Content of Table No 1
Pl. US 66/04- decided 3 May 2006
Pl. US 66/04- decided 3 May 2006
A constitutional principle can be derived from Article 1 par. 2 of the Constitution, in conjunction with the principle of cooperation laid down in Art. 10 of the EC Treaty, according to which domestic legal enactments, including the constitution, should be interpreted in conformity with the principles of European integration and the cooperation between Community and Member State organs. If the Constitution, of which the Charter of Fundamental Rights and Basic Freedoms forms a part, can be interpreted in several manners, only certain of which lead to the attainment of an obligation which the Czech Republic undertook in connection with its membership in the EU, then an interpretation must be selected with supports the carrying out of that obligation, and not an interpretation which precludes its. These conclusions apply as well to the interpretation of Art. 14 par. 4 of the Charter.
The petitioners’ assertion, that the adoption into domestic law of the European arrest warrant would disrupt the permanent relationship between citizen and state, is not tenable. A citizen surrendered to an EU Member State for criminal prosecution remains, even for the duration of this proceeding, under the Czech state’s protection. The European arrest warrant merely permits a citizen to be surrendered, for a limited time, for prosecution in an EU Member State for a specifically defined act, and after the proceeding is completed there is nothing preventing her from returning again to Czech territory. In the case of a surrender pursuant to a European arrest warrant, a citizen has the right to defend herself against measures by criminal justice bodies, by means of remedial measures, including even a possible constitutional complaint.
The first sentence of Art. 14 par. 4 of the Charter, which provides that every citizen has the right to freely enter the Republic, as well as its second sentence, which provides that no citizen may be forced to leave his homeland, make entirely clear that the Charter precludes the exclusion of a Czech citizen from the community of citizens of the Czech Republic, a democratic state to which he is bound by the ties of state citizenship. The text of Art. 14 par. 4 cannot itself, without further arguments, unambiguously answer whether and to what extent it precludes the surrender of a citizen, for a limited time, to an EU Member State for a criminal proceeding being conducted there if, following the conclusion of such proceeding, he has the right to return to his homeland. Although a linguistic interpretation of the phrase, “forcing to to leave one’s homeland” might include even such a relatively short surrender of a citizen to a foreign state for a criminal proceeding.
The prohibition on “forcing one to leave his homeland” can be interpreted either broadly or narrowly. In agreement with the petitioner, the Constitutional Court concludes that, in order to resolve the issue of the meaning of Art. 14 par. 4 of the Charter, its objective purport must be sought. In assessing of the meaning of this provision of the Charter, it is appropriate above all to take into account the historical impetus for its adoption. The second sentence of Article 14 par. 4 first appeared in Art. 15 par. 2 of the draft Charter, in the 7 January 1991 report of the Constitutional Law Committee of the Assembly of the People and the Assembly of the Nations (see print 392, http://www.psp.cz). The Constitutional Court also agrees both with the petitioner and with the parties to this proceeding, that the experience with the crimes of the Communist regime played a critical role in the constitution of the Charter. It played this role even in the drafting of the current version of Art. 14 par. 4 of the Charter, at the end of 1990 and beginning of 1991, that is, experience that is still quite recent. This was especially the case in connection with the “Demolition” operation, in which the Communist regime forced troublesome persons to leave the Republic. A historical interpretation of Art. 14 par. 4 of the Charter thus attests to the fact that it was never concerned with extradition.
If Czech citizens enjoy certain advantages, connected with the status of EU citizenship, then it is naturally in this context that a certain degree of responsibility must be accepted along with these advantages. The investigation and suppression of criminality which takes place in the European area, cannot be successfully accomplished within the framework of individual Member States, but requires extensive international cooperation. The results of this cooperation is the replacement of the previous procedures for the extradition of persons suspected of criminal acts by new and more effective mechanisms, reflecting the life and institutions of the 21st century. The contemporary standard for the protection of fundamental rights within the European Union does not, in the Constitutional Court’s view, give rise to any presumption that this standard for the protection of fundamental rights, through invoking the principles arising therefrom, is of a lesser quality than the level of protection provided in the Czech Republic.
These facts cannot be disregarded when determining the objective meaning of Art. 14 par. 4 of the Charter. It is not in harmony with the principle of the objective teleological interpretation, reflecting the contemporary reality of the EU (i.e., that it is founded on the high mobility of citizens in the framework of the entire Union area), for Art. 14 par. 4 to be interpreted such that it does not even allow for the surrender of a citizen, for a limited time, to another Member State for a criminal proceeding concerning a criminal act committed by this citizen in that state, as long as it is guaranteed that, following the conclusion of the criminal proceeding the citizen will, at his own request, be returned to the Czech Republic to serve any sentence imposed (srov. § 411 par. 7 of the Criminal Procedure Code). Thus, the surrender of a citizens for a limited time for criminal proceedings being held in another EU Member State, conditioned upon their subsequent return to their homeland, does not and cannot constitute forcing them to leave their homeland in the sense of Art. 14 par. 4 of the Charter. The Court can equally draw attention to the rules providing that Czech citizens or persons with permanent residence status in the Czech Republic may be sent to another Member State of the Union to serve a sentence or for protective treatment or protective measures, but only if they consent thereto (§ 411 par. 6 of the Criminal Procedure Code). It follows therefrom that unless they give their consent, they will never be sent abroad to serve a sentence of imprisonment.
The right of citizens to protection by the state is manifested in the fact that it would represent a breach, among others, of Art. 14 par. 4, Art. 36 par. 1 of the Charter and Art. 6 par. 1 of the Convention, for a citizen were to be surrendered for criminal prosecution to a state where the standards of criminal proceedings do not meet the requirements for criminal proceedings enshrined in the Czech Constitutional order, for ex., in the situation where the citizen’s right to fair process (Art. 36 par. 1 of the Charter) would be genuinely threatened, or alternatively where the citizen would be subjected to torture or other inhuman or degrading treatment or punishment (Art. 3 of the Convention, Art. 7 par. 2 of the Charter). However, such is not the case for the European arrest warrant.
It is always necessary to remember the fact that all EU Member States are also signatories of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly a citizen cannot not be significantly affected in his rights due to the fact that his criminal matter will be decided in another Member State of the Union, as each EU Member State is bound by a standard of human rights protection, which is equivalent to the standard required in the Czech Republic while all Member States’ legal orders rest on the values to which our state declared its allegiance only after 1989. The Czech Charter of Fundamental Rights and Basic Freedoms also draws upon the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Section 377 of the Criminal Procedure Code can be considered as something of a safeguard, guaranteeing on the constitutional law plane the protection of Czech citizens. According to this provision, the request of a foreign state’s organ may not be granted if its granting would constitute a violation of the Constitution of the Czech Republic or such provision of the Czech legal order which must be adhered to without exception, or if the granting of the request would damage some other significant protected interest of the Czech Republic. This principle, contained in the Twenty-Fifth Chapter, First Division of the Criminal Procedure Code (designated as general provisions) thus applies both to the classic extradition procedure pursuant to the Second Division, and to proceedings on the surrender of persons between EU Member States on the basis of the European arrest warrant, pursuant to the Third Division of the same Chapter. Even though this provision of the Criminal Procedure Code is introduced by the marginal heading “Protection of the State’s Interests”, it can be deduced, primarily from the text of its first sentence, that it is be concerned primarily with the state’s interest in not violating a Czech citizen’s fundamental rights enshrined in the Czech Republic’s constitutional order, of which the Charter of Fundamental Rights and Basic Freedoms forms an integral part (… if its execution would constitute a violation of the Constitution of the Czech Republic or such provision of the Czech legal order which must be adhered to without exception …).
Persons who are to be surrendered to another EU state retain the right to submit against the relevant measures of organs taking part in criminal proceedings a complaint which has suspensive effect (§ 411 par. 5 of the Criminal Procedure Code) and, in appropriate cases, a constitutional complaint, and the deadline for the surrender of the person does not run while the Constitutional Court is deciding (§ 415 par. 3 of the Criminal Procedure Code). These provisions preserve the legal protection of citizens, or of other persons who should be surrendered for criminal prosecution, and at the same time uphold the condition that, in consequence of the surrender of a requested person, the constitutional order of the Czech Republic will not be affected in individual cases.
These principles are in conformity with the Framework Decision, according to which nothing in it may be interpreted as prohibiting the refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or that that person’s position may be prejudiced for any of these reasons. The Framework Decision does not prevent a Member State from applying its constitutional rules relating to the due process, the freedom of association, the freedom of the press and the freedom of expression in other media. The Framework Decision also expressly declares that no person may be removed, expelled or extradited to a state where there is a serious risk that she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
The assertion that the domestic law rules relating to the European arrest warrant have disturbed the relationship between the citizen and the state is, thus, not tenable. A citizen surrendered to an EU Member State for criminal prosecution remains, even for the duration of that criminal proceeding, under the protection of the Czech state. The European arrest warrant merely permits, for a limited time, the surrender of a citizen for his criminal prosecution in a Member State of the Union for a specifically defined act, while following the completion of this criminal proceeding, there is nothing preventing him from returning back (where relevant even to serve his sentence in Czech territory). The Criminal Procedure Code specifies the grounds upon which the surrender of a person to another Member State of the Union shall not occur (esp. § 411). Citizens have the right to defend themselves against measure by organs acting in the criminal proceeding by means of remedial measures, which have suspensive effect (see § 411 par. 5 of the Criminal Procedure Code), including even the possibility of a constitutional complaint. In the case that the surrender of a citizen would result in a breach of the constitutional order, the surrender of the citizen will not occur.
In reaching these conclusions, it is necessary to take into account not only the protection of rights of persons suspected of committing a criminal act, but also the interests of the victims of criminal acts. For the protection of the rights of victims and injured persons, it generally appears more practical and fair for the criminal proceeding to be held in the state in which the criminal act was committed (cf. the conditions for the resolution of cases of two or more concurrent European arrest warrants in § 419 of the Criminal Procedure Code and Art. 16 of the Framework Decision). Since the execution of the European arrest warrant, in the case a state is surrendering its own citizen, is conditioned on reciprocity (§ 403 par. 2 of the Criminal Procedure Code), the rules contested by the petitioners protect the rights of persons who can be considered, according to the Czech Criminal Procedure Code, as injured persons. It can generally be said that, in view of the evidence that will found in the state where the criminal act occurred, a criminal proceeding there will be quicker, more effective and, at the same time, more reliable and just both for the defendant and for any victim of the criminal act.
The Constitutional Court, therefore, does not concur with the petitioners‘ arguments asserting that § 412 par. 2 of the Criminal Procedure Code is in conflict with Art. 39 of the Charter because this provision in no way defines the criminal offenses not requiring double criminality. If it had been a substantive law enactment, that is if certain conduct had been made criminal by means of a provision like § 412 par. 2 of the Criminal Procedure Code, that is, by enumerating them without any sort of statutory definition, that would certainly constitute a violation of Art. 39. of the Charter. The Constitutional Court proceeds, however, from the fact that § 412 of the Criminal Procedure Code is not a substantive law provision, rather a procedural law one. A surrender pursuant to the European arrest warrant is still not the imposition of punishment in the sense of Art. 39 and Art. 40 of the Charter.
Persons suspected of having committed a criminal act and surrendered in accordance with the European arrest warrant will not be prosecuted under § 412 par. 2 of the Criminal Procedure Code; rather the criminal proceeding will be conducted for criminal offenses defined in the substantive law of the requesting EU state. The statutory enumeration of criminal offenses in § 412 par. 2 of the Criminal Procedure Code (Art. 2 par. 2 of the Framework Decision) serves merely for the procedural steps taken by courts. That is to say, in cases where the requesting state’s organ designates in the European arrest warrant the conduct of the surrendered person as one of the categories of conduct enumerated in § 412 par. 2 of the Criminal Procedure Code, or Art. 2 par. 2 of the Framework Decision, Czech courts do not ascertain the criminality of this act according to the law of the Czech Republic. The adoption of § 412 of the Criminal Procedure Code did not result in the criminal law of all EU Member States becoming applicable in the Czech Republic. It merely means that the Czech Republic is assisting the other Member States in the enforcement of their criminal laws. Thus, § 412 of the Criminal Procedure Code does not impose on persons in the Czech Republic (citizens, permanent residents, and others commonly found within the territory) the obligation to know the criminal law of all EU states.
Moreover, the enumeration of criminal offenses in § 412 par. 2 of the Criminal Procedure Code or Art. 2 par. 2 of the Framework Decision generally corresponds to conduct which is criminal even according to Czech law, even though the titles of particular criminal offenses do not necessarily correspond exactly to each other. The enumeration of criminal offenses which do not require dual criminality is not given due to the fact that it would otherwise be presumed that some of these categories of conduct do not qualify as criminal offenses in one or more of the Member States; rather the exact opposite, that it is conduct which, in view of the values shared by the EU Member States, is criminal in all of them. The reason for enumerating them in this fashion is to speed up the execution of European arrest warrants, as the proceeding for ascertaining the criminality of such acts under Czech law has been dropped. In addition, in adopting this Framework Decision each EU Member State expressed its agreement that all criminal conduct coming within the categories defined in this way will also be criminally prosecuted.
By dispensing with the principle of dual criminality in relation to the Member States of the EU, the Czech Republic in no way violates the principle of legality. As a general matter, the requirement of dual criminality can be dispensed with, as a safeguard, in relations among the Member States of the EU, which have a sufficient level of value approximation and mutual confidence that they are all states as having democratic regimes that adhere to the rule of law and are bound by the obligation to observe this principle. It is precisely the situation, where the level of approximation among the 25 EU Member States has arrived at such a degree of mutual confidence, that they no longer feel the need to cling to the principle of dual criminality.
The Constitutional Court takes as a starting proposition that the surrender of Czech citizens or other persons authorized to stay on Czech territory to another EU Member State for the purpose of their prosecution will generally come into consideration only in the case where their conduct, qualifying as a criminal offense, did not occur in the Czech Republic, but in another Member State of the Union. Should the commission of a criminal act occur partly abroad and partly in the Czech Republic, then criminal prosecution in the Czech Republic would be an option. An impediment to the surrender of such persons for a criminal proceeding abroad (cf. § 411 par. 6 lit. d) of the Criminal Procedure Code) thereby arises, to the extent that it would be more appropriate, in view of the nature of the conduct in question, for the prosecution to take place in another EU Member State, for ex., due to the fact that decisive evidence is found there or the criminal deeds played out primarily in that state, etc.
Pursuant to Art. 4 par. 7 of the Framework Decision, the executing judicial authorities may refuse to execute a European arrest warrant where it relates to offenses which have been committed in whole or in part in the territory of the executing Member State, or in a place treated as such. This provision, which affords domestic criminal justice organs the possibility to weigh whether to refuse to execute the European arrest warrant, protects the value of legal certainty, which is also a value in European law and whose observance on the European plane is a prerequisite for the Czech constitutional order permitting the application of European law in the domestic legal order (in the case of the implementation and application of the Framework Decision). Although Article 4 par. 7 of the Framework Decision was not explicitly implemented into the Czech legal order, in accordance with the principle of the constitutionally conforming interpretation, Czech criminal justice organs must pay heed to Czech citizens’ trust in the fact that their conduct within the Czech Republic will be governed by Czech criminal law. If Czech citizens remain within the territory of the Czech Republic, domestic law is applied to their conduct, from which also follows these persons’ constitutionally protected trust that legal consequences laid down in Czech law will be attributed to their legal conduct. The general value of legal certainty finds expression, on the constitutional plane, in the principle formulated in Art. 39 of the Charter, and on the sub-constitutional plane is expressed in the general principle of § 377 of the Criminal Procedure Code, which applies subsidiarily in relation to § 411 par. 6 lit. d) of the Criminal Procedure Code, that is, it will only be applied in the case that a criminal prosecution concerning the same act is not already in progress in the Czech Republic. According to § 377 of the Criminal Procedure Code, interpreted in the light of Art. 4 par. 7 of the Framework Decision, a Czech citizen will not be surrendered to another EU Member State due to suspicion of having committed a criminal offense, if it was allegedly committed within the Czech Republic, except in cases where, in view of the special circumstances of the commission of the criminal act, priority must be given to holding the criminal prosecution in the requesting state, for example, on grounds of adequate fact-finding concerning the conduct in question, if in the greater part it occurred abroad, or because prosecution in the given EU Member State would, in that particular case, be more appropriate than that person’s prosecution in the Czech Republic. It is appropriate for the court which may, but need not, refuse to execute the European arrest warrant, to have sufficient decision-making discretion, as in a whole host of cases it would be appropriate for a person suspected of having committed a criminal offense to be surrendered, even though his activity occurred within the Czech Republic (for ex. organized criminal acts, which naturally were brought to fruition in the another EU Member State). This provision will be clarified in more detail only through the decision-making practice in this phase of such proceedings; it is not for the Constitutional Court to preempt that process.
The Constitutional Court would emphasize that the Czech constitutional order does not protect merely Czech citizens’ trust in Czech law, rather it similarly protects also the trust and legal certainty of other persons, authorized to stay within the territory of the Czech Republic (for ex., aliens having permanent residence status in the Czech Republic).
“Distance” criminal offences, that is, those usually committed by means of computer technology, represents a specific category falling within the terms of the territoriality principle, as it theoretically admits of the possibility that conduct occurring in the Czech Republic could satisfy the material elements of a criminal offense in another EU Member State. The Constitutional Court concedes that, under quite exceptional circumstances, the application of the European arrest warrant would be in conflict with the Czech Republic’s constitutional order, especially in the case that the “distance” delict would qualify as a criminal act under the law of the requesting state, but would not qualify as such under Czech criminal law, and perhaps would even enjoy constitutional protection in the Czech Republic (for ex., within the framework of the constitutional protection of free expression). The petitioners’ objections are justified in this respect. In such an, albeit unlikely, case, the application of § 377 of the Criminal Procedure Code would come into consideration, as it contains a mechanism for precluding the unconstitutional consequences of the European arrest warrant, in the sense stated above.
The Constitutional Court Plenum, composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická, in the matter of the petition submitted by the petitioners - a group of deputies of the Chamber of Deputies of the Czech Parliament and a group of senators of the Senate of the Czech Parliament, represented by Prof. JUDr. Aleš Gerloch, CSc., advocate with his office in Prague 2, at Botičská 4, proposing the annulment of § 21 par. 2 of Act No. 140/1961 Coll., as amended and the annulment of § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7 and § 412 par. 2 of Act No. 141/1961 Coll., on the Criminal Procedure Code, as amended, has decided as follows:
The petition proposing the annulment of § 21 par. 2 of Act No. 140/1961 Coll., as amended and the annulment of § 403 par. 2, § 411 par. 6 lit. e), § 411 par. 7 and § 412 par. 2 of Act No. 141/1961 Coll., on the Criminal Procedure Code, as amended, is rejected on the merits.
Content of Table No 4
Content of Table No 5