2007/02/21 - I. ÚS 601/04: Transfer of Perpetrators

21 February 2007

HEADNOTES


1)

The central principle for a court’s decision on the execution of a

criminal judgment of a foreign state (based on international treaties)

is a change in the conditions for serving the sentence, which can not

result in an overall worsening of the convicted person’s position. This

institution of execution of the criminal judgment of a foreign state is

primarily an expression of society’s effort to mitigate the negative

effects connected with serving a sentence abroad, sometimes in an

environment that is culturally and socially different from European

conditions. It is a legitimate aim of the legislature to protect its own

citizens from these negative effects, going beyond the framework of the

effects that belong to a particular type of punishment based on its own

nature. The purpose of steps by the state that permit the execution of a

foreign criminal judgment on its own territory is thus primarily a

humanitarian influence on the convicted person, whose aim is to remove

the excess of negative influences, at his own request, but not the

reduction of a sentence, especially when preserving the length of a

sentence is an express condition of the transferring state.

2)

The Constitutional Court emphasizes that cruelty and inhumanity of

treatment or punishment can not be measured according to criteria given

in advance, but always by thoroughly weighing all circumstances of a

case. However, generally we can assume that inhuman and cruel treatment

or punishment is always a combination of various factors that culminate

in an individual’s intense physical and psychological suffering.

However, merely serving a long prison sentence, if it takes place in an

environment that respects human dignity, is not, in and of itself, cruel

or inhuman treatment, if it is not accompanied by other serious

(objective) inadequacies in the manner in which that sentence is served,

as is standardized in the civilized world, or by the prisoner’s serious

health and psychological problems.

3) When the exclusive judicial authority of the state transferring the

perpetrator to serve his sentence is expressly preserved, the judicial

body that decides on execution of the judgment does not have the same

position as the judicial body that imposed the sentence. Thus, the Czech

authorities can not decide on objections aimed essentially against the

Thai conviction decisions, because the Czech Republic would then be in

conflict not only with the principle pacta sunt servanda, but also with

the principle of good faith, which are the foundation stone of

international treaty law, and their importance is strengthened by the

fact that they have been incorporated in the preamble of the UN Charter.

The principle of good faith is a fundamental rule of interpretation in

the analysis of the texts of international obligations. They must be

interpreted in good faith, taking into account the entire context of the

treaty, and in light of the aim and purpose for which it was concluded.

The aim and purpose of the treaty concluded between the Thai Kingdom

and the Czech Republic was to bring the petitioner, at his request, to

his home environment, closer to his family and friends, and enable him

to serve the remainder of his sentence at home, in his native land.

Therefore, in that light, the petitioner’s request, that the

Constitutional Court annul the decisions of the Czech general courts and

release the petitioner, will not stand. If the Constitutional Court

granted the petitioner’s request, it would violate not only Art. 1 par. 1

and par. 2 of the Constitution of the Czech Republic, but also its

trustworthiness in international relations.

 


CZECH REPUBLIC

COPNSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 
A

Panel of the Constitutional Court composed of the chairman Vojen

Güttler and judges Ivana Janů and František Duchoň ruled on this day in

the matter of a constitutional complaint by the petitioner E. N.,

represented by JUDr. T. S., attorney, against a decision by the

Municipal Court in Prague of 22 April 2004, file no. 6 To 162/2004,

against a decision by the District Court of Prague 6 of 2 March 2004,

file no. 3 T 127/2003, in its entirety, or, in the alternative, only in

the verdict about the fact that the petitioner committed a crime under §

187 par. 1, par. 2 let. a) of the Criminal Code, with the participation

of the Municipal Court in Prague and the District Court of Prague 6, as

follows:
 

The constitutional complaint is denied.



REASONING


I.
 

1.

In his timely and duly filed constitutional complaint the petitioner

contested the decisions of the general courts cited in the introduction,

and proposed that the Constitutional Court annul them.
 

2.

The decision of the District Court of Prague 6 of 2 March 2004, file

no. 3 T 127/2003, decided in the petitioner’s matter on execution of a

decision under § 384d par. 1 of the Criminal Procedure Code (in the

version in effect through 31 October 2004) with reference to the text of

the Treaty between the Czech Republic and the Thai Kingdom on the

Transfer of Perpetrators and Cooperation in the Execution of Criminal

Judgments, promulgated as no. 107/2002 Coll.I.A. [Collection of

International Agreements] (further identified by its full name or only

the “Treaty”) given the existence of an unchanged verdict on guilty and

sentencing from the verdict of the Criminal Court of the Thai Kingdom of

21 July 1995, file no. 2806/2538-4493/2538 (the “Thai decision”), in

connection with the decision of the Provincial Court of Nonthaburi of 12

July 1996, file no. 2806/2538-4493/2538 (both together, the “Thai

decisions”) on a crime under § 4, § 7, § 8, § 15 par. 2, § 65 par. 2, §

66 par. 2, § 102 of the Act on Dangerous Narcotic Substances from 1979, §

3, § 7 of the Act on Measures to Suppress the Activities of Persons

Committing Crimes in Connection with Drugs from 1991 and § 33, § 80, §

90 of the Criminal Code, which he was to have committed, in brief, by

attempting to transport out of the territory of the Thai Kingdom, on an

airline, 5,607 grams of heroin for purposes of further distribution,

whereby he committed, under the Criminal Code of the Czech Republic, the

crime of non-permitted production and possession of narcotic and

psychotropic substances and poisons under § 187 par. 1, par. 2 let. a)

of the Criminal Code, and therefore, under § 384d par. 2 of the Criminal

Procedure Code the petitioner is to serve a prison sentence of forty

two years, ten months and thirteen days. Under § 39a par. 2 let. c) of

the Criminal Code he is assigned to serve his sentence in a high

security prison .
 

3. The

decision of the Municipal Court in Prague of 22 April 2004, file no. 6

To 162/2004, ruled on the petitioner’s appeal, and denied it under § 256

of the Criminal Procedure Code.

4.

The petitioner claims that the cited decisions violated his fundamental

rights guaranteed by Art. 7 par. 2 and Art. 8 par. 2 of the Charter of

Fundamental Rights and Freedoms and Art. 3 and Art. 6 of the Convention

for the Protection of Human Rights and Fundamental Freedoms.

5. The relevant provisions of the Charter of Fundamental Rights and Freedoms read as follows:
Article 7
(2) No one may be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
 

Article 8
(2)

No one may be prosecuted or deprived of his liberty except on the

grounds and in the manner specified by law. No one may be deprived of

his liberty merely on the grounds of inability to fulfill a contractual

obligation.
 

6. The relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms read as follows:
 

Article 3
Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 6
Right to a Fair Trial
(1)

In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law. Judgment shall be pronounced publicly but

the press and public may be excluded from all or part of the trial in

the interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent strictly

necessary in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights:
a)

to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c)

to defend himself in person or through legal assistance of his own

choosing or, if he has not sufficient means to pay for legal assistance,

to be given it free when the interests of justice so require;
d) to

examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
 

7.

In the constitutional complaint, the petitioner basically formulated

his objections into two areas. For one thing, according to the

petitioner, the general courts decided that he had committed the crime

of non-permitted production and possession of narcotic and psychotropic

substances and poisons under § 187 par. 1, par. 2 let. a) of the

Criminal Code, even though that decision was not preceded by a fair

trial, and for another, the general courts accepted a sentence whose

length is quite outside the scope of sentences imposed for a similar

offense in the Czech Republic, and the petitioner considers the sentence

to be cruel and inhuman.
 

8.

In relation to the first objection, as regards the substance of the

court’s decision under § 384d par. 1 of the Criminal Procedure Code, the

petitioner points to the fact that he was convicted of a crime under

the Czech Criminal Code, although under § 220 par. 1 of the Criminal

Procedure Code a court can make such a decision only about a fact that

is contained in the complaint. In this matter a complaint was not filed,

because the petitioner was not even told of the accusation. However,

the accusatory principle is one of the fundamental principles of a fair

trial. This objection is tied to the petitioner’s proposal that the

Constitutional Court annul the decision of the Municipal Court in Prague

of 22 April 2004, file no. 6 To 162/2004, and the verdict that the

petitioner committed the crime of non-permitted production and

possession of narcotic and psychotropic substances and poisons under §

187 par. 1, par. 2 let. a) of the Criminal Code, contained in the

decision of the District Court of Prague 6 of 2 March 2004, file no. 3 T

127/2003.
 

9. In the

constitutional complaint, the petitioner explains in more detail the

objection that the sentence that he is to serve in the Czech Republic is

disproportionate and cruel. He emphasizes that the District Court for

Prague 6 itself concluded, although it was not authorized to do so, that

the act described in the decision would have been classified in the

Czech Republic as the crime of non-permitted production and possession

of narcotic and psychotropic substances and poisons under § 187 par. 1,

par. 2 let. a) of the Criminal Code, for which he would face, in the

most extreme case, a prison sentence of ten years. In the decision

contested by the constitutional complaint, the District Court for Prague

6 accepted a prison sentence of forty two years, ten months and

thirteen days, out of which approximately nine years have been served,

including the time spent in detention. In view of the purposes of a

sentence defined in § 23 par. 1 of the Criminal Code the petitioner sees

the intent of the legislature that the imposition of a prison sentence

of a maximum of ten years is sufficient in scope to fulfill its

purposes. Therefore, the petitioner considers the key question to be

what is the priority in a case of conflict between two different ideas

of the need for a sentence to have an effect on the convicted person,

and thus also two ideas about what is a proportionate sentence. By

comparing his sentence to the length of the possible sentence that he

would receive under the Czech Criminal Code, the petitioner concludes

that his sentence is grossly disproportionate, cruel, and even inhuman.

As a result, it is therefore outside the guarantees provided by the

Charter of Fundamental Rights and Freedoms and by the Convention for the

Protection of Human Rights and Fundamental Freedoms.
 

10.

As the petitioner states further, the Supreme Court decided that the

sentence imposed by a court of the Thai Kingdom can be served in the

territory of Czech Republic. Apparently it was thus that court who erred

in the matter, because it accepted a disproportionate sentence.

However, in the petitioner’s opinion the Supreme Court decided only to

recognize the decision of a foreign court in the territory of the Czech

Republic, not that the sentence thus recognized will also be served, or

whether that sentence is consistent with the constitutional order of the

Czech Republic. Although the Criminal Procedure Code does not regulate

the procedure to be followed when a court concludes that a recognized

sentence is cruel, inhuman, or otherwise inconsistent with the

constitutional order of the Czech Republic, in the petitioner’s opinion

the court must always act with respect for constitutional principles.

Because the petitioner acknowledges that the court is not authorized to

reduce the sentence, he considers the only possible solution for the

court to decide that the sentence will not be served in the territory of

the Czech Republic and that the convicted person will be released. In

view of these arguments the petitioner asks the Constitutional Court to

annul both the contested decisions in their entirety, or to annul the

decision of the Municipal Court in Prague of 22 April 2004, file no. 6

To 162/2004, and the decision of the District Court of Prague 6 of 2

March 2004, file no. 3 T 127/2003, in the verdict that states that the

petitioner committed a crime under § 187 par. 1, par. 2 let. a) of the

Criminal Code. The petitioner also stated that he has filed an appeal on

a point of law in the matter and an application for a complaint on

violation of the law.
 

11.

For reasons of procedural carefulness, the petitioner again made his

petition at the Constitutional Court in a filing delivered on 16 May

2005 after the Supreme Court ruled that his appeal on a point of law was

denied as impermissible.
 


II.
 

12.

The Constitutional Court, pursuant to § 42 par. 4 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations (the

“Act on the Constitutional Court”), sent the constitutional complaint

to the parties to the proceeding and to the secondary parties to the

proceedings, for their responses. In its response to the constitutional

complaint, the Municipal Court in Prague referred in full to the

reasoning of the contested decision (p. no. 27). The District Court for

Prague 6, as a party to the proceedings, likewise merely referred to the

legal opinion stated in the contested decision (p. no. 28). The

secondary party to the proceeding on the constitutional complaint, the

District Prosecutor’s Office for Prague 6, after the deadline set by the

Constitutional Court, and without more detail, proposed denying the

constitutional complaint (p. no. 41). In view of the fact that these

parties to the proceeding and the secondary party to the proceeding did

not submit any new evidence to the Constitutional Court, nor did they

submit any new claims related to the substance of the constitutional

complaint, the Constitutional Court did not send these appendices to the

petitioner for an answer. The petitioner was acquainted with the entire

content of the file through his legal representative on 1 February 2007

(p. no. 72).
 

13. The Municipal Prosecutor’s Office in Prague relinquished its status as a secondary party (p. no. 37).
 

14.

The Constitutional Court also, with reference to § 48 par. 2 of the Act

on the Constitutional Court requested a position statement from the

International Department of the Ministry of Justice (the “Ministry”) (p.

no. 46). In the first part of its statement the Ministry pointed out

that the Treaty between the Czech Republic and the Thai Kingdom on the

Transfer of Perpetrators and Cooperation in the Execution of Criminal

Judgments, promulgated as no. 107/2002 Coll.I.A., is an international

treaty that is, as regards the purposes and aims stated in the preamble,

not different from other international agreements concerning the

transfer of convicted persons to which the Czech Republic is a party

[The Convention on the Transfer of Convicted Persons of 23 March 1983

(no. 553/1992 Coll.), the Protocol to the Convention on the transfer of

Convicted Persons of 18 December 1997 (no. 26/2003 Coll.I.A.,

notification of correction of errors in the translation in part 49/2003

Coll.I.A.), the Convention on Transfer of Persons Convicted to a Prison

Sentence to Serve the Sentence in the State Where They are Citizens, of

19 May 1978 (no. 123/1978 Coll.), the Agreement between the Czechoslovak

Socialist Republic and the Socialist Federal Republic of Yugoslavia on

the Mutual Transfer of Convicted Persons to Serve Prison Sentences of 23

May 1989 (no. 473/1990 Coll.), the Agreement between the Czech and

Slovak Federal Republic and the Austrian Republic on the Mutual

Execution of Court Decisions in Criminal Matters of 20 May 1990 (no.

113/1992 Coll.), and the Agreement between the Czech Republic and the

Slovak Republic on Legal Assistance Provided by Judicial Bodies and

Regulating Certain Legal Relationships in Civil and Criminal Matters of

29 October 1992 (no. 209/1993 Coll.)].
 

15.

According to its statement, the Ministry considers the constitutional

complaint to be considerably confused, because the contested decision

does not contain any verdict concerning guilt. The Ministry considers

the description of the act, as provided in the contested decision, to be

a mere repetition of the description as stated by the Thai courts.

According to the Ministry the formulation of the verdict section of the

contested decision is perhaps somewhat unfortunate; nevertheless it is

evident from the reasoning that the court did not rule on the

petitioner’s guilt. The Ministry believes that the constitutional

complaint is de facto partly aimed against the verdict recognizing the

Thai decisions, as contained in the decision by the Supreme Court of 22

May 2003, file no. 11 Tcu 103/2003. The statement by the District Court

of Prague 6 of 2 March 2004, file no. 3 T 127/2003, that the

petitioner’s crimes correspond to the classification under § 187 par. 1,

par. 2 let. a) of the Criminal Code, is therefore evidently redundant.

At the same time, the Ministry expressed its belief that serving such a

long sentence in Thai prisons would not be a more proportionate or

humane alternative, and also that the petitioner was transferred to the

Czech Republic at his own request, and his transferred was guided by,

among other things, humanitarian motives. A decision that the petitioner

will not serve the full length of the sentence imposed by the Thai

courts would be in conflict with Art. 6 par. 2 of the Treaty.
 

16.

In his written answer to the Ministry’s statement (p. no. 55-58), the

petitioner again pointed to the text of the verdict in the contested

decision, whereby, according to the petitioner, the District Court for

Prague 6 decided that a crime was committed, not only on the execution

of a decision under § 384d par. 1 of the Criminal Procedure Code (in the

version in effect through 31 October 2004), regardless of the fact that

the words “is guilty” are absent from the contested decision. The

petitioner emphasizes that, in view of the text of Art. 6 par. 2 of the

Treaty, under which the receiving state is bound by the legal nature and

length of the sentence, the verdict of the District Court of Prague 6

is not only redundant, but also illegal. Finally, the petitioner states

that the Ministry’s statement regarding the humanitarian aspect of

receiving a convicted person under the Treaty is based on a failure to

understand the essence and purpose of a sentence. He maintains his

opinion that, although a sovereign state has the right to determine the

severity of a sentence for criminal conduct, in this case the sentence

imposed can be considered disproportionate, even cruel and inhuman in

the context of the Czech legal order.

 

17.

During the hearing before the Constitutional Court the petitioner did

not propose presenting any further evidence. In his closing statement

the petitioner’s attorney stated that he respects the status of the

Constitutional Court as a body for the protection of only constitutional

rights. According to the petitioner, the history of the matter so far

confirms the objection that the actions of the general court, which did

not conduct a fair trial, were unconstitutional. According to the

petitioner, the Valdice prison still has on record the sentence imposed

by the district court, of 42 years. He emphasized that formally there is

a decision by the district court that the petitioner committed a crime,

for which he was sentenced. That situation is unconstitutional in and

of itself, because the petitioner is thus viewed as having been

convicted by a Czech court under Czech law. In relation to the objection

of a cruel and inhuman sentence, the attorney added that serving a

sentence in Czech prisons is indisputably more acceptable than serving

it in Thai prisons. However, the sentence being served is several times

longer than the sentence that it would be possible to impose for a

similar crime in the Czech Republic. On principle it is thus a cruel

sentence. Therefore the petitioner maintains his proposal.
 


III.
 

18.

From the file of the District Court of Prague 6 file no. 3 T 127/2003

the Constitutional Court also determined that on 21 June 1995, file no.

2806/2538-4493/2538, the petitioner was convicted by the Criminal Court

of the Thai Kingdom for a drug offense under the Act on Dangerous

Narcotic Substances (another translation: the Act on Narcotics and

Narcotic Poisons) from the year 2522 of the Brahman calendar (1979 A.D.)

to a prison sentence of fifty years and a sentence of confiscation of

an exhibit.
 

19. By decision

of the Provincial Court of Nonthaburi of 12 June 1996, file no.

2806/2538-4493/2538, the petitioner’s sentence was reduced, based on a

royal pardon from King Bhumibol Adulyadej (Rama IX) by one seventh, i.e.

to 42 years, 10 months and 13 days. In a filing dated 25 September 2002

in Bangkok the petitioner applied, in accordance with the text of the

Treaty between the Czech Republic and the Thai Kingdom on the Transfer

of Perpetrators of Crimes and on Cooperation in the Execution of

Criminal Judgments of 26 April 2000 to begin the process of transfer to

the Czech Republic for execution of the sentence.
 

20.

The decision of the Supreme Court of 22 May 2003, file no. 11 Tcu

103/2003, recognized both of the above mentioned Thai decisions in the

territory of the Czech Republic, under § 384a par. 1 of the Criminal

Procedure Code (in the version in effect through 31 October 2004). On 13

January 2004 the petitioner was escorted from the Thai Kingdom to the

Czech Republic, and after a hearing before the District Court for Prague

6 he was taken into custody under § 384c par. 2 of the Criminal

Procedure Code (in the version in effect through 31 October 2004). On 2

March 2004 the District Court for Prague 6, and subsequently the

Municipal Court in Prague made the decisions contested by the

constitutional complaint, as stated above. The Supreme Court decided on

the appeal on a point of law that the petitioner filed concurrently, in

its decision of 24 February 2005, file no. 11 Tdo 211/2005, and denied

it under § 265i par. 1 let. a) of the Criminal Procedure Code.
 

21.

It is also evident from the file of the District Court of Prague 6 and

from documents sent by the Ministry of Justice that in the period after

the constitutional complaint was filed, the Provincial Court in

Nonthaburi decided, on 6 October 2004, under file no. BKh.Ph. 2988/2547,

that the royal pardon on the occasion of the birthday of the Thai queen

Sirikit reduced the petitioner’s total sentence by one-sixth, to 35

years, 8 months and 18 days. In the execution proceeding under § 455

par. 7 of the Criminal Procedure Code the District Court for Prague 6,

on 19 September 2005, by decision file no. 3 T 127/2003, reduced the

sentence accordingly. The documents requested by the Constitutional

Court from the file of the International Department of the Ministry of

Justice, file no. 1122/05-MO-M, also indicate, that on the occasion of

the 60th anniversary of the ascension to the throne of the Thai king,

Bhumibol Adulyadej (Rama IX), the petitioner received an additional

royal pardon, reducing the sentence by 5 years, 11 months and 13 days.

Thus, under the decision of the Provincial Court of Nonthaburi, file no.

BorKhor.OrPhor. 2726/2549, of 11 August 2006 the total length of the

sentence given to the petitioner by the Thai courts is 29 years, 9

months and 5 days.
 

22. The

Constitutional Court states that the constitutional complaint meets the

requirements provided by the Act on the Constitutional Court, and as

such it reviewed it for the claimed violation of the petitioner’s

rights. It concluded that the constitutional complaint can not be

granted.
 


IV.
Statutory Basis for the Contested Decisions
 

23.

The Constitutional Court must first point out that it is not a body for

the protection of any kind of subjective rights, but a body for the

protection of constitutionality, which follows from its settled case law

(available at www.judikatura.cz), based, in that sense, on Art.

83 of the Constitution, which defines the role of the Constitutional

Court. The Constitutional Court is also not a part of the general court

system, and therefore can not replace them in any phase of proceedings

or conduct itself as another level of them; thus, the Constitutional

Court can not assume to itself the right of review of their activities.
 

24.

In the presently adjudicated matter the Constitutional Court does not

dispute the petitioner’s opinion that the objections raised in the

constitutional complaint can generally be applied against the contested

decisions by the general courts on the execution of a decision by a

foreign court, and against the decision by the Supreme Court of 22 May

2003, file no. 11 Tcu 103/2003. Because under § 384a par. 1 of the

Criminal Procedure Code (in the version in effect through 31 October

2004) it decided to recognize a decision by a foreign court, it would,

in the Constitutional Court’s opinion, be possible to also raise the

possible violation of and individual’s fundamental rights and freedoms

against the decision by the Supreme Court, because in that kind of

proceedings (§ 384a of the Criminal Procedure Code in the version in

effect through 31 October 2004) the Supreme Court must decide with

respect for the constitutional order and the fundamental rights and

freedoms guaranteed in it, and interpret and apply a legal regulation as

much as possible in accordance with the essence of the fundamental

rights and freedoms. At the same time, it is evident from the mechanism

contained in the Criminal Procedure Code (in the version in effect

through 31 October 2004) that a decision to recognize a decision by a

foreign court is a necessary prerequisite for a court decision to

execute the decision of a foreign court (§ 384a of the Criminal

Procedure Code in the version in effect through 31 October 2004), so

these are decisions that relate to each and are related in content.

Thus, the protection of mandatory fundamental rights can not be reduced

in any phase of proceedings under Part Five of the Criminal Procedure

Code (in the version in effect through 31 October 2004).
 

25.

The decision of the District Court of Prague 6 in the matter of

execution of a decision by a foreign court in the petitioner’s matter

was made on the basis of § 384d of the Criminal Procedure Code, which

read as follows:
§ 384d
(1) The relevant court under § 14 to 18

shall rule on the execution of a decision by a foreign court in a public

session by a decision. The convicted person must always have defense

counsel in these proceedings.
(2) A sentence can be served in the

Czech Republic in a greater scope than that permitted by Czech laws, if

an international treaty by which the Czech Republic is bound so

provides.
 

26. Such a treaty

is the Treaty between the Czech Republic and the Thai Kingdom on the

Transfer of Perpetrators and Cooperation in the Execution of Criminal

Judgments, signed on 26 April 2000 in Bangkok and promulgated as no.

107/2002 Coll.I.A. In relation to the objections in the constitutional

complaint, the Constitutional Court considers it suitable to quote these

articles from it:
 

Article 5
Preservation of Judicial Authority
As

regards sentences that are to be served under this treaty, the

transferring state shall keep the exclusive judicial authority

concerning the decisions of its courts that imposed the sentences and

any proceedings to review, adjust, or annul these decisions and

sentences.
 

Article 6
Proceedings When a Sentence is Being Served
(1)

Continuation of serving a sentence shall be governed by the regulations

and procedures of the receiving state, including those that regulate

the conditions for serving a prison sentence, protective measure, or

other measure restricting a person’s liberty, and regulations that

reduce the length of a prison sentence, protective measure or other

measure restricting a person’s liberty by release on one’s own

recognizance, conditional release, pardoning of a sentence.
(2)

Except as provided in paragraph 3 of this article, the receiving state

shall be bound by the nature and length of a sentence as imposed by the

receiving state.
(3) No prison sentence shall be served in the

receiving state so as to lengthen the period of the sentence provided in

the decision of the court of the transferring state. The sentence

served shall correspond as much as possible to the sentence imposed in

the transferring state.
 


V.
Objections against the Formal Requirementsof the Decision
 

27.

In relation to the petitioner’s object that the District Court for

Prague 6 decided inconsistently with the accusation principle, or

completely without a preceding criminal proceeding under the Czech

Criminal Procedure Code, the Constitutional Court must point to the

quite different purpose and particular concept of both the proceedings

on execution of a decision by a foreign court under Part Five of the

Criminal Procedure Code, in the version then in effect, and of criminal

proceedings, all of whose phases take place before domestic bodies

active in criminal proceedings, culminating in a court decision on guilt

and sentencing.
 

28.

Although the execution of foreign decisions is a proceeding under the

Criminal Procedure Code, its purposes, in contrast to the general

definition of the purpose of the Criminal Procedure Code (§ 1 of the

Criminal Procedure Code) is defined essentially differently, and

narrowly. Conceptually, and given the substance of the matter, there can

not be a concentrated (re)fulfillment of all principles governing the

criminal proceedings before the court that rules on the execution of a

foreign court’s decision. Such a concentration would necessarily have to

lead to performance of all steps, beginning with the opening of

criminal prosecution, and ending with a decision on the merits. In that

case there would de facto be a new proceeding, and in that regard there

would be, at a minimum, violation of the principle ne bis in idem.

However, in proceedings on execution of foreign decisions a domestic

court, in practice, continues the proceedings that took place and was

completed with binding effect by a valid and executable decision by the

relevant court in the foreign country whose jurisdiction is recognized

in the matter as regards a verdict on guilt and sentencing; it does not

decide on guilt and does not impose a sentence. Thus, in principle, the

decision of a domestic court is continued in the serving of the sentence

imposed by the decision of the foreign state.
 

29.

In his arguments, the petitioner points to the fact that the decision

of the District Court of Prague 6 included in the verdict a statement

that the petitioner, through the conduct described in the decisions by

courts of the Thai Kingdom, committed, “under the Criminal Code of the

Czech Republic, the crime of non-permitted production and possession of

narcotic and psychotropic substances and poisons under § 187 par. 1, 2

let. a) of the Criminal Code, and, under § 384d par. 2 of the Criminal

Procedure Code, shall serve a prison sentence of forty two years, ten

months and thirteen days.” It is quite clear from the verdict of the

contested decision (as it is contained without details of the facts in

the second paragraph in the reasoning of that judgment) and from the

reasoning, that the District Court for Prague 6 ruled in a proceedings

pursuant to section five, chapter twenty one of the Criminal Procedure

Code, in the version in effect through 31 October 2004, i.e. on

execution of a decision by a foreign court. The verdict of that judgment

refers to § 384d of the Criminal Procedure Code twice, and the District

Court for Prague 6 also expressly states that it is deciding “given an

unchanged verdict on guilt and sentencing” from the further specified

decisions by courts of the Thai Kingdom.
 

30.

Based on reviewing a number of documents in the relevant court file,

the Constitutional Court tends to believe that the petitioner,

represented by a qualified attorney, had not grounds for serious doubts

about the nature and essence of the proceedings conducted before the

District Court in Prague 6. In his appeal, the petitioner already raised

an objection analogous to that in the constitutional complaint. In that

regard, the Municipal Court in Prague, ruling in the appeal

proceedings, stated that “with this verdict the district court (note: in

Prague 6) only confirmed the requirement for the application of the

Treaty between the Czech Republic and the Thai Kingdom on the Transfer

of Perpetrators and Cooperation in the Execution of Criminal Judgments

under Article 3 let. a), consisting particularly of the requirement that

the acts for which a sentence was imposed meet the elements of a crime

under the legal regulations of the receiving state.”
 

31.

The Constitutional Court is of the opinion that the question of meeting

the conditions given by the Treaty between the Czech Republic and the

Thai Kingdom on the Transfer of Perpetrators and Cooperation in the

Execution of Criminal Judgments was already decided with binding effect

by the Supreme Court, in its decision of 22 May 2003, file no. 11 Tcu

103/2003, in which it decided to recognize the abovementioned decisions

by the courts of the Thai Kingdom. In that light, the cited part of the

verdict from the contested judgment of the District Court of Prague 6

appears redundant, although consistent with the cited Supreme Court

decision; in any case it appears to have no effect on the petitioner’s

constitutional rights. The Constitutional Court considers this objection

by the petitioner to be a mere formalistic criticism, which is not

capable of justifying annulment of the contested decisions in the scope

proposed, due to inconsistency with the rights and freedoms guaranteed

by the constitutional order.
 


VI.
 

32.

In the substantive part of the reasoning for the constitutional

complaint, the petitioner concludes that the contested decision violated

his fundamental right to not be tortured or subjected to cruel,

inhuman, or degrading punishment.
 

33.

Thus, it was the task of the Constitutional Court to determine whether

the decision made by the Czech Courts, to execute the Thai judgment,

violated the petitioner’s fundamental rights, in particular in view of

the length of the prison sentence. The following was taken into

consideration.
 


VI.a
Pacta Sunt Servanda
 

34.

The Constitutional Court states that the Czech Republic is bound by

international agreements, as follows from Art. 1 par. 2 of the

Constitution, under which “The Czech Republic shall observe the

obligations by which it is bound under international law.” This

provision reflects, among other things, the general natural law

principle accepted by the international community, pacta sunt servanda,

i.e. agreements should be observed. The degree to which a particular

state respects this principle is not only a contribution to

strengthening its own legal environment where citizen have confidence in

the law, but also a measure of the state’s trustworthiness in the

international community. It indicates a certain predictable conduct by

the subjects of international law, and permits the mutual expectation in

good faith that the commitments arising from international agreements

will be met, within the framework of the international ius cogens. A

certain order arising from international agreements appears to be the

most suitable environment for international cooperation, and within

that, the protection of a state’s interests, be they cultural, economic,

political, or humanitarian. Violation of international commitments

therefore does not lead only to international responsibility under

international law, but also to loss of the confidence of the

international community and to a worsening of cooperation between

states.
 

35. The Czech

Republic has a duty to observe its obligations arising from Art. 6 of

the Treaty between the Czech Republic and the Thai Kingdom on the

Transfer of Perpetrators and Cooperation in the Execution of Criminal

Judgments, published as no. 107/2002 Coll.I.A., regardless of the

domestic legal framework for substantive criminal law, as the petitioner

points out, or, more precisely, regardless of the length of sentence

that the legislature specified for similar conduct under the Czech

Criminal Code. The Czech Republic, as a party to the Treaty, when

signing it was undoubtedly aware of its domestic law and existing

international obligations (e.g. from the Convention for the Protection

of Human Rights and Fundamental Freedoms), and with that awareness it

undertook to fulfill the purpose of the treaty, i.e. to permit

foreigners who were imprisoned as a result of committing a crime to

serve their sentence in their own country. It can be assumed that

failure to fulfill the obligations arising from the Treaty would in

future make it more difficult, if not completely impossible, to

implement the substance of this exchange mechanism in the case of other

Czech citizens convicted and serving their sentence in the Thai Kingdom.
 


VI.b
Conflict of International Obligations

36.

The core of the petitioner’s arguments indicates that although he

himself initiated procedures under the Treaty between the Czech Republic

and the Thai Kingdom on the Transfer of Perpetrators and Cooperation in

the Execution of Criminal Judgments, he de facto considers

comprehensive performance of obligations under § 384d of the Criminal

Procedure Code, in the version in effect through 31 October 2004 (and

also corresponding to Art. 5 of the Treaty, under which the Thai Kingdom

retained exclusive judicial authority in the petitioner’s matter, and,

in particular, Art. 6 par. 2 of the Treaty, concerning the Czech

Republic’s obligation to respect “the legal nature and length of the

sentence”), as the executed Thai decisions provide, to be inconsistent

with other obligations of the Czech Republic, which are based in the

cited provisions of the Convention for the Protection of Human Rights

and Fundamental Freedoms, and similarly in the Charter of Fundamental

Rights and Freedoms. In this case the Constitutional Court on a general

level agrees with the petitioner’s implicit starting point, that in the

event of a conflict between obligations from treaties on the protection

of human rights and obligations from international treaties, the

obligation to protect fundamental rights always has priority. “Respect

for and protection of fundamental human rights are defining elements of a

substantively understood law-based state; therefore, in the event that a

contractual obligation protection a fundamental right and a contractual

obligation that is aimed at endangering that right, the first

obligation must prevail,” as the Constitutional Court concluded, with

reference to Art. 1 par. 1 of the Constitution, in judgment file no. I.

US 752/02 (judgment of 15 April 2003, available at

www.judikatura.cz). Thus, the obligation to protect a fundamental

right understandably limits the interpretation and application of a

domestic legal framework (§ 384d of the Criminal Procedure Code, in the

version in effect through 31 October 2004), even thought it expressly

permits a procedure pursuant to an international treaty. However, in the

presently adjudicated matter the Constitutional Court did not conclude

that a conflict between the Czech Republic’s international law

obligations exists, as explained below.
 


VI.c
Exclusive Judicial Authority of the Thai Court
 

37.

The traditional doctrine for analyzing relations in the area of

international cooperation in criminal matters is based on the principle

of the equality of sovereign states. An accompanying element of this

internal sovereignty is the power to provide or find law, and

subsequently to exercise these findings, generally called jurisdiction.

Fundamental factors limiting state jurisdiction are the principle of

territoriality, aimed at execution of state authority (only) in the

state’s territory and in its borders, as well as the principle of

passive personality, active personality, the principle of protection,

and the principle of universality (with reference to other authors, e.g.

Kloučková, S. – Fenyk, J.: Mezinárodní justiční spolupráce v trestních

věcech [International Judicial Cooperation in Criminal Matters], 2nd

updated and amended edition, Linde Praha, 2005, pp. 15-20, pp. 407-408).

The execution of a judgment from one state in the territory of a

foreign state necessarily leads to conscious and voluntary weakening of

the sovereignty of the state in whose territory the foreign judgment

will be executed. A state’s right to prosecute the crimes committed in

its territory through its own legal order is, in the case of some

serious crimes, a mere authorization, but also an obligation upon the

state, arising from international treaties. The agreement in the

international community as to the seriousness of conduct related to

business with drugs and psychotropic substances was expressed in a

number of international law documents, especially in the United Nations

Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances, signed on 20 December 1988 in Vienna. In accordance with

fundamental sovereign equality and territorial inviolability of states

and the principle of not interfering in the domestic affairs of other

states, the parties to that Treaty undertook to criminally prosecute a

range of actions connected with the manufacture of drugs and

psychotropic substances, and the subsequent trade in and distribution of

them. The parties are also bound to set such sentences for these

crimes, including, e.g., prison sentences, that will take into

consideration the social gravity of these crimes. Decision-making

authority in such criminal matter is supposed to be exercised for

purposes of attaining the maximum effectiveness of enforcement measures

for those crimes, as well as in view of the urgent need to prevent the

commission of such crimes.
 

38.

In Article 5 of the Treaty between the Czech Republic and the Thai

Kingdom on the Transfer of Perpetrators and Cooperation in the Execution

of Criminal Judgments the parties expressly preserved their exclusive

judicial authority concerning the judgments made by their courts, the

sentences imposed by these courts, and any proceedings to review, amend,

or annul these judgments and sentences.
 

39.

In the case of proceedings on the execution of a criminal judgment by a

foreign state, when the exclusive judicial authority of the state

transferring the perpetrator to serve his sentence is expressly

preserved, the judicial body that decides on execution of the judgment

does not have the same position as the judicial body that imposed the

sentence. Because the court of the receiving state decides only on the

(continuation of) serving of the sentence, it fundamentally can not

decide on any objections against the already effective decisions on

guilty and the length of the sentence. Objections against the length of a

prison sentence, with reference to the differing legal orders of the

transferring and receiving state are fundamentally not subject to review

on proceedings under § 384d of the Criminal Procedure Code (in the

version in effect through 31 October 2004).
 


VI.d
Basic International Standards for Transfer of a Person for Execution of a Criminal Judgment
 

40.

In a case of implementing the transfer of a perpetrator for execution

of a judgment by a foreign state to the receiving state, especially in

the case of states from different social-cultural circles, questions

always necessarily arise about the compatibility of the legal orders,

principles controlling criminal punishment, or other social norms. The

states, motivated for a number of reasons by the interest in a

functioning mechanism for mutual transfer of convicted persons for the

execution of criminal judgments – to serve a sentence, as a rule, in the

state where the perpetrator is a citizen – have formulated rules in

international agreements that are to limit the negative effects of that

process on the convicted (transferred) persons. Such negative effects

are primarily any overall worsening of conditions and the substance of

serving a sentence by the convicted person in the receiving state,

compared to the situation in which the convicted person found himself in

the transferring state. Such overall worsening of the convicted

person’s situation can have a number of causes stemming from the

differences between the legal system.
 


VI.e
Cruel, Inhuman Punishment, and Degrading Punishment
 

41.

The Convention for the Protection of Human Rights and Fundamental

Freedoms, in Art. 3, and the Charter of Fundamental Rights and Freedoms,

in Article 7 par. 2, on which the petitioner relies, contain a

prohibition on torture and other forms of cruel, inhuman, and degrading

treatment, with no exceptions (cf. Art. 15 par. 2 of the Convention for

the Protection of Human Rights and Fundamental Freedoms). A similar

prohibition is contained in two other international law documents (The

Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, promulgated as no. 143/1988 Coll.). However,

none of the provisions which the petitioner cites contains a more

detailed definition or delineation of particular conduct or the

relationship between the concepts “torture,” “cruel,” “inhuman,” and

“degrading.”.
 

42. The

Constitutional Court emphasizes that cruelty and inhumanity of treatment

or punishment can not be measured according to criteria given in

advance, but always by thoroughly weighing all circumstances of a case.

However, generally we can assume that inhuman and cruel treatment or

punishment is always a combination of various factors that culminate in

an individual’s intense physical and psychological suffering. However,

merely serving a long prison sentence, if it takes place in an

environment that respects human dignity, is not, in and of itself, cruel

or inhuman treatment, if it is not accompanied by other serious

(objective) inadequacies in the manner in which that sentence is served,

as is standardized in the civilized world, or by the prisoner’s serious

health and psychological problems. However, the petitioner did not

claim any such facts in the constitutional complaint.
 


VI.f
Proportionate Length of the Sentence
 

43.

In the present case, the question raised by the petitioner about the

proportionateness of the length of the prison sentence, or its “gross

disproportionateness,” in relation to the maximum permissible sentence

contained in the Czech Criminal Code for similar conduct, was not, and

could not have been, subject to review by the district court or the

municipal court, nor is it a constitutionally relevant objection in the

proceeding before the Constitutional Court. The petitioner was not

sentenced by a Czech court, but, as a Czech citizen, by a court of the

Thai Kingdom, for an intentional crime that he committed in the

territory of the Thai Kingdom, and under the legal order of the Thai

Kingdom. In our time, even a person without legal education has

sufficient knowledge to realize that different countries have different

legal orders, corresponding to the particular history of the particular

country and its social, economic, and cultural development, i.e.

including possible differences in punishment for crimes. In the case of a

serious crime, on whose elements the international community is in

agreement, the decisive factor is not only the subjective feeling of

“gross disproportionateness” of the sentence being served in comparison

to a reference level that the petitioner himself determines, e.g. by

reference to the sentencing levels contained in the (Czech) criminal

code.
 

44. Insofar as the

petitioner concludes that the punishment is proportionate or

disproportionate based on the will of the Czech legislature expressed in

the law, i.e. when he claims that the Czech legislature expressed its

idea of a proportionate punishment for conduct analogous to the

petitioner’s in § 187 of the Criminal Code (the crime of non-permitted

manufacture and possession of narcotic and psychotropic substances and

poisons), where, according to the petitioner, sentencing standards with a

maximum of ten years would be applied, and thus in comparison with that

provision the sentence being served appears disproportionate, cruel, or

inhuman, the Constitutional Court must equally point to the will of the

legislature expressed in other provisions, where it expressly enacted

in § 384d par. 2 of the Criminal Procedure Code, in the version in

effect through 31 October 2004, the possibility of serving in the Czech

Republic a sentence that is longer than that permitted by Czech law, if

provided by an international treaty. Likewise, the Constitutional Court

believes that the legislature expressed its will at the point when it

expressed consent with the Treaty between the Czech Republic and the

Thai Kingdom on the Transfer of Perpetrators and Cooperation in the

Execution of Criminal Judgments, signed in Bangkok on 26 April 2000,

which contains provisions on the binding nature of the length of a

sentence as imposed by the transferring state (Art. 6 par. 2 of the

Treaty), and also approved the Treaty at a time when it was aware of the

fate of this particular petitioner (see the transcript from the session

of the Chamber of Deputies of the Parliament of the CR of 15 February

2002 concerning Chamber of Deputies Publication no. 1018, available at

www.psp.cz, and the transcript of the session of the Senate of

the Parliament of the CR of 15 March 2002 concerning Senate Publication

no. 219, available at www.senat.cz).
 

45.

Thus, in the case of a decision on execution of a criminal judgment of a

foreign state n the territory of the Czech Republic, in proceedings on

the execution of decisions of foreign courts under § 384d of the

Criminal Procedure Code, in the version in effect through 31 October

2004, we can not conclude that intervention by the public authorities is

constitutionally disproportionate only from comparing the length of the

sentence and the sentencing standards for an analogous crime under the

Czech Criminal Code.
 

46. In

addition, we can point out, over and above the foregoing, that the

arguments of the petitioner, who considers the key question to be what

the priority is in a case of conflict between two different ideas of the

need for a sentence to have an effect on the convicted person, i.e. the

idea of the Czech legislature in the European social-cultural

environment, and the Thai legislature, anchored in different values, is

also weakened when face to fact with the cruel reality of the world-wide

phenomenon of serious crime connected with the manufacture and trade in

drugs, which has not had a significant decline in any of the affect

regions (see United Nations Publication: 2005 World Drug Report, Volume

1: Analysis. Volume 2: Statistics. UN Office on Drugs and Crime, ISBN

92-1-148203-8, Printed in Slovakia, June 2005. or United Nations

Publication: Report of the International Narcotics Control Board for

2005. International Narcotics Control Board, E/INCB/2005/1, ISBN

92-1-148209-7, ISSN 0257-3717, Printed in Austria, January 2006.) In

recent times we can see in European countries as well the trend to

increase punishment for the illegal drug trade (see European Monitoring

Centre for Drugs and Drug Addiction: Annual Report 2005: The State of

the Drug Problem in Europe. Office for Official Publications of the

European Communities, ISBN 92-9168-227-6, Luxembourg, 2005, p. 18). To

what extent this trend will manifest itself in the Czech legal order is a

topic for academic deliberation de lege ferenda.
 


VI.g
Legitimate Aim of the Execution of Thai Criminal Judgments in the Czech Republic
 

47.

It is evident to the Constitutional Court, on the basis of generally

known information from publicly available sources (daily reportage,

reports from international organizations), that the Thai Kingdom, thanks

to its location and geographic conditions, i.e. in the “Golden

Triangle,” has struggled for a long time with a high level of crime

related to the manufacture and trade of drugs. At the same time, it is

known that the petitioner is certainly not the only or first foreigner

convicted in the Thai Kingdom in connection with the illegal drug trade.

Drug smugglers are undoubtedly motivated by financial gain, as the

smuggled drug increases considerably in value with each international

border crossed, and that interest evidently outweighs the fear of

possible strict punishment or the awareness of the destructive effect of

drugs on the mental and physical health and family or social position

of drug users at the end of the distribution chain.
 

48.

In various states the aims of the legislature in the area of criminal

law, including sentences, are always derived from extra-legal

considerations based on political, social and moral principles, although

the execution of criminal justice itself is controlled purely by legal

principles. Therefore, the length of the sentence in and of itself can

not be disproportionate universally, but only in view of the particular

circumstances of the imposition of the sentence, the legal, social, and

cultural context. The sentencing standards for particular conduct set by

the legislature provide an acceptable (possible) sentence; the judicial

authority then, in particular circumstances, imposes the appropriate

sentence. In these bounds, in various legal environments, the

regulatory, protective, preventive, and individually repressive

functions appear in various proportions (cf. e.g. Kalvodová, Věra:

Postavení trestu odnětí svobody v systému trestněprávních sankcí. [The

Position of Prison Sentences in the System of Criminal Law Penalties.]

Masarykova univerzita v Brně [Masaryk University, Brno], 2002, p. 85.).

While the additional function of revenge is not particularly evident in

Czech criminal law theory, Thai doctrine considers it to be one of the

starting points for serious crimes (see Suparp, Utid: The Philosophy of

Criminology when Sentencing in Thai Courts: A Case Study of Intentional,

Negligent and Provoked Criminals. In Online Thailand Law Journal, Issue

2 - Spring, 2005. Http://www.thailawforum.com).
 

49.

The Thai Act on Dangerous Narcotic Substances from the year 2522 in the

Brahman calendar (1979 A.D.) indicates that a person who produced,

imports or exports narcotics will receive a life prison sentence. If the

crime is committed for purposes of distribution, it will be punished by

the death sentence. These provisions undoubtedly seem very strict in

the European context, and in part they allow the death sentence, which

is in sharp conflict with Protocol no. 13 to the Convention for the

Protection of Human Rights and Fundamental Freedoms, concerning repeal

of the death penalty under all circumstances. The petitioner was

originally given a prison sentence of 50 years; after taking into

account the royal pardons, it is 29 years, 9 months and 5 days. This is

undoubtedly a long-term sentence.
 

50.

It is also evident from the petitioner’s statement before the District

Court for Prague 6 that the conditions for serving the sentence in Thai

prisons were completely inadequate, with inadequate hygienic and social

facilities. The material conditions for serving a sentence in Thai

prisons, as described by the petitioner, completely fail to meet the

standards guaranteed in Europe by international law documents and Czech

domestic law. The dismal conditions for serving a jail sentences are

also documented in reports from international organizations

(approximately the same time of the petitioner’s sentence in Thailand is

described in the report Question of the Human Rights of All Persons

Subjected to Any Form of Detention or Imprisonment, in Particular:

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

published by the Commission on Human Rights as file no.

E/CN.4/2002/76/Add1 on 14 March 2002) and a number of publicly available

reports in the print and electronic media, reflecting the individual

experiences of other foreign nationals serving prison sentences in the

territory of the Thai Kingdom. Moreover, the petitioner’s statement

before the District Court for Prague 6 states that when serving his

sentenced he was placed in a cell together with perpetrators of serious

violent crimes, which exposed him to the danger of physical attacks.

This practice too, of placing perpetrators of drugs offenses in cells

together with the perpetrators of other crimes in Thai prisons is

subject to criticism on a number of grounds (see the cited Report from

the Commission on Human Rights, file no. E/CN.4/2002/76/Add1).
 

51.

The Constitutional Court sees the institution of execution of a

criminal judgment of a foreign state, in relation to the citizen of the

country where the judgment is to be executed, as having a different

purpose than that pursued by a Czech court when deciding on guilt and

sentencing, on the basis of all phases of criminal proceedings under the

Criminal Procedure Code. The central principle for a court’s decision

on the execution of a criminal judgment of a foreign state is a change

in the conditions for serving the sentence, which can not result in an

overall worsening of the convicted person’s position. This institution

of execution of the criminal judgment of a foreign state is primarily an

expression of society’s effort to mitigate the negative effects

connected with serving a sentence abroad, sometimes in an environment

that is culturally and socially different from European conditions. The

level of social and economic development in a particular country

generally also has an effect on the quality of conditions in prison

facilities, which are also reflected in the overall effects on the

convicted person of serving a sentence. Serving a sentence in

non-standard or extreme conditions undoubtedly reduces the effectiveness

of the primary functions of a sentence, as they are generally

understood by criminal law scholarship. It is a legitimate aim of the

legislature to protect its own citizens from these negative effects,

going beyond the framework of the effects that belong to a particular

type of punishment based on its own nature. The purpose of steps by the

state that permit the execution of a foreign criminal judgment on its

own territory is thus primarily a humanitarian influence on the

convicted person, whose aim is to remove the excess of negative

influences, at his own request, but not the reduction of a sentence,

especially when preserving the length of a sentence is an express

condition of the transferring state (Art. 6 par. 2 of the Treaty).
 

52.

Serving a prison sentence in an environment that is familiar to the

convicted person, including, for example, an environment where he can

communicate in his native language, undoubtedly performs its function

better, because there is not such a great loss of social and family

ties, which, for example, makes the convicted persons’ integration into

society after release less problematic. Thus, serving a sentence in

one’s native country offers more chances for effective fulfillment of

the function of punishment. Apart from that, it is evident that

execution of a foreign criminal judgment with a prison sentence in one’s

home country also eases the situation for the convicted person’s

relatives, who can thus more easily maintain the necessary contact with

him; easing the work load of consular offices in the transferring state

is also a positive accompanying effect.
 

53.

In his constitutional complaint, the petitioner claims that serving a

prison sentence in the Czech Republic of 42 years, 10 months and 13 days

(however, after taking into account the royal pardons it is 29 years, 9

months and 5 days), is in and of itself a cruel and inhuman punishment.

However, in view of the relevant case law of the European Court of

Human Rights, the Constitutional Court is of the opinion that the point

of the right not to be tortured or subjected to cruel, inhuman or

degrading treatment is protection of human dignity and an individual’s

physical and mental integrity. A cruel and inhuman punishment is one

that in its essence, purpose, or intensity causes intolerable physical

pain or serious psychological suffering. However, the Constitutional

Court does not believe that serving a long prison sentence, in light of

the petitioner’s arguments, in and of itself causes such suffering as

would be the result of cruel and inhuman treatment. In view of the

legitimate purpose of the legal framework permitting serving sentences

from Thai court judgments of a greater length than that permitted by the

Czech Criminal Code, which was primarily to mitigate the negative

effect of the conditions in Thai prisons on Czech citizens convicted in

Thailand, and regarding the petitioner’s own will, which he expressed

when he initiated his transfer to serve the criminal judgment in the

territory of the Czech Republic, the contested decisions of the general

courts do not appear to be disproportionate to the petitioner’s

interests protected by constitutional rights.
 


VI.h
Consideration of the Conditions for Serving the Sentence in Czech Prisons
 

54.

Although the petitioner does not object in more detail in the

constitutional complaint, the Constitutional Court also weighed whether

serving a long prison sentence could be considered cruel and inhuman in

view of the general conditions in Czech prisons, as guaranteed by Act

no. 169/1999 Coll., on Serving Prison Sentences and Amending Certain

Related Acts, as amended by later regulations. That states, among other

things (§ 2), that a sentence can be served only in a manner that

respects the personal dignity of the convicted person and limits the

damaging effects of being deprived of liberty; however, it may not

endanger the need to protect society. Convicted persons serving

sentences must be treated in a dignified manner so as to preserve their

health, and if the length of the prison sentence permits, to support

such positions and skills as will help the convicted persons return to

society and enable them, after their release, to live an independent

life in accordance with the law. The Czech legal framework for serving

prison sentences is generally judged positively, and international

organizations do not raise such objections against Czech prison

practices as would in any way affect the petitioner’s situation (see

Conclusions and Recommendations of the Committee against Torture: Czech

Republic. 03/06/2004. CAT/C/CR/32/2.). Even the consideration covering

the standards in Czech prisons does not lead the Constitutional Court to

conclude that with a long prison sentence there might be substantial

grounds to believe that such a sentence would in and of itself lead to

disproportionate physical or mental suffering, or cruel or degrading

treatment.
 


VI.ch
The Reality of Thai Royal Pardons
 

55.

Moreover, as regards the total length of the prison sentence that the

petitioner is serving, the Constitutional Court could not overlook the

fact that, in accordance with Art. 5 a Art. 6 par. 4 of the Treaty, the

Thai authorities can reduce, lighten, or end the petitioner’s sentence,

and the Czech authorities must respect and implement that decision. In

the Thai Kingdom, according to traditional doctrine, the king is

considered to be the source of power in the state. Court judgments are

announced in the name of the king. In that domestic legal order, royal

pardons are widely issued on the basis of a petition, or, for example,

on the occasion of important holidays and anniversaries in the royal

family) (Individual Royal Pardon, or Collective Royal Pardon). It is

evident from the documents in the file of the District Court of Prague 6

file no. 3 T 127/2003 that the petitioner’s sentence was reduced to 42

years, 10 months and 13 days, by a Thai court decision of 12 July 1996,

on the basis of a royal pardon. In the period after the constitutional

complaint was filed, the Provincial Court of Nonthaburi decided, on 6

October 2004, in file no. BKh.Ph. 2988/2547, that the petitioner’s total

sentence was reduced by a royal pardon on the occasion of the birthday

of the Thai queen Sirikit, by one sixths, to 35 years, 8 months and 18

days. On the occasion of the 60th anniversary of the ascension to the

throne of the Thai king, Bhumibol Adulyadej (Rama IX), the petitioner

received another royal pardon, shortening his sentence by 5 years, 11

months and 13 days, to a total of 29 years, 9 months and 5 days.
 

56.

In the Thai justice system a royal pardon is not an institution that

exists in the legal system only formally, or is used only in exceptional

cases, but it is applied in order to achieve a number of various aims,

which include, apart from correcting judicial error in individual cases,

guarantees of the equal rights of all convicted persons, the effort to

maintain stain unity, providing new chances to convicted persons,

emphasizing events of national importance, and maintaining international

relationships (Kalyanasuta, K. – Suriyawong, A.: The Criminal Justice

System and Community-based Treatment of Offenders in Thailand. Published

in: Annual Report for 2002 and Resource Material Series No. 61, Asia

and Far East Institute for the Prevention of Crime and the Treatment of

Offenders (UNAFEI), Tokyo, Japan, September 2003, p. 281. Available at

www.unafei.or.jp). The real, although in an individual case

uncertain, effect of the institution of a Thai royal pardon seems to be

confirmed by statistics: royal pardons granted in 1977-1999 each applied

to tens of thousands of convicted persons, who were released or had

their sentences reduced (ibid., gable on p. 282). Obiter dictum it is

possible, taking into account the fact that the petitioner was

originally given a prison sentence of fifty years, reduced three times

by royal pardons, to note that it is thus impossible to speak of the

total length of the petitioner’s sentence with absolute certainty.
 


VII.
Decision of the Constitutional Court
 

57.

The Constitutional Court reviewed the contested decisions of the

general courts in terms of constitutionality, and concluded that they

did not step out of the bounds of the constitutional order. The source

of the petitioner’s arguments is the length of the sentence, or

disproportionateness of the sentence imposed on him by the courts of the

Thai Kingdom. He criticizes the general courts for accepting, in their

decisions (recognition and execution of the judgment of a foreign state)

a sentence whose scope is beyond that of sentences imposed for a

similar offense in the Czech Republic. He considers the recognition and

execution of such a sentence to be unconstitutional, cruel and inhuman

treatment. The Constitutional Court emphasizes that in the adjudicated

matter it is not entitled, with reference to the international treaty,

to interfere in the jurisdiction of the Thai courts. It can not be

overlooked that the petitioner, although now in the territory of the

Czech Republic, is still, as regards guilty an sentencing, in the

exclusive judicial jurisdiction of the Thai authorities under Art. 5 of

the Treaty.
 

58. Thus, the

Czech authorities can not decide on objections aimed essentially against

the Thai conviction decisions, because the Czech Republic would then be

in conflict not only with the principle pacta sunt servanda, but also

with the principle of good faith, which are the foundation stone of

international treaty law, and their importance is strengthened by the

fact that they have been incorporated in the preamble of the UN Charter.

The principle of good faith is a fundamental rule of interpretation in

the analysis of the texts of international obligations. They must be

interpreted in good faith, taking into account the entire context of the

treaty, and in light of the aim and purpose for which it was concluded.

The aim and purpose of the treaty concluded between the Thai Kingdom

and the Czech Republic was to bring the petitioner, at his request, to

his home environment, closer to his family and friends, and enable him

to serve the remainder of his sentence at home, in his native land.

Therefore, in that light, the petitioner’s request, that the

Constitutional Court, due to formal error, which is far from reaching a

constitutional level, annul the decisions of the Czech general courts

and release the petitioner, will not stand. If the Constitutional Court

granted the petitioner’s request, it would violate not only Art. 1 par. 1

and par. 2 of the Constitution of the Czech Republic, but also its

trustworthiness in international relations.
 

59.

The Constitutional Court is convinced that these conclusions will

stand, not only in the context of other provisions contained in the

constitutional order of the CR, in particular the Charter, but also in

the context of other international obligations, in particular of the

Convention for the Protection of Human Rights and Fundamental Freedoms,

by which it is bound.
 

60. In

view of the foregoing the Constitutional Court did not incline toward

the petitioner’s opinion that the decisions by the general courts in the

execution proceedings violated his right to a fair trial or his right

not to be subject to cruel, inhuman or degrading punishment. After

thoroughly considering the purpose of the applied legal framework,

permitting a sentence to be served in the Czech Republic whose scope

exceeds that of sentences for similar offences, and after comparing the

specific conditions for serving a sentences in the Thai Kingdom and in

the Czech Republic, the Constitutional Court saw no grounds to annul the

contested decisions.
 

61.

Therefore, the Constitutional Court denied the constitutional complaint

in its entirety under § 82 par. 1 of the Act on the Constitutional

Court.

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

 

Brno, 21 February 2007