In The Matter Of The Application For Revocation Under § 83A Para. 1 Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení části § 83a odst. 1 trestního řádu

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71332&nr=219~2F2010~20Sb.&ft=txt

219/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 8 June 1998. June 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Vladimir Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým,

Pavel Rychetský, Elisabeth Wagner (Judge-Rapporteur) and Michael

April on the proposal (II). the Chamber of the Constitutional Court to repeal section 83a of Act No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended, with the participation of the Chamber of deputies of the Czech Parliament

the Republic and the Senate of the Parliament of the Czech Republic as parties to proceedings



as follows:



The provisions of § 83a para. 1, part of the first sentence and second sentence of Act No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended shall be added: ", in the preliminary proceedings, the State

representative or the police authority. The police authority it needs

prior consent of the Attorney General. "is cancelled on the date of publication of this

the finding in the journal of laws.



Justification



(I).



Even the definition of things) and recap the draft



1. In proceedings on constitutional complaints kept under SP. zn. II. TC 1414/07

the complainant Ing. M. b. van S. annulment of the resolutions of the Supreme

of the Court of 28 June. 2.2007, SP. zn. 3 Tdo 161/2007, the judgment of the regional

the Court in Pilsen, Czech Republic of 22 July. 6.2006, SP. zn. 9 255/2006 and of the judgment

Plzeň-South District Court of 8 March. 2.2006 no. 2 T 127/2005-1028,

Since it was considered that they had infringed the general courts of her fundamental rights

guaranteed article. paragraph 36. 1 and 2 of the Charter of fundamental rights and freedoms (hereinafter

"the Charter"), and was supposed to be violated article. 4 (4). 1, 2 and 4 of the Charter. On

the basis of the above-cited decisions of the ordinary courts was the complainant

convicted of a criminal offence the illicit manufacture and possession of

narcotic drugs and psychotropic substances and poisons under § 187 para. 1 (a). 2

(a). and to the criminal code and sentenced) to imprisonment in duration

2 years with conditional suspended for a period of 2 years.



2. the applicant in the constitutional complaint in particular expressed doubts

regarding the legality of the execution of house searches and examinations other

space, as it was of the opinion that for their implementation have not been met

legal conditions and, therefore, this evidence did not have general courts at all

take into account.



3. the second Chamber of the Constitutional Court did not consider it a constitutionally compliant to

the criminal procedure code as statutory law in criminal matters

established procedure (§ 82 et seq.) to determine the conditions under which it is permissible to

interfere with the right of each individual to privacy search performance

(section 83) differently (more strictly) than in the case of performance tours of other premises

and land (§ 83a), although a tour of the other space will undoubtedly also

represents the interference with the right of each individual to privacy, and in

a similar extent as in the case of house searches.



4. the second Chamber of the Constitutional Court thus concluded that the provisions of § 83a

paragraph. 1 code of criminal procedure (hereinafter referred to as "tr. order") is in conflict with the constitutional

policy in the United States. Therefore, by order of 26 March. 2.2009 SP. zn.

II. TC 1414/07 interrupted the proceedings on constitutional complaints according to § 78 para. 2

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

(hereinafter referred to as the "law on the Constitutional Court") and handed it to the plenum of the Constitutional Court

proposal to repeal § 83a para. 1. order according to § 64 para. 1 (b). (c))

the law on the Constitutional Court.



I. B) representation of the parties



5. The Constitutional Court pursuant to the provisions of § 42 para. 4 and section 69 of the Act on the constitutional

the Court sent the proposal to repeal the contested provisions

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic.



6. The Chamber of deputies of the Parliament of the United Kingdom, represented by the President of the

Ing. Miloslav Ethiopian in its observations of 21 October 2003. 4.2009 only

rekapitulovala the course of the legislative process leading to the adoption of

the current version of the contested provisions of § 83a. regulations. At the same time expressed

consent to the abandonment of the oral proceedings.



7. The Senate of the Parliament of the United Kingdom, represented by its Chairman MUDr.

Přemysl Sobotka in the observations of 22 October. 4.2009 also described the

legislative procedure of adoption of the current version of the contested provisions of §

83A. regulations (the amendment procedure carried out tr. by Act No. 265/2001 Coll.)

By the Senate. Further stated that, with regard to the content of the debate, when adopting the

the amendment relating to the State Prosecutor in the so-called.

extending bindings in the preliminary proceedings, suggests that is inclined to

the opinion of the party making the amendment, the State representative, according to the amendment becomes

the real master of the preparatory proceedings and his job so take a significant

strengthening judicial characteristics. The Senate majority-aligned with

that the submitted adjustment as a whole follows the factually and legally progressive

direction. continuity and law enforcement. Also, the Senate expressed the

consent to the abandonment of the oral proceedings.



II.



The conditions of the locus standi of the applicant



8. The proposal to repeal § 83a para. 1 code of criminal procedure for his conflict with the

the constitutional order of the Czech Republic was submitted to II. appeal to the Constitutional Court

in the framework of the constitutional complaint, the complainant, Ing. M. b. van S.

conducted under the SP. zn. II. TC 1414/07 when the essence of the constitutional complaint has been

among other things, the opposition of the complainant with the procedure of general courts in the

the assessment of the legality of the other premises and land

whose terms are contested content provisions of the code of criminal procedure. This is

a proposal made in accordance with § 64 para. 1 (b). (c)) of the

The Constitutional Court, and the terms of locus standi to his administration were therefore

met.



III.



The constitutional conformity of the legislative process



9. in proceedings for review of the standards referred to in article. 87 para. 1 (b). and) of the Constitution

The Czech Republic (hereinafter referred to as "the Constitution") within the meaning of the provisions of § 68 para.

2 of the Act on the Constitutional Court, the Constitutional Court must first examine whether the

the law is adopted and issued by the constitutionally prescribed way [to

review of the algorithm in proceedings for review of the standards see section 61 of the award

The Constitutional Court, SP. zn. PL. ÚS 79/06 of 15 July. 2.2007 (N 30/44 SbNU

349; 37/2007 Sb.) ^ 1].



10. in relation to Act No. 563/1991 Coll., which amends and supplements the

the criminal procedure code and the law on the protection of State secrets, which was

with effect from 1 January. 1. the legal provisions concerned the 1992 § 83a inserted into

Code of criminal procedure, the Constitutional Court checked whether it was accepted and published in

the limits of the Constitution laid down the competence and constitutionally in the prescribed manner,

Since the legislation came into effect before the

The Constitution, the Constitutional Court is empowered to review only their content

compliance with the contemporary constitutional order, but not the constitutionality of the procedure

their creation and compliance with regulatory powers [see resolution of the constitutional

Court SP. zn. PL. ÚS 5/98 of 22 December 1998. 4.1999 (32/14 SbNU 309) ^ 2].



11. in the period from 1. 1.1993, i.e.. from the date of entry into force of the Constitution of the United

Republic, the following changes of the legal provisions.

The first change occurred with effect from 1 January. 1.1994, law No.

292/1993 Coll., amending and supplementing Act No. 141/1961 Coll. on

criminal procedure (code of criminal procedure), Act No. 21/1992 Coll., on banks,

and Act No. 335/1991 Coll. on courts and judges. It was the contested

the provisions amended in connection with the adoption of Act No. 283/1993

Coll., on the public prosecutor's Office, and by Act No. 265/2001 Coll.

the amended Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure),

as amended, Act No. 140/1961 Coll., the criminal code, in the

as amended, and certain other laws.



12. In view of the fact that the changes to the contested provisions established above

the cited law should mainly character-technical amendments to legislation

not having the actual content of the contested provisions of major impact, the constitutional

the court having regard to the principles of procedural economy, in this case

refrained from more of a review of the laws cited in terms of whether

have been received and issued within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner, and only with regard to the expression of

The Chamber of Deputies and the Senate, on the formal verification of the course

the legislative process their adoption of publicly available information

resources (resolution and Council publications available in the digital library on

the website of the Chamber of Deputies and the Senate on www.psp.cz and

URwww.senat.cz). The Constitutional Court thus concluded that the laws cited

have been received and issued within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner. Therefore, he went to the review of the content of the contested

the provisions of § 83a para. 1. the order in terms of its conformity with the constitutional

policy [article 87, paragraph 1 (a)) of the Constitution].



IV.



The diction of the contested provisions



13. the contested provisions of § 83a para. 1 of Act No. 141/1961 Coll. on

criminal procedure (code of criminal procedure), as amended,

added:



§ 83a



Search warrant other premises and land



(1) order the inspection of other premises or land shall be entitled to the President of the

the Senate, in the preliminary proceedings, the public prosecutor or police authority.

The police authority it needs the prior consent of the Prosecutor.


The command must be issued in writing and shall be justified. The user shall

the affected area or land, and if it is not reached during the inspection,

immediately after the disappearance of obstacles that prevent delivery.



In the.



Terms of reference for the assessment of the proposal



V) inviolability of private life and dwellings such as fundamental rights and

the definition of a dwelling



14. the prosecution of criminal offences and punishment of their perpetrators is equitable

constitutionally aprobovatelným public interest, whose essence is the migration

the responsibility for the prosecution of the most serious violations of fundamental rights

and freedoms of natural and legal persons to the State. If the criminal

the realization of the right of public interest in the prosecution of crime by using the

robust and personal integrity of individuals of the restrictive tools, then

their use must respect the constitutional limits, as their

use entails serious restrictions of fundamental rights and freedoms of the individual.

To limit the personal integrity and privacy (i.e. to break the respect to them)

so by the public authority may occur only exceptionally, and only if,

If it is necessary in a democratic society and the purpose of the reference

the public interest cannot be achieved otherwise [cf. Constitutional Court sp.

Zn. I. ÚS 3038/07 of 29 April. 2.2008 (N 46/48 SbNU 549), available

also in the electronic database decision http://nalus.usoud.cz].



15. In the case of the performance of house searches or examinations of other space

This is in particular the restriction of the fundamental right of a person to the inviolability of

her dwelling, which guarantees the article. 12 paragraph 1. 1 of the Charter, according to which

"Dwellings shall be inviolable. It is not permitted to enter it without the consent of

the guy who lives in it. ". Also the Convention for the protection of human rights and

fundamental freedoms (hereinafter referred to as "the Convention") in the article. 8 (2). 1 guarantees this

the basic law, by providing that: "everyone has the right to respect for his

private and family life, his home and his correspondence. ", as well as

The International Covenant on Civil and political rights (hereinafter referred to as "the Covenant") in the

article. 17 guarantees solo travelers this fundamental right to protect it against

"arbitrary interference with private life, family, home or

Merge ".



16. While article. 8 (2). 1 of the Convention guarantees respect (by the public

power), inter alia, to private and family life and the dwelling, IE. formulates

the fundamental right or freedom in their classic, IE. negative function

declares the article. 12 paragraph 1. 1 of the Charter, and the inviolability of the home

the wording is clearly open to how to interpret the negative, so

positive law on the protection of the inviolability of the dwelling before its

interference from third parties. The textual difference both

the provisions, however, is to be regarded as marginal, since in Europe

settled interpretation of the classic fundamental rights and political rights, whether they are

formulated, in two functional positions. The first function requires

the respect of the public authority to fundamental rights, i.e.. the law acts as a law

negative, fulfilling the function of the defense of individuals before either a point or

completely inappropriate public authority inputs into the free space

the individual who fills their acts it autonomously as manifestations of his

free will. The second in Europe recognized the function of fundamental rights is a function

protective. On the contrary, it committed to public authority, or State and above all

the legislature and the Executive to the active actions (legislative and administrative), and

First, for the purpose of protection of fundamental rights against possible interference from

third parties (private) persons, or the protective function of the basic

the law requires that the public power has developed an activity that has created

conditions for the implementation of fundamental rights. Both of these features of the basic

rights are considered to be equivalent. Because almost every law

has certain restrictions of fundamental rights, and because its purpose is

just as often, the protection of other fundamental rights or the protection of the Constitution

aprobovaných of public goods, it is the task of the legislature include the two

competing goods as far as possible into balance so that they are both in what

as far as possible be retained. In the absence of a recognized hierarchy of fundamental

rights is not a different path than the balancing of competing fundamental rights,

While the legislature may not be enforced, or "too much" or "too

a few ". (The features of basic rights, see e.g.. Grimm, d.: The protective

the function of the state in European and US constitutionalism, Council of

Europe Publishing, Strasbourg s. 119 et seq., or the decision of the German

The Federal Constitutional Court BVerfGE 39, 1 (42)).



17. the Constitutional Court in its case-law clearly defined the meaning, which is

should be constitutionally guaranteed the right to inviolability of the home according to the article.

12 of the Charter to attribute. In finding SP. zn. III. TC 287/96 of 22 December 1995 on 5.

1997 (N 62/8 SbNU 119) noted that "the House of freedom as a constitutionally

guaranteed right arising from article. 12 of the Charter, by their nature and significance of the falls

among the basic human rights and freedoms, since along with the freedom of personal and

other constitutionally guaranteed fundamental rights completes the moral realm

an individual whose individual integrity, as a wholly necessary condition

dignified existence of the individual and the development of human life at all, it is necessary to

to respect and strictly protect; rightly, therefore, falls under this protection

under the constitutional protection, for assessed only from a somewhat different perspective-

as for the expression of respect for the rights and freedoms of man and citizen (article 1 of the Constitution). "

[Similarly, cf. find SP. zn. I. TC 201/01 of 10 December 2002 10.2001 (N 144/24

SbNU 59) or find SP. zn. II. CS 362/06 from day 1. 11.2006 (N 200/43

SbNU 239)]. The right guaranteed by article 1(1). 12 of the Charter so closely

related to the guaranteed rights article. 7, 8 and 10 of the Charter, which together

creates a personal (private) sphere of each individual, the right to

guaranteed by article. 12 of the Charter defines the dwelling space.



18. the Charter nor the Convention does not specify the content of course closer to the Institute

of the dwelling. The provisions of § 82 para. 1. regulations, case law and the ordinary courts

Czech criminal law doctrine is the Institute of dwelling defined as

space for housing (apartments, family houses, vacation houses,

housing compensation, rooms in establishments intended for permanent residence as a

dorms and hostels, but i rented a hotel room, etc.) and spaces to

belonging, for which it is necessary to consider all the spaces to

the use of which entitles the title or other legal title,

who are licensed to use the space for housing or of occupancy.

Usually it is a lease or sublease contract, but the title may be

for example. and easement. Right to inviolability of the home, according to the

the popular opinions cannot seek the one who dwells in it.

In contrast, under the concept of dwelling are not included areas not used for housing

(other areas) within the meaning of § 82 para. 2. the order for which they are

considered, in particular, the so-called. commercial premises such as offices, workshops,

factories, warehouses, commercial establishments, but also separately

standing in the garage that are not part of the dwelling (cf. Šámal, p. a kol.:

The criminal procedure code, comment, volume 5. Edition, c. h. Beck, Prague 2005, page.

629n., or somewhat differently, k. et al.: commentary on the Constitution and

The Charter, Exp. And Čeněk, Pilsen 2005, p. 693).



19. Compared to the naznačenému podústavnímu the definition of the Institute of dwelling building

the case-law of the European Court of human rights (hereinafter "ECHR") on the

more broadly, the Institute of the dwelling for the purpose of determining the extent of the basic

rights guaranteed, the article. 8 (2). 1 of the Convention and is based on its tight

relation with the right to private life. The wider concept of the Institute of the dwelling

the ECTHR found in the interpretation of the Convention in the light of present conditions,

in accordance with the objective pursued by article. 8 of the Convention, i.e.. protection of the privacy of persons

from unauthorized interference by a public authority, as in modern times

You cannot have a sharp separation of privacy in areas used for

housing and privacy in the workplace, people realised. Therefore,

The ECTHR under the right to respect for dwellings according to art. 8 (2). 1 of the Convention

also includes the requirement of respect for the privacy of the company headquarters, branches or

establishment of legal entities (cf. decision of 16 April 2003. 4.2002 in the

things Société Colas Est. against France), Office space (cf.

decision of 25 June 2002. 2.1993 in case against France or Crémieux

decision of 25 June 2002. 2.1993 in case Miailhe against France) or

space law (cf. decision of 12 July 2005. 12.1992

things Niemietz against Germany). He added that the restriction of the term dwelling

in a way that would exclude the places of the profession, it is not always possible,

When you just need to point out the impossibility to differentiate and blending of personal activities

individuals from his activities (Niemietz against Germany, § 29 and

31). The case-law cited the Constitutional Court adds that, even if they have first

three cited the decision basis in domestic administrative proceedings, as to the

case-law and applicable in the present case, which concerns the review of the

the criminal law edit, using the a fortiori argument, since it is

clearly, the tools of the criminal law are even more intense impact on the

the sphere of fundamental rights, ignoring the fact that the ECtHR autonomously and regardless of

the national classification defines the concept of a crime. Also the latter

that decision is relevant to the assessment of the case, since the


on the extension of the right to privacy.



20. A similar approach as the case-law of foreign constitutional courts and

its konstitucionalistika. For example. the case-law of the German Federal

the Constitutional Court Institute dwellings (Wohnung) within the meaning of article 87(1). 13 of the basic

the law of GERMANY, which is guaranteed the right to inviolability of the home and are

closer to the conditions of its limitation, also more broadly interpreted. Respect and

not only enjoys the protection of privacy in premises used for housing (dwellings

in the strict sense of the word) but for example. as well as retail, Office space,

business premises, warehouses, production plants, craft or agricultural

construction, etc., IE. the place where the work is carried out or business

activity. German doctrine is based on the view that the autonomous fulfilment

private life and work activities are closely related. Neither

the opening of the business premises to the public does not lose their protection

through the right to privacy, or untouchable. The intensity of the

the said law, however, is declining, and the reason for its limitations is subject to in this

If other assumptions. Still, you need to start from the fact that even such

business premises are not accessible to the public without restriction. By entering into a

them shall be decided by the will of their users only (cf. Mangoldt, H., Klein,

F., Starck, ch.: Kommentar zum GG, Band I, 5th ed., Verlag Franz

Vahlen, München 2005, p. 1235n. and the case-law of the German Federal

the Constitutional Court there referred to).



21. The ECtHR and the German Federal Constitutional Court in the interpretation of the right to

Privacy in a 3-d format, IE. the right to respect for and protection

from the outside, the interventions are not confined to the protection of the space used for the

housing, but to consider the right to the respect and protection of dwellings together with

the right to inviolability of the person and the right to privacy and the protection of personal

freedom and dignity as an integral part of privacy of each

the individual, in the case of a dwelling of the stage space.



In the function of the Court) for the acceptance of interference with the right to the integrity of

dwelling



22. as already noted above, the Constitutional Court, if they are to be applied to the robust

and to fundamental rights and freedoms of the individual, the restrictive tools when

the promotion of public interest in the prosecution of criminal offences, it is necessary that

within constitutional limits. "Criminal law specifies frontier

between the criminal power of the State and the freedom of jednotlivcovou in that intend to

the performance of the criminal power of the State is against the individual instrument

arbitrary temporary state power holders. " (cf. Kallab, j.: crime and

punishment, reflections on the foundations of the criminal law, j. r. Vilímek, 1916, Prague

page 8). In terms of imperative constitutional limits when using the

the tools of the criminal process, it is clear that the intervention of the

the fundamental right or freedom of the individual from the State power only

When it comes to intervention necessary in a democratic society, and if the

acceptable from the perspective of legal existence and observance of the effective and

specific guarantees against the will. The essential prerequisites of a fair

the process require the individual to be equipped with sufficient

guarantees against possible abuse of powers by public authority

[e.g. find SP. zn. II. TC 502/2000 of 22 May 2000. 1.2001 (N 11/21 SbNU

83) or find SP. zn. II. TC 789/06 of 27 February. 9.2007 (N 150/46 SbNU

489), also available in an electronic database of decisions

http://nalus.usoud.cz, and others].



23. These guarantees primarily represents the judicial control of the

the most intense interference in fundamental rights and freedoms of individuals, since even in the

enforcement is the responsibility of the courts to provide protection for fundamental rights

and freedoms of individuals (article 4 of the Constitution). After all, article. 13 of the Convention

explicitly requires that the person whose fundamental rights was, in its

opinion breached, provided an effective remedy before the

the national "institution", which is to be interpreted in the following article. 4

Of the Constitution. It is also unacceptable that the Court or the judge got into position

a simple "Assistant" public action, because by the very nature of the Institute

the Court (judge) follows the requirement of impartiality and

independence [in finding SP. zn. PL. ÚS 24/02 of 26 April. 4.2005 (N 89/37

SbNU 207; 220/2005 Coll.) The Constitutional Court. said: "the Impartiality and

independence in the objective position shall be considered at a general level in terms of

relation to other course folders (the principle of the separation of powers), in terms of

the ability of the actors (with a potential interest in a specific outcome or course of

the dispute) affect the formation, duration and termination of the functions of a member of the judicial authority

(of the Tribunal). Judges and members of the institutions of the type must therefore have

sufficiently independent status, which excludes direct or mediated

effect on the decision-making activity. The existence of the protection against external pressures

is assessed for example. both in terms of the existence of potential options

affect the career judge, so bring on the demise of his options function. To

Certainly, the status of independence include the guarantee of financial independence.

Only if he receives a formal command not taking foreign guidance material

content and neutrality is ensured, and the distance from the party. "].



24. in assessing the impartiality and independence cannot be completely disregarded

or from the page with things, when it is considered as valid criterion

the so-called. the appearance of independence and impartiality for third parties, as

This aspect is important for ensuring confidence in judicial decision making. This

the criterion reflects the social nature of adjudication, from which

It follows that even if, in fact, does not exist (as in the subjective,

so in an objective position) the real reason to doubt the impartiality and

independence, not overlook the existence of collective

the belief that there is such a reason (cf. above quoted find

SP. zn. PL. ÚS 24/02 or the ECHR decision of 23 December 2003. 6.1981 in case Le

Compte, Van Leuven and de Meyere against Belgium).



25. In the case of the use of criminal law instruments restricting the fundamental rights

and individual freedom (ESP. the House Tour, a tour of the other

space and land, personal inspection, detention and opening mail,

interceptions of telecommunications) to request judicial protection

fundamental rights must be reflected in the publication of a judicial order and in his

sufficient justification. It must conform to the requirements of the law, so

above all, constitutional principles, of which legal provision is based on, respectively.

that backward they interpret, as the application of such

provision constitutes a particularly serious interference with the fundamental rights and freedoms

each individual (Similarly, see judgment SP. zn. II. TC 789/06).



26. as indicated above, maxims, resulting from the constitutional order of the Czech Republic

require to issue a search warrant other premises and land

the Chief arbiter independent and impartial body. For such, in the above-mentioned

sense, cannot be regarded as a Prosecutor, and the less the police authority.

It cannot ignore the fact that the State's representatives in the

by the adversarial proceedings of a public function of the application and are by law,

as well as the promise personally are committed to the protection of the public interest (section 18 (3)

the law on the public prosecutor's Office). In preliminary proceedings, where they have completely

dominant position, are in conjunction with the police authority shall be obliged to

organize their activities so as to effectively contribute to the timeliness and

merits test of criminal prosecution (article 157, paragraph 1, tr.). All this can lead

for legitimate doubt their impartiality (or its appearance)

When considering the conflict of fundamental rights and freedoms of individuals with the public interest

on the prosecution of the crime. Indeed, in the already cited finding SP. zn. PL.

TC 11/04 the Constitutional Court clearly defined the demands on the body, which

materially speaking, has a quality that can be identified with

by the Court, "the constitutional order of the Czech Republic (article. 81 and 82 of the Constitution) provides

that the judiciary shall exercise only the independent and impartial courts, respectively

independent and impartial judges, who are governed by basic rules

a fair trial (article 1, paragraph 1, of the Constitution, chapter five of the Charter). This

provisions can be interpreted as the institutional guarantees of the material

so perceived the exercise of judicial power, and, therefore, in terms of the right to a fair

the process is not necessary in all cases to the Court within the meaning of article.

paragraph 36. 2 of the Charter solely authority incorporated into the system of general courts,

However, this must be an independent body, whose members have the autonomy

and impartiality in its decision. Additionally, you must have nepodmiňovaný

access to the examination of all the relevant aspects of the case (the facts and

taking account of the Basic Law), the principles of a fair trial (eg.

the principle of no one shall be a judge in your own case or principle heard must

be both sides), with an enforceable decision can no longer be the next

Power Act to reverse (the definition of Justice in material terms). ".



Vi. Your own review



27. the contested provisions of § 83a para. 1. Regulations specifies the conditions under

where it is possible to order and do a tour of the other premises and land

Therefore, the conditions for the use of the tools of the criminal process of restrictive

fundamental rights and freedoms of the individual, in this case, the right to privacy

in a 3-d format, IE. the right to respect for and protection of the dwelling before

interference from the outside.



28. The Constitutional Court and in the light of the above constitutional aspects


had to assess whether the contested provisions meet the requirements of section

resulting from the above principles, and came to the conclusion that this

It is not.



29. From the overall concept of the contested provisions of § 83a para. 1. order,

which lays down the conditions for the regulation and the other

space or land, and especially of his compare with provision § 83

tr. the order, which lays down the conditions for the regulation and enforcement of domestic

tours, clearly shows that is a reflection of the concept of a narrower concept

Institute of the dwelling. According to him, as stated above (see paragraph 18), it is the dwelling

confined space actually used to live, which is to be

distinguished from the nesloužících. This approach, which in

as a result the Board strictly interprets the right to private life,

then translates into the determination of the different (more stringent) conditions for regulation

and the performance of house searches in comparison with the conditions for regulation and enforcement

other premises and land tours.



30. The said concept, based on the strict distinction between private

life of the individual in the premises used for the completed housing

which is provided by a higher level of protection against potentially excessive

interference by the public authorities, from the private life of the person naplňovaného

for example. in his environment or in places that used to

performance, extracurricular activities, or even idle in the form of simple relaxation

or for entertainment, the Constitutional Court shall be considered from the standpoint of the principles referred to in

the parts in. And) finding inadmissible, because it misses the purpose of the fundamental right to

private life [see e.g. find SP. zn. II. the TC 2048/09 dated March 2. 11.

2009, paragraph 19 (available in an electronic database of decisions

http://nalus.usoud.cz)]. The Constitutional Court is of the opinion that, in particular, in the

Today, when the autonomous fulfilling private life and working or

extracurricular activities are closely related, you can't make sharp spatial

separation of privacy in places used for housing from the privacy of

in places, and the environment for work or business activities

or for the satisfaction of their own needs or leisure activities, even if

activities taking place in areas accessible to the public, respectively.

Open, for example. entrepreneurial activity, will be able to be subject to certain

the restrictions, which may represent a specific interference with the right to private

life. However, this is what the purpose of such restrictions is closely

defined, and also to a person, for example. entrepreneurs, known in advance, and such

equipped with this knowledge and the person shall enter into a variety of specific types of

activities, for example. business. Still, however, not affect the right of such a person

seek judicial protection before the law, although anticipated, the specific

intervention, which, however, in its regulation or performance does not correspond to the principle of

proportionate restrictions to the right to private life. With regard to the

infinite land (e.g., forests or meadows), is fundamentally important to distinguish

between them and their "tour", which is associated with the intervention

the integrity of such real property (land). Therefore, its implementation shall

have the same mode as the inspection of enclosed areas. It is generally

known and shared experience (especially from the era before 1989), that the

just in this area often was realized by private life through

storage of things should remain hidden from the eyes of the public, and often

in particular the public authorities.



31. therefore, as in the case of the performance of house searches, as well as in

the case of the performance of other tours, including farm buildings,

as well as land necessarily experiencing the interference with the private sphere of the individual

spatially defined, for such an intervention should be prior authorization

the Court.



32. The said requirement is all the more urgent for the situation that our criminal

the order does not allow nor the follow-up regulation, inspection of other premises

and the land court. So, these actions represent a blatant intervention in the

the fundamental right to private life, find themselves beyond any

immediate judicial review. To her the need to comment the ECTHR in case

Camenzind v. Switzerland (decision of 16 April 2003. 12.1997). In this case

The ECTHR found a violation of article 6(1). 13 of the Convention in relation to the article. 8 of the Convention

still, that the complainant had the available procedural means by which the

Turning to the appropriate Chamber of the Federal Court of Switzerland. However, in the

as a result of the doctrine advocated by "continuous interference" of his administration. For

This situation, the ECTHR found the existing remedy for

inefficient. Similarly, it would be possible in the Czech Republic consider the constitutional

a complaint directly against the regulation of other tours, but space

the case law of the Czech Constitutional Court partly shares the doctrine of "continuous

intervention ", and Moreover, the Constitutional Court has continued to judikuje that in the case of intervention

the public authorities, which does not constitute a breach of fundamental nereparovatelné

rights, it is necessary to give priority to the application of the subsidiarity principle. This means,

that reviewable in proceedings on constitutional complaints may be up to the final

judgment in the matter, which should deal with the objection to the intervention

the right to private life in the form of house searches [cf. the application

principle of subsidiarity, for example. resolution SP. zn. IV. TC 122/99 of 8 December 2005 9.

1999 (56/15 SbNU 315) and unpublished SbNU resolution SP. zn. I. ÚS

690/2000, SP. zn. I. ÚS 317/06, SP. zn. II. 434 WH/06, SP. zn. III. THE TC

887/09 or SP. zn. III. TC 1986/09 (available at http://nalus.usoud.cz)].

Along the lines of the above, our constitutional complaint appears also as a

inefficient resource. Certainly it is not desirable that the Constitutional Court in the

similar cases judged by the adequacy of regulation and enforcement inspections

all the space first. Could such excessively and prematurely

interfere with the competence of general courts to collect and evaluate evidence,

and as a result, so without the result of criminal proceedings.



33. in the light of the above, the Constitutional Court notes that the contested

under the provisions of § 83a para. 1. order cannot be considered constitutionally

Conformal, since clearly violate constitutional limits indicated above

(article 12, paragraph 1, of the Charter, article 8, paragraph 1 of the Convention and article 17 of the Covenant), which is

the absolutely essential respect in legal construction (as well as in the

the application of the criminal process, tools) that restrict the fundamental rights and

the freedom of individuals.



34. The reasons outlined, the Constitutional Court decided, pursuant to section 70 para. 1 of the law

on the Constitutional Court for cancellation of the contested provisions of § 83a para. 1

Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), in

as amended, as it is stated in the operative part of this finding,

that will become enforceable on the day of its publication in the journal of laws (section 58

paragraph. 1 of the law on the Constitutional Court).



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a

Vladimir Crust, Jan Musil and Michael April.



1 note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 44,

find no 30, p. 349, promulgated under Act No. 37/2007 Sb.



2 note. Red: a collection of findings and resolutions of the Constitutional Court, volume 14, usn.

No 32, p. 309