III. ÚS 425/97

    The  issue  of  the binding nature of Constitutional  Court
judgments which, in the present state of the law and  in  spite
of the fact that it represents the conditio sine qua non of the
constitutional   judiciary,   brings   no   small   amount   of
difficulties in its wake.

    Both  in theory and in practice, problems relating  to  the
interpretation of that binding force, in relation  particularly
and  above  all  to  the  jurisdiction of  ordinary  courts  at
whatever level, still remain without clarification.  This is so
for  a  number  of  reasons:   among  them  are  the  lack   of
consistency  of  the  procedural codes  (in  both  branches  of
general  judicial  authority), which do not take  into  account
either  the jurisdiction (or the cassational authority) of  the
Constitutional Court so that and do not prescribe, in the  case
the  Constitutional Court annuls the decision  of  an  ordinary
court,  the  direct procedural steps for subsequent proceedings
in the same matter.

    All    of    the   above-indicated   controversies   relate
exclusively  to  the “absolute” binding force of Constitutional
Court judgments, but not to the binding force of a judgment  in
relation to a specific matter (merits) being adjudged (decided)
by  the  Constitutional Court.  Since enforceable judgments  of
the  Constitutional  Court are binding on all  authorities  and
persons  (Article 89 para. 2 of Constitutional Act  No.  1/1993
Sb.),  such  a  decision is binding even on the  Constitutional
Court   itself,  in  consequence  of  which,  in  any   further
proceedings before it in which the same matter must be  decided
upon  once again (even if in a divergent manner), that decision
represents an unavoidable procedural obstacle in the  sense  of
res  judicata  (§ 35 para. 1 of Act No. 182/1993  Sb.,  on  the
Constitutional Court), which naturally bars any further  review
of  that matter on the merits whatsoever.  This bar extends  as
well  to review which might otherwise – in eventum – ensue from
the  Constitutional  Court  Plenum’s  adoption  of  a  position
pursuant  to  §  23 of Act No. 182/1993 Sb.; consequently,  the
requirements arising from § 23 of Act No. 182/1993 Sb.  do  not
relate  to  a  matter  in  which the Constitutional  Court  has
already once issued a decision.


                           JUDGMENT


On  2  April  1998,  in the matter of the  complainant  J.  Ch.
against the 9 October 1997 judgment of the Supreme Court of the
Czech Republic, file no. 2 Tzn 10/96, concerning the refusal to
perform  civilian service, the Constitutional Court decided  as
follows:


                         I.  STATEMENT

The  judgment of the Supreme Court of the Czech Republic  of  9
October 1997, file no. 2 Tzn 10/96, is annulled.

                        II.  REASONING

    In   his   constitutional  complaint,  which   was   timely
submitted (§ 72 para. 2 of Act No. 182/1993 Sb.) and meets  the
legally-prescribed requirements (§ 30 para. 1, § 34  paras.  1,
2,  §  72  para.  4  of Act No. 182/1993 Sb.), the  complainant
contests  the judgment of the Czech Supreme Court of 9  October
1997 (in the matter designated by that court as file no. 2  Tzn
10/96)  and  asserted  that  this decision,  against  which  no
further   appeals   lie,  constitutes  a  violatgion   of   his
constitutionally  guaranteed  fundamental  right  contained  in
Article  40  para. 5 of the Charter of Fundamental  Rights  and
Basic  Freedoms  due  to  the  fact,  among  others,  that   in
proceedings on the complaint of the violation of the law, which
was  submitted on his behalf by the Minister of Justice (§  266
para. 1 of the Criminal Procedure Code) the Czech Supreme Court
did not conform its decision to the proposition of law declared
in  the  Constitutional Court judgment handed down on 20  March
1997  in  the  same matter, and that following that  judgment’s
annulment  of its preceding judgment (of 25 April 1996),  while
it  decided anew in the matter, it decided in entirely the same
fashion  as  it had in its preceding judgment; therefore,  with
reference  to  the violation of his constitutionally-guaranteed
fundamental  rights,  as  had  previously  been  indicated,  he
proposed  that  the Constitutional Court issue  a  judgment  in
which  it  once  again  annul  the decision  contested  in  the
constitutional complaint.

     In  response to the Constitutional Court’s request  (§  42
para.  2  of Act No. 182/1993 Sb.), the Czech Supreme Court,  a
party  to the proceeding on the constitutional complaint (§  76
para.  1  of Act No. 182/1993 Sb.), expressed its views,  in  a
submission  made by the chairman of the senate from  which  the
contested  decision issued (§ 30 para. 3 of  Act  No.  182/1993
Sb.),  to the effect that it rejected the conclusions drawn  in
the  constitutional  complaint, which it  further  proposed  be
rejected  on  the merits as unfounded.  It made,  in  addition,
reference  to  the untenability of the complainant’s  objection
that,  if  the elements of the criminal offense in question  (§
272 para. 1 of the Criminal Act) are interpreted in the way the
Czech  Supreme Court has, the complainant would, in the  period
between  his  18th and 38th year (the period during  which  the
duty to perform military or alternative service continues),  as
a  result  of repeated convictions for his refusal  to  perform
that service, serve more time in prison than the law allows for
the criminal offense of murder.

     With reference to statistical data, such as are available,
and  further  with reference to the analogous elements  in  the
definition  of  other criminal offenses [the  criminal  offense
under § 213 or § 171 para. 1, lit. b) of the Criminal Act],  it
drew that conclusion that the interpretation given in the above-
mentioned Constitutional Court judgment is untenable, so far as
concerns   the   identity  of  acts,  and   it   labeled   that
interpretation as legally unfounded.  In the  view of the Czech
Supreme   Court,   the  preceding  judgment   issued   by   the
Constitutional  Court resulted in  a “situation of  stalemate”,
one  which  –  de lege ferenda - it has not proved possible  to
resolve  even  in  joint  meetings of  representatives  of  all
interested  ministries (justice, defense, and labor and  social
affairs),  with  Deputies  and Senators  present,  as  well  as
Justices of the Supreme Court and of the Constitutional  Court,
present; therefore, in conjunction with its proposal to  reject
the  complaint  on the merits, it further suggested  that  “the
panel  of  the Constitutional Court which will decide this  new
constitutional  complaint distance itself from the  proposition
of  law  propounded by the Constitutional Court  panel  in  its
judgment   no.  I.  ÚS  184/96  even  at  the  cost  of   being
constrained, in view of § 23 of Act No. 182/1993  Sb.,  on  the
Constitutional Court, to refer the issue under consideration to
the Constitutional Court Plenum”.

     The  constitutional  complaint is  well-founded,  even  if
predominantly  on  grounds  other  than  those  to  which   the
complainant makes reference.

     It  has  been ascertained from the Constitutional  Court’s
file,  file  no.  I.  ÚS  184/96, in the  matter  of  the  same
complainant,  that  by  its judgment  of  20  March  1997,  the
Constituitonal Court annulled the 25 March 1996  Czech  Supreme
Court judgment, file no. 2 Tzn 10/96, after it had come to  the
conclusion that, in its decision, the Czech Supreme Court  “had
failed  to abide by the fact that the principle ne bis in  idem
is  also to be found in Article 4 para. 1 of Protocol No. 7  to
the   Convention  for  the  Protection  of  Human  Rights   and
Fundamental Freedoms (in addition to Article 40 para. 5 of  the
Charter of Fundamental Rights and Basic Freedoms) and that,  in
consequence  thereof, a further conviction of  the  complainant
constitutes a violation of the law, in particular, in  relation
to  § 11 para. 1, lit. g) of the Criminal Procedure Code”; this
Constitutional Court judgment became final on 14 April 1997.

      In   acting   on   the  constitutional  complaint   under
consideration,  one  fundamental  issue  that  could   not   be
disregarded  is  that  of the binding force  of  Constitutional
Court  judgments which, in the present state of the law and  in
spite of the fact that it represents the conditio sine qua  non
of  the  constitutional judiciary, brings no  small  amount  of
difficulties in its wake.

    Both  in theory and in practice, problems relating  to  the
interpretation of that binding force, in relation  particularly
and  above  all  to  the  jurisdiction of  ordinary  courts  at
whatever level, still remain without clarification.  This is so
for  a  number  of  reasons:   among  them  are  the  lack   of
consistency  of  the  procedural codes  (in  both  branches  of
general  judicial  authority) which,  despite  attention  being
drawn  to the fact a number of times, do not take into  account
either  the jurisdiction (or the cassational authority) of  the
Constitutional  Court, and do not prescribe, in  the  case  the
Constitutional Court annuls the decision of an ordinary  court,
the  direct procedural steps for subsequent proceedings in  the
same  matter.   Similarly, the not quite clear wording  of  the
Constitution   –   in  relation  to  the   binding   force   of
constitutional judgments – gives rise to disputes, for example,
as  to  the  effects Constitutional Court judgments  have  (not
those  resulting from the statement of judgment,  rather  those
which  result  from  the reasoning contained  in  the  opinion,
etc.).

    It  is the Constitutional Court’s conviction, however, that
all of the above-indicated controversies relate exclusively  to
the “absolute” binding force of Constitutional Court judgments,
but  not  to the binding force of a judgment in relation  to  a
specific  matter  (merits)  being  adjudged  (decided)  by  the
Constitutional  Court.   Since  enforceable  judgments  of  the
Constitutional Court are binding on all authorities and persons
(Article 89 para. 2 of Constitutional Act No. 1/1993 Sb.), such
a  decision is binding even on the Constitutional Court itself,
in  consequence of which, in any further proceedings before  it
in  which the same matter must be decided upon once again (even
if   in  a  divergent  manner),  that  decision  represents  an
unavoidable procedural obstacle in the sense of res judicata (§
35  para.  1  of  Act  No. 182/1993 Sb., on the  Constitutional
Court), which naturally bars any further review of that  matter
on  the  merits whatsoever.  This bar extends as well to review
which   might  otherwise  –  in  eventum  –  ensue   from   the
Constitutional  Court Plenum’s adoption of a position  pursuant
to § 23 of Act No. 182/1993 Sb.; consequently, the requirements
arising  from § 23 of Act No. 182/1993 Sb. do not relate  to  a
matter  in  which  the Constitutional Court  has  already  once
issued a decision.

     However serious may appear the conclusions reached in  the
statement  of  views submitted by the chairman of  the  Supreme
Court  senate,  as  well as those which are  contained  in  the
reasoning  of  both  Supreme  Court  decisions  issued  in  the
complainant’s   criminal  matter,  for  the   reasons   already
canvassed,   the   Constitutional  Court  is   prevented   from
considering with them in a matter, such as this one,  which  it
has already once decided.

      If,   therefore,   the  Czech  Supreme   Court   in   the
complainant’s  criminal matter, in which its  decision  (of  25
April  1996,  file  no.  2  Tzn  10/96)  was  annulled  by   an
(enforceable) cassational judgment of the Constitutional  Court
of  20 March 1997 (I ÚS 184/96), disregarded the arguments  and
conclusion  resulting  from  this judgment  in  its  subsequent
proceedings and new decision (of 9 October 1997), without  even
for  example  supplementing factual findings on  the  basis  of
which it might possibly reach a divergent assessment of the act
(the  complainant’s  conduct), no option remains  but  to  once
again  annul  it  as in conflict with Article  89  para.  2  of
Constitutional  Act  No.  1/1993 Sb.,  without  it  even  being
possible  to  return  to  the merits of  the  matter  (adjudged
merits) in any way.

     In  conclusion,  in  the interest of completeness,  it  is
appropriate to add that the Czech Supreme Court decision in the
complainants’ matter – as far as concerns the binding nature of
Constitutional  Court judgments – is not  in  accord  with  the
decision  of  other  senates of the same court,  as  the  Czech
Supreme  Court  (in  matter  2  Tvno  40/97)  abided   by   the
proposition of law declared by the Constitutional Court, and in
subsequent   proceedings  (following  the  cassation   of   the
preceding decision), in accord with the constitutional  mandate
(Article  89  para. 2 of Constitutional Act  No.  1/1993  Sb.),
decided  conformably to that proposition, similarly as was  the
case  in  a further matter (2 Tzn 28/97) when interpreting  the
running of a statutorily prescribed time period.