2006/05/03 - Pl. ÚS 66/04: European Arrest Warrant

03 May 2006

HEADNOTES

A

constitutional principle can be derived from Article 1 par. 2 of the

Constitution, in conjunction with the principle of cooperation laid down

in Art. 10 of the EC Treaty, according to which domestic legal

enactments, including the constitution, should be interpreted in

conformity with the principles of European integration and the

cooperation between Community and Member State organs.  If the

Constitution, of which the Charter of Fundamental Rights and Basic

Freedoms forms a part, can be interpreted in several manners, only

certain of which lead to the attainment of an obligation which the Czech

Republic undertook in connection with its membership in the EU, then an

interpretation must be selected with supports the carrying out of that

obligation, and not an interpretation which precludes its.  These

conclusions apply as well to the interpretation of Art. 14 par. 4 of the

Charter.

The petitioners’ assertion, that the adoption into domestic law of the

European arrest warrant would disrupt the permanent relationship between

citizen and state, is not tenable.  A citizen surrendered to an EU

Member State for criminal prosecution remains, even for the duration of

this proceeding, under the Czech state’s protection.  The European

arrest warrant merely permits a citizen to be surrendered, for a limited

time, for prosecution in an EU Member State for a specifically defined

act, and after the proceeding is completed there is nothing preventing

her from returning again to Czech territory.  In the case of a surrender

pursuant to a European arrest warrant, a citizen has the right to

defend herself against measures by criminal justice bodies, by means of

remedial measures, including even a possible constitutional complaint.

The first sentence of Art. 14 par. 4 of the Charter, which provides

that every citizen has the right to freely enter the Republic, as well

as its second sentence, which provides that no citizen may be forced to

leave his homeland, make entirely clear that the Charter precludes the

exclusion of a Czech citizen from the community of citizens of the Czech

Republic, a democratic state to which he is bound by the ties of state

citizenship.  The text of Art. 14 par. 4 cannot itself, without further

arguments, unambiguously answer whether and to what extent it precludes

the surrender of a citizen, for a limited time, to an EU Member State

for a criminal proceeding being conducted there if, following the

conclusion of such proceeding, he has the right to return to his

homeland.  Although a linguistic interpretation of the phrase, “forcing

to to leave one’s homeland” might include even such a relatively short

surrender of a citizen to a foreign state for a criminal proceeding.

The prohibition on “forcing one to leave his homeland” can be

interpreted either broadly or narrowly.  In agreement with the

petitioner, the Constitutional Court concludes that, in order to resolve

the issue of the meaning of Art. 14 par. 4 of the Charter, its

objective purport must be sought.  In assessing of the meaning of this

provision of the Charter, it is appropriate above all to take into

account the historical impetus for its adoption.  The second sentence of

Article 14 par. 4 first appeared in Art. 15 par. 2 of the draft

Charter, in the 7 January 1991 report of the Constitutional Law

Committee of the Assembly of the People and the Assembly of the Nations

(see print 392, www.psp.cz).  The Constitutional Court also

agrees both with the petitioner and with the parties to this proceeding,

that the experience with the crimes of the Communist regime played a

critical role in the constitution of the Charter.  It played this role

even in the drafting of the current version of Art. 14 par. 4 of the

Charter, at the end of 1990 and beginning of 1991, that is, experience

that is still quite recent.  This was especially the case in connection

with the “Demolition” operation, in which the Communist regime forced

troublesome persons to leave the Republic.  A historical interpretation

of Art. 14 par. 4 of the Charter thus attests to the fact that it was

never concerned with extradition.

If Czech citizens enjoy certain advantages, connected with the status

of EU citizenship, then it is naturally in this context that a certain

degree of responsibility must be accepted along with these advantages. 

The investigation and suppression of criminality which takes place in

the European area, cannot be successfully accomplished within the

framework of individual Member States, but requires extensive

international cooperation.  The results of this cooperation is the

replacement of the previous procedures for the extradition of persons

suspected of criminal acts by new and more effective mechanisms,

reflecting the life and institutions of the 21st century.  The

contemporary standard for the protection of fundamental rights within

the European Union does not, in the Constitutional Court’s view, give

rise to any presumption that this standard for the protection of

fundamental rights, through invoking the principles arising therefrom,

is of a lesser quality than the level of protection provided in the

Czech Republic.

These facts cannot be disregarded when determining the objective

meaning of Art. 14 par. 4 of the Charter.  It is not in harmony with the

principle of the objective teleological interpretation, reflecting the

contemporary reality of the EU (i.e., that it is founded on the high

mobility of citizens in the framework of the entire Union area), for

Art. 14 par. 4 to be interpreted such that it does not even allow for

the surrender of a citizen, for a limited time, to another Member State

for a criminal proceeding concerning a criminal act committed by this

citizen in that state, as long as it is guaranteed that, following the

conclusion of the criminal proceeding the citizen will, at his own

request, be returned to the Czech Republic to serve any sentence imposed

(srov. § 411 par. 7 of the Criminal Procedure Code).  Thus, the

surrender of a citizens for a limited time for criminal proceedings

being held in another EU Member State, conditioned upon their subsequent

return to their homeland, does not and cannot constitute forcing them

to leave their homeland in the sense of Art. 14 par. 4 of the Charter. 

The Court can equally draw attention to the rules providing that Czech

citizens or persons with permanent residence status in the Czech

Republic may be sent to another Member State of the Union to serve a

sentence or for protective treatment or protective measures, but only if

they consent thereto (§ 411 par. 6 of the Criminal Procedure Code).  It

follows therefrom that unless they give their consent, they will never

be sent abroad to serve a sentence of imprisonment.

The right of citizens to protection by the state is manifested in the

fact that it would represent a breach, among others, of Art. 14 par. 4,

Art. 36 par. 1 of the Charter and Art. 6 par. 1 of the Convention, for a

citizen were to be surrendered for criminal prosecution to a state

where the standards of criminal proceedings do not meet the requirements

for criminal proceedings enshrined in the Czech Constitutional order,

for ex., in the situation where the citizen’s right to fair process

(Art. 36 par. 1 of the Charter) would be genuinely threatened, or

alternatively where the citizen would be subjected to torture or other

inhuman or degrading treatment or punishment (Art. 3 of the Convention,

Art. 7 par. 2 of the Charter).  However, such is not the case for the

European arrest warrant.

It is always necessary to remember the fact that all EU Member States

are also signatories of the European Convention for the Protection of

Human Rights and Fundamental Freedoms.  Accordingly a citizen cannot not

be significantly affected in his rights due to the fact that his

criminal matter will be decided in another Member State of the Union, as

each EU Member State is bound by a standard of human rights protection,

which is equivalent to the standard required in the Czech Republic

while all Member States’ legal orders rest on the values to which our

state declared its allegiance only after 1989.  The Czech Charter of

Fundamental Rights and Basic Freedoms also draws upon the European

Convention for the Protection of Human Rights and Fundamental Freedoms.

Section 377 of the Criminal Procedure Code can be considered as

something of a safeguard, guaranteeing on the constitutional law plane

the protection of Czech citizens.  According to this provision, the

request of a foreign state’s organ may not be granted if its granting

would constitute a violation of the Constitution of the Czech Republic

or such provision of the Czech legal order which must be adhered to

without exception, or if the granting of the request would damage some

other significant protected interest of the Czech Republic.  This

principle, contained in the Twenty-Fifth Chapter, First Division of the

Criminal Procedure Code (designated as general provisions) thus applies

both to the classic extradition procedure pursuant to the Second

Division, and to proceedings on the surrender of persons between EU

Member States on the basis of the European arrest warrant, pursuant to

the Third Division of the same Chapter.  Even though this provision of

the Criminal Procedure Code is introduced by the marginal heading

“Protection of the State’s Interests”, it can be deduced, primarily from

the text of its first sentence, that it is be concerned primarily with

the state’s interest in not violating a Czech citizen’s fundamental

rights enshrined in the Czech Republic’s constitutional order, of which

the Charter of Fundamental Rights and Basic Freedoms forms an integral

part (. . . if its execution would constitute a violation of the

Constitution of the Czech Republic or such provision of the Czech legal

order which must be adhered to without exception . . .).

Persons who are to be surrendered to another EU state retain the right

to submit against the relevant measures of organs taking part in

criminal proceedings a complaint which has suspensive effect (§ 411 par.

5 of the Criminal Procedure Code) and, in appropriate cases, a

constitutional complaint, and the deadline for the surrender of the

person does not run while the Constitutional Court is deciding (§ 415

par. 3 of the Criminal Procedure Code).  These provisions preserve the

legal protection of citizens, or of other persons who should be

surrendered for criminal prosecution, and at the same time uphold the

condition that, in consequence of the surrender of a requested person,

the constitutional order of the Czech Republic will not be affected in

individual cases.

These principles are in conformity with the Framework Decision,

according to which nothing in it may be interpreted as prohibiting the

refusal to surrender a person for whom a European arrest warrant has

been issued when there are reasons to believe, on the basis of objective

elements, that the said arrest warrant has been issued for the purpose

of prosecuting or punishing a person on the grounds of his or her sex,

race, religion, ethnic origin, nationality, language, political opinion

or sexual orientation, or that that person’s position may be prejudiced

for any of these reasons.  The Framework Decision does not prevent a

Member State from applying its constitutional rules relating to the due

process, the freedom of association, the freedom of the press and the

freedom of expression in other media.  The Framework Decision also

expressly declares that no person may be removed, expelled or extradited

to a state where there is a serious risk that she would be subjected to

the death penalty, torture or other inhuman or degrading treatment or

punishment.

The assertion that the domestic law rules relating to the European

arrest warrant have disturbed the relationship between the citizen and

the state is, thus, not tenable.  A citizen surrendered to an EU Member

State for criminal prosecution remains, even for the duration of that

criminal proceeding, under the protection of the Czech state.  The

European arrest warrant merely permits, for a limited time, the

surrender of a citizen for his criminal prosecution in a Member State of

the Union for a specifically defined act, while following the

completion of this criminal proceeding, there is nothing preventing him

from returning back (where relevant even to serve his sentence in Czech

territory).  The Criminal Procedure Code specifies the grounds upon

which the surrender of a person to another Member State of the Union

shall not occur (esp. § 411).  Citizens have the right to defend

themselves against measure by organs acting in the criminal proceeding

by means of remedial measures, which have suspensive effect (see § 411

par. 5 of the Criminal Procedure Code), including even the possibility

of a constitutional complaint.  In the case that the surrender of a

citizen would result in a breach of the constitutional order, the

surrender of the citizen will not occur.

In reaching these conclusions, it is necessary to take into account not

only the protection of rights of persons suspected of committing a

criminal act, but also the interests of the victims of criminal acts. 

For the protection of the rights of victims and injured persons, it

generally appears more practical and fair for the criminal proceeding to

be held in the state in which the criminal act was committed (cf. the

conditions for the resolution of cases of two or more concurrent

European arrest warrants in § 419 of the Criminal Procedure Code and

Art. 16 of the Framework Decision).  Since the execution of the European

arrest warrant, in the case a state is surrendering its own citizen, is

conditioned on reciprocity (§ 403 par. 2 of the Criminal Procedure

Code), the rules contested by the petitioners protect the rights of

persons who can be considered, according to the Czech Criminal Procedure

Code, as injured persons.  It can generally be said that, in view of

the evidence that will found in the state where the criminal act

occurred, a criminal proceeding there will be quicker, more effective

and, at the same time, more reliable and just both for the defendant and

for any victim of the criminal act.

The Constitutional Court, therefore, does not concur with the

petitioners‘ arguments asserting that § 412 par. 2 of the Criminal

Procedure Code is in conflict with Art. 39 of the Charter because this

provision in no way defines the criminal offenses not requiring double

criminality.  If it had been a substantive law enactment, that is if

certain conduct had been made criminal by means of a provision like §

412 par. 2 of the Criminal Procedure Code, that is, by enumerating them

without any sort of statutory definition, that would certainly

constitute a violation of Art. 39. of the Charter.  The Constitutional

Court proceeds, however, from the fact that § 412 of the Criminal

Procedure Code is not a substantive law provision, rather a procedural

law one.  A surrender pursuant to the European arrest warrant is still

not the imposition of punishment in the sense of Art. 39 and Art. 40 of

the Charter.

Persons suspected of having committed a criminal act and surrendered in

accordance with the European arrest warrant will not be prosecuted

under § 412 par. 2 of the Criminal Procedure Code; rather the criminal

proceeding will be conducted for criminal offenses defined in the

substantive law of the requesting EU state.  The statutory enumeration

of criminal offenses in § 412 par. 2 of the Criminal Procedure Code

(Art. 2 par. 2 of the Framework Decision) serves merely for the

procedural steps taken by courts.  That is to say, in cases where the

requesting state’s organ designates in the European arrest warrant the

conduct of the surrendered person as one of the categories of conduct

enumerated in § 412 par. 2 of the Criminal Procedure Code, or Art. 2

par. 2 of the Framework Decision, Czech courts do not ascertain the

criminality of this act according to the law of the Czech Republic.  The

adoption of § 412 of the Criminal Procedure Code did not result in the

criminal law of all EU Member States becoming applicable in the Czech

Republic.  It merely means that the Czech Republic is assisting the

other Member States in the enforcement of their criminal laws.  Thus, §

412 of the Criminal Procedure Code does not impose on persons in the

Czech Republic (citizens, permanent residents, and others commonly found

within the territory) the obligation to know the criminal law of all EU

states.

Moreover, the enumeration of criminal offenses in § 412 par. 2 of the

Criminal Procedure Code or Art. 2 par. 2 of the Framework Decision

generally corresponds to conduct which is criminal even according to

Czech law, even though the titles of particular criminal offenses do not

necessarily correspond exactly to each other.  The enumeration of

criminal offenses which do not require dual criminality is not given due

to the fact that it would otherwise be presumed that some of these

categories of conduct do not qualify as criminal offenses in one or more

of the Member States; rather the exact opposite, that it is conduct

which, in view of the values shared by the EU Member States, is criminal

in all of them.  The reason for enumerating them in this fashion is to

speed up the execution of European arrest warrants, as the proceeding

for ascertaining the criminality of such acts under Czech law has been

dropped.  In addition, in adopting this Framework Decision each EU

Member State expressed its agreement that all criminal conduct coming

within the categories defined in this way will also be criminally

prosecuted.

By dispensing with the principle of dual criminality in relation to the

Member States of the EU, the Czech Republic in no way violates the

principle of legality.  As a general matter, the requirement of dual

criminality can be dispensed with, as a safeguard, in relations among

the Member States of the EU, which have a sufficient level of value

approximation and mutual confidence that they are all states as having

democratic regimes that adhere to the rule of law and are bound by the

obligation to observe this principle.  It is precisely the situation,

where the level of approximation among the 25 EU Member States has

arrived at such a degree of mutual confidence, that they no longer feel

the need to cling to the principle of dual criminality.

The Constitutional Court takes as a starting proposition that the

surrender of Czech citizens or other persons authorized to stay on Czech

territory to another EU Member State for the purpose of their

prosecution will generally come into consideration only in the case

where their conduct, qualifying as a criminal offense, did not occur in

the Czech Republic, but in another Member State of the Union.  Should

the commission of a criminal act occur partly abroad and partly in the

Czech Republic, then criminal prosecution in the Czech Republic would be

an option.  An impediment to the surrender of such persons for a

criminal proceeding abroad (cf. § 411 par. 6 lit. d) of the Criminal

Procedure Code) thereby arises, to the extent that it would be more

appropriate, in view of the nature of the conduct in question, for the

prosecution to take place in another EU Member State, for ex., due to

the fact that decisive evidence is found there or the criminal deeds

played out primarily in that state, etc.

Pursuant to Art. 4 par. 7 of the Framework Decision, the executing

judicial authorities may refuse to execute a European arrest warrant

where it relates to offenses which have been committed in whole or in

part in the territory of the executing Member State, or in a place

treated as such.  This provision, which affords domestic criminal

justice organs the possibility to weigh whether to refuse to execute the

European arrest warrant, protects the value of legal certainty, which

is also a value in European law and whose observance on the European

plane is a prerequisite for the Czech constitutional order permitting

the application of European law in the domestic legal order (in the case

of the implementation and application of the Framework Decision). 

Although Article 4 par. 7 of the Framework Decision was not explicitly

implemented into the Czech legal order, in accordance with the principle

of the constitutionally conforming interpretation, Czech criminal

justice organs must pay heed to Czech citizens’ trust in the fact that

their conduct within the Czech Republic will be governed by Czech

criminal law.  If Czech citizens remain within the territory of the

Czech Republic, domestic law is applied to their conduct, from which

also follows these persons’ constitutionally protected trust that legal

consequences laid down in Czech law will be attributed to their legal

conduct.  The general value of legal certainty finds expression, on the

constitutional plane, in the principle formulated in Art. 39 of the

Charter, and on the sub-constitutional plane is expressed in the general

principle of § 377 of the Criminal Procedure Code, which applies

subsidiarily in relation to § 411 par. 6 lit. d) of the Criminal

Procedure Code, that is, it will only be applied in the case that a

criminal prosecution concerning the same act is not already in progress

in the Czech Republic.  According to § 377 of the Criminal Procedure

Code, interpreted in the light of Art. 4 par. 7 of the Framework

Decision, a Czech citizen will not be surrendered to another EU Member

State due to suspicion of having committed a criminal offense, if it was

allegedly committed within the Czech Republic, except in cases where,

in view of the special circumstances of the commission of the criminal

act, priority must be given to holding the criminal prosecution in the

requesting state, for example, on grounds of adequate fact-finding

concerning the conduct in question, if in the greater part it occurred

abroad, or because prosecution in the given EU Member State would, in

that particular case, be more appropriate than that person’s prosecution

in the Czech Republic.  It is appropriate for the court which may, but

need not, refuse to execute the European arrest warrant, to have

sufficient decision-making discretion, as in a whole host of cases it

would be appropriate for a person suspected of having committed a

criminal offense to be surrendered, even though his activity occurred

within the Czech Republic (for ex. organized criminal acts, which

naturally were brought to fruition in the another EU Member State). 

This provision will be clarified in more detail only through the

decision-making practice in this phase of such proceedings; it is not

for the Constitutional Court to preempt that process.
The

Constitutional Court would emphasize that the Czech constitutional order

does not protect merely Czech citizens’ trust in Czech law, rather it

similarly protects also the trust and legal certainty of other persons,

authorized to stay within the territory of the Czech Republic (for ex.,

aliens having permanent residence status in the Czech Republic).
 

“Distance”

criminal offences, that is, those usually committed by means of

computer technology, represents a specific category falling within the

terms of the territoriality principle, as it theoretically admits of the

possibility that conduct occurring in the Czech Republic could satisfy

the material elements of a criminal offense in another EU Member State. 

The Constitutional Court concedes that, under quite exceptional

circumstances, the application of the European arrest warrant would be

in conflict with the Czech Republic’s constitutional order, especially

in the case that the “distance” delict would qualify as a criminal act

under the law of the requesting state, but would not qualify as such

under Czech criminal law, and perhaps would even enjoy constitutional

protection in the Czech Republic (for ex., within the framework of the

constitutional protection of free expression).  The petitioners’

objections are justified in this respect.  In such an, albeit unlikely,

case, the application of § 377 of the Criminal Procedure Code would come

into consideration, as it contains a mechanism for precluding the

unconstitutional consequences of the European arrest warrant, in the

sense stated above.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court Plenum, composed of Stanislav Balík, František

Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimír

Kůrka, Dagmar Lastovecká, Jiří Mucha, Pavel Rychetský, Miloslav Výborný,

Eliška Wagnerová and Michaela Židlická, in the matter of the petition

submitted by the petitioners - a group of deputies of the Chamber of

Deputies of the Czech Parliament and a group of senators of the Senate

of the Czech Parliament, represented by Prof. JUDr. Aleš Gerloch, CSc.,

advocate with his office in Prague 2, at Botičská 4, proposing the

annulment of § 21 par. 2 of Act No. 140/1961 Coll., as amended and the

annulment of § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7 and § 412

par. 2 of Act No. 141/1961 Coll., on the Criminal Procedure Code, as

amended, has decided as follows:
 

The

petition proposing the annulment of § 21 par. 2 of Act No. 140/1961

Coll., as amended and the annulment of § 403 par. 2, § 411 par. 6 lit.

e), § 411 par. 7 and § 412 par. 2 of Act No. 141/1961 Coll., on the

Criminal Procedure Code, as amended, is rejected on the merits.



REASONING


I.
Definition of the Matter and Summary of the Petition
 

1.

On 26 November 2004, the Constitutional Court received a petition of a

group of deputies of the Chamber of Deputies of the Czech Parliament and

of a group of senators of the Senate of the Czech Parliament

(hereinafter “petitioners”) proposing that the above-designated

provisions of the Criminal Procedure Code and the Criminal Code be

annulled as of the day of the publication of the Court’s judgment in the

Collection of Laws.
 

2. In

the introductory part, the petitioners summarized the grounds and

circumstances of the adoption of the above designated legal provisions. 

Sec. 21 par. 2 of the Criminal Code was adopted Act No. 537/2004,

amending that code, and § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7

and § 412 par. 2 of the Criminal Procedure Code were adopted by Act No.

539/2004 Coll., amending that code.  According to the petitioners,

these provisions (hereinafter „the contested provisions“) conflict with

Articles 1, 4 par. 2, 14 par. 4 and 39 of the Charter of Fundamental

Rights and Basic Freedoms (hereinafter „the Charter“).  By means of

these amendments the „European arrest warrant“ was implemented into the

Czech legal order, in conformity with the Framework Decision of the

Council of the European Union, No. 2002/584/JHA of 13 June 2002, on the

European arrest warrant and the surrender procedures between Member

States.
 

3. The petitioners

drew attention to the fact that initially, when the Government of the

Czech Republic submitted the draft bills including the above-mentioned

amendments, it proposed that Art. 14 of the Charter be amended at the

same time by the inclusion of a fifth paragraph, which would have read: 

„Citizens can be surrendered to Member States of the European Union for

the purpose of criminal prosecution or of serving a custodial sentence,

if such results from those of the Czech Republic’s obligations as a

European Union Member State which cannot be restricted or excluded.“ 

The proposed amendment to the Charter was rejected by the Chamber of

Deputies on 2 April 2004.  Afterwards the mentioned amendments to the

Criminal Code and the Criminal Procedure Code were adopted by the

Chamber of Deputies, even over the veto of the President of the

Republic, who had urged their unconstitutionality.
 

4.

According to the contested provisions, citizens of the Czech Republic

can be surrendered to a foreign state (that is, to a European Union

Member State) for the purpose of their criminal prosecution, which

follows from the exhaustively enumerated grounds impeding the surrender

of a requested person, listed in § 411 par. 6 lit. a) to e) of the

Criminal Procedure Code.  These grounds do not include as a ground for

the refusal of the surrender of a person the fact that she is a Czech

citizen.  The fact that a Czech citizen can be handed over to another EU

Member State follows not only from § 21 par. 2 of the Criminal Code and

§ 403 par. 2 of the Criminal Procedure Code, but also, albeit

indirectly, from § 411 par. 6 lit. e) and par. 7 of the Criminal

Procedure Code.  These provisions represent a certain exception from the

obligation to hand over a citizen to another EU Member State.  However,

by means of an argument a contrario, it also follows from these

provisions that the court shall always grant a request for the surrender

of a requested Czech citizen in the case that she should be surrendered

to another Member State for the purpose of criminal prosecution.
 

5.

The designated provisions are thus in conflict with Art. 14 par. 4 of

the Charter, according to which no citizen may be forced to leave his

homeland.  The prohibition laid down in this article of the Charter is

clear and unconditional.  The right of citizens not to be forced to

leave their homeland is a fundamental right which, in the sense of Art. 1

of the Charter is inherent, inalienable, illimitable, and not subject

to repeal.  Thus, not even citizens themselves can give up or waive this

right in any way.  The Charter does not allow for this fundamental

right to be restricted by statute.  The Explanatory Report to the Draft

Amendment to the Charter, rejected by the Chamber of Deputies of

Parliament on 2 April 2004, as was stated above, was also in agreement

with this position.  The petitioners make reference to the fact that the

Government of the Czech Republic, as the subject initiating the

amendments to the Criminal Code and the Criminal Procedure Code, changed

its arguments after the proposed amendment to the Charter was

rejected.  Only as of April, 2004 did the Government start to argue that

an amendment to the Charter is not necessary, as the submitted draft

amendments to both criminal codes are not in any way in conflict with

it.
 

6.  In the petitioners’

view, forcing a citizen to leave his homeland, in the sense of Art. 14

par. 4 of the Charter, is from the context analogous in nature to

expulsion abroad in the sense of par. 5 of the same Article.  In both

cases, it occurs without the consent of the affected person.  Moreover,

the consequence of such an encroachment by the state is to hinder

citizens’ entry into the territory of the Czech state, which is a

further right of citizens expressly recognized in the Charter (Art. 14

par. 4, first sentence, of the Charter).  In the petitioners’ view, it

is necessary also to use an “argumentum a minori ad maius”.  If the

Charter forbids forcing citizens to leave their homeland, by which can

be understood at the very least indirect forcing (indirect compulsion),

all the more does it forbid the surrender of a citizen, which

constitutes forcing by direct means, that is, by means of compelled

restriction on liberty in the form of taking him into surrender custody

and the subsequent surrender to the organs of an EU Member State.
.  .  .  .
 


III.
Conditions for the Petitioners’ Standing
 

40.

The petition which is before the Constitutional Court was submitted by a

group of forty-seven deputies of the Chamber of Deputies of the Czech

Parliament and a group of twenty-one senators, thus it satisfies the

conditions contained in § 64 par. 1 lit. b) Act on Constitutional

Court.  The petitioners have thus fulfilled the conditions to have

standing.
.  .  .  .
 


V.
The Wording of the Contested Provisions of the Criminal Code and the Criminal Procedure Code
 

43.

The provision of § 21 par. 2 of the Criminal Code (Act No. 140/1961

Coll., as amended) proposed to be annulled reads: „Citizens of the Czech

Republic may be surrendered to another Member State of the European

Union solely on the basis of a European arrest warrant.“
 

44. The provisions of the Criminal Procedure Code (Act No. 141/1961 Coll., as amended) proposed to be annulled, read as follows:

§ 403 par. 2: „The Czech Republic may surrender its own citizens to

other Member States of the European Union only on the condition of

reciprocity.“

§ 411 par. 6 lit.

e) (regulating one of the situations in which a court shall refuse to

surrender the requested person): “this person is a citizen of the Czech

Republic or has permanent residence status in the Czech Republic, whose

surrender is requested to execute a custodial sentence, or to undergo

protective treatment or protective education, and before the competent

court he declares for the record that he refuses to submit to the

execution of this sentence or to the protective measures in the

requesting state; such a declaration cannot be withdrawn.”

§

411 par. 7: „Where a person surrendered to a requesting state for

criminal prosecution is a citizen of the Czech Republic or a person

having permanent residence status in the Czech Republic, the court shall

make the surrender conditional on that person being returned to the

Czech Republic to serve his custodial sentence of imprisonment, or to

undergo protective treatment or protective education, if such a sentence

or if protective measures are imposed upon that person and, following

the judgment in the requesting state, he does not give his consent to

serving the sentence or undergoing the protective measures in the

requesting state.  The court should proceed in this manner only in cases

that the requesting state provides an assurance that the person will

turned back over to the Czech Republic to serve the sentence of

imprisonment or to undergo protective measures.  If the requesting state

does not provide this assurance, then the court shall refuse to

surrender the requested person.”
 

45.

§ 412 par. 2 (which is substantively related to par. 1 of the same

provision, enumerating the types of conduct for which Czech courts do

not ascertain their criminality under the law of the Czech Republic):
„Conduct under paragraph 1 is understood to mean
a) participation in a criminal organization,
b) terrorism,
c) trafficking in human beings,
d) sexual exploitation of children and child pornography,
e) illicit trafficking in narcotic drugs a psychotropic substances,
f) illicit trafficking in weapons, munitions and explosives,
g) corruption,

h) fraud, including that affecting the financial interests of the

European Communities within the meaning of the Convention of 26 July

1995 on the protection of the European Communities’ financial interests,
i) laundering of the proceeds of crime,
j) counterfeiting currency,
k) computer-related crimes,
l)environmental crime, including illicit trafficking in endangered animal and plant species and in their varieties,
m) aiding in unauthorized border crossing and in unauthorized residence,
n) murder, grievous bodily injury,
o) illicit trade in human organs and tissues,
p) kidnapping, restriction on personal freedom, and hostage-taking,
q) racism and xenophobia,
r) organized or armed robbery,
s) illicit trafficking in cultural goods, including antiques and works of art,
t) fraudulent conduct,
u) extortion and the exaction of protection money,
v) counterfeiting and piracy of products,
w) forgery of public documents and trafficking therein,
x) forgery of means of payment,
z) illicit trafficking in nuclear or radioactive materials,
y) illicit trafficking in hormonal substances and other growth promoters,
    aa) trafficking in stolen vehicles,
    bb) rape,
    cc) arson,
    dd) crimes over which the International Criminal Court has jurisdiction to prosecute and punish,
    ee) hijacking of aircraft or sea vessels,
    ff) sabotage.“
 


VI.
Classical Extradition and the Surrender of Persons among the Member States of the EU on the Basis of the European arrest warrant
 

46.

According to criminal law doctrine, extradition is understood as the

rendition/turning over of a person by a state on whose territory that

person is found to another state at the latter’s request for the purpose

of criminal prosecution or the carrying out of punishment.  The

objective of extradition is to prevent the perpetrator of a criminal

offense from escaping criminal prosecution or the carrying out of

punishment by fleeing to another state.  The duty of the state of

residence to render/extradite the perpetrator generally arises from a

treaty (extradition treaty, treaty on legal assistance in criminal

matters, etc.).  Extradition itself is based on a large number of

principles, among which are included, for example, the principles of

reciprocity, of dual criminality, of the impermissibility for a state to

extradite its own citizens, of the impermissibility of extraditing in

respect of a designated category of criminal offenses, and of

specialty.  Criminal law theory draws a distinction between substantive

and formal extradition law.  Substantive extradition law refers to the

totality of conditions under which the duty to extradite a perpetrator

arises under international law.  Formal extradition law then governs the

special proceeding before bodies of the requested state, which results

in a decision either to surrender or not to surrender the perpetrator,

thus the response to the requesting state’s request (Musil J.,

Kratochvíl V., Šámal P., Kurz trestního práva – Trestní právo procesní

[A Course of Criminal Law – Criminal Procedural Law], C.H. Beck, 2003).
 

47.

In Czech law the rendition (extradition) of persons to a foreign state

is governed by § 391 and following of the Criminal Procedure Code.  The

proceeding as a whole is broken down into three phases, which are, the

preliminary investigation (§ 394 and foll.), the judicial decision (§

397, § 398), and the authorization and carrying out of the extradition

(§ 399).  In the preliminary investigation stage, the state attorney

ascertains whether the conditions for extradition, according to the

substantive extradition law, are met.  Following the preliminary

investigation, the competent court (which is generally the regional

court) decides as to whether extradition is permissible.  The final

phase of the whole process is the decision of the Minister of Justice

authorizing the extradition of the person to the foreign state. Thus,

the Minister may do so solely in the case that the competent court (the

regional court or Supreme Court) decides that the extradition is

permissible.  That does not mean, however, that in the case the court

decides in favor of extradition that the Minister must authorize the

person’s extradition.  The cases in which the Minister may decide not to

authorize extradition are enumerated in § 399 par. 2 of the Criminal

Procedure Code.  In making his decision, the Minister proceeds in

accordance with the canons of diplomatic relations between states, or in

the form of inter-ministerial relations, if the international agreement

so permits.
 

48. While the

classical extradition process is relatively drawn-out, as is

demonstrated in the Czech case (in other states this procedure is

similar) and takes place with the participation of the Minister of

Justice, as the representative of the executive, the surrender process

pursuant to Framework Decision of the European Council from 13 June

2002, on the European arrest warrant and the Surrender Process between

Member States, (2002/584/JVV), hereinafter “European arrest warrant”,

markedly simplified and sped up the entire process.  Thus, in the

relations among the Member States, the European arrest warrant has

replaced classical extradition and represents a qualitatively entirely

different process.  It is thus essential to distinguish between

classical extradition and the and surrender of persons among the Member

States of the European Union on the basis of the European arrest

warrant, which for that matter the Czech Criminal Procedure Code does as

well.  The entire process of transfer or surrender is entrusted to the

competent courts, which are bound only by law, so that the intervention

of the executive in the final phase, as was the case with classical

extradition, drops out.
 

49.

According to the Preamble of the Framework Decision, the basic aim of

the European arrest warrant is to abolish, in the framework of the

European Union, the formal extradition procedure in respect of persons

who are fleeing justice after having been finally sentenced and to speed

up the extradition procedures in respect of persons suspected of having

committed a criminal offense.  The objective set for the EU, that is,

becoming an area of freedom, security and justice leads to abolishing

classical extradition between individual Member States and replacing it

by a system of surrender between individual judicial authorities.  The

traditional formal relations of cooperation between the central

authorities, or through diplomacy, which have prevailed up till now,

should be replaced by a system of free movement of judicial decisions in

criminal matters.  Thus, persons suspected of having committed a

criminal offense will no longer be turned over on the basis of an

individual act of the executing state, rather directly on the basis of a

court decision in the requesting EU Member State, which thus has direct

effect in the executing state.  The activities of central authorities

are replaced by cooperation between individual courts, and the role of

central authorities is thus limited to practical and administrative

assistance.
 

50. The

Framework Decision emphasizes that the mechanism for the European arrest

warrant is based on a high level of confidence between the Member

States of the EU, so that the implementation of a warrant can be

suspended only in the event of serious and persistent breach by certain

of the Member States of the principles set out in Art. 6 par. 1 of the

Treaty on the European Union, if such breach is formally determined by

the Council pursuant to Art. 7 of the Treaty on the European Union.
 

51.

A European arrest warrant is thus an individual legal act, issued by a

court of an EU Member State, seeking the arrest and surrender of the

requested person from another Member State.  A European arrest warrant

does not apply in the case of minor criminal activities.  It can only be

issued due to suspicion of the commission of a criminal offense for

which can be imposed a punishment of imprisonment with a maximum

possible sentence of at least 12 months, or for the condemnation to

imprisonment (or imposition of protective measures) of at least 4 months

in duration (cf. Art. 2 par. 1 of the Framework Decision and § 404 par.

2 of the Criminal Procedure Code).  In the case of the thirty-two

expressly enumerated criminal offenses, if the punishment of

imprisonment with a maximum possible sentence of at least three years

can be imposed for them (in the requesting EU Member State), then the

dual criminality principle is dispensed with.  In such a case it is

sufficient if the deed for which the surrender is requested is criminal

under the law of the requesting state (for an analysis of the institute

of the European arrest warrant, cf. for ex. Polák, P., Evropský zatýkací

rozkaz [The European Arrest Warrant], Právní fórum [Legal Forum], No.

2/2004, p. 76 and foll.).
 


VII.
The Substantive Conformity of the Contested Provisionswith the Constitutional Order
 

52.

The Constitutional Court is the judicial body for the protection of

constitutionalism, which reviews the constitutionality of all acts of

Czech Republic public authorities.  Thus, its jurisdiction extends, in

principle, also to all Czech domestic norms which, pursuant to Art. 10a

and Art. 1 par. 2 of the Constitution carry out the Czech Republic’s

obligations towards the EU.  The Czech Republic’s accession to the EU on

the basis of Art. 10a resulted in Constitutional Court’s jurisdiction

being restricted to a certain extent, just as was the case with other

state bodies.  In view of the ECJ doctrine on the supremacy of Community

law, the Constitutional Court can exercise its jurisdiction in relation

to Community law norms only under certain circumstances.  According to

the ECJ, in areas where Community law applies exclusively, it is

supreme, so that it cannot be contested by means of national law

referential criteria, not even on the constitutional level.  According

to this doctrine the Constitutional Court would have no competence to

decide on the constitutionality of a European Law norm, not even in the

case that they are contained in legal enactments of the Czech Republic. 

Its competence to adjudge the constitutionality of Czech norms is,

thus, restricted in the same respect.
 

53.

In its judgment no. Pl US 50/04 of 8 March 2006, the Constitutional

Court refused to recognize the ECJ doctrine insofar as it claims

absolute primacy of EC law.  It stated that the delegation of a part of

the powers of national organs upon organs of the EU may persist only so

long as these powers are exercised by organs of the EU in a manner that

is compatible with the preservation of the foundations of state

sovereignty of the Czech Republic, and in a manner which does not

threaten the very essence of the substantive law-based state. 

Understandably that, unless such an exceptional and highly unlikely

eventuality comes to pass, the Constitutional Court, guided by the

above-mentioned ECJ doctrine, will not review individual norms of

Community law for their consistency with the Czech constitutional

order.  In this matter, however, the petitioners asserted that, by

adopting the European arrest warrant, just such a conflict with the

essential attributes of a democratic law-based state has come about.
 

54.

However, also in its judgment Pl US 50/04 the Constitutional Court

adumbrated a further exception to the position that it does not have any

competence whatsoever to review the constitutionality of Czech legal

enactments adopted to transpose or implement European law.  In

situations where the Member States implement European law norms and that

implementation leaves Member States a certain area of discretion as to

the choice of means to accomplish the aim laid down in the EC norm, then

the Member State may review the resulting implementing norm in terms of

conformity with its own constitution.  Member States enjoy freedom at

least to the extent of ensuring that, from among the choice of means

available to them under Community law, they select such means as are

consistent with their respective constitutions and avoid those in

conflict therewith. As a corollary to this doctrine announced in Pl US

50/04, where the delegation of authority leaves the member states no

room for discretion as to the choice of means, that is, where the Czech

enactment reflects a mandatory norm of EC law, the doctrine of primacy

of Community law in principle does not permit the Constitutional Court

to review such Czech norm in terms of its conformity with the

constitutional order of the Czech Republic, naturally with the exception

stated in paragraph 53.
 

55.

Although the contested provisions are of a mandatory nature, the

situation presented in this case is considerably different from that in

the Court’s judgment no. Pl US 50/04 in that it involves not Community

law in the classic sense, that is under the First Pillar, rather Union

law under the Third Pillar, in the form of a framework agreement.  The

Constitutional Court concurs with the petitioner that the framework

agreement which formed the basis for the adoption of the contested norms

does not entail direct effect.  The purpose of a framework decision is

the approximation of the laws and regulations of the Member States. 

Framework Decisions are binding upon the Member States as to the result

to be achieved but shall leave to the national authorities the choice of

form and methods.  Unless they are implemented into national law,

Framework decisions cannot be invoked against natural or legal persons. 

Framework Decisions must be implemented by national legal acts, which

occurred in this case by the adoption of the provisions, portions of

which are proposed to be annulled.
 

56.

Despite the fact that the contested provisions were adopted for the

purpose of transposing a framework agreement, which leaves no room for

discretion as to the choice of means, it might still be the case that

the this is an enactment which the Constitutional Court may review for

its consistency with the Czech constitutional order.  Whether it may

proceed in such a manner depends on the actual nature and status of

norms adopted under the Third Pillar, such as Framework Decisions.
 

57.

The questions concerning the nature and status of such Union acts stems

from several differences between them and traditional Community acts.

For ex., Framework Decisions are adopted pursuant to the legislative

process in Title VI. of the Treaty on the European Union within the

context of the „Third Pillar“, which means that, on the initiative

either of the Commission or of a Member State, it is adopted by the

Council acting unanimously, that is, with the assent of all Member

States, following consultation with the European Parliament.  Direct

effect of such Framework Decisions is excluded by virtue of Article 34

par. 2 lit. b) of the EU Treaty.  In this respect, among others, it is

distinguished from primary Community law (esp. of the founding treaties)

and classical secondary Community law, adopted by EU organs pursuant to

Art. 251-252 of the Treaty on the European Community.  In addition, the

obligation to implement a Framework Decision is not enforceable by the

European Court of Justice, as Title VI of the EU Treaty does not include

an action for infringement of the Treaty (see. Art. 226 of the EC

Treaty).  The Application of the European arrest warrant in the Member

States is subject to the ECJ’s jurisdiction, in the context of a

preliminary reference procedure under the conditions of Art. 35 par. 1

of the EU Treaty, in respect of issues of the validity and

interpretation of Framework Decisions (See Zemánek J.: Evropskoprávní

meze přezkumu ústavnosti transpozice rámcového rozhodnutí o

eurozatykači, Právní rozhledy č. 3/2006 [Zemánek J.: European Law Limits

on the Review of Constitutionality of the Transposition of the

Framework Decision on the European arrest warrant, Právní rozhledy

[Legal Horizons], No. 3/2006].
 

58.

The consequences of these differences for the current nature and status

of such norms in relation to Member State legal orders, has not as yet

been definitively and clearly settled in the case-law of the ECJ. 

Although Art. 34 of the EU Treaty explicitly states that framework

decisions do not have direct effect, in its decision of the matter of

Maria Pupino, the ECJ held that the EU Treaty contains a principle of

loyal cooperation analogous to that laid down in Art. 10 of the EC

Treaty.  In consequence of that principle framework decisions have

indirect effect (see Case C-105/03 Maria Pupino of 16 June 2005, paras.

42 -43, in Czechon the ECJ’s internet site, www.curia.eu.int.).

This means that national courts are under an obligation, „[w]hen

applying national law . . . [to] do so as far as possible in the light

of the wording and purpose of the framework decision in order to attain

the result which it pursues and thus comply with Article 34(2)(b) EU”

(Id, par. 43).  The ECJ left open the issue of what obligation national

courts have in a situation where they cannot interpret their national

law in conformity with the Framework Decision.  In other words, the ECJ

did not touch upon the problem of primacy, that is, whether, as is the

case in Community law, framework decisions take precedence over national

law and whether, in consequence thereof, national courts are obliged to

set aside national law that conflict with a framework decision.  In

their written observations in that case Italy, Sweden, and the UK

insisted “on the inter-governmental nature of cooperation between Member

States in the context of Title VI of the Treaty on European Union”

(Id., par. 26).  In her Opinion on the Maria Pupino Case, the Advocate

General emphasized that, while “[t]he lesser degree of integration under

the Treaty on European Union is apparent in the definition of a

framework decision, which excludes direct effect . . . . [t]he term

policies indicates that . . . the Treaty on European Union includes not

only inter governmental cooperation, but also joint exercise of

sovereignty by the Union,” (the Opinion of Advocate General J. Kokott in

the M. Pupino matter, paras. 31-32, delivered on 11 November 2004). 

See also Zemánek J.: Eurokonformní výklad Rámcového rozhodnutí –

Povinnost nebo soudcovský aktivismus? [The Euro-Conforming

Interpretation of a Framework Decision – Duty or Judicial Activism?],

Jurisprudence No. 8/2005, p. 37 and foll.].
 

59.

Thus the ECJ itself in no way pronounced upon the issue whether the

supremacy principle applies as well to framework decisions.  In the M.

Pupino case, neither did the ECJ even touch upon the delicate issues of

whether the principle of supremacy that it has expounded in relation to

Community law applies in the same way to Union law, whether framework

agreements are simply intergovernmental in nature, or whether some other

interpretation is possible.  It can, in consequence, be stated that ECJ

doctrine concerning the exact nature of Union law acts such as

framework agreements is still evolving.
 

60.

Such a situation presents perhaps ideal circumstances for referring the

mentioned issues to the ECJ for a preliminary ruling.  However, in view

of the fact that the Belgian Cour d’arbitrage has already referred to

the ECJ the issue of the framework decision’s validity, there is no

point in the Constitutional Court of the Czech Republic doing so as

well.  To await the ECJ’s decision would not be entirely appropriate, as

in the interim the contested provisions will remain in force, and, in

accordance therewith, persons are subject to being transferred abroad

pursuant to a European arrest warrant.  In such a situation the

Constitutional Court considers it as imperative to determine whether or

not such persons’ fundamental rights are threatened.  In an effort to

deal with this dilemma, the Constitutional Court resolved to assess

whether the provisions implementing the Framework Decision could be

interpreted in a manner consistent with the Czech constitutional order. 

As it has determined that such an interpretation is possible, there is

no need to await clarification by the ECJ of the above-indicated issues

of Union law.
 


VIII.
Assessment of the Contested Provisions’ Conformity with Art. 14 par. 4 of the Charter
 

61.

A constitutional principle can be derived from Article 1 par. 2 of the

Constitution, in conjunction with the principle of cooperation laid down

in Art. 10 of the EC Treaty, according to which domestic legal

enactments, including the constitution, should be interpreted in

conformity with the principles of European integration and the

cooperation between Community and Member State organs.  If the

Constitution, of which the Charter of Fundamental Rights and Basic

Freedoms forms a part, can be interpreted in several manners, only

certain of which lead to the attainment of an obligation which the Czech

Republic undertook in connection with its membership in the EU, then an

interpretation must be selected with supports the carrying out of that

obligation, and not an interpretation which precludes its.  These

conclusions apply as well to the interpretation of Art. 14 par. 4 of the

Charter.
 

62. The

petitioners’ assertion, that the adoption into domestic law of the

European arrest warrant would disrupt the permanent relationship between

citizen and state, is not tenable.  A citizen surrendered to an EU

Member State for criminal prosecution remains, even for the duration of

this proceeding, under the Czech state’s protection.  The European

arrest warrant merely permits a citizen to be surrendered, for a limited

time, for prosecution in an EU Member State for a specifically defined

act, and after the proceeding is completed there is nothing preventing

her from returning again to Czech territory.  In the case of a surrender

pursuant to a European arrest warrant, a citizen has the right to

defend herself against measures by criminal justice bodies, by means of

remedial measures, including even a possible constitutional complaint.
 


VIII/a
 

63.

The new provisions of the Criminal Procedure Code, which allow for the

surrender of Czech citizens to another EU Member State for criminal

prosecution, without question mark a break with the previous statutory

provisions, which did not allow for (and even now do not allow for – see

§ 393 par. 1 lit. a) of the Criminal Procedure Code) the extradition of

citizens to foreign states for criminal prosecution being conducted

there.  The Constitutional Court is of the view that one cannot deduce

the unconstitutionality of the contested provisions solely from the fact

that the Government of the Czech Republic, as the body which took

legislative initiative in respect of the amendments to both criminal

codes, initially considered it appropriate for the Charter of

Fundamental Rights and Basic Freedoms to be amended and that only after

its proposed amendment to the Charter was rejected in the Chamber of

Deputies did it begin to argue that it was not necessary to amend the

Charter.
 

64. The first

sentence of Art. 14 par. 4 of the Charter, which provides that every

citizen has the right to freely enter the Republic, as well as its

second sentence, which provides that no citizen may be forced to leave

his homeland, make entirely clear that the Charter precludes the

exclusion of a Czech citizen from the community of citizens of the Czech

Republic, a democratic state to which he is bound by the ties of state

citizenship.  The text of Art. 14 par. 4 does not itself, without

further arguments, unambiguously resolve whether and to what extent it

precludes the surrender of a citizen, for a limited time, to an EU

Member State for a criminal proceeding being conducted there if,

following the conclusion of such proceeding, he has the right to return

to his homeland.  Although a linguistic interpretation of the phrase,

“forced to leave one’s homeland” might include even such a relatively

short surrender of a citizen to a foreign state for a criminal

proceeding.
 

65. The fact

that the text of Art. 14 par. 4 of the Charter does not of itself

respond to this question (whether Czech citizens can be surrendered to

an EU Member State for the purpose of criminal proceedings being

conducted there), can be also illustrated by the example of the Slovak

Republic, to which the petitioners in any case made reference.  Due to

the fact that it is based on the former Federal Charter of Fundamental

Rights and Basic Freedoms, the Slovak legal provisions, in their

essence, come closest to the Czech.  The Constitution of the Slovak

Republic expressly declares, in its Art. 23 par. 4, the prohibition on

extraditing its own citizens.  The amendment to its Constitution, No.

90/2001 of Collection of Laws omitted the concluding words “nor

extradite to another state”.  Following its entry into force, Art. 23

par. 4 of the Slovak Constitution read as follows:  “Every citizen has

the right to unrestricted entry into the Slovak Republic.  Citizens

cannot be forced to leave their homeland, and they cannot be expelled.” 

The Slovak text thus consistently distinguished the terms, “forced to

leave their homeland” and “expulsion” from “extradition” of citizens to

another state.  In comparison with the Slovak text, Art. 14 par. 4 of

the Czech Charter is expressis verbis narrower and, in all respects,

speaks merely of the prohibition on forcing citizens to leave their

homeland.
 

66. The

prohibition on “forcing one to leave his homeland” can be interpreted

either broadly or narrowly.  In agreement with the petitioner, the

Constitutional Court concludes that, in order to resolve the issue of

the meaning of Art. 14 par. 4 of the Charter, its objective purport must

be sought.  In assessing of the meaning of this provision of the

Charter, it is appropriate above all to take into account the historical

impetus for its adoption.  The second sentence of Article 14 par. 4

first appeared in Art. 15 par. 2 of the draft Charter, in the 7 January

1991 report of the Constitutional Law Committee of the Assembly of the

People and the Assembly of the Nations (see print 392,

www.psp.cz).  The Constitutional Court also agrees both with the

petitioner and with the parties to this proceeding, that the experience

with the crimes of the Communist regime played a critical role in the

constitution of the Charter.  It played this role even in the drafting

of the current version of Art. 14 par. 4 of the Charter, at the end of

1990 and beginning of 1991, that is, experience that is still quite

recent.  This was especially the case in connection with the

“Demolition” operation, in which the Communist regime forced troublesome

persons to leave the Republic (for analogous examples, cf. Kavěna M.,

Základní právo občana nebýt nucen k opuštění své vlasti, Evropský

zatýkací rozkaz a mezinárodní trestní soud [The Fundamental Right of

Citizens of the Czech Republic not to Be Forced to Leave their Homeland,

the European Arrest Warrant, and the International Criminal Court],

EMP, No. 5/2004, p. 42 and foll.,, or Kysela J., Rok 2004 ve vývoji

vybraných institutů českého ústavního práva – 1. část [The Evolution of

Selected Institutes of Czech Constitutional Law in 2004 – 1st Part],

Právní rozhledy [Legal Perspectives], No. 12/2005, pp. 425-26). A

historical interpretation of Art. 14 par. 4 of the Charter thus attests

to the fact that it was never concerned with extradition.
 

67.

The intention of the constitutional framers is not alone a decisive

argument, where it is based on historical experience, particularly in

the circumstance where historical memory fades and cannot be passed on

to future generations, because they are bound up with the experience of

their own times.  For this reason, the Constitutional Court sought the

objective meaning of Art. 14 par. 4, second sentence, of the Charter,

which must be gauged against contemporary life and institutions at the

start of the 21st century.  In seeking the objective significance of the

indicated Charter provision, the Constitutional Court also took into

account the historical evolution of extradition as a legal institution. 

As a general matter, the extradition of perpetrators of ordinary

criminality did not exist until the 19th century and, in view of the low

mobility of Europe’s inhabitants in those times, as well as the very

limited degree of cooperation among the then European states, did not

even constitute much of a weighty issue (cf. Čepelka Č. - Šturma P.,

Mezinárodní právo veřejné, Praha 2003, str. 353 [Public International

Law, Prague 2003, p. 353].
 

68.

The currently existing rules for extradition in the majority of

European states trace their origin to the model formed in the 19th

century.  On the one hand, that model did not allow for judicial

decisions in criminal matters, including arrest warrants, to operate

directly in other states (cf. Musil J., Kratochvíl V., Šámal P., Kurz

trestního práva, str. 962 [A Course of Criminal Law – Criminal

Procedural Law], C.H. Beck, 2003, p. 962); on the other hand, the state

arrogated to itself total control and full criminal jurisdiction over

its own citizens (in the original conception of subjects), which no

third state whatsoever was permitted to exercise.  Initially, the

traditional canon that a state does not extradite its own citizens for

criminal proceedings abroad, thus, did not by a long shot reflect a

citizen’s fundamental right not to be extradited, rather was the

manifestation of a state’s sovereign control over its own citizens in

the conception then current.  The canon that a state did not extradite

its own citizens for criminal prosecution abroad had at that time a

strong justification in the widely prevailing distrust among the

competing European powers.
 

69.

Only later, after the tragic events which occurred, primarily in

Europe, in the first half of the 20th century, did the canon against the

extradition of one’s own citizens transform, from state-claimed

responsibility for their own citizens, into the principle of the

protection of one’s own citizens from extradition abroad.  The practice

remained the same; only the justification therefore changed.  On the

basis of their own historical experiences, certain states even went so

far as to incorporate this prohibition on extradition into their

constitutions (for ex., as regards neighboring states, Art. 55 par. 1 of

the Constitution of the Polish Republic or Art. 16 par. 2 of the Basic

Law of the Federal Republic of Germany).  The prohibition on extradition

thus gradually shifted into the area of fundamental rights, which is

quite understandable in circumstances where the world still contains a

large number of non-democratic regimes which do not guarantee the right

to fair process measuring up to one’s own standards, for ex. those of EU

Member States.
 

70. It

cannot be overlooked that the current period is connected with an

extraordinarily high mobility of people, ever-increasing international

cooperation and growing confidence among the democratic states of the

EU, which places new demands on the arrangements for extradition within

the framework of the Union.  A qualitatively new situation exists in the

EU.  Citizens of the Member States enjoy, in addition to the rights

arising from citizenship in their own state, also rights arising from EU

citizenship, which guarantees, among other things, free movement within

the province of the entire Union.  The EU is an area of freedom,

security and justice, which facilitates the free movement of citizens

while guaranteeing their safety and security (see the Preamble to the

Treaty on the EU).  The European arrest warrant proceeds from this

reality and renders more effective the cooperation of organs taking part

in criminal proceedings.  Cooperation between central state authorities

of Member States has been replaced by the direct cooperation of bodies

of the justice system and makes an exception to the principle

prohibiting the extradition of one’s own citizens for criminal

proceedings abroad.
 

71. If

Czech citizens enjoy certain advantages, connected with the status of EU

citizenship, then it is naturally in this context that a certain degree

of responsibility must be accepted along with these advantages.  The

investigation and suppression of criminality which takes place in the

European area, cannot be successfully accomplished within the framework

of individual Member States, but requires extensive international

cooperation.  The results of this cooperation is the replacement of the

previous procedures for the extradition of persons suspected of criminal

acts by new and more effective mechanisms, reflecting the life and

institutions of the 21st century.  The contemporary standard for the

protection of fundamental rights within the European Union does not, in

the Constitutional Court’s view, give rist to any presumption that this

standard for the protection of fundamental rights, through invoking the

principles arising therefrom, is of a lesser quality than the level of

protection provided in the Czech Republic.
 

72.

These facts cannot be disregarded when determining the objective

meaning of Art. 14 par. 4 of the Charter.  It is not in harmony with the

principle of the objective teleological interpretation, reflecting the

contemporary reality of the EU (i.e., that it is founded on the high

mobility of citizens in the framework of the entire Union area), for

Art. 14 par. 4 to be interpreted such that it does not even allow for

the surrender of a citizen, for a limited time, to another Member State

for a criminal proceeding concerning a criminal act committed by this

citizen in that state, as long as it is guaranteed that, following the

conclusion of the criminal proceeding the citizen will, at his own

request, be returned to the Czech Republic to serve any sentence imposed

(srov. § 411 par. 7 of the Criminal Procedure Code).  Thus, the

surrender of a citizens for a limited time for criminal proceedings

being held in another EU Member State, conditioned upon their subsequent

return to their homeland, does not and cannot constitute forcing them

to leave their homeland in the sense of Art. 14 par. 4 of the Charter. 

The Court can equally draw attention to the rules providing that Czech

citizens or persons with permanent residence status in the Czech

Republic may be sent to another Member State of the Union to serve a

sentence or for protective treatment or protective measures, but only if

they consent thereto (§ 411 par. 6 of the Criminal Procedure Code).  It

follows therefrom that unless they give their consent, they will never

be sent abroad to serve a sentence of imprisonment.
 


VIII./b
 

73.

The petitioners made reference to the constitutions of Estonia (Art. 36

par. 2), Lithuania (Art. 13 par. 2), Poland (Art. 52 par. 4), Hungary

(Art. 69 par. 1) Slovenia (Art. 48), the FRG (Art. 16 par. 2), Finland

(Art. 9 par. 3), France (Art. 88-2 point 3), Italy (Art. 26), Portugal

(Art. 33 par. 3), or Spain (Art. 13 par. 3).  The constitutions of these

countries either enshrine the right of citizens not to be extradited,

or lay down an exception for international agreements or particularly

only in relation to the EU.  Since the constitution of a large number of

countries was amended in connection with the European arrest warrant

(the petition mentions the FRG and France), the petitioners deduce

therefrom the existence of a general, widely-shared constitutional

principle prohibiting a state from extraditing its own citizens. 

According to them, the conclusion follows from this that the

implementation of the European arrest warrant in the Czech Republic

cannot be effected otherwise than subsequent to a constitutional

amendment.
 

74. The

Constitutional Court took into account the fact that in a number of

countries the constitution was actually amended in connection with the

implementation of the European arrest warrant (unless stated otherwise,

the following data is based on a report from the XXI. Congress of FIDE,

Dublin, June 2004, accessible at www.fide2004.org ).  Apart from

Germany and France, referred to by the petitioners, also Slovenia

(Constitutional Act No. 24 – 899/2003) and Latvia, among others, can be

mentioned.
 

75. The

petitioners did not, however, cite the host of other EU Member States in

which the prohibition against extraditing one’s own citizens does not

at all qualify as an issue of constitutional principle and has not even

been introduced into sub-constitutional law.  For example, in Greece the

prohibition against extraditing one’s own citizens has never been

considered a constitutional principle and was always dealt with by means

of a statute.  A similar situation prevails in Denmark, where a mere

statutory revision was all that was required to change the existing

law.  In the situation where the national constitution does not govern

the issue of extradition or surrender to foreign states of perpetrators,

it was not necessary to make any changes to the constitution, as was

the case in the Netherlands (in conformity with the decision of the

Dutch Council of State), Belgium, Luxembourg, and Sweden (see the

above-cited Report of the XXI Congress of FIDE).  Due to its unique

constitutional situation, the adoption of acts governing the European

arrest warrant presents no substantial problem for Great Britain, as UK

law never contained a prohibition on the extradition of its own citizens

(cf. Čepelka, Č., Šturma, P., Mezinárodní právo veřejné [Public

International Law], Prague 2003, p. 354). On the contrary, British

lawyers have traditionally preferred this approach to that of the

European continental countries (cf. Biron, H.Ch. - Chalmers, K. E., The

Law and Practice of Extradition, London 1903, p. 13).  The British

model, which always permitted the extradition of its own citizens, has

generally been followed by the Irish Republic and Malta (cf. Stanbrook,

I. - Stanbrook, C., Extradition: Law and Practice, 2nd ed., Oxford 2000,

p. 313, p. 385, p. 427).
 

76.

The petitioners cited the fact that, by an Act of 18 March 2004 (Dz.U.

2004, No. 69, pol. 626), Poland amended its Criminal Code, Criminal

Procedure Code, and its Code of Misdemeanors.  Art. 55 par. 1 of the

Constitution (the petitioners incorrectly cite it as Art. 52 par. 4) was

in no way formally modified by this amendment.  On 27 April 2005, the

Polish Constitutional Tribunal annulled, by its decision P 1/05, certain

provisions designated as amendments to the criminal enactments, due to

their conflict with Art. 55 par. 1 of the Constitution, according to

which the extradition of Polish citizens is prohibited (“The extradition

of a Polish citizen shall be forbidden.”) and according to its second

paragraph the extradition of persons suspected of non-violent political

crimes is prohibited.  The Polish Constitutional Tribunal stated that

“surrender” in the sense of the European arrest warrant must a fortiori

be considered as coming within the term, “extradition”, in the sense of

Art. 55 of the Constitution.
 

77. 

In this connection, the Czech Constitutional Court refers to the fact

that, in contrast to the wording of Art. 14 par. 4 of the Czech Charter,

the formulation of Art. 55 par. 1 of the Polish Constitution excludes

any form whatsoever of extradition of Polish citizens (inclusive also of

a surrender pursuant to the European arrest warrant).  In comparison

with the Czech constitutional order, the Polish Constitution leaves no

room at all for it to be interpreted in harmony with the state’s

obligations towards the EU.
 

78.

In view of this fact, the Court cannot assent to the petitioners’ view

that a general constitutional principle prohibiting the extradition of

one’s own citizens to a foreign state can be deduced from a comparative

perspective and that, as a result, it is necessary to seek a

constitutional amendment before the European arrest warrant can be

implemented.  In a number of EU Member States the constitution was not

amended.  A constitutional amendment would be indispensable only in the

case that a statutory revision, required for the implementation of the

European arrest warrant, would be in conflict with the national

constitution, that is, in a situation where the national constitution

directly forbids the extradition or surrender of citizens to a foreign

state for the purpose of criminal prosecution.
 


VIII/c
 

79.

The general principle, according to which the Czech Republic shall

observe its obligations resulting from international law, is enshrined

in Art. 1 par. 2 of the Constitution of the Czech Republic.  In

consequence, since the Constitution itself proclaims the value of being

open towards international law (cf. judgment No. Pl. US 31/03,

Collection of Judgments and Rulings of the Constitutional Court, Vol.

32, p. 143; published in the Collection of Laws as No. 105/2004 Coll.),

in principle a meaning should be attributed to the Constitution which is

conformable to international law.
 

80.

As of 1 May 2004, Art. 1 par. 2 of the Constitution of the Czech

Republic took on new significance in relation to the observance of

duties which arise for the Czech Republic from its membership in the

EU.  As the Czech Republic has already emphasized in its case-law,

European law is founded on fundamental values, common to all EU Member

States.  The Constitutional Court thus declared the Czech Republic’s

allegiance to the European legal culture and to its constitutional

traditions.  The Constitutional Court also interprets constitutional

acts, above all the Charter of Fundamental Rights and Basic Freedoms, in

light of the general principle of law existing in all Member States of

the Union, (judgment No. Pl. US 5/01, Collection of Judgments and

Rulings of the Constitutional Court, Vol. 24, p. 79; published in the

Collection of Laws as No. 410/2001 Coll.).
 

81.

From Article 1 par. 2 of the Constitution, in conjunction with the

principle of cooperation enshrined in Art. 10 of the EC Treaty, follows a

constitutional principle according to which national legal enactments,

including the Constitution, should whenever possible be interpreted in

conformity with the process of European integration and the cooperation

between European and Member State organs (cf. the analogous decision of

the Polish Constitutional Tribunal K 15/04 of 31 May 2004, OTK ZU ser.

A., Part 5, No. 47, pp. 655 - 668 and, in particular as far as concerns

acts under the III. Pillar, the ECJ decision of 16 June 2005, in which

the Court held that the principle of conforming interpretation applies

also to framework decisions adopted within the confines of Charter of

the Treaty on European Union, see Case C-105/03 Maria Pupino, par. 43.)
 

82.

The constitutional principle that national law shall be interpreted in

conformity with the Czech Republic’s obligations resulting from its

membership in the European Union is limited by the possible significance

of the constitutional text.  Article 1 par. 2 of the Constitution is

thus not a provision capable of arbitrarily modifying the significance

of any other express constitutional provision whatsoever.  If the

national methodology for the interpretation of constitutional law does

not enable a relevant norm to be interpreted in harmony with European

Law, it is solely within the Constituent Assembly’s prerogative to amend

the Constitution.  Naturally, the Constituent Assembly may exercise

this authority only under the condition that it preserves the essential

attributes of a democratic law-based state (Art. 9 par. 2 of the

Constitution), which are not within its power to change, and not even a

treaty pursuant to Art. 10a of the Constitution can assign the authority

to modify these attributes (cf. Holländer, P., Materiální ohnisko

ústavy a diskrece ústavodárce [The Substantive Heart of the Constitution

and the Constituent Assembly’s Discretion], Právník [The Lawyer], No.

4/2005)
 

83. It follows

therefrom that, to the extent that there are several interpretations of

the Constitution that are possible in accordance with the national

interpretive methodology, although only certain of them would result in

the Czech Republic fulfilling the obligations it undertook by its

membership in the European Union, that interpretation must be selected

which supports the fulfillment of those obligations, not one which would

hinder their fulfillment.  The principle in Art. 1 par. 2 of the

Constitution will at the same time be upheld thereby.  These conclusions

apply as well to the interpretation of Art. 14 par. 4 of the Charter. 

Since the Constitutional Court interpreted the meaning of Art. 14 par. 4

of the Charter according to the domestic methodology for the

interpretation of the Constitution, it was not even necessary carry out a

weighing of the values and principles of European law and national

constitutional law which are relevant for consideration.
 


VIII./d
 

84.

The Constitutional Court’s judgment, published in the Collection of

Laws as No. 207/1994 Coll., to which the petitioners’ refer, define

citizenship “as a relationship between an individual and a state which

is not limited in duration and not restricted to the state's territory,

which, as a rule, is not revocable against the will of the individual,

and on the basis of which is founded an individual's capacity for

reciprocal rights and duties, consisting primarily of the right of the

individual to the state's protection both within its territory and

without, the right of the individual to reside in the territory, and the

right to take part in the administration of public affairs.”

(Collection of Judgments and Rulings of the Constitutional Court, Vol.

2, p. 7).
 

85. The right of

citizens to protection by the state is manifested in the fact that it

would represent a breach, among others, of Art. 14 par. 4, Art. 36 par. 1

of the Charter and Art. 6 par. 1 of the Convention, for a citizen were

to be surrendered for criminal prosecution to a state where the

standards of criminal proceedings do not meet the requirements for

criminal proceedings enshrined in the Czech Constitutional order, for

ex., in the situation where the citizen’s right to fair process (Art. 36

par. 1 of the Charter) would be genuinely threatened, or alternatively

where the citizen would be subjected to torture or other inhuman or

degrading treatment or punishment (Art. 3 of the Convention, Art. 7 par.

2 of the Charter).  However, such is not the case for the European

arrest warrant.
 

86. Already

in 2003, the ECJ declared that “the Member States have mutual trust in

their criminal justice systems and that each of them recognizes the

criminal law in force in the other Member States even when the outcome

would be different if its own national law were applied” (Cases C-187/01

and C-385/01, the criminal proceeding against Hüseyin Gözütok

(C-187/01) and Klaus Brügge (C-385/01), [2003] ECR I-1345, par. 33).  It

is always necessary to remember the fact that all EU Member States are

also signatories of the European Convention for the Protection of Human

Rights and Fundamental Freedoms.  Accordingly a citizen cannot not be

significantly affected in his rights due to the fact that his criminal

matter will be decided in another Member State of the Union, as each EU

Member State is bound by a standard of human rights protection, which is

equivalent to the standard required in the Czech Republic while all

Member States’ legal orders rest on the values to which our state

declared its allegiance only after 1989.  The Czech Charter of

Fundamental Rights and Basic Freedoms also draws upon the European

Convention for the Protection of Human Rights and Fundamental Freedoms.
 

87. 

In view of the mentioned principle of mutual confidence among the EU

Member States in the functioning of their criminal justice systems, the

Framework Decision proceeds from the assumption that the implementation

of a European arrest warrant may be suspended only in the event of a

serious and persistent breach of the principles set out in Art. 6 par. 1

of the EU Treaty (the protection of human rights) by certain Member

States, while such breach must be formally determined by the Council

pursuant to Art. 7 of the EU Treaty (10th recital to the Preamble).
 

88.

Section 377 of the Criminal Procedure Code can be considered as

something of a safeguard, guaranteeing on the constitutional law plane

the protection of Czech citizens.  According to this provision, the

request of a foreign state’s organ may not be granted if its granting

would constitute a violation of the Constitution of the Czech Republic

or such provision of the Czech legal order which must be adhered to

without exception, or if the granting of the request would damage some

other significant protected interest of the Czech Republic.  This

principle, contained in the Twenty-Fifth Chapter, First Division of the

Criminal Procedure Code (designated as general provisions) thus applies

both to the classic extradition procedure pursuant to the Second

Division, and to proceedings on the surrender of persons between EU

Member States on the basis of the European arrest warrant, pursuant to

the Third Division of the same Chapter.  There is an ongoing scholarly

debate concerning the meaning of this provision (cf. Zemánek J.,

Evropsko-právní meze přezkumu ústavnosti transpozice rámcového

rozhodnutí o eurozatykači, Právní rozhledy č. 3/2006 [European Law

Limits to the Constitutional Review of the Transposition of the

Framework Decision on the European arrest warrant], Právní rozhledy

[Legal Perspectives] No. 3/2006).
 

89.

Even though this provision of the Criminal Procedure Code is introduced

by the marginal heading “Protection of the State’s Interests”, it can

be deduced, primarily from the text of its first sentence, that it is be

concerned primarily with the state’s interest in not violating a Czech

citizen’s fundamental rights enshrined in the Czech Republic’s

constitutional order, of which the Charter of Fundamental Rights and

Basic Freedoms forms an integral part (. . . if its execution would

constitute a violation of the Constitution of the Czech Republic or such

provision of the Czech legal order which must be adhered to without

exception . . .).
 

90.

Persons who are to be surrendered to another EU state retain the right

to submit against the relevant measures of organs taking part in

criminal proceedings a complaint which has suspensive effect (§ 411 par.

5 of the Criminal Procedure Code) and, in appropriate cases, a

constitutional complaint, and the deadline for the surrender of the

person does not run while the Constitutional Court is deciding (§ 415

par. 3 of the Criminal Procedure Code).  These provisions preserve the

legal protection of citizens, or of other persons who should be

surrendered for criminal prosecution, and at the same time uphold the

condition that, in consequence of the surrender of a requested person,

the constitutional order of the Czech Republic will not be affected in

individual cases.
 

91. These

principle are in conformity with the Framework Decision, according to

which nothing in it may be interpreted as prohibiting the refusal to

surrender a person for whom a European arrest warrant has been issued

when there are reasons to believe, on the basis of objective elements,

that the said arrest warrant has been issued for the purpose of

prosecuting or punishing a person on the grounds of his or her sex,

race, religion, ethnic origin, nationality, language, political opinion

or sexual orientation, or that that person’s position may be prejudiced

for any of these reasons.  The Framework Decision does not prevent a

Member State from applying its constitutional rules relating to the due

process, the freedom of association, the freedom of the press and the

freedom of expression in other media.  The Framework Decision also

expressly declares that no person may be removed, expelled or extradited

to a state where there is a serious risk that she would be subjected to

the death penalty, torture or other inhuman or degrading treatment or

punishment.
 

92. There are

grounds for refusing a request to surrender a requested person in the

event, among others, that the criminal offense for which the European

arrest warrant is issued is covered by an amnesty issued in the Czech

Republic or that the criminal prosecution or punishment are

statute-barred in the Czech Republic if, under the Czech Republic’s own

criminal law enactments, it has jurisdiction to prosecute that criminal

act (§ 411 par. 6 lit. b) of the Criminal Procedure Code).
 

93.

The ne bis in idem principle is also preserved.  According to § 411

par. 6 lit. c) of the Criminal Procedure Code, the surrender request

will be refused if, in respect of the same act, the requested person has

been finally judged in the Czech Republic or a foreign state, provided

that the sentence has already been served or is currently being served

or may no longer be executed, or if a final judgment has already been

passed in a criminal proceeding, either in the Czech Republic or another

Member State, and such decision may no longer be quashed through a

prescribed procedure.
 

94.

Last but not least, it should be emphasized that an ongoing criminal

proceeding brought by the Czech Republic against the requested person

takes precedence over the surrender of the requested person pursuant to a

European arrest warrant [according to § 411 par. 6 lit. d) of the

Criminal Procedure Code, the court shall refuse to surrender the

requested person in that case that he is being prosecuted in the Czech

Republic for the same act as that for which the European arrest warrant

was issued].
 

95. The

assertion that the domestic law rules relating to the European arrest

warrant have disturbed the relationship between the citizen and the

state is, thus, not tenable.  A citizen surrendered to an EU Member

State for criminal prosecution remains, even for the duration of that

criminal proceeding, under the protection of the Czech state.  The

European arrest warrant merely permits, for a limited time, the

surrender of a citizen for his criminal prosecution in a Member State of

the Union for a specifically defined act, while following the

completion of this criminal proceeding, there is nothing preventing him

from returning back (where relevant even to serve his sentence in Czech

territory).  The Criminal Procedure Code specifies the grounds upon

which the surrender of a person to another Member State of the Union

shall not occur (esp. § 411).  Citizens have the right to defend

themselves against measure by organs acting in the criminal proceeding

by means of remedial measures, which have suspensive effect (see § 411

par. 5 of the Criminal Procedure Code), including even the possibility

of a constitutional complaint.  In the case that the surrender of a

citizen would result in a breach of the constitutional order, the

surrender of the citizen will not occur.
 

96.

In reaching these conclusions, it is necessary to take into account not

only the protection of rights of persons suspected of committing a

criminal act, but also the interests of the victims of criminal acts. 

For the protection of the rights of victims and injured persons, it

generally appears more practical and fair for the criminal proceeding to

be held in the state in which the criminal act was committed (cf. the

conditions for the resolution of cases of two or more concurrent

European arrest warrants in § 419 of the Criminal Procedure Code and

Art. 16 of the Framework Decision).  Since the execution of the European

arrest warrant, in the case a state is surrendering its own citizen, is

conditioned on reciprocity (§ 403 par. 2 of the Criminal Procedure

Code), the rules contested by the petitioners protect the rights of

persons who can be considered, according to the Czech Criminal Procedure

Code, as injured persons.  It can generally be said that, in view of

the evidence that will found in the state where the criminal act

occurred, a criminal proceeding there will be quicker, more effective

and, at the same time, more reliable and just both for the defendant and

for any victim of the criminal act.
 


IX.

The Conformity of the Contested Provisions with other Provisions of the Charter
 

97.

The Constitutional Court considered as well the conformity of the

contested provisions, in particular § 412 paras. 1 and 2 of the Criminal

Procedure Code, with Article 39 of the Charter, according to which only

a law may designate the acts which constitute a crime and the penalties

or other detriments to rights or property that may be imposed for

committing them.  The provisions of § 412 paras. 1 and 2 of the Criminal

Procedure Code implement the provisions of Art. 2 par. 2 of the

Framework Decision and represent a break with the principle that persons

are not extradited for criminal prosecution abroad, unless they are

suspected of having committed an act which is criminal both under the

law of the requesting state and the law of the surrendering state. 

According to § 412 par. 1 of the Criminal Procedure Code, in cases where

the surrender is requested for a criminal offense for which it is

possible in the requesting state to impose a punishment of imprisonment

with an upper of at least three years or order protective measures

connected with restrictions on liberty lasting for at least three years,

and which consists in conduct which the requesting state organ

designates in the European arrest warrant as one or more of the

categories of conduct enumerated in paragraph 2, the court does not

ascertain whether it is a criminal offense under the law of the Czech

Republic.  § 412 par. 2 of the Criminal Procedure Code thus enumerates

criminal offense for which the court, in connection with a proceeding on

surrender, does not ascertain their criminality under the law of the

Czech Republic.
 

98. It would

appear at first glance that the argument to the effect that § 412 is in

conflict with Art. 39 of the Charter could be rejected as excluded in

principle.  First of all, it should be noted that Art. 1 par. 3 of the

Framework Decision makes the following general proviso: „This Framework

Decision shall not have the effect of modifying the obligation to

respect fundamental rights and fundamental legal principles as enshrined

in Article 6 of the Treaty on European Union.“  Thus, the Framework

Decision cannot be interpreted as requiring the Member States to do

anything that would violate fundamental rights, including the principle

of legality enshrined in Art. 39 of the Charter.
 

99.

The generally recognized principle of legality, embodied in Art. 39 of

the Charter, entails first and foremost the requirement that a state may

impose punishment upon a certain person solely on the basis of fair

notice in its own law that particular conduct is forbidden by that

state.  In this manner, the state allow all persons subject to its law

to foresee the consequences of their conduct (general requirement of

foreseeability).  There are two aspects to this requirement.  First, the

state’s law must clearly and precisely define the conduct that is

prohibited (comprehensibility of the norm). According to the second,

there must be some connection between an accused’s conduct and the

territory or public interest of the state seeking to punish (a nexus,

that is, linkage to the criminal jurisdiction of that state), so as to

enable the concerned persons to be aware that their conduct calls forth

consequences foreseen in that state’s laws.
 

100.

Viewed from this perspective, the argument against § 412, taken

literally, would mean that the Czech Republic’s failed to respect the

principle of foreseeability of criminal law.  But this argument

overlooks the fact that Art. 39 generally limits the Czech Republic in

the exercise of its own criminal jurisdiction.  It does not explicitly

regulate the issue of the extradition or surrender of a person. In a

situation where Czech law authorizes the Czech Republic to extradite or

surrender a person within its jurisdiction, the Czech Republic is not

seeking to exert its criminal jurisdiction against an accused, so that

it would seem that Art. 39 does not apply.  After all § 412 does not

define criminal offenses; for § 412 to come into play, the criminal

offenses must be properly defined in legislation of the state requesting

a person’s extradition or surrender. The situation where Art. 39, by

its explicit terms, clearly applies is where the Czech Republic itself

wishes to prosecute that person, in which case Art. 39 would without

question require that such prosecution be based on a criminal offense

precisely defined in its own criminal code.  For these reasons, in

adopting § 412 of the Criminal Procedure Code, the Czech Republic does

not violate the principle of legality enshrined in Art. 39.
 

101.

The Constitutional Court, therefore, does not concur with the

petitioners‘ arguments asserting that § 412 par. 2 of the Criminal

Procedure Code is in conflict with Art. 39 of the Charter because this

provision in no way defines the criminal offenses not requiring double

criminality.  If it had been a substantive law enactment, that is if

certain conduct had been made criminal by means of a provision like §

412 par. 2 of the Criminal Procedure Code, that is, by enumerating them

without any sort of statutory definition, that would certainly

constitute a violation of Art. 39. of the Charter.  The Constitutional

Court proceeds, however, from the fact that § 412 of the Criminal

Procedure Code is not a substantive law provision, rather a procedural

law one.  A surrender pursuant to the European arrest warrant is still

not the imposition of punishment in the sense of Art. 39 and Art. 40 of

the Charter.
 

102. Persons

suspected of having committed a criminal act and surrendered in

accordance with the European arrest warrant will not be prosecuted under

§ 412 par. 2 of the Criminal Procedure Code; rather the criminal

proceeding will be conducted for criminal offenses defined in the

substantive law of the requesting EU state.  The statutory enumeration

of criminal offenses in § 412 par. 2 of the Criminal Procedure Code

(Art. 2 par. 2 of the Framework Decision) serves merely for the

procedural steps taken by courts.  That is to say, in cases where the

requesting state’s organ designates in the European arrest warrant the

conduct of the surrendered person as one of the categories of conduct

enumerated in § 412 par. 2 of the Criminal Procedure Code, or Art. 2

par. 2 of the Framework Decision, Czech courts do not ascertain the

criminality of this act according to the law of the Czech Republic.  The

adoption of § 412 of the Criminal Procedure Code did not result in the

criminal law of all EU Member States becoming applicable in the Czech

Republic.  It merely means that the Czech Republic is assisting the

other Member States in the enforcement of their criminal laws.  Thus, §

412 of the Criminal Procedure Code does not impose on persons in the

Czech Republic (citizens, permanent residents, and others commonly found

within the territory) the obligation to know the criminal law of all EU

states.
 

103. Moreover, the

enumeration of criminal offenses in § 412 par. 2 of the Criminal

Procedure Code or Art. 2 par. 2 of the Framework Decision generally

corresponds to conduct which is criminal even according to Czech law,

even though the titles of particular criminal offenses do not

necessarily correspond exactly to each other.  The enumeration of

criminal offenses which do not require dual criminality is not given due

to the fact that it would otherwise be presumed that some of these

categories of conduct do not qualify as criminal offenses in one or more

of the Member States; rather the exact opposite, that it is conduct

which, in view of the values shared by the EU Member States, is criminal

in all of them.  The reason for enumerating them in this fashion is to

speed up the execution of European arrest warrants, as the proceeding

for ascertaining the criminality of such acts under Czech law has been

dropped.  In addition, in adopting this Framework Decision each EU

Member State expressed its agreement that all criminal conduct coming

within the categories defined in this way will also be criminally

prosecuted.
 

104. The fact

that § 412 does not establish legal grounds for criminal prosecution in

the Czech Republic still does not, however, exhaust the issue as to

whether Art. 39 has been violated.  As a provision concerning

cooperation in criminal matters between independent states, this matter

cannot be viewed strictly from the perspective of the Czech Republic. 

It must also be borne in mind that persons with the Czech Republic’s

jurisdiction might also be subject to the criminal jurisdiction of other

states.  This is so where they have engaged in conduct partly in Czech

Republic and partly in other countries, or conduct in the Czech Republic

that has effects in other countries.  This legal regulation must be

viewed in a broader context, as it involves a transnational situation,

and it must be remembered that legal systems other than the domestic

system will apply to such situations.  This aspect of the situation

brings into play a further dimension of the protection provided by Art.

39 of the Charter.
 

105. 

This further dimension of Art. 39 is the fact that it prohibits the

Czech Republic from participating in or directly assisting another state

in effecting a criminal prosecution that does not respect the

principles of legality.  This would occur in a situation where the Czech

Republic does not itself punish a person, rather it surrenders a

suspect to a state which does not respect the principle of legality.  It

is also necessary to take into account the significance of the ECHR

jurisprudence on Art. 3 (the Case of Soering v. the United Kingdom,

which forbids the States Parties to the ECHR to send a person to a state

which is not bound by the prohibitions on cruel or arbitrary treatment

and which does not give assurances that it will not violate this

prohibition.
 

106. In light

of the above-discussed considerations of the further aspects of the

principle of legality, the Constitutional Court can consider whether

dispensing with the dual criminality requirement results in a violation

of Art. 39.  The dual criminality requirement is typically a safeguard

against states having a treaty obligation to hand over someone for

punishment for conduct which in itself did not deem to merit

punishment.  It was an assurance against the obligation to collaborate

or acquiesce in conduct by a receiving state that does not respect the

principle of legality, that is, the prohibition of cruel, arbitrary or

unjust treatment or punishment.  The general notion is that if both

states in question find a particular type of conduct worthy of

punishment, then the extraditing state can hardly view punishment for

such conduct as cruel, arbitrary and against the principle of legality.
 

107.

By dispensing with the principle of dual criminality in relation to the

Member States of the EU, the Czech Republic in no way violates the

principle of legality.  As a general matter, the requirement of dual

criminality can be dispensed with, as a safeguard, in relations among

the Member States of the EU, which have a sufficient level of value

approximation and mutual confidence that they are all states as having

democratic regimes that adhere to the rule of law and are bound by the

obligation to observe this principle.  It is precisely the situation,

where the level of approximation among the 25 EU Member States has

arrived at such a degree of mutual confidence, that they no longer feel

the need to cling to the principle of dual criminality.
 

108.

After concluding that that principle of legality in Art. 39 does not

require the principle of dual criminality as an indispensable component

of the extradition process, the Constitutional Court turned attention to

considering whether the surrender of persons pursuant to the Framework

Agreement do not comport with Art. 39.  It is evident that this Article

would prohibit the Czech Republic from surrendering a person to another

state for criminal prosecution, if that other state has not sufficiently

defined in its law that the conduct the accused is alleged to have

engaged in is prohibited by that state.  But nothing in the Framework

Decision requires the Czech Republic to act in this manner.  In

addition, even should the prohibited conduct be clearly and precisely

defined in the law of a state which seeks to assert criminal

jurisdiction over a person, the principle of legality still requires a

nexus (see the interpretation above) between the alleged conduct and the

state seeking to prosecute.
 

109.

International law recognizes several legitimate grounds for a state to

assert its criminal jurisdiction.  The generally recognized grounds are

the nationality principle, the protective principle, universality

principle, the territoriality principle.  Apart from some minor

exception with which the Court need not occupy itself, the first three

jurisdiction principles do not present a significant problem in relation

to the requirement of a nexus.  In terms of the nexus requirement,

nothing has changed from the previous state of affairs where citizens of

the Czech Republic and other persons within its jurisdiction were and

remain liable, according to the legal order of a given state, for

criminal acts which they committed abroad.  The territoriality

principle, which provides the foundation for the operation of

substantive criminal law on the territory of a foreign state (including

EU Member States), applied and still applies to all persons, if they

commit a criminal act on the territory of those states.  Therefore, the

petitioners’ notion that it is necessary to publish the criminal

legislation of all the remaining 24 EU Members States is not apposite. 

Although it is, on the whole, generally accepted, the territoriality

principle brings certain problems of application in its wake.  For

example, while it is generally acknowledged that a state may exert its

criminal jurisdiction for conduct occurring on its territory, which

alone suffices for a nexus to be found, still the territoriality

principle also extends to cases where a state extends it jurisdiction to

conduct which, although it occurred outside of its territory, its

consequences affected its territory.
 

110.

The Constitutional Court takes as a starting proposition that the

surrender of Czech citizens or other persons authorized to stay on Czech

territory to another EU Member State for the purpose of their

prosecution will generally come into consideration only in the case

where their conduct, qualifying as a criminal offense, did not occur in

the Czech Republic, but in another Member State of the Union.  Should

the commission of a criminal act occur partly abroad and partly in the

Czech Republic, then criminal prosecution in the Czech Republic would be

an option.  An impediment to the surrender of such persons for a

criminal proceeding abroad (cf. § 411 par. 6 lit. d) of the Criminal

Procedure Code) thereby arises, to the extent that it would be more

appropriate, in view of the nature of the conduct in question, for the

prosecution to take place in another EU Member State, for ex., due to

the fact that decisive evidence is found there or the criminal deeds

played out primarily in that state, etc.
 

111.

Pursuant to Art. 4 par. 7 of the Framework Decision, the executing

judicial authorities may refuse to execute a European arrest warrant

where it relates to offenses which have been committed in whole or in

part in the territory of the executing Member State, or in a place

treated as such.  This provision, which affords domestic criminal

justice organs the possibility to weigh whether to refuse to execute the

European arrest warrant, protects the value of legal certainty, which

is also a value in European law and whose observance on the European

plane is a prerequisite for the Czech constitutional order permitting

the application of European law in the domestic legal order (in the case

of the implementation and application of the Framework Decision). 

Although Article 4 par. 7 of the Framework Decision was not explicitly

implemented into the Czech legal order, in accordance with the principle

of the constitutionally conforming interpretation, Czech criminal

justice organs must pay heed to Czech citizens’ trust in the fact that

their conduct within the Czech Republic will be governed by Czech

criminal law.  If Czech citizens remain within the territory of the

Czech Republic, domestic law is applied to their conduct, from which

also follows these persons’ constitutionally protected trust that legal

consequences laid down in Czech law will be attributed to their legal

conduct.  The general value of legal certainty finds expression, on the

constitutional plane, in the principle formulated in Art. 39 of the

Charter, and on the sub-constitutional plane is expressed in the general

principle of § 377 of the Criminal Procedure Code, which applies

subsidiarily in relation to § 411 par. 6 lit. d) of the Criminal

Procedure Code, that is, it will only be applied in the case that a

criminal prosecution concerning the same act is not already in progress

in the Czech Republic.
 

112.

According to § 377 of the Criminal Procedure Code, interpreted in the

light of Art. 4 par. 7 of the Framework Decision, a Czech citizen will

not be surrendered to another EU Member State due to suspicion of having

committed a criminal offense, if it was allegedly committed within the

Czech Republic, except in cases where, in view of the special

circumstances of the commission of the criminal act, priority must be

given to holding the criminal prosecution in the requesting state, for

example, on grounds of adequate fact-finding concerning the conduct in

question, if in the greater part it occurred abroad, or because

prosecution in the given EU Member State would, in that particular case,

be more appropriate than that person’s prosecution in the Czech

Republic.  It is appropriate for the court which may, but need not,

refuse to execute the European arrest warrant, to have sufficient

decision-making discretion, as in a whole host of cases it would be

appropriate for a person suspected of having committed a criminal

offense to be surrendered, even though his activity occurred within the

Czech Republic (for ex. organized criminal acts, which naturally were

brought to fruition in the another EU Member State).  This provision

will be clarified in more detail only through the decision-making

practice in this phase of such proceedings; it is not for the

Constitutional Court to preempt that process.
 

113.

The Constitutional Court would emphasize that the Czech constitutional

order does not protect merely Czech citizens’ trust in Czech law, rather

it similarly protects also the trust and legal certainty of other

persons, authorized to stay within the territory of the Czech Republic

(for ex., aliens having permanent residence status in the Czech

Republic).
 

114. “Distance”

criminal offences, that is, those usually committed by means of computer

technology, represents a specific category falling within the terms of

the territoriality principle, as it theoretically admits of the

possibility that conduct occurring in the Czech Republic could satisfy

the material elements of a criminal offense in another EU Member State. 

The Constitutional Court concedes that, under quite exceptional

circumstances, the application of the European arrest warrant would be

in conflict with the Czech Republic’s constitutional order, especially

in the case that the “distance” delict would qualify as a criminal act

under the law of the requesting state, but would not qualify as such

under Czech criminal law, and perhaps would even enjoy constitutional

protection in the Czech Republic (for ex., within the framework of the

constitutional protection of free expression).  The petitioners’

objections are justified in this respect.  In such an, albeit unlikely,

case, the application of § 377 of the Criminal Procedure Code would come

into consideration, as it contains a mechanism for precluding the

unconstitutional consequences of the European arrest warrant, in the

sense stated above.
 

115.

Even though the contested provisions of the Criminal Procedure Code

might be applied in an unconstitutional manner, such a hypothetical and

unlikely situation does not provide grounds for their annulment.  The

Constitutional Court has already several times in its case law stated

that “theoretically every provision of a legal enactment can naturally

be applied incorrectly, hence even in conflict with constitutional acts,

which in and of itself does not constitute grounds for the annulment of

a provision which can conceivably be incorrectly applied.” (Judgment

No. Pl. US 8/98, published as No. 300/1998 Coll.).  In other words, if a

legal enactment is capable of being interpreted in several ways, only

certain of which are unconstitutional, then a constitutionally

conforming interpretation must be selected (Judgment No. Pl. US 48/95,

published as No. 121/1996 Coll.)  The purpose of a general norm control

proceeding is not, however, to resolve every single hypothetical

situation which have not as yet come to pass, even though they may occur

at some point.  If the Constitutional Court were to proceed in this

manner, it would go beyond the proper function appertaining to it within

the framework of general norm control, and supplant the protection of

fundamental rights which, in the nature of things, the ordinary and

administrative courts must also provide.
 

116.

As far as concerns the contested provisions’ conformity with Art. 8 of

the Charter, that is, with the right to personal liberty, the

fundamental rights enshrined in this Article are ensured in the steps

that criminal justice organs must take, as prescribed under § 409 and

foll. of the Criminal Procedure Code.
 

117.

By way of conclusion, the Constitutional Court would point out that the

EU Council may, after consultation with the European Parliament, expand

the list of criminal offenses, enumerated in Art. 2 par. 2 of the

Framework Decision, for which the double criminality principle does not

apply, by adding further categories of criminal offenses (Art. 2 par. 3

of the Framework Decision).  It can does so only by unanimous decision,

that is, solely with the assent of the Czech Republic’s representative. 

When weighing whether to assent to the expanded list of those criminal

offenses, that representative will also take into consideration the

requirements of the Czech constitutional order.  Naturally, repeated

Constitutional Court review of such amended Czech criminal acts is not

excluded.
 

118. In view of

all of its above-stated legal conclusions, the Constitutional Court has,

pursuant to § 82 par. 1 of Act No. 182/1993 Coll., on the

Constitutional Court, as amended, rejected the petition on the merits.

Notice : No appeal lies against a Constitutional Court judgment.
 

Brno, 3 May 2006
 

 



Dissenting Opinion
of justices Eliška Wagnerová and Vlasta Formánková

I

would like to emphasize that my dissenting opinion does not contest the

Framework decision on the European arrest warrant (hereinafter

“European arrest warrant”), rather I have reservation concerning its

implementation by the national legislature, thus it is directed against

the statement of judgment and the reasoning.
 

My

reservations in relation to the majority opinion are of a dual

character.  First, in my view, the majority let pass the opportunity for

the Czech Constitutional Court to formulate a doctrine of in relation

to the EU Third Pillar, that is in the field of Justice and Home Affairs

cooperation in criminal matters of the EU Member States (that is, to

part of “Union law”).  My second reservation concerns the method of

assessing the implementation of the European arrest warrant into the

Czech legal order, in other words, in relation to which constitutional

norm should this implementing act be assessed.

1.
The

majority’s reasoning rests on the application of the doctrine formulated

by the Constitutional Court in its Judgment No. Pl. US 50/04, which

however concerned Community law, that is, enactments which form a part

of the acquis communautaire and the “First Pillar” of the EU.  In this

judgment, the Constitutional Court formulated a doctrine according to

which the Czech Republic is, in view of Art. 10a of the Constitution of

the Czech Republic, empowered to transfer certain powers of its organs

to organs of the EC (EU).  It was further stated in that judgment that

it is necessary to find the grounds for the operation of Community law

in the Czech Republic must be found in the dogma that the ECJ evolved in

relation to Community law.  In other words, the Constitutional Court at

that time did not find, directly in the Constitution, the grounds for

Community law to operate in the Czech milieu.  However it also found in

the Constitution the bounds for such operation, namely in Art. 9 par. 2

and in Art. 1 par. 1 of the Constitution of the Czech Republic.
 

Today’s

majority opinion shifts this doctrine, formulated by the Constitutional

Court not even two months previously, by asserting that the Czech

Republic’s accession to the EU resulted „to a certain extent to the

limition upon the Constitutional Court’s jurisdiction“ and that „where

the Czech enactment reflects a mandatory norm of European law, in

principle the doctrine of supremacy of Community law does not permit the

Constitutional Court to review such Czech norm in terms of its

conformity with the constitutional order of the Czech Republic.“  In

actuality, in the cited judgment the Constitutional Court declared that

in the case that powers are re-delegated from EC (EU) organs to organs

of the Czech Republic (this still concerns the First Pillar of the EU),

the Constitutional Court will review legal norms resulting from that

re-delegation from the perspective of the Czech constitutional order, in

which case, however, it will interpret it with a view toward the ECJ

case law on those principles which are identical with the principles

contained in the Czech constitutional order.
 

In

assessing the implementation of treaty law arising from the Third

Pillar, the majority opinion rested on these considerations.  However, I

cannot concur with this approach to the problem.  First and foremost,

in the Third Pillar of the EU, a transfer, pursuant to Art. 10a of the

Czech Constitution, of a part of the Czech organs‘ powers to organs of

the EU did not occur, nor could it have.  Whereas the First Pillar of

the EU is constructed on an enumeration of the substantively defined

powers of the EC organs, if Art. 10a of the Constitution is applied in

the case of the Third Pillar, that would represent a „blank check“ given

to the EU organs in vaguely defined areas, or an entirely „framework“

definition – that is, in the criminal agenda connected with justice and

police.  Since criminal law, by its very nature, is that field which

most intrudes upon the fundamental rights, and above all into their very

foundation, that is, into the liberty of the individual, such a

„blanket“ transfer of powers to the EU organs, pursuant to Art. 10a of

the Constitution, did not comport with the essential attributes of a

democratic law-based state (Art. 9 par. 2 of the Constitution of the

Czech Republic).  After all, according to the Czech Constitutional

Court’s jurisprudence (III US 31/97), both respect for the individual

endowed with fundamental rights and the state’s obligation to protect

the fundamental rights of individual persons constitute an immanent

component the essential attributes of a democratic law-based state.  It

is a question, which in my view must be answered in the negative,

whether the Czech Republic is even permitted to transfer to EU organs,

pursuant to Art. 10a of the Constitution, some part of its powers in the

field of criminal law, with the consequence that the Czech Republic

would be giving up constitutional control over this field, even assuming

the reservation that the Czech organs would reassume these powers,

should they be carried out by the EU in conflict, above all withe Art. 9

par. 2 of the Czech Constitution.  My doubts about the possibility to

transfer even precisely defined powers in the field of criminal law

stems from the fact that, as of yet, the EU does not have its own

constitution containing a catalogue of fundamental rights springing from

commonly shared conceptions of the liberty of persons and of the

possibilities to restrict them.  In my conception the constitution is

the unique legitimizing instrument which restricts the powers of the

authorities of organized society, in the given case the EU authorities,

exercise in this sensitive area, that is, in criminal law, even if

merely on the plane of norm creation.  The web of international

agreements on which today’s European Union is constructed does not, in

my view, provide a sufficient guarantee of the protection of individual

freedom in the literal sense.  
 

I

am thus convinced that, in the context of the Third Pillar, adopted

framework agreements are, by their nature, “intergovernmental

agreements”, with all the consequences flowing therefrom.  In terms of

positive law, one can refer to Art. 34 par. 3 lit. b) of the Treaty on

the EU, according to which framework decisions are a form of secondary

union law that are binding only in terms of the objective set down

therein.  According to Art. 34 par. 2 lit. b) of the Treaty on the EU,

framework decisions do not have direct effect and their application in

national legal orders is left to implementation by national

legislatures.  “By including into the Treaty on the EU the provision

that direct effect is excluded, the Member States wished, in particular,

to prevent the ECJ’s doctrine on the direct effect of directive from

being extended to framework decisions as well” (decision of the German

Federal Constitutional Court of 18 July 2005, no. 2 BVR 2236/04).
 

The

nature of framework decisions excludes their classification as

international treaties under Art. 10 of the Czech Constitution, alone

due to the fact that they lack a constitutionally foreseen process of

internal ratification (the assent of Parliament); thus, the preventive

control of their constitutionality by the Constitutional Court is ruled

out.  In my view, the implementation of framework decisions is subject

solely to the strictures of Art. 1 par. 2 of the Czech Constitution, and

is subject to full constitutional review only in the case of

implementation of the framework decision by act of the national

legislature.  I concur with the judgment to the extent that the national

implementation cannot be enforced through ECJ proceedings, however,

from my perspective, the view expressed in the judgment to the effect

that implementation can be enforced by the European Commission bringing

political and administrative pressure to bear on the Member States is

unacceptable, as I consider it in conflict with the attributes of a

democratic law-based state, in which politics must confine itself within

the bounds prescribed in constitutional principles.
 

All

this led me to the conviction that the doctrine formulated by the

Constitutional Court in relation to Community law cannot be applied in

relation to acts in the Third Pillar, or to national enactments

implementing framework decisions.  In such cases, the threshold for

review cannot be lowered all the way to the level of the essential

attributes of the democratice law-based state, or the fundamental

attributes of national sovereignty.  On the contrary, in such cases the

entire constitutional order must be applied as a referential criteria

for the adjudication of constitutionality of the implemented framework

decision.  Accordingly, I think it necessary to observe that, when

voting in the Council, the representative of the Government should

always be mindful of the fact that their vote for the proposed act,

which will need to be transposed into the Czech legal order, must pass

muster from the perspective of the entire Czech constitutional order.

2.
I

have no objections to the objective interpretation of Art. 14 par. 4 of

the Charter given in the Court’s opinion.  Nonetheless, if its

application as a referential standard was ruled out in this case, in my

view it is only with great difficulty that one can comprehend the fact

that in the entire Part VIII of the judgment, the implementation of the

European arrest warrant is defined in relation to it.  The majority

opinion adopted the same approach in relation to the review of the

contested provisions in terms of Art. 39 of the Charter, which according

to the majority opinion is a guarantee tied to substantive law, not to

procedural law, the contested provisions of the Criminal Procedure Code

are nonetheless, further reviewed from its perspective.
 

In

my view, the contested provisions should have been reviewed first and

foremost in relation to Art. 8 of the Charter, particularly with

emphasis on the issue of whether the domestic rules can be adjudged to

be proportional.  In my opinion it is not proportional, especially due

to the fact that Art. 4 par. 7 of the Framework Decision was not

implemented in the part which provides that a Member State can refuse to

execute a European arrest warrant where it relates to offences which

were committed in whole or in part within the Czech Republic or in some

place treated as such, or which were committed outside the territory of

the issuing Member State and the law of the Czech Republic does not

allow prosecution for the same offences when committed outside its

territory.
 

It is after all

evident that a person suspected of a criminal offense (typically a

citizen of the Czech Republic or a person with long-term or permanent

residence in the Czech Republic), if faced with the execution of a

European arrest warrant, finds herself in a situation which for her is

less advantageous than that if she had been prosecuted in the Czech

Republic, where she speaks the language, knows the cultural milieu in

the wide sense of the word, has a better understanding of the domestic

legal order and of the values to which it is subject.  If this provision

had been implemented, then it would have been possible to take these

criteria into consideration when deciding on the European arrest

warrant.  I am convinced that, at the present, it is not possible to do

so.  I do not agree with the view that § 377 of the Criminal Procedure

Code can be applied in such cases.  This is due not only to its purpose,

as appears from the part in the margin which designates it, but

especially due to the fact that the structure of § 411 par. 6 of the

Criminal Procedure Code, which regulates the refusal to surrender a

requested person, is the structure of a mandatory provision with an

exhaustive enumeration of grounds which admits of no further extension

of the grounds foreseen therein.
 

For

that matter, as far as concerns the right to personal liberty as the

criterion of review, one can refer to the decision of the Appellate

Committee of the House of Lords in the matter, Office of the King’s

Prosecutor, Brussels v. Cando Armas, of 17 November 2005.  The opinion

of Lord Hope contained therein (par. 24) is based on the conviction that

in applying the European arrest warrant, “the liberty of the subject is

at stake here, and generosity must be balanced against the rights of

the persons who are sought to be removed under these procedures.”  In

her opinion, Baroness Hale (par. 60) then added that it would be

unfortunate if the judicial authorities in other Member States, using

the form of warrant prescribed by the Framework Decision, were to find

that the English judicial authorities were unable to implement it.  In

her view, the chosen approach must be true to the spirit and

requirements of the Framework Decision, of course, under the condition

that they properly safeguard the liberty of the individual.

Conclusion
According

to Art. 34 par. 2 lit. b) of the Treaty on the EU, the purpose of

Framework decisions is the approximation of laws and regulations of the

Member States in the area of justice and home affairs.  In contrast to

the field of civil law, however, criminal law is that field of law in

which are manifested the values particular to each individual Member

State of the EU and which is also very sensitive since, after all, it is

tied to the intrusion of public power into the personal liberty of

individuals.  The values which a society has gained through its

experience and which its members share are prominently projected into

the definition and interpretation of particular criminal offenses, as

well as into the area of criminal procedural.  Therefore, I cannot

accept even the premise, contained in the judgment, that a sufficient

level of value convergence exists among EU Member States.  
 

The

rules contained in the Spanish Criminal Procedure Code, which was

incorporated into it as an „anti-terrorist amendment“, can be given as

an example of differing value conceptions, undoubtedly founded on

experience, on the possible interference with personal freedom. 

According to it, a suspect can be held in „incommunicado detention“ (a

sort of solitary confinement) for up to 10 days.  During this period,

that person is denied contact either with other persons, such as

relatives, embassy, and similarly, or with an attorney or a doctor of

their choice.  After this period expires, that is, in the course of

possible further pre-trial custody, the competent judge or tribunal can

decide, if the investigation so requires, to impose an additional three

days of incommunicado detention.  
 

This

situation was repeatedly criticized by the UN Commission on Human

Rights when, for ex., in its resolution for the year 2003 declared that

“prolonged incommunicado detention may facilitate the perpetration of

torture and can in itself constitute a form of cruel, inhuman or

degrading treatment or even torture.”(UN Commission on Human Rights,

resolution 2003/32, para 14; cited according to Human Rights Watch,

January 2005, vol. 17, No. 1 (D), p. 24).
 

One

can cite, as a value anti-pole, the decision of the Appellate Committee

of the House of Lords (UK) of 8 December 2005 whether torture or other

cruel, inhuman, or degrading treatment is permissible.  In his opinion

(par. 51) Lord Bingham stated, among other things, the “the English

common law has regarded torture and its fruits with abhorrence for over

500 years . . . . The issue is one of constitutional principle, whether

evidence obtained by torturing another human being may lawfully be

admitted against a party to proceedings in a British court, irrespective

of where, or by whom, or on whose authority the torture was inflicted.

To that question I would give a very clear negative answer.”  In his

opinion, Lord Hoffman stated (paras. 82-83):  “The use of torture is

dishonourable. It corrupts and degrades the state which uses it and the

legal system which accepts it. . . .  [T]he rejection of torture by the

common law has a special iconic importance as the touchstone of a humane

and civilised legal system.”  Lord Hope noted (par. 126) that “[v]iews

as to where the line [of acceptability] is to be drawn may differ

sharply from state to state.”  Lord Carswell pointed out (par. 150): 

“[T]he use of torture . . . would shock the conscience, abuse or degrade

the proceedings and involve the state in moral defilement.”
 

It

is open to question whether the Czech Constitutional Court would

consider as torture, cruel or inhuman treatment the holding of suspects,

to whom the presumption of innocence applies, in the circumstances and

for the period of time which is permitted by incommunicado detention. 

It is certain that Art. 8 par. 3 of the Charter of Fundamental Rights

and Basic Freedoms guarantees a person accused of or suspected of having

committed a criminal act, that within 48 hours they will either be

released or turned over to a court, which must decide within 24 hours

either to place that person in pre-trial detention or release him.  In

addition, Art. 37 par. 2 of the Charter guarantees each person, as a

component of fair process, the right to assistance of council from the

beginning of any proceeding.
 

What

follows from these cases is that the conception of values connected

with criminal proceedings varies from state to state, just as they

diverge in their appraisal of what is in other states permitted by law,

even despite the fact that all Member States of the EU are signatories

of the European Convention for the Protection of Human Rights and

Fundamental Freedoms.  As the Constitutional Court held in its judgment

Pl. US 36/01, however, it is not permissible to decrease the standard

for the protection of human rights that has been attained.
 

The

European arrest warrant is, in itself, definitely a highly necessary

and desirable legal institution, without which the EU, which is, among

other things, characterized by the free movement of persons, simply

could not get by.  Nor can one disregard the heightened security risked

shared by all states associated in the EU.  Nonetheless, I am still of

the view that the European arrest warrant was implemented in the Czech

Republic in a negligent fashion.  My reservation tied up to the failure

to implement Art. 4 par. 7 of the Framework Decision was actually in the

light of the above-mentioned minimal requirement, which would however

have significantly contributed to the proportionality of the legislative

solution contained in the Czech criminal law acts.

Brno 3 May 2006
 

 



Dissenting Opinion
of justice Stanislav Balík

With

the notion that the petition should be granted, I voted against the

judgment on the merits dismissing the petition, for the following

reasons.
 

Enchanted as always

when working with the Constitution and the Charter of Fundamental

Rights and Basic Freedoms (hereinafter “Charter”) by the gorgeous rich

language in their preambles, I caressed first of all the little word,

homeland, in Art. 14 par. 4, second sentence of the Charter.  Choosing

whether the word, patria or “country” [this word was in English in the

original text], sounds better to me, personally I choose the older of

these two words.  There are definitely more synonyms for the word,

homeland, the one closest to my heart – even despite the fact that a

mobile phone user must first learn the T9 system – is fatherland, or

perhaps also home.  Although the issue is sometimes couched in the sense

of “to force someone to leave the Czech Republic” (cf. also J. Filip,

Evropský zatýkací rozkaz před ústavními soudy [The European Arrest

Warrant before Constitutional Courts], Časopis pro právní vědu a praxi

[The Journal for Legal Science and Practice], No. 2/2005, p. 162), in my

view this does not concern leaving rei publicae, rather leaving patriae

or – if you please – native soil, in the spirit of Kollár it is “ . . .

this land, first my cradle, now the nation of my coffin”.
 

The

concept of homeland, encompassing within itself the attributes of home

and ancestry, corresponds to the designation of a language as mother

tongue or Muttersprache or langue maternelle etc.  The surrender of a

citizen for criminal prosecution or the serving of a sentence – and I am

now focusing strictly on a linguistic issue - is without doubt to tear

him away from his above-described roots.  “Homesickness and the

inability to speak with someone in one’s native language influences the

quality of verse in terms of themes, style and even language”, also in

the case of a poet who justifiably wrote about his own work “ore legar

populi perque omnia saecula fama vivam”, while for our purposes we

should not overlook the fact that this exile took place in the context

of the same Roman Empire, nonetheless in language terms rather Greek

Pont (comp. also the Ovidius, in The Encyclopedia of Europe’s

Personalities from Antiquity to the Present, Prague 1993, p. 494).
 

Let

us move on, however, to the most practical problems which a surrendered

person might encounter, even should the right to an interpreter be

fully respected, “let us spend” with him in mosaic one of his “model”

days in proper order.
 


x x x
 

In

order to present our hero, for the time being he is still not, and may

never be, a criminal as, in the first place, the presumption of

innocence applies, in the second place, moreover, it might be shown in

the future that, for ex., he never committed the act for which he was

accused.  For that matter, the following could happen to him as well:
 

He

is placed in a cell with a Portuguese prisoner.  The exchange of “Bom

dia” for “topry ten”, occasionally “tekuji” or “obrigado”, otherwise a

pair in silence.  Where will be that Ptahotepa “relief” brought on “when

a person is at least listened to”? (Papyrus versus Ptahotepa,

translated by Z. Žába, Prague 1971, p. 35).
 

K obědu alfődi gulásleves. S „paprikou“ to snad nebude problém, jak však vykouzlit zápor a přidat maďarsky slůvko „žlučník“.
 

For

lunch there will be alfődi gulásleves.  It will not be a problem with

“paprika”, but how to conjure up the drawback/antithesis and add the

little Hungarian word, “gall bladder”.
 

In

the afternoon, δικηγ?ρος will come on a visit, accompanied for sure by

one of many court interpreters specialized in xenophobia, thus it will

not be difficult to find an exhaustive interdisciplinary response to the

question:  „Ειναι Τσ?χος σ?μερα στην ?λλ?δα ακ?μα ο ξ?νος;“  There

remains the utterly trivial matter of organizing from the detention

prison the replacement of the advocate ex offo for a defense attorney

with a power-of-attorney, which the accused’s spouse will certainly

gladly take care of, when she can buy with her entire monthly salary a

return air-ticket, Prague – Solun or Prague – Athens, and to be on the

safe side she gets Euros in exchange for the Czech Crowns (which she got

by emptying out the savings account for building their house), in case

the Greek attorney rates by chance happen to be a tad higher than the

Czech rates.
 

In the evening

renal colic put in an appearance.  Thanks to Monteverdi’s madrigal and

to listening several time to an Italian production of Don Giovanni, it

will be possible – before he succeeds on the state holiday in making

contact with the Czech consulate – to say to the Italian doctor at

least, “Non lasciate mi morire!”.  Have we thought through, however, how

that will be for a patient who does not have health insurance in Italy?
 

The maxim, “Primum vivere deinde philosophari”, definitely also applies in this case.
 


x x x
 

Does Czech historical memory really not reach further back than to the “Rehabilitation Action”?
 

I

do not wish at the present to enter into the expert discussion of

historians on concrete historical events within the confines of Europe’s

multi-national coexistence, but we should probably understand “each

other” [these words were in English in the original text].  I would thus

recommend one to read, for example, the excellent study in legal

history authored by Jiří Kejř, “Hus’ Trial” (Prague 2000).
 

“Immediately

after Hus’ death – it is not even necessary to repeat it – in Bohemia

resounded with outrage over the unjust and unfounded judgment, as

expressed by the missive of protest sent to Constance by the nobility

already on 2 September 1415, in which it was shown that Hus neither

confessed nor was found guilty.  The Council of Constance was denounced

even in Basel as an unjust judgment on Hus, as the Czech repeatedly

declared in their statements. . . .  But, what conclusions have modern

historians drawn on this issue?  After all, the mere question as to

whether the judgment in Constance was passed justly and in conformity

with law, whether it honestly reflected Hus’ guilt, whether it was not a

product of the judges’ partiality and influenced by political

interests, has been responded to with irreconcilable divergence,” writes

Jiří Kejř, among other things, and he adds, “Let us not indulge in the

excessive hope that following our study there will not remain a strong

residuum of the previous condemnations with which it was so difficult to

reconcile.”
 

Hus’ trial,

held outside of his homeland with judges of other nationalities, with

Latin as the language of the proceeding, errors in the defense caused by

the failure to adapt the rules of Canon procedure.  Did not these

considerations reverberate as well in the heads of those who formulated

Art. 14 of the Charter?
 

Each

moderately educated Czech was familiarized, during her school years,

with the fate of Karel Havlíček Borovský.  The “Banishment” in Brixen,

that is a city situated in the Hapsburg joint-state.  One of the recent

submissions is the following:
 

“During

the night between 15 and 16 December 1851, he was arrested and, with

police escort, taken to the Tyrolean city of Brixen, where he was forced

to live for more than three years.  Being cut off from Czech society

and public activity induced in Havlíček severe internal crises, but it

did not break him” (cf. Who Was Who in our History through 1918, Prague

1993, p. 97).
 

Can we be

certain that elementary and secondary school students in Czech schools

have not until today heard this (possibly even traditional)

interpretation?
 

I ask myself

this question in order to meditate on the legal consciousness of

citizens of the Czech Republic de lege ferenda in the moment when their

Government proposed, together with the amendment to the Criminal

Procedure Code and the Criminal Code, an amendment to Art. 14 of the

Charter.
 

I asked myself this

question in connection with the debate preceding the adoption of the

Framework Decision of the Council of the European Union, No.

2002/584/JHA of 13 June 2002, what is nearly already long ago from the

contemporary perspective of persons with short historical memories.  Do

we know “each other”? [these words were in English in the original

text]  Acting as devil’s advocate I made only a few marginal

Anglo-American comments on the praise in the judgment’s reasoning of the

British model of extradition – “convicts servants” [these words were in

English in the original text] in the North-American Colonial period,

the American Fugitive Slave Act of 1850 or the 1857 decision of the

Supreme Court of the United States of America in the Dred Scott case . .

.
 

Let us devote a moment to reciprocity . . .
 


x x x
 

Cui prodest?

Are there really so many Europeans who commit what are, from the Czech

perspective, criminal offenses, after whom the criminal justice

authorities would pine and who would otherwise escape punishment?  Or

did the intent to transpose more than was necessary prevail?
 

I

forgot about my humble period of law practice and briefly had some

doubts that pre-trial detention in the Czech Republic is Europeanized in

a qualified manner.
 

Further consequences occurred to me; I promised myself that I would await a consoling response.
 


x x x
 

As has been shown, the legislature is something of a Superbus.
 

In

its statement of views on the petition, the Chamber of Deputies

emphasized that the Parliament is the sovereign representative of the

constituent and legislative power, thus it is not bound by the legal

opinion of the person proposing an amendment to the Charter and is

entitled to adopt its own view on a matter.
 

And

what about perhaps listening to the view of the public?  Couldn’t it be

said of a greater number of views that “more is more”?  Was the adage,

“Measure twice, cut once”, forgotten?
 

I

was interested by the responses to questions connected with the

practical realization of the discussed legal rules.  I did not find in

the record from the debates in the Assembly any allusion which would

lead me along these tracks.  I asked myself then whether the deputies

had available comparative law data concerning of the system for

detention and the course of the preliminary proceeding in individual

countries, whether they had available information on the numbers and

levels of interpreters, what they knew about the guarantees of the right

to a defense, whether there was some awareness concerning the rules

governing the compensation of damage for incorrect official conduct (see

the record from the Constitutional Court’s public hearing held on 3 May

2006).
 

I will paraphrase

what I learned.  Those who were not members of the “Guarantee” Committee

voted by putting their trust in that Committee’s report, alternatively

in the officer from their parliamentary club.  I admit that the response

to the question on the degree to which President’s position in his veto

message was objectively thought through; however, out of concern for

the sudden drop in the level of optimism on the state of political

culture, I deemed it more advisable to let such considerations remain

hypothetical.
 

Does not norm

truth, however, fall within the constitutional conformity of a statute,

in the case under review projected into certainties that citizens of the

Czech Republic will actually be under the protective wing of their

homeland, even in common situations which are outlined above?
 


x x x
 

I

have attempted to climb down from the heights of the definition of a

law-based state to examples from practice indicating that a unified

model of the law-based state, or criminal law policy, does not as yet

exist.  And the divergences, for which a person facing a criminal

proceeding is not necessarily prepared, might significantly worsen his

position, for ex. in the pre-trial proceedings.
A further subject for consideration presents itself.

I

quote from the speech of the Paris bâtonnier [translator’s note -

President of the Bar Association] Jean–Marie Burgubur at the occasion of

the Opening of the Judicial Year in Paris on 18 November 2005:

„Yes, justice is in a poor state, and if judges have clearly told you

that, Mr. Minister, advocates are going to repeat it once again.   
 

-

What is the case, for example, with the presumption of innocence?  It

is a lovely theme to enchant a solemn assembly, but is this presumption

reflected as well in the conduct of the investigating judge, the

representative of the prosecution or the judge deciding whether to leave

a person at liberty or place him into custody, the JLD (Juge des

Libertés et de la Détention), who could be called the judge of liberty –

so exceptionally – and of detention – so frequently?
 

That

is to say, the presumption of innocence has its place in the statutes,

similarly as in treaties, however, in practice in the course of a court

dispute when a judge – whether an investigating judge or the judge

deciding whether to leave a person at liberty or place him into custody -

must decide, at that point the presumption of innocence no longer

exists.
 

Of course, we have

in our country money laundering, organized crime, even terrorism, all of

which would be a reason for a judge to simply and without more adopt a

police and security decision: a certain person is brought before a

judge, it is thus necessary to lock him up.  Not guilty, we say?
 

-

There are so many unjustified cases of placing persons into custody

(and most of the required matters in a file are, according to the

current method, already under the control of the examining judge),

combined with others already being detained or being prosecuted, that it

is impossible, just as evidence is losing cogency and the danger of the

investigated person is often smaller than evident.
 

Is

it disgraceful to refer here to the scandalousness of placing people in

custody just as much for the too often, even systematic, resort to this

means, as for the conditions in which such detention occurs?  The

condition of our custodial facilities puts our country into the

situation in which it breaches the most basic human rights.
 

What

is the most significant factor for recidivism?  Incarceration, the

conditions in which the punishment of imprisonment is carried out.  The

failure to observe the condition of respecting detainees and their

dignity leads to recidivism, which neither an electronic bracelet nor

measures extending punishments is able to prevent.
 

Advocates

cannot remain silent about this deplorable and outrageous situation

which the European Commissioner for Human Rights recently condemned,

especially as regards the Paris detention prison.
 

It

is not merely a matter of money; it is above all a lack of political

will.  I would do wrong if I failed to censure this situation.” (cf.

J.-M.Burgubur, Respektujte advokáty [Respect Advocates], Bulletin

advokacie [The Bulletin of Advocacy], No. 3/2006, p. 7).
 

Is

this the solitary voice of the elected representative of more than 6000

advocates registered in the top French bar association?
 


x x x
 

It

would certainly be possible to repeat the President’s arguments, as

well as those of the petitioners.  The overwhelming majority of them

refer to it with a comment that merits attention even for the future. 

But I should not forget my own reflection de lege ferenda.
 

The resolution of the substantive criminal law relations primarily in a procedural enactment is unsystematic, to say the least.I

 

t seems to me appropriate to adopt the Criminal Code and the Criminal Procedure Code in the same time frame.
 

Wouldn’t

it be more appropriate to reach agreement on a “European” definition of

the constituent elements of serious criminal offense and a unitary form

of criminal proceeding against the accused of such offenses?
 

Wouldn’t

it be possible to establish in each state at least one specialized

“alien” pre-trial detention prison for just such cases?

x x x
The

reasoning of the judgment proceeds, among others, from the

Constitutional Court’s case law in the sense that “theoretically every

provision of a legal enactment can naturally be applied incorrectly,

hence even in conflict with constitutional acts, which in and of itself

does not constitute grounds for the annulment of a provision which can

conceivably be incorrectly applied”.
 

This

dissenting opinion rests on the principle of dubitandi.  It is not the

classic in dubio pro reo, although it should sound in its favor.  I did

not get the impression that I have an unambiguous response in all cases

to the questions which I have attempted haphazardly to select and submit

to the kind reader.
 

I see

the unconstitutionality of the contested provisions primarily in the

fact that, in my view, the legislative rush caught the legislature

rather unprepared, and as far as concerns the resolution of the

relations of the bill to amend the statute together with the bill to

amend the Charter, impetuous up to the outer edge of constitutional

conformity of the constitutional amendment process and the legislative

process.  This is an issue in the resolution of which it would probably

be best not to test how much the Constitutional Court will bear but, on

the contrary, proceed with respect for the constitutional order, just as

the person who submitted the proposed amendment originally attempted to

do in the Parliament of the Czech Republic.  In the existing situation

then, as regards their constitutionality, the contested provisions of

the Criminal Procedure Code and the Criminal Code are open to question,

to say the least, and for a host of relevant reasons, to which the

petitioners, the President, even my co-dissenting colleague, draw

attention in this proceeding.

x x x
Completely at the end - as

they often say in a certain milieu – “to be fair”.  Let us imagine that

this dissenting opinion were the final word of a defendant.  With all

respect to interpreters, I would ask that they attempted “from the hip”

an exercise in translation, and if possible literally, into Finnish,

Hungarian, Modern Greek, Dutch, . . . French, and English.