23. Jurisdiction in the matters regulated by the Convention is exercised by police organs, organs of State administration and the civil courts. As regards the codification of the matters embodied in the Convention, the competent body is the Chamber of Deputies of the Parliament of the Czech Republic. Persons mentioned in article 1 of the Convention, notably public officials, must, in exercising their jurisdiction, strictly observe the Czechoslovak legal regulations governing the manner of the exercise of that jurisdiction as well as the conditions under which the different actions can be taken. The honour, reputation and dignity of citizens guaranteed by the Constitution must be respected in all cases. Failure to respect these provisions is qualified under Czech law as abuse of the authority of a public official under section 158 of the Criminal Code which says:
24. Due to the adoption of the new Act No. 283/1993 on the Public Prosecutor's Office replacing the former system of prosecution, the prosecutor's authority in places of custody or imprisonment has been removed. The control and supervision of such places shall be the responsibility of the Prison Department - Section for Supervision of the Enforcement of Custody and Prison Sentences, as an authorized organ of the Ministry of Justice of the Czech Republic organizationally detached from the Prison Guard Service of the Czech Republic and completely independent thereof.
25. The protection of the rights of citizens is secured above all by the courts and by administrative bodies. Every person, regardless of whether he/she is a citizen of the Czech Republic, has the right to invoke such protection. In proceedings, the said bodies are obliged to inform the participants about their rights and duties. In all likelihood, the scope of remedies for the legal protection of the population of the Czech Republic shall be supplemented after the establishment of the currently envisaged administrative judiciary in the territory of the State. A system of administrative judiciary has been implemented since 1 January 1992 on the basis of Act No. 519/1991 and what remains is to establish the Supreme Administrative Court. Further guarantees of the lawfulness of proceedings stem from the supervisory functions of authorities and control bodies and, last but not least, from the norms of the right to petition based on article 18, paragraph 1, of the Charter of Fundamental Rights and Freedoms and from the right to defence, and, if need be, the right to legal representation in criminal, civil or administrative matters.
26. Article 18, paragraph 1, of the Charter of Fundamental Rights and Freedoms reads:
27. A person who is of the opinion that he has been subjected to torture or to other similar treatment is entitled, according to the nature of the detriment caused, to lodge a complaint under section 158 of the Code of Criminal Procedure under which the prosecutor, the investigator and the police organ have the duty to receive reports on criminal offences and to process them as expeditiously as possible. The investigator and the police organ are obliged to take all the necessary measures to disclose all the criminal offences and to identify the offenders; they are also duty-bound to take the necessary measures for the prevention of criminal activity. In order to verify reports indicating that a criminal offence has been committed or that there is another motive for a criminal prosecution, the investigator and the police organ take measures to obtain the essential information and the necessary explanations and investigate and secure evidence. If the established facts attest that a criminal offence has been committed, criminal prosecution shall be initiated without delay. The special provision concerning this duty is included in section 4 of Act No. 283/1993 on public prosecution.
28. If, through an unlawful action by public officials or other official persons, detriment has been caused to a person, the injured party is entitled to compensation for the damage caused due to incorrect official action and/or to an unlawful decision. The claim for damages is addressed directly to the State (Act No. 58/1969, on responsibility of the State for damage caused by a decision of a State body or by its incorrect official action).
29. Further provisions on compensation are contained in Act No. 119/1990, on judicial rehabilitation; under this Act compensation is provided, inter alia, in those cases where incorrect decisions have been taken as a result of acts defined in the Convention. Section 14, paragraph 1 (b) of the Act says:
30. A draft act on the establishment of the institution of ombudsman in the Czech Republic passed through the first round of interdepartmental debate in 1993 and at present the comments are being processed and the text redrafted. The opinions of the professional public on the need for such an institution are, however, often conflicting. The principal task of the ombudsman should be to improve the system of protection of the rights of citizens against unjustified action by administrative organs. The chief argument for the establishment of the institution is the increase of administrative machinery of the State and the ensuing higher probability of an increase in conflicts between citizens and the State. The main supporters of the act are the representatives of opposition parties and non-governmental human rights organizations; the establishment of the institution is also supported by the Office of the President of the Czech Republic. On the other hand, the institution has no tradition in the Czech Republic and can be opposed by arguing that human rights must be guaranteed above all by the judiciary.
31. On the basis of the available sources of information (regular daily reports by the prison guard corps of the Czech Republic to the Minister of Justice of the Czech Republic, monthly reports by the General Directorate of the prison guard corps on exceptional events in the prison guard corps' service and records of the prosecutor's periodical inspections of the prisons to verify respect for the laws inside them), no case of torture or other situation covered by the Convention has been disclosed by the Public Prosecutor of the Czech Republic. No complaint was lodged by citizens or prisoners in connection with any breach of the provisions of the Convention.
32. Official statistics show that military health facilities were to undertake medical examinations or other treatment of persons in custody in 10 cases and none of the cases involved the consequences of maltreatment or symptoms of torture. From 1 January to 14 August 1993, no person was convicted of the criminal acts covered by article 1 of the Convention.
33. Individual complaints lodged by prisoners, i.e. persons who are in the greatest danger of becoming victims of acts covered by the definition of torture, are also dealt with by non-governmental organizations. The most common complaint is that there is no valid reason for custody. There have also been complaints concerning the placement of prisoners with a different sexual orientation in common cells and concerning the slow processing of complaints. However, the data supplied by independent organizations at present fail to disclose the occurrence of any cases of torture or other acts defined in article 1 of the Convention in the territory of the Czech Republic.
Article 2
Paragraph 1
34. As has already been said above, Czech legislation has many effective instruments preventing the occurrence of cases of torture in the territory of the Czech Republic. The basis is provided by the above-mentioned article 7, paragraph 2, of the Charter of Fundamental Rights and Freedoms.
35. The Act on the police does not prohibit torture explicitly (the explicit prohibition is contained in the Charter of Fundamental Rights and Freedoms and in the Criminal Code), but it nevertheless contains sufficient legal instruments ensuring compliance with the Convention, e.g. it stipulates the duty of a police officer to respect the honour and dignity of persons. In the execution of an official measure or act, no unjustified harm may be caused to persons and no intervention in the rights of persons may exceed the limits necessary to achieve the purpose of the official measure or act. Moreover, there is a constitutional precondition that a policeman as a representative of the State may apply State authority only in cases and within the limits given by law and in a way stipulated by law.
Paragraph 2
36. The Czechoslovak legal system does not permit any exceptions from the prohibition of the use of torture and other similar treatment or punishment under extraordinary circumstances. This prohibition is absolute and unconditional in the whole territory and under any circumstances.
Paragraph 3
37. The principle that an order by a superior can in no way justify torture and thus free the offender of criminal responsibility is expressly formulated in the Act on the official status of police officers, which stipulates that:
(a) Under section 27, in case there is a well-grounded suspicion that a police officer has violated his/her official duties in an exceptionally serious manner or that he/she has committed a criminal offence (e.g. he is suspected of torture or inhuman or degrading treatment), the performance of his/her official function can be suspended temporarily by the decision of an official functionary;
(b) Under section 28, a police officer has the duty to notify his/her superior in case he/she believes that the superior's order is not in compliance with a generally binding legal provision. A police officer has the duty to refuse to obey his/her superior's order in case he/she would commit a criminal offence by obeying it and to notify a higher-ranking superior without unreasonable delay.
38. Section 379, paragraph 1, of the Code of Criminal Procedure says:
39. Upon termination of the preliminary investigation the Regional Court decides, on the basis of the motion of the prosecutor, whether the extradition is admissible and submits the matter to the Ministry of Justice. Extradition is permitted by the Minister of Justice only after the Regional Court has ruled that the extradition is admissible. Should the Minister of Justice have any doubts as to the correctness of the ruling of the Regional Court, he can submit the matter to the Supreme Court for re-examination of the ruling.
40. In the process of deciding on extradition, the admissibility of extradition is always examined in the light of pertinent international agreements, i.e. including the Convention.
41. As concerns the prohibition of expulsion or refoulement, the obligation is regulated above all by sections 16 to 18 of the Act No. 123/1992 on the stay of aliens in the territory of the Czech Republic. According to the provisions of section 18, an alien cannot be expelled to a State where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. This does not apply if an alien is posing a threat to the security of the State or has been convicted of a particularly serious criminal offence. An alien cannot be expelled to a State which claims his extradition on account of a criminal offence for which the law of the State stipulates capital punishment.
42. Provisions regulating the conditions of extradition or return of aliens are embodied in Act No. 498/1990 on refugees, as amended by Act No. 317/1993. According to section 17 of the Act, an applicant for refugee status or a refugee cannot be extradited or returned to the country where his life or freedom would be endangered on account of his race, religion, nationality, membership of a particular social group or political opinion. This does not apply if a refugee is posing a threat to the security of the State or has been convicted of a particularly serious criminal offence committed intentionally. In such a case the alien may be allowed to seek admission to another State.
43. As far as treaty law on extradition is concerned, there is a generally accepted principle that extradition will not be undertaken if it is contrary to the principles of the legal system or to the public order of the requested party. If both sides are bound by the Convention, this article of the Convention will also be applied in their mutual relations.
44. As has already been mentioned above (see para. 11), an amendment to the Criminal Code, containing a new definition of the criminal offence of "torture and other inhuman or cruel treatment" has been adopted as section 259a of the Criminal Code.
45. Acts described in article 1 of the Convention may be covered by the definition in section 158 of the Criminal Code (abuse of the authority of a public official), and possibly also by the definitions under section 196, paragraph 2, of the Criminal Code (violence against a group of residents and against individuals), sections 221 and 222 of the Criminal Code (health injury), section 231 of the Criminal Code (restriction of personal freedom) or section 235 of the Criminal Code (extortion).
46. The term "public official" means an elected official or other responsible employee of a State or local authority, court of justice or other State organ or a member of the armed forces or armed corps performing his/her tasks on behalf of the society and the State and exercising the authority bestowed upon him for the purpose of the performance of the tasks. The criminal responsibility of a public official depends on whether the crime in question was committed in connection with his/her authority and responsibility (sect. 89, para. 9, of the Criminal Code).
47. The term "severe injury to health" means a serious illness or other damage to a person's health caused by mutilation, disfigurement, damage of a vital organ or loss or considerable weakening of the functioning of a sensory organ. A severe injury to health may also be a long-term disorder (sect. 89, para. 7, of the Criminal Code).
48. Whoever believes that he/she has been victim of torture or other cruel, inhuman or degrading treatment or punishment may report the fact to a prosecutor, an investigator or a police organ, who have the duty to accept the report (sect. 158, para. 1, of the Criminal Code). The public prosecutor is obliged by law to prosecute all criminal offences reported to him; exceptions are admissible only in cases stipulated by law (e.g. prescription) or by a promulgated international treaty (sect. 2, para. 3, of the Criminal Code).
49. Under Czech criminal law an attempt to commit the crime of complicity or participation in a criminal offence is equally as punishable as the criminal offence itself. Section 8, paragraph 2, of the Criminal Code states: "The attempt to commit a crime shall be punishable by the penalty provided for the committed crime."
50. Section 9, paragraph 2, of the Criminal Code states: "If a crime was committed by the joint action of two or more persons, every one of them shall be criminally liable as if he alone had committed the crime (accomplices)."
51. Section 10, paragraph 2, of the Criminal Code states: "The criminal responsibility and punishability of a participant in a criminal offence shall be governed by the provisions on criminal responsibility and punishability of the offender, unless the present Code provides otherwise."
52. The provisions of paragraph 1 (a) find their expression in section 17, paragraph 3 of the Criminal Code as amended by Act No. 290/1993, altering and amending the Criminal Code. The provisions extend the applicability of the Act to cases of criminal offences committed on board a vessel or aircraft registered in the Czech Republic outside the territory of the State: "Czech law shall be applied also to determine the punishability of an act committed on board a vessel or aircraft registered in the Czech Republic."
53. The provision of paragraph 1 (b) is contained in section 18 of the Criminal Code: "Czech law shall be applied to determine the punishability of an act committed abroad by a Czech citizen or stateless resident of the Republic."
54. The provisions of paragraph 1 (c) have found their expression in section 20a, paragraph 1, of the Criminal Code: "Czech law shall also be applied to determine the punishability of an act when this is provided by a promulgated international treaty by which the Czech Republic is bound.".
55. Czech legislation covers paragraph 2 of this article first of all by the provision of section 20, paragraph 1, of the Criminal Code:
56. This provision of the Convention is also reflected in section 20a, paragraph 1, of the Criminal Code.
57. In this article, the Convention proceeds from the principle of aut dedere aut judicare which is established in the Czech legal system. The State takes a person suspected of having committed torture into custody even if that person will not be prosecuted in the Czech Republic but will be extradited for prosecution in another State.
58. In accordance with the above-mentioned principle of aut dedere aut judicare, reference can also be made to the provision of section 381 of the Code of Criminal Procedure, which relates to the so-called extradition custody to which the provisions of section 67 of the Code of Criminal Procedure do not apply. These provisions make it possible to take into custody a suspect whose extradition may be requested by another State even before the application for extradition has been submitted:
(2) If the extradition is found admissible, the Regional Court shall take the person whose extradition is being considered into custody, in case the President of the Senate has not done so according to paragraph 1. In doing so, the court shall not be bound by the grounds for a custody as specified in section 67.
59. The investigation to ascertain the fact whether the said persons have committed the criminal offence stated in article 4 of the Convention is governed, first of all, by the provision of section 160 of the Code of Criminal Procedure, under which the investigator is obliged to initiate criminal prosecution without delay, if the established facts indicate that a criminal offence has been committed. During the investigation the investigator is duty-bound to proceed in such a manner as to clarify as speedily and as completely as possible all the facts needed for the consideration of the case. Thus, the Code of Criminal Procedure provides adequate guarantees for the implementation of paragraph 2. Apart from that, the observance of the law throughout the entire proceedings is supervised by a prosecutor who is entitled, inter alia, to issue binding instructions to the investigators, including to carry out individual acts of investigation, etc.
60. As concerns the application of paragraph 3 of article 6, in the criminal prosecution of foreign nationals account is taken throughout the proceedings of the provisions of relevant bilateral consular conventions or the Vienna Convention on Diplomatic Relations. The provision of article 36 of that Convention, covering communications and contacts of consular officials of the sending State with its nationals, has been incorporated into Czech legislation.
61. In case an accused alien in custody applies for a consular visit by a representative of his/her home country, the application is granted. Similarly, an application by a diplomatic mission of the pertinent State for a consular visit to an accused national is also granted. Only in the case where there is risk of a criminal act being committed through collusion is the organ in charge of the criminal proceedings notified of the application for a consular visit, upon which it shall take the necessary steps within the limits of its jurisdiction.
62. To ensure the application of paragraph 4 is merely a matter of organizational measures. Similar provisions are included in bilateral consular agreements between the Czech Republic and other States and also in the Instructions of the Ministry of Justice of 15 November 1982, No. 1900/1982.
63. The provision of paragraph 1 of article 7 corresponds in the Czech legal system with section 2, paragraph 3, of the Code of Criminal Procedure: "The prosecutor is duty-bound to prosecute all criminal offences of which he has learned; exceptions are admissible only under the law or under a promulgated international treaty.".
64. These exceptions concern, in particular, persons enjoying privileges and immunities. According to section 11, paragraph 1, of the Code of Criminal Procedure, as amended, penal prosecution is not admissible in some other cases, which are as follows:
(a) If it is so ordered by the President of the Republic in pursuing his right to grant pardon or amnesty;
(b) If the prosecution has become prescribed;
(c) If it involves a person who is exempt from the jurisdiction of the organs acting in criminal proceedings, or a person who may be prosecuted only with special authorization under the law, and such authorization has not been issued by the respective organ;
(d) If it involves a person who is not criminally responsible because he/she is under age;
(e) Against a person who died;
(f) Against a person whose previous prosecution for the same act ended in a judgement issued by a court or was definitively closed provided that such decision has not been voided in the prescribed proceedings;
(g) Against a person who has previously been prosecuted for the same act which prosecution ended in a final decision of another organ authorized to prosecute criminal offences, provided that such decision has not been voided in the prescribed proceedings.
65. The provision of paragraph 2 of article 7 corresponds with section 2, paragraph 1, of the Code of Criminal Procedure: "No person may be prosecuted as an accused on any grounds other than those defined by the law or in any manner other than that prescribed by this Code.".
66. In case the accused or convicted alien is in custody or in prison, his/her human and civic rights are observed, including respect for his legal position as an alien.
67. In connection with the provision of paragraph 3, reference is made to the position stated in paragraphs 7 to 22 of this report.
"(2) Nobody can be relieved of the responsibility under paragraph 1". 88. The provisions of the aforementioned Act No. 119/1990 on judicial rehabilitation (see para. 29) fall within this category as well.