1995/09/18 - IV. ÚS 81/95: Objection of Conscience

18 September 1995

HEADNOTES

1. A court

which decides concerning guilt and innocence of a criminal act must

respect the principle expressed in Art. 40(5) of the Charter,1) as well

as in Art. 4(1) of Protocol No. 7 of the Convention on the Protection of

Human Rights and Basic Freedoms, that nobody may be prosecuted or

punished repeatedly for the same act, that is the principle „ne bis in

idem“.  

2. If § 269(1) of the Penal Code2) provides a

substantially more severe punishment for those who fail to report for

military service with the intent of permanently avoiding it, it is

unacceptable to interpret this provision such that „permanently“

actually means temporarily or short-term.
 



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT
 

IN THE NAME OF THE CZECH REPUBLIC

 

The

Constitutional Court of the Czech Republic, sitting in a Panel . . . in

the matter of J. Ř. . . . against the ruling of the Regional Court in

Ostrava in connection with the decision of the County Court in Olomouc,

decided thusly:

The decision of the County Court in

Olomouc sp. zn. 7 T 14/95 of 24 February 1995 and the ruling of the

Regional Court in Ostrava, the Olomouc branch, sp. zn. 2 To 130/95 of 22

March 1995 are hereby vacated.
 


REASONING
 


By decision of the County Court in Olomouc of 24 February 1995, the

complainant was found guilty of the crime, under § 269(1) of the Penal

Code,2) of refusing to report for service in the armed forces and was

given an unconditional sentence of 12-months imprisonment.  The

complainant and his parents appealed this decision, with reference

primarily to the fact that he had already been finally convicted for the

permanent refusal of military service, by decision of the same court . .

. and that the interpretation that he had commited a new offense by his

refusal to obey the later conscription order would in fact mean that

anyone who, for whatever reason, missed the deadline for submitting a

request to perform civilian service . . . may be punished practically

without break until the age of 60, when the defense obligation ends. . .

.  By its ruling on 22 March 1995, the Regional Court rejected the

appeal . . . .  In its [the appellate court’s] view, the court of first

instance had, without any doubt, ascertained that, on 15 June 1994, the

defendant had personally received the conscription order from the County

Military Authority in Karvina, that the order placed upon him the duty

to report for basic military service on 7 July 1994 . . . which he

failed to do even 24 hours after the deadline set in the conscription

order had expired.  As far as concerns the appellant’s argument that it

is impermissible to criminally prosecute someone repeatedly for the same

act, the court stated that while it was a matter of the same type of

criminal offense, nonetheless it had been a very different act, defined

by quite different factual circumstances.

In addition, the

complainant urged that Art. 40(5) of the Charter1) had been infringed,

because he had already once been finally convicted for the permanent

refusal to perform military service . . . .  In this context, he

asserted that such repeated judicial prosecution is at the same time

contrary to the Convention on the Protection of Human Rights and

Fundamental Freedoms. . .

The Constitutional Court requested the

record from the County Court in Olomouc . . . from which it ascertained

that the complainant was conscripted on 3 June 1992. . . . The

Constitutional Court further ascertained that . . . on 4 May 1994 the

complainant was found guilty, under § 269(1) of the Penal Code,2) of the

criminal offense of failure to report for service in the armed forces

because . . . he did not report for this service, not even within 24

hours following the deadline.  For this criminal offense . . . the

complainant was given a 12-month suspended sentence [delayed for a

15-month trial period]. . . . [O]n 15 June 1994 the complainant received

a further conscription order, which directed him to report for basic

military service on 7 July 1994. . .  The complainant did not report at

that time. . . . On 19 December 1994, the complainant was notified that

he had been charged with the criminal offense, under § 269(1),2) of

failure to report for service in the armed forces . . . . In the

decisions which form the subject of this constitutional complaint, he

was convicted and sentenced unconditionally to 12-month’s imprisonment.

While the basic constitutional right to have the option of civilian

service is contained in Art. 15(3) of the Charter,4) the content of that

right must be interpreted in conjunction with Art. 9 of the Charter,6)

which clearly states that military service or some other service

prescribed by law in place of compulsory military service cannot be

considered to be forced work or service.  In this context, reference

must be made to the fact that in this area Czech law goes beyond what is

requied in the European Convention for the Protection of Human Rights

and Fundamental Freedoms, from Art. 4(3)(b) of which can clearly be

deduced that it is not an infringement of the Convention if one of the

Member States refuses to give sanction in its legal order to the refusal

to perform military service on the grounds of conscious. . . .  It can

generally be said, then, that the Czech rules require everyone who is

drafted under the Defense Act to fulfil the duty to serve, whether as a

soldier or as someone subject to civilian service.  Therefore, someone

may not be exempted, on the grounds of conscious, from every form of

service whatsever, which is sometimes requested.  To accept such a

position would be in sharp conflict with the principle of equality. . . .

If

the Act on Civilian Service provides that, by performing it, a citizen

may not obtain any unjustified advantage over him who performed basic or

substitute military service or training, then it must follow logically

that if we were to tolerate conduct leading to the avoidance of any sort

of service whatsoever, then this would result in the violation of the

principle of equality.  Stated otherwise, in a law-based state the

non-fulfillment of a duty set by law must be sanctioned.  It is the

state’s affair to set a sanction and the type, taking the character of

the offense into consideration.  Czech law prescribes solely criminal

law prosecution for cases of refusal to perform either military or

civilian service.  It is the legislature’s business to consider whether

in such cases it is really necessary to choose only this form of legal

sanction.  In a state which seeks to be a law-based state the legitimacy

of criminal law sanctions can be justified solely with reference to the

necessity of protecting elementary values from acts which are

especially dangerous to society and only when no other resolution

exists.  Thus, state repression must always be based on the principle

that it be subsidiary and minimalized.

The material elements of

the criminal offenses of refusal to report for service in the armed

forces are contained in §§ 269 and 270 of the Penal Code, and those of

the criminal offense of refusal to report for civilian service in §§

272a, or 272b of the Penal Code.  The constitutional complaint is

directed against a court decision in which the complainant was finally

convicted of a criminal offense under § 269(1).2)  The material elements

of this offense are defined relatively precisely and concretely and

provide that anyone who, with the intent permanently to avoid military

service or special substitute service, fails to report for service in

the armed forces within 24 hours of the expiry of the deadline stated in

the conscription order, shall be punished with imprisonment of one to

five years.  Thus, the intention permanently not to report for this

service is an essential element of the definition of this criminal

offense.  This element comes into even sharper focus when contrasted

with the material elements of the criminal offense under § 270(1) which

is formulated such that a person commits it if he fails to report, even

if out of negligence, for service in the armed forces within 24 hours of

the expiry of the deadline stated in the conscription order.  In

addition, as this conduct does not have as its aim the permanent

avoidance of military service, the punishment it is substantially more

lenient (imprisonment of up to two years).  There is a parallel

difference between the criminal offense under § 272a, which governs the

intentional permanent avoidance of civilian service, and under § 272b,

which defines the elements for the „mere“ refusal to report for civilian

service.

The constitutional complaint and the introduced

evidence make clear that the complainant was twice convicted of a

criminal offense under § 269(1),2) the first time for failure to report

to the military unit in Hodonín in July, 1993, and then the second time

for failure to obey a conscription order approximately a year later. 

Neither of the courts held doubts on the score that they were dealing

with two identical and repeated criminal offenses, this despite the fact

that from the beginning the complainant objected that he had already

clearly asserted when first convicted that he had not reported for

service and had the intent permanently not to report, even though he was

aware of the criminal consequences.  The court of first instance did

not respond to this defense at all.  The appellate court then rejected

this defense, mainly for the reason that in the second case the failure

to report occurred at a different time and that the summons to service

was made in a different place.  In the Constitutional Court’s opinion,

the heart of the matter consists in resolving this issue.

For

each constitutional complaint, the Constitutional Court must perform the

task of judging whether a court’s interpretation of the applicable

legal rules exceeds constitutional bounds.  Even interpretations that at

first glance may appear to be legal, may, in view of the actual

circumstances, be so extreme as to depart from the Constitution.  Art.

4(4) of the Charter5) provides that in applying provisions which limit

fundamental rights and basic freedoms their essence and purpose must be

maintained.  And, in addition, a court which decides concerning guilt

and innocence of a criminal act must respect the principle expressed in

Art. 40(5) of the Charter,1) as well as in Art. 4(1) of Protocol No. 7

of the Convention on the Protection of Human Rights and Basic Freedoms,

that nobody may be prosecuted or punished repeatedly for the same act,

that is the principle „ne bis in idem“.  In the case at hand, the

ordinary courts had no doubt that this principle had not been violated;

the complainant, however, is of a different opinion.

After

consideration of all circumstances, the Panel of the Constitutional

Court has come to the conclusion that, in the complainant’s case, the

contested court decision violated the principle „ne bis in idem“, thus,

the above-mentioned basic rights guaranteed by the Constitution.  If §

269(1) of the Penal Code2) provides a substantially more severe

punishment for those who fail to report for military service with the

intent of permanently avoiding it, it is unacceptable to interpret this

provision such that „permanently“ actually means temporarily or

short-term.  Interpreted in this way, the number of criminal offenses

committed by a person would in actual fact be determined by the number

of summons to service which the military administrative bodies send

him.  There is no doubt that even after a person is convicted for the

first such act, it is possible to deliver a new conscription order to

him; his failure to obey it, however, may not be assessed as a new

criminal offense if the court in the earlier proceeding found the intent

permanently not to report for military service.  It is the

Constitutional Court’s view that when the complainant received further

summons, he merely persisted in his earlier expressed intention not to

report for military service.  It was the same conduct with the same

result, thus, the identical, and by no means a different, act.  This

identity cannot be disrupted by a change in particular circumstances

which individualize the act, in this instance a summons at another time

and to another place.

Due to the fact that the contested court

decision violated the principle that a person may not be repeatedly

criminally prosecuted for the same act, which is laid down in Art. 40(5)

of the Charter,1) as well as in Art. 4(1) of Protocol No. 7 to the

Convention for the Protection of Human Rights and Fundamental Freedoms,

the Constitutional Court has no option but to annul the decision.

The

Constitutional Court expects that its principled decision will serve

for the ordinary courts’ future decision-making as a guideline

concerning the length of punishment for those who permanently refuse to

perform military service, or civilian service.  In its view, the Penal

Code as it now stands provides ample opportunity so that in similar

cases the legal affliction may be of such an intensity as to avoid the

doubtless undesirable result of giving those who violate the law an

advantage over those who fulfill their duties.  At the same time, the

Constitutional Court is convinced that the legislature is considering

the possibility as well of enacting sanctions other than imprisonment.
 




IV. US 81/95
Overview of the most important legal regulations


1.  

 Art. 40 par. 5 of Act no. 2/1993 Coll., the Charter of Fundamental

Rights and Freedoms, provides that no one may be criminally prosecuted

for an act for which she has already been finally convicted or acquitted

of the charges. This rule shall not preclude the application, in

conformity with law, of extraordinary procedures for legal redress.

2.  

 § 269 par. 1 of Act no. 140/1961 Coll., the Criminal Code, as amended

by later regulations, provides that anyone who, with the intent of

permanently avoiding active military service or special service does not

begin service in the armed forces within 24 hours after the deadline

set in the draft order, shall receive a prison sentence of one to five

years.

3.    § 2 par. 1 of Act no. 18/1992 Coll., on the Civil

Service, as amended by later regulations, entitled Procedure for

Refusing Performance of Military Service, provides that a declaration of

refusal to perform military (substitute) service or military exercise

can be submitted by a) a draftee no later than 30 days after the end of

the draft proceedings, b) a draftee who was permitted a deferral of

basic military service, no later than 5 days after the ending of the

grounds for which he was allowed a deferral, c) a soldier whose basic

(substitute) service was interrupted, no later than 5 days after the end

of the grounds for the interruption, d) a soldier in the reserves in

the period up to 31 January of the calendar year.

4.    Art. 15

par. 3 of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that no one may be compelled to perform military

service if such is contrary to his conscience or religious conviction.

Detailed provisions shall be laid down in a law.

5.    Art. 4 of

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

provides in par. 3 that any statutory limitation upon the fundamental

rights and basic freedoms must apply in the same way to all cases which

meet the specified conditions., par. 4, In employing the provisions

concerning limitations upon the fundamental rights and basic freedoms,

the essence and significance of these rights and freedoms must be

preserved and such limitations are not to be misused for purposes other

than those for which they were laid down.

6.    Art. 9 par. 1 of

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

provides that no one may be subjected to forced labor or service. par. 2

provides that military service or some other service provided for by

law in place of compulsory military service is not considered forced

labor or service.