2005/11/08 - Pl. ÚS 28/04: Public Hearing

08 November 2005

HEADNOTES

Neither Art. 38 par. 2 of the Charter nor Art. 17 par. 1 establish

unrestricted rights to public consideration of a case, or to

information, respectively. In both cases it is up to the legislature, to

what extent it restricts, by statute, the right to public consideration

of a case or the right to information. In view of the fact that a

number of provisions of the Charter are related to each other, they must

be interpreted together, systematically, and in mutual subordination,

whereby “the Charter precisely and strictly regulates the freedom of the

legislature.” In evaluating whether a statute limiting fundamental

rights and freedoms is constitutional or not, it is usually necessary to

consider aspects of legal philosophy, legal history, and comparative

law.

The Czech lands traditionally considered constitutional a legal

framework based on the premise that the presence of the public is

conceived as a guarantee of public review of the justice system, and at

the same time that special emphasis is laid on the interests and benefit

of a juvenile in cases of restricting the presence of the public in

proceedings against a juvenile.

The right to a public trial is a fundamental right of the party to the

proceedings, and not a fundamental right of the court or judge.

The contested provision of § 54 par. 1 of the Act on Juvenile Courts is

also consistent with Art. 6 par. 1 of the Convention, which permits

barring the public … during all or part of the trial … if required in

the interests of minors, or … if, in view of special circumstances, a

public trial could be contrary to the interests of justice.

In the Constitutional Court’s opinion, it is not always necessary to

relate the court’s educational activity, or the educational effect of

criminal proceedings on a recipient of information, to identification of

the perpetrator. For purposes of education for respect for rights and

justice, the more important information is certainly that concerning the

factual findings and the legal evaluation of them, which can be

obtained, with the contested provisions in effect, by a public

announcement of the verdict, and which can be freely expressed and

disseminated without any substantive limitation. In this regard we can

not overlook the right to moderate provided to the chairman of a court

panel in § 54 par. 3 of the Act on Juvenile Courts.

The

negative effects of the limitation on freedom of speech to the benefit

of this modification of the right to privacy do not appear to be

significant, compared to the positive effects provided by the potential

effects of the Act in suppressing the criminal careers of juvenile

delinquents.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 

The

Plenum of the Constitutional Court, composed of Stanislav Balík

(Judge-Rapporteur), František Duchoň, Vlasta Formánková, Vojen Güttler,

Pavel Holländer, Ivana Janů, Dagmar Lastovecká, Jiří Mucha, Jan Musil,

Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová a

Michaela Židlická decided on 8 November 2005 in the matter of a petition

from the District Court in Kladno, represented by panel chairman Mgr.

L. K., seeking the annulment of § 53 par. 1 and § 54 of Act no. 218/2003

Coll., on Liability of Juveniles for Illegal Acts and on Juvenile

Courts and Amending Certain Acts (the Act on Juvenile Courts), with the

participation of the Chamber of Deputies of the Parliament of the Czech

Republic and the Senate of the Parliament of the Czech Republic, as

follows:

 

The petition is denied.
 



REASONING


I.
 

1.

On 2 June 2004 the Constitutional Court received a petition from the

District Court in Kladno in which the petitioner seeks the issuance of a

judgment whereby the Constitutional Court would annul § 53 par. 1 and §

54 of Act no. 218/2003 Coll., on Liability of Juveniles for Illegal

Acts and on Juvenile Courts and Amending Certain Acts (the Act on

Juvenile Courts), (the “Act on Juvenile Courts”).
 

2.

The petitioner stated that proceedings are being conducted at the

District Court in Kladno, file no. 4 Tm 25/2004, in the criminal matter

of the defendant juvenile L. B. et al., who is charged with committing

the crime of theft under § 247 par. 1 let. b), d) and par. 3 let. b) of

the Criminal Code, and other crimes. In this criminal matter, the

District Court in Kladno is required, in the case of the defendant

juvenile L. B. and other defendants, to apply the Act on Juvenile Courts

as a whole, including at the moment when it decides to order and

conduct trial proceedings.
 

3.

According to the petitioner § 54 par. 1 of the Act on Juvenile Courts

is inconsistent with Art. 96 par. 2 of the Constitution of the Czech

Republic (the “Constitution”), and with Art. 38 par. 2 of the Charter of

Fundamental Rights and Freedoms (the “Charter”), and § 53 and § 54 par.

2, 3 of the Act on Juvenile Courts are inconsistent with Art. 17 par.

1, 4, 5 of the Charter.
 

4.

The petitioner pointed to the fact that before § 54 par. 1 of the Act on

Juvenile Courts went into effect, the regulation contained in § 200 or §

297 par. 3 let. a) of the Criminal Procedure Code applied to the

presence of the public at a trial and public sessions involving

juveniles. Under this regulation, the reasons when an exception from the

principle of a public trial can be permitted were precisely and

strictly defined. The court had to decide on the individual application

of such an exception within an adjudicated matter, and this was and is a

decision of a procedural nature, against which there is no remedy. The

District Court in Kladno concludes, from its own experience and from

other data, that before the Act on Juvenile Courts went into effect,

cases in which the public was excluded “were a negligibly small number,

insignificant; in comparison to other matters it would be far below one

percent, and we could surely speak of tenths of a percent out of all the

matters tried by a court,” whereas since the Act on Juvenile Courts

went into effect, the public is absent from seven to eight percent of

criminal matters tried at the District Court in Kladno. In the

petitioner’s opinion, the Act on Juvenile Courts does not in the least

stick to “the principles of a democratic and law-based state, and denies

and endangers” one of the fundamental constitutional safeguards,

consisting of the public exercise of the judicial power, and is grossly

inconsistent with, in particular, Art. 96 par. 2 of the Constitution,

which permits the public to be barred only in exceptional cases, and

this exclusion, although “on the basis of statute, of almost a tenth of

criminal matters from the regime of public trial is not in accordance

with the spirit of the Constitution. The petitioner also explains that

the public nature of court proceedings means the right “of any citizen,

and of person who are not citizens of the state exercising the judicial

power,” to take part in the trial and in public sessions.” This also

declares the willingness on the part of the state to exercise the

judicial power democratically, transparently, publicly, and on the basis

of laws. The presence of the public in the courtroom has an

informational and educational function, and is a means of public

inspection of the justice system.
 

5.

The petitioner disagrees with the fact that, as a result of applying §

53 par. 1 and § 54 par. 2, 3 of the Act on Juvenile Courts, the interest

of the juvenile is given precedence over arranging that the widest

possible public has direct and correct experience of the activity of the

courts, in particular, that “people come into contact with it

regularly, and become familiar with it, as members of the public at

court proceedings, if the state defines itself as law-based and

democratic (Art. 1 of the Constitution) and wants to be seen as such by

the citizens who live in it.” The petitioner points to the fact that

since the Act on Juvenile Courts went into effect, the courts in

proceedings against juveniles are in the position of so-called “chamber

justice.” The petitioner points out that Constitutional Court judgments

often cite the principle of proportionality as the standard for

evaluating the constitutionality of a statutory norm. In its opinion,

“the legislature inappropriately and in an unbalanced manner elevated

the interest of the individual above the interest of society as a whole,

which, incidentally, is composed of precisely such individuals as the

defendant juvenile.” The petitioner believes that the public and the

media can not be restricted in their access to information to such a

wide degree, involving such a large group of persons, solely on the

basis of a hypothetical possibility of a negative effect on the future

life of the defendant juvenile who is being prosecuted. Based on the

cases of the murder of a teacher that is being “followed by the media”

it concludes that the protection from disclosure of information pursued

by the Act on Juvenile Courts is “completely ineffective.”
 


II.     
 

6.

In response to notice from the Constitutional Court, the Chamber of

Deputies of the Parliament of the CR, through its Chairman, PhDr. L. Z.,

submitted a statement under § 69 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations. It stated that

the Act on Juvenile Courts approaches the handling of illegal acts in

the wider context of all their moral and social aspects. In contrast to

the criminal codices for adults, criminal law for juveniles is oriented

at the future, and the focus of its interest therefore lies in passing

measures that can prevent recidivism. The legislature’s intent was to

include in the Act on Juvenile Courts the starting point of a so-called

“restorative” (renewing) justice system, which emphasizes society’s

balanced, just reaction to a juvenile’s crime, which does not deny its

joint responsibility for his failure, and draws consequences from it not

only for the juvenile, but also for addressing the problems of other

involved persons and groups connected with the crime. The provisions of §

3 par. 5, § 53 and § 54 of the Act on Juvenile Courts establish the

special rights of juveniles to be protected from invasion of their

personal privacy in order to minimize the possible stigmatizing

consequences of a trial and its results in matters handled by juvenile

courts. The special interest in protecting the privacy and personality

of a juvenile justifies keeping information about his illegal acts

confidential over the constitutionally protected principle of court

proceedings being public and the right to information, for purposes of

the greatest elimination of damaging effects of the proceedings on a

juvenile, including effects which defame his person, and on the basis of

the constitutional principle of the presumption of innocence. The

specific rights of juveniles contained in § 53 and § 54 of the Act on

Juvenile Courts must also be considered in relation to Art. 32 par. 1,

second sentence, and Art. 32 par. 6 of the Charter. The Chamber of

Deputies of the Parliament of the CR also pointed out that neither the

right to information nor the principle of public court proceedings is

absolute. The possibility of restricting the presence of the public in

criminal proceedings against a juvenile and restricting the right to

information also arises from important international treaties by which

the Czech Republic is bound. It is necessary to take into consideration

Art. 96 par. 2 of the Constitution, Art. 38 par. 2 of the Charter and

Art. 36 par. 1 of the Convention, as well as Art. 40 par. 2.2 point vii)

of the Convention. In contrast to the petitioner’s position, the

Chamber of Deputies of the Parliament of the CR believes that the

approved provisions of § 53 and § 54 of the Act on Juvenile Courts

optimally balance the interest of the defendant juvenile on one side,

and the aims that are to be achieved by the principle of public trials

on the other side. In conclusion, it stated its position that the

legislative assembly acted in the belief that the Act is consistent with

the Constitution, the constitutional order, and the legal order of the

Czech Republic. According to the Chamber of Deputies of the Parliament

of the CR, it is up to the Constitutional Court to evaluate the

constitutionality of the Act in connection with the petition from the

District Court in Kladno.
 

7.

The Senate of the Parliament of the Czech Republic, through its

chairman, Doc. JUDr. P. P., in its statement recapitulated the

petitioner’s arguments, and stated that in discussions in the committees

and the full Senate there were no comments to the provisions contested

by the petition. However, certain opinions from the general debate must

be pointed out, which were addressed at the then-discussed draft of the

Act on Juvenile Courts. The majority agreed that the aim of the Act on

Juvenile Courts is to achieve better results in balancing juvenile

delinquency and criminality in general, especially in terms of

recidivism and delinquents’ further criminal career. Negative

developments can be stopped only at the age level of juveniles, using

positive methods. The report of the constitutional law committee

emphasized that the draft Act paid attention to ensuring the reduction

of undesirable “labeling” of a young perpetrator, which is addressed by

restricting the publication of information about accused and convicted

juveniles, including newly implemented penalties for violating these

bans. Dissenting opinions were based on the conviction that a clear and

tough warning (threat) is necessary at all age levels in order to stop

criminality. The Senate of the Parliament of the CR underscored that

indirect constitutional support for the contested provisions can be

found especially in Art. 32 of the Charter. Comprehensive protection of

juveniles is contained in the Convention on the Rights of the Child of

1989, which points out, in Art. 40 par. 2, that the privacy of the child

is to be fully respected at all stages of criminal proceedings. The

Senate also points out that in passing the contested provisions the

legislature was also encouraged by conclusions from other international

documents in the field of treatment of delinquent juveniles. These were

UN documents, especially the “Standard Minimum Rules for the

Administration of Juvenile Justice” (the “Beijing rules” – General

Assembly resolution 40/33 of 1989), but also documents from the Council

of Europe, e.g. Resolution R (87) 20, on social reactions to juvenile

delinquency. The appropriateness of the contested statutory provisions

(exceptions from constitutional rights) must be seen through the prism

of the significance of the particular regulation of juvenile courts.

There is naturally a greater emphasis supporting the subjective rights

of juveniles than on “collective” values, e.g. inspection of the

judiciary by the people; still, the aim of the special protection given

to juveniles in criminal proceedings rests in the public interest in the

possibility of stopping the increase in crime. Exceptions from the

constitutional right to a public hearing before a court and the right to

disseminate information are directly connected to the purpose stated in

§ 1 of the Act on Juvenile Courts. The Senate of the Parliament of the

CR also pointed out that the legislature acted within the intentions of

the case law of the European Court of Human Rights. The Senate also

pointed out that Art. 96 par. 2 of the Constitution and Art. 38 par. 2

of the Charter permit the existence of exceptions provided by law. The

right to seek out and disseminate information can also be restricted by

law consistently with Art. 17 par. 4 of the Charter. The contested

provisions, § 53 par. 1 and § 54 par. 2, 3, are a “very subtle statutory

restriction.” The low intensity of the exception is shown by, for

example, the fact that under no. 3 let. e) of the “Ethical Codex of

Journalists of the CR” a journalist is called on to strictly observe the

rule not to identify the relatives of delinquents or the victim without

their clear consent. The Senate stressed that the contested provision, §

54 par. 3, last sentence, of the Act on Juvenile Courts gives the court

panel chairman the possibility to weigh whether, in the event of a

conflict between the freedom to disseminate information and the right to

protection of privacy, the priority given to one or the other right is

justified. The necessity of the restriction on the right to disseminate

information stated in the contested provisions brings positive effects

in terms of the statute serving to dampen the criminal careers of

juvenile delinquents, while the negative effects of restricting freedom

of expression to the benefit of this modification of the right to

privacy do not appear to be significant. In conclusion the Senate of the

Parliament of the CR states that it passed the draft Act on Juvenile

Courts by a majority, that the draft Act is in accordance with the

constitutional order of the Czech Republic and the state’s international

obligations. It is up to the Constitutional Court to evaluate the

constitutionality of the provisions contested by the petition and to

reach a decision.
 


III.
 

8.

The Constitutional Court, in accordance with § 68 par. 2 of Act no.

182/1993 Coll., on the Constitutional Court, as amended by later

regulations, considered the question whether the statute whose

provisions are claimed to be unconstitutional was passed and issued

within the bounds of constitutionally provided jurisdiction and in a

constitutionally prescribed manner. The statute is Act no. 218/2003

Coll., on Liability of Juveniles for Illegal Acts and on Juvenile Courts

and Amending Certain Acts (the Act on Juvenile Courts). In this regard,

the Constitutional Court determined from the relevant parliamentary

publications, shorthand transcripts, and voting records, that the

Chamber of Deputies of the Parliament of the CR duly approved the draft

Act at its session on 21 May 2003, and the Senate of the Parliament of

the CR approved the draft in the version approved by the Chamber of

Deputies of the Parliament of the CR at its session on 25 June 2006.

After being signed by the president and the prime minister, the Act was

promulgated in the Collection of Laws, in part 79, as no. 218/2003 Coll.

The Act was thus passed and issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

prescribed manner.
 


IV.
 

9. The provisions which the petitioner contests and seeks to have annulled read as follows:
  “§ 53

1) Unless this Act provide otherwise, no one may make public, in any

manner, any information which provides the first name or names and

family name of the juvenile, or which contains information that would

make it possibly to identify the juvenile.
§ 54
1) Persons who

may take part in the trial and public sessions are only the defendant

juvenile, his two confidantes, his defense counsel, legal

representatives, and immediate family members, siblings, spouse or

companion, the victim and his authorized representative, witnesses,

experts, interpreters, the relevant body for social protection of

children, officials from the Probation and Mediation Service, and the

representative of the school or educational institution. At the

juvenile’s request the trial or public session can be held publicly.

(2) Publishing information about the trial or a public session that

would lead to identifying the juvenile in the media or otherwise is

forbidden. It is likewise forbidden to publish and text or any depiction

concerning the identity of the juvenile.
(3) The verdict is

announced publicly in the trial in the presence of the juvenile. A

guilty verdict may be published in the media only without stating the

name and family name of the juvenile, and with the provision of

appropriate protection of the juvenile from undesirable effects of such

publication. The panel chairman may, taking into account the nature and

type of fault and the appropriate protection of the interests of the

juvenile, decide on a different manner of publication and related

restrictions. An objection against such a ruling is not permitted.”
 


V.
 

10.

The Constitutional Court first considered the question whether the

petitioner – the District Court in Kladno – is authorized to file a

petition to annul the contested provisions. The petitioner correctly

stated that it must apply the contested provisions in criminal

proceedings, because a criminal charge has been filed before it against a

juvenile defendant and the next step is thus to order a trial. The

Constitutional Court concluded that the contested provisions are related

to the petitioner’s decision-making activity, and therefore the

District Court in Kladno is an authorized petitioner under Art. 95 par. 2

of the Constitution and § 64 par. 3 of the Act on the Constitutional

Court.
 


VI.
 

11.

After this determination the Constitutional Court turned to evaluating

the content of the contested provisions of the Act on Juvenile Courts in

terms of their consistency with the constitutional order of the Czech

Republic [Art. 87 par. 1 let. a) of the Constitution].
 

The

petitioner’s petitioner presented two constitutional law objections,

that § 54 par. 1 of the Act on Juvenile Courts is inconsistent with Art.

38 par. 2 of the Charter (the right to public consideration of one’s

case) and that § 53 par. 1 and § 54 par. 2, 3 are inconsistent with Art.

17 par. 1, 4 a 5 of the Charter (the right to information). The third

objection is that the contested provisions of the Act on Juvenile Courts

violate the proportionality between the interest in protection of

privacy of criminally prosecuted juveniles on the one hand, and the

right to information on the other hand, to the benefit of protection of

privacy of criminally prosecuted juveniles.
 

The

Constitutional Court first states that neither Art. 38 par. 2 of the

Charter nor Art. 17 par. 1 establish unrestricted rights to public

consideration of a case, or to information, respectively. In both cases

it is up to the legislature, to what extent it restricts, by statute,

the right to public consideration of a case or the right to information.

In view of the fact that a number of provisions of the Charter are

related to each other, they must be interpreted together,

systematically, and in mutual subordination, whereby “the Charter

precisely and strictly regulates the freedom of the legislature “ (cf.

F. Šamalík, Charakter ústavního pořádku a jeho ochrana [The Nature of

the Constitutional Order and Its Protection], Právník [The Lawyer] no.

1/1998, p. 23). In evaluating whether a statute limiting fundamental

rights and freedoms is constitutional or not, it is usually necessary to

consider aspects of legal philosophy, legal history, and comparative

law.
 

12. The general legal

consciousness traditionally sees the right to public consideration of a

matter as an instrument of public inspection of the justice system. The

purpose of public trials “is so that everyone can see for himself how

justice is handled by the state, which inspection by the public makes

impossible the partiality of judges” (see. the entry “Public” in:

Riegrův slovník naučný [Rieger’s Educational Dictionary], IX, Prague

1872, p. 997). This purpose for public trials was long considered the

only on in the Czech lands. The case law of the Czechoslovak Supreme

Court from the First Republic repeatedly provides that “the only purpose

which the law pursues by a provision on a closed public trial is for

court proceedings not to be conducted without permitting public

inspection of them.” In this single purpose for making trials public

there is, under the law, no difference between proceedings before a jury

and before a panel of judges, and even with a jury the law does not

pursue the intent of having the powerful effect of the mood of the

listeners in the jury chamber influence the jury” [see decision no.

4336/1932 in: F. Vážný, Rozhodnutí Nejvyššího soudu československé

republiky ve věcech trestních [Decisions of the Supreme Court of the

Czechoslovak Republic in Criminal Matters] (“Vážný”), XIII, 1932, p.

568]. The Supreme Court of the First Republic similarly concluded that

“the purpose of the law is public review of the execution of justice,

judging in the light of day, not in the dark secrecy of court

proceedings. Thus, the concept of public hearings is presented as the

antithesis of secrecy, and it is only a question of practicality to what

extent access to proceedings for the public can be arranged while

preserving the inviolable postulate of the unacceptability of influences

which negatively affect the legal conduct of proceedings and on persons

participating in them” (see decision no. 1729/1925, in: Vážný, VI,

1925, p. 549).
 

Czechoslovakia

between the wars belonged, along with Germany (in 1923) and Austria (in

1928) to the states that passed laws on juvenile courts [cf., e.g., H.

Válková, Odpovědnost za mládež z pohledu trestní politiky

[Responsibility for Youth from the Viewpoint of Criminal Policy], in: E.

Bezouška, V. Bednář (eds.), Nečtiny 1999-2005, Plzeň 2005 (“Válková,

Responsibility”), p. 128-129]. The provision of § 48 par. 1 of Act no.

48/1931 Coll. of Laws and Judgments specially regulated the barring of

the public in proceedings against a juvenile, in contrast to the general

regulation of criminal proceedings. Under that provision, the judge

could bar the public with the consent of the defense counsel or legal

representative and provided that it was “for the benefit of the

defendant.” The benefit of the juvenile was also emphasized in the

court’s decision to bar the public from the trial and public sessions

concerning a juvenile in § 233 of the Criminal Code no. 87/1950 Coll.

and in § 297 par. 3 let. a) of the Criminal Code no. 141/1961 Coll.
 

The

Constitutional Court concluded from the foregoing legal history review

that the Czech lands traditionally considered constitutional a legal

framework based on the premise that the presence of the public is

conceived as a guarantee of public review of the justice system, and at

the same time that special emphasis is laid on the interests and benefit

of a juvenile in cases of restricting the presence of the public in

proceedings against a juvenile. The Constitutional Court adds that § 101

of Constitutional Charter no. 121/1920 Coll. of Laws and judgments was

analogous to Art. 38 par. 2 of the Charter, because even at that time it

was possible for “the public to be barred from trials only in cases

provided by law.”
 

In the

Constitutional Court’s opinion, the foregoing traditional premise is

also met by the contested § 54 par. 1 of the Act on Juvenile Courts.

Under that provision, it is left to the minor whether to choose the

alternative provided by the last sentence of § 54 par. 1 of the Act on

Juvenile Courts, i.e. to propose whether a trial or a public session be

held in public, or not. Although, according to that provision, only the

juvenile can formally make the proposal, it can not be overlooked that

he will be able – given the mandatory defense counsel in proceedings

against him – to consult his defense counsel. In contrast, the contested

regulation does not permit the court to bar the public from a trial or

public session without statutory grounds, and to resolve on his own the

question of whether – in the petitioner’s words – “there is a documented

willingness on the part of the state to execute the judicial power

democratically, transparently, on the basis of laws.” Thus, the right to

a public trial is a fundamental right of the party to the proceedings,

and not a fundamental right of the court or judge. In its decision

making practice since the Act on Juvenile Courts went into effect, the

Constitutional Court has not come across a juvenile who, in connection

with the application of § 54 par. 1 of the Act on Juvenile Courts,

sought protection of his right to a public trial under Art. 38 par. 3 of

the Charter, because the contested provisions logically narrows the

incidence of such a situation considerably.
 

The

Constitutional Court agrees with the doctrine that the Act on Juvenile

Courts is consistently subject to the interests of juveniles. It does so

in view of the age and intellectual maturity of juveniles. In the

effort to minimize the stigmatization of juveniles as a result of court

proceedings, these principles are reflected in § 54 par. 1 of the Act on

Juvenile Courts. The legislature also began with the consideration that

the requirement of protecting the personal privacy of juveniles during

the entire proceedings also arises from the interest in protecting them

from the damaging effects of the outside environment and publicity (cf.

A. Sotolář, K ochraně soukromí mladistvých podle zákona o soudnictví ve

věcech mládeže [On the Protection of Privacy of Juveniles under the Act

on Juvenile courts], Trestněprávní revue [Criminal Law Revue] no.

4/2004, p. 128-129).
The contested provision of § 54 par. 1 of the

Act on Juvenile Courts is also consistent with Art. 6 par. 1 of the

Convention, which permits barring the public … during all or part of the

trial … if required in the interests of minors, or … if, in view of

special circumstances, a public trial could be contrary to the interests

of justice. The Constitutional Court is aware that “with a certain

amount of oversimplification” we can see the two abovementioned opposite

trends in contemporary criminal policy development in this area. The

first trend, which is characteristic of Great Britain and partly of

Scandinavia, where, neoclassical criminal law doctrine is promoted,

modeled on the USA, based on the indeterminism of individual will and

the resulting consequences – the right of society to react strictly and

uncompromising to any violation of criminal law norms, regardless of

age, mental or moral maturity of the perpetrator. Here the degree of

responsibility is determined by the degree of gravity of the crimes

committed, not specifically by the person of the perpetrator. The second

trend, which is applied in, e.g. Austria, Switzerland, Germany, and the

Czech Republic, is based, in contrast, on the key role played by age

and the closely related level of intellectual and spiritual development

attained; in contrast, the significance of the particular gravity of the

offense committed recedes into the background (see Válková,

Responsibility, p. 132). This second trend, which is also followed in

the Czech Republic, has also found support, in relation to the contested

§ 54 par. 1 of the Act on Juvenile Courts, in a number of international

documents in the field of treatment of juvenile delinquents, e.g. the

Convention on the Rights of the Child of 1989, in the so-called “Beijing

Rules” – UN resolution 40/33 “Standard Minimum Rules for the

Administration of Juvenile Justice” of 1989[sic, should be 1985], and

not least the Recommendation of the Council of Ministers to the member

states of the Council of Europe concerning new methods of dealing with

juvenile delinquency and the mission of juvenile justice [volume.( 2003)

20) (“Recommendation Rec (2003) 20”]. Regarding the conclusion that

“where appropriate in view of the age and other characteristics of the

child and the circumstances surrounding the criminal proceedings, this

general interest [in the open administration of justice] could be

satisfied by a modified procedure providing for selected attendance

rights and judicious reporting. (see decision of the European Court of

Human Rights in the matter T. v. United Kingdom of 16 December 1999,

Application no. 24724/94, and V. v. United Kingdom of 16 December 1999,

Application no. 24888/94)).
 

13.

In evaluating the constitutionality of the contested provisions § 53

par. 1 and § 54 par. 2, 3 of the Act on Juvenile Courts, the

Constitutional Court began – as regards the general legal philosophy

view – with the same consideration as when evaluating the

constitutionality of § 54 par. 1 of the Act on Juvenile Courts.
 

The

Constitutional Court also considered the issue of the right to

information from several viewpoints. It took into account that in the

Czech lands it is traditionally seen as logical that the public access,

and thus to a certain degree also the ability to exercise the right to

information directly in court proceedings, is limited. It has repeatedly

been ruled that “it is a question of practicality, to what extent

access to a trial can be arranged for the public” (see decision no.

1729/1925, in: Vážný VL, 1925, p. 549 or decision no. 4218/1932, in:

Vážný XIII, 1932, p. 340).
 

The

Constitutional Court is aware that on a secondary level a public trial

has a potential educational role for the court (see K. Klíma, Ústavní

právo [Constitutional Law], Dobrá Voda (2002, p. 338). Naturally, the

implementation of the right to information is also supposed to serve

this aim. In this regard the Constitutional Court took into

consideration the fact that recommendation Rec (2003) 20, in Art. V,

point 25, last sentence, expressly states the requirement not to make

public information that identifies the juvenile perpetrator and his

victim.
 

In the

Constitutional Court’s opinion, it is not always necessary to relate the

court’s educational activity, or the educational effect of criminal

proceedings on a recipient of information, to identification of the

perpetrator. For purposes of education for respect for rights and

justice, the more important information is certainly that concerning the

factual findings and the legal evaluation of them, which can be

obtained, with the contested provisions in effect, by a public

announcement of the verdict, and which can be freely expressed and

disseminated without any substantive imitation. In this regard we can

not overlook the right to moderate provided to the chairman of a court

panel in § 54 par. 3 of the Act on Juvenile Courts.
 

The

Constitutional Court also took into account the fact that a similar

limitation on the freedom to seek out and disseminate information is

also found in Art. 3 let. e) of the Ethical Codex of Journalists of the

CR.
 

14. Finally, the

Constitutional Court evaluated the contested provisions in terms of the

proportionality of the relationship between the interest in protection

of privacy of criminally prosecuted juveniles on one side and the right

to information on the other side. It concluded that the legislature did

not exceed the bounds provided for it by the Charter.
 

In

this regard the petitioner only stated that the public has been absent

since 1 January2004 in a “mass” of seven to eight percent of cases. The

Constitutional Court quite agreed with the position of the Senate of the

Parliament of the CR, that the negative effects of the limitation on

freedom of speech to the benefit of this modification of the right to

privacy do not appear to be significant, compared to the positive

effects provided by the potential effects of the Act in suppressing the

criminal careers of juvenile delinquents.
 

15.

After the parties agreed, the Constitutional Court, under § 44 par. 2

of the Act on the Constitutional Court, waived a hearing, and after

conducting proceedings, it denied the petition from the District Court

in Kladno to annul § 53 par. 1 and § 54 par. 1 , 2, 3 of the Act on

Juvenile Courts, because these provisions in abstracto are not

inconsistent with Art. 96 par. 1, 2 of the Constitution, Art. 38 par. 2 a

Art. 17 par. 1, 4, 5 of the Charter (§ 70 par. 2 of the Act on the

Constitutional Court).

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

Brno, 8 November 2005