2009/09/15 - Pl. ÚS 18/07: Withdrawal of Travel Document from a Criminally Prosecuted Person II

15 September 2009

HEADNOTES

When

assessing the constitutionality of the contested provisions, the

Constitutional Court in particular found that the essence of the case is

virtually identical to that dealt with in a Judgment of the

Constitutional Court dated 20 May 2008 under file No. Pl. ÚS 12/07. The

Constitutional Court, in the above-specified Judgment, declared that the

provisions of § 23 clause b) of Act No. 329/1999 Coll. on Travel

Documents and on Alteration to Act No. 283/1991 Coll. on the Police of

the Czech Republic, in the wording of Act No. 217/2002 Coll. and of Act

No. 320/2002 Coll., were in contravention of Art. 2 para. 2, Art. 4

para. 1, Art. 14 para. 1, and Art. 36 para. 2 of the Charter of

Fundamental Rights and Basic Freedoms, and Art. 2 of Protocol No. 4 to

the Convention on the Protection of Human Rights and Fundamental

Freedoms. The modification consisting (since the effectiveness of Act

No. 559/2004 Coll.) of the possibility of withdrawing a travel document

or denying the issue of a travel document only provided that criminal

prosecution is administered against a citizen for a criminal act for

which a sentence of imprisonment for at least 3 years may be imposed, is

not of such a nature as would establish constitutional conformity of

the provisions under consideration.
 

The

purpose of the contested provisions is withdrawal or denial of issue of

a travel document, with the objective of a person prosecuted for a

particularly qualified (serious) criminal act becoming unable to evade

criminal prosecution, aggravate the same or completely avoid the same.

It is clear that the proportionality of this measure from the viewpoint

of its inevitability or indispensability may be assessed only on the

basis of the condition and development of criminal prosecution of the

person affected by such a measure and that such evaluation pertains to a

body involved in criminal proceedings. The Criminal Procedure Code,

however, does not provide a person prosecuted with a procedural

instrument through which they could have the proportionality of the

proposed measure reviewed effectively, since a request by the body

involved in criminal proceedings concerning withdrawal of a travel

document from the prosecuted person is decided upon in proceedings other

than criminal proceedings.
 

The

essential reasons for the Judgment of the Constitutional Court dated 20

May 2008, file No. Pl. ÚS 12/07, express a binding legal opinion

whereby also the Constitutional Court itself is now bound (Art. 89 para.

2 of the Constitution).
 

Therefore,

the Constitutional Court (now) wishes merely to add and repeatedly

remark, to the conclusions expressed above and contained in Judgment

file No. Pl. ÚS 12/07 quoted above, that one of the basic conceptual

preconditions for a constitutionally guaranteed right to a fair trial

(Art. 36 et seq. of the Charter of Fundamental Rights and Basic

Freedoms) is decision making by independent and impartial courts in

accordance with specific principles established in relevant procedural

regulations; however, these regulations must, in their individual

provisions, realistically allow such a trial and not distinguish

unfoundedly between individual subjects whose fundamental rights are

comparable. Such procedure, even though it is perhaps permitted by

common interpretation of the relevant statutory provisions, leads to a

direct infringement of constitutionally guaranteed fundamental rights or

freedoms of the affected holders of a public subjective right, and for

the most part also to violation of the same; the crucial principles of a

modern democratic law-based and constitutional state (Art. 1 para. 1 of

the Constitution), which is understood and defined as a “material

law-based state”, bound by supreme constitutional principles and values,

do not allow any such eventualities. In addition, the essence of legal

certainty as one of the attributes of a law-based state – containing

also protection of trust in law – in particular comprises the matter

that everyone may rely on the fact that the state provides them with

effective protection of their rights and assists them in implementing

their subjective right.
 

The

Constitutional Court believes that it is not its task to indicate in

detail to the legislature which legal arrangement the latter should

adopt with respect to the issues under examination. Prior to adoption of

the same, however, it will be up to the legislature to consistently and

thoroughly weigh up whether it is really acceptable that denial of

issue or withdrawal of a travel document be decided on by administrative

authorities and administrative courts, and whether this issue actually

falls within their powers at all. In terms of their consequences, this

is actually a securing institute; a decision on the necessity of using

the same should be made by such bodies of public power that administer

proceedings in which such a securing measure is to be used, i.e. bodies

involved in criminal proceedings. Review of such a decision by a court

in the same proceedings (that is in criminal proceedings) entails also a

number of incontestable advantages. These include not only efficiency

and greater knowledge of reasons for which the relevant body of public

power deems it indispensable to employ such a securing measure, but

also, and in particular, removal of undesirable overlap of various

proceedings administered by various bodies, these being bodies involved

in criminal proceedings and administrative bodies and administrative

courts. In any case, this was pointed out by the Senate in their

statement in the above-quoted case Pl. ÚS 12/07.

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC
 

The

Constitutional Court Plenum, composed of Stanislav Balík, Vlasta

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

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým and Pavel

Rychetský, adjudicated upon a petition filed by the petitioner, the

Regional Court of Hradec Králové, under Art. 95 para. 2 of the

Constitution of the Czech Republic, for annulment of the provisions of §

23 clause c) of Act No. 329/1999 Coll. on Travel Documents and on

Alteration to Act No. 283/1991 Coll. on the Police of the Czech

Republic, in the wording effective from 1 January 2005, as follows:
The

provisions of § 23 clause c) of Act No. 329/1999 Coll. on Travel

Documents and on Alteration to Act No. 283/1991 Coll. on the Police of

the Czech Republic, as amended by later regulations, shall be annulled

as of 31 December 2010.



REASONING


I.
 

1.

Through their petition, the petitioner claimed, in accordance with Art.

95 para. 2 of the Constitution of the Czech Republic, that the

Constitutional Court annul the provisions of § 23 clause c) of Act No.

329/1999 Coll. on Travel Documents and on Alteration to Act No. 283/1991

Coll. on the Police of the Czech Republic, in the wording effective

from 1 January 2005.
 
2. Within the reasoning for their petition,

the petitioner included that by a decision of the Regional Authority of

Hradec Králové Region (hereinafter referred to only as the “appellate

body”), dated 30 June 2005, file No. 10687A/Z/2005, an appeal by Ing. M.

H. against the decision of the City Hall of Hradec Králové (the body of

the first level), dated 10 March 2005, file No. OS3/DV/2005, on denial

of issue of a passport pursuant to the provisions of § 23 clause c) of

Act No. 329/1999 Coll., had been dismissed. The above-specified person

filed an action against the decision of the appellate administrative

body in accordance with Section Three, Chapter 11, Volume 1 of Act No.

150/2002 Coll., the Code of Administrative Justice. Within the scope of

preparations for the proceedings, the Regional Court ascertained from

administrative files, in particular from the decision of the body of the

first level as well as the appellate body, that issue of a passport on

the basis of an application by the plaintiff for the issue of a travel

document, dated 31 January 2005, was denied without evidence proposed by

the plaintiff being analysed, with reference to the provisions of § 23

clause c) of the above-defined Act, and to the fact that an

administrative body is not entitled to examine the reasonableness of the

application when it is proven that the plaintiff is being prosecuted

for committing the criminal act of fraud in the form of aiding and

abetting, that is for an intentional criminal act for which a sentence

of imprisonment for up to 12 years may be imposed. The administrative

body does not have the possibility of separately assessing the reason

for denial of the passport, and it is merely up to the bodies involved

in criminal proceedings to evaluate whether the denial of issue of a

travel document is inevitable. The petitioner added that the plaintiff,

in para. V and para. VI of the action (Art. 4 and Art. 5 of the judicial

record), specified objections in detail for which the plaintiff

considers the provisions of § 23 clause c) of the Act as being in

contradiction with the constitutional order. Their repeated

specification in the petition was thus considered by the Regional Court

to be useless duplicity and, since they share the doubts raised by the

plaintiff, the Court referred to the arguments specified by the

plaintiff and proposed that the contested provisions be annulled.
 
3.

The Constitutional Court requested that the petitioner amend their

petition with proper argumentation in relation to constitutional law;

this also so that the consolidated petition (without reference to the

contents of the judicial record) may be sent to both chambers of the

Parliament of the Czech Republic for their respective statements.

4.

In an amendment to said petition, the petitioner stated that the

reasons for which they consider the contested provisions to be

inconsistent with the constitutional order principally agree with the

reasons for which the Constitutional Court found unconstitutional the

provisions of § 23 clause b) of Act No. 329/1999 Coll. on Travel

Documents and on Alteration to Act No. 283/1991 Coll. on the Police of

the Czech Republic in the wording effective until 31 December 2004. Such

a finding was pronounced by the Constitutional Court in their Judgment

dated 20 May 2008, file No. Pl. ÚS 12/07. In this, the Regional Court as

the petitioner referred in particular to the fact that the contested

provisions of the Act on Travel Documents do not provide the

administrative body in charge of deciding on withdrawal of a travel

document or on denial of issue of a travel document upon request by a

body involved in criminal proceedings with any possibility of discretion

within the scope of the condition that an infringement of rights must

be, in a democratic society, inevitable or indispensable. That is, if

the statutory reason is met – a request by a body involved in criminal

proceedings, if criminal prosecution is administered against a citizen

for a criminal act for which a sentence of imprisonment for at least 3

years may be imposed – the administrative body has no leeway whatsoever

for administrative discretion on the indispensability or proportionality

of such a measure, and must withdraw a travel document or deny issue of

the same, which, as a consequence, also considerably restricts the

possibility of review by an administrative court. The above-quoted

provisions thus restrict the right of the holder of a travel document or

an applicant for such a travel document to claim protection for their

rights before a court or another body in such a way that a

constitutionally guaranteed evaluation of infringement of their rights

from the viewpoint of the inevitability or indispensability of

restriction of liberty of movement is not made impossible. According to

the petitioner, the contested provisions thus do not make possible for

the ordinary courts to comply with their obligations related to

protection of fundamental rights or freedoms of an individual if they

review requests from a body involved in criminal proceedings for

withdrawal of a travel document from or for denial of issue of travel

document to a person against whom criminal proceedings are administered

for a criminal act for which a sentence of imprisonment for at least 3

years may be imposed; this represents non-compliance with the principles

established in Art. 2 para. 2 and Art. 4 para. 1 of the Charter. Thus

the given individual is denied their right to effective judicial

protection in accordance with Art. 36 para. 2 of the Charter, which, in

eventual consequence, leads to violation of Art. 14 para. 1 and Art. 2

of Protocol No. 4 to the Convention on the Protection of Human Rights

and Fundamental Freedoms. For such a reason, the Regional Court

proceeded pursuant to § 95 para. 2 of the Constitution of the Czech

Republic.
 


II.


5.

The Constitutional Court requested that the Chamber of Deputies of the

Parliament of the Czech Republic and the Senate of the Parliament of the

Czech Republic provide their respective statements concerning the

petition.
 

6. The statement

from the Chamber of Deputies of the Parliament of the Czech Republic

says that the contested provisions were contained in Print No. 605 of

the 4th election term – a governmental bill of an act whereby

alterations are made to Act No. 328/1999 Coll. on Identity Cards, as

amended by later regulations, Act No. 329/1999 Coll. on Travel Documents

and on Alteration to Act No. 283/1991 Coll. on the Police of the Czech

Republic as amended by later regulations (the Act on Travel Documents),

as amended by later regulations, Act No. 200/1990 Coll. on Minor

Transgressions, as amended by later regulations, Act No. 153/1994 Coll.

on Intelligence Services of the Czech Republic, as amended by later

regulations, and Act No. 326/1999 Coll. on the Residence of Aliens in

the Territory of the Czech Republic and on Alterations to Some Acts, as

amended by later regulations. In the Explanatory Report, the Government

explicitly stated that the amendment to the Act being submitted is in

compliance with the constitutional order of the Czech Republic, in

particular that the same fully complies with the Charter of Fundamental

Rights and Basic Freedoms, where the right to liberty of movement and

freedom of choice of residence is established. Furthermore, the entire

bill of the amendment is in accordance with the law of the European

Community and international treaties by which the Czech Republic is

bound, which regulate the legal relationships in question as well as

those related to the same. The first reading of this Print took place on

7 April 2004. The bill of the act was assigned for discussion by the

Committee on Public Administration, Regional Development and the

Environment. The Committee on Public Administration, Regional

Development and the Environment dealt with Print No. 605 on 14 April

2004 during their 33rd session, and no amendment was proposed regarding

the bill of the amendment to Act No. 329/1999 Coll. The second reading

of Print 605 took place on 16 June 2004 and no amendment was proposed

regarding the contested provisions. The third reading took place on 30

June 2004. The Chamber of Deputies approved the bill of the act, as of

the 185 members present, 171 members voted for the bill of the act and 2

members voted against it. The approved bill of the act was submitted to

the Senate on 15 July 2004. The Senate returned the bill of the act to

the Chamber of Deputies together with proposed amendments, which,

however, did not apply to the Act on Travel Documents. The Chamber of

Deputies voted on the act returned by the Senate on 24 September 2004.

Of the 194 members present, 96 members voted for the bill of the act in

the wording of the proposed amendments submitted by the Senate, whilst

38 members voted against it. The bill was not approved since the

prescribed quorum was 98 votes. Thereafter, the Chamber of Deputies

approved the bill of the act in the wording in which the same had been

submitted to the Senate, when of the 194 members present, 130 members

voted for it and 14 members voted against it. The Act containing the

contested provisions was signed by the President of the Republic on 18

October 2004. The amendment to the Act was approved by the necessary

majority of members of the Chamber of Deputies, was signed by the

relevant constitutional representatives and properly promulgated in the

Collection of Laws on 9 November 2004 under number 559/2004 Coll.
 

7.

The Chamber of Deputies concluded that the legislative assembly acted

in confidence that the acts adopted were in accordance with the

Constitution and the Czech legal order, and that it is up to the

Constitutional Court to assess the constitutionality of such acts and

make a decision in connection with the petition by the Regional Court of

Hradec Králové for annulment of the provisions of § 23 clause c) of Act

No. 329/1999 Coll. on Travel Documents, in the wording effective from 1

January 2005 (note: the Chamber of Deputies – unlike the Senate – did

not submit their statement on the procedure of adopting the original

text of Act No. 329/1999 Coll.).
 

8.

The Senate of the Parliament of the Czech Republic included in their

statement that the provisions of Act No. 329/1999 Coll. on Travel

Documents contested by the petition are the result of legislative

activities completed with promulgation of the above-quoted Act on 27

December 1999. The bill of the act in question was submitted to the

Senate by the Chamber of Deputies on 26 October 1999. The Senate

discussed the bill of the act submitted (Senate Print No. 109) in the

prescribed way in their committees and thereafter during the Senate’s

11th session in the 2nd term of office on 12 November 1999. By Senate

Resolution No. 185, dated 12 November 1999, the Senate, upon

recommendation by all three committees to which the bill was assigned,

returned the act in question to the Chamber of Deputies with some

proposed amendments. The Resolution was adopted by a considerable

majority, as of the 60 Senators present, 56 members voted for the

proposal, nobody was against it, and 4 Senators abstained from voting.

The proposed amendments adopted by the Senate did not concern the given

provisions of § 23 on the denial of issue or withdrawal of a travel

document; however, when dealing with this bill of the act in the Senate

committees, it was explicitly pointed out (within the debate) to the

representatives of the Government as its proponent that the Government

had not used the submission of the new act as an opportunity for

altering the then valid legal arrangement, in accordance with which the

withdrawal of a travel document is decided on by a passport

administrative body upon request by various state bodies, for reasons

which are (unsystematically in terms of factual organisation) listed

also in the Act on Travel Documents. The Senate committees stated that

reasons for non-issue or withdrawal of a travel document should be

contained in the procedural legal regulations in which this instrument

would proceed from the arrangement of relationships for which it is

determined in terms of its purpose. The authority to make a decision on

non-issue or withdrawal of a travel document should be vested in state

bodies, the competence of which is defined by law for such

relationships, since within the scope of such a legal arrangement, a

system has been established for relevant safeguards for proper

deliberation of the case, including the standard rights of parties to

the proceedings and the possibility of subsequent judicial review.

However, the resolution of the Senate committees did not recommend that

the Senate adopt amendments within the meaning of the above-stated

comments, as it was declared that such a solution is rather exacting

and, therefore, should be prepared by the Government as a coherent

solution and within a complete legislative process.
 
9. The

Senate continued by adding that the provisions contested by the petition

had been amended only once, by Act No. 559/2004 Coll. However, this

amendment did not change the factual core of this arrangement.

Alteration to the provisions of § 23 clause b) valid until 31 December

2004, consisted merely of the fact that the non-issue or withdrawal of a

travel document should not be thereafter preconditioned by criminal

prosecution for an intentional criminal act, but for a criminal act for

which a sentence of imprisonment for at least three years may be

imposed. By inserting a new clause – b) – in § 23, the formal

designation of the provisions in question moved from the previous “b)”

to the present “c)”. The above-outlined amendment was submitted to the

Senate by the Chamber of Deputies on 14 July 2004. The Senate dealt with

the submitted bill of the act (Senate Print No. 392), in the prescribed

manner, in their committees and thereafter, during the 17th session of

the 4th term of office on 22 July 2004, upon recommendation by the

Senate committees, returned to the Chamber of Deputies the given

amendment to the act with proposed amendments, via Senate Resolution No.

493, dated 22 July 2004. The Resolution was unanimously adopted in

voting No. 32, as of the 57 Senators present, 57 voted for the proposal.

From the above it is clear that the Senate formed a quorum and the

given Resolution was adopted by the necessary number of votes. The

proposed amendments adopted by the Senate, however, were not aimed at

the given provision on denial of issue or withdrawal of a travel

document; additionally, the discussions of the committees and the plenum

of the chamber did not touch upon the contested provisions. In the case

of amendments, the interest of the legislature usually rests on the

provisions to which the alteration bears an essential effect, which,

however, according to the Senate, was not the case of the change in the

given provisions. The Senate specified that they had dealt with the

given bill of the act, the majority expressing the conviction that the

same is in accordance with the constitutional order of the Czech

Republic and international commitments; the Senate leaves it to the

Constitutional Court to assess the constitutionality of the provisions

contested by the petition.



III.


10.

The Constitutional Court, in accordance with § 68 para. 2 of the Act on

the Constitutional Court, firstly examined whether the Act, the

unconstitutionality of the provisions of which was claimed by the

petitioner, was adopted and issued within the confines of powers

determined by the Constitution and in a constitutionally prescribed

manner. The Court discovered (from statements by the Chamber of Deputies

of the Parliament of the Czech Republic and the Senate of the

Parliament of the Czech Republic, as well as from delivered prints of

the Chamber of Deputies, stenographic records, relevant resolutions and

data on the course of voting by both Chambers) that both the original

Act and the amendment to the same modifying the contested provisions

(Act No. 559/2004 Coll.) were adopted and issued in a manner prescribed

by the Constitution and within the confines of powers determined by the

Constitution, when the quorums determined in Art. 39 para. 1 and para. 2

of the Constitution of the Czech Republic were complied with. The

above-specified amendment to Act No. 329/1999 Coll. was signed by the

relevant constitutional representatives and promulgated in the

Collection of Laws under No. 559/2004 Coll.
 


IV.


11.

The provisions of § 23 of the Act on Travel Documents in the wording of

Act No. 559/2004 Coll., effective from 1 January 2005, read as follows

(the section contested by the petition is underlined):

Issue of a travel document to a citizen shall be denied or an issued travel document shall be withdrawn upon request by:
a) a court, if an execution of judicial decision is ordered against a citizen;
b)

a court distress officer authorised by a court to administer a

distraint, if there is an obvious danger that a citizen would circumvent

the distraint by travelling abroad;
c) a body involved in criminal

proceedings, if criminal prosecution is administered against a citizen

for a criminal act for which a sentence of imprisonment for at least 3

years may be imposed; or
d) a body which executes a decision or

arranges for the same in accordance with a special legal regulation,

when the citizen failed to serve the sentence of imprisonment; this

shall not apply if the citizen’s sentence was remitted or when such

sentence is not served due to limitation.



V.


12. The Constitutional Court concluded that the petition is justified.

13.

When assessing the constitutionality of the contested provisions, the

Constitutional Court in particular found that the essence of the case is

virtually identical to that dealt with in a Judgment of the

Constitutional Court dated 20 May 2008 under file No. Pl. ÚS 12/07. The

Constitutional Court, in the above-specified Judgment, declared that the

provisions of § 23 clause b) of Act No. 329/1999 Coll. on Travel

Documents and on Alteration to Act No. 283/1991 Coll. on the Police of

the Czech Republic, in the wording of Act No. 217/2002 Coll. and of Act

No. 320/2002 Coll., were in contravention of Art. 2 para. 2, Art. 4

para. 1, Art. 14 para. 1, and Art. 36 para. 2 of the Charter of

Fundamental Rights and Basic Freedoms, and Art. 2 of Protocol No. 4 to

the Convention on the Protection of Human Rights and Fundamental

Freedoms. The provisions of § 23 clause b) of the Act on Travel

Documents in the wording valid and effective until 31 December 2004

specified that “issue of a travel document shall be denied to or an

issued travel document shall be withdrawn from a citizen against whom

criminal prosecution is administered for an intentional criminal act,

upon request by a body involved in criminal proceedings”. The

modification consisting (since the effectiveness of Act No. 559/2004

Coll.) of the possibility of withdrawing a travel document or denying

the issue of a travel document only provided that criminal prosecution

is administered against a citizen for a criminal act for which a

sentence of imprisonment for at least 3 years may be imposed, is not of

such a nature as would establish constitutional conformity of the

provisions under consideration.

14. The Constitutional Court is

thus reduced to repeating that the liberty of movement guaranteed by

Art. 14 of the Charter belongs to fundamental human rights and, in

accordance with Art. 4 of the Constitution, such liberty is under the

protection of judicial power. Those rights resulting from the liberty of

movement may be claimed directly, immediately, not only through

statutes that would implement such provisions. However, constitutional

safeguards are not unbounded; liberty of movement is limited by

constitutional confines. Such restrictions may be generally described as

such which must be determined by law for reasons exhaustively specified

under para. 3 of Article 14 of the Charter, and this in cases “if such

is unavoidable”. The Convention on the Protection of Human Rights and

Fundamental Freedoms in Protocol No. 4 guarantees liberty of movement to

citizens of the given state and aliens in different ways (cf. “everyone

lawfully within the territory”), and restriction of the same is

determined only in cases specified under para. 3 of the Protocol “as

necessary in a democratic society”. Neither the Charter nor the Protocol

determines any other limit; that is why liberty of movement must be

understood as a right which includes not only the right to freely move

and settle in any place within the territory of the Czech Republic, but

also the right to freely travel abroad and return.

15. As

already specified by the Constitutional Court in Judgment file No. Pl.

ÚS 12/07, the constitutional arrangement, in relation to the citizens of

the Czech Republic, permits that exercise of their liberty of movement

be restricted by an intervention of public power. For this intervention

to be considered constitutionally acceptable, it must be determined by

law, must strive for a legitimate objective and must be inevitable or

indispensable in a democratic society. Legitimate objectives are defined

in the Charter and the Convention by way of “fuzzy concepts” such as

state security, national security, ordre public, public safety,

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

rights and freedoms of others, and protection of nature. Some of these

terms are defined by law, some of them, even though they are frequently

used, such as the term “ordre public”, are not unambiguously defined by

the legal order, and that is why they are interpreted by court case law

or decisions of other bodies of public power. From the viewpoint of

constitutional law it is irrelevant whether such terms are specified by

the legislature or interpreted by case law; what is decisive is that

they must not be further expanded. By the provisions contested, it is

possible to restrict the liberty of movement of an individual outside

the territory of the Czech Republic due to criminal prosecution of the

same for a criminal act for which – de lege lata – a sentence of

imprisonment for at least 3 years may be imposed. Criminal proceedings

leading to proper investigation of criminal acts and fair punishment of

their perpetrators (§ 1 para. 1 of the Criminal Procedure Code) for the

purposes of protecting the interests of society, the constitutional

system of the Czech Republic and the rights and justified interests of

natural persons and legal entities (§ 1 of the Criminal Code) generally

represent a legitimate public interest. However, as for the further

condition that intervention in these rights must be inevitable or

indispensable in a democratic society, the Constitutional Court stated

that despite these terms not being defined in closer detail in the

Charter or the Convention, it is clear that they contain a certain

pressing social need, the specification of which represents capacity for

free discretion and justification by the legislature. Unless the same

are determined by law, the distinctive traits of such a need may be

inferred from case law.

16. In relation to this, the

Constitutional Court, in connection with evaluating the indispensability

of infringement by a body of public power of the rights and freedoms of

an individual, adjudicated that: “if the constitutional order of the

Czech Republic admits breaching the protection of rights, it is done

solely and exclusively in the interest of protecting a democratic

society, and possibly for the sake of constitutionally guaranteed

fundamental rights and basic freedoms of others; in particular this

includes such indispensability arisen out of general interest in

protecting society against criminal acts and in such acts being

identified and punished. Thus only such infringement by state power of

the fundamental right or freedom of a man is admissible, as is

indispensable within the meaning above. In order to make sure that the

bounds of indispensability are not broken, there must be a system in

place of adequate and sufficient safeguards consisting of adequate legal

regulations and effective control of compliance with the same.” (cf.

Judgment file No. II. ÚS 502/2000, published in the Collection of

Judgments and Rulings, vol. 21, p. 83). Also, from the case law of the

European Court of Human Rights, it is implied that in assessing

infringement leading to a violation of liberty of movement of an

individual, the European Court of Human Rights, within the principles

determined by Art. 2 of Protocol No. 4, takes into account, for example,

the results of examination or development of a specific case, and in

connection to such, the Court weighs up whether the infringement was

proportional in relation to the intended objective [cf. for example the

case of Baumann v. France, Application No. 33592/96, the case of Iletmis

v. Turkey, Application No. 29871/96, the case of Luordo v. Italy,

Application No. 32190/96, Court Case Law, Overview of Judgments of the

ECHR, No. 6/2003, p. 317 (324) et seq.].

17. The purpose of the

contested provisions is withdrawal or denial of issue of a travel

document, with the objective of a person prosecuted for a particularly

qualified (serious) criminal act becoming unable to evade criminal

prosecution, aggravate the same or completely avoid the same. It is

clear that the proportionality of this measure from the viewpoint of its

inevitability or indispensability may be assessed only on the basis of

the condition and development of criminal prosecution of the person

affected by such a measure and that such evaluation pertains to a body

involved in criminal proceedings. The Criminal Procedure Code, however,

does not provide a person prosecuted with a procedural instrument

through which they could have the proportionality of the proposed

measure reviewed effectively, since a request by the body involved in

criminal proceedings concerning withdrawal of a travel document from the

prosecuted person is decided upon in proceedings other than criminal

proceedings.

18. The Constitutional Court thus – repeatedly –

considered in particular the issue whether the norm limiting the scope

of circumstances under which liberty of movement of a holder of a travel

document may be restricted is in contradiction with the constitutional

order, specifically with Art. 36 para. 1 of the Charter, pursuant to

which it is true that everyone may assert, through the legally

prescribed procedure, their rights before an independent and impartial

court or, in specified cases, before another body. The meaning and

purpose of this provision is to determine the obligation of the state to

provide protection of the right for everyone, as a situation in which a

holder of a right could not attain its protection (before a court or

another body) cannot exist in a law-based state. It is generally true

that a democratic state exists for the very reason that it protects its

citizens (but also persons staying in its territory) and provides them

with safeguards that their rights will be protected. As the

Constitutional Court explained in a Judgment dated 29 January 2008, file

No. Pl. ÚS 72/06, paragraph 4 of Art. 36 of the Charter (which is

basically referred to by para. 1 of Art. 36 of the Charter with its text

“through the legally prescribed procedure”) does refer to the act which

regulates “conditions therefor and detailed provisions” in relation to

all preceding paragraphs of Art. 36 of the Charter; such an act, issued

on the basis of constitutional authorisation, is, however, limited by

the provisions of Art. 36 of the Charter, and thus cannot deviate from

the contents thereof. The meaning and purpose of an “ordinary” act

pursuant to Art. 36 para. 4 of the Charter are only to determine the

conditions and detailed provisions for implementing rights (already)

established, as per their contents, by the constitutional framer in Art.

36 of the Charter, i.e. the conditions and detailed provisions of

merely a procedural nature. If, pursuant to Art. 36 para. 1 of the

Charter, everyone has the right to assert protection of their rights

before a court or another body, while the conditions for and rules of

implementation of such a right are determined by law, then such a law,

that is an act issued on the basis of constitutional authorisation,

cannot completely negate the claim on the part of “everyone” to assert

protection of their rights before a court or another body in any given

situation, and thus abandon a constitutionally guaranteed fundamental

right, albeit only in certain cases. By Article 36 para. 1 of the

Charter, everyone is constitutionally guaranteed the possibility of

asserting protection of their rights before a court or another body in

all situations when such a right is violated (there is no constitutional

restriction here). No person may be completely excluded by law from the

possibility of asserting protection of their right – be it only in a

certain case – by their right pursuant to Art. 36 para. 1 of the Charter

being annulled. A contrary interpretation would also signify that the

establishment by the constitutional framer – endowed by superior legal

power – of the right of everyone to turn to judicial and other bodies

for protection of their rights would basically lose sense, as it could

be, for any given situation, eliminated by the will solely of the (mere)

legislature.

19. In the above-specified Judgment, the

Constitutional Court inferred that the contested provisions of the Act

on Travel Documents do not provide the administrative body in charge of

deciding on withdrawal of a travel document, upon request by a body

involved in criminal proceedings, with any possibility of discretion

within the scope of the condition of the inevitability or

indispensability of such infringement in a democratic society, since if

the statutory reason – a request by a body involved in criminal

proceedings which administered a criminal prosecution against the person

in question for the given criminal act – is established, the

administrative body has no room whatsoever for administrative discretion

on the indispensability or proportionality of such a measure, and must

withdraw the travel document. The Court added that – from the viewpoint

of constitutional law – it is not essential whether the power is vested

in this or that body of public power (a passport administrative body or a

body involved in criminal proceedings) to weigh up the inevitability or

indispensability of using the means through which fundamental rights or

freedoms of an individual are restricted in the interest of protecting

other constitutionally protected values; what is decisive is that their

decision must not be removed from effective judicial control. The

contested provisions of the Act on Travel Documents, however, do not

provide the administrative body with any possibility of discretion,

which as a consequence considerably limits the possibilities of their

review by an administrative court. The entitlement to deny the issue of a

travel document or to withdraw a travel document, determined by law and

justified by due public interest (legitimate objective), may be, in a

specific case, an inevitable (indispensable) measure; however, the

decision on such a measure cannot be removed from true judicial

protection and subjected to judicial protection which is merely

illusory.
 
20. The essential reasons for the Judgment of the

Constitutional Court dated 20 May 2008, file No. Pl. ÚS 12/07, express a

binding legal opinion whereby also the Constitutional Court itself is

now bound (Art. 89 para. 2 of the Constitution).

21. Therefore,

the Constitutional Court (now) wishes merely to add and repeatedly

remark, to the conclusions expressed above and contained in Judgment

file No. Pl. ÚS 12/07 quoted above, that one of the basic conceptual

preconditions for a constitutionally guaranteed right to a fair trial

(Art. 36 et seq. of the Charter of Fundamental Rights and Basic

Freedoms) is decision making by independent and impartial courts in

accordance with specific principles established in relevant procedural

regulations; however, these regulations must, in their individual

provisions, realistically allow such a trial and not distinguish

unfoundedly between individual subjects whose fundamental rights are

comparable. Such procedure, even though it is perhaps permitted by

common interpretation of the relevant statutory provisions, leads to a

direct infringement of constitutionally guaranteed fundamental rights or

freedoms of the affected holders of a public subjective right, and for

the most part also to violation of the same; the crucial principles of a

modern democratic law-based and constitutional state (Art. 1 para. 1 of

the Constitution), which is understood and defined as a “material

law-based state”, bound by supreme constitutional principles and values,

do not allow any such eventualities. In addition, the essence of legal

certainty as one of the attributes of a law-based state – containing

also protection of trust in law – in particular comprises the matter

that everyone may rely on the fact that the state provides them with

effective protection of their rights and assists them in implementing

their subjective right.

22. The Constitutional Court believes

that it is not its task to indicate in detail to the legislature which

legal arrangement the latter should adopt with respect to the issues

under examination. Prior to adoption of the same, however, it will be up

to the legislature to consistently and thoroughly weigh up whether it

is really acceptable that denial of issue or withdrawal of a travel

document be decided on by administrative authorities and administrative

courts, and whether this issue actually falls within their powers at

all. In terms of their consequences, this is actually a securing

institute; a decision on the necessity of using the same should be made

by such bodies of public power that administer proceedings in which such

a securing measure is to be used, i.e. bodies involved in criminal

proceedings. Review of such a decision by a court in the same

proceedings (that is in criminal proceedings) entails also a number of

incontestable advantages. These include not only efficiency and greater

knowledge of reasons for which the relevant body of public power deems

it indispensable to employ such a securing measure, but also, and in

particular, removal of undesirable overlap of various proceedings

administered by various bodies, these being bodies involved in criminal

proceedings and administrative bodies and administrative courts. In any

case, this was pointed out by the Senate in their statement in the

above-quoted case Pl. ÚS 12/07. By annulling the contested provisions of

the Act on Travel Documents, the Constitutional Court does not intend

to affirm the meaning pursuant to which the broad discretionary powers

of administrative authority alone, amended with judicial review under

full jurisdiction of administrative courts, effectively represents the

path the legislature should and must follow.

23. Therefore, the

Constitutional Court gathers that the provisions of § 23 clause c) of

Act No. 329/1999 Coll. on Travel Documents and on Alteration to Act No.

283/1991 Coll. on the Police of the Czech Republic, in the wording

effective from 1 January 2005, do not make it possible for ordinary

courts to acquit their obligations relating to the protection of the

fundamental rights and freedoms of individuals with respect to reviewing

a request by a body involved in criminal proceedings for withdrawal of a

travel document from a person against which they administer criminal

prosecution for a criminal act for which a sentence of imprisonment for

at least 3 years may be imposed; the same is true from the viewpoint of

limits of the condition of indispensability or inevitability of such

infringement in a democratic society, which represents a violation of

principles established in Art. 2 para. 2 and Art. 4 para. 1 of the

Charter. Thereby, the individual in question is, at the same time,

denied the right to effective judicial protection in accordance with

Art. 36 para. 2 of the Charter, which eventually leads to violation of

Art. 14 para. 1 and Art. 2 of Protocol No. 4 to the Convention as well.

24.

Therefore, the Constitutional Court has completely granted the petition

by the petitioner in accordance with Art. 95 para. 2 of the

Constitution, and annulled the contested provisions. However, at the

same time, the Constitutional Court adequately postponed enforceability

of the Judgment in order to make it possible for the legislature to

respond to the given circumstances in a constitutionally conformable

way.
 
25. The Constitutional Court has concluded that further

clarification of the matter cannot be expected from an oral hearing and

therefore the Court, upon approval by the parties, dispensed with the

same.
 
Note: Decisions of the Constitutional Court cannot be appealed.

In Brno on 15 September 2009
 

Pavel Rychetský
Chairman of the Constitutional Court