239/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 22 November. March 2005 in plenary in the composition of JUDr. PhDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav

Excellent, JUDr. Elisabeth Wagner about the design II. the Chamber of the Constitutional Court on the

repeal the provisions of § 242 paragraph. 2 Act No. 141/1961 Coll. on criminal

judicial proceedings (code of criminal procedure),



as follows:



1. The provisions of § 242 paragraph. 2 Act No. 141/1961 Coll. is repealed on the date of

publication of the finding in the journal of laws.



2. According to the article. 5 (3). 4 of the Convention for the protection of human rights and fundamental

freedoms must be hearing of the accused by the Court before the decision is taken to

his complaint against the decision of the public prosecutor for further detention.



Justification



(I).



The definition of things and a recap of the proposal



The Constitutional Court has been duly served on the constitutional complaint in a timely manner T. K., t.

No in custody in Prague-Pankrác Prison, against a resolution

Municipal Court in Prague of 4.2.2004, SP. zn. 44 54/2004. Control

about this constitutional complaint is conducted under SP. zn. II. TC 96/04. By resolution of the

Municipal Court in Prague of 4.2.2004, no. 44 54/2004-231, was

as unfounded a complaint the complainant rejected the State against the order

a representative of the City Prosecutor of 18.12.2003,

No j. KZv 293/2003-173. This was the complainant pursuant to § 71 para. 3 of Act No.

141/1961 Coll., on criminal court proceedings, as amended

(code of criminal procedure) left in custody.



II. the Senate's constitutional court interrupted the proceedings on constitutional complaints according to §

78 para. 2 Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, and suggested the abolition of section 242 paragraph. 2 of the code of criminal procedure.



The complainant with reference to the case-law of the European Court of human rights in the

things and b. against Slovakia argued, inter alia, breach of the principle of equality

weapons, according to which all parties to the dispute must have the same opportunity to talk

and defend your truth, and none of them shall not have a significant advantage

to the counterparty. II. the Senate's constitutional court deduced that at the hearing and

the Court decision on the complaint of the accused in this case in accordance with article 6(1).

5 (3). 4 of the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as

"The Convention"), and the resulting case law European Court of human

law, subject to all the requirements of the management of due process, as

příkladmo refers to the complainant. Among the basic institutional guarantee

justice proceedings on the continuation or termination of the restriction of personal freedom

include the right of the accused to be heard in the application inter partes proceedings in which it is

review of the legality of the continuation of the binding. According to the existing legal

Customizing [section 74, paragraph 1, § 146a, paragraph 1 (a)), § 148, 149 §, §, and § 240

242 of the criminal code, and section 31 of Act No. 6/2002 Coll., on courts, judges,

lay judges and the State administration of courts and amending some other acts

(law on courts and judges)], applied and the municipal court in Prague,

the present case, the Court decides on the complaint against the decision of the State

representative to keep the accused in custody in a private session. When it

the presence of the members of the Senate and the writer. Other persons are involved in the

a private session. The Court is entitled to come out only from the

the resolution of the Prosecutor concerning the extension of the binding, the complaint of the accused

against this resolution, and documents contained in the file. This edit by

opinion (II). the Chamber of the Constitutional Court does not match the above law

of the accused to a fair trial, zakotvenému in the Convention, which is

international agreement under article. 10 of the Constitution of the Czech Republic (hereinafter referred to as

"The Constitution").



II.



Recap the essential parts of the representation of the parties



The constitutional court proceedings in accordance with the provisions of section

69 of Act No. 182/1993 Coll., as amended, to participants

-control the Chamber of Deputies and Senate of the Parliament of the Czech Republic.



The Chamber of Deputies stated that the Constitutional Court in its decisions

the findings announced by repeatedly (under no 121/1996 Coll., 286/1996 Coll., 38/1999

Coll. 83/1999 Coll., 192/1999 Coll. 290/1999 Coll., 3/2000 Coll., 98/2004 Sb.)

signed up to the principle of the priority of constitutionally Conformal interpretation before

the derogations, that is. in a situation in which certain provisions of the legislation

allows two different interpretations, one is in accordance with the constitutional

policy and the other is in conflict with him, is not given a reason for the cancellation of this

provisions; in its application, it is the task of the courts to interpret the

the provisions of constitutionally Conformal manner. Further noted that, in

in a similar case (find SP. zn. I. ÚS 573/02 of 23 December 2003. March

2004), the Constitutional Court stated that the general courts served the interpretation

the criminal procedure code does not give room for the hearing of the accused in the

keep in custody. But according to the article. 10 of the Constitution, provides for the

international contract something other than law, it shall apply to international

the contract. Therefore, it is necessary to interpret the provisions of the code of criminal procedure of constitutional

Conformal manner, which in this case means the need to respect the

stable and unambiguous interpretation of the article. 5 (3). 4 of the Convention, carried out by the European

Court of human rights. Therefore, the House of representatives seems to be more appropriate

constitutional interpretation the provisions of § 242 criminal code than its

derogation, even taking into account the provisions of § 243 of criminal procedure,

governing the taking of evidence in a private session, that is from the perspective of

a simple law of mandatory nature. And this provision should

be applied with regard to the article. 5 (3). 4 of the Convention and its interpretation

The European Court of human rights. Therefore, the Chamber of Deputies,

whereas the derogations provisions of § 242 criminal code would not have to be filled with the objective

pursued by the examination of the proposal.



The Senate has stated that this provision dealt with in the context of

the proposal for the so-called. the big amendment to the code of criminal procedure (Act No. 265/2001 Coll.), when

He was fundamentally discussed the compliance of the State prosecutor decided in

preliminary proceedings, on the further duration of the binding with the article. 8 (2). 5 of the Charter

fundamental rights and freedoms ("the Charter"). The requirement that the proceedings

on the continuation or termination of the binding could be exercised the right of an accused person

to be heard by the Court prior to the decision, namely spoken was not. The Senate has

a majority agreed with the fact that presented the amendment in its wake

tracks the positive transformation too complex, costly and cumbersome

control in a more efficient (faster) crime suppression tool when

maintaining the democratic rules of a fair trial.



In General, however, he noted that article. 5 (3). 4 of the Convention is the European Court

the Court of Justice for human rights in the present, after a period of hesitation on the issue

the full application of the requirements of a fair trial on remand proceedings

interpreted strictly, so that in the case of a binding in the criminal proceedings, the

held oral proceedings (judgment in Nikolovová v. Bulgaria of 25 March 1999

and more). The range of applicability of article. 5 (3). 4 of the Convention in so doing exceeds the

his wording, which is limited to making a decision on a proposal from the accused,

and it's also deciding on the extension of the binding (e.g. the judgment in

Grauzinis in Lithuania from 10. October, 2000). The European Court of human rights

Therefore article. 5 (3). 4 Convention for the guarantee of habeas corpus. Of the Convention,

infers a general obligation of States to respect its provisions in

the interpretation given by the European Court of human rights. The use of the

the rules referred to in article. 10 the Constitution on the application of priority of the international treaty

before the law, however, is apparently complicated by both marked the development of the

opinion (interpretation) of the European Court of human rights, on the one hand

similar changes in the opinion of the Constitutional Court on the issue in question

(e.g. decision SP. zn. III. the TC 22/03, TC 53/03, pl. ÚS 4/94).

The courts, therefore, expect to support the change of the law rather than the more complex

("thorny") interpretative path. Desirable legislative revision of

proceedings in the case might not change the form of non-judicial

the hearing, but should probably search conditions for its ústnost when

the principle of rovnostizbraní and taking into account the request

efficiency of the management.



Therefore, in the view of the Senate on the Constitutional Court to examine the constitutionality of the

the design of the contested provisions.



III.



The diction of the contested statutory provisions



The provisions of § 242 paragraph. 2 of the code of criminal procedure reads as follows:



"(2) other persons from participating in a private session."



IV.



The conditions of the locus standi of the applicant



The proposal to repeal the provisions of § 242 paragraph. 2 of the code of criminal procedure filed a II.

Chamber of the Constitutional Court in connection with constitutional complaints T. K.,

This Senate hearing under SP. zn. II. TC 96/04. The essence of the constitutional

the complaint is a disagreement with the procedure of the General Court, which your procedure

apply the provisions of the code of criminal procedure currently being contested. Thus, on the

II. the Chamber of the Constitutional Court, as the petitioner, stated fulfillment

the layout of the standards contained in § 64 para. 1 (b). c) Act No. 182/1993

Coll., and thus the terms of locus standi.



In the.



The constitutional conformity of the legislative process




The Constitutional Court is in accordance with the provisions of § 68 para. 2 Act No. 182/1993

Coll., as amended, in proceedings for review of laws or

other legislation shall assess whether the contested act was

received and issued by the constitutionally prescribed way.



As regards Act No. 141/1961 Coll., on criminal court proceedings, the criminal

of procedure), as amended, the Constitutional Court checked whether the

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner, as in law, issued before

the Constitution came into force, the Constitutional Court is entitled to examine only

their contemporary content compliance with the constitutional order, but not

the constitutionality of the procedure of their creation and compliance with regulatory powers [see

the resolution of the Constitutional Court, SP. zn. PL. ÚS 5/98, collection of findings and resolutions

The Constitutional Court, hereinafter referred to as "ECR"), sv. 14. resolution No.

32)].



Therefore, the Constitutional Court for a review of all of the changes

the statutory provisions, the Act No. 293/1993 Coll., which

amending and supplementing Act No. 141/1961 Coll., on criminal court proceedings

(criminal procedures), Act No. 21/1992 Coll., on banks, and Act No. 335/1991

Coll., on courts and judges. This amendment was the second paragraph

wording: "unless otherwise provided by this law is something else, not the Prosecutor's participation

in a private session required. "deleted and the current third paragraph

It was marked as the second.



From the printing house No. 535 first term, Chamber of Deputies

It was found that it was a Government Bill, which has been in

under the direction of the justified as follows: "the participation of the Prosecutor in

private session for the situation where the participation of the accused or the defence counsel is

excluded, is contrary to the principle of equality of parties in court proceedings and the role

that is according to the Constitution, the State Prosecutor. Therefore, the presence of persons

in a private session is limited to members of the Senate and the court reporter. "



From the printing house # 552 first term, Chamber of Deputies

The Constitutional Court found that the Organizing Committee has suggested the abandonment of the

discussing the principles of governmental draft Bill. From the reports of the rapporteurs

the defence and Security Committee, the Constitution Committee and the Committee of the

the Petitions, for human rights and nationalities of 5.11.1993 (House

print no. 633), the Constitutional Court found that the Government's proposal was recommended by

the law to approve with modifications, which, however, did not cover the question

provisions. By order of the Chamber of deputies from 14. the first meeting

the term, held June 10. November 1993, has been ratified with

the Government's draft code of criminal procedure, in the version approved amendments

proposals. # 157 of the vote shows that of the present deputies was 184

for, 104 against, and 10 were 41 abstentions.



The President, the Prime Minister and the President of the Chamber of Deputies, the law

signed and declared he was 10. in December 1993, of an amount under the No 74.

292/1993 Coll.



The Constitutional Court therefore notes that Act No. 293/1993 Coll. was adopted

constitutionally Conformal manner.



Vi.



The content of the contested provisions compliance with the constitutional order



According to the existing legislation [section 74, paragraph 1, § 146a, paragraph 1 (a)), §

148, 149, § § § 240, 242 and section 243 of the criminal code, and section 31 of Act No.

6/2002 Coll., on courts, judges, lay judges and the State administration of the courts and the

amendments to certain other laws, as amended],

the Court decides on the complaint against the decision of the Prosecutor of the

keeping the accused in custody in a private session in which they are

present members of the Senate and the writer, and other persons are involved in the

a private session. The Court is entitled to come out only from the

the resolution of the Prosecutor concerning the extension of the binding, the complaint of the accused

against this resolution, and documents contained in the file. This edit by

opinion (II). the Chamber of the Constitutional Court does not match the article. 5 (3). 4 of the Convention,

According to which the basic institutional guarantee of justice proceedings

continuation of the limitation of personal freedom includes the right of the accused to be heard

in the application inter partes proceedings, in which the review of the legality of the next

the duration of the custody.



The European Court of human rights, in its decisions included the right to be

heard among the basic procedural guarantees applied in cases of restriction

freedom (cf. e.g. the decision of 28.10.1998: Assenov. vs.

Bulgaria, 24760/94, § 162): "the Court recalls that article. 5 (3). 4

ensures that everyone who has been arrested or detained, the right to submit a proposal to

a procedure in which a court has made compliance with the procedural and

substantive laws, the necessary conditions for the lawfulness of the deprivation of liberty in

meaning of article 87(1). 5 (3). 4 (see Brogan). Although the proceedings referred to in article 3(1). 5 (3).

4 may not always be accompanied by guarantees similar to those prescribed by the

article. 6 (1). 1 for civil and criminal proceedings (see Megyeri against

Germany, 1992), it is necessary to have a judicial character and offered guarantees

adequate nature of the deprivation of liberty. If this is about a person whose

deprivation of liberty falls within the scope of article 87(1). 5 (3). 1 (b). (c)), it is necessary to the venue

hearings (see Schiesser and Sancher-Reiss against Switzerland, 1986

Kampanis against Greece, 1995). " ["The Court recalls that by virtue of

Article 5, paragraph 4, an arrested or detained person is entitled to bring

proceedings for the review by a court of the procedural and substantive and/or

conditions which are essential for the "lawfulness", in the sense of

Article 5, paragraph 1 (see paragraph 139 above), or games of his deprivation of

liberty (see the above-mentioned Brogan and Others judgment, p. 34, §

65.) Although it is not always necessary that the procedure under

Article 5, paragraph 4, be attended by the same guarantees as those required

under Article 6 § 1 of the Convention for criminal or civil litigation

(see the Megyeri v. Germany judgment of 12 May 1992, Series A no.

237-A, p. 11, paragraph 22), it must have a judicial character and provide

guarantees appropriate to the kind of deprivation of liberty in

the question. In the case of a person whose detention falls within the

the ambit of Article 5 § 1 (c), and hearing is required (see the

above-mentioned Schiesser judgment, p. 13, §§ 30-31, the Sanchez-Reiss

v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, §

51, and the Kampanis v. Greece, judgment of 13 July 1995, Series A no.

318-B, p. 45, 47). "]



This legal opinion by the European Court of human rights confirmed in many

other decisions (cf.. on http://hudoc.echr.coe.int/hudoc/

decision of the day: 25.3.1999: Nikolovová vs. Bulgaria, 31195/96, § 58,

line 20; 4.7.2000: Niedbala v. Poland, 31430/95, § 66, 8-12;

11.7.2000 Tržaška vs. Poland, 157/94, § 74, 9-12; 10 October 2000,

Graužinis vs. Lithuania, 37975/97, § 31, 8-4; 9.1.2001, Kawka v. Poland,

25874/94, § 57, 8-12; 13.2.2001, Garcia Alva v. Germany, 23,538/94, §

39, 9-13; 13.2.2001, Lietzow vs. Germany, 24479/94, § 44, 9-14; 13.

2.2001, Schöps vs. Germany, 25116/94, § 44, 9-14; 9.1.2003, Shishkov

vs. Bulgaria, 38822/97, § 77, 8-5). The ECTHR HAS so clearly articulated

the principles contained in previous decisions (judge of 21.10.1986

Sanchez-Reiss vs. Switzerland, 9862/82, § 51, row 18, or from the date of

13.7.1995 Kampanis v. Greece, 17977/91, § 47 8-1).



According to settled case-law of the European Court of human rights is also

need to control, which is a review of the justification for the continuation of

limitation of personal freedom, to be applied the same requirements, such as

the requirements for the initial decision about deprivation of liberty, which

It is clear from the above-cited decision, so the decision of

of 29.11.1988: Brogan and others v. the United Kingdom (11209/84, §

65). In so doing, it is irrelevant whether such proceedings are held at the initiative of the State

Representative, or ex officio [see decision of 19.10.2000:

Wloch vs. Poland: 27785/95, § 128; Graužinis vs. Lithuania, § 28, lines 7.].



Provided a preview of the European Court of human rights also include modifications of the same

the problems in the laws of neighbouring Austria and Germany that

are substantially different from the rules contained in the code of criminal procedure.



Under section 181 paragraph. 1 of the Austrian Code of criminal procedure (BGBl. 1975/631)

resolution on the imposition or continuation of detention, as well as

order of the Court of second instance on the continuation of detention, effective

for a period of time (the period of detention); the final day of the period is to be at

the resolution noted. Before the expiry of the time limit is necessary to perform custodial remand

control or it is necessary to release the accused. Adjustment of control is in the

Basically, comprehensively regulated in § 182 of the same law. According to him, the investigative

the judge controls the custodial management, which is not public. On a date for the holding of the

is notified to the accused, his defence counsel, Prosecutor, and curator. The accused

action brought for the disease, unless it is not possible, and must be

represented by counsel. First, the public prosecutor shall submit its proposal to

extension of the pre-trial detention and justifying it. The accused and his defence counsel

they have the right to resist. The curator can comment on the custodial reason

(remand the question). The parties may apply for a supplement of the established facts,

arising from the case. The investigating judge may, ex officio

or on the initiative of the parties to hear witnesses or take other evidence, if


It considers it appropriate; the parties have a right to ask questions. The purpose of the

the investigation may not be negotiations at risk. The accused or his lawyer

the right to the last word belongs to. Then the examining judge by order

shall decide on the release or on the extension of the binding, the resolution must declare

by word of mouth and in writing. Against this decision belongs to the accused and

a complaint to the public prosecutor, which is to be lodged within three days from the

publication of the decision of the Court of second instance.



Pursuant to section 117 of the German Code of criminal procedure (RGBl 253/1877; BGBl III 312-2)

If the accused is in custody, may at any time propose judicial review, whether the

the command should be abolished for the arrest or whether his power under section 116

postponed (detention review). In addition to the proposal on the review of the complaint is the remand

inadmissible. This does not affect the right to file a complaint against a decision

which was issued on the basis of the proposal. The judge may order a separate

the investigation, which are important for future decisions about the conservation

pre-trial detention and after these investigations, the new review.

If pre-trial detention lasted three months, without the accused suggested

detention review or filed a complaint against custody, remand

review from official duties, unless the accused has a lawyer. Score from 118

the same law of custody review decided after the oral hearing.

An oral hearing may propose to the accused, or it can be provided from the official

obligations, and in proceedings on a complaint against the arrest warrant.

If it was retain custody after the hearing, the accused has

to make further oral proceedings only if pre-trial detention lasted

at least three months and since the last two months have passed an oral hearing.

Entitled to a hearing does not belong for the duration of the trial, or

If a judgment was issued, which was liable to a penalty of imprisonment or

freedom of restrictive measures to rectify and safety. An oral hearing must

; be carried out immediately, without the consent of the accused shall not be ordered

later than two weeks after the idea of the proposal. According to the 118a must be

the place and time of hearing the State Prosecutor shall be informed

as well as the accused and defence counsel. The accused must be to an oral hearing

presented, unless the presence of the hearing waived or demonstration hinders

large distance or illness of the accused or other unrecoverable

obstacles. If you do not to oral proceedings the accused must be brought to court on

his rights in the management of care advocate. In oral proceedings must be heard

present participants. The nature and extent of the taking of evidence by a court.

The decision must be published at the end of the oral proceedings. If it is not

possible, the decision shall be issued not later than within one week.



The existence of the rights of the accused to be heard even when deciding on leave in

the binding mode permits our rule of law with regard to article 5 of the

paragraph. 4 of the Convention and the commentary to the criminal procedure code in the administration of Paul (cf. Šámala.

Team: the criminal procedure code: comment, 4. ed. Prague, c. h. Beck, 2002, page.

424 and 425). Professional public repeatedly insides of compelling

the arguments for this interpretation of the eg. Vladimir Hedgehog (advocacy Bulletin

2002:52), John Stephen (2002, advocacy Bulletin 6-7:59 and 61),

Bohumil Repík [advocacy Bulletin, 2003, 9:37-41], and George Herczeg

(Advocacy Bulletin 2004, 4:34-39).



From the above reasons, it is therefore landed quite obvious that, even in conditions of

the Czech legal order is according to art. 5 (3). 4 of the Convention must be heard

the accused by the Court before the decision is taken to its complaints against the

the resolution of the Prosecutor on further detention.



How decisions about complaints against the decision of the Prosecutor of the

keeping the accused in custody is not specially modified. Form of management, in

the Court in the Senate according to the applicable legislation shall be decided in the preparatory

proceedings on custody, but is defined explicitly, albeit indirectly. This is a

non-public session. In it the Court where there is no law

that will be decided in the trial or in public meetings

(§ 240 of criminal procedure) and other persons (other than members of the Senate and writer)

are from participation in private session excluded (article 242, paragraph 2, of the criminal

procedure). If you need to perform when a private session of evidence, it is

by reading the logs and other documents (§ 243 of Criminal Code).



According to the applicable legislation, in particular the provisions of § 146a represented by

paragraph. 1 (b). and) and § 240 of the code of criminal procedure, complaints against the decision of the

the Prosecutor to keep the accused in custody in cases in which

substantive jurisdiction is not given by a single judge (section 314a, paragraph 1, of the Criminal Code),

shall be decided by the Senate in a closed session. Non-public sessions but does not meet the

any implementation of this policy to control, as they result from the article. 5 (3). 4

The Convention, as in the above mentioned decisions of the European Court of drew

human rights. The above preview of the European Court of human rights

highlights one of the elements of the adversarial proceedings, namely the right of the participant

proceedings, to be heard on the proposal in its case and the evidence on which this

the proposal is based. This is about the right of the accused to be heard as a procedural

the party, which in the main version corresponds to the right to be consulted, in particular, to

each item of evidence pursuant to section 214, the criminal procedure code and the law on the

final speech pursuant to § 216 para. 2 of the code of criminal procedure and the last word

pursuant to § 217 of criminal procedure. It's not about the obligation of the Court to

evidence questioning the accused and, where appropriate, under the law of

of the accused. Evidence from the interrogation of the accused, whether in pre-trial proceedings (i.e.,

including proceedings before a decision on the proposal on taking the accused into custody)

so in the proceedings before the Court, is used essentially to determine the specific

the facts relating to the criminal proceedings that have lead to the

reliably perceived factual basis of the case. Not exclusively

or mostly to determine the opinion of the accused at the criminal proceedings or to

the proposal of the public prosecutor (e.g. taking the accused into custody, on

the taking of evidence, etc.) or the decision of the public prosecutor (e.g. on

keeping the accused in custody). Therefore, there is in place a voucher Of

the Chamber of Deputies on the conflict of the provisions of § 243 of criminal procedure with the rights guaranteed by the

By Convention the direction considered.



Ensure that the accused could be before the Court decision on the complaint against

the decision of the Prosecutor to keep the accused in custody as indicated

way as the procedural side, heard by preventing legislation

According to the criminal procedure code, just the provisions of § 242 paragraph. 2 of the code of criminal procedure,

that the participation of the accused (and anyone else) in a private session

excludes. Thus, the legislation in force does not allow to the accused in

deciding on the lawfulness binding in General, and the duration of the particular binding, heard

then, what was once taken into custody. Knowledge of the mind of the accused in the case,

so, how is presented in written form in the complaint against the decision of the

the Prosecutor is from the perspective of the requirements of the Convention for this type of

management seems totally inadequate. Hearing of the parties before the decision

the Court is an essential feature of the adversarial proceedings. The importance of the right to

hearing, as the Court, in deciding the public control, rises to

foreground right in criminal proceedings where the accused off the police

authority and the public prosecutor's Office their capabilities and resources in

in fact, a worse position. The fact that the Court decides on the legality of the

the duration of the custody ex officio, as well as the fact that the decision of the Court of

is not present or one of the parties, and is therefore formally maintained

the equality of the parties before the Court, they cannot on that the deficit of the current legal

edit anything to change.



The Constitutional Court always prefers the interpretation of constitutional standards of a simple

right before their derogations. In the case under consideration, the Constitutional Court has come to the

the conclusion that there is no constitutional interpretation of a simple law, and

Hence the provisions of § 242 paragraph. 2 of the code of criminal procedure, to the subject.

The legal regulation of issues under consideration is exhaustive and unambiguous.

Therefore, the existing procedure of general courts, that when deciding on the

complaints against the decision of the accused prosecutors of another

custody decisions without the personal involvement of the accused without the accused

had the opportunity to be in front of the Court's decision in this matter heard, corresponds to the

a valid edit of a simple law. It was, moreover, argued the constitutional

the Court in its resolutions, SP. zn. I. ÚS 53/03, and III. TC 22/03

(not published), which also refers in this context to the Senate.

We must add that the Constitutional Court in such cases remained only on the

examination of the conformity procedure of general courts with a simple law. Examined the

only one of the significant elements of the right to a fair trial.



General courts do not, therefore, a clear legal unload

so that, in accordance with article 6(1). 5 (3). 4 of the Convention. The way in which it would

It was possible, not listed in the finding of TechCrunch.com. I. ÚS 573/02 (collection

the decision, volume 32, no. 41, p. 397), that is in this

context refers the Chamber of Deputies. This finding on the contrary expressly

notes that, according to art. 10 of the Constitution, where the international


contract something other than the law, international treaty shall apply. At the same time

in this finding, noted that the status quo is clearly

unconstitutional and should be changed. The issue with regard to the

the right of the accused to be heard by the Court before a decision is made about the next

the duration of custody, has not yet been dealt with by the Constitutional Court, nor in the award of sp.

Zn. PL. ÚS 4/94 (a collection of decisions, volume 2. Find no 46, p. 57,

promulgated under no. 214/1994 Coll.), referred to Senate. This finding is

Although it dealt with the resolution of the judicial review, the public prosecutor about the next

custody, but only with regard to the absolute impossibility of such a

the review in the legal system. Even the above mentioned professional opinions

public (Paul Šámala, John Stephen, Bohumil Repíka, and George

Herczega) make no representations to constitutionally consistent interpretation of the statutory

editing, but only to be accused by the Court in the present case

heard, and with a view to greater legal strength of the Convention.



The Constitutional Court is out of control in case SP. zn. IV. TC 394/04 (resolution of

the day will be published in a volume 30.11.2004 35 Collections decision) known

the President of the Senate of the municipal court in Prague in the proceedings on the complaint

against the decision of the State Attorney of the municipal public prosecutor's Office in the

Prague on the further detention, kept under SP. zn. 44 It 618/2004,

carried out the interrogation of the accused before the case was decided.

Such a procedure, however, in the opinion of the Constitutional Court, in effect,

target article does not sufficiently. 5 (3). 4 of the Convention. Czech criminal process

It is rigid and monitored comprehensively and explicitly regulates the issues,

as has been argued above. If in case the Senate, can

decide only on specified forms, which in this case

non-public session. In a simple law, therefore, there is no option to

the entire Senate and one of its members carried out the questioning of the accused

before it is decided in a private session. The criminal procedure code a

the procedure allows the presiding judge or a designated member of the Senate pursuant to section

183a only in exceptional cases. Decisions of the Court in this matter and thus

(I) the requirement that the accused was heard by the Court, however, has the nature of the

regular. Not so to the fulfillment of the objectives referred to in article. 5 (3). 4

The Convention, as the interrogation of an accused person made only one of the members of the Chamber, and

not the entire Senate. The other members were in the assessment of complaints

the accused in the same situation as if the questioning of the accused one

a member of the Senate at all, since the accused has not yourself "heard". Therefore,

the Constitutional Court has considered that even in this way cannot be constitutionally

konformnímu the interpretation of § 242 paragraph. 2 of the code of criminal procedure, or the whole editing

a simple law, in relation to the article. 5 (3). 4 of the Convention.



If this adjustment is, therefore, contrary to the constitutional order, in which

undoubtedly include the Convention, as ratified and proclaimed International

agreement on human rights and fundamental freedoms pursuant to article. 10 of the Constitution

(see find SP. zn. 36/01, ECR volume 26, finding no.

80, p. 317; promulgated under no. 403/2002 Coll.), it is appropriate to repeal

the legal provisions referred to in article protiústavního. 87 para. 1 (b). and)

Of the Constitution.



As an obiter dictum, the Constitutional Court considers necessary to mention that in the

cases where a review of a decision of the public prosecutor about the next duration

ties shall be decided by a single judge (section 314a tr.3 1 row), there is no form of

management by law and, therefore, in direct application of the Convention nothing at all

does not prevent. In this case, as well as in other cases, the missing

statutory obligation to complete a single judge has the constitutional right. The constitutional

in this connection, the Court would tend to believe the Federal Constitutional Court

The Federal Republic of Germany [e.g. in BVerfGE 9, 338 (347)], according to which

judicial activity lies not only in the issuance of the decision, but the task of

the judge's order in its decisions expressed value ideas

that are immanent in the legal order, but in the text of the law are not

expressed at all, or only inadequately. The judge, however, must refrain from

arbitrariness and its decision must be based on rational argument. Must

be clear that written law does not fulfil its function to resolve a particular legal

problem. The Court decision then closes this gap in the law by

the scale of practical sense and "the General ideas of Justice in the

the company ". The case, however, in connection with the design II.

the Chamber of the Constitutional Court (SP. zn. II. TC 96/04-see sub I.) This was not.



Similarly, in the present case there was no court case

the request of the accused for release from custody, the next

decisions by the Court about the detention of the accused. The Constitutional Court in this connection

stresses that this procedure cannot be applied to the same extent

the above scale, which can be applied only on complaint procedures

the accused against the order of the public prosecutor for further detention.



In the opinion of the Constitutional Court is not the provisions of § 242 paragraph. 2 of the criminal

the order of conflicting with article. 5 (3). 4 of the Convention itself, but only in relation to

those provisions of the code of criminal procedure, which govern judicial review of resolutions

the State Prosecutor on further detention. It would therefore be likely

more appropriate, if the proceedings on this judicial review was edited

separately. Therefore, by analogy, as in the case of taking the accused to the

binding (article 77, paragraph 2, of the Criminal Code), or as in the above

German and Austrian twist. In a separate edit could better and

more experience to modify the obligations of the courts in reviewing the decisions of the

the State Prosecutor on further detention on the one hand, and the rights of

the accused (as well as the public prosecutor, as the second procedural pages) on the

the other side. This is essentially a time-sensitive nature of the question

"hearing" of the accused, the notification of the bodies concerned (or advocate in

the case of the accused person) about his behaviour, and not least about the possible

the ability of the accused to give up this right. Under such conditions would

the provisions of § 242 paragraph. 2 of the code of criminal procedure could still be in the unchanged

form part of the code of criminal procedure. By the time a unique modification to this

the issue will be only on the general courts, because of the reasons,

that led to this decision, the Constitutional Court, were procedural practices

and rounded out the law. The Constitutional Court is called. negative

legislature, positively shape the laws without permission, as regulations

a simple law. The positive shaping of the legal order is authorized in

accordance with the principle of the Division of State power democratically elected legislative

authority, namely Parliament. The Constitutional Court is entitled to interfere with only those components

a simple law, which are contrary to the constitutional order. From

these reasons design II. the Constitutional Court upheld the Senate and paragraph 242.

2 of the criminal procedure code in accordance with § 70 para. 1 Act No. 182/1993 Coll., as amended by

amended, set aside.



The Constitutional Court in its decision on the interpretation of article. 89

paragraph. 2 of the Constitution, in the latest in its case-law, in particular in the award in

things pl. ÚS 2/03 (collection of decisions, volume 29, no. 41, p. 371;

promulgated under no. 84/2003 Coll.), according to which "the binding is not only the operative part of the award,

But even in the preamble, or those parts of it which include, ' reasons '. On

These conclusions of the Constitutional Court continues.



The importance of emphasizing the "load-bearing", where there is increasing, even after cancellation

the statutory provision, which is in conflict with the constitutional order, is not

editing a simple rights considered the issue straightforward. This is true

in particular, when even after the abolition of the statutory modifications made by

public authorities lead to application of the law in conflict with the principles,

that led to the cancellation of the relevant legal provisions. Therefore, The Constitutional

the Court became a part of the award of the basic constitutional principle (respectively.

its interpretative argument), which follows from a set of load-bearing reasons

leading to a decision on the application for annulment of the legal provisions.



The President of the Constitutional Court:



JUDr. Rychetský v.r.