Pl.US 19/93

                       Czech Republic
                   
                          JUDGMENT

         of the Constitutional Court of the Czech Republic
         
              in the Name of the Czech Republic

    On  21  December  1993,  the Plenum of  the  Constitutional
Court  of  the Czech Republic, composed of JUDr. Iva Brozova  ,
Prof.  JUDr.  Vojtech Cepl, Doc. JUDr. Vladimir  Cermak,  JUDr.
Vojen  Guttler, Doc. JUDr Pavel Hollander, JUDr. Milos Holecek,
JUDr.  Ivana Janu ,JUDr. Vladimir Jurka, JUDr. Zdenek  Kessler,
Prof.  JUDr.  Vladimir  Klokocka, DrSc., JUDr.  Vladimir  Paul,
CSc.,  JUDr.  Antonin  Prochazka, JUDr. Vlastimil  Sevcik,  and
JUDr.  Eva  Zarembova, concerning the petition submitted  by  a
group  of  41 Deputies of the Parliament of the Czech  Republic
seeking  the  annulment of Act No. 198/1993 Sb., regarding  the
Lawlessness  of  the  Communist Regime and  Resistance  to  It,
decided

                          THUSLY:

   The petition is rejected.

                          REASONING:

    On  15  September  1993,  a group of  41  Deputies  of  the
Parliament   of  the  Czech  Republic  submitted   a   petition
requesting  that  the Constitutional Court,  on  the  basis  of
Article 87, para. 1, letter a) of the Constitution of the Czech
Republic, annul Act No. 198/1993 Sb., regarding the Lawlessness
of  the  Communist  Regime and Resistance to  It,  due  to  its
incompatibility  with the Constitution of the  Czech  Republic,
the  Charter  of  Fundamental Rights and  Basic  Freedoms,  the
Constitutional  Act  of the Czech National Council  No.  4/1993
Sb.,  on  Measures Connected with the Dissolution of the  Czech
and   Slovak   Federal  Republic,  and  certain   international
treaties.

    Since  the  submission of the petition met the requirements
of  §  64 of Act No. 182/1993 Sb., on the Constitutional Court,
and  the  petition  was admissible under Sec  66  of  the  same
statute,  the Constitutional Court instituted a proceeding  and
requested  the  Parliament of the Czech Republic  to  give  its
opinion  on  the petition within the time period designated  by
law.

    On  15  September 1993, a group of 41 Deputies submitted  a
petition  seeking the annulment of all provisions  of  Act  No.
198/1993 Sb., with the exception of § 7 and the concluding §  9
(concerning its entry into force), due to their incompatibility
with  the  Constitution of the Czech Republic, the  Charter  of
Fundamental  Rights  and Basic Freedoms,  as  well  as  already
ratified international treaties on civil rights and freedoms.

    The  Constitutional Court reviewed the petitioners' general
as  well as individual objections, which made reference to  the
claimed incompatibility of Act No. 198/1993 Sb. with Article 1,
Article  2  para.  3,  and Articles  78,  90,  and  95  of  the
Constitution   of   the  Czech  Republic,  further   with   the
Constitutional  Act of the Czech National Council,  No.  4/1993
Sb.,  on  Measures Connected with the Dissolution of the  Czech
and Slovak Federal Republic, with the provisions of Article  1,
Article  2  para.  2, Article 3 para. 1, Article  15  para.  2,
Article 17, Article 37 para. 3, Articles 38 and 39, and Article
40  paras.  5  and 6 of the Charter of Fundamental  Rights  and
Basic  Freedoms, No. 2/1993 Sb., with the provisions of Article
4,  Article  15  para. 1, and Articles 19, 24  and  26  of  the
International Covenant on Civil and Political Rights, with  the
provisions of Article 15, para. 3 of the International Covenant
on   Economic,  Social  and  Cultural  Rights,  and  with   the
provisions of Articles 6, 10, and 14 of the Convention for  the
Protection of Human Rights and Fundamental Freedoms.

    The objections raised can be classified into three groups:

A.  Objections to §§ 1 through 4 of Act No. 198/1993 Sb.
B.  Objections to § 5 of Act No. 198/1993 Sb.
C.  Objections to §§ 6 and 8 of Act No. 198/1993 Sb.

A

    Objections to §§ 1 through 4 of Act No. 198/1993 Sb.

    The  overall  conceptual approach to the  problems  of  the
contested  statute are expressed primarily in points  2.1,  2.2
and  2.3 of the petition.  In particular, it is stated in these
points that Czech law is founded on the sovereignty of law  and
on  the  principal  of legality derived therefrom.   From  this
point of view, the petitioners criticize the provisions of §  2
para. 1 of the statute, according to which the political regime
during the period from 1948 - 1989 was illegitimate, and  label
this  statement as "unconstitutional".   It is clear  from  the
context  that  this  term does not mean  a  situation  that  is
praeter constitutionem [outside of the constitution] but contra
constitutionem    [against    the   constitution],    therefore
unconstitutionality.   The reasoning  of  the  group's  opinion
makes  reference to the fact that the Czech Republic is one  of
the   legitimate   successor  states   to   the   now   defunct
Czechoslovakia and that the inherited statutes and other  legal
regulations,  as well as the legal obligations  of  the  former
Czechoslovakia  remain  in  force  in  it.   This  "substantive
continuity of domestic and international rights" is,  according
to  the  petitioners, an indication of the  legitimacy  of  the
governmental  and  political regime during the  period  1948  -
1989.

    This   perspective,  which  is  obviously  aimed   at   the
provisions of §§ 1 through 4 of Act No. 198/1993 Sb., regarding
the  Lawlessness of the Communist Regime and Resistance to  It,
forms  part  of  their  general  objections  to  the  contested
statute.

    The petitioners object that a doctrinaire evaluation of  an
historical  period of the former Czechoslovakia, introduced  in
the  form of a statute, excludes other opinions and conclusions
resulting  from  scholarly knowledge of  historical  facts,  by
which  means the freedom of research is restricted (Article  15
para.  2  of the Czech Charter of Fundamental Rights and  Basic
Freedoms).  Then in points three and four, they make  arguments
against the attempt - evidently presumed - on the part  of  the
legislators to understand and interpret the provisions of §§  1
through 4 of Act No. 198/1993 Sb. as the basis for sanctions in
criminal  law, employment law, and in other areas of  the  law.
According to the opinion of the petitioners, with the  phrasing
concerning crimes, persecution, murder, and so forth,  as  well
as   the  phrasing  concerning  the  responsibility  or   joint
responsibility  of persons, the statute creates the  impression
that  concepts  bearing  a direct relationship  to  substantive
criminal  law  are  involved, and that this  responsibility  or
joint responsibility is borne by an entire group of persons for
whom  not  even the declaratory nature of the provisions  rules
out   collective  or  individual  imposition  of   non-criminal
sanctions.

    As  appears from the Czech Parliament's position  upon  the
group of Deputies' petition to annul Act No. 198/1993 Sb.,  the
Assembly  of  Deputies  relied upon  the  arguments  stated  in
Assembly  Press No. 376 (Explanatory Report for  the  contested
statute)  and  in  the speeches of Deputies,  recorded  in  the
Stenographic Report from the Assembly of Deputies'  debates  on
the  bill.  The fact that the Assembly of Deputies adopted this
statute  with 129 votes in favor, as is stated in the  Assembly
of Deputies' position, is not relevant in the case proper.

    The  Explanatory Report for the statute proceeds  from  the
fact  that ". . . with the exception of the very brief Act  No.
480/1991 Sb., concerning the Period of Non-Freedom, . . . there
has    not   been   a   more   comprehensive   definition   and
characterization   of   the  injustice   and   crime   of   the
dictatorship, by which the whole society became so  deeply  and
systematically marked.  The society had very bad feelings about
this  absence  of legal regulation, especially in  relation  to
particular  persons  who were the persons responsible  for  the
mentioned  state  of  affairs and were not punished  for  their
crimes,  while on the other hand, no moral exoneration  of  the
opponents of the communist regime took place."

    In  the  Preamble and the whole first part of  the  statute
(§§  1  through 4), it is asserted that the Communist Party  of
Czechoslovakia, its leadership, and its members are responsible
for  the manner of rule during the period 1948 - 1989, then the
characteristics of this manner of rule are mentioned, and  §  1
describes the approach " . . . which the communist regime,  its
active supporters, and those exercising power used in decision-
making about directing the government and about the fate of the
citizens"  (Explanatory Report).  Thereafter, it expresses  the
joint  responsibility  of  those who  supported  the  communist
regime for crimes committed and other arbitrary acts (§ 1 para.
2)  and  declares the regime founded on the basis of  communist
ideology  to  be  criminal, illegitimate, and abominable  (§  2
para. 1), as is likewise the Communist Party of Czechoslovakia,
as  well  as other organizations founded upon the same ideology
(§  2 para. 2).  Sections 3 and 4 express moral recognition  of
those citizens who put up resistance to this regime, as well as
of its innocent victims.

    The evaluation of individual objections stated in points  3
and  4  of  the  group  of Deputies' petition  depends  on  the
determination  -  a limine fori - whether and  to  what  extent
these  provisions  are legal norms of an  imperative  or  of  a
dispositive  nature which bind the state or give it  discretion
to  act  in  a  certain  way  with this  or  some  other  legal
consequences for persons, groups of persons, or organizations.

    It  is  possible  fully to concur with the opinion  of  the
group  of Deputies that the sentences in the first part of  the
statute have only a general character, without at the same time
conceding that they thereby become binding legal norms.  It  is
also  possible  to agree, again without conceding  them  to  be
binding legal norms, that they are provisions which are  worded
"axiomatically  and  broadly", that they do  not  make  use  of
precisely  and specifically defined concepts, that  established
legal  concepts with precise contents have not  been  used,  as
well  as  with the designation of the sentences as  declaratory
norms.

    Contrary  to  the  assertion of the  petitioners,  however,
neither  the  text  of the statute itself nor  the  Explanatory
Report  give  any grounds at all for inferring that  the  first
part of Act No. 198/1993 Sb., regarding the Lawlessness of  the
Communist  Regime and Resistance to It, might have created,  in
the  area of substantive criminal law or in some other area  of
the  law,  a  legal duty or a statutory power of the  state  to
prosecute certain persons, or to inflict non-criminal sanctions
upon  them.   The  precondition  for  a  criminal  act  is  the
definition of its elements.  Nothing in §§ 1 through 4  can  be
understood  as  the designation of the material elements  of  a
criminal act.

    The  first  part  of  the  statute  represents  the  moral-
political viewpoint of the Czech Parliament, the purpose of and
the  grounds  for  which are explained in  the  above-mentioned
quotation from the Explanatory Report.  The first four sections
of the statute are concerned with the nature of the regime, its
specific  aims and methods, and its structural characteristics,
not  at  all  with the nature of individuals who, out  of  some
motive or another, were members of organizations upon which the
regime relied.

    The   statute  discusses  the  "joint  responsibility"   of
individuals  on  two levels:  the joint responsibility  of  the
members of the Communist Party of Czechoslovakia (KSC) for  the
manner  of rule in the years 1948 - 1989 and further the  joint
responsibility of those "who actively supported  the  communist
regime" (§ 1 paras. 1 and 2 of Act No. 198/1993 Sb.) - in  this
instance  for  the  crimes committed by the  regime.   In  both
cases,   the   differentiation  of  the  levels  of  individual
political  and  moral, but not of criminal,  responsibility  is
concerned, and is characteristic of Parliament's initiative  to
reflect upon the past.

    The  joint  responsibility of members of the  KSC  for  the
manner of rule is expressed only in the Preamble to the statute
and  should  be understood as an effort to instigate reflection
on the part of those who were, or continue to be, members of an
organization, the leadership and political activities of  which
over  and over again departed markedly, not only from the basic
values  of  humanity and of a democratic law-based  state,  but
also from its own program and laws.

    This   distinction   in   the   degree   of   moral   joint
responsibility  results  from  the  nature  of  a  totalitarian
dictatorship.  It is an erroneous notion to assume that a party
which conducts itself toward society in a dictatorial manner is
able to act internally in a democratic fashion.  This party was
also  stratified  between the governing and the  governed,  its
membership base was manipulated by the centers of power and, at
the same time, it became an instrument, even a certain type  of
captive, of those who "actively supported the regime."

    We  cannot criticize the Parliament for the fact  that,  in
its  moral-political, jural-political proclamation, it did  not
make use of customary legal terminology.  In this respect, this
portion differs from §§ 5 and 6 of the statute, in which -  and
in  which alone - crimes are not spoken of, but which uses  the
precise terminology of criminal law:  "criminal act".   At  the
same  time,  the  Explanatory Report gives no evidence  of  any
effort  to introduce a new definition of the material  elements
of a crime into the criminal law, when it explains § 2 with the
words:  "With the exception of cases involving the infringement
of  the provisions of the criminal law then in force, the words
abomination  and  criminality  must  be  considered  rather  as
terminology from the domains of politics and morals."

    If  the  declaratory  character of the  provisions  of  the
first  part of Act No. 198/1993 Sb. is undeniable,  it  is  not
necessary  to scrutinize the petitioners' particular  arguments
stated  in  points 3 and 4 of the petition - with the exception
of three of them.

    The  first  of  these objections states that a  declaratory
provision does not exclude the possibility of making use of non-
penal sanctions contained in other legal norms, for example, in
statutes   governing  the  rights  and  duties  of  educational
employees,  research  assistants,  journalists,  writers,   and
artists.   This objection must be rejected because it does  not
relate to the contested statute itself but to other legal norms
not  more  specifically designated, none of the legal substance
of  which  is changed by Act No. 198/1993 Sb.  Also,  the  term
"non-criminal  sanctions" is vague.  The  so-called  lustration
law, for example, does not impose sanctions, rather it sets the
prerequisites   for   holding   certain   offices   which,   in
consideration of their nature and political significance,  have
a  constitutional  stature in those countries  founded  on  the
principle of the law-based state.

    Likewise  the  petitioners make the further objection  that
the "joint responsibility" or "collective responsibility" dealt
with in the first part of the contested statute is "firstly . .
.  joint responsibility under criminal law", but this objection
must be rejected because this part of the statute is of a moral-
political, and not a juridical, character.  This means that the
appraisal  of an historical period of the former Czechoslovakia
in  no  way excludes opinions and conclusions other than  those
expressed in the text of Parliament's statute.  The freedom  of
research  guaranteed by Article 15 para. 2 of  the  Charter  as
well  as  by international legal acts is not affected  thereby.
From   the   point  of  view  of  scholarly  and   journalistic
activities,  the evaluation contained in the contested  statute
does  not represent a binding opinion, "not even", as the group
of  Deputies' petition rightly observed, "in the case that such
assertions are contained in legal acts designated as  statutes"
(page 2 of the petition).

    The    petitioners    find    a    further    element    of
unconstitutionality in the intention " . . . that  the  statute
serve  an interpretive function in relation to court decisions"
-  an  intention which the legislators never expressed  in  the
text  of  the  statute.  A relevant intention is  one  that  is
expressed  in  a  legally relevant manner.  Objections  to  the
wording  of  an  Explanatory Report cannot be  the  subject  of
review  or  a decision of the Constitutional Court.   Moreover,
the  conditional nature of the Explanatory Report's  expression
("should  serve  . . . if need be also for a  decision  of  the
court in this field") does not show a clear intention.

    Also  the introductory declaration of Parliament, " .  .  .
that  in its future activities it will use this statute as  its
point  of  departure", cannot be considered a legal norm  which
would  bind  Parliament.  This declaration is an expression  of
political  will of a programmatic character, a will established
at  a  certain  time and with a certain line-up  of  forces  in
Parliament,  a fact which may not be interpreted inconsistently
with the right of Parliament, in the area and within the bounds
of  its competence, to adjust the matter differently at another
time,  nor  inconsistently  with  the  principle  of  the  free
exchange of views on the floor of the Parliament.

    The  constitutional foundation of a democratic  state  does
not  deny the Parliament the right to express its will, as well
as  its  moral  and  political viewpoint,  by  means  which  it
considers  suitable  and  reasonable  within  the  confines  of
general  legal  principles - and possibly  in  the  form  of  a
statute,  if it considers it suitable and expedient  to  stress
its   significance  in  the  society  and  the  scope  of   its
declaration  in the legal form of a statute.  Such  an  example
was  the  statute issued under the First Republic which  stated
that  T.  G.  Masaryk deserves credit for the building  of  the
state.

    On  the  whole, it is evident that the statute under attack
does  not define the material elements of any new criminal  act
and  that nothing analogous can be deduced from the text of the
first  part  of  it.  In addition, Article 40 para.  6  of  the
Charter of Fundamental Rights and Basic Freedoms applies  as  a
general  norm for judging any sort of act from the  perspective
of  its  criminal  nature, and according to  it  "the  question
whether  an  act  is punishable or not shall be considered  and
penalties shall be imposed in accordance with the law in effect
at  the time the act was committed.  A subsequent law shall  be
applied if it is more favorable to the offender."

    However,  the  objections of the petitioners  contained  in
points  2.1  and  2.2 of the petition are directed  at  certain
general issues of the fundamentals of Czech law and the  nature
of the governmental and political system during the period from
1948  to  1989.  Above all, the group of Deputies objects  that
the  provisions of § 2 para. 1 of Act No. 198/1993 Sb.  contain
"the  unconstitutional  statement  that  the  political  system
during  the  period  from 1948 to 1989 was  illegitimate."  Its
assertion  concerning the legitimacy of this regime rests  upon
the principle of the continuity of law, the given reception  of
the domestic legal acts and the continuity of the international
legal obligations from the period of the "old regime"; on  page
3  of  its petition, it concluded:  "If the statutory statement
concerning  the illegitimacy of the governmental and  political
system  during  the period from 1948 to 1989 were  correct  and
remained  in  effect, than the legal acts  adopted  during  the
stated  period would no longer have been valid as of  1  August
1993; naturally, this did not occur, for legal certainty is one
of  the  basic characteristics of a law-based state,  and  that
certainty  depends  upon  the constancy  of  legally  expressed
principles in particular areas of the law, on the constancy  of
legal relations" and so on (point 2.3 of the petition).

    It  is  necessary  to  evaluate  an  objection  of  such  a
fundamental  nature  in relation to the basic  outline  of  the
Constitution  and the constitutional foundation  of  the  Czech
Republic.

    As  is  known,  the process of the creation of  the  modern
constitutional state in Central Europe was not completed  until
after  the  First  World  War.  At the  same  time,  remarkable
results in the positivistic elaboration of procedural rules and
guarantees  had  already  been  achieved  earlier,   and   they
strengthened  citizens' legal certainty and  the  stability  of
laws.   However, the positivistic tradition carried  over  into
the   post-war   constitutions  (including   the   Czechoslovak
Constitution  from  1920) in its later development  many  times
exposed its weakness.  Constitutions enacted on this basis  are
neutral with regard to values:  they form the institutional and
procedural  framework, which is capable of  being  filled  with
very  diverse  political  content because  their  criteria  for
constitutionality   is   merely   the   observance    of    the
jurisdictional   and  procedural  framework  of  constitutional
institutions  and  procedures,  thus  criteria  of  a   formal,
rational  nature.   As a consequence of this,  in  Germany  the
National  Socialist  domination was  accepted  as  legal,  even
though it gnawed out the substance and in the end destroyed the
basic foundations of the Weimar democracy.  After the war, this
legalistic conception of political legitimacy made it  possible
for  Klement  Gottwald to "fill up old casks  with  new  wine".
Then  in  1948  he  was  able,  by  the  formal  observance  of
constitutional procedures, to "legitimate" the February Putsch.
In  the  face  of injustice, the principle that  "law  is  law"
revealed  itself to be powerless.  Consciousness  of  the  fact
that injustice is still injustice, even though it is wrapped in
the  cloak  of  law,  was  reflected  in  the  post-war  German
Constitution  and, at the present time, in the Constitution  of
the Czech Republic.

    Our  new  Constitution is not founded  on  neutrality  with
regard  to  values,  it  is not simply a  mere  demarcation  of
institutions  and  processes, rather it incorporates  into  its
text  also certain governing ideas, expressing the fundamental,
inviolable   values  of  a  democratic  society.    The   Czech
Constitution accepts and respects the principle of legality  as
a  part  of the overall basic conception of a law-based  state;
positive  law  does  not, however, bind  it  merely  to  formal
legality,  rather the interpretation and application  of  legal
norms  are  subordinated to their substantive purpose,  law  is
qualified  by  respect  for  the  basic  enacted  values  of  a
democratic society and also measures the application  of  legal
norms  by  these values.  This means that even while  there  is
continuity  of  "old laws" there is a discontinuity  in  values
from the "old regime".

    This  conception  of the constitutional state  rejects  the
formal-rational legitimacy of a regime and the formal law-based
state.   Whatever the laws of a state are, in a state which  is
designated  as democratic and which proclaims the principle  of
the  sovereignty  of  the  people,  no  regime  other  than   a
democratic regime may be considered to be legitimate.  Any sort
of  monopoly  on  power,  in  and  of  itself,  rules  out  the
possibility  of democratic legitimacy.  The starting  point  of
our  Constitution  is  the substantive-rational  conception  of
legitimacy  and the law-based state.  In the overall  structure
of  a  democratic  constitutional state and  of  a  functioning
democracy,  legality  mutatis mutandis undoubtedly  embodies  a
part  of  the legitimacy of the regime, however, these concepts
are  not  quite interchangeable.  In a regime, in which  hardly
anybody was unaware that the elections were not elections, that
the parties were not parties, that democracy was not democracy,
and  that the law was not law [at least not in the sense  of  a
law-based  state,  since  the  application  of  the   law   was
politically  schizophrenic and everywhere  discarded  when  the
interests of those governing entered into the picture], in such
a  regime  it  is even less possible to reduce the  concept  of
legitimacy  to  that of the formal legality of normative  legal
regulation.

    A  political regime is legitimate if, on the whole,  it  is
accepted by the majority of citizens.  Political regimes  which
lack  democratic  substance  avoid empirical  verifications  of
legitimacy  in  favor of ideological arguments, primarily  from
the  perspective of formal-rational legality.  In this they are
facilitated by the fact that consolidated governmental power is
not  just  a fact of political power, but at the same  time  of
legally  organized power.  However, it is precisely in  such  a
regime  that  politics most differs from law and legality  from
legitimacy.   For this reason, not even the continuity  of  law
signifies  recognition  of  the  legitimacy  of  the  communist
regime.   It cannot be asserted that every act or all  conduct,
so  long  as it does not cross over the line given by  law,  is
legitimate, because, in this way, legality becomes a convenient
substitute for an absent legitimacy.

    The  legitimacy  of a political regime cannot  rest  solely
upon  the  formal  legal  component  because  the  values   and
principles  upon  which a regime is built are  not  just  of  a
legal,  but  first  of  all  of  a  political  nature.    Those
principles  of the Czech Constitution, such as the  sovereignty
of  the  people,  representative democracy, and  the  law-based
state, are principles of the political organization of society,
which  are  not entirely normatively definable.   Positive  law
proceeds from them, however normative regulation does not  make
up the full contents of these principles - something apart from
it remains.

    For   these  reasons,  on  the  basis  of  the  substantive
rational   starting  point  of  the  Czech  Constitution,   the
petitioners notion, that the political regime during the  years
from  1948  to  1989  was legitimate, must  be  rejected.   The
phrasing of § 2 para. 1 of the contested statute concerning the
illegitimate  nature  of  that  regime  cannot  be   considered
"unconstitutional".

    The  petitioners' introductory assertion (point  2.1)  that
"Czech law is based on the sovereignty of law" is the point  of
departure for their formal, legalistic arguments.  For that  is
substituted  a  higher principle, namely the principle  of  the
sovereignty  of  the  people, who are  the  bearers  of  supra-
governmental power, constitutive power, whereas enacted law  is
the  product  of  an  already constituted and institutionalized
internal  state  power. Within the concept of a  constitutional
state,  there  are no longer sovereign powers, there  are  only
competencies.  Czech law  is not founded on the sovereignty  of
enacted  law.  The precedence of higher legal acts  over  legal
norms of a lower order does not signify their sovereignty.   It
is not possible to speak of the sovereignty of enacted law, not
even  in the sense of the scope of the legislative power within
the  bounds  of a constitutional state.  Within the concept  of
the constitutional state, upon which the Czech Constitution  is
based,  law  and  justice are not subjects for  the  unfettered
discretion of the legislators, not even subjects for a law, for
the  legislators  are bound by certain basic values  which  the
Constitution declares to be inviolable.  For example, the Czech
Constitution  provides in Article 9, para. 2 that "any  changes
in  the  essential requirements for a democratic state governed
by  the rule of law are impermissible."  Thus, in the framework
of   this  Constitution,  the  constitutive  principles  of   a
democratic society are placed beyond the legislative power  and
are thus ultra vires of the Parliament.  A constitutional state
stands  or falls by these principles.  To do away with  any  of
these principles, by whatever means carried out, whether  by  a
majority or an entirely unanimous decision of Parliament, could
not  be  otherwise interpreted than as the elimination of  this
constitutional state as such.

B.

    Objections to § 5 of Act No. 198/1993 Sb.

    The main object of the group of Deputies' criticism is §  5
of Act No. 198/1993 Sb., according to which "the period of time
from  25  February  1948 until 29 December 1989  shall  not  be
counted as part of the limitation period for criminal acts  if,
due to political reasons incompatible with the basic principles
of  the  legal order of a democratic state, [a person] was  not
finally and validly convicted or the charges [against him] were
dismissed."

    According  to the petitioners' view " . . . the  fact  that
state bodies, which no longer exist and formerly had competence
over  criminal matters, were, for whatever reason, inactive  or
ineffectual   and  brought  on  the  termination  of   criminal
liability for certain acts by virtue of the expiration  of  the
limitations  period,  was not and is not  a  component  of  the
subjective element [the mens rea or culpability requirement] of
a  criminal  act, came about independently of the will  of  the
offender, and therefore may not operate to his detriment."

    Thus, the Constitutional Court is concerned, first of  all,
with  the  question,  for what reason the  "formerly  competent
state bodies [were] inactive or ineffectual", and further  with
the   question  whether  the  reasons  for  their  failure   to
criminally  prosecute politically shielded offenses,  by  their
significance, their extent, and their consequences to  society,
justify the measures in § 5 of Act No. 198/1993 Sb.

    At  the  same time, the Constitutional Court proceeds  from
the  recognition  that  the constitutional  law  texts  of  the
communist regime merely formulated a principle of legality that
was  general  and equally applicable to all (or  the  so-called
socialist  legality).  As early as the Constitution  of  9  May
(No.  150/1948  Sb.), the duty to uphold the  constitution  and
laws  (§ 30) was imposed on every citizen regardless of  office
or   official   position.   Then  even   more   markedly,   the
Constitution from 1960 (No. 100/1960 Sb., as later amended), in
its  Article 17 para. 1, imposed upon citizens, as well as upon
state  and  societal organizations, the observance of legality;
in  Article 34 it provided that citizens are obliged to  uphold
the  constitution  and laws; Article 104  placed  the  duty  to
supervise  the observance of the laws upon the offices  of  the
procurator; and Article 106a required the submission of reports
on the state of socialist legality.

    However,  these  legal  norms became fictional  and  hollow
whenever the party recognized such to be advantageous  for  its
political   interests.    Its   monopoly   on   political   and
governmental   power   and  the  bureaucratically   centralized
organization  of  them  were  constructed  upon   this   simple
expedient, and they resulted, never from the division, but from
the   concentration  of  power  and  from  firmly  linking  the
political and governmental bodies, as well as from the lack  of
basic  democratic relations in society.  The anchoring  of  the
Communist Party's leading role in society and state (in Article
4  of  the  1960  Constitution) was not the cause,  rather  the
resulting  manifestation,  of  the  realities  which  had  much
earlier led to the strengthening of this power monopoly.

    According  to a commentary on the Czechoslovak Constitution
published in Prague in 1988 (under the principal editing of St.
Zdobinske),  in addition to using direct political action,  the
Communist Party of Czechoslovakia also accomplished its leading
role,  in  particular, "by means of state  bodies,  principally
legislative    committees,    national    committees,     state
administrative bodies, courts, and the procurator"  (page  68).
The  authorities in charge of the protection of  legality  thus
became instruments of the central monopoly power.

    In  the  period from 1948 to 1989, the regime of illegality
that went unprosecuted attained a massive scope:  starting with
the   purges  in  1948,  through  the  illegal  way  in   which
agriculture was collectivized, the transfer of 77,500 employees
of  administrative bodies to manufacturing work  in  1951,  the
arrests  and  executions in the context of the so-called  fight
against agents of imperialism, to the preparations for invasion
of  the  Warsaw  Pact armies, the illegality of  the  so-called
normalization  process,  and the firings  and  prosecutions  of
political dissidents on a massive scale.

    Documents  from  that period show not only  the  amount  of
instances in which political and governmental bodies and  their
agents violated in a gross fashion the laws then in force,  but
also  several  of  the means by which it  was  possible.   They
concerned  the  system  of  the  genuine  subjugation  of   all
institutions  and  organizations  in  the  government  to   the
political directives of the governing party and to decisions of
persons  influential in places of power.  Such  decisions  were
not  regulated  either by the Constitution or  by  other  legal
norms:  these decisions were received in the constitutional and
political  hinterland, often only as oral  instructions  or  as
requests communicated by telephone.

    A  onetime  employee of a body of the Central Committee  of
the  Czechoslovak Communist Party (UV KSC), the historian Karel
Kaplan,   who   was   a   member  of  the  party's   commission
investigating matters relating to the political trials  of  the
1950's,  quoted in 1976 in his open letter to Vasil Bilak,  the
testimony  of Ladislav Kopriva, who was the Minister  of  State
Security  in 1950-1951.  When the commission began  to  discuss
the  issue  of  Kopriva's responsibility for mass  arrests  and
illegal  convictions, Karel Kaplan wrote that Kopriva  defended
himself with these words:  "I was just carrying out the  orders
of  the Party.  It is, after all, absolutely clear that I could
not  have arrested ministers and the General Secretary  of  the
Party on my own initiative.  However, if I had not carried  out
this  order,  I  would have been convicted  together  with  the
others."  (letter  published  in Hans-Peter  Riese:   Citizen's
Initiatives  for  Human  Rights,  Europaeische  Verlangsanstalt
1977, page 105).

    It  follows  from  this fact that Act No. 198/1993  Sb.  is
linked to Act No. 480/1991, on the Period of Non-Freedom, which
in  § 1 describes the ongoing and massive way in which legality
was  violated by the communist regime, in these words:  "During
the  period  from  1948 to 1989, the communist regime  violated
human rights as well as its own laws."

    Although  the  Deputies' petition seeking the annulment  of
the  statute regarding the Lawlessness of the Communist  Regime
and  Resistance to It, does not generally dispute that,  during
the  given  period, illegal activities occurred  and  that  the
state  did not prosecute them, even though it knew about  them,
it  is  clear  from the type of arguments they  make  that,  as
regards the extent and implications of these cases, they do not
consider   them   worthy  of  special  attention   or   special
resolution.  Rather, the group of Deputies bases its  arguments
on  juristically worded objections which can be  summarized  as
follows:

    1)  section  five  creates a new legal  impediment  to  the
limitation of actions in the sense meant under § 67 para. 2  of
the  Criminal Code.  By excluding the period from  25  February
1948  until 29 December 1989 from the running of the limitation
period,  it considerably extends the limitation period, leading
to  the  destabilization  of  rights  and  an  infringement  of
citizens' legal certainty;

    2)  section five infringes a principle of law-based states,
that  criminal liability may not be revived once  it  has  been
extinguished by the expiration of the limitation period, and it
introduces  retroactive  effect  (retroactivity)  of  statutes,
otherwise  permissible only in instances where  the  subsequent
statute  is more favorable to the offender.  According  to  the
petitioners, this situation violates Article 40 para. 6 of  the
Charter  of Fundamental Rights and Basic Freedoms, as  well  as
the Czech Republic's international legal obligations;

    3)    alongside    the   preceding    argument    on    the
unconstitutionality of retroactivity, the petition also  raises
its incompatibility with Article1 of the Charter concerning the
equality of all persons before the law and Article 40  para.  6
of the Charter, according to which the criminal liability of an
act  should be judged in accordance with the laws in force when
the act was committed.

         Ad B/1


    The  introduction of new legal impediments to  the  running
of  the statutory period limiting the right to bring a criminal
prosecution  is not, in and of itself, unconstitutional,  which
means  that  the Constitutional Court would not be required  to
deal  with  the matter at all.  However, this claim relates  to
issues  which  affect  the evaluation of the  other  objections
raised against § 5 of Act No. 198/1993 Sb., so that we can  not
pass over it.

    Act  No.  198/1993 Sb. itself does not alter the regulation
of   the   legal  institute  of  the  limitation  of   criminal
prosecutions.   According to § 67 para. 2 of the Criminal  Code
No. 140/1961 Sb., as subsequently amended, periods of time when
it  was not possible to bring an offender before a court due to
legal  impediments, as well as periods when he remained abroad,
are not counted as part of the limitation period.  Nor does the
length of the limitation period set down in § 67 para. 1 of the
Criminal Code change:  it is 20 years when the act permits  the
imposition of an exceptional punishment, ten years if the upper
limit of the sentencing scale is likewise ten years, five years
if  the  punishment could be as long as three years, and  three
years for other criminal acts.

    Section  five of Act No. 198/1993 Sb. neither modifies  the
scale  of  the limitation period nor creates any further  (new)
legal  impediments  to  the running of  the  limitation  period
beyond  those  which,  on the basis of §  67  para.  2  of  the
Criminal Code, already exist (a procedural exemption under  the
Code of Criminal Procedure, in particular an exemption from the
jurisdiction of bodies active in criminal proceedings  under  §
10 of the Code of Criminal Procedure).

    According  to its sense, § 5 of Act No. 198/1993  Sb.  does
not  establish  a  new impediment, rather, for  criminal  acts,
which  on  political grounds were not prosecuted by the  regime
then in power, it declares the period of time during which  the
limitation  period was not able to run, even though  it  should
have run.  Therefore, in assessing § 5 of Act No. 198/1993 Sb.,
we are not concerned either generally with the institute of the
limitation  of actions as such, or with the introduction  of  a
new  statutory  impediment  to the running  of  the  limitation
period, rather with the question whether the institute  of  the
limitation of actions should be viewed as real or as  fictional
for  a  period when the infringement of legality in the  entire
sphere  of legal life became a component of the politically  as
well as governmentally protected regime of illegality.  Section
five  of Act 198/1993 Sb. is not a constitutive norm, rather  a
declaratory  norm.  It is merely a declaration  that  during  a
certain stretch of time and for certain types of criminal  acts
the  limitation  period was not able to run,  as  well  as  the
reasons  therefor.   It is well-known that,  apart  from  those
areas  of  societal and individual life where the  legal  order
from 1948 to 1989 retained a certain real significance and  was
based on legality, there were also spheres of the ruling class'
political  interest in which a condition of  legal  uncertainty
existed  and  which  the  regime maintained  as  a  measure  of
preventive   self-defense  and  as  an   instrument   for   the
manipulation of society.

    The   criminal   behavior  of  persons  in  political   and
governmental positions, inspired or tolerated by the  political
and  governmental leadership, was a component of this  peculiar
regime  when,  in  consideration  of  its  actual  or  supposed
interests, the governing class found it expedient to contravene
even  its  own  laws.   The group of Deputies  is  not  at  all
credible  in  its  arguments  that the  limitation  period  was
running  during that era even for this category of governmental
and  political criminal behavior, that carried out entirely  by
the  state.   Political power founded on  violence  should,  in
principle,  take  care  not to rid  itself  of  those  who  are
carrying  out  its violence.  The state became  much  rather  a
guarantor   of  their  non-sanctionability  and  their   actual
criminal  law  immunity.  Naturally, this impediment  to  their
criminal  prosecution could not be expressed  publicly  in  the
form  of positive law.  This impediment was the consequence  of
the  poor condition of legality in this country, later even the
elevation to a constitutional principle of the leading role  of
the  KSC  in  the state and society, but especially the  direct
result of the illegal practices of those in power, who, to  the
extent  of  their  interests, guaranteed in  advance  that  the
offender would be legibus absolutus [legally absolved].

    An   indispensable  component  of  the   concept   of   the
limitation of the right to bring a criminal prosecution is  the
intention, efforts, and readiness on the part of the  state  to
prosecute  a  criminal act.  Without these  prerequisites,  the
content of the concept is not complete, nor can the purpose  of
this  legal  institute be fulfilled.  That can  occur  only  if
there  has  been a long-term interaction of two elements:   the
intention  and the efforts of the state to punish  an  offender
and the ongoing danger to the offender that he may be punished,
both  giving a real meaning to the institute of the  limitation
of  actions.   If the state does not want to prosecute  certain
criminal  acts  or  certain offenders, then the  limitation  of
actions  is  pointless:   in such cases,  the  running  of  the
limitation  period  does  not take place  in  reality  and  the
limitation  of  actions,  in  and  of  itself,  is  fictitious.
Written  law  is deprived of the possibility of being  applied.
In  order for a criminal act to become statute-barred, it would
be  necessary  for the process involved in the running  of  the
limitation period to proceed, that is, a period of time  during
which  the  state  makes  efforts to criminally  prosecute  the
offender is necessary.  An action is barred at the end  of  the
limitation  period only if at that time the ongoing efforts  of
the  state to prosecute a criminal act have been in vain.  This
prerequisite  cannot  be  met for the category  of  politically
protected  offenses  from 1948 until 1989.   The  condition  of
mass,   state-protected   illegal  activities   was   not   the
consequence  of  individual  errors,  blunders,  negligence  or
misdeeds,  which  would  have left open  some  possibility  for
criminal  prosecution,  rather it was the  consequence  of  the
purposeful and collective behavior of the political  and  state
authorities as a whole, which ruled out criminal prosecution in
advance.  By these means, the protection of offenders became as
universal as the system of power.

    Therefore,  we cannot agree with the petitioners'  position
that  an  a  priori  awareness  of the  non-prosecutability  of
certain  offenses was not a part of the subjective  element  of
these criminal acts and that this "quasi-limitation of actions"
ran independently of the intent of the offender.  The situation
is  different  for offenders under the political protection  of
the  state.   Their criminal act was de facto "statute-barred",
even  before it was committed.  This fact sometimes  functioned
precisely  as  an  incentive to additional criminal  acts.   To
understand  the period of time which passed from the commission
of  their criminal acts as the running of a "limitation period"
which  was not permitted to run, would mean a quite paradoxical
interpretation  of  a  law-based  state.   That  would  be  the
validation  of  the  type  of  "legal  certainty"   which   the
perpetrators of such criminal acts already had when they  began
their  activities and which consists of state assured  immunity
from criminal liability.

    This  "legal certainty" of offenders is, however, a  source
of  legal  uncertainty  to citizens (and  vice  versa).   In  a
contest  of  these  two types of certainty, the  Constitutional
Court  gives priority to the certainty of civil society,  which
is  in  keeping with the idea of a law-based state.  Some other
solution would mean conferring upon a totalitarian dictatorship
a  stamp  of approval as a law-based state, a dangerous portent
for  the future, a sign that crime may become non-criminal,  so
long as it is organized on a massive scale and carried out over
a  long  period of time under the protection of an organization
so  empowered  by  the  state.  That would  mean  the  loss  of
credibility  of  the present law-based state, as  well  as  the
current  infringement of Article 9 para. 3 of the  Constitution
of  the Czech Republic " . . legal norms may not be interpreted
so  as  to  authorize anyone to do away with or jeopardize  the
democratic foundations the state."

    It  cannot  be  considered reasonable to make  a  claim  to
legal  certainty  of  this sort, not even from  the  subjective
perspective  of  an offender.  A requirement  for  a  law-based
state  is the maintenance of a state of trust in the durability
of  legal  rules.   The perpetrators of this type  of  criminal
activity  do  not have the continuity of written law  in  mind,
rather   that   of  unwritten  practices.   It  would   be   an
infringement  of  the  continuity  of  written  law,   if   the
violations of law which were committed under the protection  of
the state could not even now be criminally prosecuted.

    All  of  these  individual points of view gain significance
in  direct proportion to the considerable extent to which  this
form   of  state  protected  or  tolerated  political  criminal
behavior was committed.  In forced labor camps and in  the  so-
called  auxiliary  technical  battalions  alone,  over  200,000
persons  were  held during this period of time.  As  is  known,
nearly  a  quarter  of  a  million persons  have  already  been
rehabilitated  on  the  basis  of  the  statute   on   judicial
rehabilitation.

    Although  we  take into consideration that in many  of  the
cases  it  may  only  have been a matter  of  the  unreasonable
harshness of the criminal law regime then in force, or  "strict
law",  in  many  of  these cases of rehabilitation,  the  power
apparatus'  violation  of  its  own  legal  principles  was  an
important, if not the principal, factor.


         Ad B/2


    One  of the principal objections to the provisions of  §  5
of  Act  No.  198/1993 Sb., concerning the Lawlessness  of  the
Communist Regime and Resistance to It, makes reference  to  its
inconsistency  with  Article 40  para.  6  of  the  Charter  of
Fundamental  Rights  and Basic Freedoms.  The  petitioners  are
working from the assumption that the criminal acts with which §
5  of Act No. 198/1993 Sb. are concerned, are for the most part
statute-barred.   In  the view of the petitioners,  these  acts
were  no  longer subject to punishment, yet, in spite of  that,
they  should  once again become, with retroactive  effect,  the
potential  objects of criminal prosecution.  In their  opinion,
this   outcome   is  inconsistent  with  the   prohibition   of
retroactivity in criminal law, expressed in Article 40 para.  6
of  the Charter of Fundamental Rights and Basic Freedoms.  They
contend  that  any criminal liability which is extinguished  by
the  expiration of the limitation period may not be revived and
that,  by  means  of a subsequent law, it is only  possible  to
decriminalize an act or to abolish fines, as well as to reduce,
but  never to extend, the period of limitations.  They  further
assert  that  to  introduce a new definition  of  the  material
elements of a criminal act or to set a higher sentence rate  or
more severe conditions for criminal liability, including making
certain  criminal acts not subject to the statute of limitation
or  introducing  new legal impediments to the  running  of  the
limitation period, is permissible only prospectively.

    The  petitioners  come to their conclusions  regarding  the
retroactive effect of a statute in the case of § 5 of  Act  No.
198/1993  Sb. on the basis of the substantive law understanding
of  the  institute of the limitation of criminal  prosecutions,
although  not  even in criminal law doctrine  has  the  ongoing
dispute between the proponents of the substantive nature of the
institute  of  the limitation of actions and the proponents  of
its procedural nature been resolved.

    For  this reason, it is necessary to assess to what  extent
the  provisions  of  Article  40 para.  6  of  the  Charter  of
Fundamental  Rights and Basic Freedoms or  Article  15  of  the
International  Convention on Civil and  Political  Rights  (No.
120/1976 Sb.) prevents a subsequent amendment to the procedural
rules, making possible the subsequent running of the limitation
period  in those special cases when the prior political  regime
prevented it from running.

    Under   Article  40  para.  6  of  the  Charter,   criminal
liability for an act should be judged and punishment imposed in
accordance with the laws in effect when the act took place.   A
subsequent statute shall be applied if it is more favorable  to
the offender.  Article 15 of the Convention is worded according
to  the  same sense and, in addition, para. 2 makes it possible
to  punish  acts in accordance with "the general principles  of
law recognized by the community of nations."

    Article  40  para.  6 of the Charter of Fundamental  Rights
and Basic Freedoms defines and restricts the prohibition on the
retroactive effect of statutes in two respects, namely:

  a)  if a "criminal act" is concerned, or

 b)  if the "imposition of punishment" is concerned.

    According  to  Czech  criminal  law  theory,  the  criminal
nature  of an act is understood to mean the possibility  to  be
prosecuted for a criminal act, found guilty of it, and punished
for  it.  The basis for criminal responsibility is the criminal
act, which is defined by means of a precise description of  its
characteristics  and  also  by  what  is  referred  to  as  its
objective characteristics, namely, by the danger the act  poses
for  society.   It  is the expression of the  principle  nullum
crimen  sine lege [no crime without law] or sine culpa [without
fault].

    With  regard to the "imposition of punishment", Article  40
para.  6  of  the  Charter  takes as  its  starting  point  the
terminology  of  criminal law, contained in the  Criminal  Code
from  29  November 1961, No. 140 Sb., as subsequently  amended,
especially  that  in the second division:  "General  Principles
for  the Imposition of Punishment" (§ 31 and following  of  the
Criminal Code).  The imposition of punishment is understood  to
mean the determination of the type of punishment as well as the
term of imprisonment. for those types of punishments which have
gradations.   Therein is expressed the criminal law  principle,
nulla poena sine lege [no punishment without law].  Article  40
para.  6  of  the  Charter  manifestly  does  not  permit   the
retroactivity of a statute where the definition of  criminality
or the severity of punishment is concerned.

    The  Charter is not made up of norms of criminal  law,  but
of  certain principles, which are drawn from various  areas  of
law  and  which are considered as fundamental, thus  worthy  of
increased  legal  protection.  Nothing  more  was  intended  by
Article  40  para.  6  than  what is stated,  namely  that  the
definition  of  individual criminal acts and of their  criminal
nature,  which  is  effected under the  Criminal  Code  by  the
designation of their specific characteristic features  and  the
degree of danger which the individual acts pose to society;  it
may  not  be  ex  post, an amendment to the  detriment  of  the
offender adopted subsequently to the commission of an act.  The
same  requirements also apply to the definition and the setting
of  the  length of punishment.  The second sentence of para.  6
defines  the  prohibition of the retroactivity of law  only  in
this  sense and to this extent (compare the text, "a subsequent
law shall be applied . . .").

    Neither  in  the  Czech Republic nor  in  other  democratic
states  does  the  issue of the procedural requirements  for  a
criminal prosecution in general, and that of the limitation  of
actions  in  particular, rank among the  principal  fundamental
rights  and  basic  freedoms which,  under  Article  3  of  the
Constitution  (which  takes the place of  the  chapter  usually
found  in  other constitutions on fundamental rights and  basic
freedoms) form a part of the constitutional order of the  Czech
Republic.

    The   argument  that  the  limitation  of  actions  is   an
institute  of  substantive  criminal  law  is  not  crucial  to
judgment  in  this matter, not only due to the  fact  that  the
issue is an ongoing subject of dispute in criminal law doctrine
and  that  in several other democratic states it is considered,
for the most part, as a procedural law institute, but first and
foremost due to the fact that neither the Constitution nor  the
Charter  of  Fundamental (and not of other)  Rights  and  Basic
Freedoms resolve detailed issues of criminal law, but set down,
in   the   first  place,  uncontested  and  basic  constitutive
principles of the state and of law.  Article 40 para. 6 of  the
Charter of Fundamental Rights and Basic Freedoms deals with the
issue  of  which criminal acts may in principle  be  prosecuted
(namely those which were defined by law at the time the act was
committed) and does not govern the issue of for how long  these
acts may be prosecuted.

    As  a  consequence,  the regulations on the  limitation  of
actions  and on the limitation period, especially those setting
the period during which an act which is declared to be criminal
may  be prosecuted, cannot be understood to be an area governed
by Article 40, para. 6 of the Charter.  Neither does Article 39
of the Charter speak in favor of the petitioners.  According to
Article  39  of  the  Charter, only by law is  it  possible  to
designate "which conduct constitutes a criminal act" and  "what
sort of punishment, as well as what sort of other detriment  to
rights  or property, can be imposed for committing them."   The
procedural requirements for prosecution are not the subject  of
this reservation.

    From  among  the European judicature, we can refer  to  the
same  point of view of the Federal Constitutional Court of  the
FRG,   which  in  1969  ruled  that  the  prohibition  on   the
retroactivity  of  statutes did not apply  to  the  statute  of
limitations:  the subsequent designation of criminality or of a
higher possible punishment fall under this prohibition, but not
the  limitation of actions, governing the period of time during
which an act which is declared to be criminal may be prosecuted
and  leaving the criminality of an act unaffected. (Volume  25,
page 269 and following, Collection of Decisions).  X 1)

    X 1)
    The   statute  of  March  1993  on  the  "tolling"  of  the
limitation  period  for  the unlawful  acts  of  the  SED  [the
Socialist Unity Party of East Germany] proceeds from  the  same
point  of view.  Under this statute, in calculating the  period
of limitation for the prosecution of acts which were committted
during  the rule of the unlawful regime of the SED and  on  the
basis  of the explicit or presumed wishes of the state or party
leadership of the former GDR [German Democratic Republic],  the
period  from 11 October 1949 until 2 October 1990 shall not  be
counted if such acts were not prosecuted on political or  other
grounds incompatible with the free order of a law-based  state.
Thus,  a criminal prosecution may be instituted for acts  which
were  already  "statute-barred" before then.  Later,  a  second
statute  regulated more precisely the running of the limitation
period and excluded the criminal prosecution of acts which were
statute-barred by a later deadline of 27 September 1993.]


         Ad B/3

    The  group  of  Deputies also detect in  §  5  of  Act  No.
198/1993  Sb.  a  violation of Article  1  of  the  Charter  of
Fundamental  Rights and Basic Freedoms concerning the  equality
of  all  persons  before the law because, as  they  assert,  it
involves discrimination against one segment of the citizenry in
that those who were not put on trial for reasons that were  not
political  will  still enjoy the right not  to  be  prosecuted,
while  this  right  is denied others, if for political  reasons
they  were  not  convicted  or the charges  against  them  were
dropped.

    Equality  before the law must always be judged in  relation
to  the  nature of the matter at issue.  When assessing matters
that  are  apparently, or even only in certain formal respects,
identical,  legislators  must make efforts  that  they  do  not
contradict  the  ideas  of  justice and  reasonableness,  which
belong  among the conceptual requirements of a law-based state,
of   the   fundamental   principles   of   the   constitutional
establishment  of  the  Czech  Republic  (Article  1   of   the
Constitution of the Czech Republic).  In the case of § 5 of Act
No.  198/1993 Sb., it seems reasonable and just to  extend  the
possibility  of  criminal prosecution for those  criminal  acts
which, by the will of the political and state leadership,  were
earlier  exempted from that possibility.  Contrary to what  the
Deputies'  contend, this is the way to rectify their inequality
with  those who had already faced the possibility of being  put
on  trial  because,  not  only  were  they  not  under  special
political  protection, but it was the state's wish and  in  its
interest  to  prosecute them for the criminal acts  which  they
committed.

    Even  under  the  law then in force, the principle  of  the
equality  of  citizens  before  the  law  required  a   general
investigation  of  criminal  acts and  a  consistent  and  just
application of the criminal law without regard to the  identity
of the offender.

    With  regard  to the principle of the equality of  citizens
before  the law, § 5 of Act No. 198/1993 Sb. does not establish
any  special or extraordinary criminal law regime:   Section  5
does not permit the principle of collective guilt or collective
responsibility,  nor  does  it  alter  the  principle  of   the
presumption   of   innocence  or   the   prohibition   of   the
retroactivity   of   statutes,  which   means   that   criminal
prosecution  is only possible for acts which were  criminal  at
the  time of their commission, and only on the basis of the law
then  in  force, unless a subsequent statute is more  favorable
for  the  offender.  Section 5 of Act No. 198/1993  Sb.  merely
alters  the  period of time during which a criminal prosecution
may  take  place  and defines only a certain category  of  such
criminal  acts for which this may be done, meaning  those  that
the  principle of the equality of citizens before the law makes
necessary  in  order  for a law-based  state  to  maintain  its
credibility.

    It follows from the definition of the criminal acts in §  5
of  Act No. 198/1993 Sb. that criminal prosecution on the basis
of this provision is ruled out:

      1.  in the case of criminal acts the period of limitation
for which has already expired since the start of the limitation
period, that is since 30 December 1989;

      2.  in the case of criminal acts, in respect of which the
former regime, as an exception, considered it expedient to show
an  effort to punish violations of legality by its agents;  for
these   exceptional   cases,  the  internationally   recognized
principle ne bis in idem applies, even if the final judgment of
the former regime was extraordinarily lenient;

      3. in the case of criminal acts which did not result in a
final, valid conviction or where the charges were dropped,  not
on  political grounds incompatible with the basic principles of
a  law-based state, but on grounds other than exactly political
ones.

    From  the  perspective of the equality of  citizens  before
the  law, comparability of treatment is maintained even in  the
respect  that similarly to other, earlier punishable,  criminal
acts,  it  can  be presumed that in this category  of  previous
criminal  acts,  for which the limitation period  has  had  the
chance  to run only afterwards, far from all of these  criminal
acts  will  be  tracked down, discovered, and proven,  so  that
obviously  only a small percent of this category of  crimes  is
concerned.  In reality, this category of criminal acts  is  not
at  all  less  favorably treated; it has  actually  enjoyed  an
advantage because the punishment of these acts has become  more
difficult due to the additional time, a long period, which  has
passed  since  the  commission of  the  act,  as  well  as  the
offenders' interest in the speedy removal of evidence  and  the
difficulty of proving things after a long time interval.

    It  is likewise necessary to carefully consider that,  even
from the perspective of the law in effect at the time this type
of  criminal behavior was done, the failure to prosecute  these
criminal  acts  was  also in conflict  with  the  principle  of
equality contained in the constitution at that time, as well as
with  the definition of principles in the criminal law  of  the
time,  and,  not  the least, with the then valid constitutional
duty  of "strict maintenance of socialist legality".  From this
perspective, § 5 of Act No. 198/1993 Sb. only makes up for this
deficiency in constitutionalism and legality and for this  lack
of equality of citizens.


                             C.

         Objections to §§ 6 and 8 of Act No. 198/1993 Sb.

    1.   §  6  of  Act  No.  198/1993  Sb.  creates  a  special
regulatory  scheme  for the reconsideration  of  criminal  acts
which  had  resulted  in a conviction  and  to  which  Act  No.
119/1990 Sb., on Judicial Rehabilitations, does not apply.   If
it  is proven in the proceeding that the sanctioned action  was
an effort to protect basic human and civil rights and freedoms,
and  not  by  disproportionate means, upon petition  the  court
shall quash or mitigate the sentence already imposed.

    In  the  reasoning of its petition, the group  of  Deputies
makes   the   objection   that  this  legislative   scheme   is
discriminatory and contravenes the constitutional principle  of
the  equality of all persons before the law, as well as Article
40  para.  6  of  the Charter of Fundamental Rights  and  Basic
Freedoms, which requires that criminal liability for an act  be
judged and punishment be imposed in accordance with the law  in
effect when the act was committed.

    The  reasons  which  led  the  legislators  to  adopt  this
legislative  scheme evidently consist in the fact  that,  under
the  earlier regime, those criminal acts for which the offender
had  a demonstrable motive of protecting the fundamental rights
and  basic  freedoms of humans and citizens were  adjudged,  in
addition, to be political offenses, and such persons were found
guilty  of  creating  an unusually high  degree  of  danger  to
society.   Since  they were interpreted more or  less  as  acts
hostile   to  the  political  regime  as  such,  an   excessive
punishment    was    attached   to   them.    Therefore,    the
reconsideration  of  these sentences, which  might  come  about
under  §  6  of  Act  No. 198/1993 Sb., is  not  aimed  at  the
infringement  of, rather at the resulting restoration  of,  the
principle  of civil equality by reasonably mitigating  or  even
quashing such sentences.

    It  remains to be seen whether this subsequently  resulting
legislative  scheme conflicts with Article 40 para.  6  of  the
Charter  of  Fundamental  Rights  and  Basic  Freedoms,   which
requires  that  criminal liability for an  act  be  judged  and
punishment be imposed in accordance with the law in effect when
the  act  was  committed.  However, the  prohibition  upon  the
retroactive  effect  of statutes under the  first  sentence  of
Article  40 para. 6 of the Charter is not even applicable  here
because  the  second sentence of Article  40  para.  6  of  the
Charter  permits retroactive statutes so long as they are  more
favorable to the offender.  Considering the wording of §  6  of
Act  No  198/1993  Sb.  ("Upon request a  court  may  quash  or
mitigate a sentence"), this condition is met.

    2.  The Deputies' final objection is directed at § 8 of Act
No.  198/1993 Sb. and states that the Parliament's grant to the
government  of  the  authority "to rectify  certain  injustices
committed against opponents of the communist regime and against
persons who were injured thereby socially, in their health,  or
financially"  is  too  broad  and indefinite.   They  make  the
argument  that,  in  this case, there is no definition  of  the
injustices to which the rehabilitation statute does not  apply,
no  delimitation of the types or the extent of  the  claims  of
authorized  persons,  no  provision for  the  manner  of  their
assertion,  nor  a designation of the organ which  should  make
decisions  about  claims  and  implement  them.   The  petition
asserts  that,  in  this respect, § 8 of Act No.  198/1993  Sb.
conflicts  with  Article  78 and  Article  2  para.  3  of  the
Constitution of the Czech Republic, and that the provisions  of
Article 2 (that state authority may be exercised only in cases,
within  the  limits,  and in the manner provided  for  by  law)
applies  also  to  the  issuance  of  government  orders.   The
petitioners then deduced from the wording of Articles 90 and 95
that, when granting protection of rights and in the process  of
decisionmaking concerning them, courts are to be  bound  solely
by statute.

    Even reading this argument in conjunction with the text  of
Articles  90  and 95 of the Constitution does not lead  to  the
conclusion  that in protecting rights under Article 90,  courts
are  bound  by statutes alone.  Article 90 merely  states  that
courts  shall  protect rights in the manner  provided  by  law.
Therefore, it concerns the methods and means by which  a  court
protects rights, it does not release courts from their duty  to
apply the law when other types of legal norms are involved.  In
addition  to  statutes, there are other types  of  legal  norms
which are generally binding, hence they bind courts as well.  A
court  should apply a subsidiary legal norm unless it comes  to
the  conclusion that the norm does not conform  to  a  statute.
The  text  of  Article  95,  para.  1  lends  support  to  this
conclusion  where  it  states  that  judges  are  empowered  to
consider  whether  other  types of legal  norms  conform  to  a
statute.

    In  the petitioners' view, the government may carry out the
goals contained in an authorizing statute only on the basis  of
that  statutory authorization and may not exceed the limits  of
that statute.

    In  contemporary parliamentary systems, the extent  of  the
government's  authority  to  create  norms  by  issuing  orders
extends beyond the legislative activities of Parliament.  There
is,  firstly,  the  authority  to issue  orders  independently,
directly  on the basis of the Constitution (Article 78  of  the
Constitution  of the Czech Republic).  In such cases,  for  the
purpose  of implementing statutes, the government is  empowered
to  issue  orders which stay within the limits of the  statute.
The  government is not required to obtain special authorization
from the Parliament in order to do this.

    In  some  democratic states, the constitution also provides
for  a  derivative governmental power to issue  orders  on  the
strength  of a delegation from the parliament.  In such  cases,
the constitutional condition applies that the specification  of
the  scope, whether in terms of subject or of time, of such  an
authorization must be found in the statute itself  and  that  a
mere indefinite, general authorization to the government is not
permissible.   At  the  same time, the task  of  determining  a
reasonable and suitable limit, in terms of subject matter, upon
the  authorization, and to ensure that the government does  not
exceed  the  statutory confines, is primarily the  business  of
Parliament itself.

    There  is  only a single type of governmental  order  under
the  Constitution of the Czech Republic.  It is found alone  in
the provisions of Article 78, which sets merely two substantive
conditions:   for  the  purpose of  implementing  a  particular
statute,  the government may issue a governmental  order  (even
without being authorized by the Parliament) which stays  within
the  limits  of the statute.  No other provisions designate  by
what  means the limits are determined and to what extent.  This
means that such limitations proceed directly from the law which
the  government order implements.  Since even government orders
that  are based on the authorization in § 8 of Act No. 198/1993
Sb.  must  be  assessed in accordance with Article  78  of  the
Constitution  of  the Czech Republic, such an authorization  to
the  government is still permissible from the viewpoint of  the
Constitution, even if it is given in very broad terms.

NOTICE:   On the basis of § 54 of Act 182/1993 Sb., a  decision
of the Constitutional Court may not be appealed.

Brno, 21 December 1993
                                JUDr. Zdenek Kessler
                                Chairman of the Constitutional
                                Court of the Czech Republic