Pl US 42/02



If,  thanks  to  the applicable procedures, the  interpretation
even  of the very old criminal law norms is carried out at  the
present by a court with consequences for adjudging the criminal
prosecution  of  a person, that is with consequences  intruding
into  his  or  her personal sphere, it may not be  carried  out
without regard to the constitutive values and principles of the
democratic law-based state, such as they are expressed  in  the
Czech  Republic's currently valid constitutional order.  It  is
only  in  this  restrictive sense, that of value discontinuity,
that  one  may  conceive  of  continuity  with  "old  law"  the
application  (legality) of which is the subject of contemporary
proceedings on a complaint of a violation of the law.
   The freedom of conscience is manifested in decisions made by
the  individual in certain concrete situations, that is,  "here
and  now",  felt as a profoundly experienced duty.  Apart  from
the  correlation of the norm and the situation, the  structural
characteristic  of  conscience consists also  in  a  personally
experienced sense of an unconditional duty.
   The  freedom of conscience is classified among the  absolute
fundamental  rights  which may not be  restricted  by  ordinary
statute.   In the case of the conflict of a legal norm  with  a
concrete  assertion  of  the  freedom  of  conscience,  it   is
necessary  to  weigh whether the assertion of  the  freedom  of
conscience   is  not  barred  by  other  values  or  principles
contained  in the Czech Republic's constitutional  order  as  a
whole  (constitutionally immanent restriction upon  fundamental
rights or freedoms).


The Plenum of the Constitutional Court decided on 26 March 2003
in  the  matter of the constitutional complaint  of  V.W.  (V.)
against  the 17 October 2002 ruling of the Supreme Court,  file
no. 15 Tz 47/2002 as follows:
   The 17 October 2002 ruling of the Supreme Court, file no. 15
Tz 47/2002 is quashed due to its conflict with Art. 15 para.  1
of the Charter of Fundamental Rights and Basic Freedoms.



                           REASONING

I.
By a constitutional complaint delivered to the Constitutional
Court on 7 November 2002, the complainant prayed for the
annulment of the 17 October 2002 ruling of the Supreme Court,
file no. 15 Tz 47/2002, which turned down on the merits the
complaint of a violation of the law submitted in the
complainant's favor by the Minister of Justice.
   By  the 7 January 1954 judgment of the former Lower Milityry
Court  in  Brno  PSP 47, file no. T 2/54, the  complainant  was
found  guilty, pursuant to § 270 para. 1, lit. b)  of  Act  No.
86/1950  Coll.,  the Criminal Act, of the criminal  offense  of
evading  the  service duty.  It was alleged that  he  committed
this  offense in that on 1 November 1953 he refused to  put  on
his  uniform,  to  accept the arms allocated  to  him,  and  to
perform  military  service,  all  the  while  alluding  to  his
religious  convictions.   For  his  criminal  offense  he   was
sentenced to imprisonment for a period of two and a half  years
and, at the same time, he was declared to have forfeited for  a
period  of three years his honorable rights of citizenship  and
the  rights laid down in § 44 para. 2 of the Criminal Act,  No.
86/1950 Coll.
   This  decision,  which became final  and  enforceable  on  7
January  1954, was subsequently contested when the Minister  of
Justice  submitted a complaint of a violation  of  the  law  in
favor  of  the  complainant.  The complaint was argued  to  the
effect  that  the  judgment violated § 2 para.  3  of  Act  No.
87/1950  Sb,  on  Criminal Judicial Proceedings  (the  Criminal
Procedure Code), in relation to § 270 para. 1, lit. b)  of  Act
No. 86/1950 Coll., the Criminal Act, on the grounds stated in §
1  paras.  1  and  2  of Act No. 119/1990  Coll.,  on  Judicial
Rehabilitation, as subsequently amended.
   The  competent Supreme Court panel heared the  29  May  2002
complaint  of  a  violation of the law, and,  in  view  of  the
divergent decisional practice of Supreme Court panels,  in  its
ruling,  file no. 11 Tz 205/01, decided to refer the matter  to
the  Grand Senate of the Criminal Collegium.  It designated  as
the decisive question whether the complainant's conduct can  be
viewed as a criminal offense or whether the complainant was, by
these  means, merely asserting his religious freedom guaranteed
by  the  Constitution, yet in conflict with his duties  towards
the state and society, as laid down in the Constitution.
   In the reasoning of the contested 17 October 2002 ruling  by
the  Supreme  Court Grand Senate, file no. 15 Tz  47/2002,  the
Grand Senate stated first and foremost that, in a proceeding on
a  complaint  of  a  violation of the law, it  adjudicates  the
correctness  of  the  contested  decision,  as  well   as   the
correctness of the proceeding leading up to it, ex  tunc,  that
is,   in  accordance  with  the  factual  and  legal  situation
prevailing at the time the decision contested in the  complaint
of a violation of the law was issued.
   On  the  strength  of  § 2 para. 1 of the  Act  on  Judicial
Rehabilitation, judgments of conviction were quashed, ex  lege,
if  the convictions were for such acts as were declared  to  be
criminal  offenses in conflict with principles of a  democratic
society   respecting  civil,  political  rights  and   freedoms
guaranteed  by  the Constitution and expressed in international
documents and international legal norms.  The criminal  offense
of  evading the duty to serve under § 270 para. 1, lit.  b)  of
the Criminal Act, No. 86/1950 Coll., is not listed in § 2 para.
1  of  the  Act  on Judicial Rehabilitation.  In view  thereof,
according to the reasoning of the contested ruling, the Supreme
Court   Grand  Senate  could  not  consider  the  complainant's
conviction  unlawful  merely due to  the  fact  that,  when  he
committed it, he referred to his religious convictions.  If the
legislator  did  not  consider  it  necessary  to  quash   such
convictions ex lege, then it is not an act, the declaration  of
which  as  a criminal offense would, in and of itself, conflict
with  international documents, international legal  norms,  and
the  principles  of  a democratic society repecting  guaranteed
civil  and  political rights and freedoms.  Therefore,  in  the
Supreme  Court's  view,  a conviction for  the  given  criminal
offense cannot, in and of itself, be considered as incompatible
with  democratic  and  legal principles,  and  such  conviction
cannot, without more, be seen as a violation of the law.

II.
In   his   constitutional  complaint  the  complainant  objects
primarily  to the fact that the Supreme Court did  not  concern
itself  with the specific criminal matter, rather it  expressed
general  considerations concerning whether criminal prosecution
for  evading the service duty was permissible during the  given
period,  that  it  entirely overlooked the proposition  of  law
expressed  by  the Constitutional Court, for  example,  in  its
judgment  in  the matter file no. II. US 285/97,  and  entirely
passed  over  the issue of the special subject,  and  that  the
Senate  was  composed  even  of judges  who  should  have  been
excluded from the hearing.
   In the complainant's view, the existence of a statutory duty
is  not,  in and of itself, a sufficient reason for restricting
religious  freedoms.   According to  the  complainant,  further
prerequisites  must be fulfilled, such as,  that  the  military
service  would  have  to  function to  ensure  the  rights  and
freedoms  of other people and would have to correspond  to  the
just  requirements of morality, public order, and general  good
in  a  democratic  society.  However,  military  service  in  a
communist regime could not have met these requirements.  As the
complainant  stated, military service could  not  at  all  have
functioned  to ensure the rights and freedoms of other  people,
rather  it  was  meant to serve for the armed protection  of  a
regime   which   engaged  in  the  long-term   and   systematic
infringement  of human rights, was criminal, illegitimate,  and
despicable.  From this perspective, the complainant's religious
freedom  was, in his view, excessively restricted not  only  in
the  sense  of  Art. 18 and Art. 29 para. 2  of  the  Universal
Declaration  of  Human Rights (hereinafter "Declaration"),  but
also  of  Art.  9  paras.  1 and 2 of the  Convention  for  the
Protection   of   Human   Rights   and   Fundamental   Freedoms
(hereinafter "Convention").
  The complainant further considers that it is not decisive for
judging his case whether the Minister of Justice has or has not
submitted  in  other cases complaints in favor of  persons  who
behaved  in the same manner as he, although from other motives.
While the Supreme Court refers in its decision to Art. 1,  Art.
2  para. 1 and Art. 3 of the Charter of Fundamental Rights  and
Basic Freedomes, nonetheless, it was precisely these provisions
which,  in the complainant's view, it violated by its decision,
when  it  applied  them  as  if the  complainant  had  demanded
advantages  to the detriment of other persons.  The complainant
considers  that,  on  the contrary,  it  is  he  who  has  been
subjected   to   discrimination,  and  in  his   constitutional
complaint  he  remarks that no international  treaty,  nor  any
domestic  law, distinguishes as to whether someone has  refused
military service due to the fact that he does or does not  have
a certain religious conviction.
  The complainant also considers that the Supreme Court has, in
the  contested  decision, infringed his right to  fair  process
guaranteed by Art. 36 para. 1 of the Charter and Art. 6 para. 1
of  the Convention.  In his view the Grand Senate, to which the
matter  had  been  referred for the  purpose  of  unifying  the
propositions  of law espoused by various Supreme Court  panels,
should  have analyzed the legal conclusions in previous similar
decisions  and  not  merely  "copied"  the  previous   negative
decision  of  the  5th  Panel  of the  Supreme  Court  Criminal
Collegium.
   The  complainant further disagrees with the Supreme  Court‘s
view  that  he  was  not  hampered in asserting  his  right  to
judicial rehabilitation by the conduct of the Head of the Local
Military Court in Brno, who, in response to the question  posed
by the complainant's legal counsel, gave misleading information
concerning  judicial rehabilitation.  The complainant  believes
that   his   then  legal  counsel  did  not  ask  the  question
informally, rather officially, and that it was the Head's  duty
to  act in accordance with § 52 of the Criminal Procedure Code,
that is to conduct himself as is called for by the significance
and   formative   purpose   of   criminal   proceedings.    The
complainant, thus, acted in good faith that the Head's response
was  correct  and  did  not submit the  proposal  for  judicial
rehabilitation.
   In  view  of  all  the above-stated facts,  the  complainant
considers  that,  by  its  decision,  the  Supreme  Court   has
infringed his constitutionally guaranteed rights under Art.  18
and  Art. 29 of the Declaration, Art. 9 paras. 1 and 2 and Art.
6  para.  1  of  the Convention, and Art. 36  para.  1  of  the
Charter.
   The complainant supplemented his constitutional complaint in
his  submission  of 17 March 2003, in which he also  criticized
the  Supreme Court for infringing his right to the  freedom  of
conscience  under Art. 15 para. 1 of the Charter of Fundamental
Rights and Basic Freedoms, on the grounds expanded upon in  the
reasoning  of the 11 March 2003 Constitutional Court  judgment,
file no. I. US 671/01.

III.
At the Constitutional Court's request, the Supreme Court, as  a
party  to  the  proceeding, gave its  views  on  the  submitted
constitutional  complaint.  The Chairman of  the  Grand  Senate
stated that the complaint of a violation of the law in favor of
V.W. (V.) was referred to the Grand Senate for its decision  on
grounds  of  unification  of  the decisional  practice  of  the
Criminal  Collegium panels.  Supreme Court panels  had  adopted
two different views on the question at issue.
   According to one view, a conviction, pursuant to § 270 para.
1,  lit.  b)  of the Criminal Act, No. 86/1950 Coll.,  for  the
criminal offense of evading the service duty cannot, in and  of
itself, be considered as incompatible with democratic and legal
principles and one cannot, without more, spot in it a violation
of the law, even though the original conviction occurred during
the  period from 25 February 1948 and 1 January 1990 for an act
committed  after 5 May 1945.  According to this  view,  neither
the  Declaration nor any international treaty on  human  rights
establishes  a  right  to refuse to fulfill  a  statutory  duty
towards the state, including military duty, and such a criminal
prosecution is permissible even in democratic states  and  even
in  cases where the possibility of alternative service does not
exist.
   The  second  view  is  based on the conviction  that,  in  a
situation  where  no  alternative to the performance  of  basic
military service existed for cases when such performance  would
require a citizen to violate his religious convictions, an  act
by  which he exercised a freedom guaranteed by the constitution
and  by  international  conventions cannot  be  regarded  as  a
criminal offense.
   As  the  Chairman  of the Grand Senate further  stated,  the
effort to unify the previously divergent decisional practice of
panels ended with the victory of the first view, although  this
view prevailed in the nine-member Grand Senate by the narrowest
possible  margin.  In his pleading the Chairman  of  the  Grand
Senate  expressed doubts as to whether the view which prevailed
in  the  contested  decision  was sufficiently  representative,
especially  in  view of the fact that certain panels  had  more
than one judge representing them in the Grand Senate.

IV.
In  his  16  January 2003 pleading, the Minister of Justice,  a
secondary   party  to  the  proceeding  on  the  constitutional
complaint,  expressed  his  disagreement  with  the   contested
decision.   The  Minister  of Justice  considers  that  in  the
complainant's case there was a violation of § 2 para. 3 of  Act
No.  87/1950 Sb, on Criminal Judicial Proceedings (the Criminal
Procedure Code), in relation to § 270 para. 1, lit. b)  of  the
Criminal Act, No. 86/1950 Coll., on the grounds stated in  §  1
paras.  1  and  2  of  Act  No.  119/1990  Coll.,  on  Judicial
Rehabilitation.
    The  Minister  of  Justice  considers  that  there  was  an
infringement of equality under Art. (correctly §) 1 of the then
in   force   Constitution,   for  the  non-uniformity   between
recognized rights and imposed duties quite unequivocally placed
in an unfavorable position every citizen who actually wished to
exercise her constitutionally guaranteed religious freedom,  as
against  those  whose convictions lacked spiritual  dimensions.
Art.  (correctly  §)  16 para. 1 of the constitutional  act  in
effect  at  that  time,, No. 150/1948 Coll., the  "9th  of  May
Constitution",  recognized to each citizen  of  the  state  the
right  to  select any religious faith whatsoever; on the  other
hand,  § 34 paras. 1 and 2 laid down the citizens‘ basic duties
to  the  state,  among which was also the duty  connected  with
defense  of  the  homeland.  Under that state of  affairs,  the
complainant could remain true to his religious convictions only
by  incurring criminal law consequences, and, as  a  result  of
that  situation, as a believer, he came into conflict with  his
duties as a citizen for the defense of the state.

V.
In  view  of  the  fact that the Grand Senate  of  the  Supreme
Court's  Criminal  Collegium  decided  this  complaint   of   a
violation  of  the  law, in conformity with the  Constitutional
Court  Plenum's  resolution published as  Constitutional  Court
Notice  No. 8/2001 Coll., it is the Constitutional Court Plenum
which is competent to hear the constitutional complaint against
this decision.
   Once  the  Constitutional  Court had  ascertained  that  the
constitutional complaint met all formal requirements  and  that
it has been timely submitted, it proceeded to the consideration
of the matter on the merits.

VI.
1.
The  constitutional  complaint  contests  the  above-designated
decision  of  the  Supreme  Court in which  the  Supreme  Court
proceeded  from the thesis, according to which, in a proceeding
on  a  complaint of a violation of the law, it adjudicates  the
"correctness" (correct legality) of the contested  decision  as
well  as the "correctness" (correct legality) of the proceeding
leading  up  to  it  ex tunc, that is, in accordance  with  the
factual situation and state of the law at the time in which the
contested decision was issued, or when the proceeding which led
up  to  the decision was held; new facts and evidence  are  not
admissible.
   In the Constitutional Court's view, this starting thesis may
not   be  applied  without  reservation.   If,  thanks  to  the
applicable procedures, the interpretation even of the very  old
criminal  law norms is carried out at the present  by  a  court
with  consequences for adjudging the criminal prosecution of  a
person,  that is with consequences intruding into  his  or  her
personal  sphere, it may not be carried out without  regard  to
the  constitutive values and principles of the democratic  law-
based state, such as they are expressed in the Czech Republic's
currently  valid  constitutional order.  It  is  only  in  this
restrictive  sense, that of value discontinuity, that  one  may
conceive  of  continuity with "old law" (see  Judgment  of  the
Constitutional  Court, Pl.19/93 – Collection of  Judgments  and
Rulings  of  the Czech Constitutional Court, Vol. 1,  No.  1  –
published as No. 14/1994 Coll.), the application (legality)  of
which is the subject of contemporary proceedings on a complaint
of a violation of the law.
   The  European  Court of Human Rights also expressed  similar
views as to the application of "old law" (judgment in the  case
of  Streletz,  Kessler and Krenz v. Germany of 22 March  2001),
where, among other things, it stated that "the courts of such a
State,   having   taken  the  place  of  those  which   existed
previously,  cannot be criticised for applying and interpreting
the legal provisions in force at the material time in the light
of  the  principles governing a State subject to  the  rule  of
law."   This  idea was expanded upon in an even more meaningful
manner  in  the separate opinion of Judge Levits, supplementing
the  reasoning  given in the judgment.  He stated:   "It  shows
clearly  that interpretation and application of the law  depend
on the general political order, in which the law functions as a
sub-system.   (…)   The  differences  in   interpretation   and
application of the law between democratic and socialist systems
cover all important elements of the law. (…) That brings us  to
the question whether, after a change of political order from  a
socialist  to a democratic one, it is legitimate to  apply  the
"old"  law (…) according to the approach to interpretation  and
application of the law which is inherent in the new  democratic
political order.  I would like to stress that in my view  there
is  no  room for other solutions.  Democratic States can  allow
their  institutions  to  apply the law  –  even  previous  law,
originating in a pre-democratic regime – only in a manner which
is  inherent in the democratic political order (in the sense in
which   this   notion   is  understood   in   the   traditional
democracies).   Using  any other method  of  applying  the  law
(which  implies reaching different results from the same  legal
texts)  would  damage the very core of the ordre  public  of  a
democratic   State.   (…)  Consequently,   interpretation   and
application of national or international legal norms  according
to   socialist   or  other  non-democratic  methodology   (with
intolerable  results for a democratic system) should  from  the
standpoint of a democratic system be regarded as wrong. (…)  In
my  view,  that is a compelling conclusion, which derives  from
the  inherent  universality  of  human  rights  and  democratic
values,  by  which all democratic institutions are  bound.   At
least since the time of the Nuremberg Tribunal, that conception
of  the democratic order has been well understood in the  world
and it is therefore foreseeable for everybody."
   The  Constitutional  Court entirely concurs  with  the  view
expressed by Judge Levits.

2.
In  view  of  the  fact  that what is to  be  reviewed  in  the
proceeding  on the complaint of a violation of the law  is  the
legality  of  the above-designated proceeding and  decision  in
relation to the condemning decision (also designated above) for
the  criminal offense of avoidance of the duty to serve, it  is
necessary  to  review  whether  the  contested  Supreme   Court
decision  did  not result in the violation of the complainant's
basic  rights,  including his basic right  to  the  freedom  of
conscience, contained in Art. 15 para. 1 of the Charter.
   a)   The freedom of conscience has constitutive significance
for  the  democratic law-based state which respects the liberal
idea  of the primacy of responsible and dignified human  beings
before  the  State – that is, the idea of esteem  (respect  and
protection) by the state for the rights of persons and citizens
[Art.  1  para.  1  of  the  Czech  Constitution  (hereinafter,
"Constitution")].   In  contrast, it  is  characteristic  of  a
totalitarian  political regime that it  does  not  respect  the
autonomy  of  the individual conscience, as it  attempts,  even
with  the aid of a repressive criminal policy, to suppress  the
freedom  of conscience of the individual, and by this means  to
compel her to accept the will of the ruling elite, which claims
recognition  for its decisions as the sole good decisions  and,
in that sense, the sole ethical decisions.  This pattern can be
seen  even at the Czechoslovak, or Czech, constitutional plain.
Thus  the Constitutional Charter, No. 121/1920 Coll.,  just  as
the  current Charter, does not provide for the possibility that
freedom of conscience, which both expressly lay down, could  be
restricted by statute.  While § 15 of the Constitution of 9 May
1950,  No.  150/1948 Coll., declared the freedom of conscience,
it  negated it at the same time by laying down that the freedom
of  conscience  does  not provide grounds for  the  refusal  to
fulfill  civic  duties  as  laid down  in  ordinary  law.   The
Constitution  of  the  Czechoslovak  Socialist  Republic,   No.
100/1960  Coll., did not even make reference to the freedom  of
conscience.
   The freedom of conscience is manifested in decisions made by
the  individual in certain concrete situations, that is,  "here
and  now", felt as a profoundly experienced duty.  It is not  a
matter  of  the individual's attitude toward abstract problems,
valid  once and for all and in all situations.  In the case  of
decisions  dictated  by conscience, it is the  fusion  for  the
individual  of  binding  moral  norms  with  the  situation  as
evaluated  by  her.  It is the integration of recognized  norms
with  an  assessment  of  the factual  situation.   A  decision
dictated  by  consciences  is based on  the  existence  of  the
conscience itself, and not on specific religious or ideological
conceptions.   Apart from the correlation of the norm  and  the
situation, the structural characteristic of conscience consists
also  in  a  personally experienced sense of  an  unconditional
duty.
  It follows from this that the freedom of conscience cannot be
conflated either with the freedom of faith or with the  freedom
of  religion.   In contrast to these two freedoms,  a  decision
dictated  by  conscience  is always concrete,  as  the  subject
thereof  is  concrete conduct in a concrete situation.   It  is
only  the reasons or maxims which co-create the norm which  the
conscience  accepts  in a given moment that  can  be  abstract,
general  or  absolute.  A decision dictated by  conscience  can
find  in  them its normative justification, which applies  when
resolving the conflict between such principle or maxim and  the
legal norm binding one to the opposite conduct.  Of course, the
situation is always individualized by time, place, and concrete
circumstances.   What  is fundamental is  that  it  concerns  a
solemn moral decision oriented toward the category of good  and
evil   [compare,  for  example,  the  judgment   of   the   FRG
Constitutional  Court  in  BverfGE  12,  45(55)],   which   the
individual  experiences as a binding duty or  an  unconditional
order to behave in a certain fashion.
   The  distinction between it and a decision  made  solely  in
reference to a political or ideological motivation (which is an
external  quantity  not  penetrating into  the  internal  moral
sphere)  or to a psychological condition (which exists  without
the  necessity  to engage in moral judgment), consists  in  its
specific  moral character and its relationship to the  personal
moral  truthfulness or earnestness which lends to the  decision
its sense of unconditionality.
   b)   The  freedom  of  conscience is  classified  among  the
absolute  fundamental rights, that is, those which may  not  be
restricted by ordinary statute, the purpose of which  would  be
to  restrict such an absolute fundamental right, in  this  case
the  freedom of conscience.  Each statute expresses, on the one
hand,  the  public interest and, on the other,  formulates  the
moral  convictions  of the parliamentary  majority,  thanks  to
which  it was adopted, and in this manner formulates the  moral
conviction  of a majority of society, which the composition  of
Parliament  reflects.  If a certain legal norm is  in  conflict
with  an individual conscience, certainly this fact cannot lead
to the consequence that such legal norm is non-binding, even if
only in relation to the person whose conscience directs him not
to  respect the specific legal norm.  The freedom of conscience
can,   however,   have  an  effect  on  the  applicability   or
enforceability of such legal norm in relation to those  persons
to  whose conscience it is repugnant.  In weighing whether,  in
the  case  of such a conflict of a legal norm with  a  concrete
assertion  of  the  freedom  of  conscience,  the  freedom   of
conscience  ultimately  wins out,  it  is  necessary  to  weigh
whether  such  a  decision would encroach upon the  fundamental
rights of third persons or whether assertion of the freedom  of
conscience   is  not  barred  by  other  values  or  principles
contained  in the Czech Republic's constitutional  order  as  a
whole  (constitutionally immanent restriction upon  fundamental
rights or freedoms).

VII.
In  principle  it is a matter for the Supreme  Court  to  judge
whether  the  law was violated by the decision contested  in  a
complaint  of a violation of the law.  It is the  task  of  the
Constitutional  Court to adjudge whether the interpretation  of
statutory  provisions selected by the Supreme  Court  infringes
any of the complainant‘s fundamental rights and freedoms, or to
adjudge  whether  an  interpretation of the  applied  statutory
provisions  can be found which would not infringe  any  of  the
complainant's fundamental rights and freedoms.
   The  constitutional complaint is well-founded as the Supreme
Court,  in  the  contested decision, did not take  sufficiently
into  account the complainant's fundamental right, arising from
Art.  15  para.  1 of the Charter, to freedom of conscience  as
understood in the above-stated sense and extent.  Although  the
complainant referred to his religious convictions, the  refusal
(evading)   of   service  (military)  duty  was   in   fact   a
manifestation of his personal decision dictated by  conscience,
in  which  maxims  flowing  from  the  complainant's  faith  or
religious convictions merely had played a part.
   Previous  Constitutional  Court decisions  relating  to  the
conflict  between the duty to report for military  service  and
fundamental  rights  have  concentrated  primarily   upon   the
conflict  between  this  duty  and  the  freedom  of  religious
conviction  (compare decisions in the cases  file  no.  II.  US
285/97,  Collection  of  Judgments and  Rulings  of  the  Czech
Constitutional  Court, Vol. 12, No. 117; and file  no.  II.  US
187/2000,  Collection  of Judgments and Rulings  of  the  Czech
Constitutional Court, Vol. 21, No. 40).  Due to the  divergence
of  the  freedom  of  conscience and the freedom  of  religious
conviction  expounded  above, the  Constitutional  Court  first
reviewed  the  relationship of the contested  decision  to  the
freedom  of conscience in the sense of Art. 15 para. 1  of  the
Charter.   The  Constitutional Court is of the  view  that  the
refusal  to report for military service may be made on  grounds
not  related  to  religious conviction  and  that  the  Charter
protects even that freedom.
   The Supreme Court failed to carry out the duty, which it had
for  the above-stated reasons, to adjudge the legality  of  the
decision contested in the complaint of a violation of the  law,
as  well  as the proceeding leading up to it, in the  light  of
Art. 15 para. 1 of the Charter.  The fact that the Constitution
of  9 May denied the freedom of conscience its character as  an
"absolute"  right  followed  alone  from  the  essence  of  the
political  regime  enthroned  in  February,  1948.    The   new
restrictions  upon  the  freedom  of  conscience  breached  the
continuity of the conception that the freedom of conscience  is
an  absolute  right, as it was protected by the  Constitutional
Charter  of 1920.  The post-1948 constitutional formulation  of
the   freedom  of  conscience  deviated,  in  terms  of   legal
philosophy,  from the development of fundamental  rights  which
was  begun  by  the Nuremburg Tribunal and continued  with  the
adoption of the Universal Declaration of Human Rights.
   For  a  democratic law-based state, which the Czech Republic
should  be according to the normative instruction flowing  from
Art. 1 para. 1 of the Constitution, it is unacceptable for  the
Supreme  Court to interpret § 267 para. 3 of Act  No.  141/1961
Coll., on Criminal Judicial Proceedings (the Criminal Procedure
Code),  as  subsequently amended, such that the review  of  the
legality  of  a contested decision is understood to  entail  an
interpretation of the applicable "old law" in accord  with  the
then  contemporary  jurisprudence.  For the same  reason,  when
considering the legality of the original decision contested  by
the  complaint of a violation of the law, it could not fail  to
take  into  account  and  weigh  the  fundamental  rights   and
principles  of  the  Czech  constitutional  order   which   the
contested decision encroached upon.  To overlook these norms of
reference  and  principles does not merely render  the  Supreme
Court's  decision  defective due to  the  infringement  of  the
complainant's   individual  rights.   In  addition,   and   the
Constitutional   Court  deems  it  necessary   to   make   this
observation  outside of the strict confines of the case  before
it,  it  renders the decision incomprehensible for the society,
for   its   legal,  even  constitutional,  consciousness,   and
contributes  to the existing lack of faith in the judiciary  in
the  sense that Czech courts prove incapable of protecting  the
rights  of  citizens  in  relation to state  power,  when  that
manifests  itself  in  an  excessive  manner.   In  this   way,
confidence   in  the  substantive  conception  of   the   Czech
Republic's  character  as  a  democratic  law-based  state   is
diminished.   If the principle of legal continuity  is  not  to
have  a  destructive impact in relation to the Czech Republic‘s
character  as a constitutional state, when applying  "old  law"
the  value  discontinuity with that law  must  consistently  be
insisted  upon, and this approach must be reflected in judicial
decisions.
  The Supreme Court in fact overlooked the operation of Art. 15
para.  1 of the Charter on the interpretation of § 267 para.  3
of the Criminal Procedure Code, in conjunction with § 270 para.
1,  lit.  b)  of Act No. 86/1950 Sb, the Criminal Code,  as  it
restrictively  interpreted  the  mentioned  provisions  of  the
Criminal  Procedure  Code  and, moreover,  the  object  of  its
consideration  in  relation  to the  cited  provisions  of  the
Criminal Code was solely the right to religious conviction, not
the  freedom  of  conscience in its dimension  as  an  absolute
right.   To  the  extent  it  did  so,  it  continued  in   the
encroachment upon the complainant's freedom of conscience which
began  with  the judgment of conviction in 1954.   The  Supreme
Court did not, by means of its decision, cure this encroachment
and, thus, failed to respect the duty, placed upon it by Art. 4
of  the  Constitution,  to  accord  protection  to  fundamental
rights.
   Under  the  circumstances, it is  not  necessary  to  review
possible   conflicts   with  other  fundamental   rights,   the
infringement of which have been alleged,

Notice:  Constitutional Court decisions may not be appealed.

Brno, 26 March 2003