On The Proposal That Repeal Of Section 272 Of The Criminal Procedure Code

Original Language Title: On The Proposal To Repeal § 272 Of The Criminal Procedure Code

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51867&nr=424~2F2001~20Sb.&ft=txt

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.