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Amnesty - Decision on Violation of Amnesty Conditions


In order to interpret Section 368 of the Criminal Procedure Code in a constitutionally conforming manner, it must be construed that the ordinary court whose jurisdiction is laid down in this provision also decides whether any condition laid down in an amnesty decision of the President of the Republic has been violated. Whether or not any such condition has been violated shall be decided by the ordinary court in its public session. Any different court procedure would result in a violation of the right of the person granted (conditionally) amnesty to judicial protection under Article 36 (1) of the Charter of Fundamental Rights and Freedoms, the right to defence and the adversary nature of the proceedings under Article 38 (2) and Article 40 (3) of the Charter, and the right to the protection of personal liberty within the meaning of Article 8 (1) and (2) of the Charter.

 

Summary:

 

I. On the basis of the Decision of the President of the Republic No. 1/2013 Coll., on the amnesty of 1 January 2013, the amnesty was applied to the criminal case of the complainant of 2009 on the condition that the person granted the amnesty “does not commit a criminal offence within the time limit for the erasure of the conviction from his/her criminal records”. At the instigation of the District Court, the President of the Republic, in his statement of 12 September 2017, noted that the complainant had violated the condition referred to above and the District Court subsequently sent a call for the commencement of serving an imprisonment term to the complainant on 5 October 2017. In particular, the complainant argued in the constitutional complaint that he had been deprived of his liberty without proper legal action, as the violation of amnesty conditions should have been decided at court.

 

Based on the statements of the parties to the proceedings, the Constitutional Court found that the criminal courts claim that the President of the Republic decides on a violation of the amnesty; however, the President of the Republic is convinced that the courts decide on this matter. The President of the Republic stated in the proceedings before the Constitutional Court that he had issued the contested statement because the courts required the issuing of the document and rejected to issue a call for the commencement of serving an imprisonment term without that document. According to the Office of the President of the Republic, his act establishing the violation of the condition is not a decision. The fact that a person has violated an amnesty condition is in fact given by the appropriate final decision of the court by which the person granted an amnesty was convicted of a criminal offence again. The District Court, on the other hand, informed the Constitutional Court that it had ordered the complainant to serve the remaining term of the sentence of imprisonment on the basis of the aforementioned statement by the President of the Republic, which the District Court considers a decision on the violation of an amnesty condition.

 

II. The Constitutional Court first considered whether it was possible that the President’s decision to grant an amnesty is be linked to a condition the fulfilment of which may exempt the person originally participating in an amnesty from his or her participation in the amnesty. Article III (1) of the Amnesty Decision lays down no other conditions than committing no criminal offence, which promotes a socially desirable behaviour, and this condition is not even manifestly inadequate. The Constitutional Court, therefore, found this condition admissible. The existing judicial practice and commentary on the Criminal Procedure Code are based on the fact that the decision that the amnesty no longer applies to a person granted amnesty for any violation of the conditions laid down in the amnesty lies within the competence of the President of the Republic. However, the Constitutional Court has found this legal opinion contrary to the constitutional order and the fundamental rights of the complainant. Although the legal framework of the Criminal Procedure Code is very succinct in relation to the amnesty, it does not exempt the criminal courts from the duty to protect fundamental rights as explicitly required by Article 4 of the Constitution.  The right to judicial protection under Article 36 (1) of the Charter, the right to defence and the adversary nature of the proceedings under Article 38 (2) and Article 40 (3) of the Charter, and the right to the protection of personal liberty under Article 8 (1) and (2) of the Charter require the court to decide whether the complainant has violated the condition set out in Article III (1) of the Amnesty Decision.

 

The Constitutional Court has noted that in order to interpret Section 368 of the Criminal Procedure Code in a constitutionally conforming manner, namely the provisions: “The decision on whether and to what extent the person who has been legally sentenced is taking part in the amnesty shall be made by a court that has decided in the first instance. If such person is serving a sentence of imprisonment at the time of the decision, such decision shall be made by the court in whose jurisdiction the sentence is exercised”, it must be construed that the court whose jurisdiction is laid down in this provision also decides whether a violation of the condition laid down in the amnesty decision. A violation of a condition shall be decided by an ordinary court in its public session so that a party to the proceedings may put forward any possible objections and reservations (e.g. that the criminal offence was committed outside the specified time frame). It stressed that it cannot be admitted that anyone is being deprived of his or her personal liberty without proper hearing.

 

The Constitutional Court did not cancel the call for the commencement of serving an imprisonment term and rejected the complainant’s complaint in that part for lack of jurisdiction, since this call is only a measure not establishing rights and obligations and, therefore, is not a decision. The Constitutional Court did not annul the statement of the President of the Republic either, because in fact it was not (and could not be) a decision, despite the fact that the District Court mistakenly considered it a decision on the violation of an amnesty condition. Only the procedure of the court that did not consider whether the conditions of the amnesty in the complainant’s case had actually been violated before issuing a call for the commencement of serving an imprisonment term was unconstitutional. The Constitutional Court has concluded that in the case under consideration the ordinary court having jurisdiction should decide in its public session whether or not the complainant violated the amnesty conditions. If another unconditional sentence of imprisonment has been imposed upon the complainant and has not been served yet, the complainant shall continue to serve imprisonment.

 

III. The judge-rapporteur in the case was Ms Kateřina Šimáčková. Judges Jaroslav Fenyk, Josef Fiala, Vladimír Sládeček, and Radovan Suchánek had a dissenting opinion on the verdict and reasoning of the judgment. Judge David Uhlíř had a dissenting opinion on the reasoning of the judgment.

 

While judge Uhlíř was in agreement with the statement of the judgement, he pointed out that the complainant’s rights had also been violated by the fact that he had been forced to serve the sentence. Judge Uhlíř disagreed with the Constitutional Court’s attempt to construe Section 368 of the Criminal Procedure Code in a constitutionally conforming manner and believed that if the law had a gap, a person who had been granted amnesty once could not be called any more for serving a sentence conditionally remitted. This, according to him, results from the strict adherence to the prohibition of arbitrariness principle.

 

According to judge Sládeček, the President of the Republic should decide on a violation of amnesty conditions through his act. By its majority decision, the Constitutional Court did not make a constitutionally conforming interpretation but rather completed the sub-constitutional law using an inadmissible analogy of criminal law. The power to grant an amnesty, i.e. to decide to grant an amnesty, as well as any violation of its terms, should belong to the executive, not the judicial, power. The majority decision adopted was thus inconsistent with the constitutionally defined separation of powers. Judge Suchánek also believed that there had been no violation of the complainant’s rights in the court proceeding prior to the issuing of the call for the commencement of imprisonment term and, therefore, the complaint should be dismissed. A judgment of the Constitutional Court substitutes for the legislature when it grants the courts a new power which is not supported by the Criminal Procedure Code, let alone the Constitution. In the absence of explicit constitutional and statutory regulation, in the case of assessing any violation of the conditions laid down in the amnesty, the power of the President of the Republic established primarily by the Constitution shall be applied to the case of assessing a violation of the conditions laid out in the amnesty. The dissenting judges also joined the dissenting opinion of judges Fenek and Fiala.

 

Judges Fenyk and Fiala have argued that an amnesty and a pardon have the same purpose and, therefore, there is no justification or support in the Constitution for different legal rules to be applied to reviewing the fulfilment of the conditions imposed. The amnesty as well as the pardon constitutes a non-transferable subjective right of the President. Such rights cannot be transferred, even in part, to any other authority, much less to a court belonging to another branch of state power. Although the judges perceived the good intentions of most of the Plenum, its decision violated the principle of the separation of powers. The President is not significantly limited, while deciding on amnesty, in its scope and content by the Constitution or by law, except for the countersigning. The President may decide on amnesty while complying with either existing or future conditions that are not specified in the Constitution or in the sub-constitutional law. There is no point in comparing amnesty and pardon with the institution of conditional sentencing. The question of whether the President’s broad powers in relation to pardons and amnesties are in line with the current concept of the protection of human rights and the concept of a modern democratic rule of law is not a matter for the decision-making by the Constitutional Court but for all-society discourse and constitution forming bodies. The problem, which the Constitutional Court encountered in adopting this judgment, can only be solved by the positive legislature or constitution forming body.

 

The dissenting judges pointed out that the analysis should also include the previous amnesties with similar conditions imposed by the President. The judgment might have to deal with why the solutions then chosen to check such conditions are already unusable today. The dissenting judges have also pointed out that if the decision-making of the judiciary on criminal sanctions results in a rule and a system, the judiciary cannot also take part in deciding on an exception to that rule and system. In addition, according to the dissenting judges, Article 4 of the Constitution is not a specific competence regulation, from which it can be inferred that the courts have the power to rule on the violation of amnesty conditions. Therefore, this article cannot “override” the principle of the separation of powers. In addition, the general theorem of the organisational constitutional law holds that the residual state power (i.e. the one not explicitly conferred on any legislative, judicial or other authority) is the executive one. Another problem of the judgment is its contradiction with the rules of application of the analogy in criminal proceedings, which cannot result in the establishment of a completely new decision-making power. The power to decide on participation in amnesty is a completely different power than the power to decide on the fulfilment of the conditions of conditional amnesty. Finally, if the judgments imposes upon the ordinary court the task of such constitutionally conforming interpretation, which requires the court to decide contrary to the settled decision-making practice and a uniform doctrinal view, despite the absence of a competence regulation to enable the court to issue such decision, the Constitutional Court has in fact decided that the members of the competent court will decide in a way that is unlawful and unconstitutional.