Print Case ofConstitutional Court
Pl. ÚS 5/94
The Exclusive Competence of Courts to Make Decisions ConcerningPunishment Including the Transfer of a Convicted Person Whilehe is Serving his SentenceAnalysis of Punishment from Quantitative and QualitativeRespects
Headnotes:
1. A decision to transfer a convicted person from one type ofpenitentiary to another, irrespective of the security level ofthat prison, constitutes a decision concerning the punishmentfor a criminal act, which Article 40 para. 1 of the Charter ofFundamental Rights and Basic Freedoms entrusts exclusively tothe jurisdiction of courts, and in no case to administrativebodies.
2. Decision-making concerning punishment is, on the onehand, a decision about the type and duration of thepunishment and, on the other hand, a decision about themanner in which a punishment of imprisonment [prisonsentence] will be carried out, which in the sense of § 39apara. 2 of the CriminalAct ,means a decision by a court toassign the perpetrator to a certain category of prison.Ifthe decision referred to in parentheses in § 122 para.1 ofthe Criminal Procedure Code (§ 39a, § 81 of the Criminal Act)is to be considered as the original decision concerningpunishment, then the decision to transfer the prisoner fromone category of prison to another can be considered aderivative decision, even though it is not explicitlymentioned in the cited § 122 para.1 of the CriminalProcedure Code.
3. Both in concept and in content, the institution of„punishment“ does not have merely a quantitative, a time,dimension, but also a qualitative dimension corresponding tothe extent to which and to the manner in which theperpetrator is to be deprived of his human freedom anddignity. The interconnection of these dimensions is reflectedas well in the statutory requirement that, if anunconditional sentence of imprisonment is imposed, thatdecision must also include a statement concerning the mannerin which this sentence will be served (§ 122 para. 1 of theCriminal Procedure Code). Thus, in essence, the statement ofjudgment is at the same time a sentence of punishment placingit into both a quantitative and qualitative category. Thisinterpretation has support even in the understanding of humanrights and freedoms, for it is not concerned merely with theduration ofpunishment, but also its relation to the limitsof these rights and freedoms and the intensity of theimpingement upon these rights and freedoms.
JUDGMENT
ofthe Czech Constitutional Court Plenum of30 November 1994,file no. Pl. ÚS 5/94, in the matter of the petition of a groupof 44 Deputies of the Assembly of Deputies of the CzechParliament proposing the annulment of §§ 9 and 9a of Act No.59/1965 Sb., on Carrying Out the Punishment of Imprisonment, asamended by Act No. 294/1993 Sb., as well as point 198 of ActNo 292/1993 Sb., amending and supplementing Act No 141/1961Sb., on Criminal Court Proceedings (Criminal Procedure Code)(this judgment was published as No.8/1995 Sb.).
I. STATEMENT
§§ 9 and 9a of Act No 59/1965 Sb., on Carrying Out thePunishment of Imprisonment, as amended by Act No 294/1993 Sb.,as well as point 198 of Act No 292/1993 Sb., amending andsupplementing Act No 141/1961 Sb., on Criminal CourtProceedings (Criminal Procedure Code) are annulled as of theday this judgment is published in the Digest of Laws.
II. REASONING
On 23 February 1994 a group of 44 Deputies of theAssembly of Deputies of the Czech Parliament submitted apetition concerning the annulment of §§ 9 and 9a of Act No59/1965 Sb., on Carrying Out the Punishment ofImprisonment, as amended by Act No 294/1993 Sb., whichrevised the conditions as well as the proceedings for thetransfer of a convict from one type of penitentiary toanother. The group of Deputies maintains that therevision of the law on Carrying Out the Punishment ofImprisonment No 294/1993 Sb., has come into conflict withthe Constitution of the Czech Republic, as well as withthe Charter of Fundamental Rights and Basic Freedoms(hereinafter "Charter"), due to the fact that it entrustssuch proceedings to the prison warden and the review ofhis administrative decision to the District Courts.
The petitioners criticize the new legal rules fortransferring to executive bodies the exercise of state powersbelonging only to courts, thus empowering executive bodies tomake decisions restricting the inviolability of convictedpersons.
They further object that the amended act permitsadministrative bodies to annul the legal force and theenforceability of judgments as far as concerns the assignmentof convicts to different types of penitentiaries, and in thesecases by decisions to which the Administrative Procedure Codedoes not even apply. Finally they emphasize that this deprivesconvicts of the rights which they otherwise have inadministrative proceedings, as well as the right that solelytheir lawful judge of the first and second instance may makedecisions concerning the manner in which they serve a sentenceof imprisonment imposed upon them by the court.
In the course of the proceedings before theConstitutional Court the petitioners’ representativeamended the original petition in the sense of § 63 of ActNo 182/1993 Sb., on the Constitutional Court, and § 95para 1 of Act No 99/1963 Sb., of the Civil Procedure Code,as amended, so as to request that, in addition to theabove-mentioned provisions of the revised Act on CarryingOut the Punishment of Imprisonment, the part of Act No292/1993 Sb., amending and supplementing the CriminalProcedure Code, which repealed the previous § 324 of theCriminal Procedure Code, be annulled as well. Under thelatter provision, it was the district court which madedecisions concerning changes in the manner in which asentence was servedand ,accordingly, concerning anyreassignment as well. In the alternative, the petitionersproposed that the Constitutional Court defer, for anappropriate period of time, the entry into force of itsjudgment annulling §§ 9 and 9a of the revised Act onCarrying Out the Punishment of Imprisonment, thus offeringthe legislature time for a suitable revision of theCriminal Procedure Code.
The amendment of the petition to request in addition theannulment of point 198 of Act No 292/1993 Sb., is substantivelyconnected with the petition proposing the annulment of §§ 9 and9a of Act No 59/1965 Sb., as amended by Act No 294/1993 Sb., tothe extent that the subsequent consent of the 44 Deputies ofthe Parliament can be reasonably assumed. Accordingly, in thiscase theConstitutional Courtdid not require that signaturesbe given again (§ 64 para 6 of Act No182/1993 Sb.).If,however, no such direct substantive link had not existed, itwould have been necessary to proceed as indicated in the above-cited legal provision.
According to the petitioners’ assertion, the revisedlegal rules for carrying out a punishment of imprisonmentand for criminal proceedings are in conflict with Articles39 and 40 of the Charter, according to which solely acourt may make decisions on punishment and otherdetriments to rights that may be imposed for thecommission of a crime. Another controversy is seen relatedto Article 38 para.1 of the Charter, according to whichnobody may be removed from the jurisdiction of his lawfuljudge. The contested provisions of the revised Act onCarrying Out the Punishment of Imprisonment, as well asthe repealing provisions of the revised act on CarryingOut the Punishment of Imprisonment and the repealingprovisions of the amendment to Criminal Procedure Code,finally, are in conflict with Articles 2, 4, and 90 of theConstitution, which do not permit executive bodies toexercise any powers pertaining to judicial bodies.
2. A group of 44 Deputies of the Parliament [§ 64 para.1, lit. b) of Act No. 182/1993 Sb.]submitteda petitionproposing the annulment, pursuant to Art.87 para.1, lit. a)ofthe Constitution, of a statutory provision, and theyentrusted, from among their ranks, JUDr.Jaroslav Ortmann torepresent them in the proceedings before theConstitutionalCourt.After ascertaining that no grounds exist either fordismissing the petition on procedural grounds (§ 43 para. 1 ofAct No. 182/1993 Sb.) or for suspending the proceedings (§ 67of Act No. 182/1993 Sb.), in conformity with § 69 of Act No.182/1993 Sb., the petition was sent to the Czech Parliament,along with a request for a statement of its views.
3.Inthe statement of its views signed by DeputyChairman of the Assembly of Deputies, ing. Jan Kasal, the CzechParliament, a party to the proceedings, states that, accordingto its explanatory report, the purpose of the adopted legalrule resides in the fact that the legal rule, in accordancewith which the assignment of a convict to a certain type ofinstitution is decided by a court in its judgment practicallyfor the entire period of imprisonment, had not proved to beeither adequate or flexible. At that juncture a court cannotforesee with any definite degree of probability how theconvicted person will behave under the conditions ofimprisonment and whether he will accept or, on the contrary,reject the resocialization programs. For this reason anamendment was proposed that would ensure the necessary degreeof mobility between various types of penitentiaries, whileenabling the convicted person to seek judicial protection, ifhis status has, during the course of his imprisonment, worseneddue to the decision of the warden. Consequently, a convictserving his sentence was not deprived of judicial protectionand always has the possibility, if he disagrees with thedecision of the warden of the penitentiary, to request judicialreview of that decision from an independent court. However, atthe conclusion of the Czech Parliament’s statement of views, hewrote that it is up to the Constitutional Court, within theframework of separation of powers between the legislative, theexecutive and the judicial branches, to adjudge whether thecontested rule of the revised Act on Carrying Out thePunishment of Imprisonment is in conformity with our legalorder, and to issue the appropriate judgment.
Following the amendment of the petition, which wassubmitted in the course of the proceedings before theConstitutional Court by the representative of the petitionersin the presence of a representative of the opposing party, theDeputy Chairman of the Assembly of Deputies of the CzechParliament, that representative informed the Court that it doesnot propose any supplementary evidence and that it adheres toits position.
4. In accordance with § 68 para. 2 of Act No. 182/1993Sb., the Constitutional Court began by ascertaining whether thelegal norms which the petitioners contest as unconstitutionalhad been adopted and issued within the bounds of the competenceset down in the Constitution and in the constitutionally-prescribed manner.
It was ascertained from the report of the CzechParliament, which refers to the stenographic record of themeeting of the Assembly of Deputies, the Assembly printedrecord No. 536, and the Collection of Laws, that the amendmentsto the Act on Carrying Out the Punishment of Imprisonment hadbeen proposed of the Czech Government, which made use of itsright of legislative initiative pursuant to Article 41 para.2of the Constitution.The Act was adopted by the Assembly ofDeputies pursuant to Article 15 para.1 and Article 106 para.2, third sentence of the Constitution.The quorum and majorityprescribed by Article 39 paras. 1 and 2 of the Constitutionwere achieved, since 158 Deputies were present at the10November 1993session of the Assembly of Deputies, of whom 117Deputies voted in favor of the Act, eleven against, and thirtyabstained. The constitutionally-prescribed means for adoptingstatutes was thus observed, as were those concerning itspromulgation, since it was signed by the Chairman of theAssembly of Deputies, by the President of the Republic, and bythe Prime Minister (Article 51 of the Constitution) and waspromulgated in the Collection of Laws (Article 52 of theConstitution, § 2 of Czech National Council Act No. 545/1992Sb., on the Collection of Laws of the Czech Republic) in issueno. 74 of year 1993, distributed on 10 December 1993. On thatday, Act No 294/1993 Sb., which amends and supplements Act No.59/1965 Sb. on CarryingOutthe Punishment of Imprisonment, asamended by Acts No. 173/1968 Sb., No. 100/1970 Sb., No. 47/1973Sb., and No. 179/1990 Sb., acquired validity and, pursuant toits Article IV, came into effect on1 January 1994.
It was further ascertained from the stenographic record ofthe meeting of the Assembly of Deputies, from Assembly printedrecord nos. 535, 536, and from the Collection of Laws that theamendment to Act No. 141/1961 Sb., on Criminal CourtProceedings (the Criminal Procedure Code), that is Act No.292/1993 Sb., was proposed by the Czech Government, making useof its right of legislative initiative under Article 41 para.2of the Constitution.The Act was adopted by the Assembly ofDeputies pursuant to Article 15 para.1 and Article 106 para.2, third sentence of the Constitution.The quorum and majorityrequired by Article 39 paras. 1 and 2 of the Constitution wereachieved, since 155 Deputies were present at the10 November1993session of the Assembly of Deputies, of whom 104 Deputiesvoted in favor of the Act, ten against, and forty-oneabstained. The constitutionally-prescribed means for adoptingstatutes was thus observed, as were those concerning itspromulgation, since it was signed by the Chairman of theAssembly of Deputies, by the President of the Republic, and bythe Prime Minister (Article 51 of the Constitution) and waspromulgated in the Collection of Laws (Article 52 of theConstitution, § 2 of Czech National Council Act No. 545/1992Sb., on the Collection of Laws of the Czech Republic) in issueno. 74 of year 1993, distributed on 10 December 1993. On thatday, Act No 292/1993 Sb., which amends and supplements Act No.141/1961 Sb., on Criminal Court Proceedings (the CriminalProcedure Code), as amended by Acts No. 57/1965 Sb., No.58/1969 Sb., No. 149/1969 Sb., No. 48/1973 Sb., No. 29/1978Sb., No. 43/1980 Sb., No. 159/1989 Sb., No. 178/1990 Sb., No.303/1990 Sb., No. 558/1991 Sb., No. 25/1993 Sb., and No.115/1993 Sb., acquired validity and, pursuant to its ArticleIV, came into effect on 1 January 1994.
5.a) The Constitutional Court then reviewed, as it isobliged to do under § 68 para. 2 of Act No. 182/1993 Sb., thecontents of the contested provision of the revised Act onCarryingOutthe Punishment of Imprisonment, as well as therevised Code of Criminal Procedure, having regard to theirconformity with constitutional acts and international treatiesunder Article 10 of the Constitution.
The contested provisions §§ 9 and 9a of the revised Act onCarrying Out the Punishment of Imprisonment are in conflict,above all, with Article 39 of the Charter. The point is thatthe detriment to rights to which a convicted person is subjectin consequence of the transfer to a more severe type ofpenitentiary are supported by the Act on Carrying Out thePunishment of Imprisonment and the Ordinance thereto (Ministryof Justice Regulation No. 110/1994 Sb., issuing the Rules onthe Carrying out of the Punishment of Imprisonment), however,in consequence of the amended Act No. 294/1993 Sb., which is inconflict with the Charter and the Constitution in otherrespects, these detriments also impinge upon the convictedperson in an unconstitutional way.
The contested provisions of the revised Act on CarryingOutthe Punishment of Imprisonment must be declared to be inconflict also with Article 40 of the Charter. A decision totransfer a convicted person from one type of prison to another,irrespective of the security level of that prison, constitutesa decision concerning the punishment for a criminal act, whichthe Charter entrusts exclusively to the jurisdiction of courts,and in no case to administrative bodies.
An important concept for considering the conformity or non-conformity of §§ 9 and 9a of the revised Act on CarryingOutthe Punishment of Imprisonment with Article 40 para 1 of theCharter, is the concept of "decision-making by a courtconcerning punishment". In reference to § 122 para 1 of theCriminal Procedure Code, the judgment of conviction mustcontain a statement concerning punishment as well as mention ofthe legal provisions under which the punishment has been metedout. If an unconditional sentence of imprisonment has beenimposed, the judgment must contain a statement concerning themanner in which this punishment should be carried out (§ 39apara 1 of the Criminal Act). It follows from the above thatdecision-making concerning punishment is, on the one hand, adecision concerning the type and duration of punishment, and onthe other hand, a decision concerning the manner in which thepunishment of imprisonment will be carried out, which in thesense of § 39a para 2, means a decision by a court to assignthe perpetrator to a certain category of prison. If thedecision referred to in parentheses in § 122 para.1 of theCriminal Procedure Code (§ 39a, 81 Criminal Act) is to beconsidered the original decision concerning punishment, thenthe decision concerning the transfer from one type of prison toanother can be considered as a derivative decision, even thoughit is not explicitly mentioned in the cited § 122 para 1 of theCriminal Procedure Code.
The fact that a decision concerning the transfer of aconvicted person is a derivative decision can not be usedwithout any further considerations for inferring that it mightbe entrusted to another body than a judicial one. This derivedcharacter does not convert it into a decision of an entirelydifferent character than the original one assigning theconvicted person to a type of prison. TheConstitutional Courtbelieves that the opposite is true. Both the original and thederivative decision in the above sense are judgments concerningpunishment. Another argument in favor of this conclusion isthe content of § 324 of the Code of Criminal Procedure that hadbeen annulled by the revision and is being rehabilitated by thepresent day finding; since its para 1 on changing the way ofconfinement, which was understood to be in particular thetransfer of a convicted person from one correction group intoanother, gives jurisdiction to the District Court.
The issue can be viewed also in the following way leadingto the same conclusions.
Both in concept and in content, the institution of„punishment“ does not have merely a quantitative, a time,dimension, but also a qualitative dimension corresponding tothe extent to which and to the manner in which the perpetratoris to be deprived of his human freedom and dignity. Theinterconnection of these dimensions is reflected as well in thestatutory requirement that, if an unconditional sentence ofimprisonment is imposed, that decision must also include astatement concerning the manner in which this sentence will beserved (§ 122 para. 1 of the Criminal Procedure Code). Thus,in essence, the statement of judgment is at the same time asentence of punishment placing it into both a quantitative andqualitative category. This interpretation has support even inthe understanding of human rights and freedoms, for it is notconcerned merely with the duration of punishment, but also itsrelation to the limits of these rights and freedoms and theintensity of the impingement upon these rights and freedoms.
Another discrepancy of the contended provisions of therevised Act of CarryingOutthe Punishment of Imprisonmentshould be seen also regarding Article 40 of the Charter.Decisions on the transfer of a convicted person from one typeof penitentiary into another, irrespective of the severity oftheir regime, equal deciding on punishment for a criminal deed,with which the Charter endows exclusively the Court, by nomeans an administrative body.
According to the last cited legal provision, § 9a para. 2,the convicted person may, within eight days of receipt of thewritten copy of the decision transferring him to a prison withstricter security regime, lodge an appeal with the districtcourt in the district in which is situated the prison whosedirector decided on the transfer. The appeal does not havesuspensive effect. A separate legal enactment applies to theseproceedings before the court. And in this case, that speciallegal enactment is the Civil Procedure Code (Act No. 99/1963Sb., as amended, specifically §§ 250l - 250s thereof, whichgovern decision-making in appeals against decisions ofadministrative bodies).
As was already stated, if an unconditional sentence ofimprisonment has been imposed, already at first instance thecourt’s decision-making concerning punishment encompassdecisions concerning its type, duration and manner of servingthe sentence.
Solely a proceeding at the appellate level, against whichno further appellate proceedings are admissible (§§ 250s para.1 of the Civil Procedure Code), is permitted against decisionsunder § 9a para. 2 of the revised act on CarryingOutthePunishment of Imprisonment and §§ 250l through 250s of theCivil Procedure Code. In other words, it is only andexclusively as a court of second instance that a court maydecide on the manner in which a sentence of imprisonment isserved pursuant to § 9a para. 2 of the revised Act on CarryingOutthe Punishment of Imprisonment and to the Civil ProcedureCode. In this way, the possibility for the defense of theconvicted person against the transfer decision is substantiallyburdened, as compared with the situation under the previousrule in § 324 para. 3 of the Criminal Procedure Code, pursuantto which and an appeal with suspensive effect lay against adecision concerning the change of the manner in which apunishment is carried out, that is, concerning a transfer aswell. In addition, specific statistical data on the numbers ofconvicts transferred to prisons with stricter security regimeevidences, to a certain extent, the character and impact of thelegal rule under § 9a para. 2 of the Act on CarryingOutthePunishment of Imprisonment, as amended by Act No. 294/1993 Sb.,now being annulled due to the considerations stated above.Areport of the Ministry of Justice, covering the period from1January 1994through to31 October 1994, shows that 162 caseswere decided concerning the transfer of convicted persons intoprisons with stricter security regimes.In ten of these casesthe convict lodged appeals, before the district court pursuantto §§ 250l through 250s of the Civil Procedure Code, againstthe decision. In four of these cases the appeals weredismissed, in one case the proceedings were suspended, in onepostponed, and in the remaining four cases no decision had beenissued as of the date of the report (17 November 1994).
Generally speaking, if the transfer of a convict isconstitutional solely when based upon the decision of a courtof first instance, then the lack of such decision can not bereplaced with a judicial decision that is merely a review of afirst instance administrative decision, and merely in thecontest of deciding an appellate remedy against that decision.
By entrusting the prison warden with decision-makingconcerning the transfer of a convict from one type of prison toanother, the courts were divested of decision-making concerningthe manner of serving one's sentence of imprisonment, or achange thereof, which was entrusted to an administrative body.In consequence, in the given issue, which had up until now beendecided by a court, the convict was removed from thejurisdiction of the court or of his lawful judge.Consequently, §§ 9 and 9a of the revised Act on CarryingOutthe Punishment of Imprisonment, are in conflict with Article 38para.1 of the Charter.
Since state authority in the form of penal authority,i.e., carrying out the sentence of imprisonment, includingchanges in the manner it is carried out, can be applied solelywithin the bounds and in the manner prescribed bylaw,however,it must be a law which is not unconstitutional. The revisedAct on Carrying Out the Punishment of Imprisonment No 294/1993Sb., certainly exhibits such a conflict as is described above,in consequence of which, its provisions in §§ 9 and 9a are inconflict with Article 2 para 3 of the Constitution as well.
Due to the fact that the contested provisions of therevised Act on Carrying Out the Punishment of Imprisonmentrepresent the removal of a convict from the jurisdiction of hislawful judge as regards transfers while he is serving hissentence (see the conflict with Article 38 para 1 of theCharter), in addition, one of the fundamental rights and basicfreedoms of convicted persons, i.e. personal freedom (Article 8para 1 of the Charter), has been withdrawn from the protectionof judicial bodies, in violation of Articles 4 of theConstitution. These considerations prove that the contested §§9 and 9a of the revised Act on Carrying Out the Punishment ofImprisonment No 294/1993 Sb., are unconstitutional.
To the extent that the petitioners consider theunconstitutionality of the contested provisions of the revisedAct on CarryingOutthe Punishment of Imprisonment resides intheir conflict with Article 90 of the Constitution, the samearguments apply as did in the discussion of their conflict withArticle 40 para.1 of the Charter.According to bothprovisions, only a court may decide upon guilt and determinethe punishment for criminal deeds. Consequently, noadministrative organ whatsoever may do so, even if, in thegiven matter, only decision-making about punishment isconcerned.
Considering the fact that, for the above-stated reasons, aconflict was found, in the sense of § 70 para. 1 of Act No.182/1993 Sb., on the Constitutional Court, between §§ 9 and 9aof Act No. 59/1995 Sb., on Carrying Out the Punishment ofImprisonment, as amended by Act No. 294/1993 Sb., on the onehand, and the cited articles of the Charter as well as theConstitution, on the other hand, the Constitutional Courtdecided to annul those legal regulations, as of the day thisjudgment is published in the Collection of Laws.
5. b) The petitioners had drawn attention only to thediscrepancy between the cited provisions of the revised Act onCarrying Out the Punishment of Imprisonment No. 294/1993 Sb.,as well as the revised Criminal Procedure Code, No. 292/1993Sb., and domestic constitutional law provisions. However, asthe Constitutional Court is limited to taking solely the actionrequested in the of the petition, but is not limited by thereasoning given therefor, the Constitutional Court, in view ofits official obligations in the sense of § 68 para. 2 of Act No182/1993 Sb.,also took into consideration the conformity ofthe contested legal provisions with international treaties onhuman rights and fundamental freedoms that have been ratifiedand promulgated and by which the Czech Republic is bound(Article 10 of the Constitution). However, no discrepancieshave been found in this respect.
Neither the Minimum Standard Rules for the Treatment ofImprisoned Persons, approved by the Economic and Social Councilof the UNO by Resolutions No 663 C (XXIV) and No 2076 (LXII),nor the European Prisoners Rules, having the character of arecommendation to the member states by the Council of Ministersof the Council of Europe, No.R(87) 3, were not taken intoconsideration for this review. Neither of these documents hasthe character of an international treaty as meant by Article 10of the Constitution.
6. Since a regulation were issued for the implementation of Act No59/1965 Sb., on Carrying Out the Punishment of Imprisonment, asamended by Act No. 294/1993 Sb., namely Ministry of Justice RegulationNo. 110/1994 Sb., issuing the Rules on the Carrying out of thePunishment of Imprisonment, it was necessary, in accordance with § 70para. 3 of Act No. 182/1993 Sb., on the Constitutional Court, todeclare in the judgment also that certain of its provisions lostvalidity, in particular §§ 11 lit. a), 13 and 14, as in substance theybear an intimate connection to the annulled provisions, §§ 9 and 9a ofAct No. 59/1965 Sb., on Carrying Out the Punishment of Imprisonment,as amended by Act No. 294/1993 Sb.