2005/03/31 - I. ÚS 554/04: Personal Freedoms

31 March 2005

HEADNOTES

 

In

the case of the imposition of an unconditional sentence of

imprisonment, it is manifestly also necessary to examine whether or not,

in connection with the length of the proceeding, the interference with

the complainant’s personal liberty (Art. 8 para. 2 of the Charter),

generally foreseen by the constitutional order, remains an interference

that is proportional.  In other words, it is necessary to examine the

relation of the public good, represented by the objective of punishment,

to the fundamental right to personal liberty, which may be restricted

only by law, yet only under the condition that it is a measure necessary

in a democratic society and the aim pursued cannot be accomplished by

less restrictive means.  That is, even statutorily foreseen restrictions

on fundamental rights must be interpreted in a constitutionally

conforming manner such that, among other things, their application

passes the test of proportionality.

The protection of the right, under Art. 6 para. 1 of the Convention, to

a proceeding of a commensurate length, alternatively to redress for its

violation, can be attained even by means which are peculiar to criminal

law.  Thus the ordinary courts are obliged to make use of all such

means afforded by criminal law in order to redress the violation of the

right to have one’s matter heard within a reasonable time, alongside a

violation of the right to personal liberty.  This should be accomplished

in such a manner as to ensure, above all, the protection of the

complainant’s fundamental rights, and at the same time to exclude that

the Czech Republic becomes responsible under international law for the

violation of its obligations arising from the Convention.

The ordinary courts‘ deliberations on punishment or, in connection with

the period of time that has passed since the commission of the offense

and in view of the length of the criminal proceeding, directly on the

further permissibility of prosecution itself, must be structured onto

three planes.  The first consists of considerations resting on criminal

law enactments, followed by the test of proportionality flowing from the

imperative of the law-based state and of personal liberty as construed

within it (the constitutional plane), and lastly placing the length of

the proceeding into the balance in the eventuality that a sentence is

imposed (the plane of the Convention and responsibility under

international law).


 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


I N THE NAME OGF THE CZECH REPUBLIC

 
On

31 March 2005 the Constitutional Court, in a panel composed of its

Chairman, JUDr. Miloslav Výborný, and Justices, JUDr. Jiří Mucha and

JUDr. Eliška Wagnerová (Justice Rapporteur), in the matter of the

constitutional complaint of Petr Holeček . . . currently serving a

sentence in the Kuřim Penitentiary . . . against the 26 May 2004 ruling

of the Supreme Court of the Czech Republic, file no. 8 Tdo 358/2004,

with the Supreme Court of the Czech Republic taking part as a party to

the proceeding, decided as follows:

I.

Due to its failure to respect the principles contained in Art. 1 para. 1

and Art. 4 of the Constitution of the Czech Republic, the Supreme Court

of the Czech Republic, in the 26 May 2004 ruling, file no. 8 Tdo

358/2004, violated the complainant’s fundamental right under Art. 8

para. 2 of the Charter of Fundamental Rights and Basic Freedoms.
II. These rulings are therefore quashed.

 


REASONING


I.
 

In

a timely filed constitutional compliant, that duly met the other

requirements, the complainant contested the decision of the Supreme

Court of the Czech Republic specified above.
 

As

the complainant stated in his constitutional complaint, in the 28

February 2002 judgment of the Regional Court in Brno, file no. 46 T

17/2001, in conjunction with the 9 October 2003 judgment of the High

Court in Olomouc, file no. 1 To 82/2003, the complainant was found

guilty of committing the criminal offense of fraud under § 250 paras. 1,

4 and the criminal offense of embezzlement under § 248 paras. 1, 3 lit.

c) of the Criminal Code and was given a total sentence of imprisonment

of five and one half years, to be served in a high security

penitentiary.
 

The

complainant submitted an extraordinary appeal against the appellate

court’s judgment, and the Supreme Court of Czech Republic, in the ruling

contested in this case, rejected that appeal as manifestly unfounded.
 

The

complainant is of the view that, in issuing its ruling, the appellate

court violated his right to fair process under Art. 36 para. 1 of the

Charter of Fundamental Rights and Basic Freedoms and Art. 6 para. 1 of

the Convention for the Protection and Human Rights and Fundamental

Freedoms, as the criminal prosecution should have been dismissed

pursuant to § 11 para. 1 lit. j) of the Criminal Procedure Code.
 

In

this connection, the complainant made reference to the rulings of the

Supreme Court of the Czech Republic, file nos. 4 Tz 1/2002 and 7 Tz

316/2001, in which the Supreme Court reached the legal opinion that for a

proceeding to last more than six years brings it into conflict with the

Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter „Convention“).  According to Art. 6 para.1 of the

Convention, parties to a judicial proceeding have the right to fair

process and the resolution of their matter within a reasonable time. 

According to the complainant, the constant jurisprudence of the European

Court of Human Rights is constructed on the position that it is not

tolerable for a criminal proceeding (up through the final decision) to

last more than six years.  In addition to the judgments cited in the

above-mentioned Supreme Court rulings, the complainant referred to the

judgment in the matter of Santos v. Portugal, in which proceeding

lasting six years and two months was determined to be disproportionately

long, this despite the fact that the complainant had been missing

during part of that period.
 

The

complainant further drew attention to the fact that, in the

above-mentioned rulings, the Supreme Court of the Czech Republic

inferred that, if the infringement of the right to fair process gave

rise to a claim of just satisfaction on the part of the injured party, a

means must be found, according to the Czech legal order, how to deduce

consequences from the violation of these rights.  The complainant

inferred that, according to the views of the Supreme Court of the Czech

Republic as stated in the above-cited decisions, the analogical

application of § 11 para. 1 lit. ch) of the Criminal Procedure Code

(cited, according to relevant rulings, in the wording prior to

amendment) is just such an acceptable manner.
 

The

complainant further referred to the content of ruling no. 7 Tz

316/2001, in which the Supreme Court of the Czech Republic explicitly

stated that, if the right and obligation of the state to prosecute and

punish a perpetrator comes into extreme conflict with the right of the

accused to have his case heard within a reasonable time, by its

inactivity the state deprives itself of the right to prosecute and

punish the perpetrator of criminal conduct.  In the complainant’s view,

the Supreme Court of the Czech Republic established that such a manner

of proceeding by bodies active in the criminal justice system markedly

weakens the legal certainty of the accused and his confidence that state

authorities will safeguard his fundamental rights and basic freedoms.
 

According

to the complainant, it must be emphasized, in relation to the specific

criminal prosecution against him, that it was initiated in 1993, in the

period from 4 May 1995 until 22 October 1997 not a single procedural

step was taken, the preliminary proceeding was completed on 15 December

1998, the indictment was issued on 15 February 1999, and the first main

hearing was not scheduled until 20 February 2002.
 

The

complainant believes that, with the exception of motion to admit

further evidence concerning the graphological testing of the

authenticity of his signature, he did not contribute in any way to the

inordinate length of the proceeding.  According to the complainant,

however, that delayed the passing of judgment by several months and did

not have substantial influence on the overall length of the criminal

proceeding.
 

In the

extraordinary appeal, the court did not, however, concur with this line

of argument; on the contrary, it referred to the Constitutional Court

ruling, no. II. ÚS 32/2003, according to which the violation of the

right to fair process, in the form of incommensurate delay, does not

establish grounds for the application by analogy of § 11 para. 1 lit. j)

of the Criminal Procedure Code.  At the same time, it cites a further

two Constitutional Court judgments, nos. IV. ÚS 215/96 and II. ÚS

70/97.  According to the complainant, however, these judgments cannot be

considered as evidence of constant jurisprudence; moreover, they do not

concern the field of criminal law, rather civil and administrative

law.  In the complainant’s view, broad conclusions in the field of

criminal law cannot be drawn from these Constitutional Court decisions. 

In this context, the complainant made repeated reference to the Supreme

Court’s view, contained in its ruling no. 7 Tz 316/2001, according to

which international obligations, especially where they take precedence

over domestic law, may not be mere proclamations, the violation of which

should have no repercussions for the state in question.  The opposite

interpretation would in no way compel the signatories to rectify a

problem and in essence would allow for the unlimited violation of the

right in question.  Such an interpretation would conflict with Art. 17

of the Convention, which provides that „[N]othing in this Convention may

be interpreted as implying for any State, group, or person any right to

engage in any activity or perform any act aimed at the destruction of

any of the rights and freedoms set forth herein or at their limitation

to a greater extent than is provided for in the Convention.“
 

According

to the complainant, the court’s arguments in the extraordinary appeal,

which were based on the Constitutional Court decision, no II. ÚS

32/2003, represented de facto a defense of the outdated theory of legal

dualism, where the infringement of international obligations do not

result in direct effects, on the domestic law plane.  Thus, in the

complainant’s view, the cited Article 17 of the Convention does not

represent a binding interpretational rule, according to which a

signatory state may not consciously conduct a criminal trial in conflict

with its own international obligations and leave it up to the convicted

person to submit ex post a complaint against that state to the European

Court of Human Rights.  This is all the more the case as the Convention

represents a directly applicable part of the legal order which is of a

higher legal force than the Criminal Procedure Code itself.
 

The

complainant further refers to the fact that, since the start of the

criminal prosecution, he has faced a possible imprisonment in a range

from five to twelve years and that after a criminal proceeding lasting

ten years, which in essence corresponds to the length of the period of

limitations according to the rules in effect when the criminal

prosecution was initiated, he was convicted and given a sentence of five

and a half years imprisonment.  In other words, the complainant has

been affected by an ongoing criminal proceeding for a period of more

than fifteen years, has been deprived of the genuine possibility to make

further plans for his personal life, to make practical arrangements for

his personal relations.  In addition, in the complainant’s view, after

decades of life as an upright citizen, a long-term sentence of

imprisonment represents sheer repression without any educational

effects.
 

In consideration

thereof the complainant proposed that the Constitutional Court quash the

contested ruling of the Supreme Court of the Czech Republic.
 

In

reaction to the Constitutional Court’s request, the Chairman of the

relevant panel of the Supreme Court of the Czech Republic gave his view

on the submitted constitutional complaint.  The Supreme Court of the

Czech Republic above all made reference to the reasoning in the

contested ruling, in which it stated that all circumstances that are

significant for the resolution of the issues in dispute, as well as to

the consideration which it guided its decision.  It also stated that the

objections put forward by the complainant in his constitutional

complaint are a verbatim repetition of the arguments made by him in the

extraordinary appeal.
 

The

Supreme Court of the Czech Republic further observes that it had agreed

with the accused objections regarding delay in the criminal proceeding

and noted that the infringement of the right to have ones matter heard

within a commensurate time represents a significant encroachment upon

the principles guaranteeing the right to fair process.  At the same

time, however, it stated that this fact did not, in and of itself,

establish grounds for proceeding in accordance with § 11 para. 1 lit. j)

of the Criminal Procedure Code, that is, for dismissing the criminal

prosecution in consequence of the infringement of Art. 6 para. 1 of the

Convention.
 

To the extent

the complainant seeks the dismissal of the criminal prosecution and

bases his assertion on the Supreme Court decisions, nos. 4 Tz 1/2002 a 7

Tz 316/2001, these are extraordinary decisions which cannot be

considered as groundbreaking, as not only the Supreme Court, but also

the Constitutional Court later departed from this decisional practice

(the Supreme Court of the Czech Republic cited a number of its

decisions, as well as Constitutional Court judgments nos. I. ÚS 296/04,

and II. ÚS 7/03 and its rulings nos. II. ÚS 527/03 and IV. ÚS 487/03). 

It follows from all these decisions that the only appropriate way to

proceed in a trial which has been unreasonably long, is to declare the

infringement of the constitutionally guaranteed right to have ones

matter heard within a reasonable time and award just satisfaction, in

the sense of Art. 41 of the Convention, to the person who feels affected

in his rights by the conduct of the criminal justice bodies.  The

European Court of Human Rights itself sanctioned an infringement of the

rules laid down in Art. 6 para. 1 of the Convention by concluding that

the state was responsible in relation to the accused and then by

awarding just satisfaction in the form of monetary compensation.  In the

Supreme Court’s view, in none of its decisions did it elect a remedy in

the form of dismissing a proceeding, which would, in essence, represent

a breach of the principle of officiality and a weakening of the rights

of the complaining party.
 

The

Supreme Court of the Czech Republic is thus of the view that it

proceeding in accordance with the appropriate provisions of the Criminal

Procedure Code and that its decision did not result in a violation of

Art. 6 para. 1 of the Convention, as the complainant asserts in his

constitutional complaint.  The Supreme Court of the Czech Republic thus

proposes that the Constitutional Court deny the complaint by rejecting

it on the merits in its judgment.
 

In

order to assess these objections and the assertions of the complainant

and the party to the proceeding, the Constitutional Court also requested

from the Regional Court in Brno the case file, no. 46 T 17/2001.
 


II.
 

In

accordance with the work schedule, the constitutional complaint was

allotted to JUDr. Eliška Wagnerová, Ph.D, as Justice Rapporteur, who as

Deputy Chief Justice of the Court was then assigned as a non-permanent

member of the Constitutional Court’s First Panel.  Following the change

of the work schedule, brought about by the addition to the

Constitutional Court of a thirteenth Justice, with effect from 17

September 2004 the Justice Rapporteur was commissioned as a

non-permanent member of the Fourth Panel.  According to § 4 para. 1 of

the current work schedule, (see www.usoud.cz) the constitutional

complaint in this case must be heard by the panel to which is assigned

the Justice Rapporteur to whom the matter was allotted; however, the

matter retains the same file number.  For this reason, the

constitutional complaint was heard by the Constitutional Court’s Fourth

Panel, although it did retain the file no. I. ÚS 554/04.
 

In

conformity with § 44 para. 2 of Act No. 182/1993 Coll., on the

Constitutional Court, as amended (hereinafter „Act on the Constitutional

Court“), the Constitutional Court sought the consent of the parties to

the proceeding to dispense with an oral hearing as it came to the

conclusion that further clarification of the matter cannot be expected

from such a hearing.
 

After

the Constitutional Court declared that the constitutional complaint is

admissible (§ 75 para. 1 a contrario of the Act on the Constitutional

Court), was timely submitted (§ 72 para. 3 of the Act on the

Constitutional Court), and fulfills the other requirements called for by

the Act [§ 30 para. 1, § 72 para. 1 lit. a) of the Act on the

Constitutional Court], it proceeded to consider the merits of the

matter.  It then came to the conclusion that the complaint is

well-founded, as the contested decisions constituted a violation of the

complainant’s fundamental rights, however on grounds other than those

adduced by the complainant in his constitutional complaint.
 


III.
 

The

right to have one’s matter heard without unnecessary delay, or the

right to have one’s matter resolved within a commensurate time, is an

integral part of the right to fair process, that is the fundamental

rights guaranteed in Art. 36 para. 1, in conjunction with Art. 38 para.

2, of the Charter of Fundamental Rights and Basic Freedoms (hereinafter

„Charter“) and Art. 6 para. 1 of the Convention.  The Constitutional

Court has announced this proposition of law in many of its decisions in

which it considered the incommensurate length of the proceeding (for

example, cases nos. I. ÚS 5/96, IV. ÚS 358/98, and I. ÚS 600/03).  The

time-frame within which parties to a proceeding receive a final decision

in a matter is an inseparable part of the benchmark of the overall

fairness of the proceeding.  The greater this time-frame is, the more

indistinct are the contours of justice in the eyes of the direct parties

to the proceeding, but also in the general perception of the public and

in public opinion.  On the whole, this weakens the credibility of the

state, and specifically that of the judicial branch.  A proceeding that

is of an incommensurate length is thus directly reflected in citizen’s

trust in the state, its institutions, and in the law, which is a

foundational condition for the functioning of a legitimate, democratic

law-based state.
 

In the case

under consideration is being adjudicated whether it constitutes an

infringement of the complainant’s fundamental rights for the Supreme

Court of the Czech Republic, where it has acknowledged in its contested

decision that the proceeding has been unreasonably long and was burdened

in some phases by delays, not to weigh this conclusion when deciding on

the merits of the case, and thus to tolerate the result of the

proceeding before the lower ordinary courts.  On the contrary, the

Supreme Court of the Czech Republic inferred that such a conclusion does

not constitute „such a circumstance as could justify the dismissal of a

criminal prosecution in consequence of the violation of Art. 6 para. 1

of the Convention, as there was not in this case an extreme conflict

between the rights of the accused and the state, assuring the due course

of the criminal proceeding.“
 

As

a preface, the Constitutional Court states that it is familiar with the

conclusions contained in the Supreme Court’s current jurisprudence

relating to the consequences of an infringement of the right to a

criminal proceeding of a commensurate length, which would be reflected

in the possibility, or even the obligation, to dismiss a criminal

proceeding [§ 11 para. 1 lit. j) of the Criminal Procedure Code].  In

most of its decisions in the past, the Supreme Court did not concur with

the interpretation given by certain lower court, which had inferred

from the disproportionate length of a criminal proceeding, thus from the

infringement of Art. 6 para. 1 of the Convention, the duty to dismiss

the criminal prosecution, although there are decisions to which the

complainant referred in the instant constitutional complaint and in

which the Supreme Court of the Czech Republic accepted and affirmed this

conclusion (4 Tz 1/2002, 7 Tz 316/2001).  The prevailing approach in

the jurisprudence of the Supreme Court of the Czech Republic is for that

Court to accept such lower court decisions solely in the circumstance

that the proceeding was dismissed at some point before the matter was

decided on the merits.  If, for example, the proceeding was dismissed

during the appellate phase, that is, after the reversal of the judgment

on the merits, where the infringement of Art. 6 para. 1 of the

Convention was considered as grounds for the reversal, the Supreme Court

of the Czech Republic did not accept such decision and declared that,

to the extent the proceeding has already reached the merits, it must be

decided on the merits, and to the extent it was decided on the merits,

in the Supreme Court’s view, the decision cannot be quashed due to the

infringement of the right to have the matter heard within a reasonable

time (compare Hrachovec, P., Extraordinary Appeals in Criminal Matters,

the Third Year, The Bulletin of Advocacy, 11-12/2004, p. 19).  Similarly

as in the case of its presently contested ruling, in its prevailing

jurisprudence the Supreme Court of the Czech Republic proceeds on the

basis of the view that the Convention prescribes for such cases neither

that criminal prosecution is impermissible, nor that there are grounds

for quashing the judgment, rather it allows only for just satisfaction

pursuant to Art. 41, unless the judgment that the Convention has been

infringed itself constitutes sufficient satisfaction.
 

In

a number of its past decisions, the Constitutional Court has concurred

with that interpretation (rulings nos. II. ÚS 32/03, II. ÚS 7/03, II. ÚS

527/03, III. ÚS 217/03, III. ÚS 95/04, and IV. ÚS 8/03), where it

concluded that a criminal prosecution may not be dismissed merely due to

delay in the proceeding. 


IV.
 

In

the matter under consideration, the Supreme Court of the Czech Republic

addressed the infringement of Art. 6 para. 1 of the Convention and the

consequences thereof for the criminal prosecution of the complainant in a

manner which, for that matter, the Constitutional Court had also in the

past in the above-mentioned decisions.  In the matter currently under

consideration, however, the Constitutional Court came to the conclusion

that, along with the issue of fair process and the component thereof,

that is the right to have one’s matter heard within a commensurate time,

it is also necessary to examine the issue of what consequences a

violation of what are by their nature procedural fundamental rights has

in the sphere of the complainant’s fundamental rights which are by their

nature substantive.  In the case of the imposition of an unconditional

sentence of imprisonment (as in the given case), it is manifestly also

necessary to examine whether or not, in connection with the length of

the proceeding, the interference with the complainant’s personal liberty

(Art. 8 para. 2 of the Charter), generally foreseen by the

constitutional order, remains an interference that is proportional.  In

other words, it is necessary to examine the relation of the public good,

represented by the objective of punishment, to the fundamental right to

personal liberty, which may be restricted only by law, yet only under

the condition that it is a measure necessary in a democratic society and

the aim pursued cannot be accomplished by less restrictive means.  That

is, even statutorily foreseen restrictions on fundamental rights must

be interpreted in a constitutionally conforming manner such that, among

other things, their application passes the test of proportionality.

In order to carry out this test, it is necessary, first of all, to examine:

a)  

 factors which are significant for assessing the length of the

proceeding from the perspective of delays caused by state bodies, that

is, bodies in criminal justice, in relation to the overall length of the

proceeding, the seriousness of the criminal accusation, the extent and

difficulty of the subject-matter of the criminal proceeding, and last

but not least the extent of the separate burden to which the accused is

subjected in connection with the length of the criminal proceeding; in

contrast, delays in the proceeding caused by the accused may not be

taken into consideration;
 

b)  

 factors important for the assessment of the objective of punishment,

such as it is defined in § 23 para. 1 of the Criminal Code:  1.

indispensability or necessity of the protection of society from the

specific perpetrator of a criminal offense (special deterrence),

assessed in light of the life which the perpetrator led after the

commission of the act for which he is prosecuted until the decision in

his case; 2. the ascertainment whether the accused (again in view of his

life style during the above-defined period of time) actually requires

education in leading an upright life by means of a punishment imposed in

a specific amount, or whether through punishment at all; 3. the actual

effectiveness of the punishment imposed in terms of its educative effect

on the other members of society (general deterrence) in connection with

the lapse of time since the criminal offense was committed.

Following the analysis of the individual factors contained in the two

above-specified groups, it will be necessary to draw a conclusion on the

issue of whether the restriction of the complainant’s personal liberty

in consequence of the imposition of punishment, alternatively the

restriction of his fundamental rights resulting from the criminal

prosecution itself, are still in a commensurate (proportional) relation

to the protection of the public good, as specified under b), thereby

attained.
 


A)
 

An

assessment of the length of the proceeding and it proportionality is a

relative issue, in which it is necessary to review the relation of the

length of the proceeding to further attributes of the proceeding, such

as the complexity of its subject matter, the need for the admission of

evidence in the course of the proceeding, the conduct and procedural

steps of the parties to the proceeding, etc.  The conclusion on whether

the length of a specific proceeding is commensurate or not, can always

be formulated in view of these factors by which the proceeding was

directly influenced.
 

In the

given case, the Constitutional Court ascertained from the file of the

Regional Court in Brno that the criminal prosecution of the complainant

had been initiated by the 18 May 1993 resolution of the investigator,

ČVS: MVV – 1955/20-93, which was delivered to the complainant on 21 May

1993.  The criminal prosecution concerned only certain acts for the

commission of which the complainant was subsequently found guilty in a

judgment that became final and effective.  The criminal proceeding was

completed on 9 October 2003, when the judgment of the High Court in

Olomouc, file no. 1 To 82/2003, became final and effective.  Thus,

altogether the proceeding lasted more than 10 years.
 

In

the course of the proceeding, the Constitutional Court found that there

were several phases during which the competent bodies in the criminal

justice system remained entirely inactive, in other words, in which they

took no procedural steps whatsoever.  At the very beginning of the

preliminary proceeding, it took more than one year from the initiation

of the criminal proceeding before the complainant was questioned (30 May

1994).  The Constitutional Court has ascertained that between 4 May

1994 and 15 October 1997, that is for a period of more than two years,

not a single procedural step was taken; likewise the period of time that

elapsed from the issuance of the indictment by the state attorney (15

February 1999) until the first step was taken by the Regional Court in

Brno (a closed hearing on 4 September 2001) was again in excess of two

years.  It can thus be concluded both that bodies in the preliminary

proceeding and the ordinary court itself significant delayed the

proceeding, which contributed to the proceeding’s overall length.
 

In

contrast, the complainant’s conduct did not in any significant way

contribute to the overall length of the proceeding.  In the course of

the proceeding, the complainant and his defense attorney cooperated with

the bodies of the criminal justice system, and appeared for the various

phases of the criminal proceeding.  The sole exception was the

complainant’s action during February, 2002, when the complainant failed

to take delivery of documents, thus thwarting the holding of the main

hearing ordered for 21 February 2002, as well as his motion, made in the

course of the of the main hearing on 8 October 2002, to obtain an

expert opinion (from the field graphology) on his hand-written

signature, even though he must have been aware of the fact that he had

personally signed these documents.  An expert opinion on handwriting was

then delivered to the court on 13 January 2003.  The complainant

thereby contributed to prolonging the proceeding by a total of four

months (February 2002, and November, 2002 until January, 2003).
 

There

is not doubt that additional factors also had some impact on the

overall length of the proceeding, above all the considerable extent of

the complainant’s activities which the bodies of the criminal justice

system assessed, further the nature of this activity and changes in the

legal rules, in which are reflected, among other things, the development

of societal reflection upon conduct such as the complainant‘s.  It must

be mentioned that the complainant committed the given conduct in the

period 1991-1992, when the entrepreneurial milieu and market economy

principles were only gradually being established into the former

Czechoslovakia.  It was a period of entrepreneurial euphoria and

optimism, which often manifested itself in the fact that various forms

of commercial conduct preceded the legal regulation thereof, or the

legal regulation was often merely an ex post reaction to the forms of

practical entrepreneurial activity.  These facts were reflected, among

other things, in amendments to the criminal law and were otherwise

directed manifested in the course of the complainant’s criminal

prosecution, when with the growing length of the proceeding there were

various kinds of requalifications of the acts for which the complainant

had originally been charged (violation of the obligations when

administering the property of another, the violation of binding rules of

economic relations).  In other words, along with the growing length of

the proceeding, the fundamental societal and economic changes which

occurred during the 1990’s doubtless had impact on the assessment of the

criminality of the given conduct and its qualification.  According to

the Constitutional Court, this circumstance did not, however, relieve

the bodies in the criminal justice system of their obligation to perform

their duties in such a way that delays in the proceeding did not

occur.  The Constitutional Court is of the opinion that the individual

may not under any circumstances suffer the consequences of the fact

that, during that time, these issues were new or difficult to evaluate. 

In the Constitutional Court’s view, it is likewise necessary to take

into consideration even the fact that the ongoing criminal prosecution

negatively influences the personal life of the criminally accused, who

must be deemed not guilty until a final decision on the merits; yet, the

mere fact of criminal prosecution is a burden for each criminal

defendant.  The ordinary courts did not, however, ascertain what sort of

specific burdens the complaint might have to bear.
 


B)
 

There

is no doubt that, as a proceeding becomes more and more drawn out, the

basic relation between the criminal act and the imposition of punishment

becomes attenuated.  The amount of time elapsing between the

complainant’s criminal conduct and the imposition of the final decision

has an immediate impact on the objective of punishment, which should be

achieved by the specific punishment that is imposed.  Apart from the

definition of the objective of punishment, contained in § 23 of the

Criminal Code, its objective is to protect society from the perpetrator

of criminal offenses, prevent the convicted person from further engaging

in criminal activities, and educate him to lead an upright life,

thereby also having an educative effect on other members of society.
 

With

a growing time lapse from the commission of a criminal offense both the

components of special and general deterrence fade.  All the more so in a

situation where it was shown in the criminal proceeding that the

conduct for which the complainant was convicted was clearly an excess in

his life and represents a deviation from a life otherwise lead in a

blameless fashion, both before, and in particular after, the commission

of the criminal behavior and during the criminal proceeding.  The

capability of punishment to have an educative influence on society is

likewise very much reduced after such a long time.  All the more so

where the society has, in the meantime, gone through profound changes in

the course of an economic, social, and legal transformation and has, in

the interim, been confronted with far more complex and dangerous forms

of economic criminality.  The Constitutional Court is thus of the view

that, in the given case, the objective of punishment, such as it is

defined in § 23 of the Criminal Code, cannot, after more than twelve

years have passed since the commission of the criminal conduct, be

entirely attained by the imposition of a punishment of imprisonment,

which, in terms of its objective or function, in relation to the

complainant represents sheer repression.  However, the law (§ 23 of the

Criminal Code) does not envisage this as the main objective of

punishment, so that it can be applied solely as an accessory objective,

that is, in addition to the main objective of punishment as laid down in

§ 23 of the Criminal Code.  At the same time, it should not be

overlooked that imprisonment is the most sever sanction envisaged in the

Criminal Code.
 

Criminal law

relations are relations between the state and the individual.  It is a

state authority which initiates the criminal prosecution of an

individual and another which makes the determinations of guilt and of

the punishment to be imposed.  Therefore, as a matter of constitutional

law it involves a weighty assessment of the appropriateness of the

relation between the public interest defined in the Criminal Code by the

objective of punishment and the fundamental rights of specific accused

persons, in particular the right that his guilt or innocence and his

punishment be decided upon within a reasonable time, as well as the

right to personal liberty.  Naturally the mentioned public interest

cannot apply absolutely, just as the complainant’s fundamental right

cannot be absolutized.  It is therefore necessary to find a proportional

relation and a just balance between the restriction on the fundamental

rights of the individual and the public interest.
 


V.
 

On

the basis of the above-stated considerations, the Constitutional Court

reached the conclusion that, in imposing the specific punishment, the

ordinary courts failed to respect the constitutional requirement of

proportionality.  In other words, the restrictions on the complainant’s

personal liberty in the form of the imposition of unconditional

punishment of imprisonment for a term of five and one half years

appears, in view of all circumstances of the given case ascertained by

the Constitutional Court, disproportionate to the public interest in the

punishment of perpetrators of criminal offenses, or the aim of

punishment as defined in the Criminal Code.
 

In

the instant case, however, it is not the Constitutional Court’s task to

anticipate what specific punishment should be imposed, and in what

amount, in order for the constitutional principle of proportionality to

be respected.  Nevertheless, the Constitutional Court points out that

criminal enactments present a whole host of means to effect that

purpose, for example, from refraining from punishment or the exceptional

commutation of a sentence of imprisonment below the minimum prescribed

sentencing range (which can be employed in instances where it is

justified by, among other things, the circumstances of the case or if

the statutory range of sentences are employed in a disproportionate

fashion), through the conditional suspension of such sentence of

imprisonment as is imposed, or finally the dismissal of the criminal

prosecution.
 

At the same

time, however, it is necessary to balance various factors so that the

employment of such means does not result in the encroachment upon rights

of other parties to the criminal prosecution, for example, the

complaining parties who also are expecting the protection of their

rights from the proceeding.  In the Constitutional Court’s view,

therefore, the dismissal of a criminal prosecution is rather an option

for exceptional cases, appropriate in the circumstances where, after

assessing all of the above-mentioned facts, the ordinary court finds

that the conditions are met for proceeding in accordance with § 223

para. 2 of the Criminal Procedure Code in conjunction with § 172 para. 2

lit. c) of the Criminal Procedure Code [alternatively § 257 para. 1

lit. c) of the Criminal Procedure Code].
 

The

Constitutional Court observes on this point that the Regional Court in

Brno evidently took the above-indicated considerations into account in

it 28 February 2003 judgment, file no. 46 T 17/2001.  It is stated in

the reasoning that the court „in consideration of all pertinent

circumstances of the case as well as of the character of the defendant,

when in particular it placed stress on the fact of his clean record,

following the minimal period of 8 years since his most recent offense . .

. the sentence imposed upon him was at the very lower edge of the

prescribed range of punishments.  As regards the defendant, in view of

his life up till now, where he must be viewed as a person who has not as

yet been criminally punished, while allowing for his partial admission

of guilt, the court came to the conclusion that it can still, one last

time, impose a reformative punishment and, in the court’s view, the

sentence imposed of two years imprisonment conditionally suspended for

an extended probational period is a punishment that is sufficient to

ensure the aim of punishment is attained, that is both general and

special deterrence.“  The Constitutional Court considers it necessary to

observe on this point that a further two years have passed since the

first instance court issued that judgment and that, in addition to the

considerations directly arising from criminal law norms, the

constitutional law imperative of proportionality must always be

considered as well.
 


VI.
 

The

Constitutional Court has, already in the past in relation to the Czech

Supreme Court’s decision-making on extraordinary appeals, ruled that

judicial decision-making, whether in a proceeding on an ordinary or an

extraordinary appeal, may not operate outside the framework for the

protection of the fundamental rights of the individual, all the more so

as Art. 4 of the Constitution of the Czech Republic places the

fundamental rights under the protection of the judicial power (judgments

file no. I. ÚS 55/04, file no. I. ÚS 4/04).  In a democratic law-based

state all public authorities are obliged to respect the fundamental

rights and basic freedoms; the role of courts is to provide protection

of them or, in the case of the Constitutional Court, a special and

specific form of protection.  If the protection of fundamental rights

and basic freedoms is the pivot of the functioning of the democratic

law-based state, in the application of them, the principle of the direct

and immediate nature of their application must be insisted upon.  If an

ordinary court itself finds that a fundamental right or basic freedom

has been infringed, it is obliged to take all measures to ensure that no

further infringement occurs and to redress the existing infringement by

means which it has competence to employ.  This point is otherwise

reflected in the complementary principle of subsidiarity, which applies

in proceedings before bodies endowed with the power to afford

individuals specific protection of their fundamental rights and basic

freedoms (the Constitutional Court, the European Court for Human

Rights), but only in the eventuality that the mechanisms for protection

before other public bodies (or the domestic bodies) have failed.  In

view of the maxims of the law-based state, it is thus impermissible for

an ordinary court to acknowledge the infringement of a fundamental right

while not, however, drawing therefrom the appropriate conclusions

leading to an effective protection of the individual’s fundamental

rights.
 

It follows from all

of the above-described facts that the Supreme Court of the Czech

Republic has failed to meet its constitutional obligation to afford

protection to the complainant’s fundamental rights (Art. 4 of the

Constitution of the Czech Republic), in consequence of which it also

violated the basic principles upon which the substantive law-based state

are constructed (Art. 1 para. 1 of the Constitution of the Czech

Republic).  If, in such a situation, the Supreme Court of the Czech

Republic left undisturbed the lower-court decision which had imposed

upon the complainant an unconditional sentence of imprisonment, without

having respected the requirements of a fair balance between the

restriction of the right to personal liberty, on the one hand, and the

public interest in the prosecution and punishment of the complainant,

then it violated Art. 8 para. 2 of the Charter.  The grounds for finding

that it was disproportionate were, on the one hand, the failure to take

into account the length of the court proceeding, just as the period of

time that had elapsed since the commission of the act for which the

complainant had been found guilty and, on the other hand, the failure to

consider the complainant’s previous and subsequent life, the burden

resulting from the length of the criminal proceeding, etc.
 


VII.
 

It

follows from the above that, due to the disproportionate restriction

upon the complainant’s personal liberty, the Constitutional Court has

found a violation of his fundamental right guaranteed in Art. 8 para. 2

of the Charter.  The incommensurate length of the criminal proceeding

then represents a significant factor (naturally not the sole one) which

led the Constitutional Court to the conclusion, as formulated above,

regarding the disproportionate relation between the restriction on the

complainant’s personal freedom and the public interest represented by

the aim of criminal prosecution.
 

In

view thereof, it is necessary to deal with the issue of to what extent

such conclusion is capable of redressing the violation of the

complainant’s right that his proceeding be of a commensurate length.  In

other words, under what circumstances can such a conclusion, and the

consequence flowing from it to the benefit of the complainant’s personal

liberty, be considered as sufficient redress for the violation of the

right that one’s proceeding be of a commensurate length, such that Art. 6

para. 1 of the Convention also be respected.
 

In

the contested ruling, the Supreme Court of the Czech Republic proceeded

from a reading of the Convention from which it deduced that no

obligation has arisen requiring the ordinary courts to take a

prospective violation of Art. 6 para. 1 of the Convention into account

either when deciding on the merits (that is, on the complainant’s guilt

and the imposition of sentence), or when deciding on the permissibility

of the criminal prosecution itself.  It formulated the conclusion that

the sole means of redress results from the Convention, namely by the

declaration of a violation of the Convention and the award of just

satisfaction.
 

First of all,

the Constitutional Court considers it necessary to emphasize that it is

not permissible to deduce, from the mechanism created by the Convention

for the protection of fundamental rights, the manner and limits of the

protection of fundamental rights on the domestic plane, in the way that

the Supreme Court of the Czech Republic did in the contested ruling. 

The mechanism for the protection of fundamental human rights by means of

a proceeding before the European Court of Human Rights is, first and

foremost, a subsidiary mechanism, further it is established on the basis

of public international law principles, such as the sovereign equality

of states, general consensus in concluding a multilateral international

agreement, the responsibility under international law of states as

subjects of international law, non-interference into the internal

affairs of other states, the precedence of international law over

domestic law, etc.  The protection of human rights by means of an

international law mechanism thus attains only such level as is generally

acceptable in the international milieu and is equipped with the limited

devices of public international law.  It thus represents merely the

minimum standard to which the international community of states is

capable of giving it unanimous assent.
 

The

international law mechanism for protection of fundamental rights comes

into play only in the case that such protection on the domestic law

plane has miscarried (in this respect, it constitutes a subsidiary

protection).  The conduct of organs of the States Parties, which fail in

domestic law proceedings to ensure the protection of the fundamental

rights guaranteed by the Convention, is attributable, in terms of

responsibility under international law, to the respective State Party. 

The European Court of Human Rights is, therefore, called upon to decide

solely concerning a state’s responsibility for its infringements of the

Convention, it is not endowed with cassational authority in relation to a

domestic court decision and in relation to the individual is authorized

to award him just satisfaction.  In no sense, however, can it be

deduced from the competence of the European Court of Human Rights the

manner in which the protection of the fundamental rights guaranteed in

the Convention is ensured on the domestic law plane.
 

The

relevant case-law of the European Court of Human Rights has established

that, in the case of a violation of the right to a proceeding of a

commensurate length, the Court either declares a violation of the

Convention, or alternatively awards just satisfaction.  Although neither

the European Court of Human Rights nor the European Commission for

Human Rights has deduced from the violation of Art. 6 para. 1 of the

Convention a State Party’s obligation to redress a violation by

dismissing the criminal prosecution or by a commutation of the sentence,

neither did they rule out such form of redress.  In view of their

mentioned authority, while remaining consistent they could not even

deduce such an obligation.  On the contrary, the European Court of Human

Rights considers that such form of redress constitutes a sufficient

remedy, assuming that the court explicitly employs it due to the

infringement of the right to have ones matter heard within a reasonable

time and, as far as concerns the reduction in punishment, states the

degree to which the punishment was, on these grounds, reduced (the

judgment in Eckle v. SRN of 15 July 1982; compare also Repík, B., On the

Issue of the Legal Remedies for Exceeding a Commensurate Period of Time

for a Proceeding, Bulletin of Advocacy, 6-7/2001, p. 13).  Under these

circumstances the European Court for Human Rights is of the view that

the State Party provided sufficient protection of the rights arising

from the Convention, with the consequence that the complainant lost the

status as an injured party under Art. 34 (previously Art. 25) of the

Convention and thereby also the standing to submit a complaint.  In its

26 June 2001 judgment in the matter of Beck v. Norway, the European

Court of Human Rights formulated more precisely the relation between a

violation of the right to have one’s matter resolved within a reasonable

time and the redress thereof in the form of moderating the punishment

to be imposed, by stating that the reduction of punishment does not

deprive the individual of his status as an injured party under Art. 34

of the Convention.  However, there is an exception to this general rule,

where the national body in a sufficiently transparent manner has

declared the violation of the rule that a proceeding must be of a

commensurate length and has already redressed this error by a reduction

in the punishment, in an explicit and quantifiable way.  If such a

condition is met, then the European Court of Human Rights will reach the

conclusion that Art. 6 para. 1 of the Convention has been violated.
 

At

the same time, such manner of redress (in the weighing of the

punishment) is not unique among the States Parties to the Convention. 

Taking a comparative perspective, among the States Parties to the

Convention is found a number which, within their domestic law, directly

apply the redress for violations of the right to have one‘s criminal

prosecution completed within a commensurate time (Belgium, the

Netherlands, FRG, Norway, and Switzerland).  In the event that the

length of a proceeding has exceeded a commensurate period of time, the

courts in the these states have inferred, through their case-law,

consequences affecting the imposition of criminal sanctions and, in

exceptional cases, affecting the possibility to criminally

prosecute(compare Repík, B., On the Issue of the Legal Remedies for

Exceeding a Commensurate Period of Time for a Proceeding, Bulletin of

Advocacy, 6-7/2001, p. 12 or Repík, B., The European Convention on Human

Rights and Criminal Law, Orac Publishers, Prague 2002, p. 143).  For

example, in the FRG the Federal Constitutional Court has inferred the

necessity for such redress directly from the principle of the law-based

state, more particularly from the principle of proportionality (compare,

for example, the decision of 5 February 2003, file no. 2 BvR 327/02 or

the decision of 21 January 2004, file no. 2 BvR 1471/03).
 

From

this it follows that the protection of the right, under Art. 6 para. 1

of the Convention, to a proceeding of a commensurate length,

alternatively to redress for its violation, can be attained even by

means which are peculiar to criminal law.  Thus the ordinary courts are

obliged to make use of all such means afforded by criminal law in order

to redress the violation of the right to have one’s matter heard within a

reasonable time, alongside a violation of the right to personal

liberty.  This should be accomplished in such a manner as to ensure,

above all, the protection of the complainant’s fundamental rights, and

at the same time to exclude that the Czech Republic becomes responsible

under international law for the violation of its obligations arising

from the Convention.
 

In

other words, in subsequent proceedings the ordinary courts must proceed,

in conformity with the existing case-law of the European Court of Human

Rights, so as to respect and protect both the complainant’s personal

liberty and to sufficiently redress the violation of the right to have

his case heard within a reasonable time.  The ordinary courts‘

deliberations on punishment or, in connection with the period of time

that has passed since the commission of the offense and in view of the

length of the criminal proceeding, directly on the further

permissibility of prosecution itself, must be structured onto three

planes.  The first consists of considerations resting on criminal law

enactments, followed by the test of proportionality flowing from the

imperative of the law-based state and of personal liberty as construed

within it (the constitutional plane), and lastly placing the length of

the proceeding into the balance in the eventuality that a sentence is

imposed (the plane of the Convention and responsibility under

international law).
 

In view

of the conclusions stated above concerning the violation of the

complainant’s fundamental rights, the Constitutional Court has, pursuant

to § 82 para. 2 lit. a) Act No. 182/1993 Coll., on the Constitutional

Court, as amended, granted the constitutional complaint and, pursuant to

§ 82 para. 3 lit. a) Act No. 182/1993 Coll., on the Constitutional

Court, as amended, quashed the contested decision of the Supreme Court

of the Czech Republic.

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

Brno, 31 March 2005




Dissenting opinion
of Justice Miloslav Výborný to the reasoning in the Constitutional Court’s Judgment No. I. US 554/04

Although

I agree with the statement of judgment and the predominant part of the

reasoning, I cannot but append the following reservations.
 

First

of all, I consider it appropriate to supplement the judgment’s

reasoning by calling to mind the fact that, so far as concerns the state

of facts, the complainant’s case significantly differs from those

matters in which, up until the present, the Constitutional Court has

adjudicated to the effect that delay in criminal proceedings is no

grounds for declaring criminal prosecution inadmissible.  However, even

despite these factual dissimilarities causing even me to reach the

conclusion that there has been an infringement of the constitutional

requirement that the punishment imposed on the complainant be

proportional, I find no reason for modifying the Constitutional Court’s

repeatedly declared position to the effect that „the infringement of the

right, under Art. 6 para. 1 of the Convention on the Protection of

Human Rights and Fundamental Freedoms, to have one‘s matter heard within

a reasonable time does not, in and of itself give grounds for declaring

a criminal prosecution inadmissible, not even in view of the

requirement of effective remedy under Art. 13 of the Convention on the

Protection of Human Rights and Fundamental Freedoms“ (see, for example,

the unpublished rulings Nos. II. ÚS 32/03, IV. ÚS 8/03; further the

ruling No. IV. ÚS 487/03 published in the Collection of Judgments and

Rulings of the Constitutional Court, Vol. 31, ruling No. 26, and also

Judgment No. II. ÚS 7/03 published at www.usoud, even though in this

last judgment it is stated as obiter dictum), moreover on the grounds

which are explained in the past in the cited Constitutional Court

decisions.
 

I consider it

correct that, in case the State is incapable of ensuring the course of a

criminal proceeding such that it would be conducted justly, that is,

among other things, without undue delay (i.e., within a reasonable

time), the accused be adequately redressed for the infringement of this

constitutionally guaranteed basic right.  This redress can be manifested

not only in terms of the criminal sentence handed down, but also in the

form of compensation for damage (by which it is, in my view, not always

necessary to consider solely material harm) or in the form of financial

satisfaction.  However, to afford such redress (even if entirely

exceptionally) by the dismissal of the criminal prosecution can markedly

affect not only the rights of the injured party, but might also

undermine the general trust in the democratic law-based State, the task

of which, among other things, is through the judiciary duly and justly

to decide on matters of guilt and punishment for criminal offenses and

not, on the grounds of unconstitutional time lag in the criminal

proceeding, to evade such a decision.