2003/03/26 - PL. ÚS 42/02: Freedom of Conscience

26 March 2003

HEADNOTES

 

If,

thanks to the applicable procedures, the interpretation even of the

very old criminal law norms is carried out at the present by a court

with consequences for adjudging the criminal prosecution of a person,

that is with consequences intruding into his or her personal sphere, it

may not be carried out without regard to the constitutive values and

principles of the democratic law-based state, such as they are expressed

in the Czech Republic’s currently valid constitutional order.  It is

only in this restrictive sense, that of value discontinuity, that one

may conceive of continuity with „old law“ the application (legality) of

which is the subject of contemporary proceedings on a complaint of a

violation of the law.

 

The freedom of conscience is manifested in decisions made by the

individual in certain concrete situations, that is, “here and now”, felt

as a profoundly experienced duty.  Apart from the correlation of the

norm and the situation, the structural characteristic of conscience

consists also in a personally experienced sense of an unconditional

duty.

The

freedom of conscience is classified among the absolute fundamental

rights which may not be restricted by ordinary statute.  In the case of

the conflict of a legal norm with a concrete assertion of the freedom of

conscience, it is necessary to weigh whether the assertion of the

freedom of conscience is not barred by other values or principles

contained in the Czech Republic’s constitutional order as a whole

(constitutionally immanent restriction upon fundamental rights or

freedoms).

 


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC
 

 

The

Plenum of the Constitutional Court decided on 26 March 2003 in the

matter of the constitutional complaint of V.W. (V.) against the 17

October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002 as

follows:

The

17 October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002 is

quashed due to its conflict with Art. 15 para. 1 of the Charter of

Fundamental Rights and Basic Freedoms.

 


REASONING


I.
 

By

a constitutional complaint delivered to the Constitutional Court on 7

November 2002, the complainant prayed for the annulment of the 17

October 2002 ruling of the Supreme Court, file no. 15 Tz 47/2002, which

turned down on the merits the complaint of a violation of the law

submitted in the complainant’s favor by the Minister of Justice.
 

By

the 7 January 1954 judgment of the former Lower Milityry Court in Brno

PSP 47, file no. T 2/54, the complainant was found guilty, pursuant to §

270 para. 1, lit. b) of Act No. 86/1950 Coll., the Criminal Act, of the

criminal offense of evading the service duty.  It was alleged that he

committed this offense in that on 1 November 1953 he refused to put on

his uniform, to accept the arms allocated to him, and to perform

military service, all the while alluding to his religious convictions. 

For his criminal offense he was sentenced to imprisonment for a period

of two and a half years and, at the same time, he was declared to have

forfeited for a period of three years his honorable rights of

citizenship and the rights laid down in § 44 para. 2 of the Criminal

Act, No. 86/1950 Coll.
 

This

decision, which became final and enforceable on 7 January 1954, was

subsequently contested when the Minister of Justice submitted a

complaint of a violation of the law in favor of the complainant.  The

complaint was argued to the effect that the judgment violated § 2 para. 3

of Act No. 87/1950 Sb, on Criminal Judicial Proceedings (the Criminal

Procedure Code), in relation to § 270 para. 1, lit. b) of Act No.

86/1950 Coll., the Criminal Act, on the grounds stated in § 1 paras. 1

and 2 of Act No. 119/1990 Coll., on Judicial Rehabilitation, as

subsequently amended.
 

The

competent Supreme Court panel heared the 29 May 2002 complaint of a

violation of the law, and, in view of the divergent decisional practice

of Supreme Court panels, in its ruling, file no. 11 Tz 205/01, decided

to refer the matter to the Grand Senate of the Criminal Collegium.  It

designated as the decisive question whether the complainant’s conduct

can be viewed as a criminal offense or whether the complainant was, by

these means, merely asserting his religious freedom guaranteed by the

Constitution, yet in conflict with his duties towards the state and

society, as laid down in the Constitution.
 

In

the reasoning of the contested 17 October 2002 ruling by the Supreme

Court Grand Senate, file no. 15 Tz 47/2002, the Grand Senate stated

first and foremost that, in a proceeding on a complaint of a violation

of the law, it adjudicates the correctness of the contested decision, as

well as the correctness of the proceeding leading up to it, ex tunc,

that is, in accordance with the factual and legal situation prevailing

at the time the decision contested in the complaint of a violation of

the law was issued.
 

On the

strength of § 2 para. 1 of the Act on Judicial Rehabilitation, judgments

of conviction were quashed, ex lege, if the convictions were for such

acts as were declared to be criminal offenses in conflict with

principles of a democratic society respecting civil, political rights

and freedoms guaranteed by the Constitution and expressed in

international documents and international legal norms.  The criminal

offense of evading the duty to serve under § 270 para. 1, lit. b) of the

Criminal Act, No. 86/1950 Coll., is not listed in § 2 para. 1 of the

Act on Judicial Rehabilitation.  In view thereof, according to the

reasoning of the contested ruling, the Supreme Court Grand Senate could

not consider the complainant’s conviction unlawful merely due to the

fact that, when he committed it, he referred to his religious

convictions.  If the legislator did not consider it necessary to quash

such convictions ex lege, then it is not an act, the declaration of

which as a criminal offense would, in and of itself, conflict with

international documents, international legal norms, and the principles

of a democratic society repecting guaranteed civil and political rights

and freedoms.  Therefore, in the Supreme Court’s view, a conviction for

the given criminal offense cannot, in and of itself, be considered as

incompatible with democratic and legal principles, and such conviction

cannot, without more, be seen as a violation of the law.
 


II.
 

In

his constitutional complaint the complainant objects primarily to the

fact that the Supreme Court did not concern itself with the specific

criminal matter, rather it expressed general considerations concerning

whether criminal prosecution for evading the service duty was

permissible during the given period, that it entirely overlooked the

proposition of law expressed by the Constitutional Court, for example,

in its judgment in the matter file no. II. ÚS 285/97, and entirely

passed over the issue of the special subject, and that the Senate was

composed even of judges who should have been excluded from the hearing.
 

In

the complainant’s view, the existence of a statutory duty is not, in

and of itself, a sufficient reason for restricting religious freedoms. 

According to the complainant, further prerequisites must be fulfilled,

such as, that the military service would have to function to ensure the

rights and freedoms of other people and would have to correspond to the

just requirements of morality, public order, and general good in a

democratic society.  However, military service in a communist regime

could not have met these requirements.  As the complainant stated,

military service could not at all have functioned to ensure the rights

and freedoms of other people, rather it was meant to serve for the armed

protection of a regime which engaged in the long-term and systematic

infringement of human rights, was criminal, illegitimate, and

despicable.  From this perspective, the complainant’s religious freedom

was, in his view, excessively restricted not only in the sense of Art.

18 and Art. 29 para. 2 of the Universal Declaration of Human Rights

(hereinafter „Declaration“), but also of Art. 9 paras. 1 and 2 of the

Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter „Convention“).
 

The

complainant further considers that it is not decisive for judging his

case whether the Minister of Justice has or has not submitted in other

cases complaints in favor of persons who behaved in the same manner as

he, although from other motives.  While the Supreme Court refers in its

decision to Art. 1, Art. 2 para. 1 and Art. 3 of the Charter of

Fundamental Rights and Basic Freedomes, nonetheless, it was precisely

these provisions which, in the complainant’s view, it violated by its

decision, when it applied them as if the complainant had demanded

advantages to the detriment of other persons.  The complainant considers

that, on the contrary, it is he who has been subjected to

discrimination, and in his constitutional complaint he remarks that no

international treaty, nor any domestic law, distinguishes as to whether

someone has refused military service due to the fact that he does or

does not have a certain religious conviction.
 

The

complainant also considers that the Supreme Court has, in the contested

decision, infringed his right to fair process guaranteed by Art. 36

para. 1 of the Charter and Art. 6 para. 1 of the Convention.  In his

view the Grand Senate, to which the matter had been referred for the

purpose of unifying the propositions of law espoused by various Supreme

Court panels, should have analyzed the legal conclusions in previous

similar decisions and not merely „copied“ the previous negative decision

of the 5th Panel of the Supreme Court Criminal Collegium.
 

The

complainant further disagrees with the Supreme Court‘s view that he was

not hampered in asserting his right to judicial rehabilitation by the

conduct of the Head of the Local Military Court in Brno, who, in

response to the question posed by the complainant’s legal counsel, gave

misleading information concerning judicial rehabilitation.  The

complainant believes that his then legal counsel did not ask the

question informally, rather officially, and that it was the Head’s duty

to act in accordance with § 52 of the Criminal Procedure Code, that is

to conduct himself as is called for by the significance and formative

purpose of criminal proceedings.  The complainant, thus, acted in good

faith that the Head’s response was correct and did not submit the

proposal for judicial rehabilitation.
 

In

view of all the above-stated facts, the complainant considers that, by

its decision, the Supreme Court has infringed his constitutionally

guaranteed rights under Art. 18 and Art. 29 of the Declaration, Art. 9

paras. 1 and 2 and Art. 6 para. 1 of the Convention, and Art. 36 para. 1

of the Charter.
 

The

complainant supplemented his constitutional complaint in his submission

of 17 March 2003, in which he also criticized the Supreme Court for

infringing his right to the freedom of conscience under Art. 15 para. 1

of the Charter of Fundamental Rights and Basic Freedoms, on the grounds

expanded upon in the reasoning of the 11 March 2003 Constitutional Court

judgment, file no. I. ÚS 671/01.
 


III.
 

At

the Constitutional Court’s request, the Supreme Court, as a party to

the proceeding, gave its views on the submitted constitutional

complaint.  The Chairman of the Grand Senate stated that the complaint

of a violation of the law in favor of V.W. (V.) was referred to the

Grand Senate for its decision on grounds of unification of the

decisional practice of the Criminal Collegium panels.  Supreme Court

panels had adopted two different views on the question at issue.
 

According

to one view, a conviction, pursuant to § 270 para. 1, lit. b) of the

Criminal Act, No. 86/1950 Coll., for the criminal offense of evading the

service duty cannot, in and of itself, be considered as incompatible

with democratic and legal principles and one cannot, without more, spot

in it a violation of the law, even though the original conviction

occurred during the period from 25 February 1948 and 1 January 1990 for

an act committed after 5 May 1945.  According to this view, neither the

Declaration nor any international treaty on human rights establishes a

right to refuse to fulfill a statutory duty towards the state, including

military duty, and such a criminal prosecution is permissible even in

democratic states and even in cases where the possibility of alternative

service does not exist.
 

The

second view is based on the conviction that, in a situation where no

alternative to the performance of basic military service existed for

cases when such performance would require a citizen to violate his

religious convictions, an act by which he exercised a freedom guaranteed

by the constitution and by international conventions cannot be regarded

as a criminal offense.
 

As

the Chairman of the Grand Senate further stated, the effort to unify the

previously divergent decisional practice of panels ended with the

victory of the first view, although this view prevailed in the

nine-member Grand Senate by the narrowest possible margin.  In his

pleading the Chairman of the Grand Senate expressed doubts as to whether

the view which prevailed in the contested decision was sufficiently

representative, especially in view of the fact that certain panels had

more than one judge representing them in the Grand Senate.
 


IV.
 

In

his 16 January 2003 pleading, the Minister of Justice, a secondary

party to the proceeding on the constitutional complaint, expressed his

disagreement with the contested decision.  The Minister of Justice

considers that in the complainant’s case there was a violation of § 2

para. 3 of Act No. 87/1950 Sb, on Criminal Judicial Proceedings (the

Criminal Procedure Code), in relation to § 270 para. 1, lit. b) of the

Criminal Act, No. 86/1950 Coll., on the grounds stated in § 1 paras. 1

and 2 of Act No. 119/1990 Coll., on Judicial Rehabilitation.
 

The

Minister of Justice considers that there was an infringement of

equality under Art. (correctly §) 1 of the then in force Constitution,

for the non-uniformity between recognized rights and imposed duties

quite unequivocally placed in an unfavorable position every citizen who

actually wished to exercise her constitutionally guaranteed religious

freedom, as against those whose convictions lacked spiritual

dimensions.  Art. (correctly §) 16 para. 1 of the constitutional act in

effect at that time,, No. 150/1948 Coll., the „9th of May Constitution“,

recognized to each citizen of the state the right to select any

religious faith whatsoever; on the other hand, § 34 paras. 1 and 2 laid

down the citizens‘ basic duties to the state, among which was also the

duty connected with defense of the homeland.  Under that state of

affairs, the complainant could remain true to his religious convictions

only by incurring criminal law consequences, and, as a result of that

situation, as a believer, he came into conflict with his duties as a

citizen for the defense of the state.
 


V.
 

In

view of the fact that the Grand Senate of the Supreme Court’s Criminal

Collegium decided this complaint of a violation of the law, in

conformity with the Constitutional Court Plenum’s resolution published

as Constitutional Court Notice No. 8/2001 Coll., it is the

Constitutional Court Plenum which is competent to hear the

constitutional complaint against this decision.
 

Once

the Constitutional Court had ascertained that the constitutional

complaint met all formal requirements and that it has been timely

submitted, it proceeded to the consideration of the matter on the

merits.
 


VI.
 

1.
The

constitutional complaint contests the above-designated decision of the

Supreme Court in which the Supreme Court proceeded from the thesis,

according to which, in a proceeding on a complaint of a violation of the

law, it adjudicates the „correctness“ (correct legality) of the

contested decision as well as the „correctness“ (correct legality) of

the proceeding leading up to it ex tunc, that is, in accordance with the

factual situation and state of the law at the time in which the

contested decision was issued, or when the proceeding which led up to

the decision was held; new facts and evidence are not admissible.
 

In

the Constitutional Court’s view, this starting thesis may not be

applied without reservation.  If, thanks to the applicable procedures,

the interpretation even of the very old criminal law norms is carried

out at the present by a court with consequences for adjudging the

criminal prosecution of a person, that is with consequences intruding

into his or her personal sphere, it may not be carried out without

regard to the constitutive values and principles of the democratic

law-based state, such as they are expressed in the Czech Republic’s

currently valid constitutional order.  It is only in this restrictive

sense, that of value discontinuity, that one may conceive of continuity

with „old law“ (see Judgment of the Constitutional Court, Pl.19/93 –

Collection of Judgments and Rulings of the Czech Constitutional Court,

Vol. 1, No. 1 – published as No. 14/1994 Coll.), the application

(legality) of which is the subject of contemporary proceedings on a

complaint of a violation of the law.
 

The

European Court of Human Rights also expressed similar views as to the

application of „old law“ (judgment in the case of Streletz, Kessler and

Krenz v. Germany of 22 March 2001), where, among other things, it stated

that “the courts of such a State, having taken the place of those which

existed previously, cannot be criticised for applying and interpreting

the legal provisions in force at the material time in the light of the

principles governing a State subject to the rule of law.”  This idea was

expanded upon in an even more meaningful manner in the separate opinion

of Judge Levits, supplementing the reasoning given in the judgment.  He

stated:  “It shows clearly that interpretation and application of the

law depend on the general political order, in which the law functions as

a sub-system. (…) The differences in interpretation and application of

the law between democratic and socialist systems cover all important

elements of the law. (…) That brings us to the question whether, after a

change of political order from a socialist to a democratic one, it is

legitimate to apply the “old” law (…) according to the approach to

interpretation and application of the law which is inherent in the new

democratic political order.  I would like to stress that in my view

there is no room for other solutions.  Democratic States can allow their

institutions to apply the law – even previous law, originating in a

pre-democratic regime – only in a manner which is inherent in the

democratic political order (in the sense in which this notion is

understood in the traditional democracies).  Using any other method of

applying the law (which implies reaching different results from the same

legal texts) would damage the very core of the ordre public of a

democratic State. (…) Consequently, interpretation and application of

national or international legal norms according to socialist or other

non-democratic methodology (with intolerable results for a democratic

system) should from the standpoint of a democratic system be regarded as

wrong. (…) In my view, that is a compelling conclusion, which derives

from the inherent universality of human rights and democratic values, by

which all democratic institutions are bound.  At least since the time

of the Nuremberg Tribunal, that conception of the democratic order has

been well understood in the world and it is therefore foreseeable for

everybody.”
 

The Constitutional Court entirely concurs with the view expressed by Judge Levits.

2.
In

view of the fact that what is to be reviewed in the proceeding on the

complaint of a violation of the law is the legality of the

above-designated proceeding and decision in relation to the condemning

decision (also designated above) for the criminal offense of avoidance

of the duty to serve, it is necessary to review whether the contested

Supreme Court decision did not result in the violation of the

complainant’s basic rights, including his basic right to the freedom of

conscience, contained in Art. 15 para. 1 of the Charter.

a) 

The freedom of conscience has constitutive significance for the

democratic law-based state which respects the liberal idea of the

primacy of responsible and dignified human beings before the State –

that is, the idea of esteem (respect and protection) by the state for

the rights of persons and citizens [Art. 1 para. 1 of the Czech

Constitution (hereinafter, “Constitution”)].  In contrast, it is

characteristic of a totalitarian political regime that it does not

respect the autonomy of the individual conscience, as it attempts, even

with the aid of a repressive criminal policy, to suppress the freedom of

conscience of the individual, and by this means to compel her to accept

the will of the ruling elite, which claims recognition for its

decisions as the sole good decisions and, in that sense, the sole

ethical decisions.  This pattern can be seen even at the Czechoslovak,

or Czech, constitutional plain.  Thus the Constitutional Charter, No.

121/1920 Coll., just as the current Charter, does not provide for the

possibility that freedom of conscience, which both expressly lay down,

could be restricted by statute.  While § 15 of the Constitution of 9 May

1950, No. 150/1948 Coll., declared the freedom of conscience, it

negated it at the same time by laying down that the freedom of

conscience does not provide grounds for the refusal to fulfill civic

duties as laid down in ordinary law.  The Constitution of the

Czechoslovak Socialist Republic, No. 100/1960 Coll., did not even make

reference to the freedom of conscience.
 

The

freedom of conscience is manifested in decisions made by the individual

in certain concrete situations, that is, “here and now”, felt as a

profoundly experienced duty.  It is not a matter of the individual’s

attitude toward abstract problems, valid once and for all and in all

situations.  In the case of decisions dictated by conscience, it is the

fusion for the individual of binding moral norms with the situation as

evaluated by her.  It is the integration of recognized norms with an

assessment of the factual situation.  A decision dictated by consciences

is based on the existence of the conscience itself, and not on specific

religious or ideological conceptions.  Apart from the correlation of

the norm and the situation, the structural characteristic of conscience

consists also in a personally experienced sense of an unconditional

duty.
 

It follows from this

that the freedom of conscience cannot be conflated either with the

freedom of faith or with the freedom of religion.  In contrast to these

two freedoms, a decision dictated by conscience is always concrete, as

the subject thereof is concrete conduct in a concrete situation.  It is

only the reasons or maxims which co-create the norm which the conscience

accepts in a given moment that can be abstract, general or absolute.  A

decision dictated by conscience can find in them its normative

justification, which applies when resolving the conflict between such

principle or maxim and the legal norm binding one to the opposite

conduct.  Of course, the situation is always individualized by time,

place, and concrete circumstances.  What is fundamental is that it

concerns a solemn moral decision oriented toward the category of good

and evil [compare, for example, the judgment of the FRG Constitutional

Court in BverfGE 12, 45(55)], which the individual experiences as a

binding duty or an unconditional order to behave in a certain fashion.
 

The

distinction between it and a decision made solely in reference to a

political or ideological motivation (which is an external quantity not

penetrating into the internal moral sphere) or to a psychological

condition (which exists without the necessity to engage in moral

judgment), consists in its specific moral character and its relationship

to the personal moral truthfulness or earnestness which lends to the

decision its sense of unconditionality.
 

b) 

The freedom of conscience is classified among the absolute fundamental

rights, that is, those which may not be restricted by ordinary statute,

the purpose of which would be to restrict such an absolute fundamental

right, in this case the freedom of conscience.  Each statute expresses,

on the one hand, the public interest and, on the other, formulates the

moral convictions of the parliamentary majority, thanks to which it was

adopted, and in this manner formulates the moral conviction of a

majority of society, which the composition of Parliament reflects.  If a

certain legal norm is in conflict with an individual conscience,

certainly this fact cannot lead to the consequence that such legal norm

is non-binding, even if only in relation to the person whose conscience

directs him not to respect the specific legal norm.  The freedom of

conscience can, however, have an effect on the applicability or

enforceability of such legal norm in relation to those persons to whose

conscience it is repugnant.  In weighing whether, in the case of such a

conflict of a legal norm with a concrete assertion of the freedom of

conscience, the freedom of conscience ultimately wins out, it is

necessary to weigh whether such a decision would encroach upon the

fundamental rights of third persons or whether assertion of the freedom

of conscience is not barred by other values or principles contained in

the Czech Republic’s constitutional order as a whole (constitutionally

immanent restriction upon fundamental rights or freedoms).
 


VII.
 

In

principle it is a matter for the Supreme Court to judge whether the law

was violated by the decision contested in a complaint of a violation of

the law.  It is the task of the Constitutional Court to adjudge whether

the interpretation of statutory provisions selected by the Supreme

Court infringes any of the complainant‘s fundamental rights and

freedoms, or to adjudge whether an interpretation of the applied

statutory provisions can be found which would not infringe any of the

complainant’s fundamental rights and freedoms.
 

The

constitutional complaint is well-founded as the Supreme Court, in the

contested decision, did not take sufficiently into account the

complainant’s fundamental right, arising from Art. 15 para. 1 of the

Charter, to freedom of conscience as understood in the above-stated

sense and extent.  Although the complainant referred to his religious

convictions, the refusal (evading) of service (military) duty was in

fact a manifestation of his personal decision dictated by conscience, in

which maxims flowing from the complainant’s faith or religious

convictions merely had played a part.
 

Previous

Constitutional Court decisions relating to the conflict between the

duty to report for military service and fundamental rights have

concentrated primarily upon the conflict between this duty and the

freedom of religious conviction (compare decisions in the cases file no.

II. ÚS 285/97, Collection of Judgments and Rulings of the Czech

Constitutional Court, Vol. 12, No. 117; and file no. II. ÚS 187/2000,

Collection of Judgments and Rulings of the Czech Constitutional Court,

Vol. 21, No. 40).  Due to the divergence of the freedom of conscience

and the freedom of religious conviction expounded above, the

Constitutional Court first reviewed the relationship of the contested

decision to the freedom of conscience in the sense of Art. 15 para. 1 of

the Charter.  The Constitutional Court is of the view that the refusal

to report for military service may be made on grounds not related to

religious conviction and that the Charter protects even that freedom.
 

The

Supreme Court failed to carry out the duty, which it had for the

above-stated reasons, to adjudge the legality of the decision contested

in the complaint of a violation of the law, as well as the proceeding

leading up to it, in the light of Art. 15 para. 1 of the Charter.  The

fact that the Constitution of 9 May denied the freedom of conscience its

character as an „absolute“ right followed alone from the essence of the

political regime enthroned in February, 1948.  The new restrictions

upon the freedom of conscience breached the continuity of the conception

that the freedom of conscience is an absolute right, as it was

protected by the Constitutional Charter of 1920.  The post-1948

constitutional formulation of the freedom of conscience deviated, in

terms of legal philosophy, from the development of fundamental rights

which was begun by the Nuremburg Tribunal and continued with the

adoption of the Universal Declaration of Human Rights.
 

For

a democratic law-based state, which the Czech Republic should be

according to the normative instruction flowing from Art. 1 para. 1 of

the Constitution, it is unacceptable for the Supreme Court to interpret §

267 para. 3 of Act No. 141/1961 Coll., on Criminal Judicial Proceedings

(the Criminal Procedure Code), as subsequently amended, such that the

review of the legality of a contested decision is understood to entail

an interpretation of the applicable „old law“ in accord with the then

contemporary jurisprudence.  For the same reason, when considering the

legality of the original decision contested by the complaint of a

violation of the law, it could not fail to take into account and weigh

the fundamental rights and principles of the Czech constitutional order

which the contested decision encroached upon.  To overlook these norms

of reference and principles does not merely render the Supreme Court’s

decision defective due to the infringement of the complainant’s

individual rights.  In addition, and the Constitutional Court deems it

necessary to make this observation outside of the strict confines of the

case before it, it renders the decision incomprehensible for the

society, for its legal, even constitutional, consciousness, and

contributes to the existing lack of faith in the judiciary in the sense

that Czech courts prove incapable of protecting the rights of citizens

in relation to state power, when that manifests itself in an excessive

manner.  In this way, confidence in the substantive conception of the

Czech Republic’s character as a democratic law-based state is

diminished.  If the principle of legal continuity is not to have a

destructive impact in relation to the Czech Republic‘s character as a

constitutional state, when applying „old law“ the value discontinuity

with that law must consistently be insisted upon, and this approach must

be reflected in judicial decisions.
 

The

Supreme Court in fact overlooked the operation of Art. 15 para. 1 of

the Charter on the interpretation of § 267 para. 3 of the Criminal

Procedure Code, in conjunction with § 270 para. 1, lit. b) of Act No.

86/1950 Sb, the Criminal Code, as it restrictively interpreted the

mentioned provisions of the Criminal Procedure Code and, moreover, the

object of its consideration in relation to the cited provisions of the

Criminal Code was solely the right to religious conviction, not the

freedom of conscience in its dimension as an absolute right.  To the

extent it did so, it continued in the encroachment upon the

complainant’s freedom of conscience which began with the judgment of

conviction in 1954.  The Supreme Court did not, by means of its

decision, cure this encroachment and, thus, failed to respect the duty,

placed upon it by Art. 4 of the Constitution, to accord protection to

fundamental rights.
 

Under

the circumstances, it is not necessary to review possible conflicts with

other fundamental rights, the infringement of which have been alleged,

Notice:  Constitutional Court decisions may not be appealed.

Brno, 26 March 2003