IV ÚS  98/97

On  the  Object  of  the Criminal Offense of High  Treason  and
Espionage

    In  relation  to  criminal offenses  against  the  Republic
under Chapter One of the Special Part of the Criminal Code, No.
140/1961  Sb.,  the dissimulated interest of the  ruling  party
oligarchy,  employing  all instruments  of  totalitarian  power
against the "rest of the inhabitants", was enshrined in the law
as  the  object  of such criminal deeds. The  behavior  of  the
complainant,  irrespective of the reasons  motivating  it,  was
capable at the very most of calling into doubt the interests of
that   ruling  oligarchy.   During  the  incriminated   period,
however, the existence of a sovereign state was a mere fiction,
for  the  Czechoslovak state, while in its  internal  relations
presenting  itself as a totalitarian system, was  in  actuality
the  mere  vassal of the foreign power which was occupying  its
territory.  Therefore, all this means that if, on the one hand,
it  is permissible under Article 7 of the convention to convict
and  punish  a  person  also for offenses,  when  the  material
elements  of  that offense are not at all, or not sufficiently,
defined  in  the criminal code, it is hardly possible,  on  the
other  hand, to convict and punish persons whose conduct during
the  era  of  non-freedom  exhibited some  formal  features  of
criminal offenses against the foundations and the safety of the
Republic, albeit under conditions where, beyond any doubt,  the
actual object of  the criminal offense was lacking.

                        JUDGMENT

of  the  Constitutional Court of the Czech Republic (Panel  IV)
from  30 June 1997, sp. zn. IV ÚS 98/97, in the matter  of  the
constitutional complaint of ing. F. V. against  the  ruling  of
the  Supreme  Court of the Czech Republic of 23  January  1997,
file  no. 1 Tzn 0011/96-34, rejecting on the merits a complaint
of the violation of the law.

                        I.  STATEMENT


     The ruling of the Supreme Court of the Czech Republic from
23 January 1997, file no. Tzn 0011/96-34, is annulled.


                        II.  REASONING


     This  timely  filed  constitutional complaint  is  brought
against  the  above-cited ruling of the Supreme  Court  of  the
Czech Republic, which rejected a complaint of the violation  of
law   filed  by  the  Minister  of  Justice  in  favor  of  the
complainant,  and against the resolution of the former  Supreme
Court of the CSSR of 15 March 1979 (action no. 1 Tov 1/79- 137)
in  the  criminal  case conducted at the former  High  Military
Court  in  Přibram  under file no. 1 T 5/78.   The  complainant
objects  that, in the contested decision, the case was assessed
only   from   the   perspective  of  the  pertinent   statutory
provisions,  in  particular  those  of  the  Code  of  Criminal
Procedure,  without  giving any consideration  at  all  to  the
significance  of  constitutionally guaranteed basic  conditions
for  a fair procedure.  It was and remains problematic the idea
that  the  attributes of state sovereignty can be protected  by
means  of law from injury by the complainant, and not  only  by
him,  in  the  case of a state whose sovereignty  or  defensive
capacity,  at  the time at issue, remains a matter  of  serious
doubt  to say the least.  The complainant therefore prays  that
the Constitutional Court grant his constitutional complaint for
the  violation of Arts. 37(2), 40(3), and 39 of the Charter  of
Fundamental  Rights and Basic Freedoms and annul the  contested
decision.

     In  its  statement of views, submitted by the Chairman  of
the  Senate, JUDr. M. M. on 15 May 1997, the Supreme  Court  of
the Czech Republic continues to adhere to its position that the
complainant violated the law that was applicable at  the  time,
in addition that his conduct continues to be punishable even at
the  present  time.   The human point  of  view  to  which  the
complainant  makes  reference is not the crucial  criteria  for
decision-making  by  a court; on the contrary,  the  fact  that
judges  are bound by the law, as is laid down in Art. 95(1)  of
the  Constitution of the Czech Republic, is  decisive.   In  no
case  can  agreement with the legal outcome  established  as  a
result   of  the  decisions  in  the  original  proceeding   be
considered  as  „conservation“ of  the  legal  outcome  by  the
dubious acts of the court in the original proceeding, rather as
a  confirmation  that  these courts’  decisions  were  in  full
agreement  with  the criminal code in effect at  the  time  and
which, in respect of the issue is dispute, still applies today.
It  is  not the case, then, that the complainant’s conduct  was
declared  to  be criminal by the law then in force in  conflict
with  the  principles of a democratic society.  Therefore,  for
the   above-cited   reasons  this  party  proposes   that   the
complainant’s   constitutional   complaint   be   rejected   as
manifestly  unfounded or, in the alternative, rejected  on  the
merits.

     In  her submission of 16 May 1997, the Minister of Justice
of  the Czech Republic, JUDr. Vlasta Parkanová, stated that  in
the  proceeding  which preceded the issuance of  the  contested
ruling,  just  as in the proceeding before the  first  instance
court,  the  basic principles of the means for marshalling  and
assessing   evidence  in  preliminary  proceedings   were   not
consistently  respected.   The  court’s  conclusion  that   the
complainant’s conduct met all material elements of the criminal
offense  of  espionage  under  § 105(1),  (3)(b),  (d)  of  the
Criminal  Code and of high treason under § 91 of  the  Criminal
Code  has  no foundation in the admitted evidence  so  that  it
cannot  be  considered  as  a  correct  conclusion.   Even  the
substantive  element  of  the criminal  offense  at  issue  was
evaluated  in a faulty manner.  Since, the contested  decision,
the Czech Supreme Court rejected on the merits the Minister  of
Justice’s  complaint  of the violation of the  law,  indicating
that it found no violation in the sense complained of, then the
filed constitutional complaint, to the extent indicated in  the
complaint  of  the violation of the law, must be considered  as
well-founded.

     In  his 12 May 1997 submission, the Supreme State Attorney
of  the  Czech Republic stated that, in the contested decision,
the  Supreme  Court  of the Czech Republic  did  not  adopt  an
unequivocal  position  on  the issue of  defensive  capability,
despite  the fact that it is precisely doubts on the  issue  of
the  defensive  capability of the occupied country  that  might
give  rise  to a fundamental change in view as to  whether  the
complainant’s   conduct  was  criminal.    If   the   defensive
capability  was  not  threatened, the  basic  elements  of  the
definition  of the offense of high treason under §  91  of  the
Criminal  Code (by form of sabotage) would not have  been  made
out  and, as a consequence, not even the „divulged information“
concerning defensive capability could possibly be considered as
an  „especially important state secret“, which would call  into
doubt as well a basic element of the further offense alleged to
have  been  committed by the implicated conduct [that  is,  the
criminal  offense of espionage under § 105(1), (3)(b),  (d)  of
the  Criminal Code].  In the case that the defensive capability
was threatened only to an insignificant degree, the substantive
element  of this criminal offense would not be made out.   Even
if  the  defendant’s act remained criminal, it would hardly  be
possible to infer therefrom the same level of danger to society
as  the  court deciding at the end of the 1970’s found.   As  a
consequence  of the Czech Supreme Court’s method of  proceeding
in  this  matter, by which it avoided assessing basic questions
with   exculpatory   significance  for  the  complainant,   the
complainant  was  not accorded sufficient judicial  protection,
which   represents  a  violation  of  his  right  to   judicial
protection  under  Article  90 of the  Czech  Constitution  and
Article  36(1) of the Charter.  Therefore, for all  the  above-
stated  reasons,  the  Constitutional Court  should  grant  the
constitutional complaint and annul the contested ruling of  the
Czech Supreme Court.

     As it has already declared in a host of its decisions, the
Constitutional Court is not a court that stands in  a  position
of  superiority to the ordinary courts, it is not the  pinnacle
of  their system, for which reason alone it may not arrogate to
itself  the  right of supervisory review over  their  decision-
making,  provided these courts proceed in accordance  with  the
provisions of Chapter Five of the Charter.  In this regard, the
Constitutional Court has ascertained from file no. 1 T 5/78  of
the   former  Higher  Military  Court  in  Příbram   that   the
complainant was found, by a 30 November 1978 judgment  of  that
court  (action  no.  1 T 5/78 - 106), guilty  of  the  criminal
offense  of  espionage  under  § 105(1),  (3)(b),  (d)  of  the
Criminal  Code  and, as a result of the same  conduct,  of  the
criminal  offense of high treason under § 91  of  the  Criminal
Code, which he was alleged to have committed in that, from  the
end  of  1969 until November of 1976, as a Czechoslovak citizen
in  the course of his service assignment at home and abroad, he
misused  his  position  with  the intention  of  impairing  the
defensive  capacity of the Republic by disclosing to a  foreign
intelligence  service,  partly in  return  for  payment,  facts
described in more detail in the criminal file, bearing  on  the
organization and manner of activity of one of the  branches  of
the   Czechoslovak  armed  services,  specifically  information
concerning employees of the MNO [Ministry of National  Defense]
and   the  Czechoslovak  Security  Services,  which  have   the
character  of   state  secrets  of  special  importance;   and,
further,  in  co-operation with a foreign power,  that  for  an
extended  period of time, he handicapped and even disabled  the
fulfillment   of  some  assignments  in  areas  of   especially
important  interests  to  the  Czechoslovak  Republic,  thereby
causing  a substantial measure of damage, in part of a material
character, and further serious consequences, despite  the  fact
that he was specially assigned to keep state secrets.  For this
conduct, he was convicted under §§ 105(3), 35(1) and 29(1), (3)
of  the  Criminal  Code  to  a total  punishment  of  25  years
imprisonment   with  assignment  to  the  third   correctional-
educational  level  of  the  NVU MS  [Ed.  Note:  Correctional-
Educational  Institute of the Minister  of  Justice],  and  was
further obliged to pay the Czechoslovak state compensation  for
damages in the amount of 293 901 Czechoslovak Crowns.   It  was
also  evident from the file that, in its 15 March  1979  ruling
(action  no.  1 Tov 1/79-137) the former Supreme Court  of  the
CSSR rejected on the merits the appeals of both the complainant
and  the  former  High  Military  Procurator  in  Příbram.  The
Constitutional  Court further learned, from  the  file  of  the
former  High  Military Court in Tábor (file no. 9  Rtv  19/92),
that the complainant’s petition for a re-examination proceeding
pursuant  to  Act  No 119/1990 Sb., on Judicial Rehabilitation,
was,  in view of the mentioned judgment of conviction, rejected
on  the merits by a 16 April 1994 ruling of the Regional  Court
in České Budějovice, the Tábor branch, (action no. 9 Rtv 19/92-
32).   The complainant’s complaint against this ruling  of  the
Regional  Court  in  České Budějovice, the  Tábor  branch,  was
rejected  on  the  merits by a 28 July 1994 resolution  of  the
Superior Court in Prague (action no. 8 Torz 9/94-46).

    Lastly,  the Constitutional Court learned from the file  of
the  Czech Supreme Court, no. 1 Tzn 0011/96, that the  Minister
of  Justice of the Czech Republic submitted a complaint of  the
violation of law because, in his view, the 15 March 1979 ruling
(action  no.  1  Tov 1/79-137) was adopted in violation  of  §§
254(1)  and 256 of the Criminal Procedure Code and, the earlier
procedure  in violation of § 105(1), (3)(b), (d), § 91,  and  §
229  of the Criminal Code to the complainant’s detriment.   The
Czech Supreme Court decided on this complaint by its ruling  of
21  January 1997, action no. 1 Tzn 0011/96-34, rejecting it  on
the merits with the finding that the law had not been violated.
In  the  reasoning of the contested ruling, the  Czech  Supreme
Court stated, among other things, that the task of courts  does
not consist in the assessment, on the basis of their own views,
of  the  political and other circumstances and consequences  of
the  occupation  of Czechoslovakia by foreign troops  after  21
August  1968.   In  this respect, courts cannot  support  their
decisions  on mere political and historical opinions  on  those
events, especially in the light of the fact that Czechoslovakia
remained  an  independent state, recognized  as  one  by  other
governments.   In  addition to that,  even  after  the  changes
brought  about  after  1989, the legal order  precedes  on  the
presumption  of  the  factual and  legal  continuity  with  the
previous  regime,  unless  specified otherwise  in  a  relevant
statute  (§  2  of  Act No 480/1991 Sb., on  the  Era  of  Non-
Freedom).   The  complainant’s conduct does not qualify  as  an
manifestation of resistance against the previous regime, as  it
did  not  exhibit any features other than those of  a  criminal
offense.    Such  resistance  should  have  been  unambiguously
manifested by some form of struggle against the regime or  such
other conduct as meant by § 3 of Act No 198/1993 Sb. [Ed. Note:
the  act  is  entitled, „on the Lawlessness  of  the  Communist
Regime  and Resistance to It“].  Moreover, one cannot speak  of
resistance in the above sense in relation to a situation where,
while the complainant did some harm to the bodies of the regime
of  that  period, at the same time he enjoyed its  considerable
trust  and  profited both from that regime  and  from  the  co-
operation with a foreign power.

    In  the proceeding on the complaint of the violation of the
law,  submitted in the case under consideration by the Minister
of  Justice  pursuant to § 266 of the Criminal Procedure  Code,
the Supreme Court’s duty was, first of all, to assess the issue
whether  the  material  elements of  a  criminal  offense  were
present,  therefore also the issue whether the  object  of  the
criminal offense existed.  For the object is an element of each
and  every  criminal offense, so that an act  directed  against
something  which  is  not capable of  being  the  object  of  a
criminal  offense, cannot give rise to criminal liability.   In
the  opinion  of  the Constitutional Court,  the  matter  under
consideration  is  just such a case where  the  object  of  the
criminal offense is lacking.  The provisions contained  in  the
First  Chapter  of  the Special Part of  the  Penal  Code,  No.
40/1961  Sb., as amended by later acts, protect the foundations
of   a   sovereign   state,   that   is,   its   constitutional
establishment,  security, and defensive capacity.   Then,  with
regard to the criminal offense of high treason under § 91,  the
object of the criminal offense is the constitutional foundation
of  the  Republic,  its territorial integrity,  sovereignty  or
defensive capacity, whereas with regard to the criminal offense
of  espionage  under  § 105 the group object  of  the  criminal
offense  is  the  interest in the protection of the  Republic’s
external  security.  During the incriminated  period,  however,
the  existence of a sovereign state was a mere fiction, for the
Czechoslovak state, while in its internal relations  presenting
itself  as  a  totalitarian system, was in actuality  the  mere
vassal  of the foreign power which was occupying its territory.
It  is well known that each fiction results from the process of
the destruction of an order of values, therefore it evokes even
in  the  area of law those excesses, which are a quite  typical
phenomena in a totalitarian system, especially in the field  of
politics.   The  function  that such a legal  fiction  normally
played  in totalitarian orders was precisely to veil and shroud
a   condition   of  the  utmost  injustice,  a  condition   the
distinguishing feature of which was omnipotence on the one side
and  the absolute lack of legal protections on the other.  This
applies  in  full  as  well  to the totalitarian  constitutions
which,  in  comparison with social reality and the  cruelty  of
their conditions for the „rest of the inhabitants“. represented
a  mere  world  of  appearances, sharply contrasting  with  the
factual lack of constitutional guarantees.

     In  connection with the argument made by the Supreme Court
of the Czech Republic, asserting that courts may not base their
decision-making upon mere political and historical opinions  on
the „August Events",  the Constitutional Court considers it  to
be  of the utmost necessity to make reference to Article  7  of
the   Convention  for  the  Protection  of  Human  Rights   and
Fundamental   Freedoms  ("Convention"),  to  which  authorities
active  in the criminal process have up till now evidently  not
given  any  thought,  for it has never  even  been  applied  in
adjudging  the  criminality of conduct engaged  in  during  the
period  of „non-freedom".  In particular, paragraph 1  of  this
Article  provides  that  no one shall be  held  guilty  of  any
criminal  offense on account of any act or omission  which  did
not   constitute   a   criminal  offense  under   national   or
international law at the time when it was committed;  paragraph
2,  however,  states that this Article shall not prejudice  the
trial  and  punishment of any person for any  act  or  omission
which,  at  the  time  when  it  was  committed,  was  criminal
according  to  the  general principles  of  law  recognized  by
civilized nations.  The fact that the binding nature  of  these
principles   is  embodied  in  the  Convention  indicates   the
Convention’s   quite   evident   bent   towards    tying    the
interpretation of what is or can be law and, on  the  contrary,
what  is  not and can not be law, to the existence of a certain
value  order  founded  on the principle  of  consensus.   Norms
cannot  regulate, prescribe, or order "out of thin air", rather
they  build  upon  an  already-existing hinterland  of  values.
Norms  share  a  common base with values to  the  extent  that,
together with them, they form the normative and value order  of
a given society, serving as its constitutive, establishing, and
organizing  principle.  Therefore, all this means that  if,  on
the  one  hand,  it  is  permissible under  Article  7  of  the
convention  to  convict and punish a person also for  offenses,
when  the material elements of that offense are not at all,  or
not  sufficiently, defined in the criminal code, it  is  hardly
possible,  on  the  other hand, to convict and  punish  persons
whose  conduct  during  the era of non-freedom  exhibited  some
formal  features  of criminal offenses against the  foundations
and  the safety of the Republic, albeit under conditions where,
beyond  any  doubt, the actual object of  the criminal  offense
was lacking.

     In  relation  to  criminal offenses against  the  Republic
under Chapter One of the Special Part of the Criminal Code, No.
140/1961  Sb.,  the dissimulated interest of the  ruling  party
oligarchy,  employing  all instruments  of  totalitarian  power
against the "rest of the inhabitants", was enshrined in the law
as  the  object  of such criminal deeds. The  behavior  of  the
complainant,  irrespective of the reasons  motivating  it,  was
capable at the very most of calling into doubt the interests of
that  ruling  oligarchy.   The Czech  Supreme  Court  made  the
argument to the effect that the complainant’s conduct  did  not
exhibit  the characteristics of resistance as meant by  Act  No
198/1993  Sb., on the Lawlessness of the Communist  Regime  and
Resistance to It.  In the opinion of the Constitutional  Court,
however, such an argument misses the heart of the matter, since
its  quintessence does not consist in the assessment of whether
the  complainant,  by his conduct, offered  resistance  to  the
totalitarian  regime, but whether his conduct can be  qualified
as  a  criminal  act.  It is the opinion of the  Constitutional
Court  that,  in  the  light of the above  considerations,  the
complainant’s  conduct  cannot  be  qualified  as   such,   and
therefore it is also irrelevant which group of inhabitants  the
complainant  belonged to and whether he may have profited  from
his  membership in such group.  If there are general principles
of  law  recognized  by civilized nations  (Art.  7(2)  of  the
Convention)  and if they are legally binding, principles  which
reflect  in essence the value order of the nations in question,
then the legal orders of the individual states, as well as  the
application  of  law  within them,  must  correspond  to  these
principles.  In this case, therefore, it is not merely a matter
of  basing judgments on political and historical opinions,  but
also on assessments and interpretations that no court can avoid
if  it  is  to  fulfill its duty enshrined in  Article  90  and
Article 95 para. 1 of the Constitution of the Czech Republic.

    The fact that the Supreme Court of the Czech Republic
rejected on the merits the complaint of the violation of the
law submitted by the Minister of Justice, while failing in its
obligation to examine the violation of the law in the light of
the above-stated criteria, resulted in the violation of Article
90 and Article 95 para. 1 of the Constitution, as well as of
Article 36 para. 1 of the Charter of Fundamental Rights and
Basic Freedoms.  For the above-stated reasons, the
Constitutional Court has, pursuant to § 82 para. 2, lit. a) of
Act No. 182/1993 Sb., on the Constitutional Court, granted the
constitutional complaint and, pursuant to § 82 para. 3, lit. a)
of the cited act, annulled the contested judgment.