2003/04/15 - I. ÚS 752/02: Danger of Torture

15 April 2003

HEADNOTES

nder

the case law of the ECHR concerning Article 3 of the Convention, and

under Art. 3 of the Convention Against Torture, the Constitutional Court

reviewed whether there are substantial grounds to believe that the

complainant, if expelled, was in danger of torture (the “substantial

grounds test”). Here the Constitutional Court emphasizes that it is not

up to it to state factual violation of the ban on torture, and inhuman

and degrading treatment or punishment in Moldovan prisons, but on the

basis of the evidence presented the Constitutional Court finds that

there are substantial grounds to believe that there is a danger of

violation of that ban in the event of extradition.
 

The

priority of the obligations from agreements on the protection of human

rights, in the event of conflict between obligations under international

agreements, arises primarily from the content of these agreements, in

connection with Art. 1 para. 1 of the Constitution, under which the

Czech Republic is a state governed by the rule of law. The respect and

protection of fundamental rights are defining elements of the

substantively understood state governed by the rule of law; therefore,

in a case where a contractual obligation protecting a fundamental right

and a contractual obligation which tends to endanger that same right

exist side by side, the first obligation must prevail. The

Constitutional Court holds the opinion expressed in the judgment, the

legal conclusion of which the Minister of Justice disagrees with, that

no amendment of the Constitution can be interpreted to the effect that

it would result in restricting an already attained level of procedural

protection of fundamental rights and freedoms (Pl. ÚS 36/01, published

under no. 403/2002 Coll.). The scope of the concept of constitutional

order therefore can not be interpreted only with regard to Art. 112

para. 1 of the Constitution, but in view of Art. 1 para. 1 and 2 of the

Constitution, it is necessary to include in it ratified and promulgated

international agreements on human rights and fundamental freedoms.

Although after amendment of the Constitution (constitutional Act no.

395/2001 Coll.) agreements on the protection of human rights no longer

form an independent category of legal norms with priority in application

under the previous wording of Art. 10, nonetheless they are a special

group of norms, and at the same time represent a reference point of

view, both for the abstract review of norms under Art. 87 para. 1 of the

Constitution, and for proceedings on constitutional complaints.
 



 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 

A

Panel of the Constitutional Court decided on this day in the matter of a

constitutional complaint from the complainant V. M., presently in the

Custodial Prison O., against a decision of the Regional Court in Ostrava

of 4 December 2000, file no. 3 Nt 366/2000, a decision of the High

Court in Olomouc of 28 February 2001, file no. 2 To 10/2001, and a

decision of the Minister of Justice of the CR of 15 October 2002, ref.

no. 594/2001-MO-M, as follows:

The decision of the

Regional Court in Ostrava of 4 December 2000, file no. 3 Nt 366/2000,

the decision of the High Court in Olomouc of 28 February 2001, file no. 2

To 10/2001, and the decision of the Minister of Justice of the CR of 15

October 2002, ref. no. 594/2001-MO-M are annulled due to inconsistency

with Art. 3 of the Convention on the Protection of Human Rights and

Fundamental Freedoms, Art. 3 of the Convention for the Prevention of

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,

Art. 7 of the International Covenant on Civil and Political Rights and

Art. 7 para. 2 of the Charter of Fundamental Rights and Freedoms.



REASONING


I.
 

On

30 December 2002 the Constitutional Court of the CR received the

complainant’s constitutional complaint, in which he sought annulment of

the abovementioned decisions on ground of interference with rights

protected by Art. 3 and Art. 8 of the Convention on the Protection of

Human Rights and Fundamental Freedoms (notification no. 209/1992 Coll.,

the “Convention”).
 

The

Constitutional Court determined from the constitutional complaint and

contested decisions that the complainant is a citizen of the Republic of

Moldavia and that this state requested his extradition for criminal

prosecution on suspicion of committing the crime of theft of property in

an unusually wide scope under Art. 123 of the Criminal Code of the

Republic of Moldova. The contested decision of the Regional Court in

Ostrava decided that extraditing the complainant for criminal

prosecution to the Republic of Moldova is permissible ( § 380 para. 1 of

the Criminal Procedure Code). The contested decision of the High Court

in Olomouc denied the complainant’s complaint against the decision of

the Regional Court (§ 380 para. 2 of the Criminal Procedure Code). The

decision of the Minister of Justice permitted extradition of the

complainant to the Republic of Moldova for criminal prosecution (§ 382

para. 1 of the Criminal Procedure Code).
 

The

complainant contested these decision with a constitutional complaint,

because in his opinion Art. 3 of the Convention can be interpreted to

protect a foreigner from extradition to an applying state if the

foreigner would be exposed the risk of torture or inhuman or degrading

treatment or punishment in that state. If extradited, the complainant

will allegedly be exposed to treatment which is forbidden by Article 3.

In this regard, the complainant referred to Amnesty International

reports from 1997 to 2001 and cited sections which indicate that in

Moldova there is systematic arbitrary detention of suspects, bad

treatment by the police, and that there are cruel, inhuman and degrading

conditions in the jails.
 

The

complainant also relies on Art. 8 of the Convention, which guarantees

respect for family life. He states that he has a wife and son in the

Czech Republic, both Czech citizens, and applies to have his family life

respected by his not being extradited to the requesting state.
 

In

the constitutional complaint the complainant further disputed the

effectiveness of legal assistance provided in proceedings on the

permissibility on extradition; he stated that extradition materials are

not adequate in terms of the European Convention on Extradition, that he

did not commit the acts which are ascribed to him, and that he fled the

country on the basis of personal experience of torture and cruel and

inhuman treatment while he was being held unlawfully and after a warning

that he would be liquidated, for being a politically inconvenient

person, and also out of revenge. He sees the political reasons in the

fact that, as a member of the Christian-democratic front, he supported

joining Romania, and refused to boycott economic and legal reforms; the

reasons for revenge arise from the fact that he pressed for the

punishment of the murderers of another member of the same party,

criticized the inactivity of the authorities in the press, and accused

them of corruption. For these reasons the complainant petitioned for the

annulment of all contested decisions concerning his extradition.
 

At

the same time, the complainant submitted a petition to defer the

executability of the extradition decision, which he justified on the

grounds that in his case the effectiveness of protection depends on

evaluating the substance of the matter before he is forced to leave the

country.
 


II.
 

The

Constitutional Court first decided on the petition to defer

executability of the extradition decision, which it granted by decision

of 10 January 2003, ref. no. I. ÚS 752/02-10, because it found that the

conditions were met for issuing such a decision, as foreseen in § 79

para. 2 of Act no. 182/1993 Coll., on the Constitutional Court, as

amended by later regulations (the “Act on the Constitutional Court”),

and thus deferring executability is not inconsistent with an important

public interest, and that execution of the decision would mean

incomparably greater detriment for the complainant than can arise for

other persons if executability is deferred.
 


III.

For

purposes of evaluating the constitutional complaint, the Constitutional

Court requested the court file kept at the Regional Court in Ostrava

under file no. 3 Nt 366/2000 in the matter of proceedings on

extradition. It determined from the file that in the decision of the

Regional Court in Ostrava which decided that extraditing the complainant

for criminal prosecution to the Republic of Moldova is permissible

under § 380 para. 1 of the Criminal Procedure Code, the court stated the

acts for prosecution of which the complainant was to be extradited, and

stated other findings from which it concluded that all conditions for

extraditing the complainant set by the European Convention on

Extradition (notification no. 549/1992 Coll.), had been met.
 

The

complainant was not a citizen of the Czech Republic, did not have

refugee status and had not been granted asylum, was not to be extradited

to an area of armed conflict, there were no serious reasons preventing

his extradition (e.g. humanitarian or health), extradition was requested

for acts punishable under the law of both states, criminal prosecution

was not barred by the statute of limitations or impermissible due to

another obstacle, and no other circumstances preventing extradition were

found. The court also stated that the submitted file materials did not

indicate any of the circumstances which the complainant raised in his

testimony, i.e. that the criminal prosecution was manufactured and had a

political background. Likewise, the acts for which he is to be

criminally prosecuted are not of a political, but a property-related and

violent nature. Therefore, it concluded that all conditions for

extradition had been met.
 

In

the contested decision of the High Court in Olomouc which denied the

complainant’s complaint against the decision of the Regional Court, the

appeals court stated that, in view of the changes in international

conditions, it was necessary to apply not only the agreement between the

CSSR and USSR on legal assistance and legal relationships in matters of

civil, family and criminal law (decree No. 95/1983 Coll.), the to which

the Czech Republic and the Moldovan Republic are successor states, but

secondarily also the European Convention on Extradition, although the

Moldovan Republic is not a party to that convention (sic! the Moldovan

Republic is a party with effect as of 31 December 1997). The court

further concluded that the complainant is being criminally prosecuted

for a serious crime, whereas his objections on the alleged political

background of his prosecution can not be supported by any credible

facts. The court stated that “on the basis of available information, the

democratic process is taking place in the Republic of Moldova,” “the

available information does not indicate that there is presently in

Moldova mass violation of fundamental human rights which would be the

subject of systematic criticism from the international community,” and

also took into account that the complainant’s statements “indicate a

progressive increase of the repressive procedures he cites on the part

of state bodies of the requesting state” (the complainant progressively

claimed additional repression, including torture). The court then again

evaluated the conditions for extradition (§ 379 para. 1 of the Criminal

Procedure Code and Art. 2 para. 1 of the European Convention on

Extradition) and determined that they had been met. The court did not

find the complainant’s family situation to be a reasons which would

prevent his extradition, and refused to subsume it under humanitarian or

other serious reasons preventing extradition. Thus, in the opinion of

the appeals court no legal obstacles exist preventing extradition of the

complainant to Moldovan justice authorities.
 

The decision of the Minister of Justice which permitted extradition of the complainant does not contain any reasoning.
 

The

Constitutional Court called on the parties to the proceedings to submit

position statements on the constitutional complaint. The Regional Court

in Ostrava, in its statement (of 25 March 2003, ref. no. Spr.

4538/2003), referred to the previous arguments by the general courts,

and proposed denying the constitutional complaint. The High Court in

Olomouc, in its statement (of 27 March 2003, ref. no. Sú 9/2003),

referred to its original decision, stated that it had tried, on the

basis of available information, to comprehensibly address the questions

of the permissibility of extraditing the complainant, and proposed

denying the constitutional complaint.
 

The

Minister of Justice, in response to the Constitutional Court’s request,

on 3 April 2003 (ref. no. M-610/2003) expressed the opinion that the

constitutional complaint should be denied insofar as it contests the

Minister’s decision, for one thing because of the Constitutional Court’s

inadequate jurisdiction to evaluate interference with rights guaranteed

by international agreements, and for another because the Minister’s

decision making did not violate any of the complainant’s rights

guaranteed by constitutional laws. Insofar as the constitutional

complaint contests the decisions of the general courts, the Minister of

Justice considers the complainant’s petition to be late.
 

Concerning

the Constitutional Court’s insufficient jurisdiction to evaluate

interference with rights guaranteed by international agreements, the

Minister of Justice believes that international agreements on

fundamental rights and freedoms do not have the force of a

constitutional act (by argument a contrario Art. 87 para. 2 of the

Constitution, a contrario Art. 88 para. 2 of the Constitution and

interpretation of Art. 89 para. 3 of the Constitution) and are not part

of the constitutional order (a contrario Art. 112 para. 1 of the

Constitution). The Minister of Justice argues with the opinion of the

Constitutional Court expressed in its judgment of 25 June 2002, file no.

Pl. ÚS 36/01 (published under no. 403/2002 Coll.), where, in part VII,

the Constitutional Court interpreted Art. 9 para. 2 of the Constitution

and concluded that the scope of the concept of constitutional order can

not be interpreted only with regard to Art. 112 para. 1 of the

Constitution, but also in view of Art. 1 para. 2 of the Constitution,

and it can also include ratified and promulgated international

agreements on human rights and fundamental freedoms. According to the

Minister of Justice, Art. 9 para. 2 of the Constitution does not permit a

“creative” interpretation of the Constitution and expanding the

enumerations provided in the Constitution. In contrast, according to the

Minister of Justice, this finding could be considered inconsistent with

Art. 9 para. 2 of the Constitution.
 

In

his statement, the Minister of Justice further states that the level of

protection of fundamental rights and freedoms achieved is not a

substantive requirement of a democratic state governed by the rule of

law, as only its most important attributes can be such (Art. 23 of the

Charter, Art. 2 para. 1, Art. 2 para. 3 and 4, Art. 5 and Art. 6 of the

Constitution). Moreover, amendments implemented by constitutional Act

no. 395/2001 Coll. do not necessarily mean reducing the existing

standard of the level of procedural protection. A legal framework which

provides that international agreements have priority in application over

statutes, under Art. 10 of the Constitution, is adequate, because if

the court did not apply such an agreement, the injured party could seek

protection of its right to a fair, lawful trial.
 

Concerning

the complainant’s substantive objections, the Minister of Justice

stated that in deciding to permit extradition he relied on the

evaluation of these questions by the general courts and the decisions of

bodies of the Ministry of the Interior in asylum proceedings.

Concerning the protection of human rights in Moldova in general, he

relied, in particular, on a report from the United States Department of

State, according to which, although certain problems have occurred in

some areas, nonetheless the Moldovan government generally respects human

rights. According to the Minister, excesses occur even in democratic

states, but the important thing is the effort to implement measures so

that human rights will not be violated. He also expressed his doubts

concerning the complainant’s claim that the cause of his persecution in

Moldova is his membership in the Christian Democratic party, as this

party is, according to information obtained, a parliamentary party. He

also believes that his decision is not the complainant’s final recourse

for protection of rights under § 72 para. 2 of the Act on the

Constitutional Court, and therefore the complainant’s petition to annul

the general court’s decisions should be denied for being late (§ 43

para. 1 let. b) of the Act on the Constitutional Court). The final

recourse in relation to decisions by general courts is a complaint

(under § 141 et seq. of the Criminal Procedure Code), on which the High

Court already decided on 28 February 2001.
 

The

Constitutional Court also requested a statement concerning the state of

human rights in the Republic of Moldova to entities which monitor the

condition of human rights, primarily the Office of the UN High

Commissioner for Refugees in Prague and the Czech Helsinki Committee.
 

The

Office of the UN High Commissioner for Refugees in Prague (the

“Office”) sent the Constitutional Court a statement of 13 March 2003, in

which it is of the opinion that human rights are violated in Moldovan

prisons, specifically the right to life and the ban on torture and other

cruel, inhuman, and degrading treatment. The Office reached this

conclusion after studying a statement from the UN High Commissioner for

Refugees in Chisinau and Moldovan human rights organizations (Lawyers

for Human Rights, the Helsinki Committee for Human Rights, and the

League for Protection of Human Rights), reports from the Committee

Against Torture and reports from the United States Department of State,

which it attached to the statement (“Report on the Visit to the

Transnitrian Region of the Republic of Moldova Carried out by the

European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment of Punishment, 27-30 November 2000”; “Alternative

Report to the Initial Report and the First Regular Report of the

Republic of Moldova on the Stage of Implementation of the International

Covenant on Civil and Political Rights” of January 2002; “U. S.

Department of State, Country Reports on Human Rights Practices, Moldova”

of 4 March 2002; “Raportul, Moldovan Helsinki Committee” of January

2003).
 

The Office states,

with reference to the report from the Moldovan Helsinki Committee (MHC),

that under current conditions the right to life, the ban on inhuman

treatment and the right to privacy of any of approximately 11,000

prisoners is de facto being violated. Tuberculosis and the HIV virus are

spreading uncontrollably in the prisons due to overcrowding. Detained

persons are held in overcrowded cells where ventilation practically does

not exist. Health inspections, X-rays, and medical assistance,

including medications, are completely lacking. Every tenth prisoner is

in an active phase of tuberculosis (1150 in 2001; 9.8 %), 178 prisoners

have HIV/AIDS. The number of deaths is climbing (50 annually, 3 % of

prisoners). The highest number of complaints filed during monitoring

visits in holding facilities concerns the presence of persons infected

with tuberculosis among other detainees. The probability of infection

with tuberculosis is forty times higher than it is outside prison

facilities. The MHC cites individual cases of people coming down with

tuberculosis. Detained persons are questioned without an attorney

presence, beatings, electric shock and shackles are used. Here to the

MHC cites individual cases. Funds available per prisoner are EUR 0.18

per day, two and a half times less than the Moldovan laws require, 40 %

of a prisoner’s minimum needs. Prisoners receive no food, fish, dairy

products, fruit, vegetables, etc., i.e. no food except bread. In

February 2001 at the police station in Tiganska St. in Chisinau, with a

capacity for 60 detainees, there were 238 detained persons; there is no

access to sunlight, the artificial light is very weak, the temperature

is high in view of the number of persons in a small unventilated space,

the detainees are not given mattresses or blankets and the prisoners

have no access to showers.
 

The

Office, with reference to the report from the United States Department

of State, also states that judges are influenced in their decision

making and corruption exists. The report from the United States

Department of State reports on the situation in Moldovan prisons

similarly to the MHC report.
 

The

“Report on the Visit to the Transnitrian Region of the Republic of

Moldova Carried out by the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment of Punishment, 27-30 November

2000,” sent by the Office, summarizes that in many cases “the severity

of the illtreatment alleged could be considered as amounting to

torture.” Another report from the same committee on a visit in the

Republic of Moldova on 10-22 June 2001 similarly states that in a great

number of cases the ill treatment is so severe that it can be considered

to be torture.
 

The Czech

Helsinki Committee responded to the Constitutional Court’s requested by a

statement of 24 March 2003, in which it referred to the report of the

Moldovan Helsinki Committee for Human Rights, which it attached (Human

Rights in the OSCE Region, Report 2002, International Helsinki

Federation for Human Rights), and which repeats the abovementioned

facts.
 


IV.
 

The

Constitutional Court’s task in this matter is to evaluate the contested

decisions from the point of view of violation of fundamental rights and

freedoms guaranteed by norms of the constitutional order of the CR. In

this regard, the Constitutional Court reviewed, first of all, the

violation claimed by the complainant of Art. 3 of the Convention,

because extradition would allegedly expose the complainant to treatment

which is forbidden by Art. 3, i.e. torture, or inhuman or degrading

treatment or punishment.
 

In

addition to the obligations arising from the Convention (i.e. of the

Convention on the Protection of Human Rights and Fundamental Freedoms)

the Constitutional Court also considered the obligations arising form

the Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (promulgated under no. 143/1988 Coll., the

“Convention Against Torture”). Its Art. 3 para. 1 provides that no state

party shall expel, return, or extradite a person to another state if

there a serious reasons to believe that he would be in danger of torture

there. For purposes of determining whether such reasons exist, it is

necessary to take into account all related circumstances, in justified

cases including the existence of permanent gross, obvious or mass

violation of human rights in the particular state (cf. Art. 3 para. 2).

The ban on torture is also enshrined in Art. 7 para. 2 of the Charter of

Fundamental Rights and Freedoms and Art. 7 of the International

Covenant on Civil and Political Rights.
 

The

European Court for Human Rights (the “ECHR”) has in the past several

times considered the question whether it is in accordance with Art. 3 of

the Convention for a state party to the Convention to extradite or

expel a complainant to a state where the complainant claims that he will

be subjected to torture or inhuman or degrading treatment.
 

In

the case Soering vs. the United Kingdom, the complainant, who was to be

extradited for criminal prosecution to the USA, where he was in danger

of a death sentence, claimed that the circumstances of that punishment

are inhuman treatment or punishment (decision of 7 July 1989, no. 161,

11 E.H.R.R. 439). He considered important the routine postponement of

carrying out a death sentence for six to eight years after it is

imposed. The ECHR decided that the extraditing state has, under of the

Convention, a certain responsibility for possible subsequent ill

treatment of the extradited individual, and stated that “it would hardly

be compatible with the underlying values of the Convention ... were a

Contracting State knowingly to surrender a fugitive to another State

where there were substantial grounds to believe that he would be in

danger of being subjected to torture, however heinous the crime

allegedly committed. Extradition in such circumstances ... would plainly

be contrary to the spirit and intedment of the article.” The ECHR also

explained why it diverged from its settled practice and in this case

decided on the potential violation of the Convention: “It is not

normally for [the ECHR] to pronounce on the existence or otherwise of

potential violations of the Convention. However, where an applicant

claims that a decision to extradite him would, if implemented, be

contrary to Article 3 by reason of its foreseeable consequences in the

requesting country, a departure from this principle is necessary, in

view of the serious and irreparable nature of the alleged suffering

risked, in order to ensure the effectiveness of the safeguard provided

by that Article.”
 

Other

cases decided by the ECHR, which can be distinguished from the

complainant’s case and from the Soering case, illustrate the extension

of interpretation of Article 3 in the case law of the ECHR. In other

cases it decided whether violation of Art. 3 can take place in

connection with expulsion, where the source of the danger to the

complainant is not the public power of the receiving state, but other

circumstances. In the case D. v. United Kingdom, the complainant,

originally from the island of St. Kitts, who had been repeatedly

convicted in Great Britain for possession of cocaine, after his prison

sentence ended asked not to be expelled to St. Kitts, and objected that

he had been diagnosed with AIDS and that he was dependent on health care

and medications available in Great Britain (verdict of 2 May 1997, 24

EHHR 423). The ECHR emphasized that foreigners affected by expulsion

fundamentally have no claim to remain in the territory of the state

party to the Convention; nonetheless, under the very exceptional

circumstances of this case, and in view of fundamental humanitarian

concerns, it stated that carrying out the decision to expel the

complainant would be a violation of Art. 3 of the Convention.
 

Similarly,

in the case Ahmed vs. Austria the ECHR decided that expulsion to

Somalia would be violation of Art. 3 (verdict of 17 May 1996, 24 ECHR

278). The complainant faced a serious risk of torture of inhuman or

degrading treatment, caused by the factions in the on-going civil war.

This risk in and of itself was sufficient for the decision that

extradition would be a violation of the Convention.
 

Under

the case law of the ECHR concerning Article 3 of the Convention, and

under Art. 3 of the Convention Against Torture, the Constitutional Court

reviewed whether there are substantial grounds to believe that the

complainant, if expelled, was in danger of torture (the “substantial

grounds test”).
 

The decision

of the Regional Court in Ostrava indicates that the court did not

consider the question of substantial grounds, and merely stated that the

complainant should not be extradited to an area of armed conflict, and

that there are no humanitarian, health, or other serious grounds

preventing extradition. The High Court in Olomouc, in the reasoning of

its decision, stated that on the basis of available information, the

democratic process is taking place in the Republic of Moldova and “the

available information does not indicate that there is presently in

Moldova mass violation of fundamental human rights which would be the

subject of systematic criticism from the international community.” The

decision of the Minister of Justice does not contain reasoning, but

according to the position statement on the constitutional complaint the

Minister relied, in particular, on the report from the United States

Department of State, according to which “although certain problems have

occurred in some areas” (quoted from the statement of the Minister of

Justice), nonetheless the Moldovan government generally respects human

rights. According to the Minister, excesses occur even in democratic

states, but the important thing is the effort to implement measures so

that human rights will not be violated.
 

The

Constitutional Court examined whether substantial grounds exist to

believe that, if extradited, the complainant was in danger of torture,

reached an opinion completely different from the opinion of the general

courts, and found that the constitutional complaint is justified. The

statement form the Office of the UN High Commissioner for Refugees and

the attached monitoring reports are several sources which confirm,

independently of each other, that these substantial grounds exist.

Conditions in the Moldovan prisons, where the complainant, if

extradited, would be placed while being prosecuted and, if found guilty

by a court, while serving his sentence, are realistically threatened

interference in the complainant’s right to the ban on torture, and

inhuman and degrading treatment or punishment. In this regard the

general courts interfered with the complainant’s rights protected by

Art. 3 of the Convention on the Protection of Human Rights and

Fundamental Freedoms, Art. 3 of the Convention Against Torture and Other

Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 7 of the

International Covenant on Civil and Political Rights and Art. 7 para. 2

of the Charter of Fundamental Rights and Freedoms. Here the

Constitutional Court emphasizes that it is not up to it to state factual

violation of the ban on torture, and inhuman and degrading treatment or

punishment in Moldovan prisons, but on the basis of the evidence

presented the Constitutional Court finds that there are substantial

grounds to believe that there is a danger of violation of that ban in

the event of extradition. The Constitutional Court is aware of the

gravity of the consequences of its judgment; nonetheless, its task in

this case is protection of fundamental rights, and it does not have the

jurisdiction to inform the appropriate bodies of the Council of Europe

of the inadequate observance of the standard of protection of human

rights in some Council of Europe member states.
 

In this situation, it was not necessary to consider the interference with other rights, raised by the complainant.
 

In

the complainant’s case, two international obligations of the Czech

Republic stand in conflict. On one side is the obligation of the Czech

Republic, as a part to the European Convention on Extradition (no.

549/1992 Coll. ), in which it agreed to extradite all persons who are

being prosecuted for a crime by the appropriate bodies of the applying

party (Art. 1). On the other side, the Czech Republic is also bound by

the cited international agreements on human rights and fundamental

freedoms. The Constitutional Court here states that in such a case it is

appropriate to give priority to obligations from the agreements on the

protection of human rights.
 

The

priority of the obligations from agreements on the protection of human

rights, in the event of conflict between obligations under international

agreements, arises primarily from the content of these agreements, in

connection with Art. 1 para. 1 of the Constitution, under which the

Czech Republic is a state governed by the rule of law. The respect and

protection of fundamental rights are defining elements of the

substantively understood state governed by the rule of law; therefore,

in a case where a contractual obligation protecting a fundamental right

and a contractual obligation which tends to endanger that same right

exist side by side, the first obligation must prevail.
 

Although

after amendment of the Constitution (constitutional Act no. 395/2001

Coll.) agreements on the protection of human rights no longer form an

independent category of legal norms with priority in application under

the previous wording of Art. 10, nonetheless they are a special group of

norms, and at the same time represent a reference point of view, both

for the abstract review of norms under Art. 87 para. 1 of the

Constitution, and for proceedings on constitutional complaints. In this

respect the Constitutional Court does not agree take the opinion of the

Minister of Justice, indicated by his statement on the constitutional

complaint.  The Constitutional Court holds the opinion expressed in the

judgment, the legal conclusion of which the Minister of Justice

disagrees with, that no amendment of the Constitution can be interpreted

to the effect that it would result in restricting an already attained

level of procedural protection of fundamental rights and freedoms (Pl.

ÚS 36/01, published under no. 403/2002 Coll.). The scope of the concept

of constitutional order therefore can not be interpreted only with

regard to Art. 112 para. 1 of the Constitution, but in view of Art. 1

para. 1 and 2 of the Constitution, it is necessary to include in it

ratified and promulgated international agreements on human rights and

fundamental freedoms, for the reasons given above.
 

Even

if it were possible to grant that the Minister of Justice is correct

that the Constitutional Court does not have jurisdiction to decide on

violation of rights guaranteed by an international agreement, the

Constitutional Court would review potential violation of the ban on

torture and inhuman and degrading treatment guaranteed by Art. 7 para. 2

of the Charter of Fundamental Rights and Freedoms (the “Charter”) and

would reach the identical conclusion. The Constitutional Court presumes

that the Minister of Justice considers the Charter to be a referential

norm in proceedings on constitutional complaints, although the

Constitutional Court is bound, stricto sensu, by constitutional acts,

which the Charter is not, because under no. 2/1993 it was only

promulgated by resolution of the leadership of the Czech National

Council as a component of the constitutional order of the CR, and

constitutional Act no. 23/1991 Coll., which introduced the Charter as a

constitutional act, was deconstitutionalized by Art. 112 para. 3 of the

Constitution.
 

The

Constitutional Court also does not share the opinion of the Minister of

Justice concerning the lateness of the petition to annul the decisions

of the general courts. We must grant that the Minister of Justice is

correct that a mere statement that extradition is permissible does not

yet mean that a person will be extradited. However, unlike the Minister

of Justice, the Constitutional Court sees, precisely in this fact,

grounds why the Minister of Justice’s decision to permit extradition

must be understood as the last recourse which the law provides to

protect the complainant’s right. On the contrary, in view of the fact

that one of the attributes of a constitutional complaint is its

subsidiarity (under § 75 para. 1 of the Act on the Constitutional

Court), in the event that the complainant turned to the Constitutional

Court at the moment when the court’s decision on the permissibility of

extradition went into legal effect (§ 380 para. 3 of the Criminal

Procedure Code), and before permission to extradite was issued by the

ministry, his complaint would have to be denied as impermissible because

it did not exhaust all procedural means for protection of rights. The

constitutional judiciary is based, above all, on review of matters in

which unconstitutionality can not be corrected in any other manner, and

in the event that the Minister of Justice did not permit extradition,

there would simply be no interference in rights guaranteed by the norms

of the constitutional order through the decisions of the general courts.
 

In

this situation the Constitutional Court considered in what extent it is

appropriate to annul the decisions contested by the constitutional

complaint. It evaluated on one side the application of the principle of

minimizing interference with decisions of the Minister of Justice and

the general courts, and on the other side the complainant’s fundamental

right to personal freedom, as the complainant is placed in extradition

custody until a decision on extradition is issued. Thorough minimizing

of the Constitutional Court’s interference would prolong the period

during which the complainant’s freedom is restricted. Therefore, in this

case the Constitutional Court was convinced that protection of the

complainant’s personal freedom must prevail over the principle of

minimizing interference with the contested decisions, and decided as is

stated in the verdict.

Notice: Decisions of the Constitutional Court can not be appealed.

Brno, 15 April 2003