2008/05/20 - Pl. ÚS 12/07: Travel Document from a Criminally Prosecuted Person

20 May 2008

HEADNOTES

In

the present matter the contested provision of the Act on Travel

Documents did not provide (nor does the now valid provision of the Act

provide) the administrative body deciding on the revocation of a travel

document at the request of a body acting in criminal proceedings any

opportunity at all for discretion in the third condition, because if the

statutory grounds were met – a request from the body acting in criminal

proceedings that was conducting criminal prosecution for an intentional

crime against the person in question – the administrative body had no

room at all for discretion as to the necessity or proportionality of

that measure, and had to revoke the travel document. From a

constitutional law viewpoint it is not key (although it is also not

insignificant – see par. 33. below), whether the authority to weigh the

unavoidability or necessity of using a means that restricts an

individual’s fundamental right or freedom in the interest or protecting

another constitutionally protected value is entrusted to one or another

public body (a passport administration body or a body acting in criminal

proceedings); the decisive thing is that its decision cannot be removed

from effective judicial review. The contested decision [sic] of the Act

on Travel Documents did not provide any discretion to the

administrative body, which, as a result, considerably limited the

possibility of its review by an administrative court. In other words,

the administrative court could not question the decision of the passport

administration body in the part where it refused to consider objections

that did not fall under the contested statutory provision, because if

the passport administration body had acted otherwise, it would have been

in conflict with that norm. Thus, the Constitutional Court concludes

that, in the contested provision, the legislature restricted the right

of a travel document holder to seek protection of his rights before a

court or other body in such a manner that it completely ruled out the

constitutionally guaranteed evaluation by a court of the interference in

rights in terms of the unavoidability or necessity of restricting

freedom of movement.

In

brief, the Constitutional Court does not deny that the refusal to issue

or revocation of a travel document specified by law and supported by a

justified public interest (legitimate aim) can be an unavoidable

(necessary) measure; however, a decision about such a measure cannot be

removed from true judicial protection and replaced by merely illusory

judicial protection.

It

is not the Constitutional Court’s job to describe for the legislature

in detail what kind of legal regulation it is to adopt regarding the

present issue. However, before adopting it, it will be up to the

legislature to weigh, thoroughly and consistently, whether it is

acceptable for administrative offices and administrative courts to

decide on the issuance or revocation of a travel document. By its

consequences this is an institution for securing a person; the decision

to use it would be better made by the public authorities conducting the

proceedings in which that means of securing a person is to be used.

Review of such a decision by a court in the same proceeding carries

several undoubted advantages. They are not just the ability to act when

necessary and greater knowledge of the reasons why the relevant public

body considered it necessary to take this step, but primarily – and this

also includes a possible constitutional law aspect – removing

undesirable combining blending of various trials conducted by various

bodies. The Senate also pointed to this in its brief concerning the

petition. Therefore, declaring the contested provision of the Act on

Travel Documents unconstitutional, the Constitutional Court does not,

under any circumstances, intend to agree with the opinion that wide

discretion for an administrative office, supplemented by judicial review

with full jurisdiction by the administrative courts, is the route that

the legislature should or must take.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

plenum of the Constitutional Court, consisting of the Chairman, Pavel

Rychetský, and Judges Stanislav Balík, František Duchoň, Vlasta

Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka,

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav

Výborný, Eliška Wagnerová and Michaela Židlická decided on 20 May 2008

on a petition from the Supreme Administrative Court asking it to declare

unconstitutional § 23 let. b) of Act no. 329/1999 Coll., on Travel

Documents and Amending Act no. 283/1991 Coll., on the Police of the

Czech Republic, as amended by Act no. 217/2002 Coll. and by Act no.

320/2002 Coll., with the participation of 1) the Chamber of Deputies of

the Parliament of the CR, and 2) the Senate of the Parliament of the CR,

as parties to the proceeding, with the consent of the parties to the

proceeding without a hearing, as follows:


The

provision of § 23 let. b) of Act no. 329/1999 Coll., on Travel

Documents and Amending Act no. 283/1991 Coll., on the Police of the

Czech Republic, as amended by Act no. 217/2002 Coll. and by Act no.

320/2002 Coll., was inconsistent with Art. 2 par. 2, Art. 4 par. 1, Art.

14 par. 1 and Art. 36 par. 2 of the Charter of Fundamental Rights and

Freedoms and Art. 2 of Protocol no. 4 to the Convention for the

Protection of Human Rights and Fundamental Freedoms.
 


REASONING
 

1.

On 25 June 2007 the Constitutional Court received a petition from the

Supreme Administrative Court asking it to declare unconstitutional § 23

let. b) of Act no. 329/1999 Coll., on Travel Documents and Amending Act

no. 283/1991 Coll., on the Police of the Czech Republic, as amended by

Act no. 217/2002 Coll. and by Act no. 320/2002 Coll. (the “Act on Travel

Documents, in the version in effect until 31 December 2004”). The

petitioner did so after, in proceedings on a cassation complaint from

Jan Charvát (the “complainant”), conducted as file no. 2 As 52/2004, it

concluded that the contested provision, which is to be applied in

resolving the matter, is inconsistent with Art. 14 par. 2 and 3 and Art.

36 par. 2 of the Charter of Fundamental Rights and Freedoms (the

“Charter”) and that this inconsistency cannot be overcome by a

constitutional interpretation.
 


I.
Circumstances of the Case
 

2.

In the matter in question, the Municipal Office of Slaný, by decision

of 25 March 2003 ref. no. CP 02/03, granted the application of the

police counsel of the Police Presidium of the Czech Republic, Office of

Criminal Police and Investigation, Department of Economic Crimes, Prague

9, and revoked passports no. 330 33 205 and no. 330 33 206 from the

complainant, who was being criminally prosecuted for attempted

curtailment of taxes, fees, and similar mandatory dues under § 8 par. 1,

§ 148 par. 1, 4 of the Criminal Code and for the crime of participation

in a criminal conspiracy under § 163a par. 1 of the Criminal Code. In

its decision of 22 April 2003 ref. no. Vnitř. 3055/03, the Regional

Office of the Central Czech Region denied the complainant’s appeal and

confirmed the decision of the first-level administrative body. The

administrative bodies did not accept the complainant’s defense that

criminal prosecution of him was unjustified and revoking the passports

was self-serving, and referred to § 23 of the Act on Travel Documents,

in the version then in effect, which contained an exhaustive list of

grounds which, if met, require the administrative body in administrative

proceedings to revoke a travel document – in the case of let. b) of

that provision, if it receives an application from a body acting in

criminal proceedings to revoke a travel document from a citizen who is

being prosecuted for an intentional crime. In its decision of 5 May 2004

ref. no. 7 Ca 138/2003-30, the Municipal Court in Prague denied the

complainant’s complaint for lack of grounds, with reference to

administrative bodies being bound by the legal framework in which an

administrative bodies does not have an opportunity for discretion, and

must revoke the travel document; evidence is presented only as to

whether an application to revoke a travel document was filed, whether it

was filed by a body acting in criminal proceedings, and whether that

body is prosecuting the citizen whose travel document is to be revoked

for an intentional crime. Presentation of evidence on other matters is

not legally relevant, and therefore it considered unimportant the

complainant’s subjective attitude regarding travel abroad, or an

objection that there were no grounds to impose custody on the grounds of

§ 67 let. a) of the Criminal Code. In the cassation complaint the

complainant objected that the administrative court’s decision was

illegal, and pointed to the fact that the administrative bodies did not

conduct any presentation of evidence on the need to revoke his travel

document, nor did they take into consideration the position of the

District Court for Prague-East, which did not grant the application from

the body acting in criminal proceedings to take the complainant into

custody. If there had been proper presentation of evidence the

administrative body would have had to find that revoking travel

documents more than half a year after beginning criminal prosecution was

unjustified, because the complainant, whose business involves frequent

trips abroad, was repeatedly outside the Czech Republic, which he

informed the police counsel about, and the police counsel did not forbid

him to travel; likewise, he was not “blocked” from crossing the border.

The complainant described as incorrect the administrative bodies’

application and interpretation of the abovementioned provision of the

Act on Travel Documents.
 


II.
Petitioner’s Arguments
 

3.

The Supreme Administrative Court suspended proceedings in the matter

and submitted to the Constitutional Court a petition to declare the

cited provision unconstitutional, because in its opinion the fact that

an administrative body is bound by the submitted application without

expressly being given any opportunity whatsoever for discretion

regarding the grounds, proportionality, and necessity for such serious

interference as revocation of travel documents, and thus restriction of

freedom of movement, is inconsistent with the constitutional order of

the Czech Republic. The petitioner acknowledged that the application to

revoke a travel document and the measure taken is to serve to secure the

purpose of criminal prosecution and that the body acting in criminal

prosecution can best evaluate the need for such a restriction in

relation to a particular crime and a particular person. However, if the

administrative body that makes a substantive decision is denied the

opportunity to evaluate the police body’s deliberations, review evidence

on the conditions for revoking a travel document (other than verifying

the existence of statutory grounds for filing the application), weight

the arguments of the party to the proceeding, and on that basis reach

its own conclusion (which may differ from the application), an

unacceptable situation results, because no phase of that proceedings

leaves room for protecting the rights of the party to the proceedings,

because that framework considerably limits judicial review to mere

evaluation of the existence of an application and of criminal

proceedings. Thus, the administrative body and administrative court can

only review whether one of the relatively widely defined, only loosely

corresponding with Art. 14 par. 3 of the Charter, grounds under § 23 of

the Act on Travel Documents exists; if it does, the administrative body

must always revoke the travel document or refuse to issue it, without

being able to consider whether such interference in the particular

citizen’s rights is unavoidable for the protection of the rights of

third parties. Only the applying party would perform that evaluation,

but informally, without any sort of procedure or guarantees of review,

which is a procedure that can hardly be considered to be a fair trial

under Art. 6 par. 1 of the Convention for the Protection of Human Rights

and Fundamental Freedoms (the “Convention”); moreover, this situation

does not ensure effective judicial review of a decision by a public

administration body on a fundamental right under Art. 36 par. 2 of the

Charter.
 

4. The Supreme

Administrative Court also considered whether the provision in question

can be interpreted in a constitutional manner, and concluded that it

cannot. This comes into consideration only where a particular provision

of a legal regulation permits various interpretations, where one is in

accordance with constitutional norms, and others are inconsistent with

them. In this case, the interpretation of the contested provision would

have had to be that the administrative body is required, in addition to

the conditions expressly provided by statute, whether, in a particular

case, the conditions fro limiting a fundamental right enshrined in Art.

14 of the Charter were met, i.e., it would have to ensure a fair trial

that met the fundamental principles of administrative proceedings,

determine the facts of the matter, and address these facts in the

grounds for its decision. However, that interpretation would be in

direct conflict with the statutory text. The impossibility of that

interpretation is also supported by the explanatory report to the Act on

Travel Documents (Chamber of Deputies publication 272), from which it

is clear that the legislature’s intent was to rule out discretionary

authority for an administrative body. The Supreme Administrative Court

added that it is aware that the Constitutional Court considered this

issue in its resolution of 26 March 2003 file no. I.ÚS 52/03, where it

denied a constitutional complaint filed in a similar case, on the

grounds that the provision transferred discretion from the

administrative body to bodies acting in criminal proceedings. The

petitioner commented that the deliberation conducted by a body acting in

criminal proceedings, i.e. deliberation about whether to file an

application to revoke a travel document, is completely exempt from

judicial review; the application is not a decision by an administrative

body, nor is there an action by an administrative body that is

reviewable under § 82 et seq. of the Administrative Procedure Code.
 


III.
Briefs from the Parties to the Proceeding
 

5.

The Chamber of Deputies of the Parliament of the Czech Republic in its

brief on the petition, of 14 August 2007, signed by the Chairman Ing.

Miloslav Vlček, recapitulated the petition’s key arguments and disagreed

with them. The Chairman of the Chamber of Deputies stated that the

wording of the contested provision was conceived so that, in accordance

with Art. 14 par. 3 of the Charter, freedom of movement and residence

would be limited in the exhaustively listed grounds, and the

consideration as to whether the limitation was necessary was left to the

body that applies the revocation of (or refusal to issue) a passport,

which, in the case of the contested provision, is the body acting in

criminal proceedings. The logical result of that regulation was ruling

out the discretionary authority of the administrative body that decides

on the action. The resulting limitation of the rights of parties to

administrative proceedings was, in accordance with Art. 14 par. 3 of the

Charter, considered to be unavoidable in order to maintain public

order.
 

6. The Chamber of

Deputies stated that it discussed the Act in its 3rd term of office, and

during discussion in the Committee for Public Administration, Regional

Development and the Environment, and in the second reading, no amending

proposal to § 23 was submitted. The bill was approved on 21 October 1999

and passed to the Senate of the Parliament of the CR. The senate

discussed the bill, and on 12 November 1999 it returned it to the

Chamber of Deputies with amending proposals that did not affect § 23;

the Chamber of Deputies voted on the Senate’s version on 30 November

1999, and approved it by the required majority of all deputies. The

President of the Republic signed the Act on 14 December 1999, and on 27

December 1999 it was promulgated in the Collection of Laws as no.

329/1999 Coll. The Act was thus adopted in the prescribed manner, and

the Chairman of the Chamber of Deputies stated that the legislative

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

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

Czech Republic. The Chamber of Deputies left the decision on whether the

contested provision is constitutional to the Constitutional Court.
 

7.

The Senate of the Parliament of the Czech Republic, in its brief on the

petition, of 31 July 2007, signed by the Chairman of the Senate, MUDr.

Přemysl Sobotka, stated that the Act was discussed in committees, and at

their recommendation it was approved, with amending proposals, on 12

November 1999 by a significant majority; out of 62 Senators present, 56

voted in favor of the bill, and 6 abstained from voting. The adopted

amending proposals were not directed at the contested provision, but

during discussion in the committee the representatives of the proponent

of the bill were criticized because the government did not take the

opportunity to change the previous construction of the legal regulation

under which an administrative body decides to revoke a travel document

upon the application of various state bodies on grounds listed

materially non-organically in the Act on Travel Documents. It was stated

in the committees that the grounds for non-issuance or revocation of a

travel document should be written in those legal regulations in which

that instrument would be connected to regulation of relationships for

which its purpose intends it (which it serves). The authority to decide

on non-issuance or revocation of a travel document should belong to the

state bodies whose jurisdiction is defined for these relationships by

law, because such a legal framework also creates a regime of appropriate

guarantees that a matter will be properly substantively handled,

including the standard rights of a party to a proceeding and the

possibility of subsequent review. For example, the Civil Procedure Code

could regulate a court’s authority to decide to confiscate a travel

document in cases of an order to execute a court decision due to failure

to meet financial obligations, the Criminal Procedure Code could

address the authority of bodies acting in criminal proceedings to

confiscate a travel document within the framework for securing persons

and things when prosecuting a citizen for a particular crime, etc. A

decision by a body acting in criminal proceedings could be contested by a

complaint under the rules of a criminal trial, similarly as with, e.g.,

custody, or other actions to secure a person or thing. However, the

Criminal Procedure Code does not establish the authority of bodies

acting in criminal proceedings regarding making an application to a

passport issuing administrative body.
 

8.

Apart from the description of the discussion of the issue in the

committees, the Senate also addressed some related circumstances, and

presented aspects that the Constitutional Court might take into account

when considering whether the contested provision was constitutional. It

pointed out that the legal framework for non-issuance or revocation of

travel documents on grounds arising from various areas of regulation of

social relationships has its historical origins. In the beginnings of

passport law, the aim was primarily an instrument for politically

motivated restriction on travel out of the country, which corresponded

to its being established in police law, and decision making within the

arbitrary will of the state; with the development of other publicly

legitimate needs for restricting travel out of the country other grounds

were simply added to this legislative base. The Senate attached an

overview of the existing framework of passport regulations in statute

from 1928, 1948 and 1965, where especially the last two emphasized

passport restrictions on the grounds of state security, and made

absolute the state’s arbitrary will in deciding to deny someone a

passport. The Senate emphasized that it was only the Act on Travel

Documents from 1991 (no. 216/1991 Coll.) that was substantially

different from its predecessors. It respected the constitutionally

established assumption that a citizen has the right to freely leave the

territory of the state, and narrowed the cases where it was possible to

refuse to issue a travel document to cases that were legally defined.

Political grounds for denying the right to travel out of the country

became a thing of the past, although the legislative construction of the

Act on Travel Documents was preserved. Because the form was preserved,

it is still the passport administration body that decides to deny a

travel document, rather than the bodies in whose jurisdiction the need

to restrict a citizen’s travel arises in order to prevent the marring of

important decisions in the public interest. The Senate stated that the

valid Act on Travel Documents, no. 329/1999 Coll., also accentuates the

poor organization of the regulations, because it newly declares that a

passport administration body’s decision making in a matter of denying a

travel document is bound by the “application” from the materially

appropriate judicial bodies. Thus, with an absurd detour, the legal

framework follows a model where it is unthinkable that a passport

administrative body decides, even if only formally, on an “application”

(but in fact a decision) of a court [in the case of let. a) of the cited

provision – note by the Constitutional Court].
 

9.

The Senate conditionally agreed with the petitioner that the former §

23 let. b) of the Act on Travel Documents, or the currently valid

(virtually identical in content) § 23 let. c), makes impossible the

material review of cases of non-issuance or revocation of travel

documents, and in a certain respect this limits the right of the

affected person to judicial protection from interference in their right

to travel freely out of the state, which is one of the fundamental

rights and freedoms. The true essence of non-issuance or revocation of a

travel document is to prevent cases where criminal prosecution is

hindered or marred, a function that organically belongs to the purpose

of criminal proceedings. The means and intensity of the legally

recognized defense of a prosecuted person should legislatively

correspond to this essence. According to the Senate, this problem could

be solved, for example, in the manner that was indicated in the debate

in Senate committees, i.e. a entrusting consideration of the need to

limit freedom of movement and residence (traveling out of the country)

for reasons of public order and protection of the rights of others under

Art. 14 par. 3 of the Charter to bodies acting in criminal proceedings.

In the future, the form of a possible act to secure a person or thing

that limited traveling out of the country could also be considered,

because the condition that a citizen must hold a travel document in

order to travel out of the country is becoming irrelevant, at least for

trips to European Union member states.
 

10.

The Senate pointed out that in this matter it already stated its

position on the petitioner’s petition under file no. Pl.ÚS 48/05, in

which the petitioner sought the annulment of the now valid § 23 let. c)

of the Act on Travel Documents, as amended by Act no. 559/2004 Coll. The

substantive change of § 23 let. b) of the cited Act valid until 31

December 2004 was only that the condition for non-issuance or revocation

of a travel document was not to be criminal prosecution for any

intentional crime, but for a crime for which a prison sentence of at

least three years can be imposed. In the conclusion of its brief, the

Senate stated that it discussed the bill of the Act on Travel Documents

within its constitutionally specified competence and in a

constitutionally specified manner, and acted on the bill with the

majority believing that the bill was consistent with the constitutional

order of the Czech Republic and the state’s international obligations.

It left the decision on whether the contested provision is

constitutional to the Constitutional Court.
 


IV.
Waiver of Hearing
 

11.

Under § 44 par. 2 of Act no. 182/1993 Coll., on the Constitutional

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

Court”), the Constitutional Court may, with the consent of the parties,

waive a hearing, if it cannot be expected to further clarify the matter.

In view of the fact that both the petitioner, in its petition, and the

parties to the proceedings, in the brief from the Chairman of the

Chamber of Deputies of the Parliament of the Czech Republic and the

Chairman of the Senate of the Parliament of the Czech Republic agreed to

waive a hearing, and in view of the fact that the Constitutional Court

believed that a hearing could not be expected to further clarify the

matter, a hearing in the matter was waived.
 


V.
Text of the Contested Legal Regulation
 

12.

The provision of § 23 of the Act on Travel Documents in the version

valid and in effect until 31 December 2004, and within it let. b)

applied at the time the relevant public bodies made their decisions,

reads:
Issuance of a travel document shall be denied, or an issued travel document shall be revoked, at the request
a)  

 of a court, to/from a citizen against whom the execution of a court

decision has been ordered for failure to meet support obligations or

financial obligations,
b)    of a body acting in criminal proceedings, to/from a citizen who is being prosecuted for an intentional crime, or
c)  

 of a body that is executing a decision or arranging its execution

under a special legal regulation, to/from a citizen who did not serve a

prison sentence for an intentional crime, if the sentence was not waived

or the statute of limitations has not run on serving the sentence.
 


VI.
Petitioner’s Active Standing and Evaluation of Conditions for the Proceeding
 

13.

The petitioner already turned to the Constitutional Court in the same

legal matter in October 2005, when it filed a petition to annul § 23

let. c) of the Act on Travel Documents as amended by Act no. 559/2004

Coll. (footnote no.1). The Constitutional Court denied the petition

under § 43 par. 1 let. c) a par. 2 let. b) of the Act on the

Constitutional Court, by resolution of 25 April 2007 file no. Pl.ÚS

48/05, because the petitioner proposed annulling a provision that could

not be applied in resolving the matter [before it]. The Constitutional

Court pointed to the fact that Act no. 559/2004 Coll. annulled the

original § 23 and replaced it with a new provision, so § 23 let. c) of

the Act on Travel Documents as amended by the cited amendment, effective

as of 1 January 2005 could not have been applied in the petitioner’s

matter, because at the time that the public authorities were making

their decisions, it was not a valid and effective component of the legal

order. Nothing about this conclusion was changed by the petitioner’s

claim that after amendment of the Act on Travel Documents the text of

the previous § 23 let. b) was contained in let. c). The Constitutional

Court pointed out the need to distinguish a situation where a statutory

provision is not changed from a situation where a contested provision

was annulled and replaced by a new provision (or legal regulation), even

if their wording is identical, because the normative existence

(validity) of a legal regulation is formed by unity of the

norm-creator’s will and its expression (publication of the expression),

and therefore, two legal regulations identical in content, one following

the other in time, do not necessarily have normative identity (identity

of validity) [cf. resolution file no. Pl.ÚS 20/99, Coll. of Decisions

vol. 22, p. 349 (351), judgment file no. Pl.ÚS 15/01, promulgated as no.

424/2001 Coll., Coll. of Decisions vol. 24, p. 201 (223)]. Moreover,

both provisions, although they agree that issuance of a travel document

shall be denied or an issued travel document shall be revoked at the

request of a body acting in criminal proceedings, demonstrate a material

difference in the fact that, under the previous version of § 23 let.

b), this happens vis-à-vis a citizen who is being prosecuted for an

intentional crime, whereas under the present version of § 23 let. c)

this affects a citizen who is being prosecuted for a crime (including

one of negligence) for which a prison sentence of at least three years

can be imposed.
 

14. With the

present petition the petitioner met the conditions in Art. 95 par. 2 of

the Constitution, because it seeks a declaration of unconstitutionality

of § 23 let. b) of the Act on Travel Documents, in the version valid

and in effect until 31 December 2004, which was applied in the matter in

question, and in the proceedings on the cassation complaint the

petitioner will review whether it was applied correctly.
 

15.

Under § 67 par. 1 of the Act on the Constitutional Court there are

grounds to to stop proceedings if a statute, another legal regulation,

or the individual provisions that are proposed to be annulled cease to

be valid before the proceedings before the Constitutional Court end, but

as the Constitutional Court already stated in its judgment of 6

February 2007 file no. Pl.ÚS 38/06 (available at nalus.usoud.cz),

under the legal opinion in judgment file no. Pl. ÚS 33/2000 (Coll. of

Decisions, vol. 21, p. 29), which is also referred to in the reasoning

of judgment file no. Pl. ÚS 42/03 (no. 280/2006 Coll., Coll. of

Decisions, vol. 40, p. 703), if a judge of a general court concludes

that a statute which is to be applied in resolving a matter – i.e., not

only valid at that time, but also no longer valid but still applicable –

is inconsistent with a constitutional law, it is required to sumit the

matter to the Constitutional Court. The Constitutional Court considers a

refusal to provide help to the general court by its decision on the

constitutionality or unconstitutionality of an applicable statue to

create an unsolvable situation of an artificial legal vacuum; it would

then classify a decision by the general court itself on the

unconstitutionality of the applied provisions as a procedure in conflict

with the Constitution, inconsistent with the principle of a

concentrated constitutional judiciary. In judgment file no. Pl.ÚS 38/06

the Constitutional Court considered the question of whether a procedure

under Art. 95 par. 2 of the Constitution, which opens room for

evaluating previous legal actions (or legal events) by a later, but

constitutional legal framework, showing signs of true retroactivity, is

consistent with the principle of a law-based state (Art. 1 par. 1 of the

Constitution); it distinguished cases of vertical and horizontal

application of fundamental rights and formulated a conclusion that true

retroactivity, in a case of a declaration that an already annulled

statue was unconstitutional and evaluation of previous factual actions

by a constitutional legal framework with effects ex tunc on the part of

the public authorities does not establish violation of the principle of

protecting citizens’ confidence in the law, or interference in legal

certainty or acquired rights. Thus,  under Art. 95 par. 2 of the

Constitution, the Constitutional Court is required to review on the

merits whether the contested provision is constitutional, even though it

was already annulled, provided that the addressee of the claimed

grounds for unconstitutionality is the public authorities. That is so in

the present matter, and therefore, in the context of the cited legal

opinions stated in the abovementioned judgments, the conditions for

reviewing the submitted petition on the merits have been met. In view of

§ 35 par. 1 of the Act on the Constitutional Court, the Constitutional

Court’s previous resolution, file no. Pl.ÚS 48/05, does not create the

obstacle of rei iudicatae.
 


VII.
Case Law of the Constitutional Court on the Revocation of a Travel Document of a Citizen of the Czech Republic
 

16.

Until the adoption of Act no. 329/1999 Coll., § 17 let. b) of Act no.

216/1991 Coll. of the Act on Travel Documents, was in effect, under

which the issuance of a travel document could be denied to, or an issued

travel document could be revoked from, a citizen who was being

criminally prosecuted. The legal framework at that time did not provide

any other criteria or conditions that had to be met in order to

establish the discretionary authority of administrative bodies, and in

terms of the law it was sufficient if the administrative body verified

in a relevant manner that a particular person was being criminally

prosecuted, for example, through information from the investigator who

led the prosecution. The Constitutional Court rejected constitutional

complaints contesting the decisions of administrative courts as

obviously groundless, on the grounds that the purpose of criminal

prosecution fully corresponded to permissible limitation of freedom of

movement under Art. 14 par. 3 of the Charter, and this was procedure

within the bounds of a constitutional exception. In its resolution of 7

September 1999, file no. II.ÚS 95/98 (not published, available at

nalus.usoud.cz), it stated that it is necessary to review whether

application of the relevant provision of the Act on Travel Documents

does not lead to disproportionate interference in an individual’s

fundamental rights and freedoms, because the regulation itself did not

rule it out a priori; it described disproportionate interference as

arbitrariness, which, however, cannot be found where more burdensome

interference is possible, i.e. limitation of personal freedom instead of

limitation of freedom of movement that is only temporary and outside

the territory of the republic. Regarding the scope of an administrative

court’s review activity, the Constitutional Court stated that the court

“could not review the grounds for criminal prosecution, and thus the

very basis for interference in freedom of movement.”
 

17.

After the adoption of Act no. 329/1999 Coll., the Constitutional Court

proceeded similarly in reviewing decision based on application of the

provision contested by the petition; it described the Act on Travel

Documents as a statute that implements limitations on the freedom of

movement provided in Art. 14 par. 3 of the Charter and which gives

bodies acting in criminal proceedings an opportunity to ask for

limitation of the freedom of movement of a person being prosecuted for

an intentional crime by the revocation of his travel document. In the

matter file no. I.ÚS 52/03, mentioned by the petitioner, where, at the

request of the state prosecutor a travel document was revoked from a

criminally prosecuted person a year and a half after notice of the

indictment, and the person claimed that he never evaded criminal

prosecution or marred the investigation, the Constitutional Court had no

doubt that only bodies acting in criminal proceedings can, on the basis

of the situation and development of the prosecution of a particular

person, weigh whether it is necessary to limit the persons freedom of

movement in this manner (resolution of 26 June 2003, not published,

available at nalus.usoud.cz).
 

18.

Thus, we can summarize that in its previous decision making on this

issue the Constitutional Court indicated the limits within which

limitation of an individual’s freedom of movement must be measured. It

left open the question of effective review of a decision by a body

acting in criminal proceedings for purposes of verifying whether an

adopted measure rules out arbitrariness in a case where it exceeds the

positive aspects, e.g. the public interest in these measures. However,

in this regard it must be remembered that the subject matter of

constitutional law review was decisions of administrative panels of

general courts, deciding according to Part Five of the Civil Procedure

Code, in the version in effect until 31 December 2002, i.e. with the

existence of a legal framework which then displayed serious

constitutional law defects, to which the Constitutional Court responded

on a fundamental level in judgment file no. Pl.ÚS 16/99 (č. 276/2001

Coll., Coll. of Decisions, vol. 22, p. 329).
 


VIII.
Constitutional Limits on Freedom of Movement
 

19.

Freedom of movement is one of the fundamental human rights, and under

Art. 4 of the Constitution it is under the protection of the judicial

branch.
Under Art. 14 of the Charter
1)    The liberty of movement and the freedom of the choice of residence is guaranteed.
2)  

 Everyone who is legitimately staying within the territory of the Czech

and Slovak Federal Republic has the right freely to leave it.
3)  

 These freedoms may be limited by law if such is unavoidable for the

security of the state, the maintenance of public order, the protection

of the rights and freedoms of others or, in demarcated areas, for the

purpose of protecting nature.
4)    Every citizen is free to enter

the territory of the Czech and Slovak Federal Republic. No citizen may

be forced to leave his homeland.
5)    An alien may be expelled only in cases specified by the law.
 

Under

Article 2 of Protocol no. 4 to the Convention for the Protection of

Human Rights and Fundamental Freedoms (“Protocol no. 4” or the

“Protocol”)
1)    Everyone lawfully within the territory of a State

shall, within that territory, have the right to liberty of movement and

freedom to choose his residence.
2)    Everyone shall be free to leave any country, including his own.
3)  

 No restrictions shall be placed on the exercise of these rights other

than such as are in accordance with law and are necessary in a

democratic society in the interests of national security or public

safety, for the maintenance of ordre public, for the prevention of

crime, for the protection of health or morals, or for the protection of

the rights and freedoms of others.
4)    The rights set forth in

paragraph 1 may also be subject, in particular areas, to restrictions

imposed in accordance with law and justified by the public interest in a

democratic society.
 

20.

Rights arising from the freedom of movement (Art. 14 of the Charter) can

be asserted directly (Art. 41 par. 1 of the Charter a contrario), not

through statutes that would implement these rights. However,

constitutional guarantees are not unlimited, and the freedom of movement

is limited by constitutional bounds. Generally these limitations can be

summarized to the effect that they must be specified by statute, for

reasons provided in an exhaustive list in par. 3 of Article 14 of the

Charter, “if it is unavoidable.” Protocol no. 4 to the Convention

guarantees freedom of movement for the citizens of the relevant state

and for foreigners in different ways (cf. “everyone who is lawfully

within”), and sets the limitations for cases specified in par. 3 of the

Protocol by the condition “necessary in a democratic society.” The

Charter and the Protocol do not set any other limits, and therefore

freedom of movement must be understood as a right that includes not only

the right to move freely and settle anywhere in the territory of the

Czech Republic, but also the right to freely travel to another country

and to return.
 

21. As

regards citizens of the Czech Republic, the constitutional framework

permits their freedom of movement to be limited by intervention by the

public authorities. In order for that intervention to be considered

constitutionally permissible, it must meet three conditions:
-    it must be provided by law,
-    it must have a legitimate aim,
-    it must be unavoidable, or necessary, in a democratic society.
 


VIII.1)
Evaluation whether the Limitation is Consistent with the Law, and whether It Is Justified by the Public Interest
 

22.

Under § 2 and 3 of the Act on Travel Documents, valid at the time

decisive for the complainant, a citizen of the Czech Republic could

leave its territory only at a border crossing with a valid travel

document (passport), which could be revoked by a decision of public

bodies in cases provided in § 23; under let. b) the purpose of revoking a

travel document was to ensure that a citizen who was being criminally

prosecuted for an intentional crime would be available in the interests

of the proper conduct of the criminal proceeding. Limitation of the

movement of the Czech Republic on trips abroad was defined by law, and

thus the contested provision meets the first condition.
 

23.

The second condition is that the intervention must have a legitimate

aim. These aims are defined in the Charter and the Convention by “soft

concepts” – state security, national security, public order, public

safety, avoiding criminality, protection of health or morals, protection

of the rights and freedoms of others, and protection of the

environment. Some of these concepts are defined by law; some of them,

although frequently used, e.g. the term “public order,” are not defined

unambiguously in the legal order, and therefore they are interpreted by

the case law of the courts, or by decisions of other public bodies. From

a constitutional law viewpoint, it is not important whether these

concepts are given content by the legislature or interpreted by case

law; the important thing is that they may not be further expanded. The

contested provision would make it possible to limit an individual’s

freedom of movement outside the territory of the Czech Republic as a

result of his being prosecuted for an intentional crime. Criminal

proceedings leading to the appropriate discovery of crimes and just

punishment of their perpetrators (§ 1 par. 1 of the Criminal Code) for

purposes of protecting the interests of society, the constitutional

establishment of the Czech Republic, and the rights and legitimate

interests of natural and legal persons (§ 1 of the Criminal Code) are a

generally legitimate public interest. Thus, revocation of a travel

document on the basis of the contested provision of the Act on Travel

Documents, which permits limiting an individual’s freedom of movement in

the interest of one of these legitimate aims, meets the second

condition.
 


VIII.2)
Evaluation of the Unavoidability or Necessity of Limitation
 

24.

The third condition provides that interference in rights must be

unavoidable, or necessary, in a democratic society. These terms are also

not defined in detail in the Charter or the Convention; however, it is

obvious that they involve a certain urgent social need, whose specific

application represents room for discretion and justification by the

legislature. If it is not provided by law, the characteristic features

of this need can be derived from case law.
 

25.

In connection with evaluating the necessity of interference by a public

body into the rights and freedoms of an individual, the Constitutional

Court ruled that “if the constitutional order of the Czech Republic

permits interference in protection of rights, that happens only, and

exclusively in the interest of protecting the democratic society, or in

the interest of constitutionally guaranteed fundamental rights and

freedoms of others; this includes primarily a necessity arising from the

general interest in protecting society from crime, and in discovering

and punishing such crimes. Permissible interference by the state power

into a fundamental rights or freedom of a person is only such

interference as is necessary in that sense. In order not to exceed the

bounds of necessity, there must be a system of appropriate and

sufficient guarantees, consisting of the appropriate legal regulations

and effective review of observance of them.” (cf. judgment file no.

II.ÚS 502/2000, published in Coll. of Decisions, vol. 21, p. 83).

Likewise, the case law of the European Court of Human Rights indicates

that when evaluating interference that leads to violation of an

individual’s freedom of movement, within the principles provided by Art.

2 of Protocol no. 4, the Court pays attention to, e.g. the result of

investigation, or the development of a particular case, and in that

context evaluates whether the interference was proportionate in relation

to the intended aim [cf. e.g., the case of Baumann v. France,

Application no. 33592/96, the case of Iletmis v. Turkey, Application no.

29871/96, www.echr.coe.int, the case of Luordo v. Italy,

Application no. 32190/96, Soudní judikatura, Přehled rozsudků ESLP [Case

Law, Review of Decisions of the ECHR], no. 6/2003, p. 317 (324) et

seq.].
 

26. The purpose of

the contested provision was to revoke or refuse to issue a travel

document, so that the person being prosecuted for an intentional crime

could not avoid prosecution, hinder it, or completely evade it. Thus, it

is evident that the proportionality of that measure in terms of its

unavoidability, or necessity, can be determined only on the basis of the

situation and development of the criminal prosecution of the person

affected by the provision, and that this evaluation rests with the body

acting in criminal proceedings. However, the Criminal Code does not

provide the prosecuted person a procedural means of obtaining effective

review of the proportionality of the proposed measure, because the

request from the body acting in criminal proceedings to revoke the

travel document of the prosecuted person is decided in a proceeding

other than the criminal proceeding.
 

27.

Thus, the Constitutional Court reviewed primarily the question of

whether a norm establishing the scope of facts for which the freedom of

movement of a travel document holder is inconsistent with the

constitutional order, specifically with Art. 36 par. 1 of the Charter,

under which, “Everyone may assert, through the legally prescribed

procedure, his rights before an independent and impartial court or, in

specified cases, before another body.” The significance and purpose of

this provision is to set an obligation for the state to protect

everyone’s rights, because in a law-based state there cannot exist a

situation in which the bearer of a right could not seek protection of

the right (before a court or other body). Generally, the state is here

in order to protect its citizens (but also persons staying in its

territory) and to provide them guarantees that their rights will be

protected. As the Constitutional Court explained in its judgment of 29

January 2008, file no. Pl.ÚS 72/06 (http://nalus.usoud.cz), paragraph 4

Art. 36 of the Charter (to which par. 1 Art. 36 of the Charter basically

refers in the phrase “prescribed procedure”) refers to a law that

provides “conditions and detailed provisions” in relation to all the

foregoing paragraphs of Art. 36 of the Charter; nonetheless, such a law,

issued on the basis of constitutional authorization, is bound by Art.

36 of the Charter, and cannot deviate from its content. The significance

and purpose of an “ordinary’ statute under Art. 36 par. 4 of the

Charter is only to set the conditions and details of implementation of

the rights (already) established by the constitutional framers in Art.

36 of the Charter, that is, conditions and details of a purely

procedural nature. If, under Art. 36 par. 1 of the Charter, everyone has

the right to seek protection of his rights before a court or other

body, and the conditions and rules for implementation of that right are

provided by law, then that law, issued on the basis of constitutional

authorization, cannot completely negate the entitlement of everyone to

seek protection of his rights before a court or other body, and thus,

even if in only certain cases, deny a constitutionally guaranteed

fundamental right. Article 36 par. 1 of the Charter constitutionally

guarantees everyone the right to seek protection of his right before a

court or other body in all cases where it has been violated (there is no

constitutional restriction). In other words, no person can be

completely barred by law from the opportunity to seek protection of his

right, even if in only a certain case, because that person’s right under

Art. 36 par. 1 of the Charter would be annulled. An opposite

interpretation would also indicate that the establishment of everyone’s

right to turn to judicial and other protective bodies for protection of

one’s rights created by the constitutional framers – endowed with the

highest legal force – would basically become meaningless, because it

could be annulled by the will of only the legislature in one or another

situation.
 

28. In the

present matter the contested provision of the Act on Travel Documents

did not provide (nor does the now valid provision of the Act provide)

the administrative body deciding on the revocation of a travel document

at the request of a body acting in criminal proceedings any opportunity

at all for discretion in the third condition, because if the statutory

grounds were met – a request from the body acting in criminal

proceedings that was conducting criminal prosecution for an intentional

crime against the person in question – the administrative body had no

room at all for discretion as to the necessity or proportionality of

that measure, and had to revoke the travel document. From a

constitutional law viewpoint it is not key (although it is also not

insignificant – see par. 33. below), whether the authority to weigh the

unavoidability or necessity of using a means that restricts an

individual’s fundamental right or freedom in the interest or protecting

another constitutionally protected value is entrusted to one or another

public body (a passport administration body or a body acting in criminal

proceedings); the decisive thing is that its decision cannot be removed

from effective judicial review. The contested decision [sic] of the Act

on Travel Documents did not provide any discretion to the

administrative body, which, as a result, considerably limited the

possibility of its review by an administrative court. In other words,

the administrative court could not question the decision of the passport

administration body in the part where it refused to consider objections

that did not fall under the contested statutory provision, because if

the passport administration body had acted otherwise, it would have been

in conflict with that norm. Thus, the Constitutional Court concludes

that, in the contested provision, the legislature restricted the right

of a travel document holder to seek protection of his rights before a

court or other body in such a manner that it completely ruled out the

constitutionally guaranteed evaluation by a court of the interference in

rights in terms of the unavoidability or necessity of restricting

freedom of movement.
 

29. In

brief, the Constitutional Court does not deny that the refusal to issue

or revocation of a travel document specified by law and supported by a

justified public interest (legitimate aim) can be an unavoidable

(necessary) measure; however, a decision about such a measure cannot be

removed from true judicial protection and replaced by merely illusory

judicial protection.
 

30. In

the abovementioned judgment Pl.ÚS 72/06, the Constitutional Court also

addressed exceptions from the principle of general judicial

reviewability of administrative decision, because, under Art. 36 par. 2

of the Charter: Unless a law provides otherwise, a person who claims

that his rights were curtailed by a decision of a public administrative

authority may turn to a court for review of the legality of that

decision. However, judicial review of decisions affecting the

fundamental rights and basic freedoms listed in this Charter may not be

removed from the jurisdiction of courts.” The Constitutional Court

pointed to the fact that, although in the second sentence of Art. 36

par. 2 of the Charter the constitutional framers delegate to the

legislature the permission of exceptions from the review of

administrative decisions by a court, that constitutional authorization

is limited in the fact that decisions concerning the fundamental rights

and freedoms guaranteed by the Charter may not be removed from judicial

review. Here the constitutional framers evidently reflected the

different relevance of the fundamental rights and freedoms and

“ordinary” rights and freedoms; because of the different nature, the

more important rights logically deserve greater protection.
 

31.

In the present matter the decision to revoke a travel document affects

the fundamental to freedom of movement; therefore, the legal exception

to the rule is not permitted. The conclusions stated regarding Art. 36

par. 1 and 4 of the Charter apply equally to Art. 36 par. 2 of the

Charter, i.e. a law setting “conditions and rules” under Art. 36 par. 4

of the Charter cannot deviate from the content of Art. 36 par. 2 of the

Charter. Thus, if everyone has, under Art. 36 par. 2 of the Charter, the

right to judicial review of decisions by public administration bodies

affecting the fundamental rights and freedoms, and the conditions and

rules for implementation of that right are set by law, then such a law,

issued on the basis of constitutional authorization, cannot completely

rule out that entitlement of every person, even if only to a certain

extent. Article 36 par. 2 of the Charter does not permit the law and

restrictions in content of the right to judicial review of decisions

affecting the fundamental rights and freedoms. The contested provision

does not rule out subjecting a decision by the passport administration

authority to revoke a travel document to judicial review, but the review

is limited as regards the decision of the passport administration body,

and does not include review of the actions (request) of the body acting

in criminal proceedings.
 


IX.
Constitutional consequences de lege ferenda
 

32.

Of course, the foregoing indicates that by stating that the reviewed

statutory provision is inconsistent with provisions guaranteeing

fundamental rights the Constitutional Court’s conclusion questions –

primarily precisely because of the lack of effective judicial review –

the very competence of the relevant administrative office to decide

whether to refuse to issue a travel document or to revoke an issued

travel document. It is evident that this applies not only in relation to

the provision of the Act on Travel Documents affected by the petition,

but also in regard to the legal regulation that is valid and in effect

today.
 

33. It is not the

Constitutional Court’s job to describe for the legislature in detail

what kind of legal regulation it is to adopt regarding the present

issue. However, before adopting it, it will be up to the legislature to

weigh, thoroughly and consistently, whether it is acceptable for

administrative offices and administrative courts to decide on the

issuance or revocation of a travel document. By its consequences this is

an institution for securing a person; the decision to use it would be

better made by the public authorities conducting the proceedings in

which that means of securing a person is to be used. Review of such a

decision by a court in the same proceeding carries several undoubted

advantages. They are not just the ability to act when necessary and

greater knowledge of the reasons why the relevant public body considered

it necessary to take this step, but primarily – and this also includes a

possible constitutional law aspect – removing undesirable combining

blending of various trials conducted by various bodies. The Senate also

pointed to this in its brief concerning the petition. Therefore,

declaring the contested provision of the Act on Travel Documents

unconstitutional, the Constitutional Court does not, under any

circumstances, intend to agree with the opinion that wide discretion for

an administrative office, supplemented by judicial review with full

jurisdiction by the administrative courts, is the route that the

legislature should or must take.
 


X.
Conclusion
 

34.

Due to the foregoing, the Constitutional Court concludes that § 23 let.

b) of Act no. 329/1999 Coll., on Travel Documents and Amending Act no.

283/1991 Coll., on the Police of the Czech Republic, as amended by Act

no. 217/2002 Coll. and Act no. 320/2002 Coll., did not permit the

general courts to meet their obligations to protect an individual’s

fundamental rights and freedoms when reviewing a request from a body

acting in criminal proceedings to revoke a travel document from a person

whom it was prosecuting for an intentional crime, from the point of

view of the third condition, failure to respect the principles enshrined

in Art. 2 par. 2 and Art. 4 par. 1 of the Charter. This denied the

affected individual the right to effective judicial protection under

Art. 36 par. 2 of the Charter, the final consequence of which was

violation of Art. 14 par. 1 and Art. 2 of Protocol no 4. Therefore, the

Constitutional Court, under Art. 95 par. 2 of the Constitution, granted

the petitioner’s petition, with the provision that, in view of Art. 89

par. 2 of the Constitution, public bodies are required to reflect the

consequences of that unconstitutionality in their decision making, that

is, to not apply the cited provision when resolving actual cases.

Instruction: Decisions of the Constitutional Court cannot be appealed.

Brno, 20 May 2008

 



1. Dissenting Opinion of Judge Vlasta Formánková to the reasoning of the judgment Pl. ÚS 12/07
 

The

dissenting opinion that I am filing under § 14 of the Act on the

Constitutional Court is not directed against the judgments’ verdict, but

intends to add to the legal arguments presented in the judgment’s

verdict.
 

I believe that the

Constitutional Court should have emphasized in the judgment’s

reasoning, specifically in Art. IX, that the institution of revoking a

passport, or the legal regulation thereof, should be established de lege

ferenda in the Criminal Procedure Code, just as in the case of

proceedings under Chapter Four, Parts Three to Five of the Criminal

Procedure Code (e.g. confiscation of a thing, securing real estate,

freezing funds in an account, a house search, securing and opening

correspondence, etc.). The Criminal Procedure Code has its own means for

securing a defendant’s person and achieving the purpose of criminal

prosecution, and bodies acting in criminal proceedings would have the

opportunity to weigh at the time, based on the situation and development

of the criminal prosecution, whether it is necessary to limit the

prosecuted person’s freedom of movement and residence by revoking his

passport. The statutorily imposed obligation to properly justify every

such decision, and simultaneously establishing judicial reviewability of

issued decisions would then prevent the circumvention of statutory

procedures and would also be a guarantee of such procedure.
 



2. Dissenting Opinion of Judge Pavel Holländer to the reasoning of the judgment Pl. ÚS 12/07
 

The

significance and purpose of the procedure contained in § 23 let. b) of

Act no. 329/1999 Coll., on Travel Documents and Amending Act no.

283/1991 Coll., on the Police of the Czech Republic, as amended by Act

no. 217/2002 Coll. a of Act no. 320/2002 Coll., is the statutory

establishment of a measure to secure a person in criminal proceedings,

i.e. establishment of a provision that is to restrict a person from

avoiding criminal proceedings.
 

I

agree with the tenor of the judgment insofar as, in the application of

the statutory provision in question, it weighted the need to weigh, on

one side, achieving the purpose of the criminal proceeding, and, on the

other side, protection of freedom of movement and of residence (Art. 14

par. 1 of the Charter of Fundamental Rights and Freedoms – the

“Charter”).
 

Because the

institution of refusing to issue or revoking an issued travel document

for reasons of securing the purposes of criminal prosecution of a

defendant is not enshrined in the Criminal Procedure Code, the statutory

provision in question can prima facie be interpreted in two ways:
 

*

The first alternative makes this an indirect amendment of the Criminal

Procedure Code, and it would be possible to contest the actions of the

police body through a request under § 157a par. 1 of the Criminal

Procedure Code. The content of the court’s decision making in an

administrative court proceedings is only review of whether formal

conditions have been met for the administrative bodies to apply a

statutory provision, but not evaluation of the proportionality between

achieving the purpose of criminal proceedings and protection of the

freedom of movement and residence. The defect in this alternative

interpretation is the fact that it conflicts with Art. 4 of the Charter,

under which the fundamental rights and freedoms are under the

protection of the judicial branch, because on the merits, i.e. in the

question of meeting the conditions for limiting the freedom of movement

and residence of a defendant in view of the justification, and purpose

of criminal prosecution, the decision would be made by the state

prosecutor’s office, and not the court.
 

*

In the second alternative, contained in the judgment, the provision in

question is considered, as a whole to be a component of administrative

law, which establishes the authority of the administrative courts under §

4 of the Administrative Procedure Code, including review of the

proportionality between achieving the purpose of criminal proceedings

and protecting the freedom of movement and residence. The defect in this

alternative interpretation is that it entrusts decision making on the

purposes of criminal proceedings to the administrative courts, which is

inconsistent with 13 of the Criminal Procedure Code, § 4 and § 7 par. 1

of the Administrative Procedure Code, as well as with Act no. 6/2002

Coll., on Courts and Judges, as amended by later regulations. The

organizational differentiation of the work of the courts in criminal,

civil and administrative matters is not only the result of the

development of European legal culture in the 19th and 20th centuries,

reflecting the presence of elements of the separation of powers within

the judicial branch, as well as reasons for professional specialization

caused by the fundamental differences in the subject matter. Moreover,

this differentiation is also tied to maximum internal consistency and

consistency of the law. If the administrative court evaluated, according

to the essential grounds of the Constitutional Court’s judgment, the

relationship between achieving the purposes of criminal proceedings

(i.e. also necessarily the sufficient grounds for suspecting the

defendant of committing a crime) and protecting the freedom [of

movement] and residence of the defendant, it could conclude that there

were insufficient grounds for suspicion of committing a crime, and thus

also insufficient grounds for refusing to issue or revoking an issued

travel document. Let us assume that the state prosecutor’s office would

subsequently, in an attempt to limit the defendant’s ability to avoid

criminal prosecution, file a request to take him into custody, which the

court would grant, and the (criminal) court would state that there were

sufficient grounds for suspicion of committing a crime. The legal

system would thus lead to the possibility of making conflicting court

decisions, without a procedural possibility for removing the conflict.

Therefore, I consider shifting the decision making on the purposes of a

criminal proceeding into a different type of proceeding to be

inconsistent with the concept of a democratic, law-based state under

Art. 1 par. 1 of the Constitution.
 

Based

on these arguments, I am of the opinion that it is justified to

establish the institution of refusing to issue or revoking an issued

travel document (or confiscating a travel document) as a measure to

secure a person in a criminal proceeding in the criminal procedure code,

including establishing the process of judicial review of such a

decision taken by a police body (or the state prosecutor’s office). The

result of my opinion in this decision, in connection with the

Constitutional Court’s opinion in judgment file no. Pl. ÚS 38/06,

concerning proceedings on the review of a norm, would then be that

administrative courts would have to stop proceedings due to insufficient

authority.
 



3. Dissenting opinion of judge Dagmar Lastovecká to the reasoning of the judgment Pl. ÚS 12/08
 

In

point 33. of the judgment’s reasoning the Constitutional Court states

that revoking a travel document under § 23 let. b) of Act no. 329/1999

Coll. is an institution to secure a person, and also recognizes the

constitutional law aspect of undesirable combining of various trials

conducted by various bodies (bodies acting in criminal proceedings,

administrative offices, administrative courts). However, only within the

framework of “constitutional law consequences de lege ferenda” does it

leave it up to the legislature to weigh “whether it is acceptable for

administrative offices and administrative courts to decide on the

issuance or revocation of a travel document.”
 

I

believe that this constitutional law aspect should be the grounds for

declaring the contested provision of the Act inconsistent with the

constitutional order.
 



4. Dissenting Opinion of Constitutional Court Judge Jan Musil

I agree with the verdict of judgment file no. Pl. ÚS 12/07.
 

I

disagree only with part of the reasoning of this judgment. Under § 14

of Act no. 182/1993 Coll., on the Constitutional Court, as amended by

later regulations, I am filing a dissenting opinion to the reasoning:
 

I

believe that the reason in the judgment’s reasoning for annulling § 23

let. b) of Act no. 329/1999 Coll., on Travel Documents, should have been

primarily the fact that revocation of a travel document in connection

with the conduct of criminal proceedings does not fall within the

jurisdiction of administrative bodies at all, and the relevant procedure

should not be regulated by an administrative norm.
 

Deciding

on such a measure should be in the exclusive jurisdiction of bodies

acting in a criminal proceeding, and the proceeding should be regulated

by the Criminal Procedure Code. In the event that such a measure is

taken by a body acting in preparatory proceedings, the Criminal

Procedure Code should regulate judicial review (implemented by the

criminal court judge).
 

Revocation

of a travel document within a criminal proceeding is by its nature a

measure to secure a person, comparable to other measures to secure a

person or thing under Part Four of the Criminal Procedure Code.
 

Only

bodies acting in criminal proceedings can, on the basis of the gathered

evidence, substantive judge how justified the concern is that the

accused person could flee abroad and mar the purpose of the ongoing

criminal proceeding, and at the same time evaluate whether the interest

in effective criminal prosecution in a particular case outweighs the

conflicting right of a citizen to freedom of movement under Article 14

of the Charter. If that decision making authority is entrusted to an

administrative body (and in judicial review by a court in the

administrative courts), these bodies cannot, due to insufficient

information, decide with adequate knowledge of the matter. Their

decision is exposed to the danger of uncritical dependence on

information (usually very fragmentary), provided by bodies acting in

criminal proceedings, and review of the legality of the process is

completely formal and ineffective.
 

As

an example for a suitable regulation, we can cite the current German

regulation for revoking a thing (Beschlagnahme) under § 111c of the

German Criminal Procedure Code (StPO) or preliminary revocation of a

driver’s license under § 111a StPO. That procedural regulation provides

suitable guarantees of legality (consent of the judge, means of remedy,

etc.), which the present Czech regulation in Act no. 329/1999 Coll., on

Travel Documents, does not make possible.
 

The

existing Czech regulation, which leads to chaotic mixing of

institutions and measures used in criminal and administrative

proceedings, conflicts with the attributes of a law-based state

enshrined in the preamble and in Article 1 par. 1 of the Constitution,

and jeopardizes the principle of protecting the fundamental rights and

the freedom of the judicial branch, enshrined in Article 4 of the

Constitution.

 


5. Dissenting Opinion of Constitutional Court Judge Eliška Wagnerová to the judgment of 20 May 2008, file no. Pl. ÚS 12/07


I disagree with the judgment’s reasoning, for the following reasons:
In

my opinion, before evaluating the contested provision in terms of the

“permissibility” of restriction of the fundamental right to freedom of

movement, it was necessary to resolve the question of whether the body

that was to apply the contested provision was the competent body. It is

not a matter of formal competence, i.e. established by law (here, the

contested provision), but a competence that would stand from a

constitutionally material concept, i.e. from the point of view of

principles arising from the constitutional order as a whole.
First

of all, I must mention that the purpose of the contested provision must

be sought in the criminal proceedings, i.e. in the proceedings that are

the sole basis on which guilt and punishment can be decided. The

constitutional monopoly on such proceedings, which, of course, are the

outcome of the criminal process, is held by the courts (Art. 40 par. 1

of the Charter).
 

Deciding

to revoke (or note issue) a travel document from a defendant is the

implementation of one of the criminal law institutions for securing a

person, which are supposed to rule out the need for more intrusive

interference in the defendant’s fundamental rights. In this case it is a

means of securing a person that removes the need to limit personal

freedom by taking someone into custody, and at the same time it creates

conditions for the proper conduct of the criminal trial, the purpose of

which is a final decision on guilt and punishment.
 

It

is evident from the foregoing that because of the constitutional

monopoly that courts have in deciding on guilt and punishment, in the

conception described above, which is reflected in the constitutional

principle of separation of powers (Art. 2 par. 1 of the Constitution),

we must insist that deciding on this institution for securing a person

must remain within the szstem of bodies acting in criminal proceedings,

culminating in the form of judicial review, but still within the

framework of criminal proceedings.
 

Insofar

as the contested provision entrusted the decision about this

institution to secure a person to an administrative body, it established

a competence for the body that cannot be constitutionally materially

legitimized, or approved. Beyond that framework one can add in support

that the administrative body that ruled in the present matter did not

have, and could not have, any knowledge of the needs for actions in the

criminal proceedings, and therefore was not even capable of weighing the

proportionality of its decision.
 

Because

in this case the legislature did not respect the constitutional

imperatives arising from Art. 40 par. 1 of the Charter a z Art. 2 par. 1

of the Constitution, as interpreted above, it was necessary to declare

that the contested provision is inconsistent with these provisions of

the constitutional order, with the consequence that the decision of the

administrative body, issued with the application of the contested

provision, was a decision ultra vires, that is, a decision issued by a

body acting beyond the limits of material constitutionality, and as such

it should be annulled and the proceeding stopped.