201/2016 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 4/14 19 October 2005. April 2016 in plenary

consisting of the President of the Court, Pavel Rychetského and judges Jaroslav Fenyka

(Judge-Rapporteur), Jan Filip, Jaromir Jirsy, Josef Fiala, Thomas

Too, Jan Musil, Vladimir Sládečka, Radovan Suchánka,

Catherine Šimáčkové, Vojtěch Šimíčka, Milady Tomková, Uhlir and David

Jiří Zemánek on the proposal of the Group of members of Parliament

The United States on behalf of which it is a member. Pavel Blažek,

Ph.d., for annulment of article 15, paragraph 2. 3 the second sentence and paragraph. 5 of Decree No. 23/1994

Coll., on rules of procedure, the Prosecutor's Office, the establishment of branches of some of the

Public Prosecutor's Office and the details of the action carried out by the legal

aspirant, as amended, with the participation of the Ministry of

Justice as a party to the proceedings,



as follows:



The proposal to repeal section 15 para. 3 the second sentence and paragraph. 5 of the Decree

The Ministry of justice no. 23/1994 Coll., on rules of procedure of the State

the Prosecutor's Office, the establishment of branches of some of the prosecutorial and

the details of the action carried out by aspirant, as amended by

amended, is rejected.



Justification



(I).



Recap of the proposal



1. Submission sent to the Constitutional Court on 26 April. 3. the members of the group, 2014

Chamber of Deputies (hereinafter referred to as "appellants") has proposed to the constitutional

a court annulment of the provisions of § 15 para. 3 the second sentence and paragraph. 5 of the Decree

The Ministry of justice no. 23/1994 Coll., on rules of procedure of the State

the Prosecutor's Office, the establishment of branches of some of the prosecutorial and

the details of the action carried out by aspirant, as amended by

amended, (hereinafter referred to as the "rules of procedure").



2. The appellants are not completely satisfied with the procedure, which was

created the last form of the contested provisions through the provision amending

Decree No. 4/2014 Coll., amending Decree of the Ministry of

Justice No. 23/1994 Coll., on rules of procedure of the public prosecution service,

the establishment of branches of some of the prosecutorial and details of

operations carried out by the legal aspirant, as amended,

(hereinafter referred to as the "Amendment No. 4/2014 Coll."). This amendment has signed the Minister of

Justice of the day 2. 1.2014 in the Government, the Chamber of Deputies

She has confidence and that made the resignation. Mgr. Marie Benešová as

Minister in resignation and without trust did not have the legitimacy to change the jurisdiction of the

the Prosecutor's Office. In a parliamentary democracy with a Government that does not have

parliamentary confidence, my only focus on the normal and necessary maintenance State.

Changes in the jurisdiction of the bodies active in criminal proceedings affecting the

the constitutional right of the people to the legal judge in normal and emergency management

It does not belong.



3. Further, the appellants argue the conflict with the article. 2 (2). 3 of the Constitution of the United

Republic (hereinafter referred to as "the Constitution"), according to which the State power is used all

citizens and can be exercised only in cases, within the limits and ways that

provided by law, and article. 2 (2). 2 of the Charter of fundamental rights and freedoms (hereinafter

also "the Charter"), according to which the State power can be exercised only in the

the cases and within the limits laid down by law, and the way that the law

provides. A public body is also the public prosecutor's Office. It has extensive

in preliminary proceedings, criminal law, supervises the activities of the police when

authority, but also can, in itself, to investigate some crimes. It is logical,

the preliminary criminal proceedings, as an element of the Lords ' activities of the State,

must be ruled by the principle of legality, which is currently contained in

those provisions of the Constitution and the Charter. To the legality of the policy include the

that, in their activities cannot be active any State

authority, but only authority responsible, by law, from the perspective of determining

substantive and territorial jurisdiction. The matter is therefore a breach of the requirement to

to the jurisdiction of the State authority has been given by the law.



4. The contested adjustment is according to the plaintiffs, while similarly contradictory and with art.

paragraph 79. 1 of the Constitution, according to which ministries and other administrative authorities can be

set up and their scope should be specified only by law, and article. 80(2). 2

Of the Constitution, according to which the status and scope of the public prosecutor's Office

provided by law. The appellants are of the opinion that a condition of the legality of

enshrined these provisions applies not only to the determination of the

the scope of the prosecution service as a whole, but also of its individual

offices (authorities) in the form of their jurisdiction. If the Constitution leaves

a modification of common law, it is the duty of the legislature such

substantive editing to actually perform and cannot be further dispose of the podzákonným

the legislation, when the Constitution does not allow for more migration on these

regulations.



5. the appellants Also point out that if the Constitution in its article. paragraph 79. 3

States that the ministries, other administrative authorities and bodies of territorial self-government

on the basis and within the limits of the law to issue legislation if they are to

This law mandated, then issued pseudo-legislation, and therefore

regulations issued pursuant to the enabling provisions in section 40 para. 2 of law No.

283/1993 Coll., on the public prosecutor's Office, as subsequently amended,

(hereinafter referred to as the "law on Prosecutor's Office"), cannot allow for more,

tertiary normotvorbu. The contested provisions this prohibition, however, tertiary

contrary to the standardisation, as they allow, in order to establish the jurisdiction of the

supervisory public prosecutor's Office with just a spolurozhodnutím Chief

the Prosecutor's Office and the Attorney General. Not only, therefore,

that is, as explained above, in the case violated the requirement that the

the jurisdiction of the State authority has been given by the law, but occurs even

the fact that jurisdiction is not at all established a normative legal act.

Otherwise the jurisdiction according to the General rules may be changed

tertiary normotvorbou-by individual decision-

spolurozhodnutím of the Supreme Public Prosecutor's Office and the Supreme State

representative. At the same time are not even made clear the limits for this decision-

It depends on the discretion of the two prosecutorial and is given by

the scope for arbitrage.



6. Nerespektován was according to the plaintiffs ' and the article. 38 para. 1 of the Charter, according to the

which no one shall be deprived of his lawful judge and jurisdiction

the Court and the judge are determined by law. Court for the pre-trial investigation is the district

the Court of the State Prosecutor's Office, which filed for the Court. In

the case of changes to the State Prosecutor's Office in the preliminary criminal proceedings is

constitutionally questionable, that is "automatically" changing the jurisdiction of the Court for the

pre-trial criminal decisions e.g. about binding, eavesdropping

etc. The legal judge in preliminary proceedings, the criminal judge of the district

the Court, which acts within the jurisdiction of the public prosecutor, and dozorujícího

the rule of law assumes that the supervising prosecutor from the State will be

Attorney's Office in whose district the crime happened. By turns

supervising the public prosecutor's Office, the judge's ruling on

binding, which already has a constitutional dimension. In addition, the current situation, when the State

the Prosecutor's Office may cause a change of jurisdiction, creates an even

inequality "weapons", as the defense does not have such an option.



7. In conclusion, the appellants refer to some known causes, such as the media.

Senator Jiri Cunek, or of a former member. David Rath, when

the problems of the provisions they have seems to be evident.



8. The appellants submit that give rise to doubts and other parts

the rules of procedure, however, on the grounds that they decided to attack only

the provisions of the most questionable claim that the Constitutional Court annul the

the provisions of § 15 para. 3 the second sentence and paragraph. 5, and the date of publication of this

the finding in the journal of laws. At the same time requested that due to the importance of

the principle of the impossibility of his lawful judge be withdrawn their proposal

be discussed as a priority.



II.



The observations of the interested party and the amici curiae



and the Ministry of Justice)



9. the Ministry of Justice to call for observations made in accordance with § 69

paragraph. 1 of the law No. 182/1993 Coll., on the Constitutional Court, in doing that,

the rules of procedure, as such, has a foothold in the legal mandates in the law on the State

the Prosecutor's Office. If it is a challenge to the legitimacy of the Minister

Justice Marie Benesova, at that time, members of the Government, which has not received

the confidence of the Chamber of Deputies, referring to the finding of the Constitutional Court of 9 June.

2.2010, SP. zn. PL. ÚS 6/07 (N 20/56 SbNU 207; 66/2010), in particular

then on his point 61.



10. Furthermore, the Ministry of Justice stated that the appellants

overlooks the specific position of the public prosecutor, to whom the Constitution

in article entrusts. 80 key task, which is to represent the public action. In

This ohleduje should be underlined that the exercise of public action is not conceptually

ruling on the (Basic) rights of persons. The activities of the State

the prosecution then moves in a specific legal framework

as represented by the article. 80 of the Constitution, the law on the public prosecutor's Office, law

No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended, and the rules of procedure. If the provisions of section 40 of the Act on the

the Prosecutor's Office explicitly allows the modification of the rules of procedure


by Decree, including editing (not just local) jurisdiction of each

Public Prosecutor's Office, clearly not breached the principle of performance

public authorities, within the limits and in the manner provided by law.



11. The claim that the contested provisions systematically give space to

You can also refuse the will, because any decision of the State

the Prosecutor's Office is always governed by a series of principles and policies resulting from

the criminal procedure code, the law on the public prosecutor's Office (see for example his

the provisions of § 2 (2). 2) or of other laws. In terms of formal

argumentation in this proposal to the correctness of a point to emphasize that in the

constitutionally the legal order is conformally position was conceptually impossible for

the legislation included a mandate to arbitrary application. Libovůlí

the case-law of the Constitutional Court means the individual excesses, in which

In contrast, the right is not respected when determining authority its reflections

completely departs from the factual or legal situation. In the interpretation of the Constitution

and of the Charter, which is invoked by the appellants, by podzákonná normotvorba

in principle, not possible.



12. The Constitutional Court also pointed out that the Constitution does not guarantee the right to

"lawful attorney" (resolution of 27 June 2002. 11.2012 SP. zn. IV.

TC 3627/12, available at http://nalus.usoud.cz). In principle, you can also

Imagine a situation where the system of the prosecution service in part or in

does not copy the system entirely (criminal) courts, respectively, when

the Prosecutor's Office as a centralized authority will not adjudicate individually and

internally, the horizontally or vertically divided, that is, the question of local or

substantive jurisdiction and "lawful attorney" completely fall away, as

There will be one public prosecutor's Office, always appropriate. Not state

the Prosecutor's Office, but only the courts are constitutionally protected and individually

position (as well as individual legal judge). Reference is even

on the resolution of the Constitutional Court, which they have been objections to a

the current design of the jurisdiction of the public prosecutor's Office

rejected, although the Constitutional Court had plenty of space to

comment (e.g. resolutions of 23 November. 10.2012 SP. zn. I. ÚS 3807/12 from

on 22 November. 11.2012 SP. zn. I. ÚS 3569/12, of 13 December. 11.2012 SP. zn. (I).

TC 3906/12, of 26 March. 11.2012 SP. zn. I. ÚS 3556/12 and of 19 June. 2.

2013 SP. zn. II. TC 4717/12; available at http://nalus.usoud.cz).

The party, therefore, considers that the question of territorial jurisdiction

the public prosecutor in the pre-trial process is meant to generally edit

podzákonným law, respectively, for this issue

reservation of the Act cannot be inferred, even in the objective plane (this is not

on the status or the scope of the public prosecutor's Office within the meaning of article 87(1). 80

The Constitution), or with regard to a reservation in relation to the limits of subjective

fundamental rights, as the question of territorial jurisdiction of the State

Prosecutor's Office does not qualify at all fundamental rights to intervene (when

the absence of constitutionally guaranteed rights to "lawful attorney").



13. The alleged breach of article. paragraph 79. 1 of the Constitution, the Ministry of

Justice stated that they disagree with the podřazením of the State

the Prosecutor's Office under the concept of "administrative authority" within the meaning of that article. From

on the contrary, it follows that the scheme of the public prosecutor's Office (article 80) there is a

In addition to the ministries and other administrative authorities (article 82), not as a

their subcategories, even having regard to the fact that the Constitution entrusted to the task

Thus the representation of public action, in no way with the activities of administrative offices

neprolíná. The following can be observed even in the judgment of the Supreme Administrative Court

from day 4. 10.2011 SP. zn. 2 As 93/2011, according to which the fundamental task of the

the Prosecutor's Office "is the representation of the State of public action in the

criminal proceedings. Of the constitutional public prosecutor's Office can be

should be inferred that it is not an administrative authority within the meaning of article 87(1). 79 of the Constitution, but

that it is a specific Government Department Executive, which is in a specific

relationship of subordination to the Ministry of Justice. Also, the Constitutional Court in the

finding SP. zn. PL. ÚS 17/10 of 28 June. 6.2011 (N 123/61 SbNU 767;

232/2011 Sb.) He stated that the Prosecutor's Office is not part of the power

the Court, at the same time, however, "is not a direct State administration" (paragraph 39). If

This is about the alleged conflict with the article. 80(2). 2 of the Constitution, can once again point out the

the fact that the Constitution establishes the State Prosecutor's Office as a whole, as one

authority, and individual folders that are in the context of the law on

the Prosecutor's Office referred to individually as the "ta" State

the Prosecutor's Office, cited the provisions of the form prejudge.



14. with regard to article. paragraph 79. 3 of the Constitution, this provision confers on the

the ministries and other administrative authorities with the power to issue a contract or

the legislation, to whose implementation may, however, occur only on the basis and in

the limits of the law, if they are authorised to do so by law. That provision is

should be interpreted restrictively, in the sense that such a mandate must be

specific, unambiguous and clear [cf. findings dated June 21, 2000 sp.

Zn. PL. ÚS 3/2000 (N 93/18 SbNU 287; 231/2000)]. If so

is, the Constitutional Court examines whether legislation was podzákonný released

public body authorized to do so and within the limits of its competence, i.e. whether the

When the exercise of that jurisdiction the State moved within the limits and on the

under the law (secundum et intra legem), rather than outside the law (preater

legem). Of the enabling provisions must be evident will of the legislature to

more detailed editing, set out in the law. Even in this case, however,

podzákonný law shall not interfere in the Affairs of the dedicated to

the regulation only by law (the so-called "reservation) [cf. award of 18 December 2003.

August 2004, SP. zn. PL. ÚS 7/03 (N 113/34 SbNU 165; 512/2004), find

of 22 March. October 2013, SP. zn. PL. ÚS 19/13 (N 178/71 SbNU 105; 396/2013

SB.)].



15. The appellant does not agree with the thesis that acted ultra vires, if

issued the Decree (in the range). The provisions of § 40 paragraph 2. 1 (b).

and the Prosecutor's Office Act) clearly implies empowerment

the legislature in the scope of the release order, which is issued to the rules of procedure

the Prosecutor's Office. While emphasizing the constitutional concept of the State

the Prosecutor's Office as one unit can undoubtedly be considered the relationships between

the individual components of the prosecution service (which is not constitutionally

prescribed) for eligible subject matter for regulation at the level of just

the rules of procedure. It can be difficult to imagine a rational procedure's

the legislature, which has expressly authorized such as Ministry. for the establishment of

the public prosecutor with exclusive jurisdiction (cf. § 40 paragraph 2

the law on the public prosecutor's Office), without in any way provide allowed

(rules of procedure) by a decree of the General Ledger or the local jurisdiction of such

Public Prosecutor's Office (in preliminary proceedings), thereby "exclusivity"

such a public prosecutor's Office was virtually negated. It is also

meant to reject the proposition that the contested provisions are contrary to the prohibition of

tertiary standardisation, since the decision on the basis of them made

undoubtedly there are normative legal acts, but individual

the decisions which conceptually represent application-specific standards

the case, not the creation of new standards.



16. as regards the alleged inconsistency with article. 38 of the Charter, the Ministry of

Justice believes that these objections are ultra petitum, since

not directed against the provisions of the Ordinance, but against the construction of the section 26

the criminal procedure code.



17. The individual cases referred to the applicant, the Ministry

Justice does not intend to express in addition to voicing doubts as to whether they

the contested provisions has been applied at all, particularly in the case of § 15

paragraph. 3 the second sentence of the rules of procedure, where it can be ruled out in terms of

the time of application.



18. the Ministry of Justice with reference to the resolution of the Constitutional Court

SP. zn. PL. ÚS 9/13 of 12 October. 11.2013 and SP. zn. PL. ÚS 10/09 of the day

24.1. 2012 recalled that the Constitutional Court may not proceed with the immediate

cancellation of the law, if the legislature itself in

the legislative process in order to cancel or amend the contested provisions. In

the Government pointed out a draft law on the State

the Prosecutor's Office and the Government Bill amending certain acts

related to the adoption of the law on the public prosecutor's Office, submitted by the

The Chamber of deputies in 2013 (VI. electoral period, prints no 1054 and

1055), and stated that these were taken back by the Government (resolution of the Government

of 24 July 2003. 7. No 555), but that, at present, these suggestions are

reworked laws and in accordance with the Government's legislative work plan on

the year 2014 it is considered, that would still be in 2014 could be

reiterate, "which would lead to the solution of the situation".



19. In conclusion, the Ministry of Justice has proposed to reject the proposal submitted.



(b) the taking of other observations)



20. The Ombudsman to challenge the Constitutional Court made according to § 69

paragraph. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by Act No.

404/2012 Coll., that their right to intervene.



21. The Constitutional Court also for the purposes of paragraph 1(a), according to § 48. 2 of the Act on the Constitutional Court

It called for the representation of the High Court in Olomouc, the Chief Public Prosecutor's Office

in the High Court in Prague, the Chief Public Prosecutor's Office in Prague,


The Supreme Court, the Supreme Public Prosecutor's Office and the Czech Bar

Chamber.



(c)), the High Court in Olomouc representation



22. The High Court in Olomouc said that, in the long term is of the opinion, according to the

modify the jurisdiction of the public prosecutor's Office which should be included

the law on criminal procedure (code of criminal procedure), and believes that this

the question becomes part of the discussion about the upcoming on Penal

of the order. Otherwise, the options for response to the appellants ' arguments closer has not used and

only briefly, said that in the context of registration Chamber its criminal

the section has not been logged no decision-making activities related to

the challenged provisions.



(d) the observations of the Supreme Public Prosecutor's Office) in Olomouc



23. the Chief State Prosecutor in Olomouc first reminded that

the jurisdiction of the senior public prosecutor's Office to exercise the supervision of

adherence to legality in preliminary proceedings in the most serious cases

economic crime, but also in a type-other serious cases

the corruption of the character was introduced by Decree 311/2000 Coll., which

Decree of the Ministry of Justice is changing No 23/1994 Coll., on rules

order of the public prosecutor's Office, the establishment of branches of certain State

the Prosecutor's Office and the details of the action carried out by aspirant,

as amended by Decree No. 265/1997 Coll. and Decree No. 218/1998 Coll., from the date of

5.10. 2000. The practical problems with these types of crime

have shown the need for a higher level of centralization and specialization of the State

representatives that it was possible to achieve just the establishment of specialized

trade unions on the upper prosecution offices. The original concept

the jurisdiction of the senior public prosecutor's Office counted only.

compulsory jurisdiction with the possibility of delegation of certain criminal cases,

which formally comply with the conditions of the compulsory jurisdiction of senior

Public Prosecutor's Office, but the material was not cases

an extremely serious, legally or in fact complex, to a lower State

the Prosecutor's Office. This concept of the jurisdiction of the upper State

the Prosecutor's Office to exercise the supervision of adherence to legality in preliminary

management at the core has remained to this day in important respects unchanged,

gradually but has been modified in response to the practical knowledge and application

problems.



24. Significant change in the concept of the nationality of the upper State

the Prosecutor's Office brought the Decree 88/2005 Coll., amending the

Decree 23/1994 Coll., on rules of procedure of the public prosecution service,

the establishment of branches of some of the prosecutorial and details of

operations carried out by the legal aspirant, as amended,

(hereinafter referred to as the "Amendment No. 88/2005 Sb.") with effect from 28. 2.2005. The was

In addition to the so-called. compulsory jurisdiction of senior State prosecutors ' offices (

15 paragraph 1. 1 and 2) introduced. optional jurisdiction. New

can decide on the jurisdiction of the Supreme Public Prosecutor's Office to

performance supervision of adherence to legality in preliminary proceedings and in

cases, the so-called. Bank crime or criminal activities committed to

the detriment of the State, that the claims did not meet the limit laid down in article 15 paragraph 1. 1

(a). a) to (c)) the rules of procedure, if it required a severity, legal or

the factual complexity of the case. Such attraction was (and still is)

require the prior consent of the Attorney General. The decision shall

given in the form of a resolution.



25. The reason for this Amendment No. 88/2005 Coll. on the one hand was the finding that a number of

extremely serious or complex (legally or in fact) of cases

falls short of the claims to the limit, so they cannot deal with

specialised public prosecutors on the upper prosecution offices,

Although these were the cases that in terms of modus operandi, sophistication

and the complexity of the design or of the other aspects are completely comparable with the

cases that meet the conditions for compulsory jurisdiction. It was

for example. the cases of some "failed him", credit fraud

or pyramid fraud. "aircraft", etc., but also about the cases

which is not a feature of the offence of "causing damage," but the character

"benefit" is the quantification of damage relatively low (lower than

provided for in section 15 claims limit of the rules of procedure), but it is a very

large and complex cases (typically this is the case handling

procurement volume of hundreds of millions or billions of $, etc.).



26. Another group of cases that have required the introduction of a so-called. Optional

jurisdiction, the criminal cases that were excluded from the

Joint proceedings conducted originally in the high State Prosecutor's Office

for any of the offences referred to in article 15, paragraph 2. 1 of the rules of procedure,

with the exclusion of the common management of the foreclosed deed already

did not meet the conditions of the compulsory jurisdiction of senior State

the Prosecutor's Office, and this excluded the thing had to be assigned to a lower

the public prosecutor, even if otherwise was given material or subjective

the link with the original criminal things. This was especially the case

the exclusion of one of the accused to a separate tender for the deed,

which itself has the jurisdiction of the Chief of the State

the Prosecutor's Office, but, in substance, was related to the originally together led by criminal

things, or the exclusion of one of several along the present and

factually closely related works to a separate proceeding. Last but not least

the series was also the cases where only after the filing of the indictment, or

After you begin criminal prosecution transpired another deed or criminal

the liability of the other person but have not been given the conditions of jurisdiction

the Supreme Public Prosecutor's Office to exercise supervision. There was so much to

situations in which time criminal proceedings had to with parts of the cases after

its exclusion of delving into the new Prosecutor of the lower State

the Prosecutor's Office, which not only had no knowledge of the original cases and evidence

the situation, but did not have an overview of the development of the original criminal cases, of which

a new criminal case was excluded. The introduction of the so-called. Optional

jurisdiction was therefore a logical and natural development and response to

the practical problems which have arisen in a certain "plucking" a type-defined

part of the criminal cases from "ordinary" jurisdiction of the public prosecutor's Office,

Since the original Edit was very brief and the impacts associated with this

"the diversions" dealt with very poorly.



27. A similar problem also represented cases of money laundering

crime or offence, if called. source a criminal offence

He was one of the offences referred to in article 15, paragraph 2. 1 of the rules of procedure.

His solution, however, brought about through Amendment No. 4/2014 Coll., this is the only

the second amendment to paragraph 15 of the rules of procedure for more than 13 years since the introduction of

the jurisdiction of the senior public prosecutor's Office to exercise the supervision of

adherence to legality in preparatory proceedings, which was more significant

way modified the original concept of the jurisdiction of the upper State

the Prosecutor's Office. Also in this case, the amendment was adopted after

It has been long time analyzed application practice and problems and this is

therefore a natural development and "evolutionary" modification of the concept of substantive jurisdiction

Senior State Prosecutor's Office.



28. Amendment No. 4/2014 Coll. has brought two major changes. The first of them

represents an extension of the so-called. mandatory jurisdiction for some crimes

actions related to legalisation of proceeds of crime, if called.

the source is a criminal offence to any of the offences referred to in article 15

paragraph 1 of the rules of procedure. The introduction of the optional jurisdiction of the amendment

No. 88/2005 Coll. did not resolve such problems because criminal activity,

as they do things with the so-called conditions. optional jurisdiction (now section 15

paragraph. 5 of the rules of procedure) on these cases, as a rule, nedopadaly; for these

crime victims can be effectively either lead joint management with the so-called.

source the criminal offence (which, however, brought a lot of problems in practice,

including the lengthening of the criminal proceedings because of the need to perform

taking of evidence beyond the needs of the so-called. the source of the crime), or

observation to pass to the performance of the supervision of the public prosecutor's Office that a lower

not, however, knowledge of the so-called. the source of the cases that was often for

the success of the criminal proceedings.



29. The second amendment to § 15 paragraph 1 represents 3 the second sentence of the

allowing the attraction thing, which after its exclusion from the common control

held with the Chief Public Prosecutor's Office is not given substantive jurisdiction

under § 15 para. 1 or 2 of the rules of procedure. This change is nothing

the new, and this is just a clarification earlier procedures, respectively,

delete some application problems. In some cases it was not

possible provisions on the so-called. optional jurisdiction established by Amendment No.

88/2005 Coll. apply and criminal case had to be after its exclusion from the

joint management referred to the public prosecutor's Office to the next lower

the performance of supervision with all the negative consequences that have already been described

above. This was particularly the case in respect of which the legal character of the


the crime was not causing damage (article 15, paragraph 4, now (5)

the rules of procedure. optional jurisdiction in both

alternatives always contains the character causing damage, and therefore criminal

acts, whose character is not causing harm, its application is out of the

account shall be taken, respectively, would be problematic), but which was given to

the close substantive link to the original criminal case (and the associated question

use the same circuit of the evidence, the need to coordinate the criminal proceedings,

where appropriate, the need to ensure confidentiality of the venue of the criminal proceedings, if they are in

it deployed operationally search resources, etc.), while just

the need to ensure the exercise of supervision on the same public prosecutor's Office was in the

such criminal matters essential condition for achieving the purpose of the criminal

proceedings, often in both criminal cases (i.e. in the original joint

things even in case the excluded). Type-this was especially the case

the corruption of character or with a strong element of corruption cases (in particular

handling cases of public procurement, but also cases of information leakage

of the criminal case files, unlawful influence of criminal proceedings, etc.) and

further cases were related to the legalisation of the proceeds from crime.

Thus arose a situation where in some cases, it was possible after the exclusion of

case of joint management to decide. attraction of the matter under section 15

paragraph. 4 (now 5) of the rules of procedure and in such things could continue to be

be so supervised that the Chief Prosecutor's Office, while in other

cases, such a procedure is not possible, and excluded the criminal case had to be

referred to the lower public prosecutor's Office. On the issue of income from

crime response Amendment No. 4/2014 Coll. by extending mandatory

substantive jurisdiction of the upper prosecution offices of § 15 para. 2

the rules of procedure. Problems with the impossibility to exercise the supervision after the exclusion of

part of the criminal case of joint proceedings in certain offences then

the same amendment has responded by introducing the possibility to decide on the attraction of things

under § 15 para. 3 the second sentence of the rules of procedure.



30. the attraction will be decided in the resolution to which it must give prior

the consent of the Attorney General. The law specifically does not state what criteria

should be taken when deciding on the attraction into consideration. By analogy, it can be in this

the direction will undoubtedly apply to § 15 para. 5 of the rules of procedure, where the

the criteria of seriousness, factual or legal complexity, but may

be taken into account and no doubt some additional criteria, such as

efficiency of criminal proceedings, the need for coordination procedure in more

criminal matters, the need to draw from the same circuit of the evidence, the need for

to ensure reciprocal information about related cases, including

the need to ensure konspirativnost the related criminal case, in which they are

deployed operationally search resources, etc. (do things criteria

under § 15 para. 3 the second sentence of the rules of procedure are therefore wider than the

top 10 things because of the so-called. optional jurisdiction under section 15 para. 5

the rules of procedure).



31. as is clear from the above that the provisions of article 15, paragraph 2. 5 rules of procedure

It was added in 2005 and is applied without any

issues in judicial practice already 9 years. The provisions of § 15 para. 3 the second sentence

the rules of procedure is a new Institute, however, this provision only

address the partial "inequality", when in some cases excluded from the

joint management, which still have not been given the terms of article 15, paragraph 2. 1

the rules of procedure, it was possible even after their exclusion, the Commander-in-Chief be held

the Prosecutor's Office, since it was possible to decide about their attraction

under § 15 para. 4 (now under section 15 paragraph 5) of the rules, while at the

in other cases, the decision on the attraction can be issued. In both

cases, it was a gradual adaptation of the concept of jurisdiction of the upper

Public Prosecutor's Office to exercise the supervision of adherence to legality in

preliminary proceedings that always respond to application problems and

knowledge from practice, as evidenced by the fact that for over 13 years occurred only

two more fundamental amendments to paragraph 15 of the rules of procedure, and all amendments to

was preceded by several years of processing knowledge from practice and detailed

internal discussion, at least in the system of the public prosecutor and

This was not the arbitrary, ad hoc changes.



32. contrary to article namítanému. 2 (2). 3 of the Constitution and article. 2 (2). 2 of the Charter of

then, the top Prosecutor in Olomouc stated that in General

cannot be used with bezvýjimečným determination of jurisdiction only just legal

the provisions of the agree. By default, it is possible to apply the exceptions to the

the Act individual acts, when this is no longer counted for

the preparation of legislation in the article. 50 para. 2 legislative rules

the Government, where it is stated that "in the dispensation of the law

must be defined by the authority which is competent to authorise exceptions, in which

matters and to what extent can allow exceptions and such basic

the criteria when deciding on the derogations is to control ". From § 15 para. 5

the rules of procedure, it is clear that the provision contains the destination

the authority which decides an exception, in which matters, it is appreciable even

the scope of such a decision and also restrictive criteria (limits) for

deciding on jurisdiction (severity, factual or legal

complexity of the case). Here it should be noted that even the top cited article. 50 para. 2

the legislative rules of the Government requires only basic definition

criteria for decision making. Identification of the essential criteria for decision making

under § 15 para. 5 of the rules is quite sufficient. Similarly, so

in article 15, paragraph 2. 3 the second sentence of the rules of procedure are contained the basic

parameters estimated article. 50 para. 2 legislative rules of the Government, and

This authority, which decides on the exception, in which cases, and is

appreciable and the scope of such a decision. In the activities of the State

the Prosecutor's Office, the practice that, when making a decision under this

provisions taking into account the criteria of severity and the factual and legal

complexity of the case.



33. with regard to the appellants ' reference to the article. paragraph 79. 1, art. 80(2). 2 and

article. paragraph 79. 3 of the Constitution, should be the first place to indicate that the Group

members of Parliament in relation to determining the scope of the public prosecutor's Office

refers to the article. paragraph 79. 1 of the Constitution, as the State is completely nedůvodně

the Prosecutor's Office cannot be sorted or between the Ministry or other administrative

authorities, when in this direction can be used to refer to the case-law of the Supreme Administrative

(see the judgment of the Court of 27 April. 10.2005, SP. zn. 6 As 58/2004)

literature (Suchánek, r. in Bahýľová, l., Filip, j., Molek, P.,

Podhrázký, M., Suchánek, R., Prince, V., Vyhnánek, L. Constitution Of The United

of the Republic. Comment. Prague, Linde, 2010, p. 944). The status of the State

the Prosecutor's Office as a special authority (authority of the sui generis right) on the border

Executive and judicial majority accepted in the professional community, and that

including the climactic judicial instances (see also the finding of the Constitutional Court of the

28.6. 2011 SP. zn. PL. ÚS 17/10 or judgment of the Supreme Administrative

of the Court of 12 July 2005. 6.2012 SP. zn. 1 As 51/2012). At the State

the Prosecutor's Office. paragraph 79. 1 of the Constitution cannot be applied even

the reason that the public prosecutor's Office has its own legislation on

the constitutional level in the article. 80(2). 2 of the Constitution, which expressly and completely modifies the

for the prosecution, the same as it is in General for the Ministry of

and other administrative offices dealt with in the article. paragraph 79. 1 of the Constitution.



34. Furthermore, it cannot be, as it is a group of deputies in its proposal,

endorse the constitutional rule that the status and responsibilities of national

the Prosecutor's Office shall be established by law, and on the determination of jurisdiction

each public prosecutor's Office. The scope of the Institute is the substantive

rights and it is essential to understand the range of tasks that are of a public authority

established. Powers are conferred on the resources of the public authority to

the implementation of competence. The definition of the scope of jurisdiction between the

each public prosecutor's offices to each other, and it is therefore a

Institute of process. You cannot endorse the scope of institutes and

the jurisdiction of the public prosecutor's Office (even to themselves, of course),

as they have different content and their relationship is not mutually podřazující

the position of the public prosecutor's Office. then means the legal framework

the Prosecutor's Office in the system of public authorities with a view to

its importance, influence and position among such authorities, including in relation to them.

Jurisdiction is not possible in terms of the linguistic interpretation of article. 80(2). 2

For their part, nor under the Constitution the position of, or under the responsibility of the State

the Prosecutor's Office, and even expanding the interpretation of this provision.



35. The provisions of article. 80(2). 2 of the Constitution, by nationality

the Prosecutor's Office, which regulates the status, scope, internal relations,

Organization and management of the public prosecutor's Office and others (see § 1 paragraph 2

Act No. 283/1993 Coll., on the public prosecutor's Office). The provisions of § 1 (1).

1 of the law No. 283/1993 Coll., on the public prosecutor's Office, as amended by Act No.

14/2002 Coll., provides that the public prosecutor's Office is the system of State authorities,

While the scope of the public prosecutor's Office is in General listed in the


§ 4 of the law on the Prosecutor's Office and in the konkrétnu in a number of other laws

[in particular, the code of criminal procedure, Act No. 218/2003 Coll., on responsibility of youth

for unlawful acts and the judicial system in matters of youth and amending

Some laws (the law on the judicial system in matters of youth), and other]

Thus, in this sense, the article. 80(2). 2 of the Constitution fully respected.

The provisions of § 40 paragraph 2. 2 of the law on the Prosecutor's Office then contains

statutory authority, from which it is derived and the existence of § 15 of the rules of

of the order.



36. Here it should be noted some differences between the modifying jurisdiction

at the level of the courts, and by modifying the jurisdiction at the level of the State

the Prosecutor's Office. The provisions of article. 80(2). 2 of the Constitution provides that the status of

and the scope of the prosecution service are determined by law, the constitutional

level is not a provision that establishes the obligation as well as the jurisdiction of the

the Prosecutor's Office to modify the law. In relation to the courts should be

but to refer not only to the article. 91 paragraph. 2 of the Constitution, according to which the scope and

the Organization of the courts are determined by law, but also on the article. 38 para. 1 the second sentence

Of the Charter, which provides that the jurisdiction of the Court and the judge are determined by law,

which represents a requirement for clear, accurate determination of the Court within whose

the scope of a particular thing that has to be the subject of an adjudication,

belongs (Kocourek, j. and Zabala, j., the law on courts and judges, the law on the

the Prosecutor's Office. Comment. 2. the amended and revised,

Prague: c. h. Beck, 2004, p. 175).



37. Similarly, it is possible to refer to the finding of the Constitutional Court of 3 October 2000. 10.

1996, SP. zn. III. TC 105/95 (N 91/6 SbNU 171), in which the Constitutional Court

He came to the conclusion that not in all cases where the constitutional standards

refer to the law, there is no more adjustment lower normative

acts; This is the case only when constitutional law modification

reserves expressly only to the law. When you perform a comparison is then obvious,

While for example. article. paragraph 79. the Constitution provides for the possibility to determine the scope of the

Ministry or other administrative authority, only "law", in relation to the

the public prosecutor as follows a strict rule set is not.

The argument you've chosen in the draft Constitution of a group of MPs is to

the right to "lawful attorney" by analogy from article. 38 of the Charter

It follows the principle of lawful judge. However, the Charter does not guarantee such a right

(see the resolution of the Constitutional Court of 27 June. 11.2012 SP. zn. IV. TC

3627/12).



38. Furthermore, it cannot agree with the thesis of a group of MPs that the permission of the high

the Prosecutor and the Attorney General makes the handling and

moving specific criminal cases. Individual decisions about

jurisdiction is at the level of the courts and the public prosecutor's Office

standard procedure (see e.g. § 25 of the criminal code or Section 12d (2)

the law on the public prosecutor's Office), when subject to compliance with legal regulation

the reasons and forms of such a procedure, it is a procedure in accordance with the law.



39. The alleged breach of article. 38 of the Charter of the Chief Public Prosecutor's Office in the

Olomouc has stated that the appellants do not attack the constitutional conformity section 26

the criminal procedure code, and vice versa, they challenge such provisions, that is, in itself,

SE determination of the jurisdiction of the Court do not apply. The contested provisions resolves

exclusively determining the substantive and territorial jurisdiction of the upper State

the Prosecutor's Office (or the Prosecutor have active) for the performance of

supervision of adherence to legality in preparatory proceedings. The entire section 15

the rules of procedure contains the organizational law relating to the

determining the jurisdiction of the public prosecutor's Office, and not for determining the

jurisdiction of the courts in the preparatory proceedings. Maybe, however, the appellants

section 26 of the Criminal Code do not attack intentionally because they believe

resolution SP. zn. IV. TC 3627/12 about it, the Constitutional Court stated that this

contains unique provisions and the general rule that ensures

fixed and predictable split between venue of the courts of the agenda.



40. as regards the applicant referred to specific cases, the Director of public

the Prosecutor's Office in Olomouc is considered, it is not the cases in which the

some of the provisions have been applied to the design idea. It is not so

clear their link with the present case.



e) observations of the High Court in Prague



41. The High Court in Prague said that not considered suitable, in case

express yourself with a view to nepředjímal its conclusions in a criminal case

a former member of MUDr. David Rath, which would come to him on the basis of

the appeal could get.



f) observations of the high public prosecutor's Office in Prague



42. the Chief Public Prosecutor's Office in Prague first reported

the plaintiffs incorrectly declare the impact of Amendment No. 4/2014 Coll.

the contested provisions the amendments to the rules of procedure merely

the second sentence in section 15(2). 3. the contested the wording of § 15 para. 5 rules of procedure

It (then as paragraph 4) supplemented with effect from 1. 10.2005

Amendment No. 88/2005 Coll. under the action of the Minister of Justice. Paul

The Germans, and the rules of procedure it contains the ninth year. The rules of procedure was

in the meantime, repeatedly amended, regulations no 252/2007

(For the Minister JUDr. Jiří Pospíšil), 7/2010 (for the Minister

JUDr. Daniela Kovářové) and 462/2011 (for the Minister JUDr. Jiří

The OSCE). Or the following Justice Minister JUDr. Pavel Blažek,

Ph.d., the provisions of § 15 para. 5 rules of procedure during its annual

the performance of the apparently did not find institutional. You can recall find

The Constitutional Court of 22 March. 3.2011 SP. zn. PL. ÚS 24/10 (N 52/60 SbNU

625; 94/2011 Coll.), in which the Constitutional Court in a situation where a group

the appellants was composed mainly of representatives of the political parties

involved in the exercise of government power, who with her too,

the vote on the adoption of the contested legislation directly participated in, he suggested,

that in future such proposals could be rejected.



43. The contested provisions of the rules then according to the Chief of the State

the Prosecutor's Office in Prague match ústavněprávním because the article claims. 80

The Constitution, in accordance with the will of ústavodárce contains a reference to the legal,

that is the law on the public prosecutor's Office, in which the then legislature

assumes in its provision of section 40 of the implementing Decree of the Ministry of

Justice governing derogations from the local and material scope

each public prosecutor's Office. In the case that is the Ministry of

Justice may be authorized on the basis of legal mandates to modify in addition to

local and substantive scope within the meaning of § 15 of the rules of procedure, it is the interpretation of the

the provisions of the so-called. the optional jurisdiction of the Chief of the State

the Prosecutor's Office as a constitutionally compliant and in accordance with the law on the State

the Prosecutor's Office, and taking into account the procedural guarantees that this

the Institute provides.



44. The appellants in the description of the procedural conditions for application

the contested provisions of the rules are limited to the "mere spolurozhodnutí

the Supreme Public Prosecutor's Office and the Attorney General ". In

in this context it is necessary to draw attention to the need for compliance with the physical

conditions for the design of the contested procedure. In particular, as to the conditions set out

in article 15, paragraph 2. 3 of the rules (i.e. the exclusion of the criminal case of things

so far policed by the public prosecutor, Supreme Public Prosecutor's Office

Therefore, under its compulsory jurisdiction) or in § 15 para. 5

the rules of procedure (including the severity or factual or legal complexity of the

stuff). Procedural conditions are then the consent of the Supreme State

the representative and the decision in the form of a resolution to that procedure,

and, although there may not be a complaint against that decision, can

be such a resolution in the light of the above described conditions laid down

vitiated by illegality or shortness.



45. Such a mechanism, which, subject to certain legal regulations

provides for an exception, the terms set out on the basis of the legal and

a reasoned decision, not far from the principle of the rule of law,

including his legal license policy. It is necessary to perceive the contested Institute

not as an optional scope, but as an optional

jurisdiction in criminal matters, as the specific design of the contested

procedural institutes can be applied only subject to the conditions, that is

assess only in a particular criminal case. The contested provisions

These rules are formulated clearly and logically necessary exact

on the other hand universality, but specifically enough so that one of them was

explicitly clear which authority is called upon to determine the jurisdiction of the

the Prosecutor's Office to exercise the supervision of preparatory proceedings, what is the

the scope of such designation and the conditions under which jurisdiction can be as follows

fix.



46. In the context of the need to understand the overall context at the same time and

sense of paragraph 15 of the rules of procedure. Special jurisdiction laid down herein the top

the Prosecutor's offices to the supervision of preparatory proceedings was associated with

the emergence of trade unions a grave economic and financial crime in these

Public Prosecutor's Office, which was the result of social demand for

creating a tool to more effectively combat this kind of crime.

To create the said unions have been spent considerable


resources from the State budget and their State representatives are in the

areas of high specialists. Their aim is complex and

large-scale criminal matters otherwise competent national odbřemenit

prosecutors ' offices. This is associated with the requirement to

economy management, which is apparent in particular from the second sentence of paragraph 15 of the contested

paragraph. 3 of the rules of procedure. Here involved things look type-so that the

often after a very long and difficult preparatory proceedings administered by the

the top of the prosecution service should occur that part

being sued the negotiations should take a new Attorney and a new police

authority. This would logically mean mj. the need to study the case file and the associated

further extension of the preparatory proceedings. The completion of the preparatory proceedings in

top state prosecutors ' offices as well as for failure to meet the conditions under section 15

paragraph. 1 and 2 of the rules of procedure is so in these cases, by projecting the policies

an accelerated hearing of criminal cases pursuant to § 2 (2). 4 criminal

the order and, in effect, is in favour of the accused. Just for

the final touch can demonstrate that an equivalent level of generality as

the contested provisions of the rules and the criteria have withdrawal and the commandments

things between the courts, pursuant to section 25 of the criminal procedure code or § 23 para. 1 of the criminal

regulations applicable to the public prosecutor's Office, by analogy.



47. The alleged breach of article. paragraph 79. 1 and article. 80(2). 2 of the Constitution, the top

the Prosecutor's Office in Prague says that the reasoning in that direction, that can be

for their part, the public prosecution service under the concept of "administrative authority" should be

refuse, when not even the Ministry of no doubt. State

the Prosecutor's Office is not endowed with powers to issue within its competence

administrative decision and decide on rights and responsibilities. Support

for this view can be found in (closer to an unmarked) notes on the Constitution,

where, inter alia, States that "article. 79 it is positioned at the head of a third Constitution,

that is paid to the Executive, it can therefore be assumed that, in terms of

the constitutional, administrative authorities ' are meant to state offices, which carry out

the Administration, therefore, the organizational units of the State ' within the meaning of Act No.

219/2000 Coll. on the assets of the United States and its representation in legal

relationships ". Also the Supreme Administrative Court does not consider the State

the Prosecutor's Office for administrative authority (see its judgment No. 6 As

58/2004-45). If article 80 para. 2 of the Constitution provides that the status and

the scope of the public prosecutor's Office shall lay down the law, then it cannot be understood

at the same time an obligation by law to establish whether or not the jurisdiction of the State

the Prosecutor's Office. If it was the intention of the legislature, he would

progressed as well as in the courts, where it should be but to refer to the article. 38

paragraph. 1 the second sentence of the Charter, which States that the jurisdiction of the Court and

judges are determined by law. This also corresponds to the contents of the resolution of the Constitutional Court of the

27 June 2002. 11.2012 SP. zn. IV. TC 3627/12, according to which "the right to

legal Prosecutor's Charter does not guarantee, with article 38

paragraph. 1 of the Charter cannot be construed so extensively that it provided

the guarantees were extended in relation to the public prosecutor, and because of the

differences of position of the public prosecutor in criminal proceedings that has

nejudiciální character. The Prosecutor's Office is not the authority that-

While standing over the procedural parties-authoritatively and definitively decides on

the guilt and the punishment of the accused, but as a party in criminal proceedings ".



48. the provisions of article. paragraph 79. 3 of the Constitution, the Chief Public Prosecutor's Office in the

Prague said they could not endorse the scope and jurisdiction of the institutions of the

the Prosecutor's Office, as they have different content. The scope is

Institute of substantive law. The powers vested in the State are resources

the Prosecutor's Office just to the realization of its mission. In its case law

(see resolution SP. zn. IV. TC 566/12, II. TC 3935/12, II. TC 445/13 or

I. ÚS 455/13; available at http://nalus.usoud.cz), the Constitutional Court has come to the

the conclusion that according to section 26 of the code of criminal procedure, the Prosecutor has the high State

the Prosecutor's Office in the context of its local scope on the selection process

Court, or District Court judge, to submit a proposal in the preliminary

management of the selection. Correspond to the standard legal texts targeted exploit edit

about individual decisions on jurisdiction (e.g., section 25 of the code of criminal procedure,

Section 12d of the paragraph. 2 of the law on the Prosecutor's Office).



49. as regards the alleged breach of article. 38 of the Charter, the Director of public

the Prosecutor's Office in Prague has considered that the contested provisions do not address determining the

jurisdiction of the Court for pre-trial investigation, or the jurisdiction of courts in General.

The problem is solved so have their origins should be sought rather in the provisions of § 26

the criminal procedure code. Jurisdiction of the Court is not established rules of procedure, that

in this context, it is only a technical gap, but

Code of criminal procedure. Possible unconstitutionality claim would deprive it of

the rules of procedure, but the order of the criminal. Ústavností of section 26 of the criminal

the order, however, the Constitutional Court in its decision-making activity already dealt with. Is

meant to refer to resolution SP. zn. IV. TC and 3627/12 SP. zn. III. THE TC

1033/07.



50. as regards concrete criminal cases mentioned in the proposal, none of the

them, the text of paragraph 15 of the contested provisions of the rules does not apply.



51. for these reasons has a top Prosecutor in Prague for

that brought on the proposal is not justified.



g) observations of the Supreme Court



52. the Supreme Court-the criminal College-with the examination of the draft,

with regard to the article. 38 para. 1 of the Charter. Even if the practice does not yet have

signalizovánu the need to address this question in some unifying

instrument of the principal cannot be other than to conclude that

two contested provisions allow in the exercise of supervision over the maintenance

legality in preliminary proceedings the state change

the Prosecutor's Office, which with that provision of the constitutional order in the

the collision. Even if the article. 38 para. 1 of the Charter expressly refers to just the Court and

the judge, it is necessary to insist that the legislation of the State activities

the Prosecutor's Office in accordance with it, and that did not prevent its fulfillment.

Substantive jurisdiction of the courts in the preparatory proceedings is always given to the district

the Court and the local jurisdiction is derived from the fact that the Prosecutor

He handed the proposal (section 26 (1) of the criminal procedure code). Jurisdiction of the Court

is this intended essentially for the entire preliminary proceedings that may change

occur only as a result of referrals because of the nationality of another

the Prosecutor working outside the perimeter of this Court (section 26 (2)

the criminal procedure code). This design makes the jurisdiction of the Court in the preparatory

control dependent on which the Prosecutor's Office in the preparatory proceedings

shall exercise the supervision of adherence to legality. With regard to the article. 38 para. 1

Of the Charter, that is, the jurisdiction of the public prosecutor's Office must be

determined by law, and that if they are to be tolerated deviations in determination of

the jurisdiction of the public prosecutor's Office, must also be laid down,

by law, and not by law podzákonným of the central authority

the State administration. Both provisions, against which it seeks annulment,

they are of such a nature, that referred to the request do not match.



h) representation of the Supreme Public Prosecutor's Office



53. The Supreme State Prosecutor's Office to each of the arguments

the appellants essentially the same representation sent texts as Chief

the State Prosecutor in Olomouc.



54. To its existing application practice, the Supreme Public Prosecutor's Office

added that in the case of article 15, paragraph 2. 3 the second sentence of the rules is a small,

Since this legislation came into effect only on 24. 1.2014. To

on 13 November. 5.2014 received a top state prosecutors ' offices from both

a total of 2 applications for prior approval (one was at the stage of

scans and one at the stage of investigation) and both have been granted. What is

as regards section 15 para. 5 of the rules of procedure (to 23. 1.2014), and paragraph 4 in

2013 were 14 and in 2014 to 13 June 2005. 5. about 5 applications, for

all was ratified.



55. The Supreme State Prosecutor's Office also stressed that the applications received

review on the basis of the reference material and its decision

(or measures) by (not) the granting of prior informed consent always properly

warrants. In essence, this is a special kind of delegačního

the decision (the prior consent of the Attorney General, in conjunction with

the downstream process by order of Chief Public Prosecutor's Office, that is

competent to exercise supervision of adherence to legality in preliminary

control), which, unlike the "classic" delegation occurs to change g/l

jurisdiction. Unlike the delegation under section 25 of the code of criminal procedure

(possibly under section 12a, paragraph 2, of the law on the Prosecutor's Office)

can be performed even without the proposal (and under section 25 of the code of criminal procedure of the

"important reasons"), the procedure under § 15 para. 3 the second sentence and paragraph. 5

in practice, the rules of procedure requires a multiple-degree control conditional

the relevant proposal (requests) underreporting of the prosecution service,

the prior consent of the Attorney General (who is or is not

granted after a review of the necessary spisových materials, always


in writing, with the action of the Attorney General is properly

sufficient grounds) and then follow-up by decision of the Chief of the State

the Prosecutor's Office that is responsible for the performance of supervision over the adherence to

legality in preparatory proceedings. All documents relating to this

procedure are included in the criminal file and at the stage after the initiation of criminal

the prosecution of the accused and are accessible to his defence. The whole procedure according to

the proposal for the contested provisions is so transparent and auditable, and in

any way this is not a sign of arbitrariness.



56. The practical reasons for granting the previous consents referred to in article 15

paragraph. 3 the second sentence and paragraph. 5 of the rules of procedure, can also be noted that the

Typically this is a factual or legal complexity of the case, the severity of the

or the sheer size, the factual or legal relationship or procedural

coherence of things with other things on the departments of a major

Economic and financial crimes both upper State

the Prosecutor's Office. In the case of a procedure under article 15, paragraph 2. 3 the second sentence

the rules of procedure (which is a subsidiary of the procedure under section 15 (5)

the rules of procedure, if the criteria are not met prior to the granting of

consent in accordance with § 15 para. 5 of the rules of procedure, for example. because of the amount of the

caused by damage) it is clear that there may be situations where it is from

common management of the excluded part of things, respectively, of the procedure for a

criminal act or against any of the accused (e.g. due to

speeding up proceedings or for other important reasons pursuant to § 23 para. 1

the criminal procedure code) and in the excluded things is no longer given the obligatory

substantive jurisdiction under section 15 para. 1, paragraph 1(b). 2 of the rules of

the order, however, given compelling reasons to make the exercise of supervision

continue to be carried out by the higher of the current (high) State

the Prosecutor's Office, which has been active in the case so far (which, in case you may

high quality and without delay continue to continuously supervise the

adherence to legality in preliminary proceedings, including personal responsibility

results and progress of such proceedings, which usually immediately

related to the "trunk" parts excluded, which is otherwise

the jurisdiction of the Supreme Public Prosecutor's Office as obligatory). And from the

a practical perspective procedures under § 15 para. 3 the second sentence, and

paragraph. 5 rules of procedure considered as useful, contributing to vocational

and efficient management of criminal proceedings. The Supreme State Prosecutor's Office

therefore does not see any grounds for annulment of the contested provisions.



ch) representations of the Czech Bar Association



57. the Czech Bar Association with the appellants ' arguments largely

does not agree. According to the case-law of the Constitutional Court, the Prosecutor's Office is not

part of the judicial power, and its status is not even comparable with the courts

see the findings of the Constitutional Court? SP. zn. PL. ÚS 17/10 (N 123/61 SbNU 767;

232/2011 Coll.), pl. ÚS 3/09 (N 121/57 SbNU 495; 219/2010), pl. ÚS

11/04 (89/37; 207 N SbNU 220/2005 Coll.) or resolution SP. zn. I. ÚS

2632/12 (available at http://nalus.usoud.cz)?. To fundamentally the same conclusions

about the components of the public prosecutor's Office as part of the Executive with

the sui generis position of the body grows up and legal doctrine (reference is made to

the same work, as is mentioned in paragraph 33 above). If not then the State

the Prosecutor's Office can be considered from the standpoint of constitutional law authority can

the Court, it is necessary to apply only to the constitutional principles of the Executive,

which is part of another specific issue. Applicants with reference to the article. 2 (2). 3

The Constitution, conclude that preparatory proceedings must be as a classical element

Strickland, activities of the State ruled by the principle of legality, but also

in the opinion of the Czech Bar Association, the Constitution or the Charter does not contain any

the requirement that the law was determined by local or functional

the jurisdiction of a particular public authority, if not by the Court. Only in the

relation to the courts used by the article. 38 of the Charter of the concept of "nationality from the perspective of

the constitutional here, there is no strict requirement for jurisdiction

the public prosecutor to a specific case at the level of the law. A claim that

are the core content of the proposal, has already been the case-law of the Constitutional Court

is refuted.



58. Despite this disagreement with the rationale of the proposal submitted by the United

the Bar Association considers that the repeal, or interpretative

the finding of the Constitutional Court might be suitable. Even when challenged

the provisions do not show formal insufficiency, in specific cases

are enshrined mechanisms being abused. It is an instrument to be applied, in particular,

in cases of politically exposed. It should be noted that the State

the Prosecutor's Office, which are in some cases than other certifying and

expose yourself. The second aspect of the matter is it that removing things

public prosecutor competent according to the place of the offence to

often significantly larger distance violation occurs the principles of equality

participants in a particular control in the form of an increase in the time and logistics

performance of acts carried out in the framework of the defence.



I) replica of the appellants



59. the Constitutional Court received the observations of the appellants to any

replica. You agree with the observations of the Supreme Court and vice versa

representation of the Ministry of Justice and public prosecutor's Office is about

nedůvodnosti application.



60. the representation of the Ministry of Justice, the appellants stated that they

This Ministry is unaware of the link between the public prosecutor's Office and

Court for preliminary proceedings. It is true that a number of interventions to be decided

the Court, but on the basis of the proposal of the State Prosecutor. The power of the State

the prosecution service is significant, therefore, must also be formal procedures for

dealing with this power guaranteed, including the basic principles of legality

activities of the State as a whole, hence the public prosecutor's Office. If the law

sets out the jurisdiction of the public prosecutor's Office a general norm, according to which

represents the State in court that the Prosecutor's Office, which for him

acts, unless the legislation provides otherwise (art. 7 of Act No. 283/1993 Coll.

the public prosecutor's Office), then this standard also applies to the scope of the

the framework of the preparatory proceedings (proposals for binding, wires, etc.). If the law

allows that an exception may lay down the law, it is clear that

such an exception cannot establish a high State

Prosecutor's Office issued with the consent of the Attorney General. These

the two entities cannot legislate, but only

individual legal acts and the acts of the proceedings. The Ministry cannot edit

tilt the law by issuing a decree.



61. observations of the Prosecutor's promoters set

misunderstanding of the difference between the decree and the law, when the statutory mandate

in no way does not assume that the Decree was further empowered to

individual ' šibování with the cases, "Chief Public Prosecutor's Office and

of the Attorney General. The contested provisions would not be

unconstitutional only if it would be able to do so by law, and

If not such a decision of the public prosecutor-as

components of Executive and one of the parties to court-effect on the

jurisdiction of the Court for the pre-trial investigation. If the policy is lawful

nationality established as protection bodies eg. in misdemeanor

control, the more this applies to criminal proceedings. The right to legal

Although the Constitution does not provide for the public prosecutor, but lays down the law.

Compliance with this requirement is given by the judge for the preliminary and binding

criminal proceedings on the competent public prosecutor's Office. If such

the binding was not, it would be maybe singled out changes within the

the Prosecutor's Office. In conclusion, the appellants stressed that from the

the statistics referred to in the expression of the growing trend significantly passes

moving things between 2011 and 2013, with the highest State

representative always all proposals "automatically" pass.



62. the observations of the Supreme Public Prosecutor's Office in Prague, the appellants

the Group stated that the constitutional requirement of legality, downplays if according

It is sufficient to refer to the promulgation of the law, and that then he can edit things

that do not have a basis in the law. The mandate for the publication of a notice

The Ministry of justice contained in the law had not foreseen,

the Decree also empowers itself to decide on the jurisdiction of the State

the Prosecutor's Office of the specific officers, without it assumed the law.

One of the fundamental shortcomings of the contested edit is the lack of options

review of the changes to the competent public prosecutor's Office on the initiative of

of the accused; Therefore, it is necessary to exclude the discretionary power in the form of decision-making in

individual cases outside the rules generally specified by law or regulation,

and it just by regulation podzákonným. If the law does not allow a top

the Prosecutor's Office and the Attorney General to change the jurisdiction of the

the Prosecutor's Office, he cannot do so, or Ordinance, let alone

the social order or economic reasons. To the objection that a part of

the contested provisions were part of the rules of procedure already before the year 2014,

the appellants state that up to Amendment No. 4/2014 Coll., has been strengthened and


the extension of the scope for illegal and unconstitutional arbitrariness when

change of the public prosecutor's Office, which is outside the proper monitoring of the judicial

power. Unconstitutionality or illegality in the legal order may be included after

longer period of time that the defective provision is not used. But, as evidenced by the

the Supreme Public Prosecutor's Office statistics, the contested adjustment began to

be nadužívána.



63. From the observations of the Czech Bar Association, the appellants rely on it

Czech Bar Association, only with a different argument lists the reasons for cancellation

the contested provisions, in particular with reference to their abuse.



64. Finally, in its reply, the plaintiffs point to the new specific significant

the criminal case, in which the abuse of the contested provisions,

When "strange changes in the jurisdiction of criminal cases between Bohemia and Moravia

covers the Supreme Public Prosecutor's Office ", with the defense the option

to change the jurisdiction of the public prosecutor's Office does not have, which is distorted

"equality of arms" before the Court. In conclusion, the appellants invited the Constitutional

the Court, in order to "put" the State representatives to its

by individual decision without basis in the law to levy Court

decisions about interventions into the rights of the people: "is it right to cancel the imaginary trains

between Prague and Ostrava flight with a stop in Olomouc, transporting the selected

criminal cases. "



III.



Assessment of the proposal in terms of § 64 and 67 of Act No. 182/1993 Coll.

The Constitutional Court, as amended



65. a proposal has been filed pursuant to § 64 para. 2 (a). (b)) of the Act on the Constitutional Court

a group of 27 members of Parliament and the Constitutional Court has considered that, after the formal page

in accordance with the requirements of Act No. 182/1993 Coll., on the Constitutional Court, in

as amended.



66. The Constitutional Court also notes that, despite the Ministry of Justice

the said legislative work on the new law on the Prosecutor's Office

(see paragraph 18 above) are the contested provisions of the rules in the

the validity of, and is not so given the reason for the termination of the proceeding under section 67 para. 1

the law on the Constitutional Court.



IV.



Assessment of the proposal in terms of section 68 of Act No. 182/1993 Coll., on the constitutional

the Tribunal, as amended by Act No. 48/2002 Coll.



67. According to § 68 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, as amended by

Act No. 48/2002 Coll., Constitutional Court in proceedings relating to revocation of the legal

Regulation or its individual provisions shall examine whether the contested

legislation was adopted and issued within the limits of the Constitution laid down the competence

and constitutionally prescribed way.



68. In this regard the plaintiffs hold out against last revised the text of the

the contested provisions made by Amendment No. 4/2014 Coll. with the fact that it

Mgr. Marie Benešová signed as a Minister in his resignation, although the Government,

that does not have the confidence of the Chamber of Deputies, to just focus on the normal and

necessary maintenance State.



69. As in its observations, however, takes note of the Ministry of Justice,

The Constitutional Court on this issue expressed in its finding of TechCrunch.com. PL.

TC 6/07 (see above). In it, inter alia, stated that "the Institute mandate

the Government, in the demise of the ' provisional exercise of its functions pursuant to art. 62 (a). (d))

The Constitution is based on the concept of the need for permanent action of the Executive power,

When in law it is not desirable that any power in the State has not been

for some time his supreme authority exercised. Concept in advance limited

the powers of the interim Government, typically the exclusion of certain acts from the

powers, it carries the risk that rigid-or in determining the limits of the

relative (or uncertain) Conversely, uncertain-threshold of such a restriction

makes it harder for the proper functioning of the entire Executive, ... There is no solution to the Government crisis

transfer of political control of the interim Executive to the Constitutional Court.

Mode of the provisional Government puts the responsibility mainly on itself

The Chamber of Deputies, which is given by (time) space to create

sufficient political majority for the vote of confidence a new stable Government

... The bearer of a political responsibility for the activities of the constitutionally mandated Department of the

the Minister, who is in this direction controlled by conventional

the means of parliamentary democracy, as are questions (article 53 paragraph 1.

1, of the Constitution), the citation right of the Chamber of Deputies and its bodies or

the Commission of inquiry (article 30, article 38, paragraph 2, of the Constitution). Other control

mechanism, which is monitored by the activity, and called for constitutional law

responsibility of the Minister, is also a possibility of his removal from Office. According to the article. 74

The Constitution of this control mechanism, it is for the Prime Minister (a proposal to

the appeal of the Minister) and President of the Republic (Appeal itself) ".



70. The Constitutional Court in that the award also emphasized from the very beginning

the existing restrictions subordinate standardisation, when "through

terms and conditions legal authorization (article 79, paragraph 3, of the Constitution) is the presence or

the absence of such a mandate is always in the present legislature. In this

respect-when respect for balancing relations between the power of the Executive and

legislative-there is an urgent need to draw specific constitutional

restrictions of the Ministry or other administrative authority for their podzákonnou

normotvorbu in the constitutional order. It is the only Parliament, which in

specific things it finds necessary. the suitability of the Edition podzákonného

prescription for the proper implementation of the law ". In the opinion of the Constitutional Court

ministries and other administrative authorities "do not have a direct or an existential bind-

Unlike Government-to the political will (confidence) the Chamber of Deputies.

The Minister is accountable to the Government, the Chamber of Deputies only

vicariously ", the Constitutional Court and in finding SP. zn. PL. ÚS 6/07

concluded that the jurisdiction of the Ministry of "constitutionally enshrined to issue

secondary legislation pursuant to art. paragraph 79. the Constitution is not ex

in a special way constitutione limited-in-scope and content for the

When the Ministry controlled by the Minister, who is a member of the Government

provisionally in charge of the exercise of its functions pursuant to art. 62 (a). (d)) of the Constitution ",

While at the same time he stressed that it is necessary to consistently apply "General requirements

on the delegated normotvorbu who must move only in

strictly interpreted the content, scope and limits-in particular-

the purpose of the enabling standards ".



71. The mere fact that the appellants argue that the amendment # 4/2014

Coll. signed Mgr. Marie Benešová, as a Minister in his resignation so alone

cannot in itself be a reason to cancel the draft the contested provisions.



In the.



The text of the contested provisions of the rules of procedure and related legislation



72. the provisions of section 18 of the criminal procedure code governing the local jurisdiction of the courts

in criminal proceedings:



' (1) proceedings, the Court in whose district the crime was committed.



(2) if the crime scene to determine or if the Act was committed abroad which takes place

the management of the Court in whose district the accused resides, works or resides;

If you can't find these places or are outside the territory of the United

States, held court in whose district the action transpired. "



73. the provisions of section 26 of the criminal procedure code governing the jurisdiction of courts in

pre-trial criminal:



"(1) to conduct preliminary proceedings the competent District Court, in

the place is active, the State Prosecutor, who submitted the proposal.



(2) the Court in which the Prosecutor has filed a proposal under paragraph 1, shall

becomes competent to carry out all the acts of the Court throughout the preparatory

proceedings, if there is no transfer of the case because of the nationality of another

the Prosecutor working outside the perimeter of the Court. "



74. The territorial scope of the jurisdiction of the public prosecutor's Office and modifies the

the law on the Prosecutor's Office in § 7, which reads as follows:



"(1) the headquarters of the Prosecutor's offices and the geographical scope of the

agree with courts.



(2) the public prosecutor's Office is responsible for representing the State in court, for

which this public prosecutor's Office Act, unless a special law

provides otherwise. "



75. the authorization to issue the decree modifies the law on Prosecutor's Office

in section 40, which reads as follows:



"(1) the Ministry shall issue a decree



and) rules of procedure of the public prosecution service,



[(b))],



(c)) how to select legal trainees and their recruitment into the

the employment relationship,



d) content journeyman's practice, its organisation and details of

the final examination,



e) circuit which can be conducted by aspirant.



(2) the Ministry may decree provide for exceptions in respect of settlements and

territorial districts of the upper, regional and district

the Prosecutor's Office, in the circuit of the Supreme, County, or district of the State

the Prosecutor's Office to set up its branches or establish the Prosecutor's Office with

exclusive competence, or specify that a certain kind of things from the perimeter

several public prosecutor's Office will deal with one of the State

the Prosecutor's Office. "



76. The rules of procedure contains a section entitled ' substantive jurisdiction of State

representatives in the preparatory proceedings criminal "containing the provisions of § 12 to

16. the following is the text of their valid (the contested provisions are

highlighted in bold):



"section 12



(1) for the performance of supervision of adherence to legality in preparatory proceedings

criminal jurisdiction, the Prosecutor assigned to the State

the Prosecutor's Office, which operates when the Court that would be competent to take place in the


case after indictment proceedings at first instance, if this Ordinance

provides otherwise. If the Act relating to the procedure before you start

criminal prosecution for his need to perform, the competent State

the representative of the public prosecutor, it does not have jurisdiction, that in such a

the case of the competent public prosecutor about the Act without undue

delay and shall inform the thing he passes.



(2) If, for the incompleteness of the facts to determine the jurisdiction of the

the State Prosecutor for the performance of supervision of adherence to legality in

pre-trial criminal at a time when the police drew up a record of the

begin the acts of criminal proceedings, this record shall state

representatives of the public prosecutor's Office at the headquarters of a degree

the police authority or its branches. In the case of the police

authority operating within the territory of the Czech Republic, delivers it to the police

authority of the regional public prosecutor's Office at the headquarters of a police authority or

his business folder, which is a person that the Act

It has made.



(3) unless otherwise provided for in this Decree, the public prosecutor, to whom the

record to initiate the operations of the criminal proceedings and that it is not considered

for locally or competent, shall take all measures

tolerate delay, including delivery of the decision of the Prosecutor

According to the code of criminal procedure when using operatively search resource, which

belong to the remit of the public prosecutor's Office and to which it is entitled,

so, in order not to thwart the purpose of the criminal proceedings. Otherwise, it shall refer the matter

for further proceedings the public prosecutor competent jurisdiction and venue. About

at the same time inform the referral to the police authority, that a record of the

begin the acts of criminal proceedings.



section 13 of the



In cases in which it is for the investigation to take place or the shortened preparatory

proceedings to the Prosecutor (section 10 (2)), shall exercise supervision over the

adherence to legality in the process before you begin criminal prosecution

the Prosecutor, who would otherwise be competent in the matter of an investigation to take place

or abbreviated preparatory proceedings, if, on the basis of the established facts

You can specify the jurisdiction of the public prosecutor. If it clear

the fact that it is an offence, until in the course of examining the

the facts reasonably indicating that a crime has been committed,

the Prosecutor, who shall exercise supervision at this time, the thing shall immediately transmit

such a public prosecutor. The provisions of § 12 para. 3 shall be mutatis mutandis.



§ 14



The higher State Prosecutor's Office is competent to exercise supervision of the

adherence to legality in preliminary proceedings in the case odňalo

immediately lower the public prosecutor, and the Act itself.



§ 15



(1) for the performance of supervision of adherence to legality in preparatory proceedings in

matters of intentional crimes



and committed when the Bank's activities), an investment company, or

Investment Fund, brokerage house, insurance company, health

insurance companies, pension fund, building society or savings and

credit cooperatives, if they have suffered damage of at least 150 miles. CZK,



b) natural or legal persons committed in connection with the

unauthorized exercise of the activities of the entities referred to in point (a)), if the

they have suffered damage of at least 150 miles. CZK,



(c)) which has been caused to property or securities of the State share of the damage

at least 150 miles. CZK,



(d)) under the title the fifth or sixth of the special part of the criminal code,

If they have been committed for the benefit of organized criminal groups, and

Furthermore, the offences of abuse of powers of a public official under section 329 of the criminal

code or offences of passive bribery, bribe or indirect

bribery under sections 331 to 333 of the criminal code, if committed

in connection with the detection or investigation of criminal offences referred to in title

the fifth or sixth of the special part of the criminal code,



(e)) which were without prejudice to the financial or economic interests of the European Union,

If they have suffered damage of at least 150 miles. CZK,



f) committed against the single European currency in favor of organized

criminal groups, a member of an organized group, in a significant or large

the range, or if the proceedings on criminal offences directed against

the single European currency of the police authority, which shall carry out specific tasks

the Panel referred to in article 12 of the International Convention for the Suppression of counterfeiting currency,



g) committed in the context of insolvency proceedings, the competent national

the representative of the Supreme Public Prosecutor's Office, whose jurisdiction is less

the Prosecutor's Office, which would be otherwise competent in the matter.



(2) for the performance of supervision of adherence to legality in preparatory proceedings in

matters of crime offence under section 214 of the criminal code,

offence of negligence under section 215 of the criminal code, legalization

the proceeds of crime pursuant to section 216 of the criminal code and legalization

the proceeds of crime through negligence pursuant to § 217 of the Penal Code

the competent public prosecutor of the Supreme Public Prosecutor's Office, in whose

the circuit is less public prosecutor's Office, which would be otherwise in a case

appropriate, if the source is a criminal offence of the criminal

the acts listed in paragraph 1.



(3) the Chief Public Prosecutor's Office is appropriate in the case of any of the

the offences referred to in paragraphs 1 and 2 and for the performance of supervision of

adherence to legality in preliminary proceedings in the matters of other

the offences for which it is provided by the joint management, if the matter is not

excluded from the joint management.



If the exclusion of things from a common control, and for such things on

the jurisdiction of the Supreme Public Prosecutor's Office is not given in accordance with paragraph 1

or 2, the Chief Public Prosecutor's Office with the prior consent of the

the Supreme State Prosecutor may decide that it is appropriate for the performance of

supervision of adherence to legality in preparatory proceedings in this matter,

otherwise, it is required to refer the matter without delay to materially and locally competent

Public Prosecutor's Office.



(4) the Chief Public Prosecutor's Office may, after prior approval by the Supreme

the public prosecutor may decide to pursue the supervision of the maintenance

legality in preparatory proceedings in matters relating to the offences referred to in

paragraphs 1 to 3 of the lower public prosecutor's Office; his

the jurisdiction shall be determined in accordance with the principles set out in section 12, 14 and 16.



(5) if required by the seriousness, factual or legal complexity of the case, it may

the Director of public prosecution service with the prior consent of the Supreme State

representative decide it is competent to exercise supervision of the

adherence to legality in preparatory proceedings in matters



and)



referred to in paragraph 1 (b). a) to (c)), and (e)), even though they were caused by

the damage is less than 150 miles. CZK, or



(b))



If the assets of another entity creates the damage at least 150 miles. CZK.



section 16 of the



(1) where, under the foregoing provisions of jurisdiction to exercise supervision

several prosecutors, shall be supervised by one who is competent to

the performance of supervision over the investigation of the attacks against the offender

or would constitute a criminal offence; otherwise, the one that started

undertake surveillance first.



(2) the investigation of the case to the State Prosecutor returned the Court, which has been

assigned or ordered, the competent public prosecutor, who shall exercise the

pre-trial supervision. "



Vi.



The assessment of the contested provisions of the jurisdiction of the State from a regulatory perspective

the Prosecutor's Office



and to the legal mandate for) podzákonnou legal jurisdiction

the Prosecutor's offices



77. The Constitutional Court, in the context of the assessment of the merits test application had to

First, deal with the question of whether it is at all possible, in General, to the jurisdiction of the

the Prosecutor's Office was adjusting the podzákonný legislation, when in

This way, the appellants refer to the article. 2 (2). 3 of the Constitution, respectively

article. 2 (2). 2 of the Charter, article. paragraph 79. 1 and 3, and article. 80(2). 2

Of the Constitution. He came to the conclusion that this way of legislation cannot be

a priori excluded.



78. The provisions of article. 2 (2). 3 of the Constitution and article. 2 (2). 2 of the Charter of

prescribe that State power can be exercised only in cases and within the limits of

ways provided for by law. The doctrine of those provisions constitutional

fine concludes that public authorities must carefully follow your "

the statutory competency that must not go. Shall be entitled to

Act only where the law expressly provides "(Prince, v. ins,

Bahýľová, L., Filip, J., Molek, P., Podhrázký, M., Suchánek, R.,

Prince, v., Vyhnánek, l., Constitution of the Czech Republic, comment. Prague:

Linde, 2010, p. 56). "It is a general principle of constitutional law that the

reflected in the reservations of the law in all cases, when it comes to provisioning

Government agencies, the determination of their organization and competence, as well as

procedural rules the way they conduct the procedure. " (Grospič,

J. in Knapp, v. et al. Creation of the right and its current problems. Prague:

Linde Prague, a. s., 1998, p. 99). "Substantive, competence and

the procedural conditions for the application of the State (public) power can be edited only


by the law. " (Mikule, v. in Sládeček, v., Mikule, v., Syllová, j., the Constitution

The United States, a comment. Prague: c.h. Beck, 2007, p. 22).



79. Just referred to does not mean that the law could not perform the

more general, basic editing, and to empower the Ministry to adjust more specific

(see the latter's work). The provisions of article. paragraph 79. the Constitution allows you to

the empowering provisions of the law to transfer more detailed editing on podzákonný

legislation (p. Rychetský, in financial times, p. et al. The Constitution Of The United

Republic, comment. Prague: Wolters Kluwer, a. s., 2015, p. 17). How

The Constitutional Court has already in its finding of TechCrunch.com. III. TC 105/95 (N 91/6

SbNU 171), not in all cases where the constitutional standards reference

on the Act, there is no more adjustment lower normative acts; so is

just when the Constitutional Act expressly reserves such adjustment only

the law.



80. In this way, you can find similarities even with the situation solved in the negative

the award of 18 December 2003. 4.2001, SP. zn. PL. ÚS 55/2000 (N 62/22 SbNU 55;

241/2001 Sb), in which the Constitutional Court assessed the situation where implementation

Regulation of the Ministry of Internal Affairs was entrusted to determine which of the municipal

authorities, municipal authorities, or the authorities or city districts offices

districts will be entrusted with the performance of the scope of the registry office.

Then while the appellants refer to the article. 105 of the Constitution, according to which

performance of State administration bodies may be entrusted to authorities only if provided for in

It's the law, and article. 100 paragraph 1. 1 of the Constitution, according to which the second sentence of the law

When are the territorial local authorities administrative circuits. Thought

that the Constitution was a requirement that the conferral of benefits in and territorial

the scope of public authority in the exercise of State administration was carried out

in the form of law. The Constitutional Court, however, the unconstitutionality of such then contested

the Edit did not find.



81. The Constitutional Court does not find it possible or the appellants ' reference to the article. 79

paragraph. 1 and article. 80(2). 2 of the Constitution. As pointed out in their observations

The Ministry of Justice, the Prosecutor's Office and the United

Bar Association, and as is clear from the judgments of the Supreme Administrative Court

referred to in these observations (6 As 58/2004, 2 As 93/2011, 1 As

51/2012) and other sources (Suchánek, r. in the above quoted work, page.

944), the State Prosecutor's Office is to be regarded as authority of executive power

sui generis that cannot be accommodated after the terms "Ministry" or "another

Administrative Office ", which uses the article. paragraph 79. 1 and 3 of the Constitution.



82. In particular, the appellants, which is also pointed out in the

received submissions, erroneously interpreted the term "scope" is contained in the

article. paragraph 79. 1 and article. 80(2). 2 of the Constitution. As the Prosecutor's Office in the

sent observations explain the material scope is Institute of physical

rights and it is essential to understand the range of tasks that are of a public authority

established. This is the legal expression of the role and status of the State

authority in certain social relations which essentially is about him

the law conferred on the tasks and activities of the Constitutional Court [of 24 September. 4.

1996, SP. zn. I. ÚS 38/95 (N 35/5 SbNU 283)]. The scope of the State

the Prosecutor's Office is defined in part two (section 4 and 5) of the Act on the State

the Prosecutor's Office. The powers vested in the Authority's resources are public

power to realize the scope of the definition (see, for example. Mikule, In.

in Sládeček, v., Mikule, v., Syllová, j., the Constitution of the United States,

comment. Prague: c.h. Beck, 2007, p. 566), and itself

implementation of public authority in the appropriate form, IE. in the form of regulatory or

individually the decision-making [find Constitutional Court of 9 June. 10.2003, sp.

Zn. IV. TC 150/01 (N 117/31 SbNU 57)]. Jurisdiction is the extent

scope within a particular system of public authorities, i.e.. between

each public prosecutor's offices to each other, and thus the Institute

process. As a rule, a distinction is made jurisdiction in rem, which strongly determines the

authorities at first instance and decisive authorities called upon to decide on the

appeals, on the jurisdiction of the functional, which specifies which of the

authorities of certain organizational levels is entitled to decide, and finally

the local jurisdiction, according to which specifies which of the more relevant

authorities have to decide (cf. Madar, Z.. Dictionary of Czech law.

Prague: Prague, Linde and s., 1995, p. 904 et seq.). At the level of the law

govern the subject matter jurisdiction of the public prosecutor's Office to section 7 (2). 2 and §

12A and 12b of the law on the Prosecutor's Office regarding the jurisdiction (cf.

the administrative authorities and courts of the § 10 to 13 of the administrative code, §§ 13 to 15 tax

regulations, section 9 to 12 of the code of civil procedure, section 7 of the code of civil procedure of the administrative and

§ 16 to 26 of the code of criminal procedure). You cannot, therefore, endorse the institutes

scope and jurisdiction of the public prosecutor's Office (albeit on yourself

of course), as they have different content and their relationship is not even

podřazující with each other. The provisions of article. 80(2). In addition, the Constitution

also used the term "position of the State Council, which, of course,

means the legal framework for the prosecution service in the system of

public authority with regard to its importance, influence and position between such

authorities, including in relation to them. The concept of "jurisdiction" is not possible, for their

even under the "position", or under "scope" within the meaning of article 87(1). paragraph 79. 1 and article.

80(2). 2 of the Constitution. The Constitution establishes "State while a Corporation (in

the singular number) as (a) constitutional authority (the institution) and the

each of the prosecution offices to mention (see article 80 and

109), the only law is set up as "system offices

the State "(article 1, paragraph 1, of Act No. 283/1993 Coll., on the public prosecutor's Office,

as amended by Act No. 14/2002 Coll.). Therefore, it is also a reservation,

provided for in article 4(1). 80(2). 2 of the Constitution, it expressly applies only to

"the position of the State Council, and therefore the scope of this constitutional

institution (institution) as a whole, rather than to the jurisdiction

the various "authorities" (degrees within the "system") of the institution, therefore,

to each public prosecutor's Office.



83. There is an obvious disparity in editing articles of the Constitution mentioned in

the previous paragraphs as opposed to the text of the article. 38 para. 1 of the Charter, which

the only provides reservation law, as regards jurisdiction. The diversity,

that has its justification, since the courts and judges, and legal

adjustment for them is clearly necessary to put higher requirements than on the

legislation of other public authorities. It should be stressed that the

the Prosecutor's Office, of course, fulfil a vital role in the

the criminal process, as opposed to the judges the right to legal State

the representative of the Charter does not guarantee.



84. the status of the public prosecutor in criminal proceedings is different from

the position of judge by having a character [see nejudiciální find

The Constitutional Court of 28 June. 6.2011 SP. zn. PL. ÚS 17/10 (N 123/61 SbNU

767; 232/2011 Coll.), in particular its paragraphs 33 and 38], the Prosecutor's Office

There is no authority which stands above procedural authoritatively and parties

finally decides on guilt and punishment of an accused person, but as a party in the

proceedings before the Court (cf. § 12 para. 6 of the criminal procedure code) holds him

constitutionally imposed duty to represent the public suit in this proceeding

(article 80, paragraph 1, of the Constitution). It is clear that the Prosecutor's Office is not

equipped with impartiality in this sense of the word, as is the case with the General

the courts, and, for example, cannot deny the permission vote your own process

and investigative tactics [finding of the Constitutional Court of 3 October 2000. 7.2003, SP. zn.

III. TC 511/02 (N 105/30 SbNU 471)]. However, you can find a variety of

legal guarantees of independence and impartiality of the Prosecutor and of the

the perspective of the subjective, it is possible for the Prosecutor to infer similar

features as the subjectively judge also remain independent elements from

judicial power to distinguish, such as elements of superiority or the district

supervision contained in the provisions of section 11a, 12, 12 c, 12d and 12e the law on

the Prosecutor's Office, which contains for example. higher permissions

the Prosecutor's Office to withdraw the case lower and public prosecutor's Office

deal with it separately, does not follow the guidelines or is idle or in the

its progress is occurring, or unfounded delay head

the public prosecutor to exercise supervision and to give guidance on how to

dealing with the Affairs of prosecutors acting for the prosecution,

headed by. The current concept of the position of the State Prosecutor's Office in the

criminal proceedings thus does not permit to construct the principle of independence

the Prosecutor in a quality comparable with the principle of the independence of the judge

and the right to a legal Attorney within the meaning of case allocation

to the Prosecutor designated pursuant to the same strict rules as

for the distribution of goods between the napadlých judge (similar to the resolution of the

The Constitutional Court, SP. zn. IV. TC 3627/12, to the position of public action and

public prosecutors. Norman f j. Public action, History, volume I.

the present and the possible development of public action. Editions SME Guides CZECH REPUBLIC, 2001

No volume 62, pp. 149-159).



85. for these reasons, the Constitutional Court finds constitutionally compatible

the arguments of the Ministry of Justice, the public prosecutor's Office and the United

the Bar Association, that cannot be a priori excluded the existence of legislation


the jurisdiction of the public prosecutor's offices specialising in the details

on the level of podzákonného legislation.



86. The Constitutional Court the constitutionality of the contested provisions on the jurisdiction of

Public Prosecutor's Office also considered from the viewpoint of the formulation of the legal

the mandate contained in section 40 of the Act on the public prosecutor's Office, on whose

It was based on the rules of procedure issued by the Constitutional Court, and even in this

the context did not find a violation of the constitutional order.



87. The provisions of article. paragraph 79. the Constitution allows government departments to issue

pseudo-legislation, but only on the basis of the law containing the

the express statutory mandate, and only within their statutory

limits. The law containing the authorization to issue the law according to art. 79

paragraph. the Constitution must also contain limits (limits) of such

empowerment (financial times, p. work, quoted above). As the Constitutional Court

stated for example. in its award of 15 July. 9.2015 SP. zn. PL. ÚS 13/14

(297/2015), the power to legislate to ministries

implementation of the law is "subject to the existence of explicit legal authorization

and its limits, and according to the case-law of the Constitutional Court is of the

provisions should be interpreted restrictively, in the sense that this authorisation shall

must be specific, unambiguous and clear [cf. findings from 21 June. 6.2000

SP. zn. PL. ÚS 3/2000 (N 93/18 SbNU 287; 231/2000)]. If

so, the Constitutional Court examines whether legislation was podzákonný released

public body authorized to do so and within the limits of its competence, i.e. whether the

shall exercise this power was moving within the limits and on the basis of the law

(secundum et intra legem), rather than outside the law (preater legem) ".

To put it simply, "the point is, that if, when it has to be according to the law

X, the law has provided that Y should be, but that has to be X 1, x 2, x 3. From

the enabling provisions must be evident to the will of the legislator to modify the above

legal standard. Even in this case, however, podzákonný legislation

must not interfere with the Affairs of the reserved only to the regulation of the law (the so-called.

the reservation of the Act) "[see also award of 18 December. 8.2004, SP. zn. PL.

TC 7/03 (N 113/34 SbNU 165; 512/2004) or the award of 22 March. 10, 2013.

SP. zn. PL. ÚS 19/13 (N 178/71 SbNU 105; 396/2013)].



88. the rules of procedure of the Ministry of Justice was given with reference to

the enabling provisions contained in section 40 of the Act on the public prosecutor's Office.

During the analysis of the enabling provisions on individual

elements, it is obvious that it is the Ministry of Justice (in addition to the

matters relating to legal trainees, which can be used in the context of the

the present case disregarded) shall be entitled to the following:



the determination of the rules of procedure) and the public prosecutor's Office,



(b) the exception concerning the determination of the seats) and the territorial State circuits

the Prosecutor's Office,



(c) the establishment of branches of the public prosecutor's Office),



(d) the public prosecutor's Office with) the establishment of exclusive competence, and



e) specifying that a certain kind of things from the perimeter of several State

the Prosecutor's Office will deal with one of the State Prosecutor.



89. the possibility to define the jurisdiction of the public prosecutor's Office by the implementing

legislation passes in the opinion of the Constitutional Court of the two from the top

those elements enabling the provision of section 40 of the Act on the State

the Prosecutor's Office, referred to in points (d) and (e)).)



90. in the first case, the mandate of the Ministry of Justice in the

Ordinance to specify that a certain kind of things from the perimeter of several State

the Prosecutor's Office will deal with one of the State Prosecutor (article 40, paragraph 2,

the law on the public prosecutor's Office). This is essentially a mandate

for the determination of jurisdiction, since it is the jurisdiction that

is used to resolve the questions that a particular public prosecutor's Office of the

the organizational structure of the prosecution service is called on to respond to

certain things (cf. S, et al. The administrative procedural law. 2. vyd.

Plzeň: Publishers Inc., 2012, p. 73). According to the

How is referred to the mandate formulated, might not be State

the Prosecutor's Office, which will handle the case of a certain type from the perimeter

several public prosecutor's Office, the public prosecutors ' offices of the same

as the Prosecutor's Office of the circuit which has things going forward.

The formulation of the legal authorization then fully corresponds to the wording of § 15

the rules of procedure, where it is the jurisdiction of the (Prosecutor's) Chief

the public prosecutor always bound to the jurisdiction of the lower State

the Prosecutor's Office in his district, that would otherwise be (according to the General Ledger adjustments

and the local jurisdiction) was competent in the matter.



91. in the second case, you can agree with the opinion of the Ministry of

Justice contained in his statement to the constitutional complaint, according to the

the explicit authorisation of the Ministry for the establishment of the State

the Prosecutor's Office with exclusive competence (cf. § 40 paragraph 2 of the law on

the Prosecutor's Office) includes also a mandate to lay down

(rules of procedure) by a decree of the General Ledger or the local jurisdiction of such

Public Prosecutor's Office (in preliminary proceedings). Although the institutes

scope and jurisdiction cannot be, as indicated above, endorse,

as they have different content and their relationship is not mutually podřazující

with, the definition of nationality is to be understood as a condicio sine qua non

for the performance of activities exclusively Acting Prosecutor

preliminary proceedings, to which the establishment of that provision authorises expressly.

The establishment of a public prosecutor's Office with the exclusive scope is so

inevitably, if they haven't already neplynulo of General legal

Edit, the definition of its jurisdiction, which therefore becomes a reasoned

part of the implementing regulation issued on the basis of such a mandate.



92. in the light of the above, therefore, the Constitutional Court concluded that the

diction of the parts of the mandate contained in paragraph 2 of section 40. 2 of the law on

the Prosecutor's Office is the apparent will of the legislator to modify the Decree

The Ministry of Justice is also the jurisdiction of the public prosecutor's Office in the

preliminary proceedings, albeit not explicitly specified in this mandate,

which is a requirement under consideration podzákonnou normotvorbu-existence

the obvious will of the legislator to modify the above legal standard [see find

The Constitutional Court of 14 February. 2.2001, SP. zn. PL. ÚS 45/2000 (N 30/21 SbNU

261, 270; 96/2001 Sb.)] -in the case in full.



(b)) other objections of the appellants against the contested applicable



93. the Constitutional Court also dealt with the matter by modifying with regard to the other

the appellants ' objections. The first objection is that the contested provisions

allows you to change the jurisdiction of the Supervisory prosecutors

spolurozhodnutím of the Supreme Public Prosecutor's Office and the Supreme State

the representative, in view of the fact that jurisdiction is not determined by any

the normative legal act, but by individual decision.



94. The Constitutional Court, however, does not believe that the possibility of such a decision would

oppose the constitutional order. As explained in its observations

The Ministry of Justice, since the decision issued on the basis

the contested provisions are not normative legal acts, but legal

the acts of the individual that conceptually represent application standards in the

particular case, rather than the creation of new standards, such

the legal structure is not in conflict with the prohibition of tertiary standardisation.



95. The changes in the jurisdiction of the public authorities, on which the decision is taken

individual decisions are not the rule of law in General, not

unknown, both with regard to the public prosecutor's Office (Section 12d (2)

the law on the public prosecutor's Office) and the courts (art. 25 of the code of criminal procedure).



96. Also when compared with foreign laws do not appear to

the possibility of certain changes in the jurisdiction of the public prosecutor's Office according to the

the decision of one of the higher levels of the system in any way unusual.



97. For example, in Poland it is the jurisdiction of the public prosecutor's Office,

as in the Czech Republic, modified podzákonným law, specifically

Regulation of the Minister of Justice of 11 December. September 2014 on its rules of procedure

General units of the prosecution service (Regulamin wewnetrznego

urzedowania powszechnych while the Organization of the public prosecutor). In his

§ 58 para. 1 is the first in General, provided that the place of jurisdiction

the State Prosecutor's Office in the preparatory proceedings governed by venue

the courts, however, paragraph 5 allows the head of the public prosecutor to decide

about the change in jurisdiction of the public prosecutor's Office at a later stage ("W

szczególnie uzasadnionych przypadkach, from wzgledu on the good prowadzonego

postepowania, kierownik jednostki wyzszego stopnia moze, w drodze

postanowienia, przekazać sprawe to prowadzenia lub innej nadzoru

podleglej NET wlaściwa w jednostce jednostka ust [2]. 1.").



98. In Austria § 21 para. 2 of the code of criminal procedure (Strafprozessordnung)

provides that the Prosecutor of the Supreme Public Prosecutor's Office is

entitled to participate in any of the proceedings in its scope; in

individual cases, the tasks and powers (permission) in the case of

the child public prosecutor's Office to take over for him.



99. In the case of Slovakia enables you to act 153/2001 Z.z., prokuratúre,


Article 51 to the General Attorney and in its scope

the Regional Prosecutor in each case specify exceptions from the provisions of §

46 to 50, i.e. practically from all the provisions governing the jurisdiction of the

prokuratur.



100. In Germany, the right and the duty to supervise the activities of the Commission, and in

It is for the head of the State Prosecutor to the Prosecutor,

which in this context has permission to impose binding instructions

for the discharge of any of the stuff, including the right to withdraw a certain thing

any public prosecutor's Office in his district and allocate it to another

the public prosecutor, or even deal with it alone [§ 145 of the Federal law

on the judicial system (Gerichtsverfassungsgesetz)].



101. it is clear that the comparison does not indicate in favour of the view that

the Prosecutor's Office was unable to make an individual decision about changing

jurisdiction. Rather, it seems that the contested adjustment in the rules of procedure

include in comparison with other editing changes to the nationality in the Czech legal

the order, as well as in the above, carried out by international comparison between those

more stringent, for example, when the decision on jurisdiction cannot

make the top Prosecutor's Office itself, but must be given and the

the consent of the Attorney General.



102. The second objection raised by the appellants, is that they are not

given the clear limits for the decision in question, and is thus given space for

arbitrage. Even here, however, their criticism of the Constitutional Court does not find it

the possible.



103. first of all, it should be noted again that the public prosecutor's Office

There is no authority which would stand above the procedural decisions of the parties and the blame

and punishment of the accused. As already described above, its position is

different, and, logically, is so different levels of stringency with which it is to be

look at the level of adjustment to the fixity and jurisdiction over

the requirements of the jurisdiction of the courts. The intensity of the need to prevent

discretion on the question of the jurisdiction of the public prosecutor's Office is no doubt

less than in the case of courts and judges. In the case of public prosecutor's offices

in this respect, it is clearly permitted greater flexibility.



104. a closer look at the contested provisions then concerns about arbitrariness when

their application does not raise. In the case of article 15, paragraph 2. 3 the second sentence of the

the order is to be noted that this provision is applicable only for

the situation, when foreclosure case of joint management and such things

would have already ceased to be the Supreme Public Prosecutor's Office have jurisdiction

under § 15 para. 1 or 2 of the rules of procedure. This link to the exclusion of

from the common control is the space in which the decision may be of

jurisdiction issued a fairly narrowly defined. The need to keep the performance

surveillance in the high State Prosecutor's Office, the Prosecutor has already

the case of nastudován, it is evident in these cases

and not only does not give rise to doubts as to the correctness of its purpose, but

on the contrary, it is an instrument of the utmost a sensible, contributing to the speed control,

and thus for the protection of the rights of the accused to hear the case without unnecessary

delay, respectively, within a reasonable time, guaranteed in article. 38 para. 2

Of the Charter and article. 6 (1). 1 of the Convention for the protection of human rights and fundamental

freedoms.



105. Also challenged the adjustment in § 15 para. 5 of the tracks

no doubt a rational purpose. At the same time lay down certain criteria (severity,

factual or legal complexity of the case), which has decision-making control.

The possibility of attraction is also tightly bounded by it may top

the Prosecutor's Office take only



and) in matters intentional criminal offences 1. committed in the activities of the Bank,

an investment company or investment fund, brokerage

securities, insurance companies, health insurance companies, pension fund, building

savings bank or savings and credit cooperatives, or 2. physical

or legal persons committed in connection with the unauthorized performance

the activities of the listed entities, or 3. which was caused by damage to the

property or asset share state, or 4. which were without prejudice to the

the financial or economic interests of the European Union, or



(b) if the asset) of another entity creates the damage at least 150 miles. CZK.



106. on the basis of that you can't fail to notice that the applicant

the contested edit contains clearer criteria and narrower limits for decision making

on jurisdiction than, say, section 25 code of criminal procedure, which allows you to

to change the jurisdiction of the Court in any case and as a prerequisite for such

the decision merely states that can be made from "an important

the reason ". Under the situation where section 25 of the code of criminal procedure provides for the possibility of change

jurisdiction of the Court, on which, as explained above, should be

relative to the more stringent standards than in the case of public prosecutor's offices.

Also, in view of the above, carried out international comparisons is evident,

that the contested legislation belongs rather to those restriktivnějším.



107. Even thus far so the Constitutional Court did not find the appellants ' arguments

důvodnými.



VII.



The assessment of the contested provisions of jurisdiction from a regulatory perspective



108. In the next step, he challenged the provisions of the Constitutional Court,

in terms of their connectedness with the legislation of the jurisdiction of the Court.

He came to the conclusion that even in this direction are not fulfilled, the reasons for

that would need to be lodged the petition.



109. According to the article. 38 para. 1 of the Charter, that no one shall be deprived of his

judges of the Court, with jurisdiction of the Court and the judge are determined by law.

This provision is among those governing ústavodárce rozhraničuje

the separation of powers between the legislative and the Executive. The reservation

the law, according to which the matter in question is can be modified only by law, and

regulatory power so cannot belong to the Government, Ministry or another

authority. Even lawmakers are not allowed to by law, created a mandate,

that would allow those authorities. The principle of the separation of powers, conversely,

corresponds to the rozhraničení powers that the constitutional limits to the authorities

Executive and legislative power. The concept of the rule of law, which

is their constitutional enshrinement in the article. 1 (1). 1 of the Constitution, it follows the principle

that neither the legislature nor the Executive Branch cannot with the forms of law, respectively

sources of law, to dispose freely, but must be guided by considerations of

ústavodárce. The Constitutional Court has already interpreted, that cannot be

admit that the sphere of the protection of fundamental rights and freedoms came under

power to the Executive, who is not entitled to [see the constitutional

of the Court of 23 November 2005. 7.2013, SP. zn. PL. ÚS 13/12 (N 126/70 SbNU 147;

259/2013 Sb.)]. If ústavodárce has entrusted to the definition of competency

jurisdiction of the Court and the judge only ruled out by secondary law,

editing, even if it was from all the other aspects perhaps, even

desirable.



110. As is evident from the recap of the legislation referred to above, the criminal

on the one hand, it establishes clear rules on the jurisdiction of the Court

in its paragraph 18, however, it is in the case of nationality

the Court acts in the preparatory proceedings. The provisions of § 26 of the code of criminal procedure

This is because although stipulates that the competent court is the district, in terms of local

jurisdiction, however, basically refers to the jurisdiction of the State

the Prosecutor's Office, respectively, of the public prosecutor ("in the place where is active

the Prosecutor who filed the proposal ").



111. As contemplated by the Supreme Court in its observations, if the legal

the design makes the local jurisdiction of the Court in preliminary proceedings, the dependent

on which the prosecution in the preliminary proceedings shall be supervised

of adherence to legality, it is necessary to insist that the legislation

the activities of the public prosecutor's Office did not hinder the fulfillment of article. 38 para. 1

Of the Charter.



112. Although the bulk of the editing of the jurisdiction of the State

prosecutors ' offices enshrined in the rules of procedure, as the podzákonného of the legal

the legislation is not given a reason for derogation the contested provisions-as further

explained-not even for their conflict with the article. 38 para. 1 of the Charter. The constitutional

the Court in the long term in the case of proceedings for review of legislation

stresses the principle of the primacy of constitutional legal interpreting

Regulation or its individual provisions before the derogation with the fact that

It is the duty of all public authorities interpret and apply the law of the

with regard to the requirement of the protection of fundamental rights and freedoms (article 1, para.

1 and article. 4 of the Constitution). The Constitutional Court therefore assess whether the contested

to interpret legislation constitutionally Conformal manner to suit

the requirements of article guaranteed 38 para. 1 of the Charter. He came to the conclusion

that space for constitutionally Conformal interpretation of the contested provisions is

in this case given.



113. the Constitutional Court notes that thing under consideration now concerns cases

When the Prosecutor is the sole supervisory body in relation to the

the police authority in the exercise of supervision of adherence to legality in

preliminary proceedings within the meaning of § 174 of criminal procedure. On the contrary, in cases

When the Prosecutor acts in the framework of preparatory proceedings as a party in the

proceedings before the Court within the meaning of § 12 para. 6 of the code of criminal procedure and is gifted with

Design permissions to the Court (in particular in relation to the implementation of the


hedge operations according to the head of the fourth code of criminal procedure, including proposals for

custody), the contested legislation applies the rules of procedure,

Since it applies only to the performance of the above. In cases of

These design permissions prosecutors establish

jurisdiction of the court controls the General arrangements in the code of criminal procedure.



114. The legal rules of jurisdiction to act in the preparatory

proceedings in section 26 of the criminal procedure code is a lex specialis to the General provisions

the criminal procedure code of substantive and territorial jurisdiction of the courts (see Šámal, p. and

wheels. The criminal procedure code, the comment. 7. Edition, Prague: c. h. Beck, 2013, with.

342). In section 26 of the criminal procedure jurisdiction is fixed.

the District Court, however, the local jurisdiction shall be determined by the fact that

in the circuit of the District Court is operating, the State Prosecutor, who filed a

an appropriate proposal.



115. in the event that the application is made, the Prosecutor of the district

the public prosecutor, i.e. the public prosecutor acting in the

the perimeter of a single district court, the jurisdiction of the District Court is

directly based legal legislation section 18 of the criminal procedure code, as from there

laid down by the Court of general jurisdiction derives local

the jurisdiction of the District Public Prosecutor's Office authorized to submit

the corresponding draft (section 7 of Act No. 283/1993 Coll., on the State

the Prosecutor's Office, in conjunction with § 12 et seq. the rules of procedure). In that

the case, therefore, there is no room for consideration of the violation of the article. 38 para. 1 of the Charter.



116. in the event that the application is made, the Prosecutor of the regional

the public prosecutor or Chief Public Prosecutor's Office, however, is

the situation is different, since it is a Prosecutor acting in the circuit

more district courts. Special rules of jurisdiction pursuant to section 26 of the criminal

the order in this case does not lead to the designation of a single locally

the competent District Court, as in the case of a district of the State

the Prosecutor's Office referred to in the preceding paragraph. Contrary to the article. 38 para.

1 of the Charter would be an interpretation of § 26 of the code of criminal procedure, according to which the

It was left to the discretion of the public prosecutor of the district or Supreme

the Prosecutor's Office, which from the district courts within its circuit chooses,

and which of them shall submit an appropriate proposal. As the Constitutional Court

He stated in its previous case-law, in the context of § 146a of paragraph 1. 2

Code of criminal procedure, "any procedural provisions is ... must be interpreted as

to the public authorities to make space for discretion and protect

the predictability of the exercise of State authority as an important element of the abovementioned

the principle of legal certainty. Already for this reason, the Constitutional Court seems

appropriate to such an interpretation of the provision, which does not allow dozorujícímu

to the Prosecutor to choose for deciding on the complaint, in principle, any

the Court, which is located on the territory of the circumference of its competence "(find

The Constitutional Court of 15 July. 9.2015 SP. zn. III. TC 1518/15; available on the

http://nalus.usoud.cz).



117. Constitutionally Conformal interpretation section 26 of the criminal code, be a harmonious with art.

38 para. 1 of the Charter, it is therefore necessary to reach such a conclusion, that if

the proposal submitted by the regional prosecutor or Chief State

the Prosecutor's Office, it is necessary to apply also the General arrangements of the local

jurisdiction of the courts in the criminal procedure code and the local jurisdiction of the District Court

determined according to the criteria set out in section 18 of the code of criminal procedure, i.e.. from the set

district courts, in which the regional or the Director of public

the Prosecutor's Office Act, choose one whose jurisdiction these

your search criteria. The provisions of article 15, paragraph 2. 3 the second sentence and paragraph. 5

Decree No. 23/1994 Coll., on rules of procedure of the public prosecution service,

the establishment of branches of some of the prosecutorial and details of

operations carried out by the legal aspirant, as amended,

Therefore, the contested provisions do not (and cannot be) without prejudice to the substantive and local

the jurisdiction of the courts under the criminal procedure code; proposals of public prosecutors

the regional public prosecutor's Office and the Prosecutor's offices in the upper

preliminary proceedings must, in accordance with article 7(2). 38 para. 1 of the Charter of fundamental

rights and freedoms be directed to the District Court under section 18

the criminal procedure code.



118. that interpretation of the rules of territorial jurisdiction of the District Court to

acts in pre-trial process is lacking in conflict with the law on

the legal judge, since the jurisdiction of the District Court is always

determined by law, regardless of whether the application is made

the public prosecutor of the district, County or the Chief of the State

the Prosecutor's Office. The Constitutional Court stresses in this context that, according to

article. 95 para. 1 of the Constitution, the judge in the decision is bound by the law (and the

the international agreement that is part of the legal system); is entitled to

to assess the compliance of other legislation with the law (or with such

International Treaty). The general courts are therefore required to be based on

determine their jurisdiction by law, and to do so in accordance

the aforementioned constitutionally Conformal interpretation, and vice-versa is not their

obligations in such cases, apply the rules of procedure, if its

the basis should be determined by the local jurisdiction of the Court in violation of the law,

respectively, with art. 38 para. 1 of the Charter. With regard to the public prosecutor's Office,

It is duty bound to the above constitutional interpretation by the Constitutional Court

respect the terms of article 1. 89 para. 2 of the Constitution.



VIII.



The conclusion of the



119. The Constitutional Court, with regard to the above constitutionally Conformal

interpretation, did not find that the contested provisions constitute a violation of

the constitutional order authorizing the Constitutional Court to the derogatory usage

the powers, which he is entitled. On the basis of the reasons set out in parts VI

and (VII) the Constitutional Court therefore, the design of the group members of the Chamber of Deputies

Parliament of the Czech Republic to repeal section 15 para. 3 the second sentence and paragraph. 5

Decree No. 23/1994 Coll., on rules of procedure of the public prosecution service,

the establishment of branches of some of the prosecutorial and details of

operations carried out by the legal aspirant, as amended,

rejected (article 70, paragraph 2, of the law on the Constitutional Court).



120. The Constitutional Court in connection with the legal opinion expressed in

grounds of the decision in the present case, recalls that it carried out

constitutional interpretation the contested provisions the decrees in question does not have a

(cf. section 71 of the Act on the Constitutional Court, and on the other hand) without any further impact on the

subsequent reviews of criminal proceedings in which the contested provisions

applied.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the decision of the judges of the plenum have been Jan

Musil, Vladimir Sladecek, and Radovan Suchánek.