424/2001 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 31 December 2004. in October 2001, the plenary on the proposal III. the Senate
The Constitutional Court on the repeal of section 272 of the Act No. 141/1961 Coll., on criminal
judicial proceedings (code of criminal procedure), as amended,
as follows:
The provisions of § § 272 and 276 of the fourth sentence of the Act No. 141/1961 Coll., on criminal
judicial proceedings (code of criminal procedure), as amended by later regulations, the date of 31.
December 2001 shall be deleted.
Justification
(I).
Constitutional complaints have been filed to the service of the Constitutional Court of the day 2. August
2000, plaintiff E. No seeks the annulment of the resolutions of the regional court in
Pilsen of 16 June. June 2000, SP. zn. 8 237/2000 and Decree of the district
the Court in Rokycany from 22 July. April 1999, SP. zn. 1 T 69/97, which was
convicted criminal offence under section 174 room charges, paragraph. 1
criminal law (hereinafter referred to as "tr.") and it was saved the financial penalty.
Those decisions are without prejudice to the Basic Law on the
inviolability of the dwelling and the fundamental right to a fair trial
resulting from the article. 12 and 14. 36 of the Charter of fundamental rights and freedoms (hereinafter the
"the Charter").
From the file of the District Court in Rokycany SP. zn. 1 T 69/97, which
The Constitutional Court has been established the following facts:
The judgment of the District Court in Rokycany of 22 December April 1999 No. 1 T
69/97-17 the plaintiff was guilty crime crooked
the charge under section 174, paragraph. 1. law and according to the same legal
provisions have been sentenced to a penalty in the amount of difference relative 11 000 CZK
substitute the penalty of imprisonment of 3 months and sentenced to
forfeiture of things-the financial amount of 1 500 Czk. Of that offence
that should happen in a letter sent to the police of the Czech Republic under the
fancy name falsely accused the policeman of accepting the bribe.
The appeal of the claimant is a regional court in Pilsen by order of 18 April. August
1999, SP. zn. 8 217/99 judgment of the Court of first instance under section 258
paragraph. 1 (a). and (b))) and (c)) code of criminal procedure (hereinafter referred to as "tr." regulations ") set aside and
According to § 260 tr. order of the case back to the Prosecutor to the DGA has conducted. Its
the decision of the regional court was motivated in particular defects in house searches
made in the House of the claimant, which ensure the evidence and
that she suffered from several defects. In the opinion of the Court, you were in
the non-questioning of who should do the tour (§ 84 tr.
the order), and the omission of specific reasons that led to this procedure,
on the holding of the Court of Appeal found the House searches
the lack of implementation, that things were during a house search
issued on a voluntary basis and which have been withdrawn (section 85, paragraph 3, tr.). Of all the
the reasons given did not consider the regional court in Pilsen in ensuring of
evidence for legal. If after conducting house searches
the plaintiff and her attorney confirmed to the voluntary release of the burden
material in accordance with section 78, paragraph. 1 tr (who was previously secured
during a house search), so according to the opinion of the Court to release the stuff,
that the plaintiff (the accused in criminal proceedings) at the time of issue
not in his possession, or for the situation, if these things were
complainant returned procedurally perfect way, could this
How to heal the previous illegal acquisition of things important to the criminal
the proceedings. This would be a circumvention of the law, of the use of the State that
navozen was an infringement, i.e.. illegal carrying out House
tours.
Against the abovementioned resolution of the regional court in Pilsen, he handed the Minister
Justice to the detriment of the accused (the complainants in proceedings before the
The Constitutional Court a complaint for violation of the law). The contested resolution
breaking the law emphasized in the provisions of section 254, paragraph. 1, § 258, paragraph. 1 (a).
and (b))) and (c)) and section 260 tr. and in favour of the accused. In the complaint,
the Minister of Justice reaching a conclusion, according to which the regional court
referred to misconduct in the protokolaci and during the execution of domestic inspection
was not such as to lead to the conclusion of the illegal execution
House searches and the resulting illegality of the evidence obtained
in the search warrant.
On the basis of a complaint for a violation of the law referred to Supreme Court
by judgment of 29 January. March 2000, SP. zn. 5 Th 35/2000 decided pursuant to section
paragraph 268. 2, § 269, paragraph. 2 and section 270, paragraph. 1. the order and fulfillment
the conditions pursuant to section 272, tr. order so that the final resolution of the regional
the Court in Pilsen, Czech Republic of 18 November. August 1999, SP. zn. 8 217/99 has been tampered with
the law on the provisions in § 254 paragraph. 1, § 258, paragraph. 1 (a). and (b))) and (c)) and section
260 tr. order in favour of the accused E. No (the complainants in proceedings before the
The Constitutional Court), referred to the resolution and the regional court in Pilsen,
as the Court of appeal, to the extent necessary, thing again
discussed and decided. In the grounds of that decision, the Supreme Court
in essence, to the Minister of Justice's opinion when he stated that
Although there have been some shortcomings in the procedural steps at protokolaci
progress and results of searches, but these weaknesses are only
formal in nature, can be overcome with regard to the other content
the criminal case file, and therefore referred to misconduct in his opinion are not
of such a nature, that could reasonably lead to the conclusion of the illegal
perform house searches and the resulting illegality of the evidence,
that was when the search warrant obtained.
Finally, by order of 16 December 1999. June 2000, SP. zn. 8 237/2000 Regional
the appeal of the claimant, the Court in Pilsen against the judgment of the District Court in
Rokycany from 22 July. April 1999, SP. zn. 1 T 69/97, dismiss.
In the constitutional complaint is especially pointed out the violation of the conditions
laid down for carrying out house searches in § 84 tr. order and in this
connection polemizováno with the opinion of the Supreme Court relating to his
interpretation. In the illegal execution of searches then the plaintiff
in the basic law sees the prejudice to the integrity of the dwellings according to the article. 12
Of the Charter, in fact, that the trials in the criminal case was from
her conviction based on the acceptance of evidence obtained by an illegal
in a way, then prejudice in the basic right to a fair trial, according to the article.
36 of the Charter.
II.
III. the Senate's constitutional court outside the hearing without the presence of the participants
26 March. April 2001 by resolution interrupted the proceedings on constitutional complaints in the
case conducted under the SP. zn. III.-464/2000 and submitted to the plenary of the constitutional
the Court decision the proposal to repeal section 272 tr.
III.
According to § 42 paragraph. 3 and section 69 of Act No. 182/1993 Coll., on the Constitutional Court, in
as amended, the proposal of the Constitutional Court
House of Commons. In its comments the President of the Chamber of deputies of the Parliament
The Czech Republic Prof. Ing. Václav Klaus, CSc., introduction explains
the circumstances of the adoption of the relevant legal provisions. States that the Institute
complaint for violation of the Act has been introduced into our legal order in
in 1950, and was later přejímán into other criminal orders of magnitude, and it
including a valid Act No. 141/1961 Coll., the President of the Chamber of Deputies
further draws attention to the fact that since 1990 have been against this
the Institute mainly arise in the literature of the opposition, whose
the content was virtually identical to the arguments contained in the proposal III. the Senate
The Constitutional Court. With regard to the content of the Institute in the
in principle, admits that it is not entirely in accordance with the principle of
the equality of participants in criminal proceedings, pursuant to article. paragraph 37. 3 of the Charter, since the
complaint for violations of the Act may be made only by the Minister of Justice, and
not whether or not the other party to the criminal proceedings, i.e.. the defendant. Is
In addition to repeated assessment pointed to this problem in the
the existing regulations amending the tr and noted that, at present, is also from the
for this reason, another amendment accepted the introduction of a new special
appeal-an appeal, which would guarantee the equality of the parties
criminal proceedings, and that the appeal should, with effect from 1 January. January 2002
virtually entirely replace a complaint for violation of the Act, including section
272. the Institute's own complaints for violation of the law, however, the said
proposed amendment to the repeal is not, as in the opinion of the President of the Chamber of Deputies
the Chamber of Deputies until the adoption of the criminal procedure code rekodifikace should solve some of the
exceptional cases, when the eventual misconduct will not be remedied mansfeld
or in any other way. On the basis of the above, in the comments
notes that you can in principle agree with the abolition of section 272 of the order, tr.
While the effectiveness of the relevant findings of the Constitutional Court should, however, be
postponed to at least 1. in January 2002, when the amendment takes effect
the criminal procedure code, or even for a longer period, as in following up on this
find should probably be taken to the corresponding amendment to the criminal
regulations, in particular as regards the possibility to remedy misconduct relating to the
persons other than the accused.
The President of the Chamber of deputies also confirmed, in accordance with the requirements of
contained in section 68, paragraph. 2 Act No. 182/1993 Coll., section 272 of the order in the market.
as amended, was approved by the required majority of the members
the legislature, the law (code of criminal procedure), which is the
the provisions included, was signed by the respective constitutional actors and
properly declared.
According to § 42 paragraph. 3 and section 69 of Act No. 182/1993 Coll., as amended
the rules, posted by the Constitutional Court and the Senate of the Czech proposal
of the Republic. In its comments the Chairman doc.JUDr. Petr Pithart
the introduction recapitulates the development section 272 in tr. Indicates that the specified
the provision is part of the code of criminal procedure from the date of adoption of this law
The National Assembly, i.e.. from 29. November 1961, taking into
the present time has seen from the perspective of the watch rather insignificant problems
changes: the provisions reflected in the rotation of bodies authorised to submit
complaints-at the beginning of the Prosecutor General and the President were
The Supreme Court was replaced by the President of the Court, later the Minister of
of Justice (according to the amendment of the order made by the tr. by Act No. 149/1969 Coll.) and
After the change carried out several years ago (the law No. 293/1993 Coll.)
He remained the only legitimate body of the complaint the Minister of Justice;
Act No. 30/2000 Coll. was then supplemented by the provisions of the new paragraph 2
intimujícím the provisions of the existing content.
In further draws attention to the fact that the Senate of the Parliament
The Czech Republic was established and began its constitutional tenure in December
in 1996, with the result that the Senate cannot provide constitutional court
comments to things that would be based on direct discussion and adoption section
272. the order, or of the entire Institute complaints for violation of the law and
the majority of his amendments. At the time of the existence of the Senate were adopted only
the amendment of the additional section 272 tr. order of his second paragraph (Law No.
30/2000 Sb.) and the so-called. amendment to the criminal procedure code, approved by the United Appeal
29 April. June 2001, adjustments to the complaint for violation of law
touched the expansively. In the framework of Act No. 30/2000 Coll. was minor additions to section
272. the order of marginal matters (the main theme of the Act was
extensive amendment of the code of civil procedure), and in the debate of the Chamber to
the draft law was not the issue of complaints for violation of law
namely, ever mentioned. The President of the Senate, and further confirmed that, in accordance
requirements contained in section 68, paragraph. 2 Act No. 182/1993 Coll., that
the amendment to section 272, tr. order was approved by the Senate, as amended by
transferred him to the Chamber of Deputies on its 15. meeting (2.
period) resolution No. 249 of 12 June. in January 2000, when the vote of 72
Senators present, quorum, 37 voted for its adoption of 68
the senators did not vote against nobody.
In connection with the adoption of the so-called. the great novel of tr in
States that the changes and additions made to the amendment in the treatment of the complaint for
violations of the law specifically does not concern issues that have become
the subject of the complaints of unconstitutionality of parties III. Chamber of the Constitutional Court.
In the section 272 tr. order occurs only to the extension of time limits to
the Supreme Court's decision on the complaint. The amendment to the Institute
complaint for violations of the law in discussing the Senate does not become
the special theme of the debate, the Chamber has accepted the changes and additions.
The President of the Senate, similarly as in the case of the amendment of the order made by the market.
Act No. 30/2000 Coll., and in the case of the adoption of Act No. 265/2001 Coll.
He said that the Senate approved this law, as amended by him transferred
The Chamber of Deputies, and further confirmed, in accordance with the requirements of
contained in section 68, paragraph. 2 Act No. 182/1993 Coll., that the Senate has made
on his 8. meeting (term 3) resolution No. 141 of 29 June. June
in 2001, when the votes of 60 senators present when quorum 31, for him
58 senators voted against no one and did not vote.
For the purpose of assessing the objections of unconstitutionality, and the proposal to repeal section 272
tr. the order of the President of the Senate at some points out the fact that
When it was still possible to take into account. This is first and foremost about the voucher
the fact that a valid edit is based on more of the exceptional nature of the full
application of section 272, tr. of the order, if the Minister of Justice has to be at his
always use reflection, whether an interest in compliance with the legality of outweigh the
interest in the stability of the final decision in the criminal law
the proceedings. On the edge of the legal regulation of the President of the Chamber points out,
that however is the removal of the illegal status for the price deterioration of the position of the
the accused in a valid edit is restricted to special conditions, the fulfillment of
These conditions, however, is not the Supreme Court limited the options examined
the complaint in the form of academic opinion about violations of the law. Furthermore, in the
expression analyses the impact of the so-called. the big amendment of building regulations to a market.
the issue. Points out to the fact that this amendment significantly
strengthens the guarantees the principles of impeachment, which makes, among other things, that the
authorizes the Attorney General to review and cancel each
the illegal resolution of lower prosecutors to stop the criminal
prosecution or the referral of a case within two months of their legal
to be able to. In addition, a new extraordinary appeal to the criminal process-
Appeal-allows all parties access to the highest institution of the structure
General courts. Both of these new instruments are brought in by the so-called. a major amendment
tr. order according to the Chairman of the Senate relativizují the possible impact of the impugned
the lack of "equality of arms" and a violation of the principle of the indictment within the
Institute a complaint for a breach of the law. In conclusion then expresses
the belief, according to which the reduction of violations of the law in favour of axles
the accused only on academic opinion can be specific in the outermost
cases of failure of Justice understood as lack, therefore edit
complaint for violations of the law such as the extraordinary appeal
Guest may not in all cases be bowed with resources
cross frame standard of criminal prosecution, thus bound rigorously
on the basic requirements of a fair process.
On the basis of the § 49 paragraph options. 1 of law No. 182/1993 Coll., and
Since the application of section 272, tr. order directly affects the Supreme
the Court and the Ministry of Justice, the Constitutional Court on the
State authorities asking for comments on a proposal to repeal the said
the statutory provisions.
In his comments, the President of the Supreme Court. Eliška
Wagner, Ph.d., United with the content of resolution III. the Senate's Constitutional
the Court, which was interrupted proceedings in the sp.. III. the TC 405/2000 and
the plenum of the Constitutional Court was presented for discussion and decision
the proposal to repeal section 272 tr. Beyond the reasons referred to in the
the resolution points out in the comments on other grounds contrary to section 272, tr.
order with the constitutional order. Stating that the purpose of the Institute complaints
for violation of the law, you can search in two levels-both in the idea
that law, i.e.. objective law, deserves protection, and secondly in
the control procedures of the State bodies involved in the criminal proceedings
(investigator, Prosecutor, judge, or the Court-to § 266 (1)
tr.).
President of the Supreme Court building on the way out
notes that a complaint for violation of law served to the detriment of
the accused is the Institute, which will interfere with the rights of the accused to a fair
process in the broader sense, therefore, it is necessary to examine such intervention in the
of that basic principle [in the breadth over a specific
the basic procedural rights and guarantees contained in the Charter is the title of the fifth
dovoditelný from the article. 1 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution")] and of the
the perspective of the principle of proportionality (also dovoditelného of article 1
Of the Constitution). In this context, considers it important to answer the question,
whether the Institute is under consideration in a democratic society
necessary. On this question the answer is in the comments formulated, according to which the
the purpose of that complaint for violation of law brought against the accused
monitors-IE. the protection of the rights and procedural compliance with the objective
procedures-is itself problematic, as both of the elements that are to be
protected are protected, not in isolation but in relation to the subjective
the rights of the accused or the injured party, or in relation to the protection of public
the farmhouse. Protected is ultimately just a product of the State, i.e.,.
objective law in the form of a law, or is monitored by correction of the behaviour
State or official persons or authorities. Complaint for violation of law
served to the detriment of the accused is so in the opinion of the Chair of the
The Supreme Court of the purpose Institute problematic in
a democratic legal State, whose imanentním character is the respect for the rights and
the freedoms of the individual, since those can become legitimately intervene only
the law, however, only because of the protection of the rights and freedoms of others, or
protection of public goods. In this context, in particular
stresses that action, however, can hardly be justified only axle
misconduct of the State itself, which is causally linked to the individual himself
was not a participant. Institute a complaint for violation of law served to the detriment of
the accused may, for the reasons given by the conviction of the President of the
The Supreme Court violate the principle contained in article i. 1 of the Constitution.
The second reason, which, in its representation of the President of the highest rank
the Court beyond the grounds of unconstitutionality of section 272 of the order contained in the tr.
proposal III. Chamber of the Constitutional Court, is the fact that, in
some cases may Institute complaints for violation of law
served to the detriment of the accused present and the hit to the right not to be
prosecuted twice for the same offence, and this in terms of article. 4 Protocol
No. 7 to the Convention for the protection of human rights and fundamental freedoms (hereinafter referred to as
"The Convention"). Unlike article. 40 paragraph. 5 of the Charter, which speaks in the plural
on the possibility of the application of the extraordinary remedies (apparently so
responds to valid legal editing) that can be referred to the principle of
break, knows the article. 4 of Protocol No 7 to the Convention only retrial, whose
the admissibility, in scope, defines himself. Indeed, the scope of admissibility
binds only to the newly discovered facts, or on a substantial defect in
the previous management, both apply only to affect
the decision in the case. It then concludes that in the comments on the difference
from the complaints for violation of the law, whose purpose is the protection of an objective
right or remedy a defective procedure in management so to speak "about yourself", is
recovery within the meaning of Protocol No 7 to the Convention strictly tied to the influence
a specific individual decision in the case. As paragraph 3 of the article. 4
Protocol No. 7 to the Convention provides that you cannot retreat from this article
According to the article. 15 of the Convention, i.e.. even in exceptional (e.g. war)
situations, it is considered obvious, that you cannot expand the space for
the openwork of the basic principle of not being prosecuted twice for the same crime
performance, as apparently is in particular a complaint for violation of the law, served in the
against the accused. Therefore the Institute complaints for violation of law
the disadvantage of the accused in the comments considered in the
some cases into the basic rights contained in the article. 4 Protocol No.
7 to the Convention.
Of all of the above reasons, the President of the Supreme Court in favour of the
proposal III. Chamber of the Constitutional Court to repeal section 272 tr. regulations for its
contradiction with article. 1 of the Constitution and article. 4 of Protocol No. 7 to the Convention. At the request of
President of the Constitutional Court, the Supreme Court has submitted for the purposes of
of the management of statistical data concerning complaints for
violations of the law in the years 1996 to 2001.
From the data submitted, in particular, shows that in that period, first,
to change the ratio of complaints for violation of the law submitted for the benefit and in the
detriment of the accused, firstly, to the overall increase in complaints submitted
for violation of the law. While in 1996, it was the Minister of Justice
174 complaints filed in favor and only 49 against the accused
(with 12 at the same time was lodged in his favor and against), in
1997 was then the ratio of the tracked data to 58 88 (3 lodged in
the benefit and detriment of the accused), in 1998 the then 74 to 98 (6
made in favour of and against the accused), IE. for the first time the number of
complaints against exceeded the number of complaints lodged in
the benefit of the accused, in 1999, then the ratio of the data amounted to 88 to
117 (13 in favour and submitted against the accused), in the year 2000
then 113 to 166 (22 made in favour of and against the accused) and
Finally, in the first seven months of the year 2001 75 to 102 (10 submitted
the benefit and detriment of the accused). Furthermore, from the statistical
data shows that, while in 1996 the share of submitted complaints
against the decision in the preliminary proceedings, 14%, in 1997, is already 18%,
in 1998 22%, in the year 1999 21%, in 2000, the then already 26% and in
the first seven months of 2001 rose to 29%.
The Minister of Justice. Jaroslav Bureš, in his statement to the
proposal III. Chamber of the Constitutional Court to repeal of section 272 of the order.
stresses that the legal Institute of complaints for violation of the Act was
introduced into the Czechoslovak legal system through the adoption of Act No. 87/1950
Coll., on criminal court proceedings (code of criminal procedure), and later přejímán into
other laws concerning criminal procedure Court [no 64/1956 Coll. on criminal
judicial proceedings (code of criminal procedure), and no. 141/1961 Coll.) and stayed through the partial
the amendment retained in the legal order of the Czech Republic after 1993 (sections 266
and subs. valid tr.). Considers that this extraordinary appeal
means to a large extent on the mistrial followed up a complaint for the conservation
the law, which was based on the law No 119/1873, l. z., which lists
Code of criminal procedure, as amended, (cf. § 33, 479 and 292) on
our territory used in the former Czechoslovakia (in Czech countries and
Moravian-Silesian) was, however, some elements typical for the so-called.
Socialist legal system enriched and supplemented. In the statement on
points to the fact that after 1990 were against the complaint for
violations of the law as an extraordinary appeal in particular in
literature challenged containing similar arguments as in the
that the resolution of the Constitutional Court, and in particular from the viewpoint of equality
the parties, since the amendment made by Act No. 292/1993 Coll., namely with effect
from the 1. January 1994 left the permission to lodge a complaint for violation of
the law only to the Minister of Justice (in the meantime could submit a complaint
for the violation of law and Attorney General), but from the point of view of equality
the basic parties to criminal proceedings (state versus the accused) it is still about
authority of the State, while not decisive, who stand in a specific stage of the
Management performs. The Minister of Justice recalls that in this
the context was repeatedly emphasized, that a complaint for violation of
the law is in deep conflict with the concept of the rule of law, because the right
to file a complaint for violation of the law, such as the so-called. official patch
means, in favour of the convicted person is entrusted only to a particular climatic
State officials, who then can even submit this patch
the resource and to the detriment of the accused.
On the basis of these considerations, the Minister of Justice expressing consent with the
Thus, if the State, under the authority of the State acting as a procedural
party in criminal proceedings (not applicable, whether it is depending on the stage of the
the management of the public prosecutor or Minister of Justice), in
compared with the other accused, albeit an extraordinary remedy
the founding, the possibility to cancel the final decision in
the criminal case, it is contrary to the principle of equality of the parties in the
the meaning of the article. paragraph 37. 3 of the Charter, when this provision is inferred
the procedural equality of the parties, both in civil and in criminal proceedings, and
This policy does not apply to just the natural and legal persons, but also state,
or a public authority, if in the given proceedings acts as a procedural
Party (not as a recipient of State power-the potentior persona). The criminal
management, as stated in the observations, it is the management of
application inter partes, IE. in such a proceeding, in which the parties against each other
as a process, when opponents in criminal proceedings, in particular the equality of
the plaintiff and the defendant, therefore, the Prosecutor and the accused, but
the requirement of equality of the parties (the "equality of arms") can be applied, albeit with
a specific subject, and on the relationship of the Minister of Justice and the accused,
in particular, if the Minister of Justice complaint for violation of law
the disadvantage of the accused (defendant).
When filing a complaint for a breach of the law in favour of the accused is
According to the Minister of Justice, it should be understood as a means of favor
defensionis, which is possible from the constitutional aspects of the accept, because
cannot degrade its status from both the substantive and procedural
aspects, though it also raises some doubts from the viewpoint of equality
weapons within the meaning of article. 6 of the Convention, in particular in the case of the accused
the stimulus is seeking for violation of law complaints in their favor, but
It does not give the Minister of Justice, as in these cases, it would be possible to
Moreover, a contradiction to the principles of the rule of law, which should guarantee
equality means to protect the rights of procedural pages or participants
management, as part of the right to a fair trial within the meaning of article. 36
paragraph. 1 of the Charter.
According to the Minister of Justice apply these considerations and more, when it comes to
complaint for violation of the law to the detriment of the accused against the meritornímu
the decision of the authorities in the preparatory proceedings, for example. against the decision of the
the investigator or the Prosecutor to halt criminal prosecution
According to the § 172 tr. order or referral to another authority pursuant to § 171 tr.
the order, which undoubtedly is in the case of a judgment of the Supreme Court, which
by pursuant to section 268, paragraph. 2. regulations of the law and at the same time under section
269 paragraph. 2 and § 272 tr. order be cancelled and such resolution in accordance with the contested section
paragraph 270. 1. the order generally directing the tr to the Prosecutor that the case in the
extent required again to discuss and decide about it, about the unacceptability of the intervention
to the principles of the indictment (section 2 paragraph 8 tr.), although the Supreme Court cannot, in
such a decision of the Prosecutor to save, in this case filed on
the prosecution of the accused. Under section 270, paragraph. 4. the order is authority
the thing was, it is bound by the legal opinion, which expressed in things
The Supreme Court, and is obliged to perform the procedural acts, whose implementation
The Supreme Court, which ordered the Supreme Court significantly affects just
the basis for the filing of the indictment, and thus the principle of the indictment, which has its
constitutional basis, in particular in the provisions of the article. 80 (2). 1 of the Constitution, but also in the
related provisions of the article. 90 of the Constitution and article. 40 paragraph. 1 of the Charter.
In the statement also notes that all of these issues are
The Justice Department has repeatedly addressed in the individual
amending the code of criminal procedure and in the context of the upcoming
new codification of the criminal procedural law, which then received its expression in
the so-called. major amendment to the criminal procedure code, where is the modification of the new
the extraordinary appeal-an appeal that will be exactly
listed judicial decisions, and in which the equality of the parties is maintained
(cf. section 265a to 265s tr.) and that was in accordance with the above
those opinions also during the legislative process of the initiative
The Ministry of Justice and the Supreme Court added permissions
the Attorney General in a very short time to disturb the illegal
final resolution of lower prosecutors to stop the criminal
prosecution or referral (cf. § Article 174a tr.). These
the institutes should in the opinion of the Minister of Justice with effect from 1 January.
January 2002, basically replace the complaint for violation of the law, even if up to
the adoption of the criminal procedure code rekodifikace still retains (including § 272
tr.) for certain exceptional cases, when the fault is not rectified
mansfeld or other remedy (e.g. for the repeal of the resolution on the
stopping criminal prosecution in criminal matters of persons accused of
crimes committed by the totalitarian regime in the days following the
Law No. 119/1990 Coll., on the judicial rehabilitation as amended
regulations, and Act No. 198/1993 Coll., on the illegality of the Communist
mode and the resistance against it). It is pointed out in this context
in particular, some cases of recent years, when finally criminally
prosecuted some of the persons responsible for the crimes committed in favour of the
the Communist regime, but the prosecution was already in the preparatory
proceedings or in proceedings before the Court, which led the Ministry of
Justice and the Government to keep the Institute complaints for violation of
the Act (including section 272, tr.) continue in the criminal procedure code, as otherwise
This misconduct could not be remedied. In this context, illustrates the
the issue and on the specific case, warns Minister
Justice and to section 71, paragraph. 1 of law No. 182/1993 Coll. and the problems
associated with its impact on those cases.
The Minister of Justice points out further that if the Constitutional Court
cancels the § 272 tr. order will be created by a very disadvantageous situation of
the point of view of the other submitted complaints for violation of the Act because of section 272
tr. order does not address only the cases, when the Supreme Court revoked pursuant to section 269, paragraph.
2. the order and within the time limits referred to in section 272 tr. order of the contested decision
on the basis of a complaint for a breach of the law, filed against the accused
After a breach of the law in his favor, but also all the other
the cases where the law has not been violated to the detriment of the accused, therefore, resolves and
cases which are without prejudice to the accused, but they relate to other people, in
the benefit or detriment of the complaint has been filed and the Court finds that the
the law was violated to the detriment of or for the benefit of such persons other than
the accused (e.g. the persons interested, expert in the context of the znalečným,
the defence counsel in respect of his remuneration and expenses, etc.). These
cases should not continue to be complaints for violation of law resolved
While it is not possible to solve or mansfeld, which in these matters
due to the design appeal and the assumption that the complaint for
violations of the law will, albeit in a limited form, even after the effectiveness of the so-called. large
the amendment continue to pay, it will not be possible. Minister highlights
the fact that in section 272 paragraph. 2. the order shall be settled cases the time limit 3
months (in the sense of changes enshrined the so-called great amendment limits 6
months), valid for the other person outside of the accused in the case
the submission of a complaint for a breach of the law building on the Grand Chamber
the amendment to Act No. 335/1991 Coll. on courts and Judges Act, effective since 1.
January 2001 (Act No. 30/2000 Coll.).
In case, if the Constitutional Court to repeal of section 272 of the order, tr.
points out in the comments on the two circumstances. The first is the nexus to § 276
the sentences of the fourth order, with tr § 272 tr. regulations, for which it would be required according to the
opinion of the Minister of Justice together with the derogations § 272 tr. order completed
grant referred to section 276 of the sentence of the fourth tr. The other is then a recommendation
postpone any derogačního the award of at least 1. January 2002
(i.e. the date of effectiveness of the so-called great tr. amendment procedure), or even
for a longer period of time, as it will be obviously more amendment to the criminal procedure code on the
such a find to react, in particular as regards the possibility of "remedy misconduct
relating to persons other than the accused ".
IV.
July 11, 2001, the Constitutional Court was served on the Supreme Court
repeal of section 272, tr. regulations made pursuant to article. paragraph 95. 2 of the Constitution, section, paragraph 224.
5. the order of per analogiam and § 64 paragraph. 4 of law No. 182/1993 Coll., the proposal
based on the resolution of the Supreme Court of Justice from 26. June 2001, SP. zn. 11 Tz
106/2001, which was aborted by the complaint for violation of law
filed by the Minister of Justice to the detriment of the accused D. B.
the resolution of the public prosecutor of the District Public Prosecutor's Office in Děčín from
December 19, 2000, no. 2, Zt 897/2000-5 about the referral of a criminal matter, and
According to the above-mentioned constitutional and legal provisions, the case was presented
The Constitutional Court.
In the opinion of the Senate of the Supreme Court Institute complaints for violation of
act contrary to the concept of the democratic State, because
the right to use this extraordinary appeal is only
in the hands of representatives of the Executive-the Minister of Justice. The accused is
cannot obtain the submission of this extraordinary appeal to your
benefit or in cases of serious violation of law and flagrantního is
predicated on the decision of the Minister of Justice. One isolated
exceptions resulting from the Rehabilitation Act, does not have an obligation to this
the extraordinary appeal use. Is on his consideration of whether there has been
violations of the law and whether it is so serious that it requires
intervention in the principle of stability of judicial decisions. The Senate Of The Supreme
the Court notes that it is the Institute, which should not have a place in
modern criminal procedure code. All of the listed flaws from his conviction
stand out even more to the fore with complaints for violation of law
served to the detriment of the accused, particularly in cases where the
This remedy a substantive decision bodies being challenged
preliminary proceedings. The Senate of the Supreme Court, therefore, concludes that the
the existence of this Institute is the negation of the equality of all parties to the proceedings
expressed in the article. paragraph 37. 3 of the Charter and does not respect the right to a fair
guaranteed process article. 6 of the Convention. The legal possibilities of the Supreme Court
in proceedings on a complaint for violation of law filed by the Minister
Justice to the detriment of the accused, the final decision
the investigator or the Prosecutor to halt criminal prosecution or
referral to another authority and order the prosecuting authorities in the preparatory
proceedings in criminal proceedings to continue, moreover, is fundamentally
breached the principle of impeachment, which is the guiding principle of criminal proceedings in
the legal State. For these reasons it is not possible in accordance with the opinion of the Senate
Supreme Court to tolerate violations of the law the complaint for the Institute in the
against the accused.
By order of 10. October 2001 no j. pl. ÚS 19/01-6, the Constitutional Court in question
the design of the Senate of the Supreme Court because of lis pendens pursuant to § 35 paragraph. 2
Act No. 182/1993 Coll. refused and stated that the Supreme Court as a legitimate
the applicant has, under section 35, paragraph. 2 Act No. 182/1993 Coll., the right to participate in
as the intervener submitted a proposal earlier negotiations conducted under the
SP. zn. PL. ÚS 15/01.
For the same reasons, the Constitutional Court's rulings from the 20. September 2001 no j. pl. ÚS
23/01-10, from 28. August 2001 no j. pl. ÚS 26/01-11, from 18. September 2001, no.
PL. ÚS 30/01-11 and 10. October 2001 no j. pl. ÚS 32/01-10 refused to even its
the contents of the analogue draft Supreme Court for revocation of section 272 of the order, tr.
and even in these cases the Supreme Court as the legitimate claimant has
According to § 35 paragraph. 2 Act No. 182/1993 Coll., the right to participate as a
intervener submitted a proposal earlier negotiations conducted under SP. zn.
PL. ÚS 15/01.
In the.
The language of section 272, tr. of the order, as amended, whose constitutionality is
The Constitutional Court considered in control of inspection standards, is the following:
"§ 272
(1) if the law was not violated to the detriment of the accused, the Supreme Court
proceed under section 269, paragraph. 2 to § 271 only suggested if the Minister
Justice in the complaint for the violation of the law, filed within six months of
from the legal power of the contested decision and if the Supreme Court decided about this
the complaints within three months of its submission.
(2) If a complaint for violation of the Act referred to in paragraph 1
submitted within three months of its submission to the decision of the Grand Chamber
the College, the Supreme Court may proceed under section 269, paragraph. 2 to § 271 only
then, he decided about this complaint within three months of its transmission
the Grand Chamber of the Court. ".
VI.
According to section 68, paragraph. 2 Act No. 182/1993 Coll., the Constitutional Court, in decision making in the
the procedure for the abolition of laws and other legal regulations shall examine the content of the
These regulations in terms of their conformity with the constitutional requirements,
the international treaties referred to in article. 10 of the Constitution, where appropriate, laws, if it
other legislation and discovers that they have been received and issued in
the limits of the Constitution laid down the competence and the constitutionally prescribed way.
If the Constitutional Court under the control of the constitutionality of the competencies assessed standards
the regulatory authority and the constitutionality of the regulatory process, is based on § 66
paragraph. 2 Act No. 182/1993 Coll., according to which the proposal of cancellation
laws and other legal regulations of the inadmissible if constitutional law
or international treaty, with which they are examined according to the design
in violation of the rules, which expired before delivery of the draft to the Constitutional Court
the validity of. It follows from this that, in the case of legislation published before the acquisition
the effectiveness of the Constitution of the Czech Republic No. 1/1993 Coll., the Constitutional Court is authorized to
review the content only for their compliance with the current constitutional
policy, but not the constitutionality of the procedure of their creation and compliance
regulatory competence. (See find SP. zn. PL-9/99, published in
SB. n., and St. 16, with 13-14; promulgated under no. 289/1999 Coll.).
On the basis of the interpretation of section 68, paragraph. 2 Act No. 182/1993 Coll., on the
the case of section 272, tr. regulations examined by the Constitutional Court, if the contested legal
the provisions adopted and published within the limits of the Constitution laid down the competence and
constitutionally prescribed way merely in terms of its amendment
carried out after 1. January 1993.
The following laws:
-Article. I, item 177 of Act No. 292/1993 Coll., amending and supplementing Act
No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), law No.
21/1992 Coll., on banks, and Act No. 335/1991 Coll. on courts and judges:
' In § 272 are deleted the words "Attorney General or". '
-Article. XI of Act No. 30/2000 Coll., amending Act No. 99/1963 Coll.,
Code of civil procedure, as amended, and certain other
laws: ' in section 272, the existing text shall become paragraph 1 and the following
paragraph 2, which reads as follows:
"(2) If a complaint for violation of the Act referred to in paragraph 1
submitted within three months of its submission to the decision of the Grand Chamber
the College, the Supreme Court may proceed under section 269, paragraph. 2 to § 271 only
then, he decided about this complaint within three months of its transmission
the Grand Chamber of the Court. " '
From the Council prints and těsnopiseckých reports, it was found
that
-Law No. 292/1993 Coll. was adopted on 14. a meeting of the Chamber of Deputies
The Parliament of the Czech Republic (1st term) on 10. November 1993,
When of 155 members voted for its adoption, 104 10
voted against and 41 abstentions; the law was signed by the
respective constitutional actors and has been properly declared in the amount of 74/1993
Collection of laws, which was circulated to 10 June. in December 1993, the effectiveness of the
then took on 1. January 1994;
-Act No. 30/2000 Coll., was passed on 19. meeting (3rd term)
The Chamber of Deputies on 9 December December 1999 by resolution No. 670, when
187 members of Parliament present voted for its adoption of the 164 and a member of the
voted against; the law was approved by the Senate as a transferred him
The Chamber of Deputies on 15. meeting (2nd term) by resolution No.
249 12 June. in January 2000, when the vote of senators present, 72
quorum, 37 voted for its adoption of the 68 senators did not vote against
No one; the law was signed by the respective constitutional actors and was properly
declared in the amount 11/2000 of the collection of laws, which was circulated on 23 June.
February 2000, efficiency then took on 1 July. January 1, 2001.
VII.
VII/a
Complaint for violation of the law, according to section 266 et seq.. tr. order of the extraordinary
the remedy, which befits the only State and which can be achieved
cancellation of a final decision of a court, Prosecutor or
investigators. The Supreme Court, which is a complaint for violation of law
jurisdiction (§ 266 1 tr.), and in addition to the permissions in the
things take an academic opinion (article 268, paragraph 2 tr) is gifted with and
competences of the Court of appeal, respectively (section 269 (2), section 271 tr.), and
even in the case of a complaint lodged against the accused (section 272, tr.
the order).
Legal Institute complaints for violation of the Act was introduced into the
the Czechoslovak legal system through the adoption of Act No. 87/1950 Coll., přejímán
He was then also in other codifications of the criminal process (Law No. 64/1956 Coll.
and Act No. 141/1961 Coll.) and retained even in the legal order of the Czech
Republic after 1993 (section 266 et seq. valid tr.).
Law No. 87/1950 Coll. has brought the concept of abandonment of the previous democratic
the criminal process and represented the Soviet takeover of the totalitarian concept
Stalinist. When you discuss the outline of the law by the National Assembly
on 11 July. in July 1950, in this context, the then Minister of Justice
Štefan Rais said: "If the us Was being allowed to contribute to the social
building our country by developing important new laws, and between them
criminal law, and especially for our belongs to a warm thank you to
Soviet legal science and the excellent Soviet workers
in the field of criminal law. (Applause) As well as in other fields, also
in the criminal law include the Soviet science undisputed world leadership.
The lawyers of the Soviet Union to an unprecedented level and processed
insurmountable problems of Socialist way of criminal law and
enriched on the basis of the teachings of Marxism-Leninism the science of criminal law
important new knowledge, to which the měšťácká Science never reached and
cannot reach and whose resolution is already today the attempt. Knowledge of the
Soviet law and the Soviet theory was a necessary and fundamental
a prerequisite for the formulation of our new criminal laws, and without it
are not possible in such a short time to finish the outline now
discussing the National Assembly. It goes without saying that while it was necessary to
build on our developments and the historical experience of our
of the working people. However, it should be pointed out that the essence of the issues which
deals with the new criminal law, was unveiled and a perfectly processed in
the experience of the Soviet Union. The results of the legislative work on the new
criminal law are, therefore, not only of our new success, the working class,
but marx-Leninist thinking at all, and the Great Socialist science
The Soviet Union especially. " (see www. psp. cz).
Introduction to the Institute a complaint for violation of the law to the detriment of
the accused in the tr. order of 1950 was a manifestation of empowerment
Executive to the Court (in particular the Prosecutor's Office.
"the guardian of socialist legality"). Was based on a distrust in the
the reliability of the judiciary in the position of the oppressive apparatus of the totalitarian State and
Installing options represented the central decision to achieve
revocation of any final decision of a criminal law, even in the
against the accused.
You can přisvědčit as President of the House, Minister of
Justice, the issue of the constitutionality of the Institute complaints for violation of
the law has been repeatedly considered in amending the events of tr.
the order, and was also critically reflected significantly in the theory of criminal
procedural law (see e.g.. P. Šámal, remedies in the criminal
the proceedings. Complaint for violation of the law. Recovery management. Prague 1999, p. 160
-161).
VII/b
The constitutional principles of forming one of the components of the basic rights of
a fair trial include the principle of "equality of arms" principle, respectively.
equality of opportunity (or the principle of the equality of all parties to the proceedings)
According to the article. paragraph 37. 3 of the Charter, article. paragraph 96. 1 of the Constitution and article. 6 (1). 1
Of the Convention. Referred to the principle of special importance in the proceeding shall take the criminal,
that is, in relation to the accused person closely connected with the law on defence, with
the law court and legally argue and express to all
carried out by the evidence. The principle of the equality of participants in criminal proceedings, in addition to
the function of the protection status of the accused, which testify to the presumption of innocence, is
also part of the overall concept of democratic criminal process,
which expression is the principle of adversarial proceedings.
The principle of "equality of arms" in criminal proceedings is reflected in all stages of
criminal proceedings, as well as in all its aspects. Both in the
the investigative and review, both then in the whole of their scale,
in particular, but the evidence in the proceedings (when designing evidence, the right to express
to by the evidence, etc.). The principle of "equality of arms" in the criminal
control is not absolute, however, in General, the maxima, according to which the State in
comparison with the accused, in any context, it is not for more rights, respectively.
more convenient procedural status [cf. e.g. time limit permissions
the State Attorney to submit a proposal on the renewal of proceedings against the accused
According to § 279 (b). and) tr.].
The principle of "equality of arms" (article 6, paragraph 1, of the Convention) has significantly impacted in
the existing case law of the European Court of human rights. It can be in this
context characterized especially by the fact that in the opinion of the Court the
the basis is the idea of equality, which is comparable with the principle of the prohibition of
discrimination according to the article. 14 of the Convention. In the criminal process is the protection of the
the accused, which is indicative until the time of his conviction, the presumption of
innocence, and is closely associated with the adversarial nature of the criminal proceedings. (See
in particular, cases Bnisch vs. Austria and Austria-Brandstetter vs.
doktrinární analysis serves for example. J. A. Frowein, W. Peukert, Europaische
Menschenrechtskonvention. EMRK-Kommentar. Kehl-Strassburg-Arlington
1996. 219 et seq., m. de Salvia, Compendium de la CEDH.
Kehl-Strassburg-Arlington 1998, p. 147 et seq.)
Unlike all other remedies in the criminal
order only the complaint for violation of the law is the responsibility of only one process
party-State. If the State party in criminal proceedings, procedural
(which cannot be regarded as decisive, that the authority of the State in which the
stage of the criminal proceedings is entitled to act on its behalf) has
comparison with other procedural means of founding the accused the possibility of
achieve the annulment of a final judgment in a criminal case, not than the
This inferred prejudice to the rights of the accused to "equality of arms" in the
the criminal process, resulting from the article. paragraph 37. 3 of the Charter, article. paragraph 96. 1
Of the Constitution and article. 6 (1). 1 of the Convention.
If the claim was removed from the specified permissions to file a complaint for
violations of the law in favour of the accused, because of his understanding as
the procedural expression of a "benefit", in the area of substantive law
is not likely to hit the rights of the accused, the complaint of unconstitutionality with the
narrows to Institute complaints for violation of the law to the detriment of
of the accused.
In the period prior to the adoption of the code of criminal procedure no. 87/1950 Coll., valid code of criminal procedure
(Act No 119/1873 l. of., as amended by later regulations) known under the
system of extraordinary remedies mistrials Institute complaints
for the maintenance of the law, that "in the interest of uniformity of rights" allow
"to the right of the Prosecutor ex officio or by order of the Minister of
Justice dovolati the Supreme Court's decision on the question of whether the
some 1. judgment, 2. the resolution, or 3. the procedure of the Criminal Court
(or prosecution) has violated the law "(j. Kallab, textbooks
the criminal proceedings. Brno, 1930, p. 207). The Supreme Court decision, however,
as a rule, not the effect on the accused, it was "the only authoritative
the resolution of the disputed legal issues, perhaps without the courts would be bound by the opinion of the
the Supreme Court of the Association for their "(ibid., p. 208). The consequences for the
the accused, in the form of the reformation or appeals have been messy, legislation
complaints for the conservation law (section 292 of the Act No. 119/1873, l. z.,
as amended) anticipated exceptionally, only in the
the benefit of the accused in the case of his conviction to the penalty. From the indicated
recap follows that legislation is contained in předúnorovém of the criminal
procedure in proceedings on a complaint for a mistrial filed conservation law
against the accused, allowed the adoption only of academic opinion in
the purpose of unification of case law in resolving the legal issues
She but adverse court, or reformation effects for
of the accused. Thus conceived, the complaint for the conservation of the Act applies in the
The Republic of Austria to this day.
In basic international comparison to Institute complaints for violation of
the Act, which is available to only one procedural side, State, and
may be directed to the detriment of the accused against the final decision of the
the courts, as well as the organs of preliminary proceedings, could not find a parallel.
Only ilustrativně can be used in this context to mention. the legal adjustment
the German. The system of appeal enshrined in the current criminal
Code (law no 253/1877 RGBl., in wording of later regulations) includes
the institutes of the complaint, appeal, review and renewal of management, which fully
comply with the requirements arising from article. 6 of the Convention, i.e.. and the principle of
"equality of arms".
The relevance of the criticisms reject the principle of "equality of arms", then
even more in cases of possible application of the complaints for violation of
of the law to the detriment of the accused against decisions of law
preliminary proceedings (e.g., against the decision of the investigator or the Prosecutor
representative stopping criminal prosecution). The guiding principles of criminal
management in the legal State, and since the time of the Enlightenment, are the principle
the impeachment, or the akuzační (§ 2 paragraph 8 tr.), which was in the criminal
the process becomes obsolete and replaced by the principle of inquisition. According to the principles of the indictment
an essential part of the democratic process, respecting the criminal
the value of the independence of the decision-making process, is the institutional Department
the procedural features of the preparation and filing of the indictment and decide on the guilt and
the sentence between the various procedural actors. From the point of view of the constitutional, then this
the principle follows from article. 80 (2). 1, article. 90 of the Constitution and article. 40 paragraph. 1 of the Charter.
If the Highest Court in proceedings on a complaint for violation of the Act, filed
the Minister of Justice to the detriment of the accused against the final
the decision of the investigator, the Prosecutor or the cessation of the criminal
prosecution according to § 272 tr. regulations shall be entitled to cancel such decision and
prosecuting authorities in the pre-trial order that in criminal prosecutions
continued, then you cannot qualify this permission other than as
contradictory to the constitutionally of the United kautel the breakout principle of indictment in
the criminal proceedings. Authority to whom the case was, it is under section 270
paragraph. 4. the order is bound by the legal opinion, which expressed in case the highest
Court and is obliged to perform the procedural acts, the Highest
the Court ordered. The Supreme Court this significantly affects the fact of
which the indictment is based, and thus the principle of impeachment. In this
the context should be noted on a permanent increase in the number and ratio of submitted
complaints against the decision of the pre-trial.
Points out in the comments to the Minister of Justice on positive effects
Institute a complaint for a breach of the law to the detriment of the accused in the
the context of the settlement with the period of the totalitarian despotism, it must be stated
the following:
The amendment order no tr. 265/2001 Coll., introduces the Institute an appeal against
the accused, which can be used to challenge a final decision of the Court on the merits
and which is entrusted to the Attorney General [section 265a (1), § 265d
paragraph. 1 (a). and regulations, tr.), as amended by Act No. 265/2001 Coll.]. In respect of
the final resolution of lower prosecutors to stop the criminal
prosecution or referral then establishes the Supreme privileges
the Prosecutor's decision to cancel this for their lack of the law (§
Article 174a, tr. regulations, as amended by Act No. 265/2001 Coll.). To the effective date of
the amendment to the regulations made by the tr. by Act No. 265/2001 Coll., i.e.. 1. January 2002,
It creates a legal mechanism that allows the State to effectively
to apply the public interest in achieving the purpose of criminal proceedings, but at the same time
to meet the requirements arising from article for due process. paragraph 37. 3 of the Charter and
article. 6 (1). 1 of the Convention, i.e.. in particular, the requirement of equality of parties to proceedings
(requirement of "equality of arms"). Putting derogačního the effect of the award
The Constitutional Court of 31. December 2001 then in the legislation from the point of view
the analysis of the purpose of extraordinary appeal disposed of
gap.
In that context, the need to point out the fact that the question of equality
the participants of criminal proceedings and aspects of its possible restriction in the
against the accused, the Constitutional Court extensively in case sp..
PL. ÚS 4/94 (Coll. and u. n., St. 2, 57 et seq.; promulgated under no.
214/1994 Coll.). In connection with the ústavností Institute of anonymous witnesses in
criminal proceedings, he said: "the purpose of the right to a public hearing of the case,
in connection with the right to express his views on all of the evidence is carried out
provide the accused in the criminal process, the possibility of verification of evidence,
heading towards him, and that's before the face of the public. This verification in the
If the testimony contains two components: the first is the examination of the
the truth of the factual allegations, the second is then the possibility of examination
the credibility of the witness. The institution of anonymous witnesses, therefore, limits the ability of
the accused to verify the truthfulness of the witness against him, pointing
the testimony, because it eliminates the opportunity to witness and to his
assurance. Restricts the rights of the defence, is in contradiction with the
the principle of the adversarial process, with the principle of the equality of the participants.
... To restrict fundamental rights or freedoms, even if their constitutional modification
restrictions on does not assume, can occur in the event of a collision. The base is
in this context, the maxima, according to which fundamental right or freedom can be
limit only in the interest of any other fundamental right or freedom. ... Mutual
measurement in the colliding-standing fundamental rights and freedoms
consists of the following criteria: the first is the criterion of suitability, IE.
the answer to the question of whether the Institute, restricting certain basic law,
allows you to achieve the objective sought (the protection of other fundamental rights). ...
The second criterion is the measurement of fundamental rights and freedoms is the criterion
necessity of comparing legislative resource
restricting the fundamental right or freedom with other measures,
that enable it to achieve the same goal, but nedotýkajícími is
fundamental rights and freedoms. ... The third criterion is the comparison of the severity
both the conflict of fundamental rights in the standing. ".
From the perspective of the principle of proportionality as outlined kautel Institute
complaint for violation of the law to the detriment of the accused, prolamující
the fundamental rights arising from the constitutional principle of equality does not hold water.
However watching as their objective the protection of public interest at the fair
the punishment of the offender, and the principle of the rights of the estates,
does not meet the need, IE. the condition of the comparison
legislative resource restricting the fundamental right or freedom with
other measures that enable it to achieve the same goal, but
nedotýkajícími the fundamental rights and freedoms. This fact stands out
especially significant to the fore in connection with the introduction of the extraordinary
Appeal-appeal-in criminal proceedings amendment order no tr.
265/2001 Coll.
In connection with the ostensible purpose of the uniqueness of the Institute complaints
for violation of the law to the detriment of the accused should be noted on
statistical data is an increasing tendency to increase the ratio of
lodged complaints against the defendants.
If the repeal of section 272, tr. order not only to cases of violations of the law in
the benefit of the accused, but also on all other cases, when the law was not
violated to the detriment of the accused, but had been violated in the case of other persons, in
the benefit or detriment of the complaint has been filed and the Court finds that the
the law was violated to the detriment of or for the benefit of such persons other than
the accused (e.g. the persons interested, expert in the context of the znalečným,
the defence counsel in respect of his remuneration and expenses, etc.),
in the opinion of the Minister of Justice in these cases were still complaints
for violation of the law, while it is solvable could not deal with, nor
mansfeld. This circumstance on the merits tests are applied for the cancellation of the Institute complaints
violations of the law to the detriment of the accused, however, nothing can change. No
the rule of law is not, and cannot be, in terms of the procedural system resources
to protect the rights, as well as from the point of view of the system layout review
an instance built ad infinitum. Every legal order and must necessarily
bring a certain number of errors. The purpose of review or appeal
management may realistically be such misconduct aproximativně minimize,
and not fully remove. System review of instances is therefore
weighing on the one hand the pursuit of estate law
the other hand, the efficiency of decision-making and of legal certainty. From the perspective of this
the criteria is the introduction of extraordinary remedies, or
extension management and breaking the principle of the nezměnitelnosti decision,
which have already acquired legal force, the only reasons in case of adequate
exceptional. As such, you cannot then mark the ones in this context
the Minister of Justice stated in its comments.
On the basis of all of the above reasons, the Constitutional Court concluded that section
272. the order, as amended, is inconsistent with article. paragraph 37.
3 of the Charter and article. 6 (1). 1 of the Convention in connection with it-based options
interfere to the detriment of the accused and the final decision in the preliminary
management, as well as with the article. 80 (2). 1 and with article. 90 of the Constitution and with article. 40 paragraph. 1
Of the Charter, and the plenary of the Constitutional Court to decide on its cancellation. The constitutional
the Court recalls in this context that the abolition of section 272, tr. order cancelled
only the Court of appeal and the Supreme Court jurisdiction in proceedings relating to
complaint for violation of the law, filed against the accused, does not interfere with the
but the proceedings as such, i.e.. does not interfere with the ability to take in the matter
academic opinion for the purpose of unification of case law for the futuro (§ 268
paragraph. 2 tr.).
VII/c
The provisions of section 272, tr. regulations in the course of proceedings before the Constitutional Court
partially amended by Act No. 265/2001 Coll., amending Act No.
141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by
amended, and Act No. 140/1961 Coll., the criminal code, as amended by
amended, and some other laws. According to the article. I, section 199 ' section
272 paragraph. 1 and 2, the words "within three months from its filing" be replaced by
the words "within six months of its submission." ' This legislation is
valid on 31 December 2004. in July 2001, that is. the date of dispatch of the amount of 102/2001
Collections of laws, in which the law in question was published, according to the article. XIV then
shall take effect on 1 January 2005. January 1, 2002.
According to section 67, paragraph. 1 of law No. 182/1993 Coll., is given a reason to halt the proceedings,
If the law, other legal regulations or their individual provisions,
the repeal is proposed, will expire before the end of the trial
before the Constitutional Court. To the interpretation of that legal reason
termination of the proceeding with the Constitutional Court expressed in particular in resolution sp..
PL. ÚS 20/99 of 18. April 2001. He stated that, in the case where the amendment
certain provisions of the repealed Act and at the same time in the same diction adopted,
However, in the scheme of the Act is classified differently, this is a new manifestation of the
the will of the legislature, by the applicant, the contested provisions therefore originally
expired before the end of the proceedings before the Constitutional Court. For this
the situation of the Constitutional Court came to the conclusion that the conditions are not fulfilled, or
admission of design changes, pursuant to section 63 of Act No. 182/1993 Coll., in conjunction with the
section 95 paragraph. 1 and 2 of the code of civil procedure.
In the case in question, however, is a different case to which section 67, paragraph. 1
Act No. 182/1993 Coll., the welding fi lter. The amendment regulations made tr. by Act No.
265/2001 Coll., has changed, only the portion of section 272 of the order.
(extension of the deadline for the decision of the Supreme Court on a complaint for
violations of the law to the detriment of the accused). This section in terms of the reasons
the assessment of the constitutionality of the entire section 272 tr. order from the Institute
complaint for violation of the law as such is irrelevant.
VII/d
According to § 276 sentence fourth tr. order "to ensure the release of the accused person
the order for the arrest and taking into custody, however, can only propose this
the Minister of Justice in the complaint for violation of the Act, filed
against the accused and if it considers it necessary for the Supreme Court
given the seriousness of the offence and the urgency of the grounds for detention. ".
The legal provisions referred to in the case of the Supreme Court
applied was not, and therefore it was not dictated by the conditions of the procedure according to § 78
paragraph. 2 Act No. 182/1993 Coll.
According to the steady opinion of the Constitutional Court is the Court in its
decision making scope of application design is bound and in its decision of its
borders (ultra petitum) cannot move (see for example find things in the sp..
PL-8/95, n., and St. 4, s. 279; promulgated under no. 29/1996 Coll.).
The provisions of section 276 of the sentence to the fourth order in the market. as a result of the repeal of section 272, tr.
order (or as a result of the abolition of the Court of appeal powers, respectively.
The Supreme Court in proceedings on a complaint for violation of the law to the detriment of
the accused) becomes the provisions of obsoletním. Derogations the facts
contained in section 272 tr. regulations § 276 of the sentence loses fourth tr. order a reasonable
meaning: to delete the appeal, or the power of the Supreme Court of appeal in
complaint for violation of the law to the detriment of the accused and is
left the possibility of adopting only the academic scope without a specific
the impact on the accused, then it cannot be the Supreme powers before leaving
the Court in such proceedings to decide on the arrest of the accused, or his
custody be considered as a contradictio in adiecto. In other words: in the
the situation, when as a result of the cancellation of a specific statutory provision
derogačním finding of the Constitutional Court, the provisions of other content from
the previous colour, losing a reasonable sense, IE. losing the merits of
its canonical existence, is given a reason for the cancellation and the
the statutory provisions, and without it, it was about how ultra petitum.
The validity of such provisions shall cease on the basis of the principle of cessante
ratione legis cessat ipsa lex, derogation, the Constitutional Court has made
Therefore, only the registration, of a technical nature.
Therefore, the plenum of the Constitutional Court following the repeal of section 272 of the order.
repeal provisions of section 276 of the sentence of the fourth tr.
For the reasons above, the Constitutional Court put down the effectiveness of the landed derogačního
the award also in relation to the provisions of section 276 of the fourth sentence of the order to the market. 31.
December 2001.
VII/e
Beyond rationis decidendi, obiter dictum, as only considers the
The Constitutional Court considers necessary to express and to the legal consequences of this
derogačního award.
The result of the first is the impact of section 71, paragraph. 1 of law No. 182/1993 Coll. on the
building the thing.
If on the basis of the legislation that has been cancelled, released by a court in
law enforcement judgment, which took legal force, but has not yet been
executed, the repeal of such legislation by the said legal
the provisions of the reason for retrial under the provisions of the criminal law
the management of the Court. In the case under consideration, however, of such a reason is not. Violations of the
the principle of "equality of arms" in the legislation to submit evidence of the active
the extraordinary appeal will not affect the constitutionality or
the legality of the procedure before the Supreme Court, or the management of the
them downstream. Repeal of section 272, tr. order thus the reason for the renewal of management according to §
paragraph 71. 1 of law No. 182/1993 Coll. does not constitute.
The result of the second is then a question of intertemporality derogačního award, IE.
the question of whether any derogation of section 272, tr. the order also applies to cases
for which the Minister of Justice filed a complaint for violation of
of the law to the detriment of the accused, but the date of effectiveness of the abolished by
finding them was not decided by the Supreme Court. Since the Constitutional Court
is not entitled to in connection with its powers to disturb the laws and other
legal provisions, or their individual provisions in a positive way
Edit the resulting consequences cannot be intertemporální than in this
the context to refer to general principles of law. For the area
intertemporality in civil and criminal proceedings applies the principle, according to the
which, unless otherwise provided by law, the Court shall proceed in accordance with the procedural adjustments
force and effect at the time of decision-making. In the case of section 272 umpired by clearing the
tr. order is lifted only Cassation and appeal the jurisdiction of the Supreme Court in the
complaint for violation of the law, filed against the accused,
shall not invalidate the proceedings as such, however, that is. does not interfere with the ability to adopt the
things for the purpose of academic opinion of unification of case law for the futuro (§
paragraph 268. 2 tr.). This implies that, in cases in which
the Minister of Justice filed a complaint for violation of the law in
against the accused, but the date of effectiveness of the abolished by finding them
It was not decided by the Supreme Court, after the effective date of derogačního
the finding of the Constitutional Court may decide to no longer merely academic.
The President of the Constitutional Court:
JUDr. Kessler v. r.
Different opinion, pursuant to section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
the reasons for the decision of the Assembly of the judge. Vlastimil Sevcik.
