8. 12. 2023
The purpose of this article is not to analyse in detail all the provisions regulating this institute; rather, the author aims to point out various problems and shortcomings of the legislation, which the courts' decision-making practice has not been able to correct even after more than twelve years of its effectiveness.
The pitfalls of the prohibition of travel abroad as an institute of criminal proceedings begin with the inconceptibility of its legal regulation in the Criminal Procedure Code. The prohibition of travel abroad was first introduced into the Criminal Procedure Code by Act No 197/2010 Coll. with effect from 1 January 2011. Until then, the revocation of a passport was carried out through the procedure of an administrative authority under Act No. 329/1999 Coll., on travel documents, on the basis of a request from a police authority without any possibility of discretion or review, which, however, was rejected by the Constitutional Court in its ruling from 20 May 2008, Pl. ÚS 12/07 (published in the Collection of Laws as No 355/2008). The legislator therefore added paragraph 5 to Article 73 of the Criminal Procedure Code, which provides for a prohibition of travel abroad as a restriction replacing detention. He then chose a similar regulation for cases where detention is not substituted and set it out in Section 77a of the Criminal Procedure Code.
With the adoption of Act No. 45/2013 Coll., on Victims and amendments to certain acts, paragraph 6 was added to the provisions of Section 77a, which allows the accused to travel abroad on a one time basis upon request for important reasons. The explanatory memorandum does not provide anything further on this amendment. It is therefore not clear what considerations the legislator was guided by when adopting the new regulation, nor why the change was made only in the case where the travel ban does not replace detention.
Finally, the same act also incorporated interim measures into the Criminal Procedure Code, thus introducing the prohibition of travel abroad under Section 88h of the Criminal Procedure Code.
The result is a triple legal regulation of the prohibition of travel abroad, namely:
- a prohibition of travel abroad as a measure in lieu of detention pursuant to Section 73(5) of the Criminal Procedure Code, which is imposed together with the measures in lieu of detention in Section 73(1) of the Criminal Procedure Code (i.e. with the simultaneous acceptance of a guarantee for the accused's conduct, acceptance of a written promise by the accused, imposition of supervision by a probation officer, or imposition of an interim measure),
- a prohibition of travel abroad imposed separately as another restriction under Section 77a of the Criminal Procedure Code; and
- a prohibition of travel abroad as an interim measure pursuant to Section 88h of the Criminal Procedure Code.
Each of these provisions has different parameters and conditions of application. By imposing a prohibition of travel abroad on the accused under different provisions, the courts of the first instance find it difficult to distinguish under which provision the restriction is to be imposed, and their decisions are all the more difficult to justify.
From the decision-making practice of the ECHR and the Constitutional Court
The Constitutional Court and the European Court of Human Rights have dealt with this institute repeatedly, but the requirements expressed by them have not yet been reflected in the practice of the general courts.
Mention should be made of the judgment of the European Court of Human Rights in Földes and Földesné Hajlik v. Hungary of 31 October 2006, according to which a prohibition of travel abroad must be justified and necessary throughout its duration, having regard to the particular circumstances of the case. It follows from the judgment in Ignatov v. Bulgaria of 2 July 2009 that such a prohibition must be subject to periodic review, otherwise it must be regarded as disproportionate. In judgement Nalbantski v. Bulgaria of 10 February 2011, the European Court of Human Rights established that a continuing restriction on the accused's freedom of movement must be based on concrete grounds which indicate that the risk of undesirable conduct by the accused persists.
The Constitutional Court in its ruling of 22 November 2019, II. ÚS 2057/19, set out the requirement that the reasoning for the decision on the prohibition of travel abroad to be meaningful, convincing and reviewable, and finally, it also reflected European legislation when it stated that a Czech national has the status of an EU citizen on the basis of Article 20 of the Treaty on the Functioning of the European Union. He may therefore also invoke against his Member State the rights associated with that status, in particular the right to move and reside freely within the territory of the Member States conferred by Article 21 TFEU and Article 45 of the Charter of Fundamental Rights of the European Union. Accordingly, if he is prevented from leaving the territory of a Member State and going to the territory of another Member State, there is an interference with his freedom of movement. This freedom derives directly from the status of a citizen of the European Union and its content is the right to move and reside in the territory of the Member States. However, the Constitutional Court, due to its position as a negative legislator, cannot remedy the situation and make the fundamental changes that the legislation would require.
Shortcomings of the legislation
The current legislation thus has a number of shortcomings which are reflected in the application of the prohibition of travel abroad by the general courts.
The most serious problem with this institute is the blanket restriction on travel to anywhere outside the Czech Republic and the impossibility of any other (positive or negative) definition of the territory, e.g. a prohibition of travel outside the European Union or the Schengen area.
The purpose of the prohibition of travel abroad is to ensure "the achievement of the purpose of the criminal proceedings". In other words, the aim is to ensure that the accused does not thwart the criminal proceedings by being unreachable. The purpose is declared, for example, precisely by the fact that the prohibition of travel abroad has been regulated as an institute substituting detention (i.e. primarily escape detention) and also the obligation to surrender the passport. In general terms, it can be agreed that the imposition of a blanket prohibition of travel abroad together with the surrender of the passport are measures which can achieve the desired objective.
However, the year is 2023, the Czech Republic is part of the European Union and the Schengen area, where it is possible to travel without a passport, and the criminal procedure knows the institution of the European arrest warrant. This appears to be a sufficient guarantee for ensuring the accused's participation in proceedings within the European area, which at the same time does not interfere to such an extent with the accused's rights to freedom of movement and residence and should therefore be clearly preferred in accordance with the principle of proportionality. However, due to the lack of legal provisions, the law enforcement authorities cannot make use of this possibility since the law only allows them to impose a blanket prohibition of travel abroad to all countries.
In practice, this leads to situations where the accused, for example, is not allowed to travel even to a European Union country of which he is a citizen, to manage his property in a neighbouring Member State, to conclude business transactions within the European area or to go on a foreign holiday with his family, although the purpose of the prohibition of travel abroad is certainly not to restrict personal, economic or family rights, but to prevent the obstruction of criminal proceedings or to prevent the commission of a crime. The definition of a specific country to which the accused is prohibited from travelling (e.g. a country outside the Schengen area or the country where the alleged crime was committed, etc.) would seem to be at least as useful as a blanket prohibition of travel abroad, whilst protecting the rights of the accused to personal and family life, the right to manage their property and the right to work and to run their own business. The Constitutional Court has also concluded that it would be most appropriate to adopt legislation corresponding with the current world order, although, given its function as a merely negative legislator, it has no wider scope for intervention.
A further shortcoming can be found in the regulation of the accused's right to apply for a one-off permission to travel abroad for so-called important reasons. The law allows for a single departure only in the case of a prohibition order under Sections 77a and 88h of the Criminal Procedure Code. Such an application is then decided on by the public prosecutor in the pre-trial proceedings and by the chairman of the senate in the trial proceedings by means of a measure which is not reasoned and is therefore not subject to any appeal. On the contrary, Article 73(5) of the Criminal Procedure Code does not provide for such a procedure. It is therefore questionable whether there is any possibility for the accused to apply for a one-off permission to travel abroad even in the event of a restriction imposed pursuant to Article 73(5) of the Code of Criminal Procedure. In such cases, the law enforcement authorities either proceed by issuing a measure on one-off permission to travel pursuant to section 77a(6) per analogiam or by revoking the measure pursuant to section 73(5) and re-imposing it pursuant to section 77a of the Criminal Procedure Code.
It is therefore questionable whether the existence of the limitation under Section 73(5) of the Criminal Procedure Code as such makes any sense at all since current practice does not in fact make any distinction between these measures.
Difficulties of interpretation arise when assessing the so-called important reasons provided for in the provisions of Section 77a(6) of the Criminal Procedure Code, on the basis of which the accused is allowed to travel once to a predetermined destination. The legislation explicitly mentions a business trip as an important reason, but it is not the sole reason. The literature also refers to family or health reasons, but this will depend on the specific circumstances. However, neither the law nor previous practice sets out any criteria for deciding which reasons are important.
One-off permission to travel is authorised by the public prosecutor or judge at the request of the accused and the request is decided by a measure without reasoning, even if such a request is refused. Such action by the law enforcement authorities is then not subject to any review. The accused is thus left entirely to the discretion of the law enforcement authorities as to whether they will even consider his request and, if so, whether they will grant it. The protection of the rights of the accused then rests on coincidance and on the particular approach of the prosecutor or judge who decides on the request for permission to travel abroad. In future, it would therefore be advisable to at least define the basic parameters to be followed by the law enforcement authorities when considering such requests.
Last but not least, it is worth mentioning the absence of a maximum permissible duration of the prohibition of travel abroad and the absence of ex lege review, especially where the ban is imposed as a substitute for detention pursuant to Article 73(5) of the Criminal Procedure Code. Although the law, in Article 77a(4) of the Criminal Procedure Code, partly responds to the requirements of the European Court of Human Rights mentioned above, by providing that the restriction consisting in a prohibition of travel abroad shall be lifted by the chairman of the senate and by the public prosecutor in pre-trial proceedings, even without a motion, if the reasons for imposing it have ceased to exist, in practice, however, such procedures do not usually take place and the prohibition of travel abroad is usually lifted only together with the announcement of the acquittal judgement.
The statutory regulation of the institution of detention is strict both as regards the review of the duration of the grounds for detention and the maximum permissible length of detention itself. Due to the absence of such regulation, paradoxical situations arise when the accused is released from detention with the imposition of a prohibition of travel abroad as a substitute measure, which subsequently lasts in some cases for more than 10 years. Remaining in detention and the subsequent expiry of the maximum possible length of detention would in fact be a less severe measure for the accused, as he would no longer be burdened by any substitute measure.
From a de lege ferenda point of view, it would thereforeseem to be most appropriate to adopt legislation that would set a maximum possible duration of the prohibition of travel abroad with a regular statutory review of the reasonability and proportionality of its imposition.
The prohibition of travel abroad is thus a measure that has taken many forms due to its historical context and development. It can be found in the Criminal Procedure Code in three places, as a measure substituting detention under Section 73(5) of the Criminal Procedure Code, as another restriction under Section 77a of the Criminal Procedure Code and as a interim measure under Section 88h of the Criminal Procedure Code. From the point of view of the quality of the legislation, the most convenient provision appears to be that in Section 77a of the Criminal Procedure Code, and it is therefore questionable whether the provision in the other two places is not redundant.
The legal regulation of this institute has significant shortcomings and brings a number of application pitfalls that even the decision-making practice of the Constitutional Court cannot eliminate. The most serious in terms of interference with the rights of the accused appears to be the persistent impossibility of imposing other than a blanket prohibition of travel abroad to all countries, despite the fact that the Czech Republic is part of the European Union and the Schengen area, which has brought other guarantees to ensure and achieve the purpose of criminal proceedings. Another shortcoming is the ambiguous regulation of the one-off permission to travel abroad under Article 77(6) of the Criminal Procedure Code and the interpretation of the so-called important reasons for which the permission to travel abroad may be authorised. The lack of legal regulation in the case of the maximum possible duration of the prohibition of travel abroad and in the case of ex lege review of the duration of the prohibition of travel abroad should also be perceived as a problem, as the current legal regulation in Article 77(4) of the Criminal Procedure Code does not fully meet the requirements of the decision-making practice of the European Court of Human Rights.
Mgr. Eva Novotná