Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=60188&nr=239~2F2005~20Sb.&ft=txt
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),
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 is repealed on the date of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.
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
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.
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."
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.
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.
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.
The Constitutional Court therefore notes that Act No. 293/1993 Coll. was adopted
constitutionally Conformal manner.
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.
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