about under § 6 of Act No. 198/1993 Coll.,6) is not aimed at the

infringement of, rather at the resulting restoration of, the principle

of civil equality by reasonably mitigating or even quashing the

sentence.
 

It remains to be

seen whether this subsequently resulting legislative scheme conflicts

with Article 40, para. 6 of the Charter of Fundamental Rights and Basic

Freedoms, 1)  which requires that criminal liability for an act be

judged and punishment be imposed in accordance with the law in effect

when the act was committed. However, under the first sentence of Article

40, para. 6 of the Charter1), the prohibition upon the retroactive

effect of statutes does not even apply because the second sentence of

Article 40, para. 6 of the Charter1) permits retroactive statutes if

they are more favorable to the offender.  Considering the wording of § 6

of Act No 198/1993 Coll.6)  ("Upon request a court may quash or

mitigate a sentence"), this condition is met.
 

2.

The Deputies' final objection is directed at § 8 of Act No. 198/1993

Coll.7) and states that the Parliament's grant to the government of the

authority "to rectify certain injustices committed against opponents of

the communist regime and against persons who were injured thereby

socially, in their health or financially" is too broad and indefinite. 

They make the argument that, in this case, there is no definition of the

injustices to which the rehabilitation statute does not apply, no

delimitation of the types or the extent of the claims of authorized

persons, no provision for the manner of their assertion, nor a

designation of the organ which should make decisions about claims and

implement them.  The petition asserts that, in this respect, § 8 of Act

No. 198/1993 Coll.7) conflicts with Article 788) and Article 2, para. 3

of the Constitution of the Czech Republic, and that the provisions of

Article 2 (that state authority may be exercised only in cases, within

the limits and in the manner provided for by law) applies also to the

issuance of government orders.  The petitioners then deduced from the

wording of Articles 90 and 95 that, when granting protection of rights

and in the process of decision-making concerning them, courts are to be

bound solely by statute.
 

Even

reading this argument in conjunction with the text of Articles 90 and

95 of the Constitution does not lead to the conclusion that in

protecting rights under Article 90, courts are bound by statutes alone. 

Article 90 merely states that courts shall protect rights in the manner

provided by law.  Therefore, it concerns the methods and means by which

a court protects rights, it does not release courts from their duty to

apply the law when other types of legal norms are involved.  In addition

to statutes, there are other types of legal norms which are generally

binding, hence they bind courts as well.  A court should apply a

subsidiary legal norm unless it comes to the conclusion that the norm

does not conform to a statute.  The text of Article 95, para. 1 lends

support to this conclusion when it states that judges are empowered to

judge whether other types of legal norms conform to a statute.
 

In

the petitioners' view, the government may carry out the goals contained

in an authorizing statute only on the basis of that statutory

authorization and may not exceed the limits of that statute.
 

In

contemporary parliamentary systems, the extent of the government's

authority to create norms by issuing orders extends beyond the

legislative activities of Parliament.  There is, firstly, the authority

to issue orders independently, directly on the basis of the Constitution

(Article 78 of the Constitution of the Czech Republic8)).  In such

cases, for the purpose of implementing statutes, the government is

empowered to issue orders which stay within the limits of the statute. 

The government is not required to obtain special authorization from the

Parliament in order to do this.
 

In

some democratic states, the constitution also provides for a derivative

governmental power to issue orders on the strength of a delegation from

the parliament.  In such cases, the constitutional condition applies

that the specification of the scope, whether in terms of subject or of

time, of such an authorization must be found in the statute itself and

that a mere indefinite, general authorization to the government is not

permissible.  At the same time, it is primarily the parliament's job to

determine a reasonable and suitable limit, in terms of subject matter,

upon the authorization, and to ensure that the government does not

exceed the statutory confines, is primarily the business of Parliament

itself.
 

There is only a

single type of governmental order under the Constitution of the Czech

Republic.  It is found alone in the provisions of Article 78,8) which

sets merely two conditions on it: for the purpose of implementing a

particular statute, the government may issue a governmental order (even

without being authorized by the Parliament) which stays within the

limits of the statute.  No other provisions designate by what means the

limits are determined and to what extent.  This means that such

limitations proceed directly from the law which the government order

implements.  Since even government orders that are based on the

authorization in § 8 of Act No. 198/1993 Coll. must be assessed in

accordance with Article 78 of the Constitution of the Czech Republic,8)

such an authorization to the government is still permissible from the

viewpoint of the Constitution, even if it is given in very broad terms.

 


Pl. US 19/93
Overview of the most important legal regulations

1.  

 Art. 40 par. 6 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that the question whether an act is

punishable or not shall be considered, and penalties shall be imposed,

in accordance with the law in effect at the time the act was committed. 

A subsequent law shall be applied if it is more favorable to the

offender.

2.    In §§ 1- 4 of Act no. 198/1993 Coll., on the

Illegality of the Communist Regime and Resistance Against It, elements

of the communist regime and methods which it used are defined,

particularly the fact that it denied citizens any possibility whatsoever

of free expression of political will and forced them to public state

their agreement with what they considered a lie or a crime (§ 1 par. 1),

and the Act provides which persons are jointly answerable for this

regime (§ 1 par. 2); the Act also provides that the regime founded on

communist ideology in the period from 25 February 1948 to 17 November

1989 was criminal, illegitimate, and is contemptible (§ 2 par.1) and the

Communist Party of Czechoslovakia was a criminal and contemptible

organization (§ 2 par. 2); citizens’ resistance against this regime was

legitimate, just, morally justified, and deserves respet (§3); everyone

who was unjustly punished and persecuted by the communist regime

deserves participation and moral satisfaction (§4)

3.    Art. 15

par. 2 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that the freedom of scholarly research and of

artistic creation is guaranteed.

4.    § 5 of Act no. 198/1993

Coll., on the Illegality of the Communist Regime and Resistance Against

It, provides that the statute of limitations period for crimes shall not

include the period from 25 February 1948 to 25 December 1989 if a

legally effective conviction or acquittal from an accusation did not

take place due to political reasons incompatible with the basic elements

of the legal order of a democratic state.

5.    Art. 1 of Act

no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,

provides that All people are free, have equal dignity, and enjoy

equality of rights.

6.    § 6 of Act no. 198/1993 Coll., on the

Illegality of the Communist Regime and Resistance Against It provides

that, in response to a motion, a court shall cancel or reduce a sentence

imposed for a crime which is not subject to rehabilitation under Act

no. 119/19990 Coll., on Judicial Rehabilitation, if it is proved during

the proceedings that the conduct of the convicted person was aimed at

protecting fundamental human and civil rights and freedoms by means that

are not clearly disproportionate.

7.    § 8 of Act no. 198/1993

Coll., on the Illegality of the Communist Regime and Resistance Against

It provides that the government is authorized to, by decree, correct

certain crimes committed against opponents of the communist regime and

against persons who were affected by its persecution in the social,

health, and financial areas.

8.    Art. 78 of Act no. 1/1993

Coll., the Constitution of the Czech Republic, provides that in order to

implement statutes, and while remaining within the bounds thereof, the

government is authorized to issue orders.