I US 752/02



Under  the  case law of the ECHR concerning Article  3  of  the
Convention, and under Art. 3 of the Convention Against Torture,
the Constitutional Court reviewed whether there are substantial
grounds  to believe that the complainant, if expelled,  was  in
danger  of torture (the "substantial grounds test").  Here  the
Constitutional  Court emphasizes that it is not  up  to  it  to
state factual violation of the ban on torture, and inhuman  and
degrading treatment or punishment in Moldovan prisons,  but  on
the  basis  of the evidence presented the Constitutional  Court
finds  that there are substantial grounds to believe that there
is  a  danger  of  violation  of  that  ban  in  the  event  of
extradition.
   The  priority  of  the obligations from  agreements  on  the
protection  of  human rights, in the event of conflict  between
obligations  under international agreements,  arises  primarily
from the content of these agreements, in connection with Art. 1
para. 1 of the Constitution, under which the Czech Republic  is
a state governed by the rule of law. The respect and protection
of   fundamental   rights   are  defining   elements   of   the
substantively  understood state governed by the  rule  of  law;
therefore,  in a case where a contractual obligation protecting
a fundamental right and a contractual obligation which tends to
endanger  that  same  right  exist  side  by  side,  the  first
obligation  must  prevail. The Constitutional Court  holds  the
opinion  expressed  in the judgment, the  legal  conclusion  of
which the Minister of Justice disagrees with, that no amendment
of  the  Constitution can be interpreted to the effect that  it
would  result  in  restricting an  already  attained  level  of
procedural  protection of fundamental rights and freedoms  (Pl.
US 36/01, published under no. 403/2002 Coll.). The scope of the
concept   of   constitutional  order  therefore  can   not   be
interpreted  only  with  regard to Art.  112  para.  1  of  the
Constitution,  but  in view of Art. 1 para.  1  and  2  of  the
Constitution,  it is necessary to include in  it  ratified  and
promulgated  international  agreements  on  human  rights   and
fundamental freedoms.
   Although after amendment of the Constitution (constitutional
Act  no. 395/2001 Coll.) agreements on the protection of  human
rights  no  longer form an independent category of legal  norms
with priority in application under the previous wording of Art.
10,  nonetheless they are a special group of norms, and at  the
same  time  represent a reference point of view, both  for  the
abstract  review  of  norms  under  Art.  87  para.  1  of  the
Constitution, and for proceedings on constitutional complaints.


A  Panel of the Constitutional Court decided on this day in the
matter  of  a constitutional complaint from the complainant  V.
M., presently in the Custodial Prison O., against a decision of
the Regional Court in Ostrava of 4 December 2000, file no. 3 Nt
366/2000,  a  decision  of the High  Court  in  Olomouc  of  28
February  2001,  file no. 2 To 10/2001, and a decision  of  the
Minister  of  Justice of the CR of 15 October  2002,  ref.  no.
594/2001-MO-M, as follows:

The  decision  of the Regional Court in Ostrava of  4  December
2000, file no. 3 Nt 366/2000, the decision of the High Court in
Olomouc  of  28 February 2001, file no. 2 To 10/2001,  and  the
decision  of  the Minister of Justice of the CR of  15  October
2002,  ref. no. 594/2001-MO-M are annulled due to inconsistency
with Art. 3 of the Convention on the Protection of Human Rights
and  Fundamental  Freedoms, Art. 3 of the  Convention  for  the
Prevention  of Torture and Other Cruel, Inhuman,  or  Degrading
Treatment  or Punishment, Art. 7 of the International  Covenant
on Civil and Political Rights and Art. 7 para. 2 of the Charter
of Fundamental Rights and Freedoms.


                           REASONING

I.
On 30 December 2002 the Constitutional Court of the CR received
the  complainant's constitutional complaint, in which he sought
annulment   of  the  abovementioned  decisions  on  ground   of
interference with rights protected by Art. 3 and Art. 8 of  the
Convention  on  the Protection of Human Rights and  Fundamental
Freedoms (notification no. 209/1992 Coll., the "Convention").
   The  Constitutional Court determined from the constitutional
complaint  and  contested decisions that the complainant  is  a
citizen  of  the  Republic  of Moldavia  and  that  this  state
requested his extradition for criminal prosecution on suspicion
of  committing the crime of theft of property in  an  unusually
wide  scope under Art. 123 of the Criminal Code of the Republic
of  Moldova.  The contested decision of the Regional  Court  in
Ostrava  decided that extraditing the complainant for  criminal
prosecution to the Republic of Moldova is permissible (  §  380
para. 1 of the Criminal Procedure Code). The contested decision
of the High Court in Olomouc denied the complainant's complaint
against  the decision of the Regional Court (§ 380 para.  2  of
the  Criminal Procedure Code). The decision of the Minister  of
Justice  permitted  extradition  of  the  complainant  to   the
Republic of Moldova for criminal prosecution (§ 382 para. 1  of
the Criminal Procedure Code).
    The   complainant   contested   these   decision   with   a
constitutional complaint, because in his opinion Art. 3 of  the
Convention  can  be  interpreted to protect  a  foreigner  from
extradition  to  an  applying state if the foreigner  would  be
exposed  the risk of torture or inhuman or degrading  treatment
or  punishment  in that state. If extradited,  the  complainant
will  allegedly be exposed to treatment which is  forbidden  by
Article  3. In this regard, the complainant referred to Amnesty
International  reports  from 1997 to 2001  and  cited  sections
which  indicate  that in Moldova there is systematic  arbitrary
detention  of suspects, bad treatment by the police,  and  that
there are cruel, inhuman and degrading conditions in the jails.
   The  complainant  also relies on Art. 8 of  the  Convention,
which guarantees respect for family life. He states that he has
a  wife and son in the Czech Republic, both Czech citizens, and
applies  to  have his family life respected by  his  not  being
extradited to the requesting state.
   In  the  constitutional  complaint the  complainant  further
disputed  the  effectiveness of legal  assistance  provided  in
proceedings  on  the permissibility on extradition;  he  stated
that  extradition materials are not adequate in  terms  of  the
European Convention on Extradition, that he did not commit  the
acts which are ascribed to him, and that he fled the country on
the  basis  of  personal experience of torture  and  cruel  and
inhuman treatment while he was being held unlawfully and  after
a  warning that he would be liquidated, for being a politically
inconvenient  person,  and also out of  revenge.  He  sees  the
political  reasons  in  the  fact that,  as  a  member  of  the
Christian-democratic front, he supported joining  Romania,  and
refused to boycott economic and legal reforms; the reasons  for
revenge  arise from the fact that he pressed for the punishment
of   the  murderers  of  another  member  of  the  same  party,
criticized the inactivity of the authorities in the press,  and
accused  them of corruption. For these reasons the  complainant
petitioned  for  the  annulment  of  all  contested   decisions
concerning his extradition.
   At  the  same time, the complainant submitted a petition  to
defer  the executability of the extradition decision, which  he
justified on the grounds that in his case the effectiveness  of
protection  depends on evaluating the substance of  the  matter
before he is forced to leave the country.

II.
The Constitutional Court first decided on the petition to defer
executability of the extradition decision, which it granted  by
decision of 10 January 2003, ref. no. I. US 752/02-10,  because
it  found  that  the  conditions were met for  issuing  such  a
decision,  as  foreseen in § 79 para. 2  of  Act  no.  182/1993
Coll.,  on  the  Constitutional  Court,  as  amended  by  later
regulations (the "Act on the Constitutional Court"),  and  thus
deferring  executability is not inconsistent with an  important
public interest, and that execution of the decision would  mean
incomparably  greater  detriment for the complainant  than  can
arise for other persons if executability is deferred.

III.
For  purposes  of evaluating the constitutional complaint,  the
Constitutional  Court  requested the court  file  kept  at  the
Regional Court in Ostrava under file no. 3 Nt 366/2000  in  the
matter  of proceedings on extradition. It determined  from  the
file  that  in  the decision of the Regional Court  in  Ostrava
which  decided  that extraditing the complainant  for  criminal
prosecution to the Republic of Moldova is permissible  under  §
380  para.  1 of the Criminal Procedure Code, the court  stated
the  acts  for prosecution of which the complainant was  to  be
extradited,  and stated other findings from which it  concluded
that all conditions for extraditing the complainant set by  the
European  Convention on Extradition (notification no.  549/1992
Coll.), had been met.
   The complainant was not a citizen of the Czech Republic, did
not  have  refugee status and had not been granted asylum,  was
not  to be extradited to an area of armed conflict, there  were
no   serious   reasons   preventing   his   extradition   (e.g.
humanitarian  or  health), extradition was requested  for  acts
punishable  under the law of both states, criminal  prosecution
was  not  barred by the statute of limitations or impermissible
due  to another obstacle, and no other circumstances preventing
extradition  were  found.  The  court  also  stated  that   the
submitted   file  materials  did  not  indicate  any   of   the
circumstances  which the complainant raised in  his  testimony,
i.e.  that the criminal prosecution was manufactured and had  a
political background. Likewise, the acts for which he is to  be
criminally  prosecuted are not of a political, but a  property-
related  and violent nature. Therefore, it concluded  that  all
conditions for extradition had been met.
   In the contested decision of the High Court in Olomouc which
denied the complainant's complaint against the decision of  the
Regional Court, the appeals court stated that, in view  of  the
changes in international conditions, it was necessary to  apply
not  only  the  agreement between the CSSR and  USSR  on  legal
assistance and legal relationships in matters of civil,  family
and  criminal law (decree No. 95/1983 Coll.), the to which  the
Czech  Republic and the Moldovan Republic are successor states,
but  secondarily  also the European Convention on  Extradition,
although  the  Moldovan  Republic  is  not  a  party  to   that
convention  (sic! the Moldovan Republic is a party with  effect
as  of 31 December 1997). The court further concluded that  the
complainant is being criminally prosecuted for a serious crime,
whereas  his objections on the alleged political background  of
his prosecution can not be supported by any credible facts. The
court  stated that "on the basis of available information,  the
democratic process is taking place in the Republic of Moldova,"
"the  available  information does not indicate  that  there  is
presently in Moldova mass violation of fundamental human rights
which  would  be the subject of systematic criticism  from  the
international community," and also took into account  that  the
complainant's  statements "indicate a progressive  increase  of
the  repressive procedures he cites on the part of state bodies
of the requesting state" (the complainant progressively claimed
additional repression, including torture). The court then again
evaluated the conditions for extradition (§ 379 para. 1 of  the
Criminal  Procedure Code and Art. 2 para.  1  of  the  European
Convention  on Extradition) and determined that they  had  been
met.  The court did not find the complainant's family situation
to  be  a  reasons  which would prevent  his  extradition,  and
refused  to  subsume  it under humanitarian  or  other  serious
reasons  preventing extradition. Thus, in the  opinion  of  the
appeals  court no legal obstacles exist preventing  extradition
of the complainant to Moldovan justice authorities.
   The  decision  of  the Minister of Justice  which  permitted
extradition of the complainant does not contain any reasoning.
   The  Constitutional  Court called  on  the  parties  to  the
proceedings to submit position statements on the constitutional
complaint. The Regional Court in Ostrava, in its statement  (of
25  March  2003,  ref.  no. Spr. 4538/2003),  referred  to  the
previous arguments by the general courts, and proposed  denying
the constitutional complaint. The High Court in Olomouc, in its
statement  (of 27 March 2003, ref. no. SU 9/2003), referred  to
its  original decision, stated that it had tried, on the  basis
of   available  information,  to  comprehensibly  address   the
questions of the permissibility of extraditing the complainant,
and proposed denying the constitutional complaint.
   The  Minister  of Justice, in response to the Constitutional
Court's   request,  on  3  April  2003  (ref.  no.  M-610/2003)
expressed the opinion that the constitutional complaint  should
be  denied insofar as it contests the Minister's decision,  for
one  thing  because  of the Constitutional  Court's  inadequate
jurisdiction to evaluate interference with rights guaranteed by
international   agreements,  and  for   another   because   the
Minister's  decision  making  did  not  violate  any   of   the
complainant's rights guaranteed by constitutional laws. Insofar
as  the constitutional complaint contests the decisions of  the
general   courts,  the  Minister  of  Justice   considers   the
complainant's petition to be late.
     Concerning   the   Constitutional   Court's   insufficient
jurisdiction to evaluate interference with rights guaranteed by
international agreements, the Minister of Justice believes that
international agreements on fundamental rights and freedoms  do
not  have  the  force of a constitutional act  (by  argument  a
contrario Art. 87 para. 2 of the Constitution, a contrario Art.
88  para. 2 of the Constitution and interpretation of  Art.  89
para.  3  of  the  Constitution)  and  are  not  part  of   the
constitutional  order (a contrario Art.  112  para.  1  of  the
Constitution). The Minister of Justice argues with the  opinion
of  the  Constitutional Court expressed in its judgment  of  25
June  2002, file no. Pl. US 36/01 (published under no. 403/2002
Coll.),   where,   in   part  VII,  the  Constitutional   Court
interpreted  Art. 9 para. 2 of the Constitution  and  concluded
that  the scope of the concept of constitutional order can  not
be  interpreted  only with regard to Art. 112 para.  1  of  the
Constitution,  but  also in view of  Art.  1  para.  2  of  the
Constitution, and it can also include ratified and  promulgated
international  agreements  on  human  rights  and   fundamental
freedoms. According to the Minister of Justice, Art. 9 para.  2
of the Constitution does not permit a "creative" interpretation
of  the Constitution and expanding the enumerations provided in
the  Constitution. In contrast, according to  the  Minister  of
Justice,  this  finding could be considered  inconsistent  with
Art. 9 para. 2 of the Constitution.
  In his statement, the Minister of Justice further states that
the  level  of  protection of fundamental rights  and  freedoms
achieved is not a substantive requirement of a democratic state
governed  by  the  rule  of  law, as only  its  most  important
attributes can be such (Art. 23 of the Charter, Art. 2 para. 1,
Art.  2  para. 3 and 4, Art. 5 and Art. 6 of the Constitution).
Moreover,  amendments  implemented by  constitutional  Act  no.
395/2001  Coll. do not necessarily mean reducing  the  existing
standard  of  the  level  of  procedural  protection.  A  legal
framework  which  provides that international  agreements  have
priority  in application over statutes, under Art.  10  of  the
Constitution, is adequate, because if the court did  not  apply
such  an agreement, the injured party could seek protection  of
its right to a fair, lawful trial.
   Concerning  the  complainant's substantive  objections,  the
Minister   of  Justice  stated  that  in  deciding  to   permit
extradition  he relied on the evaluation of these questions  by
the  general courts and the decisions of bodies of the Ministry
of   the   Interior  in  asylum  proceedings.  Concerning   the
protection of human rights in Moldova in general, he relied, in
particular,  on a report from the United States  Department  of
State,  according  to  which, although  certain  problems  have
occurred  in  some  areas, nonetheless the Moldovan  government
generally  respects human rights. According  to  the  Minister,
excesses  occur  even in democratic states, but  the  important
thing  is the effort to implement measures so that human rights
will  not  be violated. He also expressed his doubts concerning
the  complainant's claim that the cause of his  persecution  in
Moldova is his membership in the Christian Democratic party, as
this   party   is,   according  to  information   obtained,   a
parliamentary party. He also believes that his decision is  not
the complainant's final recourse for protection of rights under
§  72  para.  2  of  the Act on the Constitutional  Court,  and
therefore  the  complainant's petition  to  annul  the  general
court's decisions should be denied for being late (§ 43 para. 1
let.  b)  of  the Act on the Constitutional Court).  The  final
recourse  in  relation  to decisions by  general  courts  is  a
complaint (under § 141 et seq. of the Criminal Procedure Code),
on which the High Court already decided on 28 February 2001.
    The   Constitutional  Court  also  requested  a   statement
concerning the state of human rights in the Republic of Moldova
to  entities  which  monitor  the condition  of  human  rights,
primarily  the Office of the UN High Commissioner for  Refugees
in Prague and the Czech Helsinki Committee.
  The Office of the UN High Commissioner for Refugees in Prague
(the "Office") sent the Constitutional Court a statement of  13
March 2003, in which it is of the opinion that human rights are
violated  in Moldovan prisons, specifically the right  to  life
and  the ban on torture and other cruel, inhuman, and degrading
treatment. The Office reached this conclusion after studying  a
statement  from  the  UN  High  Commissioner  for  Refugees  in
Chisinau  and Moldovan human rights organizations (Lawyers  for
Human Rights, the Helsinki Committee for Human Rights, and  the
League  for  Protection  of  Human Rights),  reports  from  the
Committee  Against Torture and reports from the  United  States
Department  of  State,  which  it  attached  to  the  statement
("Report  on  the  Visit  to  the Transnitrian  Region  of  the
Republic  of Moldova Carried out by the European Committee  for
the Prevention of Torture and Inhuman or Degrading Treatment of
Punishment,  27-30 November 2000"; "Alternative Report  to  the
Initial Report and the First Regular Report of the Republic  of
Moldova  on  the  Stage of Implementation of the  International
Covenant on Civil and Political Rights" of January 2002; "U. S.
Department of State, Country Reports on Human Rights Practices,
Moldova"   of  4  March  2002;  "Raportul,  Moldovan   Helsinki
Committee" of January 2003).
   The  Office  states, with reference to the report  from  the
Moldovan   Helsinki   Committee  (MHC),  that   under   current
conditions the right to life, the ban on inhuman treatment  and
the  right  to privacy of any of approximately 11,000 prisoners
is  de facto being violated. Tuberculosis and the HIV virus are
spreading  uncontrollably in the prisons due  to  overcrowding.
Detained   persons   are  held  in  overcrowded   cells   where
ventilation practically does not exist. Health inspections,  X-
rays,  and  medical  assistance,  including  medications,   are
completely lacking. Every tenth prisoner is in an active  phase
of  tuberculosis  (1150  in 2001; 9.8 %),  178  prisoners  have
HIV/AIDS. The number of deaths is climbing (50 annually, 3 % of
prisoners).  The  highest  number of  complaints  filed  during
monitoring  visits in holding facilities concerns the  presence
of  persons  infected with tuberculosis among other  detainees.
The  probability of infection with tuberculosis is forty  times
higher  than  it is outside prison facilities.  The  MHC  cites
individual  cases  of  people coming  down  with  tuberculosis.
Detained  persons are questioned without an attorney  presence,
beatings, electric shock and shackles are used. Here to the MHC
cites  individual cases. Funds available per prisoner  are  EUR
0.18  per day, two and a half times less than the Moldovan laws
require, 40 % of a prisoner's minimum needs. Prisoners  receive
no food, fish, dairy products, fruit, vegetables, etc., i.e. no
food  except bread. In February 2001 at the police  station  in
Tiganska  St.  in Chisinau, with a capacity for  60  detainees,
there  were  238  detained  persons;  there  is  no  access  to
sunlight, the artificial light is very weak, the temperature is
high  in  view of the number of persons in a small unventilated
space,  the detainees are not given mattresses or blankets  and
the prisoners have no access to showers.
   The  Office,  with reference to the report from  the  United
States  Department  of  State,  also  states  that  judges  are
influenced in their decision making and corruption exists.  The
report  from the United States Department of State  reports  on
the situation in Moldovan prisons similarly to the MHC report.
   The  "Report on the Visit to the Transnitrian Region of  the
Republic  of Moldova Carried out by the European Committee  for
the Prevention of Torture and Inhuman or Degrading Treatment of
Punishment,   27-30  November  2000,"  sent  by   the   Office,
summarizes that in many cases "the severity of the illtreatment
alleged  could be considered as amounting to torture."  Another
report  from  the same committee on a visit in the Republic  of
Moldova  on  10-22 June 2001 similarly states that in  a  great
number  of cases the ill treatment is so severe that it can  be
considered to be torture.
   The Czech Helsinki Committee responded to the Constitutional
Court's requested by a statement of 24 March 2003, in which  it
referred  to the report of the Moldovan Helsinki Committee  for
Human  Rights,  which it attached (Human  Rights  in  the  OSCE
Region,  Report  2002,  International Helsinki  Federation  for
Human Rights), and which repeats the abovementioned facts.

IV.
The  Constitutional Court's task in this matter is to  evaluate
the contested decisions from the point of view of violation  of
fundamental  rights and freedoms guaranteed  by  norms  of  the
constitutional   order  of  the  CR.  In   this   regard,   the
Constitutional  Court  reviewed, first of  all,  the  violation
claimed by the complainant of Art. 3 of the Convention, because
extradition would allegedly expose the complainant to treatment
which  is  forbidden  by Art. 3, i.e. torture,  or  inhuman  or
degrading treatment or punishment.
   In  addition to the obligations arising from the  Convention
(i.e.  of the Convention on the Protection of Human Rights  and
Fundamental Freedoms) the Constitutional Court also  considered
the obligations arising form the Convention Against Torture and
Other  Cruel,  Inhuman,  or Degrading Treatment  or  Punishment
(promulgated under no. 143/1988 Coll., the "Convention  Against
Torture").  Its  Art. 3 para. 1 provides that  no  state  party
shall expel, return, or extradite a person to another state  if
there  a serious reasons to believe that he would be in  danger
of  torture  there.  For purposes of determining  whether  such
reasons exist, it is necessary to take into account all related
circumstances,  in justified cases including the  existence  of
permanent  gross, obvious or mass violation of human rights  in
the  particular state (cf. Art. 3 para. 2). The ban on  torture
is  also  enshrined  in  Art.  7 para.  2  of  the  Charter  of
Fundamental Rights and Freedoms and Art. 7 of the International
Covenant on Civil and Political Rights.
   The European Court for Human Rights (the "ECHR") has in  the
past  several times considered the question whether  it  is  in
accordance with Art. 3 of the Convention for a state  party  to
the  Convention to extradite or expel a complainant to a  state
where  the  complainant claims that he  will  be  subjected  to
torture or inhuman or degrading treatment.
   In the case Soering vs. the United Kingdom, the complainant,
who  was to be extradited for criminal prosecution to the  USA,
where  he  was in danger of a death sentence, claimed that  the
circumstances  of  that  punishment are  inhuman  treatment  or
punishment (decision of 7 July 1989, no. 161, 11 E.H.R.R. 439).
He  considered important the routine postponement  of  carrying
out  a  death  sentence  for six to eight  years  after  it  is
imposed. The ECHR decided that the extraditing state has, under
of  the  Convention,  a  certain  responsibility  for  possible
subsequent  ill  treatment  of the extradited  individual,  and
stated  that "it would hardly be compatible with the underlying
values of the Convention ... were a Contracting State knowingly
to  surrender  a  fugitive to another State  where  there  were
substantial  grounds to believe that he would be in  danger  of
being subjected to torture, however heinous the crime allegedly
committed. Extradition in such circumstances ... would  plainly
be  contrary  to the spirit and intedment of the article."  The
ECHR  also explained why it diverged from its settled  practice
and  in  this  case decided on the potential violation  of  the
Convention: "It is not normally for [the ECHR] to pronounce  on
the  existence  or  otherwise of potential  violations  of  the
Convention. However, where an applicant claims that a  decision
to  extradite him would, if implemented, be contrary to Article
3  by  reason of its foreseeable consequences in the requesting
country, a departure from this principle is necessary, in  view
of  the serious and irreparable nature of the alleged suffering
risked,  in order to ensure the effectiveness of the  safeguard
provided by that Article."
   Other  cases decided by the ECHR, which can be distinguished
from   the  complainant's  case  and  from  the  Soering  case,
illustrate the extension of interpretation of Article 3 in  the
case  law  of  the  ECHR.  In other cases  it  decided  whether
violation  of  Art.  3  can  take  place  in  connection   with
expulsion, where the source of the danger to the complainant is
not  the  public  power  of  the  receiving  state,  but  other
circumstances.   In  the  case  D.  v.  United   Kingdom,   the
complainant, originally from the island of St. Kitts,  who  had
been  repeatedly convicted in Great Britain for  possession  of
cocaine,  after  his  prison sentence ended  asked  not  to  be
expelled  to St. Kitts, and objected that he had been diagnosed
with  AIDS  and  that  he  was dependent  on  health  care  and
medications available in Great Britain (verdict of 2 May  1997,
24  EHHR 423). The ECHR emphasized that foreigners affected  by
expulsion  fundamentally  have  no  claim  to  remain  in   the
territory  of  the state party to the Convention;  nonetheless,
under  the very exceptional circumstances of this case, and  in
view  of  fundamental  humanitarian concerns,  it  stated  that
carrying out the decision to expel the complainant would  be  a
violation of Art. 3 of the Convention.
   Similarly,  in the case Ahmed vs. Austria the  ECHR  decided
that expulsion to Somalia would be violation of Art. 3 (verdict
of  17  May 1996, 24 EHHR 278). The complainant faced a serious
risk  of  torture of inhuman or degrading treatment, caused  by
the  factions in the on-going civil war. This risk  in  and  of
itself  was sufficient for the decision that extradition  would
be a violation of the Convention.
   Under  the case law of the ECHR concerning Article 3 of  the
Convention, and under Art. 3 of the Convention Against Torture,
the Constitutional Court reviewed whether there are substantial
grounds  to believe that the complainant, if expelled,  was  in
danger of torture (the "substantial grounds test").
   The decision of the Regional Court in Ostrava indicates that
the court did not consider the question of substantial grounds,
and merely stated that the complainant should not be extradited
to   an  area  of  armed  conflict,  and  that  there  are   no
humanitarian,  health,  or  other  serious  grounds  preventing
extradition. The High Court in Olomouc, in the reasoning of its
decision,  stated  that on the basis of available  information,
the  democratic  process is taking place  in  the  Republic  of
Moldova  and "the available information does not indicate  that
there  is  presently in Moldova mass violation  of  fundamental
human rights which would be the subject of systematic criticism
from the international community." The decision of the Minister
of  Justice  does not contain reasoning, but according  to  the
position statement on the constitutional complaint the Minister
relied,  in  particular, on the report from the  United  States
Department  of  State,  according to  which  "although  certain
problems  have  occurred  in  some  areas"  (quoted  from   the
statement of the Minister of Justice), nonetheless the Moldovan
government  generally respects human rights. According  to  the
Minister,  excesses occur even in democratic  states,  but  the
important  thing  is the effort to implement measures  so  that
human rights will not be violated.
  The Constitutional Court examined whether substantial grounds
exist  to believe that, if extradited, the complainant  was  in
danger of torture, reached an opinion completely different from
the   opinion  of  the  general  courts,  and  found  that  the
constitutional complaint is justified. The statement  form  the
Office  of  the  UN  High Commissioner  for  Refugees  and  the
attached  monitoring reports are several sources which confirm,
independently  of  each other, that these  substantial  grounds
exist.   Conditions   in  the  Moldovan  prisons,   where   the
complainant,  if  extradited,  would  be  placed  while   being
prosecuted  and, if found guilty by a court, while serving  his
sentence,  are  realistically threatened  interference  in  the
complainant's  right  to the ban on torture,  and  inhuman  and
degrading  treatment or punishment. In this regard the  general
courts  interfered with the complainant's rights  protected  by
Art. 3 of the Convention on the Protection of Human Rights  and
Fundamental Freedoms, Art. 3 of the Convention Against  Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
Art.  7  of  the International Covenant on Civil and  Political
Rights  and Art. 7 para. 2 of the Charter of Fundamental Rights
and Freedoms. Here the Constitutional Court emphasizes that  it
is  not  up  to  it to state factual violation of  the  ban  on
torture,  and inhuman and degrading treatment or punishment  in
Moldovan  prisons,  but on the basis of the evidence  presented
the  Constitutional  Court  finds that  there  are  substantial
grounds to believe that there is a danger of violation of  that
ban  in  the event of extradition. The Constitutional Court  is
aware  of  the  gravity of the consequences  of  its  judgment;
nonetheless, its task in this case is protection of fundamental
rights,  and  it does not have the jurisdiction to  inform  the
appropriate  bodies of the Council of Europe of the  inadequate
observance  of  the standard of protection of human  rights  in
some Council of Europe member states.
   In  this  situation, it was not necessary  to  consider  the
interference with other rights, raised by the complainant.
   In the complainant's case, two international obligations  of
the  Czech  Republic  stand in conflict. On  one  side  is  the
obligation  of  the Czech Republic, as a part to  the  European
Convention  on Extradition (no. 549/1992 Coll. ), in  which  it
agreed to extradite all persons who are being prosecuted for  a
crime by the appropriate bodies of the applying party (Art. 1).
On  the  other  side, the Czech Republic is also bound  by  the
cited  international agreements on human rights and fundamental
freedoms. The Constitutional Court here states that in  such  a
case it is appropriate to give priority to obligations from the
agreements on the protection of human rights.
   The  priority  of  the obligations from  agreements  on  the
protection  of  human rights, in the event of conflict  between
obligations  under international agreements,  arises  primarily
from the content of these agreements, in connection with Art. 1
para. 1 of the Constitution, under which the Czech Republic  is
a state governed by the rule of law. The respect and protection
of   fundamental   rights   are  defining   elements   of   the
substantively  understood state governed by the  rule  of  law;
therefore,  in a case where a contractual obligation protecting
a fundamental right and a contractual obligation which tends to
endanger  that  same  right  exist  side  by  side,  the  first
obligation must prevail.
   Although after amendment of the Constitution (constitutional
Act  no. 395/2001 Coll.) agreements on the protection of  human
rights  no  longer form an independent category of legal  norms
with priority in application under the previous wording of Art.
10,  nonetheless they are a special group of norms, and at  the
same  time  represent a reference point of view, both  for  the
abstract  review  of  norms  under  Art.  87  para.  1  of  the
Constitution, and for proceedings on constitutional complaints.
In  this  respect the Constitutional Court does not agree  take
the  opinion  of  the  Minister of Justice,  indicated  by  his
statement  on the constitutional complaint.  The Constitutional
Court  holds the opinion expressed in the judgment,  the  legal
conclusion  of  which the Minister of Justice  disagrees  with,
that no amendment of the Constitution can be interpreted to the
effect  that it would result in restricting an already attained
level  of  procedural  protection  of  fundamental  rights  and
freedoms  (Pl.  US 36/01, published under no. 403/2002  Coll.).
The  scope of the concept of constitutional order therefore can
not  be interpreted only with regard to Art. 112 para. 1 of the
Constitution,  but  in view of Art. 1 para.  1  and  2  of  the
Constitution,  it is necessary to include in  it  ratified  and
promulgated  international  agreements  on  human  rights   and
fundamental freedoms, for the reasons given above.
   Even  if  it  were possible to grant that  the  Minister  of
Justice is correct that the Constitutional Court does not  have
jurisdiction to decide on violation of rights guaranteed by  an
international agreement, the Constitutional Court would  review
potential  violation  of  the ban on torture  and  inhuman  and
degrading treatment guaranteed by Art. 7 para. 2 of the Charter
of  Fundamental Rights and Freedoms (the "Charter")  and  would
reach   the  identical  conclusion.  The  Constitutional  Court
presumes that the Minister of Justice considers the Charter  to
be   a   referential  norm  in  proceedings  on  constitutional
complaints, although the Constitutional Court is bound, stricto
sensu,  by  constitutional  acts, which  the  Charter  is  not,
because  under no. 2/1993 it was only promulgated by resolution
of  the leadership of the Czech National Council as a component
of  the constitutional order of the CR, and constitutional  Act
no.   23/1991  Coll.,  which  introduced  the  Charter   as   a
constitutional act, was deconstitutionalized by Art. 112  para.
3 of the Constitution.
   The Constitutional Court also does not share the opinion  of
the Minister of Justice concerning the lateness of the petition
to  annul  the decisions of the general courts. We  must  grant
that  the  Minister of Justice is correct that a mere statement
that extradition is permissible does not yet mean that a person
will  be  extradited. However, unlike the Minister of  Justice,
the  Constitutional Court sees, precisely in this fact, grounds
why  the  Minister of Justice's decision to permit  extradition
must  be understood as the last recourse which the law provides
to protect the complainant's right. On the contrary, in view of
the  fact  that  one  of  the attributes  of  a  constitutional
complaint is its subsidiarity (under § 75 para. 1 of the Act on
the  Constitutional Court), in the event that  the  complainant
turned  to  the  Constitutional Court at the  moment  when  the
court's decision on the permissibility of extradition went into
legal  effect  (§ 380 para. 3 of the Criminal Procedure  Code),
and  before permission to extradite was issued by the ministry,
his  complaint would have to be denied as impermissible because
it  did  not  exhaust all procedural means  for  protection  of
rights.  The constitutional judiciary is based, above  all,  on
review  of  matters  in which unconstitutionality  can  not  be
corrected  in  any  other manner, and in  the  event  that  the
Minister  of  Justice did not permit extradition,  there  would
simply be no interference in rights guaranteed by the norms  of
the  constitutional order through the decisions of the  general
courts.
  In this situation the Constitutional Court considered in what
extent  it  is appropriate to annul the decisions contested  by
the  constitutional complaint. It evaluated  on  one  side  the
application  of  the principle of minimizing interference  with
decisions  of  the Minister of Justice and the general  courts,
and  on  the other side the complainant's fundamental right  to
personal  freedom, as the complainant is placed in  extradition
custody  until  a  decision on extradition is issued.  Thorough
minimizing  of  the  Constitutional Court's interference  would
prolong  the period during which the complainant's  freedom  is
restricted.  Therefore, in this case the  Constitutional  Court
was  convinced  that  protection of the complainant's  personal
freedom   must   prevail  over  the  principle  of   minimizing
interference  with the contested decisions, and decided  as  is
stated in the verdict.

Notice:  Decisions  of  the Constitutional  Court  can  not  be
appealed.

Brno, 15 April 2003