IV. US 81/95

                        JUDGMENT

       of the Constitutional Court of the Czech Republic
              
               In the Name of the Czech Republic


     The Constitutional Court of the Czech Republic, sitting in
a  panel . . . in the matter of J. R. . . . against the  ruling
of  the  Regional  Court  in Ostrava  in  connection  with  the
decision of the County Court in Olomouc, decided

                        THUSLY

     The  decision of the County Court in Olomouc sp. zn.  7  T
14/95 of 24 February 1995 and the ruling of  the Regional Court
in  Ostrava,  the Olomouc branch,  sp. zn. 2 To  130/95  of  22
March 1995 are hereby vacated.

                           REASONING:

     By  decision of the County Court in Olomouc of 24 February
1995,  the complainant was found guilty of the crime,  under  §
269(1) of the Penal Code, of refusing to report for service  in
the armed forces and was given an unconditional sentence of 12-
months  imprisonment.  The complainant and his parents appealed
this decision, with reference primarily to the fact that he had
already  been  finally convicted for the permanent  refusal  of
military service, by decision of the same court . . . and  that
the  interpretation that he had commited a new offense  by  his
refusal to obey the later conscription order would in fact mean
that  anyone who, for whatever reason, missed the deadline  for
submitting a request to perform civilian service . . .  may  be
punished  practically without break until the age of  60,  when
the  defense obligation ends. . . .  By its ruling on 22  March
1995,  the Regional Court rejected the appeal . . . .   In  its
[the  appellate court's] view, the court of first instance had,
without  any  doubt, ascertained that, on  15  June  1994,  the
defendant  had personally received the conscription order  from
the County Military Authority in Karvina, that the order placed
upon  him  the duty to report for basic military service  on  7
July  1994 . . . which he failed to do even 24 hours after  the
deadline set in the conscription order had expired.  As far  as
concerns  the appellant's argument that it is impermissible  to
criminally prosecute someone repeatedly for the same  act,  the
court  stated  that while it was a matter of the same  type  of
criminal offense, nonetheless it had been a very different act,
defined by quite different factual circumstances.

     In  addition, the complainant urged that Art. 40(5) of the
Charter  had been infringed, because he had already  once  been
finally convicted for the permanent refusal to perform military
service  .  .  .  .   In  this context, he asserted  that  such
repeated  judicial prosecution is at the same time contrary  to
the   Convention  on  the  Protection  of  Human   Rights   and
Fundamental Freedoms. . .

     The  Constitutional Court requested the  record  from  the
County  Court  in Olomouc . . . from which it ascertained  that
the  complainant  was conscripted on 3 June 1992.  .  .  .  The
Constitutional Court further ascertained that . . .  on  4  May
1994  the complainant was found guilty, under § 269(1)  of  the
Penal  Code, of the criminal offense of failure to  report  for
service in the armed forces because . . . he did not report for
this  service, not even within 24 hours following the deadline.
For this criminal offense . . . the complainant was given a 12-
month suspended sentence [delayed for a 15-month trial period].
.  .  .  [O]n 15 June 1994 the complainant received  a  further
conscription  order,  which directed him to  report  for  basic
military service on 7 July 1994. . .  The complainant  did  not
report at that time. . . . On 19 December 1994, the complainant
was  notified  that  he  had  been charged  with  the  criminal
offense,  under § 269(1), of failure to report for  service  in
the  armed  forces  .  . . . In the decisions  which  form  the
subject of this constitutional complaint, he was convicted  and
sentenced unconditionally to 12-month's imprisonment.

     At the . . . oral hearing [on 18 September 1995 before the
Constitutional Court], Jiri Lovecky, an employee of the  County
Military Authority in Karvina, was questioned as a witness, and
he  testified  that [at the time of his first  conviction]  the
complainant  had  expressly refused not only military  service,
but also civilian service. . . .  [T]he complainant had further
asserted  that  he was a member of the Jehovah's Witnesses  and
that  he refused to perform either military or civilian service
even  though it was clear to him that he would obviously go  to
prison.  [Mr. Lovecky] further stated that at the present  time
when someone completes a sentence for refusing to serve in  the
armed forces . . . it is required to call him up again at  that
next reporting date.  Therefore, the fact that he has served  a
sentence is no grounds for treating him any differently.

     . . . . Without a doubt, the Act on Civilian Service is  a
statute  which  places limits on a basic constitutional  right.
The  Constitutional Court shares the view already expressed  by
the Plenum of the Constitutional Court of the CSFR. . . . of 10
December  1992 that, in view of the principles of the law-based
state and legal security, the legislature is required to define
in  detail  in a statute the implementation of the right  under
Art.  15(3) of the Charter clearly enough so as to exclude  the
possibility of interpreting such a statute in such a way as  to
limit the implementation of the a basic constitutional right in
a  manner  incompatible with the principles laid down  in  Art.
4(3)-(4)  of  the  Charter, are even to make it  impossible  to
implement the right.

     While the basic constitutional right to have the option of
civilian service is contained in Art. 15(3) of the Charter, the
content  of that right must be interpreted in conjunction  with
Art.  9  of  the  Charter, which clearly states  that  military
service  or  some other service prescribed by law in  place  of
compulsory military service cannot be considered to  be  forced
work  or  service.  In this context, reference must be made  to
the  fact  that  in  this area Czech law goes  beyond  what  is
requied in the European Convention for the Protection of  Human
Rights and Fundamental Freedoms, from Art. 4(3)(b) of which can
clearly  be  deduced  that it is not  an  infringement  of  the
Convention if one of the Member States refuses to give sanction
in  its  legal order to the refusal to perform military service
on  the grounds of conscious. . . .  It can generally be  said,
then,  that  the  Czech rules require everyone who  is  drafted
under the Defense Act to fulfil the duty to serve, whether as a
soldier  or as someone subject to civilian service.  Therefore,
someone may not be exempted, on the grounds of conscious,  from
every  form of service whatsever, which is sometimes requested.
To  accept such a position would be in sharp conflict with  the
principle of equality. . . .

      If  the  Act  on  Civilian  Service  provides  that,   by
performing  it,  a  citizen  may  not  obtain  any  unjustified
advantage  over him who performed basic or substitute  military
service or training, then it must follow logically that  if  we
were  to tolerate conduct leading to the avoidance of any  sort
of  service whatsoever, then this would result in the violation
of the principle of equality.  Stated otherwise, in a law-based
state  the  non-fulfillment  of a  duty  set  by  law  must  be
sanctioned.  It is the state's affair to set a sanction and the
type,  taking  the character of the offense into consideration.
Czech  law prescribes solely criminal law prosecution for cases
of  refusal to perform either military or civilian service.  It
is the legislature's business to consider whether in such cases
it  is  really  necessary to choose only  this  form  of  legal
sanction.   In a state which seeks to be a law-based state  the
legitimacy  of  criminal law sanctions can be justified  solely
with reference to the necessity of protecting elementary values
from  acts which are especially dangerous to society  and  only
when  no other resolution exists.  Thus, state repression  must
always  be  based  on the principle that it be  subsidiary  and
minimalized.

     The  material elements of the criminal offenses of refusal
to  report for service in the armed forces are contained in  §§
269  and  270  of  the Penal Code, and those  of  the  criminal
offense  of refusal to report for civilian service in §§  272a,
or  272b  of  the Penal Code.  The constitutional complaint  is
directed against a court decision in which the complainant  was
finally  convicted of a criminal offense under §  269(1).   The
material  elements  of  this  offense  are  defined  relatively
precisely and concretely and provide that anyone who, with  the
intent   permanently  to  avoid  military  service  or  special
substitute  service, fails to report for service in  the  armed
forces within 24 hours of the expiry of the deadline stated  in
the conscription order, shall be punished with imprisonment  of
one  to  five  years.  Thus, the intention permanently  not  to
report  for  this  service  is  an  essential  element  of  the
definition  of this criminal offense.  This element comes  into
even  sharper focus when contrasted with the material  elements
of the criminal offense under § 270(1) which is formulated such
that a person commits it if he fails to report, even if out  of
negligence, for service in the armed forces within 24 hours  of
the  expiry  of the deadline stated in the conscription  order.
In  addition,  as this conduct does not have  as  its  aim  the
permanent avoidance of military service, the punishment  it  is
substantially more lenient (imprisonment of up to  two  years).
There  is  a  parallel difference between the criminal  offense
under § 272a, which governs the intentional permanent avoidance
of  civilian  service,  and under §  272b,  which  defines  the
elements for the "mere" refusal to report for civilian service.

     The  constitutional complaint and the introduced  evidence
make  clear  that  the  complainant was twice  convicted  of  a
criminal offense under § 269(1), the first time for failure  to
report to the military unit in Hodonin in July, 1993, and  then
the  second  time  for  failure to obey  a  conscription  order
approximately a year later.  Neither of the courts held  doubts
on  the  score  that they were dealing with two  identical  and
repeated criminal offenses, this despite the fact that from the
beginning the complainant objected that he had already  clearly
asserted  when  first convicted that he had  not  reported  for
service  and  had  the intent permanently not to  report,  even
though he was aware of the criminal consequences.  The court of
first  instance did not respond to this defense  at  all.   The
appellate  court  then rejected this defense,  mainly  for  the
reason  that in the second case the failure to report  occurred
at a different time and that the summons to service was made in
a  different place.  In the Constitutional Court's opinion, the
heart of the matter consists in resolving this issue.

     For  each  constitutional  complaint,  the  Constitutional
Court  must  perform  the  task of judging  whether  a  court's
interpretation   of   the  applicable   legal   rules   exceeds
constitutional  bounds.   Even interpretations  that  at  first
glance  may  appear  to be legal, may, in view  of  the  actual
circumstances,   be   so  extreme  as  to   depart   from   the
Constitution.   Art.  4(4)  of the  Charter  provides  that  in
applying  provisions which limit fundamental rights  and  basic
freedoms their essence and purpose must be maintained.  And, in
addition,  a court which decides concerning guilt and innocence
of  a criminal act must respect the principle expressed in Art.
40(5) of the Charter, as well as in Art. 4(1) of Protocol No. 7
of  the Convention on the Protection of Human Rights and  Basic
Freedoms,  that nobody may be prosecuted or punished repeatedly
for  the same act, that is the principle "ne bis in idem".   In
the  case  at hand, the ordinary courts had no doubt that  this
principle  had not been violated; the complainant, however,  is
of a different opinion.

     After consideration of all circumstances, the panel of the
Constitutional Court has come to the conclusion  that,  in  the
complainant's case, the contested court decision  violated  the
principle  "ne  bis  in idem", thus, the above-mentioned  basic
rights  guaranteed by the Constitution.  If  §  269(1)  of  the
Penal Code provides a substantially more severe punishment  for
those  who fail to report for military service with the  intent
of  permanently  avoiding it, it is unacceptable  to  interpret
this   provision   such  that  "permanently"   actually   means
temporarily or short-term.  Interpreted in this way, the number
of criminal offenses committed by a person would in actual fact
be  determined  by the number of summons to service  which  the
military  administrative bodies send him.  There  is  no  doubt
that  even after a person is convicted for the first such  act,
it  is possible to deliver a new conscription order to him; his
failure  to  obey  it, however, may not be assessed  as  a  new
criminal  offense if the court in the earlier proceeding  found
the intent permanently not to report for military service.   It
is  the  Constitutional Court's view that when the  complainant
received  further summons, he merely persisted in  his  earlier
expressed intention not to report for military service.  It was
the same conduct with the same result, thus, the identical, and
by  no  means  a  different,  act.   This  identity  cannot  be
disrupted  by  a  change  in  particular  circumstances   which
individualize  the act, in this instance a summons  at  another
time and to another place.

     Due to the fact that the contested court decision violated
the  principle  that a person may not be repeatedly  criminally
prosecuted  for the same act, which is laid down in Art.  40(5)
of  the Charter, as well as in Art. 4(1) of Protocol No.  7  to
the   Convention  for  the  Protection  of  Human  Rights   and
Fundamental  Freedoms, the Constitutional Court has  no  option
but to annul the decision.

     The  Constitutional  Court  expects  that  its  principled
decision  will serve for the ordinary courts' future  decision-
making  as a guideline concerning the length of punishment  for
those  who  permanently refuse to perform military service,  or
civilian service.  In its view, the Penal Code as it now stands
provides  ample opportunity so that in similar cases the  legal
affliction  may  be  of  such  an intensity  as  to  avoid  the
doubtless  undesirable result of giving those who  violate  the
law  an advantage over those who fulfill their duties.  At  the
same  time,  the  Constitutional Court is  convinced  that  the
legislature is considering the possibility as well of  enacting
sanctions other than imprisonment.

Notice:   The decision of the Constitutional Court may  not  be
appealed.   Its  decision  is binding on  all  authorities  and
persons (Art. 89(2) of the Constitution).

Brno, 18 September 1995

                                  JUDr. Pavel Varvarovsky
                                  Chairman of the Panel








Higher Military Court of Trencin


                            RULING

     In  a  closed  hearing conducted on 16  August  1995,  the
Higher Military Court of Trencin dealt with the appeals made by
the  Local  Military  Procurator in  Banska  Bystrica  and  the
defendant conscript D. P. . . . , which were filed against  the
decision of the Local Military Court of Banska Bystrica . . . ,
and decided thusly:

     I.   Under  §  257(b) of the Criminal Procedure  Code,  by
proposal  of  the Local Military Procurator - Banska  Bystrica,
the  contested  decision is annulled in its  entirety  and,  on
grounds  stated  in § 11(1)(f) of the Criminal Procedure  Code,
and  the  criminal  prosecution  for an act qualifying  as  the
criminal offense of refusal to report for service in the  armed
forced under § 269(1) of the Penal Code, which the defendant is
said to have committed such that

    on  12-13 December 1994 at the County Military Authority  -
    Vel'ky   Krtis,  he  refused  to  take  delivery   of   the
    conscription  order  .  .  .  according  to  which  he  was
    required,  by noon on 3 January 1995,  to report for  basic
    military   service,   and  he  did  not   report   at   the
    installation  at  the prescribed time  nor  did  he  within
    twenty-four  hours of the expiry of the deadline  set  down
    in  the  conscription order, while at the same time he  did
    so   with  the  intention  permanently  to  avoid  military
    service,

                i s     d i s m i s s e d,

because the opportunity to prosecute for this particular act by
the defendant ended with the final decision of the court [in  a
previous prosecution].

    II.  Under  §  253(1) of the Criminal Procedure  Code,  the
defendant's  appeal is rejected on the merits, because  it  was
submitted late.

                             
                             REASONING:


     On  19  June  1995, conscript D. P. was  found  guilty  by
decision of the Local Military Court - Banska Bystrica  of  the
criminal offense, under § 269(1) of the Penal Code, of refusing
to  serve in the armed forces, since on 12 and 13 December 1994
.  . . he refused to take delivery of  [his] conscription order
.  .  . , which directed him to report on 3 January 1995 by  12
O'clock for performance of his basic military service . . ., he
did  not report to the unit by the designated deadline, nor did
he  do  so  even  within 24 hours following the expiry  of  the
deadline  stated in the conscription order, which he  did  with
the intention of permanently avoiding military service.

     For that act he was sentenced, under § 269(1) of the Penal
Code  to  unconditional imprisonment for one year, and  at  the
same  time,  for serving his sentence, he was placed,  under  §
39a(2)(a)  of  the  Criminal  Procedure  Code,  into  the   1st
Remedial-Educational Category.

     The decision did not become final and enforceable because,
within   the   statutorily  prescribed  period,  the   Military
Procurator  filed  an  appeal against it  with  regard  to  the
sentence to the disadvantage of the defendant.  It referred  to
the  fact that the punishment imposed in the contested decision
was  disproportionate.   He, therefore,  prayed  the  court  to
vacate  the contested decision concerning the sentence  and  to
impose upon the defendant imprisonment for a term of 18 months,
and  that  to  serve  it  he be placed  in  the  1st  Remedial-
Educational Category.

     Through  defense council, the defendant also appealed  the
decision.  He asserted that the defendant had not been properly
conscripted  into  the  basic  military  service.   He  further
referred  to the fact that the defendant had already once  been
convicted by the Local Military Court - Banska Bystrica for the
mentioned  criminal act.  He requested that the charge  against
the  defendant  be dropped on the basis of   §  226(b)  of  the
Criminal Procedure Code.

     In  a  hearing  closed to the public, the Higher  Military
Procurator  stated  that he continued to demand  that  the  the
Local   Military  Procurator's  and  defendant's   appeals   be
conducted at a hearing open to the public.

      In  accordance  with § 254(1) of the  Criminal  Procedure
Code,  due to the submitted appeal the appellate court reviewed
the legality of and justification for all parts of the judgment
against which an appellant is able to bring an appeal, as  well
as  the  correctness of procedures followed which  led  to  the
judgment,  while  at the same time, it took into  consideration
mistakes that had not been pointed out by the appeal.  It found
that in the matter under consideration there were circumstances
which justified dismissal of the criminal prosecution, under  §
223(1) of the Criminal Procedure Code already by the c.ourt  of
first instance.

     By  a  decision  of  the  Local Military  Court  -  Banska
Bystrica . . . on 4 October 1994, defendant P. had already been
finally  convicted for the same act.  Under § 11(1)(f)  of  the
Criminal  Procedure  Code, a criminal prosecution  may  not  be
initiated  and,  if one had already been begun,  it  cannot  be
continued and it must be dismissed against anyone if an earlier
prosecution against him for the same act had ended in  a  final
judgment  of  the court or had been finally dismissed,  if  the
decision had not been annulled by the prescribed procedure.

     By the above-cited decision of the Local Military Court  -
Banska  Bystrica . . .the defendant P. was found  guilty  on  4
October  1994  and convicted of the criminal offense,  under  §
269(1) of the Penal Code, of refusing to report for service  in
the  armed forces, which he committed such that on 16 June 1994
. . . he refused to take delivery of the conscription order . .
.  which obliged him to report on 7 July 1994 by 12 O'clock for
basic military service . . ., with the consequence that he  did
not report for military service at the prescribed time, nor did
he  do  so  even within 24 hours of the expiry of the  deadline
stated  in  the  conscription order, and he  did  so  with  the
intention of permanently avoiding military service.

     In  the  appellate court's view, from the  perspective  of
defendant  P's  action as well as from the perspective  of  the
result  thereof, both cases are concerned with the same act  by
the  defendant, that is, it is a case of identity  of  the  act
stated  in  both judgments of the Local Military  Court  Banska
Bystrica  . . . .  For the identity of the act is not disturbed
either  by  possible changes in particular circumstances  which
individualize the act, so far as concerns the time or the place
where  the  act is committed.  The essence of the act  must  be
viewed  in  the  action  and  in  the  consequences  which  the
defendant  caused.   In the action because a  criminal  offense
consists of an action, and in the consequences thereof  because
that makes it possible from the manifestations of intention  of
a certain person to delimit those which make up an act.  So far
as  concerns the consequence that was caused, in the given case
it  consists  in  the fact that a defect, in the  form  of  the
accused's  failure to perform his duty, was done to the  object
protected by this rule of criminal law (performance of the duty
imposed  in the interests of the defense of the Slovak Republic
- in the specific case proper and timely reporting for military
service).   At the same time, this defect is the same  in  both
cases.   The  identity of the act is maintained either  in  the
identity of the action or the identity of the consequence.   In
both  cases,  the convictions of defendant P concern  the  same
action, and in addition have the same consequence, so that both
the  identity of the action and the identity of the consequence
is maintained.

     One commits the criminal offense of failure to report  for
service  in  the armed forces under § 269(1) of the Penal  Code
if,  with  the  intention permanently to avoid service  in  the
armed  forces or to avoid special service, he fails  to  report
for  service in the armed forces within 24 hours of the  expiry
of  the  deadline set in the conscription order.  In order  for
the  subjective elements of the material elements of the  crime
to  be  met,  it is necessary that the offender who  failed  to
report have the intention permanently to avoid both military or
special services.

     It  was  clear  from both judgments of the Local  Military
Court  -  Banska Bystrica that the defendant refused to  report
for  basic  military service because his religious  convictions
prevented  him  from so doing.  It was already perfectly  clear
from  the  final judgment of the Local Military Court -  Banska
Bystrica  on  4  October 1994 that the  defendant  had  made  a
permanent  decision not to enter basic military  training,  not
then  or  at  any time in the future.  For this action  he  was
convicted  in  the above-cited decision, the judgment  acquired
final  legal force on 20 October 1994, and the court's judgment
was not overturned by the prescribed proceeding.

     When  in  1995  he was conscripted once again  into  basic
military service, the defendant merely continued to express the
same  intent  he  had  earlier expressed,  not  to  report  for
military service at all, that is, his intention permanently  to
avoid  military service.  However, he had already been  finally
convicted  for  that,  as  is  seen  from  the  above-mentioned
judgment  of  the Local Military Court - Banska Bystrica  on  4
October 1994.

     On these grounds the appellate court, in accordance with §
257(b)  of  the Criminal Procedure Code, vacated the  contested
judgment  in  full  and,  in harmony with  §  11(1)(f)  of  the
Criminal  Procedure  Code,  dismissed  the  criminal  complaint
against defendant P.

     Through defense counsel, defendant P. also filed an appeal
against  the  decision  of the Local Military  Court  -  Banska
Bystrica.

    . . . .

     For these reasons the Higher Military Court, in accordance
with  §  253(1)  of  the Criminal Procedure Code  rejected  the
defendant's appeal on the merits, due to the fact that  it  was
filed late.

Notice:    The   law  permits  no  futher  ordinary   appellate
procedures against this decision.

Trencin, 16 August 1995         Chairman of the Panel
                             pplk JUDr. Jozef Simko, v.r.

                             Member  of the panel who  prepared
                             decision:
                             pplk. JUDr. Ondrej Gaborik, v.r.