CZECH REPUBLIC

F. Duchon
Judge of the Constitutional Court
of Czech Republic

Human Rights Protection before the Constitutional Court

1. The concept of human rights protection under the Constitution of the Czech Republic

2. Human rights protection in the proceedings before the Constitutional Court

3. Some statistical data

Ad 1. The concept of human rights protection under the Constitution of the Czech Republic

The Constitution of the Czech Republic was enacted as the fundamental law of the newly arising Czech Republic by the Czech National Council on 16 December, 1992, and came into effect as Act No. 1/1993 Coll. on 1 January, 1993.

In the Czech Republic, the concept of human rights protection is based on the principle that the Constitution itself does not enumerate any particular human rights and freedoms. Under Article 3 of the Constitution, the Charter of Fundamental Rights and Basic Freedoms forms part of the constitutional order of the Czech Republic (hereinafter “the Charter”). On December 16, 1992, the Charter was pronounced as part of the constitutional order as Act No. 2/1993 by a resolution of the presidium of the Czech National Council.

Under Article 4 of the Constitution of the Czech Republic (hereinafter “the Constitution”), judicial bodies were entrusted with the protection of fundamental rights and freedoms. Chapter Four of the Constitution regulates judicial power. This power is formed by the Constitutional Court, which is not part of the ordinary judiciary, and the system of ordinary courts comprised by the Supreme Court, the Supreme Administrative Court, and superior, regional and district courts (Article 91).

Chapter Five of the Charter refers to the judicial power and regulates the right to judicial and other legal protection in Articles 36 – 40.

Under Article 36, everybody may assert, through the legally prescribed procedure, his rights before an independent and impartial court or, in specified cases, before another body. Unless a law provides otherwise, a person who claims that his/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 basic freedoms listed in the Charter may not be removed from the jurisdiction of the courts. Everybody is entitled to compensation for damage caused him or her by an unlawful decision of a court, other state bodies, or public administrative authorities, or as a result of an incorrect official procedure; conditions therefore and detailed provisions shall be provided for by the law.

Article 37 regulates the basic rights in a judicial proceeding and stipulates that everyone has the right to refuse to give testimony if they would thereby incriminate themselves or a person close to them. In proceedings before courts, other state bodies, or public administrative authorities, everyone shall have the right to legal assistance from the very beginning of such proceedings. All parties to such proceedings are equal. Anyone who declares that he/she does not speak the language in which a proceeding is being conducted has the right to the services of an interpreter.

Article 38 reacted to the deformed practise in the judiciary during the communist regime and introduced the concept of the “lawful judge”. It stipulates that no one may be removed from the jurisdiction of his lawful judge. The jurisdiction of courts and competence of judges shall be provided for by law. Under par a. 2 of this Article, everyone has the right to have their case considered in public, without unnecessary delay, and in their presence, as well as to express their views on all of the admitted evidence. The public may be excluded only in cases specified by law.

Articles 39 and 40 concern the criminal judiciary and include the principles “Nullum crimen, nulla poena sine lege”, the presumption of innocence and the right to defense. Only law may designate the acts which constitute a crime and the penalties or other detriments to rights or property that may be imposed for committing them. Only a court may determine a person’s guilt and designate the punishment for criminal acts. A person against whom a criminal proceeding has been brought shall be considered innocent until his/her guilt is declared in a court’s final judgement of conviction.

An accused has the right to be given the time and opportunity to prepare a defense and to be able to defend himself or herself, either pro se or with the assistance of counsel. If he/she fails to choose a counsel even though the law requires him or her to have one, he/she shall be appointed a counsel by the court. The law shall set down the cases in which an accused is entitled to a counsel free of charge. An accused has the right to refuse to give testimony; he may not be deprived of this right in any manner whatsoever.

No one may be criminally prosecuted for an act which he/she has already been finally convicted or acquitted of the charges. This rule shall not preclude the application, in conformity with law, of extraordinary procedures for legal redress. The question whether an act is punishable or not shall be considered, and penalties shall be imposed, in accordance with the law in effect at the time the act was committed. A subsequent law shall be applied if it is more favourable to the offender.

Chapter One of the Charter contains general provisions relating to all rights and freedoms (Articles 1 – 4) and Chapter Two defines:

A. Human Rights and Fundamental Freedoms divided into

- fundamental human rights and freedoms (Articles 5 – 16)

- political rights (Articles 17 – 23)

B. The Rights of National and Ethnic Minorities (Articles 24 – 25)

C. Economic, Social and Cultural Rights (Articles 26 – 35)

D. The right to Judicial and other Legal Protection, see above.

Ad 2. Human Rights Protection in the Proceedings before the Constitutional Court

Under Article 83 of the Constitution, the Constitutional Court is the judicial body responsible for the protection of the constitutionality. The subject matter jurisdiction of the Constitutional Court is regulated by the Article 87 of the Constitution, which stipulates the full list of spheres in which the Constitutional Court decides. These competencies of the Constitutional Court could be divided into three groups:

1. Abstract constitutional review (i.e., review of compliance of the legal regulations with the constitutional regulation).

2. Concrete constitutional review (i.e. protection of constitutionally guaranteed rights and freedoms against concrete infringement by public authorities).

3. Other matters relating to the application of the Constitution (e.g. the certification of the election of a deputy or a senator, the loss of the seat of a senator or a deputy due to the loss of eligibility, a constitutional charge brought against the President of the republic, the constitutional review of a decision on dissolution of the political party or some other decisions relating to its activities, jurisdictional disputes between state bodies and self-governing regions etc.).

The subject of this conference is thus the powers of the Constitutional Court in the sphere of a concrete constitutional review, i.e. deciding over constitutional complaints against final decisions or other actions of infringement of constitutionally guaranteed rights and freedoms by public authorities under Article 87 par. 1 letter d) of the Constitution. Under this Article, the Constitutional Court decides over constitutional complaints against final decisions or other actions by public authorities infringing constitutionally guaranteed fundamental rights and basic freedoms.

The Constitutional Court defined the concept of “public power” in its resolution file No. II. US 75/93 of 25 November, 1993, as “the power which decides authoritatively on the rights and obligations of parties (persons), both directly and indirectly. The parties (persons), whose rights and obligations are decided by a public authority, are not in equal position with this body and the content of such decision does not depend on the will of this person”.

Infringement by a public authority can be defined not only as decisions of the courts, administrative bodies and self-governing regions and possibly of other bodies entitled to decide on rights and obligations by means of the law, but also as the actual activity (or possibly inactivity) of the above mentioned bodies.

The Act on the Constitutional Court No. 182/1993 Coll., regulating among others proceedings before the Constitutional Court, was passed on the basis of the Constitution. A proceeding on a constitutional complaint is regulated in Sections 72 – 84 of this act.

A constitutional complaint may be submitted by a natural or legal person, if he/she alleges that their fundamental rights and basic freedoms guaranteed by a constitutional act have been infringed as a result of the final decision in a proceeding to which he/she was a party. A constitutional complaint may be submitted within a period of 60 days which starts to run on the day when the decision in the final available remedy was delivered to the party or, if there is no such remedy, on the day when the events which are the subject of the constitutional complaint took place.

Therefore, the proceeding before the Constitutional Court is based on the subsidiary principle (i.e., it can only take effect after all procedural remedies which the complainant could assert in relevant proceedings (judicial, administration) have been exhausted. A constitutional complaint is inadmissible if the complainant failed to exhaust all procedural remedies afforded him by law for the protection of his rights. Nevertheless, there are two exceptions in force under which the Constitutional Court shall not reject the complaint and shall deal with the complaint’s merit:

- the significance of the complaint extends substantially beyond the personal interests of the complainant, so long as it was submitted within one year of the day when the events which are the subject of the constitutional complaint took place, or;

- the proceeding in an already filed remedial procedure is being considerably delayed, which gives rise to or may give rise to serious and unavoidable detriment to the complainant.

A complainant may submit, together with his constitutional complaint, a proposal to annul a statute or some other enactment, or individual provision thereof, the application of which resulted in the situation, which is the subject of the constitutional complaint, if the complainant alleges it to be inconsistent with a constitutional act, or with a statute, if the complaint concerns some other enactment. In such a case, it is the Plenum that decides on the complaint.

Parties to the proceeding before the Constitutional Court are the complainant and the state body or another public authority, against the action of which the constitutional complaint is directed; the secondary parties are all parties to a prior proceeding.

The proceeding before the Constitutional Court is governed by the principle of obligatory representation of the parties to the proceeding by the counsel whose expenses are paid by the relevant parties. Should the personal situation or financial means of the complainant justify it, especially if he/she has insufficient financial means to pay the costs connected with his or her representation, the Judge – Reporter shall rule that the complainant’s attorney’s fees shall be paid by the state (i.e., by the Constitutional Court from its budget).

The Constitutional Court decides on the constitutional complaint lodged under Article 87 in four three-member panels (if the Plenum’s jurisdiction is not given) which are composed of the Chairman and two judges. The function of the Chairman of the Panel is not permanent, the individual members of the panel rotate after a year.

The Act stipulates the conditions under which the petition can be rejected by the Judge – Reporter or by the Panel. The constitutional complaint shall be rejected without holding an oral hearing and without the parties being present, by means of a resolution, which must present reasons justifying the reasons. No appeal is permitted against the decision of the Constitutional Court.

Provided the constitutional complaint was not rejected, an oral hearing shall be held before the Constitutional Court; the oral hearing before the Court shall be public. With the consent of the parties, the Court may dispense with an oral hearing if further clarification of the matter cannot be expected from such a hearing.

The Constitutional Court decides on the merit of the constitutional complaint in its judgement, which shall either grant the constitutional complaint in its entirety, reject it in its entirety, or grant it in part and reject it in part. If the Constitutional Court grants the constitutional complaint lodged under Section 87 par.1 letter d) of the Constitution (see above), it annuls the contested decision of the public authority and it pronounces in its judgement which of the constitutionally guaranteed rights or freedoms was infringed and which action of public authority resulted in the infringement.

If a constitutionally guaranteed fundamental right or basic freedom was infringed as the result of an action by a public authority other than a decision, the Court enjoins the authority from continuing to infringe on this right or freedom and order it, to the extent possible, to restore the situation that existed prior to the infringement.

The Panel’s judgements shall always be announced publicly by the Chairman of the Panel, in the name of the Republic. Judgements are enforceable upon the personal delivery of a copy of their final written version to each party.

Every judgement adopted by the Court shall be published in the Collection of Judgements and Resolutions of the Constitutional Court which the Court shall issue annually, for use by the public, after the end of each calendar year. The Court shall publish the statement of the judgement and such part of the reasoning that makes clear the legal principle relied on by the Court.

Ad 3. Some statistic data: