Pl. ÚS 43/93

            On  the Interpretation of the Phrase, „State  Body“
from the Perspective of Criminal Law Protection

     On  the  Interpretation of the Clause, „Decisions  of  the
President of the Republic which Require the Countersignature of
the Prime Minister or a Member of the Government Designated  by
Him“ (Article 63, para. 3 of the Czech Constitution)

     1)   By  employing  the  general and  unambiguous  phrase,
„state  body“  in  §  154 of the Criminal Code,  states  bodies
collectively  and institutionally (as individual  institutions)
are  protected to the extent provided in the definition of  the
material  elements  of  the criminal offense,  then  in  §  156
individual public authorities are so protected as well.
     The  object of protection in § 154 para. 2 and § 156 para.
3  of  the  Criminal Code are not the institutions as such,  in
their  „actualized“  form, but their mission  in  a  democratic
society:   their  activities which  make  for  the  undisturbed
functioning of a constitutional and law-based state.

     2)   Section 102 of the Criminal Code defines the material
elements  of  an  additional  offense  for  acts  which   would
otherwise be subject to prosecution on the basis of § 154 para.
2  and  §  156  para.  3.  This duality and divergence  in  the
legislative formulation leads to an interpretation which  would
remove  the  Parliament, the Government, and the Constitutional
Court  from the ensemble of state bodies, even though they  are
state  bodies,  and give them under § 102 a  superior  form  of
legal  protection, otherwise common only for the protection  of
abstract state symbols.
                   
                   
                        JUDGMENT


    of  the  Plenum of the Constitutional Court  of  the  Czech
Republic  of 12 April 1994, sp. zn. Pl. ÚS 43/93 in the  matter
of  the petition of the President of the Republic proposing the
annulment  of a portion of § 102 of Act No. 140/1961  Sb.,  the
Criminal Code, as amended by Act No. 557/1991 Sb. and  Act  No.
290/1993 Sb. (the judgment was published as No. 91/1994 Sb.).

                   I.  STATEMENT


     That  portion of § 102 of the Criminal Code  No.  140/1961
Sb.,  as  amended by Act No. 557/1991 Sb. and Act No.  290/1993
Sb.,  which consists of the words, „its Parliament, government,
or  Constitutional Court“, shall be annulled on  the  day  this
judgment is published in the Collection of Laws.


                        II.  REASONING


     1.   On  1  December 1993, the President of  the  Republic
submitted to the Constitutional Court a petition proposing  the
annulment  of  the above-mentioned portion  of  §  102  of  the
Criminal  Code,  as  amended by Act  No.  290/1993  Sb.,  which
supplemented and amended the Criminal Code, and Czech  National
Council  Act No. 200/1990 Sb., on Administrative Offenses.   He
based  his petition on § 64 (1)(a) of Act No. 182/1993 Sb.,  on
the Constitutional Court, which authorizes the President of the
Republic to submit a petition proposing the annulment, pursuant
to  Article 87(1)(a) of the Constitution of the Czech Republic,
of a statute or individual provisions thereof.

     As  the  grounds  for his petition, the President  of  the
Republic stated that the criminal offense as defined in  §  102
is  not  in  conformity  with Article  17  of  the  Charter  of
Fundamental  Rights and Basic Freedoms (hereinafter  „Charter“)
because,  on  the one hand, the criminal offense (disparagement
of the Parliament, the government, or the Constitutional Court)
in  its  conception  and  in the definition  set  down  by  the
Criminal Code is not a „necessary measure“ in our society, and,
on  the  other hand, the definition does not state the  grounds
upon  which  citizens’ freedom of expression may be restricted.
In  addition  to this, the petition characterizes the  criminal
offense of the disparagement of state bodies as indefinite  and
open  to varying interpretations.  According to the petitioner,
it does not specify the conduct which a citizen must engage in,
in  respect  of  either form or of substance of the  derogatory
expression  towards the protected institutions.   The  petition
further  concludes  that such imprecise wording  makes  broader
criminal   liability  possible,  which  could   lead   to   the
infringement  of  the  constitutionally guaranteed  freedom  of
expression.

     In  addition,  in  a  letter dated 21  January  1994,  the
President of the Republic passed on to the Constitutional Court
Amnesty International’s opinion of § 102 of the Criminal  Code,
which  it  sent  him in its communication of 18  November  1994
signed  by its General Secretary Hervé Berger.  In its opinion,
Amnesty  International stated that it considers § 102,  in  its
current  form,  to  be inconsistent with the  Czech  Republic’s
international obligations, in particular with Article 10 of the
Convention  for the Protection of Human Rights and  Fundamental
Freedoms.

     Pursuant to the Act on the Constitutional Court, the  body
which issued the act, the annulment of which is sought, is also
a  party  to the proceeding.  Therefore, the Justice Rapporteur
transmitted the President’s petition to the Parliament  of  the
Czech  Republic, requesting it to submit its statement of views
on  the  petition  within the legally-prescribed  period.   The
Chairman of the Assembly of Deputies did so by official letter,
dated  7  January 1994.  The government draft of the  contested
statute  was enclosed with his letter, as was the text  of  the
Joint  Reports on the government drafts from the committees  of
the Assembly of Deputies.  The Joint Reports indicated that the
Constitutional Legal Committee’s proposal to repeal  §  102  of
the Criminal Code had been rejected.

     In  its response of 7 January 1994 to the petition of  the
President,  the Assembly  of Deputies stated that  the  amended
version  of § 102 of the Criminal Code was a reaction  only  to
the   changed  constitutional  conditions  resulting  from  the
division  of  the  Federation and  from  the  adoption  of  the
Constitution of the Czech Republic.  As regards the content  of
the  Assembly of Deputies’ opinion, it states that it considers
the petition proposing the annulment of only a part of § 102 of
the  Criminal Code to be unclear, where it criticizes the act’s
imprecise  wording.   According to the  Assembly  of  Deputies’
opinion,  this imprecision does not refer to that part  of  the
act,  the  constitutionality of which is contested, rather  the
phrase  not  affected  by  the  petition,  „[w]hoever  .  .   .
disparages“.   If  too broad an application of  this  provision
would  result  in  the  infringement  of  the  constitutionally
guaranteed freedom of expression, then the legal system  as  it
stands affords - according to the Assembly of Deputies’ opinion
-   an   array   of   possible   defenses   against   such   an
unconstitutional  act,  including  protection  afforded  by   a
proceeding before the Constitutional Court.

     2.  The Constitutional Court dealt, first of all, with the
issue of the petitioner’s authorization to submit the petition.
It assessed the objections challenging the President’s right to
submit a petition proposing the annulment [under § 64 (1)(a) of
Act No. 182/1993 Sb., on the Constitutional Court] of a statute
or   individual  provisions  thereof  unless  the  petition  is
countersigned  by the Prime Minister or by the  member  of  his
government so authorized, because Article 63, paras. 2 and 3 of
the   Constitution   supposedly  makes  the  Prime   Minister’s
countersignature a condition of the submission of the mentioned
petition.

     After consideration of these objections, the Court came to
the  conclusion  that they are based on an interpretation  that
does  not  conform to the text and meaning of the  Constitution
and  on this point refers to a difference in the wording of the
second  and third paragraphs of Article 63 of the Constitution.
Article  63 para. 2 of the Constitution contains an all-purpose
expression  of (potential) powers, the extent of which  is  not
defined  in  more detail, which may be entrusted by statute  to
the  President  of the Republic.  In contrast to this,  Article
63,  para. 3 of the Constitution sets down the cases  in  which
the  exercise  of  these  powers (entrusted  to  the  President
pursuant to paragraph 2) requires the countersignature  of  the
Prime Minister or a member of the government authorized by him.
Such is not the case generally whenever the President exercises
his  powers  pursuant to Article 63 para. 2, but only  when  he
exercises these powers by means of an issued decision  (Article
63  para. 3 of the Constitution).  This wording places emphasis
upon  the  objective  legal nature  of  such  a  decision:   it
concerns  the  exercise  of  his  powers  for  the  purpose  of
modifying  or  confirming a legal condition (even  if  that  of
particular persons).  „An issued decision“ cannot be understood
as any sort of „decision“ to pursue a certain course of action.
A  petition of the President pursuant to § 64(1)(a) of the  Act
on  the  Constitutional Court is not an issued decision, rather
an  initiative.   By  means  of a petition,  the  President  is
carrying  out  solely his own power, while the power  to  issue
decisions and by that means either to confirm or modify a legal
situation belongs to the Constitutional Court.

     The  Constitutional  Court considered another  reservation
that  cast  doubt upon both the authorization of the petitioner
and  the jurisdiction of the Constitutional Court to decide  on
the  petition.  As is well-known, the Constitution entrusts the
Constitutional   Court  with  the  power  to   make   decisions
concerning   the   unconstitutionality  of  statutes   and   of
individual  provisions  thereof.  Since  the  petition  of  the
President did not contest the unconstitutionality of all  of  §
102  of the Criminal Code, but only a part of it, the objection
was  made  that the petition does not relate to an  „individual
provision“,  but  only  to  a  part  of  one,  and  since   the
Constitution  does  not  provide  anything  concerning   making
decisions  about  fractional parts of individual  „provisions“,
the  objection  was made that the petitioner lacks  the  actual
authorization  to  submit the petition, and the  Constitutional
Court consequently lacks jurisdiction to decide on it.

     This  objection must be rejected as well.  Article  87  of
the  Constitution  cannot be interpreted as creating  a  formal
hierarchy   of  the  law,  distinguishing  sections,  articles,
paragraphs,  etc.   The term „individual provisions“  does  not
represent  merely  the  entirety or a unit  of  a  legal  text,
understood  in the formal sense, rather each part  of  a  legal
text  which,  without  regard to technical form,  „individually
provides  for“, that is, expresses, even if for  individual  or
partial  issues,  a  definite legal condition,  and  which  is,
nevertheless,  a  substantive legal unit with  a  definite  and
clear meaning.

     The protection of specific institutions from disparagement
contained  in  § 102 of the Criminal Code is a legal  provision
containing  the  claim of these institutions  to  criminal  law
protection to the extent provided for in § 102, as well as  the
general  duty to refrain from committing the criminal  offense.
It  is not determinative that the concept of „the Republic“  is
also  protected  in the same section; what is determinative  is
that,  as  regards  content, that  part  of  §  102  which  the
President  requests  be  annulled  is  independently,   legally
definable.   A petitioner cannot be forced to propose  as  well
the  annulment  of those parts of individual  provisions  of  a
statute which he considers to be constitutional and which would
retain their sense even if other parts of the same section were
annulled.

     3.  The Constitutional Court is authorized to deal with  a
case  only to the extent the submitted petition proposes:  thus
it  is  restricted  in  the given case to  a  decision  on  the
contested  portion  of § 102 of the Criminal  Code.   For  this
reason,  it  may not concern itself with the further initiative
by  which  the President petitioned the Parliament to amend  §§
102  and  103 of the same statute.  On the other hand, however,
in  its  assessment of the matter, the Constitutional Court  is
not  restricted merely to the petition itself.  It is the  duty
of  the  Constitutional  Court to  give  consideration  to  all
aspects of the case which might contribute to the clarification
of  the  constitutionality or unconstitutionality  of  a  legal
enactment.

     The  President’s petition criticizes the provisions  of  §
102 in two respects:

    1.  Firstly, it objects to the indefiniteness and the broad
      content of the term „disparagement“, which, according to the
      petition, without a more clearly specified meaning, allows for
      a very fluid interpretation because it is not evident which
      expression or which conduct meets the elements of this criminal
      offense.  That fact could lead to the infringement of the
      constitutionally guaranteed freedom of expression, especially
      where the criticism of protected institutions is concerned.

    2.    The   petition  further  asserts  that   the   phrase
      „disparagement of the Parliament, the government, or  the
      Constitutional Court“ is not in conformity with Article 17 of
      the Charter, according to which the freedom of expression and
      the right to seek and disseminate information may be limited by
      statute  only on the condition that the statute  concerns
      measures that are necessary in a democratic society for the
      protection of the rights and freedoms of others, the security
      of  the state, public security, public health, or morals.
      According to the petition, no reasons, either general nor
      specific ones, have been adduced in connection with § 102 of
      the Criminal Code, explaining the necessity of the measure in
      this respect.




     4.  The objection that the contested parts of § 102 of the
Criminal Code are open to diverse interpretations, which  might
constitute  a  threat  to  the  principle  of  the  freedom  of
expression,  is not, in and of itself, sufficient  grounds  for
annulling these provisions.  The factual condition of  a  legal
norm  being  unconstitutional is not  determined  by  the  mere
possibility   that   the  particular  legal   norm   could   be
misinterpreted, rather it requires an unambiguous determination
that  such a conflict already exists in the text of the statute
or  arises  therefrom, which would come into consideration  if,
from  the  text and meaning of the statute, an unconstitutional
interpretation   is  either  unavoidable  or   can   at   least
realistically  be  assumed, or if, by its nature,  the  statute
inspires such an interpretation.

     The  term „disparagement“ concerns a concept which is  not
an  innovation  in our legal order.  Beginning with  the  Penal
Code  of 1852, it has been continuously applied in Bohemia  and
Moravia:  during the First Republic it was incorporated into  §
14 paras. 5 and 6 of the Act on the Protection of the Republic,
supplemented  by  Act  No.  124/1933  Sb.;  and  it  was  later
incorporated into the Criminal Codes of the 1950’s and  1960’s.
Disparagement was understood as a gross reduction  in  dignity,
and in the contemporary criminal law theory it is understood as
gross  belittlement, abuse or ridicule, as a grosser attack  on
the dignity and honor committed in an outrageous manner.

     In  and  of  itself,  the  term, „disparagement“,  is  not
understood any differently today than in the past.   There  is,
however, a difference which cannot be overlooked, consisting in
the   fact  that  Act  No.  50/1923  Sb.,  employed  the  term,
„disparagement“, only in § 14, and at that only  in  connection
with  the  disparagement  of  the Republic,  therefore  with  a
concept  which is not an expression for a specific  institution
or  competence but which is a symbol of the organization of the
state  as  a whole.  That act provided protection to individual
constitutional  institutions in another  manner.   Section  20,
which  can  meaningfully be compared to § 102  of  the  current
Criminal  Code,  speaks of gross impropriety toward  individual
constitutional bodies only in quite specific contexts:   if  it
concerned  the disruption of the exercise of their powers,  and
for the purpose of reducing their dignity.

     A  similar  differentiation is made in the rules  on  this
issue  in other countries.  That which makes the Czech Republic
exceptional  does not consist in the fact that it protects  the
Republic  and  the highest constitutional bodies  by  means  of
separately defined criminal offenses, rather by the  manner  in
which  it protects them:  namely, that no distinction  is  made
between  the  material elements defining  the  offense  of  the
disparagement  of particular constitutional bodies,  which  are
charged  with  carrying out specific duties and furnished  with
specific   powers,   and   those  defining   the   offense   of
disparagement of the Republic as a symbolic concept  expressing
the  organization of the state as a whole.  In a constitutional
state, the protection of particular institutions with decision-
making   powers  is  always  narrower  and  more  restrictively
defined:    it   is  limited  to  the  performance   of   their
constitutional offices and forms a part of the whole system  of
the  restraint upon state power by means of a clear  definition
of   the  intrusion  into  civic  rights  only  to  the  extent
necessary.   In  a  constitutional state, the sovereign  people
protect  themselves and the primacy of their civil rights  also
against possible abuses of power even from their own state  and
its agents.

     From  this point of view, it is important to take note  of
the  circumstance that, in addition to the criminal act of  the
disparagement  of  „the  Parliament,  the  government,  or  the
Constitutional  Court“,  under § 102,  the  Criminal  Code  has
further   provisions  which  offer  additional   criminal   law
protection  to  these institutions.  Criminal offenses  against
the  exercise of powers by a state body or by a public official
are  defined  in  Chapter  Three.  A  clear  correlate  to  the
material  elements of § 102 is contained in  particular  in  §§
154(2) and 156(3) of the Criminal Code.

     In the case of the first provision, § 154(2), the material
elements  of the offense are worded as the gross insult  to  or
the slander of a state body, then in the second case, § 156(3),
of  a  public  official.   Criminal  law  theory  and  judicial
practice  attach  the fulfillment of the same  requirements  to
these  two  concepts  („disparagement“  and  „gross  insult  or
slander“).   They concern an attack upon the honor,  reputation
and dignity of the body; in addition, the belittling expression
may  be  committed in a variety of ways - orally,  in  writing,
pictorially, by a gesture, or even by a physical act, the level
of intensity of which does not amount to violence.

     The  degree  to which § 102 and §§ 154(2)  or  156(3)  are
actually in conformity with each other depends, however, on how
one assesses the contexts into which they are placed.

     While  it is possible, when making the determination  that
these  provisions are in conformity with each other,  to  doubt
the  usefulness  of such a resolution of the problem;  legally,
however,  this repetition cannot be contested since  the  legal
principle applies, „superfluum non nocet“ (abundance gives rise
to   no   harm).   At  the  same  time,  the  concept  of   the
„disparagement of the Czech Republic“ in the first  part  of  §
102 of the Criminal Code, and which does not form a part of the
petitioner’s    objection,   remains    separate    from    the
Constitutional Court’s deliberations.  It is necessary to  note
that  the  concept „the Republic“ differs from that  of  „state
bodies“:  it is an abstract expression meaning the organization
of the state as a whole.

      Such   is  not  the  case  with  actual,  specific  state
institutions, such as the Parliament, the government,  and  the
Constitutional  Court,  which perform  concrete  missions,  are
endowed by the Constitution with specific functions and powers,
and are „actually established“ and even furnished with suitable
personnel.   Since  §  154  of the Criminal  Code  employs  the
general  and  unambiguous term „state body“, it protects  state
bodies  as  a group and institutionally (that is, as individual
institutions)  to the extent provided for in the definition  of
the offense, as does § 156 for individual public officials.

     In the case of §§ 154(2) and 156(3), the Third Chapter  of
the  Criminal Code makes more precise the purpose and the scope
of  the  criminal law protection provided in them.  The  actual
objects  of  protection  are not the  institutions  in  and  of
themselves in their „actually established“ form, rather  it  is
the  mission which they perform in a democratic society:  their
work   arranges   for   the  undisturbed   functioning   of   a
constitutional  and law-based state.  Thus, the truest  objects
of protection are the set of values on which a democratic state
is  founded and on the basis of which it proceeds.   Thus,  the
elements of the criminal offense of the gross insult to, or the
slander  of,  a  state body or a public official  may  only  be
satisfied if the state body or the public official is  attacked
in  an offensive manner (that is, by a gross insult or slander)
and  in  direct  connection with the exercise  of  its  or  his
powers:  in the exercise of these powers or for the exercise of
them.

     As  a  consequence of this distinction, there is no  doubt
that  § 102 defines a separate criminal offense for acts  which
otherwise would already be subject to prosecution on the  basis
of §§ 154(2) and 156(3) of the Criminal Code.  For this reason,
the  maxim, „superfluum non nocet“, cannot be applied to § 102.
That  duality and the division of legal regulation, thus, leads
to  an  interpretation whereby the Parliament, the  government,
and  the  Constitutional Court are withdrawn from the ranks  of
state  bodies,  even  though they are  state  bodies,  and  are
provided  in  §  102 with a superior form of legal  protection,
which  is otherwise typical only for the protection of abstract
symbols of the state.

     By  prescribing criminal law protection of  constitutional
institutions in § 102, the statute likewise places limits  upon
the  citizens’ exercise of their fundamental rights  and  basic
freedoms.   In  a  law-based state, however, a statute  is  not
merely an internal memorandum for the state machinery, and  the
Criminal  Code is not a set of internal directive for  criminal
courts.   A  statute is a publicly issued means  which  should,
first of all, lay out for the citizens themselves what they are
permitted to do and what they must not do, what they are  still
permitted to do what they must no longer do.

     It  is  a precondition for citizens to assert civil rights
that  a  clear  boundary be drawn between  those  exercises  of
freedoms  which are the constructive foundation of a democratic
and critical society and those which aim at the destruction  of
universal  human  and  democratic  values.   For  this  reason,
democratic states acknowledge that certain restrictions on  the
exercise  of civil and human rights and freedoms are justified.
The  principle  of  the law-based state is underpinned  by  the
primacy  of  the  citizen  before the  state,  thus,  also  the
priority  of  the  fundamental  civil  and  human  rights   and
freedoms.   A  law-based  state is also  characterized  by  the
awareness that it is necessary both to keep such measures to  a
minimum and to fight against the temptation on the part of  the
state  and the individuals holding power in it to acquire  more
power than they strictly need.

     Since  every  law  containing  commands  and  prohibitions
intrudes  upon  the  freedom of the  individual  and  upon  his
fundamental rights, it is necessary to consider whether and  to
what  extent  the  law’s  commands are  clearly  and  precisely
defined,   but   also  whether  its  aims  are   proportionate,
appropriate, and needed.

     In a constitutional state, not only is the manner in which
the  courts are capable of interpreting the laws important, but
so  is how they will be interpreted by the civic public.  Legal
uncertainty  for the citizens means the loss of the credibility
of  the  law-based state and, equally, an impediment  to  civic
activity.  While even lay persons can manage to comprehend  the
elements of the criminal act defined in § 154(2) and §  156(3),
when  it comes to § 102, they find themselves in doubts  as  to
where  criticism ends and where disparagement of constitutional
institutions  begins, since no definite connection  at  all  is
made  between  the factual event and the role or function,  the
activities or at least the powers and the exercise of  them  by
individual  institutions.   In this  manner,  it  is  not  even
specified  what  in  these institutions is  worthy  of  special
criminal law protection so that in such circumstances the  term
Ddisparagement“   acquires   a   considerably   sweeping    and
indeterminate meaning.  There is no doubt about the  fact  that
this vague indeterminacy could be understood as a relic of  old
patrimonial regimes which generally left certain issues to  the
unrestrained   discretion   engendered   by   murkily    worded
provisions,    which   made   possible,   whenever    required,
interpretations „ad usum Delphini“.

     Another  component of the law-based state is the principle
of   proportionality,  meaning  a  proportionate  relation   of
correspondence between the ends sought and the means  employed.
The  boundary for proportionality and for the acceptability  of
the  intrusion by § 102 of the Criminal Code upon civil  rights
is  laid  down,  in particular, in Article 17 of  the  Charter,
which defines both the freedom of expression and the extent  to
which  it  can  be  restricted.  Under  Article  17(4)  of  the
Charter,  the freedom of expression and the right to  seek  and
disseminate information may be restricted by law only in  cases
that  concern  measures necessary in a democratic  society  for
protecting  the rights and freedoms of others, the security  of
the  state,  public safety, public health, or morals.   On  the
basis  of  Article 4 para. 1 of the Charter, the imposition  of
duties   by  statute  must  respect  the  maintenance  of   the
fundamental rights and basic freedoms; and under para.  4,  the
essence and significance of these provisions must be preserved,
and the restrictions upon them must not be misused for purposes
other than those for which they were enacted.

     After  due consideration of this issue, the Constitutional
Court  is  inclined to the view that none of the  prerequisites
set  down  in the Charter the necessity of a separate provision
in  an indeterminate form, as is found in § 102 of the Criminal
Code.   The  requirement that the fundamental rights and  basic
freedoms  may  be  restricted only in  exceptional  cases  also
results  from the fact that the Czech Republic is that type  of
law-based state which is „founded on respect for the rights and
freedoms   of  man  and  of  citizens“  (Article   1   of   the
Constitution).  In a modern, substantive, law-based state,  the
necessity  and proportionality of a rule must be considered  as
well  from  the  perspective of the primacy of the  fundamental
rights and basic freedoms.

     Likewise,  Article 10 of the Convention for the Protection
of   Human   Rights   and  Fundamental  Freedoms   (hereinafter
„Convention“) lays similar claims upon our legal order from the
perspective of the international law commitments of  the  Czech
Republic and sets conditions similar to those in Article 17  of
the  Charter.   In  particular, it limits statutory  intrusions
upon these rights and freedoms to „measures which are necessary
in a democratic society“ for the protection of values which are
essentially the same as those enumerated in Article 17  of  the
Charter (the text of the Charter conformed to Article 10 of the
Convention).   In  consequence, when assessing  §  102  of  the
Criminal  Code, a great deal of significance is placed  on  the
concepts  of legality and of statutory restrictions upon  civil
rights  as  these are understood by the international community
on   the   basis  of  the  Convention,  as  well  as   on   the
interpretation of them in the case law of the European Court of
Human Rights.

     The  position of the European Commission for Human Rights,
as  well as the European Court of Human Rights, is that a legal
norm  can be considered a statute only if it is formulated with
sufficient  precision  to  enable  citizens  to  conform  their
behavior to it (the Sunday Times case, 1979).  In another  case
(Malone v. United Kingdom, 1984), the Court expressed the  view
that  is bound by the condition to regulate matters only within
the confines of an authorized goal and to provide citizens with
due  protection from arbitrary action.  In addition, the  state
may  not refer merely generally to necessity as the reason  for
limiting  the  rights and freedoms of individuals (Greek  Case,
Commission Report, 1969).

     In  instances of a potential conflict between the  freedom
of  expression and the state’s right to restrict it in cases of
necessity, the European Court for Human Rights proceeds on  the
basis  of  heightened protection of the individual  because  it
considers  the  freedom of expression to be  one  of  the  main
foundations  of  a  democratic society, even  in  the  case  of
information or ideas that insult, shock, or disturb the  state,
or  a  portion of its population.  According to the Court, this
position   corresponds  to  the  requirements   of   pluralism,
tolerance,  and openness in a democratic society (the  Case  of
Handyside v. United Kingdom, 1976).

    The  European  Court’s decision in the Lingens  v.  Austria
case  (1986)  distinctly characterizes  its  approach  to  this
issue.   The Austrian Chancellor succeeded before the  Austrian
courts  in  his  action for the protection  of  honor  after  a
journalist  called into doubt his capability of performing  his
office.  The European Court, on the contrary, decided that  the
judgments  of  the  Austrian  courts  represented  an   illegal
intrusion  upon the freedom of expression (Article  10  of  the
Convention)   and   came   to   an  extraordinarily   important
conclusion:   in  the Court’s view, the freedom  of  the  press
offers  public opinion one of the best means of learning  about
and  evaluating the thoughts and positions of leading political
figures.   The freedom of political discussion is  the  genuine
core  of  the concept of a democratic society, which  dominates
the entire Convention.  The European Court further decided that
the bounds of acceptable criticism are wider for politicians as
such  than  for  private  persons:  in  contrast  with  private
persons,  a  politician  unavoidably  and  consciously  exposes
himself  to searching oversight of his own words and  gestures,
both by the press and by the general public.  Article 10(2)  of
the  Convention  allows for the protection  of  third  persons’
reputations, and politicians enjoy this protection as well, but
in  such a case, the demands of protection must be moderated by
the interest in the free discussion of political issues.




     5.   After considering all the circumstances and  contexts
to which § 102 of the Criminal Code applies, the Constitutional
Court of the Czech Republic has come to the conclusion that the
indeterminate  and  undefined criminal law  protection  of  the
Parliament, the government, and the Constitutional Court  in  §
102   of   the  Criminal  Code  exceeds  the  bounds   of   the
constitutional order and the international commitments  of  the
Czech  Republic,  since, in a situation  where  §§  154(2)  and
156(3) already provide sufficient criminal protection of  state
bodies,  it  introduces,  as a result  of  its  generality  and
indeterminacy, an element of excessive protection which, due in
addition  to  the undefined nature of the object of protection,
deviates both from the generally recognized principles  of  the
law-based  state and from the strictures of Article 17  of  the
Charter, by which the intrusion of the state upon civic  rights
is  limited  to  those  measures  which  are  by  their  nature
necessary for the preservation of certain values.  § 102 cannot
qualify  as such a necessary measure, if only due to  the  fact
that the protection provided to state bodies in §§ 154 and  156
is  sufficient and, from the perspective of defining the object
of protection, more precise.  In this vein, the conception of §
102  of  the  Criminal Code is likewise in  conflict  with  the
international obligations of the Czech Republic  and  the  case
decisions of the European Court of Human Rights.

      By  not  defining  the  actual  object  of  criminal  law
protection, § 102, in reality protects a patrimonial  position,
that is, a position within the institutional hierarchy of state
bodies,  even  though the object of protection  should  be  the
fulfillment of the role and function which the Parliament,  the
government,  and the Constitutional Court hold in a  democratic
society.  Since § 154 of the Criminal Code contains and defines
the  protection of the exercise of powers by state bodies,  and
consequently  their function in a democratic society  as  well,
and since the Parliament, the government and the Constitutional
Court  are,  without doubt, also state bodies,  the  notion  is
created   that   §   102   introduces  for   the   above-stated
constitutional  bodies  some  sort  of  absolute  institutional
protection  which, moreover, is not in this case bound  to  the
exercise  of  their  powers.  Thus, the interpretation  of  the
concept   of  disparagement  loses  its  boundaries   and   its
connection  to  the functions performed by these constitutional
bodies.    In   §   102  of  the  Criminal   Code,   the   term
„disparagement“ makes no provision either for the intent of the
perpetrator, the degree of threat to the exercise of powers, or
the  role  of the constitutional institutions in the democratic
system  in  the  least,  and in its present  form  it  is  most
comparable to the classical lèse-majesté.

     Consequently, an interpretation is directly inspired which
is  not in conformity, first of all, with Article 17(4) of  the
Charter  and  Article 10 of the Convention since  it  does  not
concern  measures which, on one of the grounds stated in  those
articles, are necessary in a democratic society, and further is
not  in  conformity  with Article 4(4) of  the  Charter,  which
provides  that the essence and significance of the  fundamental
rights  and  basic  freedoms must be preserved  when  employing
provisions  which place restrictions upon them  and  that  such
restrictions must not be misused for purposes other than  those
for which they were enacted.  It also is not in conformity with
Article   1  of  the  Constitution,  according  to  which   the
foundations of the law-based state are respect for  the  rights
and  freedoms  of man and of citizens and which, together  with
Article  1  of the Charter, gives expression to the primacy  of
the fundamental rights and basic freedoms.

     The joining together, in the same section, of the criminal
law  protection  of  the Parliament, the  government,  and  the
Constitutional  Court  with the protection  of  the  “Republic“
results  in  the  mixing  of  two  disparate  and  incomparable
categories  of objects of protection.  While the  more  general
term  „disparagement“ is typical for the protection of abstract
concepts,  such  as the „Republic“ or the state  symbols,  with
regard  to  the  above-mentioned institutions,  the  protection
should be bound to the role which these institutions perform in
a  democratic  society, and thus to the manner  in  which  they
fulfill  this role.  That is to say, if the first case concerns
the  protection  of  abstract  ideas  and  values,  the  second
concerns  the  protection of functional values of the  society,
and by these means the protection of democratic principles.

     According  to the statement of views signed on 10  January
1994 by the Chairman of the Assembly of Deputies, § 102 of  the
Criminal  Code was amended only in reaction to the  changes  in
the constitutional situation resulting from the division of the
state, but at the same time the proposal of the Constitutional-
Legal  Committee  of the Assembly of Deputies  that  §  102  be
repealed was not at that time accepted.

     The  Constitutional Court concludes that due to  the  fact
that  §  102  of  the Criminal Code was merely adapted  to  the
division  of the state, a conflict arose between the conception
of   the  protection  of  constitutional  institutions,   which
remained  as  a  legacy  of  the  „old  regime“,  and  the  new
constitutional  order, as well as between that  conception  and
the  international  obligations of the  Czech  Republic,  which
arise from quite divergent constitutional principles.

      After  the  close  scrutiny  of  all  circumstances   and
contexts,  the Constitutional Court finds that  §  102  of  the
Criminal  Code in the breadth defined in Act No. 290/1993  Sb.,
by  the  words:  „its Parliament, government, or Constitutional
Court“  conflicts with Article 17(4) and Article  4(4)  of  the
Charter,  Article  10(2)  of the Convention,  as  well  as  the
principal  of  the  law-based state  and  the  primacy  of  the
fundamental rights and basic freedoms enshrined in  Articles  1
and  3 of the Constitution of the Czech Republic and Article  1
of the Charter.

    In view of the provisions of § 58 para. 1 of Act No.
182/1993 Sb. this judgment is enforceable on the day of its
publication in the Collection of Laws.  A decision of the
Constitutional Court may not be appealed.