71/2016 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled under SP. zn. PL. ÚS 15/14 on 26 April. 1.2016 in plenary

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

Josef Fiala, John Philip, Tomas Too (Judge-Rapporteur), Jan

Musil, Vladimir Sládečka, Radovan Suchánka, Catherine Šimáčkové,

Vojtěch Šimíčka, Jiří Zemánek Uhlir and David about the design of the circuit

Court for Prague 8 to cancel the provisions of section 264 paragraph. 1 of law No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), with the participation of

The Chamber of deputies of the Czech Parliament and the Senate of the

The United States, as parties to the proceedings, and the Governments of the United States, as

intervention management, as follows:



Application for annulment of the provision of section 264 paragraph. 1 of the law No. 141/1961 Coll.

criminal procedure (code of criminal procedure), is rejected.



Justification:



(I).



The definition of things and a recap of the proposal



1. the suggestion that the Constitutional Court was delivered on 24. June 2014, with

District Court of Prague 8, for which this is the President of the Senate. Petr

Novak ("appellant"), with reference to the article. 95 para. 2 of the Constitution

The Czech Republic (hereinafter referred to as "the Constitution"), and § 64 para. 3 of Act No.

182/1993 Coll., on the Constitutional Court, as amended, sought

the cancellation of the provision of section 264 paragraph. 1 of the law No. 141/1961 Coll. on criminal

judicial proceedings (code of criminal procedure), for his conflict with the constitutional order.



2. The present proposal has been filed in connection with the decision of the claimant

a Prosecutor of the District Public Prosecutor's Office for

The threshold of 8 of 11 September. February 2009 on the accused for Jaroslav Hlaváček

the crime of usury according to § 253 para. the second alinea 1, para. 2 of law No.

140/1961 Coll., the criminal code, in the version in force until 31 December 2006. December 2009,

held with him under the SP. zn. 1 T 23/2009. The accused was charged guilty,

that the conduct described in the indictment, the closer, involving 46 each

partial attacks caused in favour of the company ACM Money Česká

Republic, a. s., injured the damage totaling at least 29 284 456

CZK.



3. On 31 December 2004. May 2010 brought a Prosecutor of the district public

Attorney's Office for the threshold of 8 on the accused essentially Jaroslav Hlaváček

the same indictment for the crime of usury according to § 253 para. 1 alinea

Second, paragraph 2. 2 of the criminal code, which contained a description of the 12 sub

the attacks, which had accused Adonis in favour in the previous paragraph

listed companies wreak damage damaged for a total of at least 6

064 716. This District Court of Prague 8 adopted under SP. zn. 5

T 35/2010.



4. To do this, the appellant in its submission pointed out that in terms of legal

the qualification was hearing the accused in both obžalobách Hlaváček

seen as a crime of usury according to § 253 para. 1 second alinea,

paragraph. 2 of the Penal Code, committed 58 sub attacks (46

minor attacks of the indictment and 12 sub 23/2009 1T attacks from the indictment, 5 T

35/2010). continuing offence.



5. By judgment of the District Court for Prague 8, SP. zn. 5 T 35/2010 of 12 October.

October 2011 accused Adonis was acquitted under § 226 (a).

(b)) code of criminal procedure, i.e.. because of that, in his statement of the draft deed marked

It is not a criminal offence, and all the damage they were with their claims on the

compensation dependent on the procedure in matters of civil law. By resolution of the

Municipal Court in Prague, SP. zn. 6 69/2012 of 7 November. March 2012

the appeal of Prosecutor and one of the victims rejected the judgment of the

The District Court for Prague 8, SP. zn. 5 T 35/2010 of 12 October. October 2011

so became legally valid. In the matter of an appeal has not been filed no extraordinary

resource.



6. in proceedings under the SP. zn. 1 T 23/2009 the appellant decided

by judgment of 22 December 2004. March 2012, by which the accused also Hlaváček

acquitted pursuant to § 226 (a). (b)) code of criminal procedure. Against this

decision appealed a Prosecutor and one of the victims,

and resolution of the municipal court in Prague, SP. zn. 61 335/2012 of It

September 27, 2012, the judgment under appeal was canceled in its entirety and the matter was

returned to the applicant for a new decision.



7. By judgment of the District Court for Prague 8, SP. zn. 1 T 23/2009 of 21 March.

March 2013, later accused Adonis convicted 46 sub

the attacks continued the crime of usury according to § 253 para. 1 alinea

Second, paragraph 2. 2 of the criminal code, for which he was sentenced to a prison sentence

freedom in the duration of six months, whose performance has been suspended on the

a trial period of a duration of one year. Damage were with their claims on the

compensation dependent on the procedure in matters of civil law. In

the judgment the appellant stated that he had no choice but to recognize the

the accused guilty, as above, because it is according to section 264 paragraph. 1

the criminal procedure code is bound by the legal opinion expressed by the Court of appeal in

its resolution SP. zn. 61 It 335/2012 of 27 June. September 2012, according to which

the conduct of the defendant has filled all of the characters of the facts

the crime of usury according to § 253 para. 1, 2, of the criminal code. At the same time

the appellant was reminded of the existence of a decision taken in a criminal case

conducted under the SP. zn. 5 T 35/2010, in which he was accused for acts, which

It is considered a continuation of the present crime in this proceeding

the crime of usury, has been finally acquitted. Namely, the reasoning of the

the decision of the municipal court in Prague, SP. zn. 6 69/2012 of 7 November.

March 2012, the appellant by your words inspired in issuing its

the Court of appeal cancelled the previous judgment of 22 December 2004. March

2012, believing that in the identical things must be decided as well,

because the reverse is inconsistent with the constitutional principle of the right to a fair

process.



8. the above judgment the plaintiff SP. zn. 1 T 23/2009 of 21 March.

March 2013 was however on the basis of appeals Prosecutor,

the accused Hlaváček and several damaged cancelled by order of the city

Court in Prague, SP. zn. 61 It 211/2013 of 24 September. September 2013 and the matter was

returned to the applicant for reconsideration. The Court of appeal came to the

the conclusion that the factual findings of the Court of first instance are still incomplete,

do not have a foothold in the inquiry and are in contradiction with the used

legal qualifications. The Court of appeal, inter alia, submit to criticism

change the factual sentences from unfounded by a court as well as nalézacího

of the contested judgment, which in his opinion does not meet the

the requirements enshrined in the provisions of § 125 paragraph. 1 code of criminal procedure, in

the result is this decision nepřezkoumatelné.



9. The applicant, as indicated in its submission to the Constitutional Court,

the legal arguments of the municipal court in Prague, as contained in its resolutions

SP. zn. 61 It 335/2012 of 27 June. September 2012 and SP. zn. 61 211/2013 of It

24 September. September 2013 did not convince as to the correctness of the legal opinion that 46

minor attacks of 58 sub attacks one of the crime of usury, which

He should commit the accused Adonis, is a criminal offence. On the contrary, in the case

for a sensible finds arguments put forward by municipal court in Prague,

resolution SP. zn. 6 69/2012 of 7 November. March 2012. In that

the decision expressed legal opinion that 12 sub attacks an offence

usury, which should allow the accused, it is not a criminal Hlaváček

offence, the rapporteur is correct.



10. For this reason the rapporteur resolution SP. zn. 1 T 23/2003 of the day

March 20, 2014 interrupted pursuant to § 224 of paragraph 1. 5 of the code of criminal procedure, the criminal

the prosecution accused Hlaváček and the matter before the Constitutional Court, as it has

It considers that the provisions of section 264 paragraph. 1 code of criminal procedure concerning the suspension of the Court

of first instance legal opinion the Court of appeal is in breach of article. 82

paragraph. 1 of the Constitution, which enshrines the independence of the judge in the performance of its

function. The appellant based its criticism on the fact that "it is to be a judge

independent, must make decisions independently and should not be bound by

the views with which reasonably disagree as to be bound only

the law ".



11. the appellant pointed to the practice of courts of appeal, that the term "legal

opinion "embodied in the provisions of section 264 paragraph. 1 code of criminal procedure very often

understand and apply too broadly, not only as a question of tangible and

procedural law, but also encompass questions about the implementation of the

evidence and their reviews, and ordering the courts of first instance, as

each evidence review and what conclusions they have on their

the basis of reach, and that without the evidence themselves, the courts of appeal

they have carried out. As courts of appeal, first, replaced by decision

jurisdiction of the courts of first instance, whose activity becomes completely

redundant, and at the same time threaten their independence, since "only

an independent court that evidence, should have the right to evaluate the evidence and from the

, draw conclusions, and its impartiality must not be threatened by the urge

recognise the guilty or waive the indictment, the defendants when it assessed the evidence

According to their internal conviction. "



12. the applicant further expressed the view that the provisions of section 264 paragraph. 1

criminal procedure in the course of time have lost their relevance. Cited

the provision is an integral part of the criminal procedure code from its efficacy (IE.

from the 1. January 1962) and to this day has never been amended accordingly, even though the


the social, political and legal conditions in the meantime have changed radically.

At the time of totality judicial power exercised any independent courts, but fully

the leading role of the COMMUNIST PARTY applied, expressed in the article. 4 of the Constitution of the Czechoslovak

Socialist Republic of 1960. Under the circumstances, it was therefore desirable,

to the courts of appeal in criminal matters through the provision of section

264 paragraph. 1 of the criminal procedure code so much power over the entire criminal proceedings when the

It is generally known that at that time on the higher places, not only in the judiciary,

they were loyal members of the COMMUNIST PARTY of dosazováni.



13. the appellant also drew attention to changes that have occurred in the judicial system,

When in the past on appeals against the decisions of the regional

the Court as a Court of first instance ruled directly by the Supreme Court. In

This task is currently holds the high courts. According to the claimant's preview

It lacks logic, to a relatively large number of courts of appeal, which

cannot unite the courts decision in criminal proceedings, which

activity is reserved to the Supreme Court, issued binding legal opinions.



14. The proposal, as the rapporteur said, it is not directed against

the provisions of § 265s para. 1 of the criminal procedure code and section 270 paragraph. 4 criminal

the order, since the binding legal opinions under these provisions it accepts

The Supreme Court as the ultimate judicial authority which ensures the unity and

the legality of the decisions, and that takes a position on the decision-making activity

the courts [see section 14 of Act No. 6/2002 Coll., courts, judges, lay judges and

the State administration of courts and amending some other acts (law on courts

and the Judges Act, as amended by Act No. 151/2002 Coll.], as amended

regulations]. The county courts, the municipal court in Prague or the high courts as

However, the courts of appeal have not exercised this function.



15. Also, this proposal is not in breach of article. 2 of Protocol No. 7 to the Convention on

the protection of human rights and fundamental freedoms (hereinafter referred to as "the Convention"), i.e.,.

the right of the accused to appeal against the judgment of the Court was

of first instance convicted the crime, does not have to be referred to the district

Court for Prague 8 this proposal.



16. In conclusion, the Appellant expressed the belief that compliance with the submitted

the proposal would result in a substantial change in the performance of the Criminal Court

power, the center of gravity of the criminal proceedings would be really shifted into the main

version before the Court of first instance, where the evidence is carried out, there would be

decentralisation of the criminal judicial system and even to accelerate, as

delays in criminal proceedings are often caused by just dragging and dropping

courts of first instance with the courts, where some criminal case

repeatedly obstructed the courts and courts of first instance to the přikazovány

the new decision, pursuant to the provisions of section 264 paragraph. 1 of the criminal

of the order. In addition, there has been a "zvěrohodnění the criminal judicial authority", as in

the media referované the criminal case are often mezitímně

resolved by various judicial instance differently, which fellow citizens without

legal education and judicial practice do not understand.



II.



The observations of the parties and the intervener control



17. The Chamber of deputies of the Parliament of the Czech Republic (hereinafter referred to as

"Chamber of Deputies") in its observations the Commission found that the contested

the provisions of the code of criminal procedure has not been since the adoption in 1961, not once

amended accordingly. Act No. 141/1961 Coll. was being discussed in the National

Assembly of the Czechoslovak Socialist Republic on 3. the electoral

period (June 12, 1960-12 June 1964) as parliamentary print No 66.

Bill was on 29. unanimously approved November 1961 as amended by the

a written report of constitutional legal Committee. The explanatory memorandum to the draft law,

compared with today's State of significantly more concise. A special section

the explanatory memorandum did not contain the preamble to each paragrafům, but

applied to each of the heads. Explicit justification of the provisions of §

264 paragraph. 1 of the criminal procedure does not contain explanatory memorandum. The Chamber

the Chamber of deputies at the end then stated that leaves it to the Constitutional Court, in

the context of the examination of the proposal by the District Court for Prague 8, to assess

the constitutionality of the contested provisions and issued the appropriate decision.



18. the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "Senate") as a participant

management stated that the proposal for the contested provisions of section 264 paragraph. 1 is part of the

Code of criminal procedure from the date of adoption of this law by the National Assembly

The Czechoslovak Socialist Republic, IE. from 29. November 1961. The

the provisions would stand up in later vast revisions of the criminal law

process and has never been amended (Amendment) Act. Observations on the

things that would be based on direct discussion and adoption of the

the provisions of section 264 paragraph. 1 of the criminal procedure code, or its subsequent amendments,

could the Senate Constitutional Court in his own words to provide, as the

legislative acts took place before its establishment, made up

at the end of 1996. Unfortunately it is not available (perhaps with the exception of the discussion on

the continued existence of the high courts) or an adequate presentation of the current

opinions in a factually related debate of the Senate relating to the area of

the powers and competence of the courts in the hierarchy of the judicial system. Same as

top party marked the Chamber of Deputies, left the Senate, therefore,

the decision in the matter of the discretion of the Constitutional Court.



19. the Government of the Czech Republic (hereinafter referred to as "the Government") entered into the proceedings before

The Constitutional Court as intervener and to submit its observations. In

in his introduction, noted that the proposal lacks relevant

no constitutional arguments, respectively, totally sidesteps the basic postulates

legal doctrines, as well as the conclusions resulting from the case-law of the Constitutional Court.



20. the Court of appeal, the contested Design permission to speak to the Court

of first instance binding legal opinion and also this court order

perform operations and replenishment (section 264 (1) of the criminal procedure code) the Government has identified

one of the basic principles of criminal proceedings. This policy shall be deemed to

the legal doctrine, as well as the Constitutional Court [see e.g. Constitutional Court sp.

Zn. I. ÚS 615/01 of 20 October. March 2002 (N 35/25 SbNU 273)] for the guarantee

realization of the right to a fair trial (article 36, paragraph 1, of the Charter of

fundamental rights and freedoms), and conversely, disregard of the legal opinion

the Court of appeal for violation of the principle of dvojinstančnosti of the Court of

decision making, which in turn leads to a violation of the constitutional order

[see, e.g. the resolution of the Constitutional Court, SP. zn. II. TC 3316/09 of 4 April 2003.

November 2010, resolution SP. zn. I. ÚS 505/02 of 16 May. April 2003,

or resolution SP. zn. I. ÚS 211/03 of 17 May. December 2003 (in SbNU

nepublikována, available at http://nalus.usoud.cz)]. The Constitutional Court

expressed also within the permissions of a higher court, with the

It stated that from the perspective of constitutional guarantees may not redeem instance

powers collide with any of the principles of fair trial and appeal

the Court is not entitled to order a change in the assessment of evidence. Instance path

You cannot force a lower court's own evaluation of the evidence [see, in particular, find

The Constitutional Court, SP. zn. I. ÚS 608/06 of 29 September 2003. April 2008 (N 79/49

SbNU 153), paragraph 14, and case-law mentioned there similarly find SP. zn. II.

254/08 TC of 18 March 2004. November 2008 (N 197/51 SbNU 393) or also find

SP. zn. III. TC 1104/08 of 19 May. March 2009 (N 65/52 SbNU 635)].



21. the Government on the basis of the above, a brief summary of the relevant

decisions of the Constitutional Court said it has no doubt about the constitutionality of the

the policy expressed in section 264 paragraph. 1 code of criminal procedure, that its

the application must meet the constitutional limits. Provision itself is therefore

not a violation of the right to a fair trial, but his expression.

Any violation of the procedural rights of the parties, for example, just

failure to comply with the constitutional limits of the application of the principle referred to in section 264 paragraph. 1

the criminal procedure code in a particular judicial proceeding is not a reason for cancellation

This provision. The Government has therefore proposed to the Constitutional Court

assessed as manifestly unfounded or rejected.



III.



A replica of the applicant



22. the applicant in its reply to the observations of the Government agreed to

permission of the appellate court to review the decision of the Court of nalézacího is

part of the right to a fair trial. To cancel the permission of its

According to him, the proposal is not directed, but is designed to prevent situations in which the Court of appeal

After referral back for reconsideration and decision forcing nalézacímu Court,

who previously reviewed the evidence under convictions,

own evaluation of the evidence and based on legal opinions from it, a

how the right to a fair trial, in contrast, is contrary to the.



23. the appellant dovozoval, the Centre of gravity of deciding on guilt and punishment has

be in the main version, not in the public or private session

held in order to hear the appeal. He argued that it is precisely

the trial, in which the basic principles applied in full

criminal proceedings, namely the policy public, oral deposition,

the immediacy and the free evaluation of evidence, which are the default

attributes of a fair trial. At the trial, it is natural that there is a

present the public that the Court decides on the basis of the investigative phase of the oral


recitation of the parties and the evidence taken orally, i.e. evidence which

immediately, the result of which has the best conditions for

their reviews. By contrast, the courts of appeal decide often in

private session (article 263 penal procedure), i.e.. out of control

the company's performance of the judiciary in the form of so-called. the Cabinet of the justice system, and

evaluate the evidence without them orally and directly familiarise themselves, which

cannot be designated for a fair trial.



24. the possible repeal of the provisions of section 264 paragraph. 1 code of criminal procedure, according to the

the plaintiff resulted to the strengthening of the element in the appeal. Although

After the amendment of the criminal procedure code of 2001 (Act 265/2001 Coll.) is a repair

control built on combination principle of appellate and cassation, with

the emphasis on the principle of the appeal, the decision of the practice of courts of appeal

other. Prefers more before the appellate Cassation principle, which

means that if the Court of appeal finds the incorrectness of the contested decision,

the thing cancels and refer it to the reconsideration and the decision on the grounds

that additional evidence that vymínily's, is extensive and in appeal

management of difficult to implement. Only in rare cases, the Board of appeal

courts of inquiry shall be added, though it may do so more frequently (see § 259 paragraph.

1 of the Criminal Code). The possible annulment of the contested provisions should, therefore,

courts of appeal made "more thinking about how to decide on the matter".

The applicant at the same time hinted a possible procedure the Court of appeal for

in case the fault of the Court justified the new decision nalézacího

in the case, in particular, would be a situation where the investigative phase, the Court incorrectly

absolve the defendant acquitted, though it had to recognise the guilty. The opposite situation

out of the question, as the Court of appeal may accused the blame

exempt. According to the appellant would then the Court of appeal had in the preamble

their decision rather than imperative, but explanatory way

explain why nalézacího decision of the Court is defective, and outline the other in

account of the coming evaluation evidence. If even after the investigative phase

the Court remained on his evaluation of the evidence, either by the Court of appeal persuaded

about the correctness of his view, or by the Court of appeal proceeded to the

pursuant to § 262 of criminal procedure require that the matter be dealt with in the new

the composition of the Chamber, which would be after the new evidence made custom reviews

of the evidence.



IV.



The abandonment of an oral hearing



25. The Constitutional Court found that the oral proceedings could not bring significant

the shift in the clarification of things than what follows from the written acts of the participants

control. Having regard to the provisions of section 44 of the Act on the Constitutional Court, as amended by

Act No. 404/2012 Coll., no need to inquire about the parties on

their position on this issue, therefore, it was possible to decide the matter without

of an oral hearing.



In the.



The diction of the contested provisions



26. the provisions of section 264 paragraph. 1 code of criminal procedure reads as follows:



§ 264



Proceedings before the Court of first instance after the cancellation of judgment



(1) the Court to which the case was returned for reconsideration and decision, it is

bound by the legal opinion expressed in its decision, the Court of appeal,

and is obliged to perform tasks and the addition of the Court of appeal

He ordered.



Vi.



Locus standi of the applicant



27. According to the article. 95 para. 2 of the Constitution, if the Court concluded that the law,

to be used in solving the case, is in contradiction with the constitutional order,

refer the matter to the Constitutional Court. This permission is also given in §

64 para. 3 of the law on the Constitutional Court, according to which the Court may by the constitutional

the Court proposal to repeal the law or its individual provisions.

Condition of the substance of the discussion of such a proposal is the fulfillment of the diction of the article.

95 para. 2 of the Constitution, in the sense that it must be about the law, which is to be

used when solving things, IE. Act or its provisions, which is

proposed to cancel, to be directly applied by the applicant when

the solution of a particular dispute. The Constitutional Court found this condition,

because the application of the contested provisions of the plaintiff is in a criminal case

conducted under the SP. zn. 1 T 23/2009 after the cancellation of the judgment issued by him

the Court of appeal and return the matter for reconsideration is inevitable,

the assessment of the constitutionality of this provision depends next steps

the plaintiff in the criminal proceedings.



VII.



The constitutional conformity of the legislative process the adoption of the contested provisions



28. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the law on

The Constitutional Court in proceedings for the annulment of laws and other legal regulations

the obligation to examine whether the contested act or part of it, has been accepted and

issued within the limits of the Constitution laid down the competence and constitutionally prescribed

way. As is apparent from the observations of the parties, the provisions of §

264 paragraph. 1 was part of the original text of the code of criminal procedure of 1961 and

It has never been without prejudice to any amendments. Reviews of the legislative

the process should, therefore, meant to assess compliance with the already invalid constitutional

the provisions in force at the time of the adoption of the law. On the basis of section 66 paragraph 1. 2

the law on the Constitutional Court, according to which, if the proposal is illegal

constitutional law, which is under review, according to the draft regulation,

easily design before delivery of the Constitutional Court, the constitutional validity of

the Court States that, in the case of the legislation released before the acquisition

the effectiveness of the Constitution on 1 May 2004. January 1993, shall be entitled to examine only

their content compatibility with the current constitutional order, but not

the constitutionality of the procedure of their creation and compliance with regulatory competence

[cf. find SP. zn. PL. ÚS 10/99 of 27 June. October 1999 (N 150/16 SbNU

115; 290/1999 Sb.)]. For this reason, the Constitutional Court of the fulfilment of the above

These requirements exclude.



VIII.



The substance of the design review



29. First, it should be recalled that a similar or almost identical proposals

the Constitutional Court has already dealt with. Their finding SP. zn. PL. ÚS 37/03 of the day

11 January 2005 (N 5/36 SbNU 35; 93/2005) has rejected a proposal from the district

the Court in Ústí nad Orlicí, for annulment of the provision of section 226 paragraph 1. 1 of law No.

99/1963 Coll., the code of civil procedure (hereinafter referred to as "the row"). District

the Court handed the proposal on the initiative of the applicant. The one on the basis of specific

the situation in the present procedure argued that "in the event that the

Court of first instance proceeded according to that (according to § 226, paragraph 1, of the

row binding) of a legal opinion, he would have violated article. 6 (1). 1 of the Convention,

Since it was not a fair decision. " The above-cited finding

The Constitutional Court concluded that the contested provisions "is not inconsistent with the

the constitutional order or an international agreement pursuant to article. 10 of the Constitution in

meaning of article 87(1). 1 and article. paragraph 112. 1 of the Constitution. " When you receive just quoted

the Constitutional Court agreed with the conclusion "... with the view of the applicant, that the

should be repealed the provisions of § 226 paragraph 1. 1. s. l., which is

the provisions of the corresponding appeal completely the principle governing the

the appeal procedure provided for in the code of civil procedure. If it should be

cancelled, then, this, in itself, an appeals procedure to lose meaning. This is a

the provisions, which is all the time the existence of the code of civil procedure

applied without any problems. In this context, it should be

Note that the Cassation principle is a general principle of civil process,

that is also used in many other countries of Europe. As for the Institute

traditional, roughly in the current form, it can be found at the end of 19th century.

century and was applied with us about in today's terms as well as the entire

twentieth century. To enumerate the arguments in favour of maintaining the existing

the language of section 226 paragraph 1. 1. with the row can be added that i described the Institute's

the traditional, proven practice and still constitutionally without a building

cornerstone of the civil process. From the top vylíčeného shows that the linking of the

a lower court the legal opinion of the Court is making higher

the constitutional principle of the right to judicial protection and due process, its

an integral part of, rather than an obstacle. "



30. Thematically even closer is the resolution of the Constitutional Court, SP. zn. Pl. ÚS

41/2000 of 20 October. 2.2001 (U 7/21 SbNU 493). This resolution of the constitutional

the Court refused for the apparent design are not sound, the regional court in Pilsen, Czech Republic

to cancel the provisions of § 270 of paragraph 1. 4 second sentence of the criminal procedure code, as amended by

amended, which is defined by the words "and is required to make

procedural acts whose execution the Supreme Court ordered ". According to the

the Senate resolution proposing regional court in Pilsen, the contested provisions

"... in contradiction with the constitutional principle of judicial independence and

the case also with the principle of the presumption of innocence because the application

This provision in the abovementioned judgment of the Supreme Court of the CZECH REPUBLIC from 24. 5.

2000 does not allow a different decision than the confirmation of guilt, that is, confirmation

conviction, perhaps with any drobnějšími tweens. " ...

The constitutional court deduced that "... the contested provision is completely in conformity with the

the purpose of the code of criminal procedure. Procedural rules the way they are-at least in its

essence-consistently enshrined in all the current procedural rules, are

Historically, the result of many experiences and in their postulátech

represent a uniform and essentially a fixed form of proceedings to

considerable extent, however, significantly, predisposes the legality of the final


decision. Having regard to the above provisions, the Constitutional Court did not

§ 270 of paragraph 1. 4 of the code of criminal procedure, which is defined by the words "and shall be obliged to

perform procedural acts whose execution the Supreme Court ordered "in the

contrary to the constitutional order of the Czech Republic. "



31. the Constitutional Court considers it appropriate to recall that the principle of commitment

the Court of lower instance, the legal opinion the Court of higher instance after the Corte di Cassazione

the first instance decision in criminal matters is regularly recognized whether or not

in the procedural adjustments of foreign democratic countries. As an example, it is

the provisions of § 358 paragraph 1. 1 of the German Code of criminal procedure (dStPO)

or article 293 paragraph. 2 of the Austrian Code of criminal procedure (öStPO). Also

the case-law of foreign constitutional courts aprobovala this principle as

constitutionally souladný [see for example the decision of the German Federal Constitutional

Court (BVerfGE 12, 67, 71)].



32. The conclusions made in the above-mentioned decisions of the

The Constitutional Court has no reason to change. The arguments can be fully used

applied to this proposal. As in the previous two cases

and this has led to the submission of the proposal the general disapproval of the Court with

by decision of the Court of dovolacího (appeal). It was a disagreement with binding

the legal opinion of these courts and their instructions for the next steps in the

control. Also from the proposal of the applicant-the District Court for Prague 8

the apparent dissatisfaction with the decision of the Court of appeal of the applicant,

which refuses to submit. This particular decision and criticises the

in General, as well as the practice of the courts of appeal. The contradiction of the contested provisions with

the constitutional order then it infers from this that has to decide according to the

the legal opinion, which does not agree, or that no longer extends to its

an exclusive right on the evaluation of the evidence.



33. in the light of the foregoing, it is appropriate to recall the role of the constitutional

the Court. In accordance with article 83 of the Constitution, the Constitutional Court is the judicial body protection

the constitutionality. Among his powers belong to and decide on the repeal of laws

or their individual provisions, if they are in conflict with the constitutional

policy [article 87, paragraph 1 (a)) of the Constitution]. In accordance with article 95 para. 2

The Constitution shall submit to the Court the Constitutional Court if it concluded that the law,

to be used in solving the case, is in contradiction with the constitutional order.



34. the fact that the investigative phase, the Court fundamentally (and sometimes even reasonably)

does not agree with the procedure and with the conclusions of the Court of appeal, does not constitute

the unconstitutionality of the contested provisions. It has already been sufficiently explained

in the previous top-cited case law of the Constitutional Court. It cannot be excluded

the Court of Appeal exceeded its powers and inappropriately into the powers of the

the Court of nalézacího. Such a procedure is, however, necessary to correct the path

extraordinary remedies. Consider also the constitutional complaint.

These tools are, however, entirely in the hands of the parties. The Constitutional Court has already

in the past, outlined the limits of the instructions to the Court of appeal. Here, you can refer to the

very tight-fitting representation of Governments in paragraph 20 of that resolution and, in particular, on the

judgment of the Constitutional Court there, SP. zn. I. ÚS 608/06 (see above).

It is not the task of the Constitutional Court to resolve disputes between the various levels of courts.



35. practically the same issues already dealt with the Constitutional Court and the

the appellant did not submit any new plane in a constitutional argument.

The Constitutional Court did not find that the contested provision was contrary to the

the Constitutional Act. Therefore, in accordance with the provisions of section 70 para. 2 of the law on

The Constitutional Court rejected the proposal.



The President of the Constitutional Court



JUDr. Rychetský in r.