1997/06/30 - IV. ÚS 98/97: Object of Criminal Offence

30 June 1997

HEADNOTE

In

relation to criminal offenses against the Republic under Chapter One of

the Special Part of the Criminal Code, No. 140/1961 Coll., the

dissimulated interest of the ruling party oligarchy, employing all

instruments of totalitarian power against the "rest of the inhabitants",

was enshrined in the law as the object of such criminal deeds. The

behavior of the complainant, which was qualified in the criminal

proceeding as the criminal offence of High Treason and Espionage under §

105 of the Criminal code, was capable at the very most of calling into

doubt the interests of that ruling oligarchy.  During the incriminated

period, however, the existence of a sovereign state was a mere fiction,

for the Czechoslovak state, while in its internal relations presenting

itself as a totalitarian system, was in actuality the mere vassal of the

foreign power which was occupying its territory.  Therefore, all this

means that if, on the one hand, it is permissible under Article 7 of the

convention3) to convict and punish a person also for offenses, when the

material elements of that offense are not at all, or not sufficiently,

defined in the criminal code, it is hardly possible, on the other hand,

to convict and punish persons whose conduct during the era of

non-freedom exhibited some formal features of criminal offenses against

the foundations and the safety of the Republic, albeit under conditions

where, beyond any doubt, the actual object of  the criminal offense was

lacking.
 



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC
 


of the Constitutional Court of the Czech Republic (Panel IV) from 30

June 1997, sp. zn. IV ÚS 98/97, in the matter of the constitutional

complaint of ing. F. V. against the ruling of the Supreme Court of the

Czech Republic of 23 January 1997, file no. 1 Tzn 0011/96-34, rejecting

on the merits a complaint of the violation of the law.

The ruling of the Supreme Court of the Czech Republic from 23 January 1997, file no. Tzn 0011/96-34, is annulled.

 


REASONING
 


This timely filed constitutional complaint is brought against the

above-cited ruling of the Supreme Court of the Czech Republic, which

rejected a complaint of the violation of law filed by the Minister of

Justice in favor of the complainant, and against the resolution of the

former Supreme Court of the CSSR of 15 March 1979 in the criminal case

conducted at the former High Military Court in Přibram. The complainant

objects that, in the contested decision, the case was assessed only from

the perspective of the pertinent statutory provisions, in particular

those of the Code of Criminal Procedure, without giving any

consideration at all to the significance of constitutionally guaranteed

basic conditions for a fair procedure.  It was and remains problematic

the idea that the attributes of state sovereignty can be protected by

means of law from injury by the complainant, and not only by him, in the

case of a state whose sovereignty or defensive capacity, at the time at

issue, remains a matter of serious doubt to say the least.  The

complainant therefore prays that the Constitutional Court grant his

constitutional complaint for the violation of Arts. 37(2), 40(3), and 39

of the Charter of Fundamental Rights and Basic Freedoms and annul the

contested decision.  

In its statement of views, the Supreme

Court of the Czech Republic continues to adhere to its position that the

complainant violated the law that was applicable at the time, in

addition that his conduct continues to be punishable even at the present

time.  The human point of view to which the complainant makes reference

is not the crucial criteria for decision-making by a court; on the

contrary, the fact that judges are bound by the law, as is laid down in

Art. 95(1) of the Constitution of the Czech Republic,4) is decisive.  In

no case can agreement with the legal outcome established as a result of

the decisions in the original proceeding be considered as

„conservation“ of the legal outcome by the dubious acts of the court in

the original proceeding, rather as a confirmation that these courts’

decisions were in full agreement with the criminal code in effect at the

time and which, in respect of the issue is dispute, still applies

today.  It is not the case, then, that the complainant’s conduct was

declared to be criminal by the law then in force in conflict with the

principles of a democratic society.  Therefore, for the above cited

reasons this party proposes that the complainant’s constitutional

complaint be rejected as manifestly unfounded or, in the alternative,

rejected on the merits.

The Minister of Justice of the Czech

Republic stated in its submission that in the proceeding which preceded

the issuance of the contested ruling, just as in the proceeding before

the first instance court, the basic principles of the means for

marshalling and assessing evidence in preliminary proceedings were not

consistently respected.  The court’s conclusion that the complainant’s

conduct met all material elements of the criminal offense of espionage

under § 105(1), (3)(b), (d) of the Criminal Code1) and of high treason

under § 91 of the Criminal Code2) has no foundation in the admitted

evidence so that it cannot be considered as a correct conclusion.  Even

the substantive element of the criminal offense at issue was evaluated

in a faulty manner.  Since, the contested decision, the Czech Supreme

Court rejected on the merits the Minister of Justice’s complaint of the

violation of the law, indicating that it found no violation in the sense

complained of, then the filed constitutional complaint, to the extent

indicated in the complaint of the violation of the law, must be

considered as well-founded.

In his 12 May 1997 submission, the

Supreme State Attorney of the Czech Republic stated that, even if the

defendant’s act remained criminal, it would hardly be possible to infer

therefrom the same level of danger to society as the court deciding at

the end of the 1970’s found.

As it has already declared in a

host of its decisions, the Constitutional Court is not a court that

stands in a position of superiority to the ordinary courts, it is not

the pinnacle of their system, for which reason alone it may not arrogate

to itself the right of supervisory review over their decision-making,

provided these courts proceed in accordance with the provisions of

Chapter Five of the Charter.  In this regard, the Constitutional Court

has ascertained from the former Higher Military Court in Pøíbram that

the complainant was found, by a judgment of that court, guilty of the

criminal offense of espionage under § 105(1), (3)(b), (d) of the

Criminal Code2) and, as a result of the same conduct, of the criminal

offense of high treason under § 91 of the Criminal Code,1) which he was

alleged to have committed in that, from the end of 1969 until November

of 1976, as a Czechoslovak citizen in the course of his service

assignment at home and abroad, he misused his position with the

intention of impairing the defensive capacity of the Republic by

disclosing to a foreign intelligence service, partly in return for

payment, facts described in more detail in the criminal file, bearing on

the organization and manner of activity of one of the branches of the

Czechoslovak armed services, specifically information concerning

employees of the MNO [Ministry of National Defense] and the Czechoslovak

Security Services, which have the character of  state secrets of

special importance; and, further, in co-operation with a foreign power,

that for an extended period of time, he handicapped and even disabled

the fulfillment of some assignments in areas of especially important

interests to the Czechoslovak Republic, thereby causing a substantial

measure of damage, in part of a material character, and further serious

consequences, despite the fact that he was specially assigned to keep

state secrets.  For this conduct, he was convicted under §§ 105(3),1

35(1) and 29(1), (3) of the Criminal Code to a total punishment of 25

years imprisonment with assignment to the third correctional-educational

level of the NVU MS [Ed. Note: Correctional-Educational Institute of

the Minister of Justice], and was further obliged to pay the

Czechoslovak state compensation for damages in the amount of 293 901

Czechoslovak Crowns.  It was also evident from the file that, in its 15

March 1979 ruling (action no. 1 Tov 1/79-137) the former Supreme Court

of the CSSR rejected on the merits the appeals of both the complainant

and the former High Military Procurator in Příbram.

Lastly, the

Constitutional Court learned from the file of the Czech Supreme Court,

that the Minister of Justice of the Czech Republic submitted a complaint

of the violation of law.  In the reasoning of the contested ruling, the

Czech Supreme Court stated, among other things, that the task of courts

does not consist in the assessment, on the basis of their own views, of

the political and other circumstances and consequences of the

occupation of Czechoslovakia by foreign troops after 21 August 1968.  In

this respect, courts cannot support their decisions on mere political

and historical opinions on those events, especially in the light of the

fact that Czechoslovakia remained an independent state, recognized as

one by other governments.  In addition to that, even after the changes

brought about after 1989, the legal order precedes on the presumption of

the factual and legal continuity with the previous regime, unless

specified otherwise in a relevant statute (§ 2 of Act No 480/1991 Coll.,

on the Era of Non-Freedom)5).  The complainant’s conduct does not

qualify as an manifestation of resistance against the previous regime,

as it did not exhibit any features other than those of a criminal

offense.  Such resistance should have been unambiguously manifested by

some form of struggle against the regime or such other conduct as meant

by § 3 of Act No 198/1993 Coll.6) [Ed. Note:  the act is entitled, „on

the Lawlessness of the Communist Regime and Resistance to It“]. 

Moreover, one cannot speak of resistance in the above sense in relation

to a situation where, while the complainant did some harm to the bodies

of the regime of that period, at the same time he enjoyed its

considerable trust and profited both from that regime and from the

co-operation with a foreign power.

In the proceeding on the

complaint of the violation of the law, submitted in the case under

consideration by the Minister of Justice pursuant to § 266 of the

Criminal Procedure Code,7) the Supreme Court’s duty was, first of all,

to assess the issue whether the material elements of a criminal offense

were present, therefore also the issue whether the object of the

criminal offense existed.  For the object is an element of each and

every criminal offense, so that an act directed against something which

is not capable of being the object of a criminal offense, cannot give

rise to criminal liability.  In the opinion of the Constitutional Court,

the matter under consideration is just such a case where the object of

the criminal offense is lacking.  The provisions contained in the First

Chapter of the Special Part of the Penal Code, No. 40/1961 Coll., as

amended by later acts, protect the foundations of a sovereign state,

that is, its constitutional establishment, security, and defensive

capacity.  Then, with regard to the criminal offense of high treason

under § 91,1) the object of the criminal offense is the constitutional

foundation of the Republic, its territorial integrity, sovereignty or

defensive capacity, whereas with regard to the criminal offense of

espionage under § 1052) the group object of the criminal offense is the

interest in the protection of the Republic’s external security.  During

the incriminated period, however, the existence of a sovereign state was

a mere fiction, for the Czechoslovak state, while in its internal

relations presenting itself as a totalitarian system, was in actuality

the mere vassal of the foreign power which was occupying its territory. 

It is well known that each fiction results from the process of the

destruction of an order of values, therefore it evokes even in the area

of law those excesses, which are a quite typical phenomena in a

totalitarian system, especially in the field of politics.  The function

that such a legal fiction normally played in totalitarian orders was

precisely to veil and shroud a condition of the utmost injustice, a

condition the distinguishing feature of which was omnipotence on the one

side and the absolute lack of legal protections on the other.  This

applies in full as well to the totalitarian constitutions which, in

comparison with social reality and the cruelty of their conditions for

the „rest of the inhabitants“ represented a mere world of appearances,

sharply contrasting with the factual lack of constitutional guarantees.

In connection with the argument made by the Supreme Court of the Czech

Republic, asserting that courts may not base their decision-making upon

mere political and historical opinions on the „August Events",  the

Constitutional Court considers it to be of the utmost necessity to make

reference to Article 7 of the Convention for the Protection of Human

Rights and Fundamental Freedoms3) ("Convention"), to which authorities

active in the criminal process have up till now evidently not given any

thought, for it has never even been applied in adjudging the criminality

of conduct engaged in during the period of „non-freedom".  In

particular, paragraph 1 of this Article3) provides that no one shall be

held guilty of any criminal offense on account of any act or omission

which did not constitute a criminal offense under national or

international law at the time when it was committed; paragraph 23),

however, states that this Article shall not prejudice the trial and

punishment of any person for any act or omission which, at the time when

it was committed, was criminal according to the general principles of

law recognized by civilized nations.  The fact that the binding nature

of these principles is embodied in the Convention indicates the

Convention’s quite evident bent towards tying the interpretation of what

is or can be law and, on the contrary, what is not and can not be law,

to the existence of a certain value order founded on the principle of

consensus.  Norms cannot regulate, prescribe, or order "out of thin

air", rather they build upon an already-existing hinterland of values. 

Norms share a common base with values to the extent that, together with

them, they form the normative and value order of a given society,

serving as its constitutive, establishing, and organizing principle. 

Therefore, all this means that if, on the one hand, it is permissible

under Article 7 of the convention3) to convict and punish a person also

for offenses, when the material elements of that offense are not at all,

or not sufficiently, defined in the criminal code, it is hardly

possible, on the other hand, to convict and punish persons whose conduct

during the era of non-freedom exhibited some formal features of

criminal offenses against the foundations and the safety of the

Republic, albeit under conditions where, beyond any doubt, the actual

object of  the criminal offense was lacking.

In relation to

criminal offenses against the Republic under Chapter One of the Special

Part of the Criminal Code, No. 140/1961 Coll., the dissimulated interest

of the ruling party oligarchy, employing all instruments of

totalitarian power against the "rest of the inhabitants", was enshrined

in the law as the object of such criminal deeds. The behavior of the

complainant, irrespective of the reasons motivating it, was capable at

the very most of calling into doubt the interests of that ruling

oligarchy.  The Czech Supreme Court made the argument to the effect that

the complainant’s conduct did not exhibit the characteristics of

resistance as meant by Act No 198/1993 Coll., on the Lawlessness of the

Communist Regime and Resistance to It.  In the opinion of the

Constitutional Court, however, such an argument misses the heart of the

matter, since its quintessence does not consist in the assessment of

whether the complainant, by his conduct, offered resistance to the

totalitarian regime, but whether his conduct can be qualified as a

criminal act. It is the opinion of the Constitutional Court that, in the

light of the above considerations, the complainant’s conduct cannot be

qualified as such, and therefore it is also irrelevant which group of

inhabitants the complainant belonged to and whether he may have profited

from his membership in such group.  If there are general principles of

law recognized by civilized nations (Art. 7(2) of the Convention) 3) and

if they are legally binding, principles which reflect in essence the

value order of the nations in question, then the legal orders of the

individual states, as well as the application of law within them, must

correspond to these principles.  In this case, therefore, it is not

merely a matter of basing judgments on political and historical

opinions, but also on assessments and interpretations that no court can

avoid if it is to fulfill its duty enshrined in Article 908) and Article

95 para. 14) of the Constitution of the Czech Republic.

The

fact that the Supreme Court of the Czech Republic rejected on the merits

the complaint of the violation of the law submitted by the Minister of

Justice, while failing in its obligation to examine the violation of the

law in the light of the above-stated criteria, resulted in the

violation of Article 908) and Article 95 para. 14) of the Constitution,

as well as of Article 36 para. 1 of the Charter of Fundamental Rights

and Basic Freedoms.9) For the above-stated reasons, the Constitutional

Court has, pursuant to § 82 para. 2, lit. a) of Act No. 182/1993 Coll.,

on the Constitutional Court, granted the constitutional complaint and,

pursuant to § 82 para. 3, lit. a) of the cited act, annulled the

contested judgment.
 

 

 



IV. ÚS 98/97
Overview of the most important legal regulations

1.  

 § 91 of Act no. 140/1961 Coll., the Criminal Code, governs treachery

as one of the crimes against the foundations of the state, and provides

that a citizen of the CR who, in connection with a foreign power or with

a foreign agent commits the crime of subversion of the republic,

terrorism, diversionist activities or sabotage, shall receive a prison

sentence of twelve to fifteen years or an exceptional punishment

2.  

 § 105 of Act no. 140/1961 Coll., the Criminal Code, governs espionage

as one of the crimes against the security of the republic and provides

that anyone who spies out a fact kept secret under a special law, the

misuse of which may serious endanger or damage the constitutionality,

sovereignty, territorial integrity, defense and security of the state,

will receive a prison sentence of two years to eight years. Par. 3

provides cases where a perpetrator will receive a prison sentence of

eight to fifteen years: b) if he commits such a crime although he was

especially charged with protection of the secret information, d) if the

crime concerns secret information which is classified under a special

act at the level of “strictly secret”.

 
3.    Art. 7 par. 1

of the Convention on the Protection of Fundamental Rights and Human

Freedoms provides that no one may be sentenced for an action or failure

to act which, at the time it was committed, was not a crime under

domestic or international law and also may not be given a stricter

sentence than could have been imposed at the time the crime was

committed. Par. 2 provides that this Article does not prevent trying and

punishing a person for an action or failure to act which, at the time

it was committed, was criminal under general legal principles recognized

by civilized nations.

4.    Art. 95 par. 1 of Act no. 1/1993

Coll., the Constitution of the CR, provides that in making their

decisions, judges are bound by statutes; they are authorized to judge

whether enactments other than statutes are in conformity with statutes.

5.  

 § 2 of Act no. 480/1991 Coll., on the Time of Lack of Freedom,

provides that legal acts adopted in the period specified in § 1 (from

1948 to 1989) are annulled only if special acts so provide.

6.  

 § 3 of Act no. 198/1993 Coll., on the Illegality of the Communist

Regime and Resistance Against It, provides that the resistance of

citizens against the communist regime, which they expressed on the basis

of political, religious or moral democratic conviction was legitimate,

just, morally justifiable and worthy of respect.

7.    § 266 of

Act no. 141/1961 Coll., on Criminal Court Proceedings (the Criminal

Procedure Code) provides that the Minister of Justice may file a

complaint with the Supreme Court for violation of the law against a

legally effective decision of a court, state prosecutor or investigator

which violated the law or which was made on the basis of defective steps

in proceedings.
 
8.    Art. 90 of Act no. 1/1993 Coll., the

Constitution CR, provides that courts are called upon above all to

provide protection of rights in the legally prescribed manner. Only a

court may decide upon guilt and determine the punishment for a criminal

offense.

9.    Art. 36 par. 1 of the Charter provides that

everyone may assert, through the legally prescribed procedure, his

rights before an independent and impartial court or, in specified cases,

before another body.