2010/09/29 - Pl. ÚS 32/08: Disciplinary Proceedings during Imprisonment

29 September 2010

HEADNOTES

 

The

general exclusion of the decisions issued within disciplinary

proceedings from judicial review (with the exceptions referred to above)

without their differentiation from the perspective of infringement of

the prisoner’s fundamental human rights is inconsistent with the

constitutional guarantee of the right to fair trial in accordance with

Article 36, para. 1 and 2 of the Charter. Hearing the complaint against

the imposition of the disciplinary punishment by the Prison Service

bodies does not meet the requirements for the protection of rights

before an independent and impartial tribunal. In accordance with Article

36, para. 2 of the Charter, refusing court protection is impossible in

the case of decisions affecting fundamental rights and freedoms.

 

The

unconstitutionality of the provisions of Section 76, para. 6 of Act No.

169/1999 Coll. shows, in particular, in the fact that on its basis,

decisions issued within disciplinary proceedings are generally excluded

from judicial review, with the only decisions concerning property being

exempt (see above). Paradoxically, higher protection is thus granted to

cases of infringement of property rights, whereas the domain of

infringements of the individual’s personal sphere is left without the

possibility of judicial review. The impact of certain disciplinary

punishments amounts to a severe infringement of the prisoner’s

fundamental rights and freedoms beyond the limits prescribed by law and

concerning imprisonment. The decisions imposing such disciplinary

punishments cannot be excluded from court jurisdiction in the situation

when they affect the fundamental rights and freedoms (Article 36, para. 2

of the Charter). In this respect, judicial review may exclude

arbitrariness when imposing certain most severe disciplinary

punishments, thus excluding their adverse consequences in the case of a

potential decision concerning parole.

 

It

is not the aim to achieve judicial review for all disciplinary

punishments but only for those that significantly affect the prisoner’s

personal integrity. This type of legal regulation is allowed by Article

36, para. 4 of the Charter. In the given case, introducing a wider

judicial review would not paralyse the activity of the Prison Service

bodies, nor would it have an impact on the operating flexibility and

effectiveness of the imposed disciplinary proceedings, since the

Imprisonment Act does not grant a suspensory effect to the complaint

against the decision on imposing a disciplinary punishment (with the

exemption of the disciplinary punishment on forfeiture of property), nor

does an administrative action suspend any decisions in this area.


 

 

 CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 

JUDGMENT

On

29 September, under the file reference Pl. ÚS 32/08, the Constitutional

Court Plenum, composed of Stanislav Balík, František Duchoň, Vlasta

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

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

Miloslav Výborný, Eliška Wagnerová, and Michaela Židlická adjudicated

upon the petition filed by the Supreme Administrative Court on 10

November 2008 to abolish Section 76, para. 6 of Act No. 169/1999 Coll.,

on Imprisonment and on Amendments of certain Related Acts, as amended,

as follows:

 

The

provisions of Section 76, para. 6 of Act No. 169/1999 Coll., on

Imprisonment and on Amendments of certain Related Acts, in the wording:

“Unless stated otherwise in this Act, decisions issued within

disciplinary proceedings shall not be subject to judicial review.”,

shall be annulled as of 30 June 2011.

 


REASONING

 

I.
1.

The Supreme Administrative Court filed a petition seeking to have the

afore-mentioned text of Section 76, para. 6 of Act No. 169/1999 Coll.,

on Imprisonment and on Amendments of certain Related Acts annulled, due

to its collision with the constitutional order of the Czech Republic.

The petition was filed in connection with the decision on the cassation

complaint filed by plaintiff A. Ž. (hereinafter referred to as

“plaintiff”) directed against the defendant – Prison Service of the

Czech Republic, filed against the resolution issued by the Municipal

Court in Prague on 19 October 2006, file reference 10 Ca 297/2006-23,

dismissing as inadmissible the action of A. Ž. against the decision of

the Prison Service issued on 21 October 2004. The above decision awarded

the plaintiff disciplinary punishment in accordance with Section 46,

para. 1 and para. 3, letter f) of Act No. 169/1999 Coll., on

Imprisonment and on Amendments of certain Related Acts (hereinafter

referred to as “Imprisonment Act”), resulting in his being placed in a

confinement unit of the correctional facility for the period of 5 days.

The reasoning behind the decision being that the plaintiff violated

Section 28, para. 2, letter j) and para. 3, letter b) of the

Imprisonment Act, by possessing forbidden objects that could – due to

their nature – cause damage to health or endanger someone’s life.

 

2.

The plaintiff filed a complaint against the award of the disciplinary

punishment, which was dismissed by the decision of the Prison Service on

21 October 2004. The plaintiff contested this decision by filing an

action within administrative justice, since he did not agree with the

conclusion of the Prison Service concerning the fact that conditions for

the award of the afore-mentioned disciplinary punishment had been met.

In its resolution issued on 19 October 2006, file reference 10 Ca

297/2006-23, the Municipal Court in Prague dismissed his action as

inadmissible. It relied on the legal regulation contained in Section 76,

para. 6 of the Imprisonment Act, wherein decisions of the Prison

Service within the disciplinary proceedings were excluded from judicial

review, with the exemption of the disciplinary punishment of forfeiture

of property and decisions on seizure of property. On the grounds of this

jurisdiction exclusion, the action was dismissed as inadmissible

pursuant to Section 46, para. 1, letter d) of Act No. 150/2002 Coll.,

the Code of Administrative Justice.

 

3.

The plaintiff filed a cassation complaint against this resolution of

the Municipal Court in Prague, alleging that excluding the judicial

review in the case concerning the award of a disciplinary punishment

was, in his case, inconsistent with Article 36, para. 2 of the Charter

of Fundamental Rights and Freedoms (hereinafter referred to as the

“Charter”). This is in fact a penalty imposed by an administrative body

which factually affects the severity of imprisonment. In particular, it

excludes the possibility of transfer into correctional facility with a

more lenient security regime in accordance with Section § 39b of the

Criminal Act. Another consequence lies in precluding a conditional

discharge from imprisonment.

 

4.

Within its preliminary ruling on the matter in the instant case, the

Supreme Administrative Court (hereinafter referred to as the

“petitioner”) held that the provisions of Section 76, para. 6 of the

Imprisonment Act excluding decisions issued within the disciplinary

proceedings (with the exemption of the disciplinary punishment of

forfeiture of property and decisions on seizure of property) from

judicial review were inconsistent with the constitutional order of the

Czech Republic. For this reason, pursuant to Article 95, para. 2 of the

Constitution of the Czech Republic and Section 64, para. 3 of Act No.

183/1993 Coll., on the Constitutional Court, as amended (hereinafter

referred to as the “Act on the Constitutional Court”, it filed a

petition seeking to have this provision annulled for the reasons

mentioned below.

 

5.

Imprisoned persons are obliged to conform to the regime of imprisonment

in accordance with the effective decision issued within the criminal

proceedings. Even though this punishment is traditionally referred to as

“imprisonment”, it is in fact a restriction of personal freedom the

extent of which is prescribed by law. This conclusion has been drawn

from the wording of the Imprisonment Act, wherein provisions of Section

27 distinguish between restricting and divesting certain rights for the

period of imprisonment. Similarly, additional measures interfering with

the prisoners’ rights are only admissible within the limits defined by

law. With respect to their severity, the procedure of imposing them

should not be lacking in adequate instruments of defence, eliminating

any arbitrariness or inadequateness.

 

6.

The submitted matter lies in examining the disciplinary punishment

imposed on the prisoner in the course of imprisonment by the Prison

Service of the Czech Republic, also in relation to Article 6, para. 1 of

the Convention on the Protection of Human Rights and Fundamental

Freedoms (hereinafter referred to as the “Convention”). The petitioner

referred to certain judgments of the European Court of Human Rights

(hereinafter referred to as the “ECHR”) relating to this area. The test

applied by the ECHR examining the nature of the sanction, i.e. whether a

certain sanction is “criminal”, was formulated in the judgment of the

court in the case of “Engel and others versus the Netherlands”, issued

on 8 June 1976. In this judgment, the ECHR attempted to define the

border between the “criminal” and “disciplinary” areas. In the judgment

in the case of “Campbell and Fell versus the United Kingdom”, issued on

28 June 1984, series A No. 80, the ECHR dealt with the border between

the disciplinary and criminal area within the prison environment,

holding that the principles set out in the “Engel” judgment applied to

the prison environment as well.

 

7.

The petitioner alleged similarity between the sanctions imposed in the

course of imprisonment in accordance with Section 43, para. 1 (sic –

correctly: Section 46, para. 3), letters f), g), and h) of Act No.

169/1999 Coll., and the sanctions which the ECHR recognised as falling

within the scope of Article 6, para. 1 of the Convention. As a result,

the existing system of the means of remedy against the decision on

imposing disciplinary sanctions imposed in accordance with Section 46,

para. 3, letters f), g), and h) of the Imprisonment Act is obviously

inconsistent with Article 6, para. 1 of the Convention. The petitioner

emphasised that within the ECHR judgment in the case of “Engel and

others versus the Netherlands”, the ultimate national instance deciding

on the complaint against disciplinary punishments was the Supreme

Military Court. Contrary to the legal regulation in the Czech Republic,

the complainants were provided with the protection on another level of

review, i.e. before a court (even though it was a military court).

 

8.

The petitioner pointed to the fact that the complaint filed in

accordance with Section 52 of the Imprisonment Act, the decision on

which falls within the competence of the prison director (or an

authorised employee of the Prison Service), cannot be considered in

relation to the severity of some of the imposed sanctions to be an

appropriate protection guaranteeing an independent review of the imposed

disciplinary punishment. The petitioner does not consider the

prisoner’s option to defend their rights before the supervising public

prosecutor as equal to the prisoner’s position within the court

proceedings, since the prisoner does not hold the position of a party to

the dispute. Furthermore, the supervision of the public defender of

rights cannot be perceived as an adequate protection owing to the

“facultative” nature of their recommendations which the Prison Service

is not obliged to accept. The issue of the provisions of Section 76,

para. 6 of the Imprisonment Act thus lies in the exclusion of judicial

review for all disciplinary punishments (with the exemption of

forfeiture of property) without any further differentiation according to

the severity and consequences, whereas at least some of these

punishments interfere with the fundamental rights and freedoms in

accordance with the Charter, and therefore, the review should not be

excluded from the jurisdiction in general.

 

9.

The prisoner’s right to freedom of movement and residence is thus only

limited, as expressly stipulated within 27, para. 2 of the Imprisonment

Act. The petitioner claims that in the course of imprisonment, the

prisoner cannot be exposed to arbitrariness or abuse of the position of

the Prison Service staff. Imposing a punishment consisting in placing

the prisoner into a confinement unit or solitary confinement could

result (with the presence of the afore-mentioned negative phenomena), in

significant infringement of the right protected by Article 7, para. 2

of the Charter, according to which no one may be subjected to torture or

to cruel, inhuman, or degrading treatment or punishment. It could also

result in the violation of Article 10, para. 1 of the Charter, according

to which everyone has the right to demand that their human dignity be

respected. The petitioner also referred to the provisions of Section 27,

para. 4 of the Imprisonment Act, according to which “on limitations

that shall be applied to a person in imprisonment or to persons under

criminal proceedings, providing that reasons of custodial sanctions have

been met, the court shall decide in compliance with a special act.” It

is thus a question whether this provision is not directly inconsistent

with Section 76, para. 6 of the same Act.

 

10.

The petitioner also referred to the inconsistency of the legislature’s

procedure, who expressly allowed judicial review only in the case of

imposing a disciplinary punishment of forfeiture of property (Section

52, para. 4 of the Imprisonment Act). This results in a situation when,

given the existing legal regulation, the court may review the

correctness of imposing a disciplinary punishment of forfeiture of

property of negligible value, yet such possibility is excluded, for

instance, when preventing the reception of a package of high value or

when taking a decision on placing the prisoner into solitary

confinement. Furthermore, it is impossible to overlook the impact of the

imposed disciplinary punishment onto decision-making concerning the

potential parole granted to the prisoner. In accordance with the

established court practice, when deciding on the prisoner’s application

concerning the parole, the court always takes into account the

prisoner’s conduct in the course of serving the sentence. Imposing a

disciplinary punishment therefore determines the court’s consideration

on the prisoner’s conduct. In case of a dismissal, a subsequent

application for parole can only be submitted upon the expiration of one

year.


II.
11. In accordance

with the provision of Section 69, para. 1 of the Act on the

Constitutional Court, the Constitutional Court asked for the statement

of the Chamber of Deputies and the Senate of the Parliament of the Czech

Republic.

 

12.

In his short statement, the Chairman of the Chamber of Deputies stated

that the contested provision of the Imprisonment Act had remained

without any amendments since its adoption. In accordance with the

government bill, the wording of the provisions of Section 76, para. 6 of

Act No. 169/1999 Coll. was as follows: “Decisions issued within

disciplinary proceedings shall not be subject to judicial review; this

shall not apply to decisions on forfeiture or seizure of property, whose

review may be sought within the extent and under the conditions

prescribed by a special regulation.” (It is the Civil Procedure Code

that serves as the special regulation.) On the basis of proposed

amendments contained in the resolution of the Committee on Petitions and

the Committee for Defence and Security, the provisions of Section 76,

para. 6 were amended into the current wording. The statement of reasons

concerning the provisions of Section 76, para. 6, referred to, in

relation to excluding the decisions issued within disciplinary

proceedings from judicial review, (the then effective) wording of

Section 248, para. 2, letter f) of the Civil Procedure Code.

 

13.

The Chairman of the Senate of the Parliament of the Czech Republic

stated, in a similar manner, that the contested provision had not been

subject to any legislative amendment over the existing period of its

effect. Even though the Senate committees took up different approaches

to the bill, the consideration focused, in particular, on the issues of

newly established or amended legal institutes of serving a prison

sentence. No attention was expressly paid to the issues of judicial

review of decisions issued within the disciplinary proceedings.


III.
14.

In accordance with Article 87, para. 1, letter a) of the Constitution

of the Czech Republic, the Constitutional Court has jurisdiction to

annul statutes or individual provisions thereof if they are in

contradiction with the constitutional order. Within these proceedings,

the Constitutional Court assesses the contents of the statute or any

other legal regulation from the perspective of their conformity to the

norms of the constitutional order, examining whether they have been

adopted and issued within the ambit of the powers set down in the

Constitution and in the constitutionally prescribed manner (Section 68,

para. 2 of the Act on the Constitutional Court). The statements of both

Chambers of the Parliament of the Czech Republic imply that Act No.

169/1999 Coll. was adopted and issued in the constitutionally prescribed

manner and within the ambit of the powers set down in the Constitution

of the Czech Republic.


IV.
15.

Having established this, the Constitutional Court proceeded to assess

the wording of Section 76, para. 6 of Act No. 169/1999 Coll., on

Imprisonment and on Amendments of certain Related Acts, from the

perspective of its conformity to the constitutional order of the Czech

Republic, concluding that the petition was legitimate. The wording of

the provision whose annulment was petitioned for is as follows: “Unless

stipulated otherwise within this Act, decisions issued within the

disciplinary proceedings shall not be subject to judicial review.”

 

16.

For the purposes of clear explanation of the given issues, it is

suitable to point out the related provisions. In particular, these

include Section 46, para. 1 of the given Act, according to which

“disciplinary trespass means culpable breach of commitment laid by the

law or of obligation that has been laid down on its basis, of order or

discipline in the course of the imprisonment.” According to paragraph 2

of the same provision, it applies that “for the sake of disciplinary

trespass disciplinary punishment can be imposed on the prisoner. The

disciplinary punishment shall not be imposed when hearing of the case of

disciplinary trespass with the prisoner is sufficient to achieve the

goal that is followed up”. Section 46, para. 3 of the same Act contains

the list of disciplinary punishments as follows: warning, reduction of

pocket money by up to one third for the period up to three calendar

months, prohibition of receiving one package in the course of a calendar

year, fine up to 1,000 CZK, forfeiture of an item, placement into a

confinement unit for a period up to 28 days excepting time dedicated to

performing assigned tasks of the treatment, all day placement into a

confinement unit for a period up to 20 days, placement into a solitary

confinement for a period up to 20 days, and deprivation of benefits

resulting from previous reward.
 

17.

According to Section 52 of the afore-mentioned Act, the prisoner is

entitled to file a complaint against the imposition of a disciplinary

punishment within 3 days after the notification of such imposition. It

is a complaint against imposing the disciplinary punishment of

forfeiture of an item only that has a suspensory effect. The perpetrator

of the disciplinary trespass or the person directly affected by the

decision on forfeiture of an item are entitled to file a complaint

against the decision within 3 days after the notification of such

decision, which has a suspensory effect. The prison director or an

authorised employee of the Prison Service shall make the decision on the

complaint within 5 working days following the submission. The employee

who imposed the disciplinary punishment or decided on the forfeiture of

an item cannot be authorised to issue a decision on the complaint. The

Director General of the Prison Service shall decide on the complaint

filed against the decision of the prison director. The review of the

decision on the forfeiture or seizure of an item before court may only

be sought under the conditions prescribed by a special legal regulation

in the same extent to which the review is permissible within the

trespass proceedings.


V.
18.

In the past, the Constitutional Court has already dealt with, on a

number of occasions, the issues of judicial review from the perspective

of maintaining the constitutional guarantee of due process. What all its

judgments have in common is that they have dealt with the

constitutionality of the decisions excluded from judicial review.

Summarising this case law results in the conclusions listed below.

 

19.

In the Judgment file reference Pl. ÚS 9/2000, issued on 17 January 2001

(N 8/21 Collection of Judgments 55; 52/2001 Coll.), upon adjudicating

the constitutionality of the so-called administrative punishment, the

Constitutional Court emphasised that the person affected must have a

possibility to seek the court review of a decision taken against them.

The review cannot be denied in the case when the decision concerns the

fundamental rights and freedoms in accordance with the Charter, the

Constitution of the Czech Republic and international treaties in

accordance with Article 10 of the Constitution of the Czech Republic.

 

20.

Furthermore, the Constitutional Court dealt with respecting the

guaranty contained in Article 6 of the Convention from the perspective

of judicial review in connection with the decision on disciplinary

penalties. In its Judgment issued on 23 November 1999, file reference

Pl. ÚS 28/98 (N 161/16 Collection of Judgments 185; 2/2000 Coll.), it

held that denying the protection in the matters of reviewing the

decisions issued by public administration bodies was not possible in

cases concerning the fundamental rights and freedoms in accordance with

the Charter, the Constitution of the Czech Republic and international

treaties in accordance with Article 10 of the Constitution of the Czech

Republic. Any other procedure is inconsistent with Article 36, para. 2

of the Charter and Article 4 of the Constitution of the Czech Republic.


VI.
21.

The issues concerning the right to a due process in the sense of the

“right to a hearing”, applying Article 6, para. 1 of the Convention, are

also dealt with in the case law of the European Court of Human Rights.

In the Judgment on the case of “Engel and others versus the

Netherlands”, issued on 8 June 1976, it set out a test applied by the

Court when assessing the nature of the sanction, attempting to determine

the border between the “criminal” and “disciplinary” areas. According

to its conclusions, it is necessary to determine, in particular, whether

the offence-defining provision belongs, in accordance with the legal

system of the defendant state, to the area of criminal law, disciplinary

law or both. However, this represents a basic starting point only. It

is the essence of the offence that is of greater importance, especially

the severity of the sanction that the person faces. In the “Engel” case,

the Court assessed the sanctions imposed on persons doing their

compulsory military service in the Netherlands, taking the form of a

light and aggravated arrest, committal to a disciplinary unit, and

temporary strict arrest. The servicemen on whom a disciplinary penalty

was imposed defended themselves by filing a complaint to the complaints

officer, whose decision was subsequently reviewed by the Supreme

Military Court. In the given case, the ECHR emphasised that the imposed

punishments would have undoubtedly been deemed a deprivation of liberty

if they had been applied to a civilian. When imposed upon a serviceman,

though, they may not possess these characteristics. Disciplinary

punishments imposed in the course of military service exceed the scope

of effect of Article 6, para. 1 of the Convention only on condition that

“they do not take the restrictions that clearly deviate from the normal

conditions of life within the armed forces”. On the basis of this

criterion, the ECHR recognised as deprivation of personal liberty the

sanctions of aggravated arrest and committal to a disciplinary unit,

rather than simple or strict temporary arrest. It held that in order for

the State to be exempt from the basic liability to provide a fair trial

in criminal matters, it is not sufficient to qualify certain

wrongdoings as disciplinary.

 

22.

Another ECHR judgment concerning this area is the Judgment on “Campbell

and Fell versus the United Kingdom”, issued on 28 June 1984, series A

No. 80. In the instant case, the Court dealt with the distinction

between the disciplinary and criminal area also in the military

environment, holding that “The Convention is not opposed to the

Contracting States creating or maintaining a distinction between

criminal law and disciplinary law and drawing the dividing line, but it

does not follow that the classification thus made is decisive for the

purposes of the Convention ... justice cannot stop at the prison gate

and there is, in appropriate cases, no warrant for depriving prisoners

of the safeguards of Article 6. It follows that the principles set forth

in the Engel and Others judgment are also relevant, mutatis mutandis,

in a custodial setting.”

 

23.

The provisions of Section 76, para. 6 of Act No. 169/1999 Coll., on

Imprisonment and Amendments of certain Related Acts, contested by the

petitioner, thus do not respect the principles on which the ECHR case

law is based when interpreting and applying Article 6, para. 1 of the

Convention, according to which everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law, deciding on their civil rights or

obligations or the lawfulness of any criminal charges pressed against

them.


VII.
24. After

assessing the content of Section § 76, para. 6 of Act No. 169/1999

Coll., on Imprisonment and Amendments of certain Related Acts, from the

perspective of constitutional guarantees of fair trial, the

Constitutional Court came to the following conclusions. In conformity

with Article 1 of the Constitution of the Czech Republic, the Czech

Republic is a sovereign, unitary, and democratic state governed by the

rule of law, founded on respect for the rights and freedoms of man and

of citizens. In accordance with Article 4 of the Constitution of the

Czech Republic, the fundamental rights and basic freedoms enjoy the

protection of judicial bodies. Undoubtedly, the right to judicial

protection ranks among the fundamental characteristics of the state

governed by the rule of law.

 

25.

With respect to Article 36, para. 1 of the Charter, everyone may

assert, through the prescribed procedure, their rights before an

independent and impartial court or, in specified cases, before another

body. According to paragraph 2 of the same Article, unless a law

provides otherwise, a person who claims that his or her 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 freedoms listed

in this Charter may not be removed from the jurisdiction of courts.

 

26.

In the instant case, the key question is whether some of the decisions

on imposing a disciplinary punishment (see above) are decisions

affecting the fundamental rights and freedoms in accordance with the

Charter. This may be implied by the wording of the Charter articles

mentioned below. The provisions of Article 1 of the Charter stipulate

that all people are free and equal in their dignity and rights. The

Charter establishes the principle that any limitations of fundamental

rights and freedoms prescribed by law must apply in the same way to all

cases which meet the specified conditions. When employing the provisions

concerning limitations upon the fundamental rights and freedoms, the

essence and significance of these rights and freedoms must be preserved.

Such limitations shall not be misused for purposes other than those for

which they were enacted (Article 4, para. 3 and 4 of the Charter).

Article 7, para. 2 of the Charter stipulates that no one may be

subjected to torture or to cruel, inhuman, or degrading treatment or

punishment.

 

27.

The provisions of Section 27 of the Imprisonment Act regulate the

limitations and deprivation of certain rights of prisoners. As a matter

of principle, during the imprisonment, prisoners are obliged to submit

to a limitation of certain rights and freedoms the execution of which

would be in conflict with the purpose of the imprisonment or that cannot

be applied with respect to the imprisonment. The Act enumerates the

rights and freedoms subject to limitations and of which the prisoner is

deprived during the imprisonment. This implies that any further

limitations imposed on rights and freedoms exceed the scope of

limitations enumerated by law. Some of the decisions on disciplinary

punishments represent such further limitations of the prisoner’s status

and may, depending on the character and severity of the sanction, amount

to a substantial infringement of their fundamental rights and freedoms

(e.g. being placed in a confinement unit for the period of up to 28 days

or all-day placement in a confinement unit or solitary confinement).

For the reasons mentioned above, such decisions must be regarded as

decisions affecting fundamental rights and freedoms. For this reason,

they cannot be removed from the jurisdiction of courts (Article 36,

para. 2 of the Charter).

 

28.

The deficiency of the existing legal regulation lies in the fact that

it does not distinguish between individual disciplinary punishments from

the perspective of the severity of their impact onto the prisoner’s

status. In fact, based on the application of Section 76, para. 6 of the

Imprisonment Act, the judicial review is excluded in the case of all

decisions imposed within disciplinary proceedings (with the exemption of

decisions on forfeiture or seizure of property). The legal exclusion of

the judicial review applies both to disciplinary punishments of a

lighter nature (such as a warning, pocket money reduction, or penalty),

and disciplinary punishments which undoubtedly and substantially

infringe upon the prisoner’s rights and freedoms (placement into a

confinement unit for the period of up to 28 days, all-day placement into

a confinement unit for the period of up to 20 days, or placement in

solitary confinement for the period of up to 20 days), amounting to

significant  extension of the existing freedom restriction. The manner

of serving these punishments is regulated in detail within Section 49 of

the same Act. Within the disciplinary punishment of placement into

solitary confinement, the prisoner does not work, does not participate

in the treatment programme, is not allowed to smoke, read daily press,

books or any other publications except legal, educational or religious

literature, and is not allowed to purchase foodstuffs and personal items

except toiletries. They are not allowed to rest in bed outside the

period specified within the internal rules. The same procedure is

adopted in the case of a disciplinary punishment of placement into a

confinement unit, with the difference that the prisoner is obliged to

carry out cleaning work and work necessary to ensure the ordinary

operation of the prison.

 

29.

Excluding the decisions issued within disciplinary proceedings from

judicial review, while not differentiating their severity, cannot

withstand the test from the perspective of the requirements of Article

36, para. 2 of the Charter and Article 6, para. 1 of the Convention, as

mentioned above. The paradox of the current legislation consists in the

fact that judicial review is admissible in matters concerning property

(forfeiture or seizure of property), while it is excluded in matters

concerning serious infringement of the essentially personal sphere of

the prisoner (placement in a confinement unit or placement in solitary

confinement). The property thus enjoys higher protection that the

personal sphere of an individual, albeit a prisoner.

 

30.

Imposition of a disciplinary punishment also has an impact on parole.

When deciding on the prisoner’s application, courts take into account

the prisoner’s behaviour in the course of imprisonment. The imposed

disciplinary punishments may thus affect the court’s decision in this

respect.

 

31.

To sum up, the existing system does not grant the prisoner, due to the

exclusion of judicial review, efficient procedural protection against

the decision imposed within the disciplinary proceedings. This has also

been mentioned in the professional literature when examining the

prepared bill on imprisonment: “… the bill provides prisoners with a

relatively broad possibility “to make a complaint”, but on the other

hand, a relatively narrow possibility to initiate, by their own act,

administrative or court proceedings in which their objections would have

to be decided upon by an independent and impartial body without the

need to file with the Constitutional Court immediately”. (V. Mikule and

O. Novotný in publication “Vězeňství a právo” / Prison Service and Law,

in Pocta D. Hendrychovi k 70. Narozeninám / Honour to D. Hendrych to his

70th Birthday, C. H. Beck, 1997, pp. 232–237).

 

32.

The general exclusion of the decisions issued within disciplinary

proceedings from judicial review (with the exceptions referred to above)

without their differentiation from the perspective of infringement of

the prisoner’s fundamental human rights is inconsistent with the

constitutional guarantee of the right to fair trial in accordance with

Article 36, para. 1 and 2 of the Charter. Hearing the complaint against

the imposition of the disciplinary punishment by the Prison Service

bodies does not meet the requirements for the protection of rights

before an independent and impartial tribunal. In accordance with Article

36, para. 2 of the Charter, refusing court protection is impossible in

the case of decisions affecting fundamental rights and freedoms. The

unconstitutionality of the provisions of Section 76, para. 6 of Act No.

169/1999 Coll. shows, in particular, in the fact that on its basis,

decisions issued within disciplinary proceedings are generally excluded

from judicial review, with the only decisions concerning property being

exempt (see above). Paradoxically, higher protection is thus granted to

cases of infringement of property rights, whereas the domain of

infringements of the individual’s personal sphere is left without the

possibility of judicial review. The impact of certain disciplinary

punishments amounts to a severe infringement of the prisoner’s

fundamental rights and freedoms beyond the limits prescribed by law and

concerning imprisonment. The decisions imposing such disciplinary

punishments cannot be excluded from court jurisdiction in the situation

when they affect the fundamental rights and freedoms (Article 36, para. 2

of the Charter). In this respect, judicial review may exclude

arbitrariness when imposing certain most severe disciplinary

punishments, thus excluding their adverse consequences in the case of a

potential decision concerning parole.

 

33.

In this respect, it is also possible to rely on the specific

circumstances of the case of the plaintiff, established from the file

reference 9 As 2/2008 of the Supreme Administrative Court. The prisoner

was given a disciplinary punishment in the form of placement into a

confinement unit for the period of 5 days since “he had owned prohibited

objects whose character could damage health or jeopardise life.”

According to the Prison Service, these objects included an amateurishly

made transformer and an amateurishly made AA batteries case.” According

to the plaintiff, it was not a transformer but mere non-functional

electronic components which he had found in the courtyard where they

were left in large numbers. This dispute on the character of the

afore-mentioned components was not dealt with at all in the subsequent

stages of the proceedings, thus leaving doubts concerning the reason

itself for imposition of the disciplinary punishment.

 

34.

On the basis of the afore-mentioned findings, the Plenum of the

Constitutional Court concluded that the provisions of Section 76, para. 6

of Act No. 169/1999 Coll. are in contradiction with Article 36, para. 1

and 2 of the Charter. They do not as much as meet the criteria of the

fair trial guaranteed in Article 6, para 1 of the Convention on the

Protection of Human Rights and Fundamental Freedoms. For this reason,

the Plenum decided to annul it in accordance with Section 70, para. 1 of

the Act on the Constitutional Court without an oral hearing, applying

Section 44, para. 2 of the same Act, since the parties to the

proceedings had consented to dispense with the oral hearing.

 

35.

It is not the aim to achieve judicial review for all disciplinary

punishments but only for those that significantly affect the prisoner’s

personal integrity. This type of legal regulation is allowed by Article

36, para. 4 of the Charter. In the given case, introducing a wider

judicial review would not paralyse the activity of the Prison Service

bodies, nor would it have an impact on the operating flexibility and

effectiveness of the imposed disciplinary proceedings, since the

Imprisonment Act does not grant a suspensory effect to the complaint

against the decision on imposing a disciplinary punishment (with the

exemption of the disciplinary punishment on forfeiture of property), nor

does an administrative action suspend any decisions in this area.

 

36.

Within the proceedings on reviewing legislative norms, the

Constitutional Court acts as the so-called negative legislature,

authorised only to annul the contested legal regulation. In order to

remove the unconstitutionality of the contested provisions of Act No.

169/1999 Coll., a positive response of the legislature is required,

whose aim is adopting a constitutionally conforming legal regulation of

the differentiated review of decisions on imposed disciplinary

punishments in those cases when the imposed punishment substantially

affects the personal integrity of an individual, albeit a prisoner. The

legislature will also have to solve the issue of practicality and

efficiency of the review procedure, i.e. whether jurisdiction will be

granted to ordinary courts where criminal proceedings take place or

whether such cases will be heard before administrative courts. For this

reason, the Constitutional Court has deferred the effect of the

annulment of the contested provisions until 30 June 2011 in order to

provide the Parliament of the Czech Republic a sufficient period of time

to adopt adequate legislation.
_________________________________________________________________________________________________________________

 


In

accordance with Section 14 of Act No. 182/1993 Coll., on the

Constitutional Court, as amended, Plenum Judges Pavel Holländer and Jiří

Nykodým expressed their dissenting opinions to the Plenum Judgment.
 
1. Dissenting opinion of Judge Pavel Holländer

The

dissenting opinion filed to the Judgment of the Constitutional Court,

file reference Pl. ÚS 32/08, which annuls the provisions of Section 76,

para. 6 of Act No. 169/1999 Coll., on Imprisonment and Amendments of

certain Related Acts, is based on the following arguments.

 

The

derogation reason of the Judgment consists in “general exclusion of the

decisions issued within disciplinary proceedings from judicial review

with the only exception of decisions related to property”, which means

that “paradoxically, higher protection is thus granted to cases of

infringement of property rights, whereas the domain of infringements of

the individual’s personal sphere is left without the possibility of

judicial review. The impact of certain disciplinary punishments amounts

to a severe infringement of the prisoner’s fundamental rights and

freedoms beyond the limits prescribed by law and concerning

imprisonment.” In accordance with the majority vote, “it is not the aim

to achieve judicial review for all disciplinary punishments but only for

those that significantly affect the prisoner’s personal integrity … In

the given case, introducing wider judicial review would not paralyse the

activity of the Prison Service bodies, nor would it have an impact onto

the operating flexibility and effectiveness of the imposed disciplinary

proceedings, since the Imprisonment Act does not grant a suspensory

effect to the complaint against the decision on imposing a disciplinary

punishment (with the exemption of the disciplinary punishment on

forfeiture of property), nor does an administrative action have a

suspensory effect in this area.” As a result of the afore-mentioned, the

Judgment considers the provisions of Section 76, para. 6 of the

Imprisonment Act as inconsistent with Article 36, para. 1 and 2 of the

Charter of Fundamental Rights and Freedoms and with Article 6, para. 1

of the Convention on the Protection of Human Rights and Fundamental

Freedoms. As obiter dictum in its Judgment, the Constitutional Court

adds that “the legislature will also have to solve the issue of

practicality and efficiency of the review procedure, i.e. whether

jurisdiction will be granted to ordinary courts where criminal

proceedings take place or whether such cases will be heard before

administrative courts”.

 

In

accordance with the statement of reasons related to the draft Criminal

Code (Act No. 40/2009 Coll.), “the purpose of criminal sanctions –

punishments and protection measures (the existing Section 23 of the

Criminal Act) is no longer expressly stipulated in the draft Criminal

Code (its definition has been left to criminal science), being replaced

with a reflection of general principles of punishment in the individual

provisions concerning criminal sanctions … The purpose of punishment

then arises not only from these general principles but also from the

overall concept of the Criminal Code, and particularly from the

individual provisions governing the imposition of criminal sanctions …

Similarly, the general principles for imposition of  sanctions are not

defined by the law but they are directly reflected in the wording of

individual provisions governing the general approaches to imposing

criminal sanctions, as well as specific punishments and protection

measures and their imposition”. Among these principles, the statement of

reasons includes the principle of legality, the principle of

proportionality (adequacy and appropriateness) related to the sanction

for a committed crime, the principle of individualisation of applied

sanctions, the principle of the sanction personality, the principle of

incompatibility of certain types of sanctions with the same offender,

and the principle of humanity of sanctions. Furthermore, it points out

the reflection of the purpose of the sanctions with the perspective of

imposing them: “The new concept of the purpose of sanctions, ensuring

their proportionality, effectiveness and deterrent effect, is expressed

in the statutory criteria of their imposition, which are contained in

specific proposed provisions of the Criminal Code, governing both

general assumptions and principles of imposing sanctions, as well as

conditions of imposing individual sanctions”.

 

In

the provisions of Section 27, para. 1 of the Imprisonment Act, the

legislature established the prisoner’s obligation to submit, during the

imprisonment, a limitation of certain rights and liberties the execution

of which would be in conflict with the purpose of the imprisonment or

that cannot be applied with respect to the imprisonment. After adopting

the new Criminal Code, this envisages weighing the purpose of a prison

sentence, contained only implicitly in the statutory regulation, and

those fundamental rights and freedoms the exercise of which would be in

contradiction with such purpose or which cannot be applied due to

serving such a sentence.

In this

respect, the Judgment did not raise the question concerning the relation

between the imposition of disciplinary punishments and meeting the

purpose of imprisonment and whether these punishments (and to what

extent) extend or deepen the area of fundamental rights and freedoms

which are inconsistent with the purpose of serving the punishment or

which cannot be applied due to serving the punishment. It did not raise

the question of whether even such potential extension or broadening

falls (or does not) within the scope as defined by Section 27, para. 1

of the Imprisonment Act.

 

Satisfying

the principle of humanity of imprisonment and related protection of

human dignity also requires the mechanism of external supervision over

the imprisonment. At present, the law entrusts this external supervision

to the public prosecution (Section 78 of the Imprisonment Act), as well

as to the public defender of rights (Section 1, para. 3 and 4 of Act

No. 349/1999 Coll., on the Public Defender of Rights, as amended).

 

For

the purposes of achieving the aims intended by the institute of

disciplinary punishments in the course of imprisonment, which also

include individual and general prevention, expeditiousness, immediacy

and promptness of their imposition are essential. In its Judgment,

against which this dissenting opinion is directed, the Constitutional

Court failed to submit to the proportionality test the colliding purpose

of the punishment and extensions and limitations associated with

imposing disciplinary punishments, nor even these limitations and

efficiency of the existing means of external supervision over the

protection of rights.

 

Provided

that the judicial review excluding a suspensory effect of the imposed

disciplinary punishments is subsequently taken into consideration (since

otherwise, these would usually lose their purpose), this leads to the

question of efficiency and purpose of such review (which would be

conceivable on the level of satisfaction only or on the level of

consequences for deciding on parole). The consideration on potentially

granting the jurisdiction to administrative courts then establishes a

possibility of post-modern abandonment of the division of courts into

civil, criminal and administrative courts, and granting the jurisdiction

to administrative courts, the application of which cannot neglect

criminal aspects, either. Finally, provided that the term of

“legislative optimism” has become part of the legal jargon since the

1990s, in the instant case (as well as in a number of others), we have

been confronted with another similar phenomenon: justice optimism, i.e.

an often naïve idea that every social problem or every instance of

exercise of rights must be associated with the jurisdiction of courts.

The justice has been turning into a dinosaur, which – as expressed by

Yevgeny Yevtushenko – “resembles a clumsy dinosaur with rachitic little

legs, bent under the weight of the trunk, and with a tiny brain located

too far from the tail.” 1)

 

The

legal opinion of the Constitutional Court, expressed in its Judgment

file reference Pl. ÚS 5/94, issued on 30 November 1994 (N 59/2

Collection of Judgments 155; 8/1995 Coll.), may serve as a certain

starting point for the deliberation over the proportionality test, which

associated the severity of decisions on transferring the prisoner from

one prison type to another with the need of judicial review. This could

imply the consequence, according to which in the case when a

disciplinary punishment in accordance with Section 46, para. 3 of the

Imprisonment Act comparably amounts to limitations of fundamental rights

due to its severity, adequate court protection must be required (e.g.

in the case of a disciplinary punishment of placing the prisoner in

solitary confinement for the period of up to 20 days).

 

With

respect to the afore-mentioned, I do not consider the provisions of

Section 76, para. 6 of Act No. 169/1999 Coll., on Imprisonment and

Amendments of certain Related Acts, in their integrity, as inconsistent

with the constitutional order. Furthermore, I cannot identify with the

applied test of their constitutionality, as outlined in the reasoning

behind the Judgment, file reference Pl. ÚS 32/08.
---------------
1) Y. Yevtushenko, Literárny týždenník (Literature Weekly), Vol. 32, 1989, p. 11.
_____________________________________________________________________________

 


2. Dissenting opinion of Judge Jiří Nykodým

I

disagree with the adopted Judgment annulling the provisions of Section

76, para. 6 of Act No. 169/1999 Coll., on Imprisonment and Amendments of

certain Related Acts, for the reasons as follows:

Undoubtedly,

decisions issued within disciplinary proceedings against the prisoner

serving a sentence may significantly affect their fundamental rights.

Nevertheless, this is implied in the very fact of awarding the prison

sentence. The manner of serving the sentence is a consequence of

conviction which took place on the basis of a court’s decision,

delivered after a due process of law. Serving the sentence includes the

obligation to submit to a certain regime which substantially affects the

prisoner’s personal freedom, and consequently other fundamental rights

and freedoms. All these limitations are thus a result of the decision of

the sentencing court. The possibility to impose disciplinary

punishments is not an expression of arbitrariness on the side of prison

guards, but it is governed by the law and related subordinate

legislation. Apart from hierarchical supervision of the bodies of the

Prison Service of the Czech Republic, it is also subject to supervision

by the public prosecution, the Ministry of Justice and the public

defender of rights. For this reason, I believe that there is sufficient

protection of the prisoner against arbitrariness when imposing

disciplinary punishments.

It

cannot be overlooked that a decision issued within disciplinary

proceedings is usually an immediate response to a breach of discipline,

where the speed of imposing the punishment and its quick enforcement

serves as a guarantee of maintaining the required discipline. It remains

unclear whether the judicial review, preferred in the Judgment, should

have a suspensory effect. If so, it could result in completely absurd

consequences that by the time of issuing a court decision, for instance,

the disciplinary punished prisoner would have been released due to the

expiration of the imprisonment period. This could also result in a

situation when prisoners whose sentence is about to end would become

practically uncontrollable. They would be aware that they in fact could

no longer be punished for their disciplinary offences. If it does not

have the suspensory effect, as implied in the Judgment, one must

question the sense or efficiency of such measure.

Section

29 of the reasoning behind the Judgment reads that the paradox of the

current legislation consists in the fact that judicial review is

admissible in matters concerning property (forfeiture or seizure of

property), while it is excluded in matters concerning serious

infringement of the essentially personal sphere of the prisoner

(placement in a confinement unit or placement in solitary confinement);

and property thus enjoys higher protection than the personal sphere of a

human being, albeit a prisoner. This is not a paradox at all, though. A

prison sentence is a targeted intervention in individual rights, and it

encompasses an obligation to submit to the regime of serving such

sentence, which is prescribed by law, including the obligation to submit

to the regime of disciplinary punishment consisting in toughening the

restriction of personal freedom as a result of breach of the discipline

required by law. The fact that a means of judicial protection of

property makes sense in this case, since it is impossible to extend the

consequences of the restriction of personal freedom beyond the period of

a prison sentence. Due to its nature, removal of property is a

permanent measure affecting the property sphere. The fact that the

Imprisonment Act, in its Section 52, para. 4, allows the judicial review

of the decision on requisition or forfeiture of property is thus a mere

logical consequence of the fact that requisition or forfeiture of

property exceeds the restriction of the prisoner’s personal freedom,

which is included in the court’s decision awarding a prison sentence,

and interferes with another fundamental right to own property, and such

intervention on its own is not covered in the court’s decision on

punishment.

The main argument in

favour of the judicial review of some disciplinary punishments indicated

in the Judgment is more effective defence against their vexatious

imposition. I do not believe that judicial review will be a more

effective means than the criminal liability of the guard member for

misuse of powers and their liability for the disciplinary offence. For

this reason, it is not necessary, in my opinion, to introduce further

protection against something that is already punishable by law.

Paraphrasing the quote from the ECHR Judgment in the case of Campbell

and Fell versus the United Kingdom No. 7819 and 7878/77, issued on 28

June 1984 and included in section 22 of the Judgment, justice does not

stop at the prison gate and prisoners are not deprived of protection in

accordance with Article 6 of the Convention; it is just that such

protection does not necessarily have to be provided in the form of the

judicial review of disciplinary punishment.

The

effort to submit almost any decision issued by a public authority to

judicial review achieves absurd proportions, and there is no guarantee

that it is just this particular review that will provide more efficient

protection of prisoners’ human rights and freedoms compared to the

existing system of protection. This includes both the possibility to

file a complaint against the disciplinary sanction and the possibility

to turn to the public prosecution, the Ministry of Justice, and the

public defender of rights. Besides, it remains unclear whether courts

should determine only whether the sanction imposed by the prison guard

does not amount to vexatious conduct or whether they should examine all

the factual circumstances preceding the imposition of a disciplinary

punishment, or whether the imposed disciplinary punishment corresponds

to the established conduct or not, with the possibility to modify the

imposed sanction. In other words, will it be the review of “lawfulness”

or the review in full jurisdiction? In any case, it will result in

further extension of the already comprehensive agenda of general courts

with possible implications for the course of any other proceedings.

The

idea that judicial review is an all-remedying solution to achieve

justice is also irrational. Quite naturally, every court decision

involves doubts of the parties to the proceedings concerning its

correctness, being essentially the same as in relation to decisions that

are due for review. In the eyes of the parties to any court

proceedings, the result is usually perceived so that one injustice is

being replaced with another one, depending on who is affected by the

decision. For this reason, the attempt to seek justice cannot run to

extremes. It is simply too much of a good thing, as it is quite aptly

put in the book Ecclesiastes: “There is a just man that perisheth in his

righteousness, and there is a wicked man that prolongeth his life in

his wickedness. Be not righteous over much; neither make thyself over

wise: why shouldest thou destroy thyself?” (Ecclesiastes 7, 15–16).