Strasbourg, 1 February 2006
Consultative Council of European Judges (CCJE)
Questionnaire on “The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of the Czech Republic
Response of the Czech Republic on
"The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"
approved by the CCJE
at its 6th meeting (23-25 November 2005)
A.1. Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.
The educational programme of the Judicial Academy involves a specialised training for judges in the area of international and European law. Judicial Academy has prepared schemes for training in European law, which have been acknowledged by its Council.
In 2005 the following training courses were organised (in-service training):
1. European Law – 4 x 90 persons
2. European Warrant of Arrest – 90 persons
3. Labour Law – 2 x 90 persons
4. Execution of a Decision – 90 persons
5. Protection of Industrial Property – 90 persons
6. Mutual Legal Assistance in Criminal Matters – 90 persons
7. International Judicial Cooperation – 90 persons
8. Customs Proceedings in the context of Accession to European Union – 60 persons
9. EU Commercial Law – 3 x 25 persons
JA Department for judicial and legal candidates includes European law as a supplementary issue into the general courses (initial training).
A.2. Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).
The judges are not regularly sent all these materials, but may freely access them on official websites and collections. Most relevant instruments of the EU/EC, including important decisions of the Court of Justice of the EC, are assembled by the Ministry of Justice to an electronic document that is circulated monthly to the courts and published on the website. This document is in Czech language and contains short description of main features of such instruments or decisions.
Part of the remuneration of the judge should be used for acquisition of professional literature, subject to discretion of a judge. There are plenty of legal periodicals dedicated wholly or partially to international or European law. At present, all judges have cost-free access to the Internet and, therefore, to the websites of international and European institutions. Every court has a library, which includes most widely read legal periodicals that are available freely to judges. Principal decisions of the ECHR are presented and discussed in the consultation meetings in the framework of individual courts.
A.3. Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?
For several years the Judicial Academy has run specialized foreign language courses (English, French, German). These courses are free of charge, the target group being judges and state prosecutors. Moreover, most courts organize free language courses for judges, taking place in the workplace during working time. Only Supreme Court and high courts (2) have employees qualified for translation of legal texts.
B.1 What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.
By organizing courses on European law the Judicial Academy contributes to facilitation of communication between national and European courts. The courses have been attended by judges and state prosecutors according to their individual specialization. There exists a group of experts (both judges and state prosecutors), specialised in certain parts of European law, who disseminate the information gained from the seminars organized both by Judicial Academy and some institutions abroad among their colleagues.
B.2. Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?
There are several study visits by Czech judges to these courts each year. Also, seminars are organized with participation of judges of these courts or lawyers specialising in this field. Such events, organized by the Ministry of Justice, Judicial Academy, Czech Bar Association and by some courts (including the Supreme Court) enhance the understanding of Czech judges of activities of European judicial institutions, and to forge personal contacts between judges, which improves the possibility of future dialogue.
C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation?
a) the European Convention on Human Rights (ECHR)
b) EU treaties
c) the case-law of:
d) international treaties.
Please cite the relevant constitutional provisions or case-law.
While this is not constitutional law treatise, it may be said in short, that all international treaties have precedence over normal laws, but not over constitutional laws or human rights and liberties enshrined in the Charter of Fundamental Rights and Freedoms. This Charter, that is part of the “constitutional order” is interpreted by the Constitutional Court and other courts, contains rights and freedoms corresponding to fundamental international instruments in this field. There is a judicial procedure for safeguarding the compliance of international treaty with the constitutional order and of the normal laws with international treaties. The international treaties’ mutual relation is determined by the international law. However, it is not possible to diminish the procedural protection of human rights and liberties already achieved by ratification of relevant treaties (Constitutional Court binding ruling No. 403/2002 Coll.). Though there is no system of binding precedents, the case law of European courts is taken into account during judicial decision-making on relevant matters. (However, there are generally binding rulings of the Constitutional Court, which are published in the Collection of laws.) Particular relevant cases are referred to in description of court deliberations that accompany rulings (cf. this Constitutional Court ruling translated into English http://test.concourt.cz/angl_verze/doc/p-6-02.html that refers to ECHR decision). All courts may address the EC Court of Justice through the preliminary question procedure, as well.
Unofficial translation of relevant constitutional provisions from http://www.psp.cz/cgi-bin/eng/docs/laws/constitution.html:
(1) The Czech Republic is a sovereign, unitary and democratic, law-abiding State, based on respect for the rights and freedoms of man and citizen.
(2) The Czech Republic shall observe its obligations under international law.
Promulgated international agreements, the ratification of which has been approved by the Parliament and which are binding on the Czech Republic, shall constitute a part of the legal order; should an international agreement make provision contrary to a law, the international agreement shall be applied.
(1) An international agreement may provide for a transfer of certain powers of bodies of the Czech Republic to an international organization or institution.
(2) An approval of the Parliament is required to ratify an international agreement stipulated in Subsection 1 unless a constitutional law requires an approval from a referendum.
(1) The Government shall inform the Parliament regularly and in advance on issues related to obligations arising for the Czech Republic from its membership in an international organization or institution stipulated in Section 10a.
(2) The Chambers of Parliament express their opinions on the decisions of such an international organization or institution in a form provided for by their rules of procedure.
(3) An Act on the principles of conduct and relations between both Chambers and in their external relations, may entrust the exercise of the competence of the Chambers under Subsection 2 to a joint body of the Chambers.
An approval of both Chambers of Parliament is required to ratify international agreements
a) governing rights and duties of persons,
b) of alliance, peace, or other political treaties,
c) which result in the membership of the Czech Republic in an international organization,
d) that are economic of a general nature,
e) on other issues to be governed by the law.
The Constitutional Court
(1) The Constitutional Court shall rule on
a) repeal of laws or individual provisions thereof should they contravene the constitutional order,
b) repeal of other legal regulations or individual provisions thereof should they contravene the constitutional order or the law,
c) constitutional complaints filed by territorial self-government bodies against illegal interventions by the State,
d) constitutional complaints filed against final decisions and other interventions by agencies of public authority, violating constitutionally guaranteed fundamental rights and freedoms, e) appeals against decisions in matters of confirmation of the election of a Deputy or Senator,
f) reservations on loss of eligibility and on incompatibility of holding the office of Deputy or Senator according to Article 25,
g) impeachment by the Senate of the President of the Republic under Article 65, par. 2,
h) the Presidential proposal to repeal a decision of the Chamber of Deputies and the Senate according to Article 66,
i) measures essential for the implementation of a ruling by an international court, which is binding for the Czech Republic, unless it can be implemented in a different manner,
j) whether a decision on the dissolution of a political party, or another decision regarding the activity of a political party, conforms to constitutional or other laws,
k) disputes regarding the scope of the jurisdiction of state agencies and territorial self-government agencies, unless such disputes are under the jurisdiction of a different body,
l) appeals against a decision of the President of the Republic that a referendum on the accession of the Czech Republic to the European Union shall not be called,
m) whether the execution of a referendum on the accession of the Czech Republic to the European Union is in conformity with the Constitutional law regarding the referendum on the accession of the Czech Republic to the European Union and with the implementing law.
(2) The Constitutional Court shall also decide on the conformity of international agreements under Section 10a and Section 49 with the constitutional order prior to their ratification. Until a ruling of the Constitutional Court is delivered, an agreement cannot be ratified.
(3) A law may stipulate that in place of the Constitutional Court, rulings shall be issued by the Supreme Administrative Court in respect of
a) repeal of legal regulations or their individual provisions, which are in violation of the law,
b) disputes regarding the scope of the jurisdiction of state agencies and territorial self-government agencies, unless such disputes are under the jurisdiction of a different body.
(1) In his/her decision-making, a judge is bound by the law and international agreements constituting part of the legal order; he/she is entitled to assess the conformity of a different legal regulation with the law or with such international agreement.
(2) Should a court conclude that the law to be applied in deciding a case contravenes the constitutional order, it shall submit the issue to the Constitutional Court.
C.2. Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?
There is no limit as to what texts may be used for explanation of the court reasoning. The interpretation of the law (or treaty) must, of course, conform to the established principles and legal techniques (cf. e.g. Art 31 of the Vienna Convention on Law of Treaties). Usually, the courts find it sufficient to refer to domestic law and previous decisions. In some cases, they refer to international treaty, or to a decision of international court.
The courts must, of course, respect nature and, if applicable, also legal force of all such instruments. This has been confirmed e.g. by ruling No. 8/1995 of the Constitutional Court, which cancelled several sections of an act on serving the imprisonment sentence and of Criminal Procedure Code, since consequences of their application were incompatible with several provisions of the Charter of Human Rights and Fundamental Freedoms, the Constitution. On the contrary, breach of international conventions binding on the Czech Republic was not found in this case. The Constitutional Court explicitly said: “Neither the Minimum Standard Rules for the Treatment of Imprisoned Persons, approved by the Economic and Social Council of the UNO by Resolutions No 663 C (XXIV) and No 2076 (LXII), nor the European Prisoners Rules, having the character of a recommendation to the member states by the Council of Ministers of the Council of Europe, No. R(87) 3, were taken into consideration for this review. Neither of these documents has the character of an international treaty as meant by Article 10 of the Constitution.”
The recommendations may be given certain legal strength only through internal legislative norms. For example, the Ministry of Health established in its decree No. 411/2004 Coll., that best production practice in blood transfusion facilities must take into account not only instructions by the Ministry, but also recommendations of Council of Europe and World Health Organisation (Section 28/1).
On the other hand, such texts may be used as supporting arguments or in contextual analyses, as the Constitutional Court did during consideration of validity of prolonged application of lustration laws (http://test.concourt.cz/angl_verze/doc/p-9-01.html): “The large and small lustration laws still protect an existing public interest, or in other words they pursue a legitimate aim, which is the active protection of a democratic state from the dangers which could be brought to it by insufficiently loyal and little trustworthy public services. Both Acts pursue this legitimate aim by setting certain prerequisites for the performance of certain positions in state bodies and organizations, in the Police of the CR and in the Corrections Corps of the CR. A legislative measure of this kind is not exceptional in Europe at the present time, and is expressly admitted by, e.g. recommendation no. (2000)6 of the Committee of Ministers of the Council of Europe, in which the Czech Republic is a member. This recommendation regulates the position of representatives of public power (public officials, agents publics). In the preamble the recommendation points out that the public administration plays a substantial role in democratic societies and that persons in it are subject to special obligations and commitments because they serve the state. Point 4 explicitly recognizes that both general and specific prerequisites may exist for access to public positions, on the assumption that they are provided by law.”
In other cases (e.g. Nos. 354/2005 Coll., 355/2005 Coll., 356/2005 Coll.), Recommendations 94(12) and 2001(13) were referred to by the Constitutional Court.
C.3 If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?
Yes. See Art. 10, 87 (2) and 95 of the Constitution, as the ECHR is covered by the ruling No. 304/2002 Coll. Also, Section 109 of the Civil Procedure Code and Section 224 of the Criminal Procedure Code impose a duty on courts to refer the case to the Constitutional Court if the law to be used contravenes constitutional law or international treaty having precedence over law.
C.4. Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:
- a direct application for reopening of the proceedings?
- lodging of a claim for compensation?
Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.
The Strasbourg court recognizes a constitutional complaint to the Constitutional Court as a general remedy for violations of ECHR - with the exception of reasonable time requirement. Therefore, a new law is being considered by the Parliament in order to allow parties to lodge a claim of immaterial damages for infringement of this requirement to domestic body. Until such law is passed, it is necessary to file such a case to the Strasbourg Court.
D.1. Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?
The Czech Republic implements legal requirements into its legislation as necessary. Other texts may be used in legislative activity as appropriate. The instruments of the Council of Europe were referred to at the website of Ministry of Interior (link to Council of Europe Terrorism theme file).
D.2. Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.
No, there are no procedural provisions relating specifically to powers of the judge (or public prosecutor or police body) in criminal proceedings related to terrorism. All standard provisions relating to e.g. right of appeal, judicial oversight and conditions for use of relevant measures (search, bank information, phone tapping etc.) apply in the same way as in relation to other serious offences.
D.3 What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.
Can you quote some specific cases where the question about such a reconciliation was raised?
As indicated in response to D.2, there are no procedural differences in the protection of the persons suspected of terrorism as compared to persons suspected of other serious crime.
Administrative activity of state bodies and territorial self-government authorities is subject to judicial review as well.
The practice in asylum procedures, extradition and expulsion must be in conformity with obligations of the Czech Republic in the area of protection of human rights and freedoms. Special attention to this issue is paid in the National Action Plan against Terrorism (2005 version). Relevant instruments and decisions of the UN Committee for Human Rights, UN Committee against Torture, European Court on Human Rights, CDDH and CODEXTER in the framework of Council of Europe are taken into consideration. The Action Plan deals specifically with application of asylum procedures and concludes that both legislation and administrative decisions were in conformity with international law. The application of extradition and other conventions between Member states is usually discussed by relevant Council of Europe committees, such as PC-OC.
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