45/2005 Sb.
FIND
The Constitutional Court
On behalf of the United States
The Constitutional Court ruled on 30 November. November 2004 in Parliament consisting of the President of the
the Court of JUDr. Paul Rychetského and judges. Stanislav Bumpkin, JUDr.
František Duchoně JUDr. Vojena Güttlera, JUDr. Paul Holländera, JUDr.
Ivana Janů, JUDr. Dagmar Lastovecké, JUDr. Jiří Mucha, JUDr. Jana
Musil, JUDr. Jiří Nykodýma, JUDr. Miloslav Excellent, JUDr. Eliška
Wagner and JUDr. Michaela Židlické on the proposal IV. the Chamber of the Constitutional Court
to cancel the provisions of § 146 paragraph. 2 Act No. 141/1961 Coll. on criminal
judicial proceedings (code of criminal procedure), as amended,
the consent of the participants without an oral hearing, regulation
as follows:
The provisions of § 146 paragraph. 2 Act No. 141/1961 Coll., on criminal court proceedings
the Court (code of criminal procedure), as amended, is repealed on the date of
2005.
Justification
By order of 10 June 1999. March 2004, SP. zn. IV. the TC 403/03 interrupted IV.
Chamber of the Constitutional Court ("Senate") proceedings in respect of the constitutional
complaints about Ing. J. n., represented by JUDr. J. h., lawyer. Complaint
is directed against the resolution of the public prosecutor of the district public
the Prosecutor's Office in Zlín of 25.6.2003, no. Zn 2415/2003-5 and
the resolution of the police authority, police of the Czech Republic, the service of criminal
Police and investigation in Zlín, 27.5.2003 ČTS:
ORZL-1212/KPV-233-2003. The reason for the interruption was the fact that IV. the Senate
The Constitutional Court after consideration of all the facts and detailed, and
in particular, with regard to a number of decisions of the European Court of
human rights, came to the conclusion that the provisions of § 146 paragraph. 2 of the criminal
procedure ("tr. order") is essentially institutional, and that this
unconstitutionality cannot be eliminated merely by tapping into its interpretation and
constitutional interpretation.
(I).
Circumstances of the case
The complainant was one of two directors m., spol. s r.o.
The police authority of the police of the Czech Republic, the district headquarters in Zlín,
service of criminal police and investigation, economic crime Department,
(hereinafter referred to as "police authority") record of 19.3.2003 ČTS:
ORZL-1212/KPV-233-2003 to initiate acts of criminal proceedings under section 158
paragraph. 3. the order has begun examining the facts indicating
that the crime was committed qualified pursuant to § 126 paragraph. 2 tr.
the law. In the description of the offence the police authority said that on the day 28.1.2003
complainant the complainant Ing. J. n. and Ing. H. n., although to do so as a statutory
representatives of the company m., spol. s r.o., were obliged, for a declaration of
bankruptcy, although the company has too much debt, has more lenders, which
in the long term is not able to meet its debts and is in bankruptcy
According to § 1 (1). 2 Act No. 328/1991 Coll., on bankruptcy and settlement in
as amended, and that their actions caused the notifier
-In of p. CZECH REPUBLIC, z.-damage to nezaplaceném health insurance in
the amount of 1 549 185 €.
The challenge of 9.4.2003 to release things according to § 78 para. 1. the order
the complainant's police authority has called for the release of the complete accounting
companies ranging from 1 January 1999 to the forward personally by 11.4.2003
to 1 p.m. At the same time the complainant learned that does not comply with the invitation, the
He won a penalty be imposed pursuant to § 66 tr. order in the amount of $50,000.
By order of the police authority the complainant 27.5.2003 pursuant to section 66 paragraph 1.
1. order, order the fined in the amount of $1,000 on the grounds that
Despite his call, according to § 78 para. 1. order the desired accounting documents
gone before, their actions did not substantiate in any way, although the supply of
accounting documents already submitted an explanation of the promised of 19.3.2003.
Non-police body of the same date, the complainant was again called upon
to the issue of the matter pursuant to § 78 para. 1. the order with the appropriate lesson.
Against the decision of the police authority of 27.5.2003 imposing riot
the fine, the complainant filed a complaint under section 17.6.2003 June 141 market order. In
It argued that as suspected, you cannot require that myself
the police authority to submit materials that could potentially lead to
his conviction of a crime. He stated that the complete
accounting does not have available, and suggested that the resolution was
cancelled.
By order of the public prosecutor of the District Public Prosecutor's Office in Zlín
of 25.6.2003 No. Zn 2415/2003-5 was the complaint under § 148 paragraph. 1
(a). c) tr. order rejected as unfounded. In the grounds of their
the decision of the Prosecutor stated that the complainant on previous challenge
in no way did not respond. The complainant's fundamental right to voucher complain to
He considered superfluous, since, according to § 78 para. 1. the order is obliged to
Anyone who has a thing important for criminal proceedings, release it, even
the suspect. Also, there is no doubt that the accounts of the company's Affairs
important for assessing whether or not committed a crime violating the
obligations in bankruptcy proceedings pursuant to § 126 paragraph. 2. the law. To
the unavailability of complete accounts of the opposition of the complainant stated that the
any problems with the release of the complete accounting app
the police authority has not informed. He pointed out the Act No. 563/1991 Coll., on the
accounting, in the wording of later regulations, according to which the
the unit shall be required to account for the individual business cases on an ongoing basis.
To query the Constitutional Court Police Authority said that the complainant on
the basis of renewed challenges of 27.5.2003, inbox delivery, 14.6.2003
accounting firm m., spol. s r.o., volunteer (according to the Protocol on the
the assets of 21.7.2003) and the day he returned, 12.9.2003.
The provisions of § 66 tr. of the order reads as follows:
"Riot fine
§ 66
(1) Whoever through previous admonition abolishes the proceedings or who
to the Court, the public prosecutor or police authority behaves offensively
or who, without showing sufficient cause for disobeying or does not comply with
the invitation made to them under this Act, may be the Chairman of the
the Senate, and in preparatory proceedings by the public prosecutor or the police
punished by a fine in the body of the riot of $50,000.
(2) if he is of the negotiations referred to in paragraph 1, the Member
the armed forces or armed corps in active employment, you may
leave it to the competent Commander or Chief to kázeňskému
the punishment. If he is such a person who is in
custody or serving a prison sentence, you may leave the
the Director of the prison to hold disciplinary measures or to kázeňskému
the punishment. The Commander, the Chief or the Director is obliged to
inform the authority about the result in criminal proceedings.
(3) if he is of the negotiations referred to in paragraph 1, the defense lawyer or
in the proceedings before the Court, the State Prosecutor, the competent authority of the
karnej penalty. This body is obliged to inform about the outcome of the
body active in criminal proceedings.
(4) against the decisions referred to in paragraphs 1 to 3 shall be admissible
the complaint, which has a suspensory effect. "
II.
Argument IV. the Senate, in its resolution on interruption of proceedings
If the subject matter of the complaint, the Board considers that the final
the decision imposing a fine in the amount of $2,000 was given
on its nature (financial sanctions) and the severity of the impending consequences
(a fine to a maximum of $50,000), a decision on criminal charges
within the meaning of article 87(1). 6 (1). 1 of the Convention for the protection of human rights and fundamental
freedoms (hereinafter referred to as "the Convention"), even if the facts of the offence does not fall within
the field of criminal law or the law of infractions. From
then the Senate drew another conclusion, namely that the complainant was and is in the article.
paragraph 36. 1 and 2 of the Charter of fundamental rights and freedoms ("the Charter") and
article. 6 (1). 1 and article. 13 of the Convention constitutionally guaranteed basic rights to it,
to him, the legitimacy of the fine imposed was fair and public
and within a reasonable time by an independent and impartial tribunal,
established by law.
Both the European Court of human rights (hereinafter "ECHR") has stated on a number of
occasions, article. 6 (1). 1 of the Convention guarantees everyone the right to
any of its complaint related to his criminal charges were
by an independent and impartial tribunal. By this provision
establishes the "right to a court", with the right to access to court, i.e.. the right to
initiate judicial proceedings, is the only one of its aspects; It is, however,
aspect, which in fact is possible to enjoy the additional guarantees referred to in
article. 6 (1). 1 of the Convention. (Kreuz against Poland, 2001, ECHR 3/2002).
According to the article. 13 of the Convention then "everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
National Authority, even if the infringement committed by persons in the performance of
official duties. " This article guarantees the existence of a resource
remedy under national law, which can be used to enforce rights and freedoms
granted by the Convention, whether they are enshrined in national law, any
way. The effect of this provision is that it requires national
remedies enabling to assess the content of the "hájitelného"
(he défendable) based on the Convention and allowing the offer
adequate remedy. The reach of the obligations which article. 13 of the Convention imposes
the Contracting States, varies depending on the nature of the complaint. However,
the resource requested article. 13 of the Convention must be "effective" as the legal
page, so in practice. "Efficiency", "remedies" within the meaning of article 87(1). 13
However, it does not depend on the certainty of a favourable outcome for the complainant (Čonka
against Belgium, 2002, ECHR 3/2002).
The Senate is of the opinion that in the article. 6 (1). 1 of the Convention are included in the basic
the rights contained in the remaining articles of the Charter and the Convention cited; from
for this reason, no longer referred only to article. 6 (1). 1 of the Convention (see, for example.
judgment of the ECtHR in the case against Slovakia Lauko, 1998, paragraph 61).
Procedural remedies provided by the order of the market.
"§ 146
Proceedings before the authority against which
the resolution of the complaint is directed
(1) the Authority against which the resolution of the complaint, may itself
meet, if the change does not concern the original resolution of the rights of the other party
the criminal proceedings. With regard to the resolution of the police body that has been
issued with the prior consent of the Prosecutor or on its
instruction, the police complaints authority upheld only with the prior
the consent of the Attorney General.
(2) if the time limit for lodging a complaint already to all eligible
persons has elapsed and the complaints have been upheld pursuant to paragraph 1,
refer the matter to the decision
and) police authority to the Prosecutor, who shall exercise the above
Preparatory management supervision, and in the case of a complaint against a resolution
to which the Prosecutor has given consent or instructed his
through the superior public prosecutor,
(b)), the State Prosecutor a superior public prosecutor or the Court,
(c) the presiding judge of the District Court) of the superior regional court,
President of the Chamber of the regional court superior to the High Court
and the President of the Chamber of the High Court to the Supreme Court; in doing so,
delivered, if necessary, a copy of the complaint to the Prosecutor
and the person who could be a decision on the complaint directly
prejudice,
(d)), the State Prosecutor, Prosecutor's Supreme
the public prosecutor. "
From the cited legislation can be considered by the Chamber to infer the following:
-Person riot fine pursuant to section 66 of the order imposed tr.
the President of the Senate, has available an ordinary appeal (complaint), about
by superior stížnostní Court (County Court, High Court
or the Supreme Court), and always in the Senate Panel of three judges [§ 19
paragraph. 2, § 27, § 31 para. 2 (a). b) of Act No. 6/2002 Coll., on courts,
judges, lay judges and the State administration of courts and amending certain other
laws (the law on the courts and Judges Act), as amended], i.e. the authorities
meeting the criteria of an independent and impartial tribunal within the meaning of article 87(1). 6
paragraph. 1 of the Convention. Of these persons, the provisions of § 146 paragraph. 2. order thus
provides the ability to implement its constitutional procedural law on judicial protection.
-Person riot fine pursuant to § 66 tr. order stored in the
preliminary proceedings, a police authority or a public prosecutor, also has to
available to ordinary appeal (complaint). However, the complaints authority
in these cases, it is not the Court, but the Prosecutor, who shall exercise the above
Preparatory management supervision (if the fine is imposed to the police authority),
Alternatively, the superior public prosecutor. However, authorities in the said stížnostní
this case cannot be considered as meeting the criteria of independent and
impartial tribunal within the meaning of article 87(1). 6 (1). 1 of the Convention. Persons as follows
Therefore, the affected section 146 tr. order does not guarantee the ability to bribe the constitutional
the procedural right to judicial protection enshrined in article. 6 (1). 1 of the Convention. These
people are constitutionally neakceptovatelném uneven the procedural
position in terms of the practical application of the basic rights enshrined
in the article. 6 (1). 1 of the Convention, compared with persons who have been exerting
the fine pursuant to section 66 of the order imposed tr. Chairman of the Board, which can be considered
for the violation of equality in the rights enshrined in article. 1 of the Charter.
To this extent, the Senate considers the cited provisions of § 146 paragraph. 2 tr.
order to be unconstitutional for the reasons given above.
In the opinion of the Senate against the legislation in section 146
paragraph. 2. If the order provides that a complaint against a resolution on riot
a fine shall submit to the authority of the police to the Prosecutor, who shall exercise the above
Preparatory management supervision, the State Prosecutor or the superior prosecutor
representatives, in terms of the narrow perspective of the very wording of that provision
the law cannot be nothing. It is for the legislature, how to adjust the procedural
guarantees the legality of the resolution on the riot to a fine, or how many corrective
the funds will allow. From the perspective of broader, in terms of the existence of effective
procedural guarantees and remedies, however, the Senate is forced to
held that the cited provisions suffer from in the above range
constitutional deficiency, whose essence lies in the absence of such legal
adjustments which would meet the requirements of article. 6 (1). 1 of the Convention.
To the institutional gaps in the law the Senate pointed out the article by Vojtěch
Šimíčka, "the omission of the legislature as a violation of fundamental rights" in the
"ten years of the Charter of fundamental rights and freedoms in the legal order
The Czech Republic and the Slovak Republic ", Brno 2001 and there cited
the case-law of the German Federal Constitutional Court, and also to find
The Constitutional Court in case SP. zn. PL. ÚS 36/01 (collection of findings and resolutions
The Constitutional Court, Volume 26, finding no 80; promulgated under no. 403/2002 Coll.).
In such cases, the Federal Constitutional Court in the operative part of its decision to
can only say that the existing legal provision violates articles. 6 (1).
1 of the Convention, by a certain group of people does not allow to realize its constitutional
procedural law.
Having regard to the need to remedy the existing State of the neústavního is, however,
the Senate believes that the mere finding of the relevant neústavnosti
the provisions of the code of criminal procedure in the sense that they contain unconstitutional spaces,
may not be sufficient. According to his opinion, the provisions of § 146 paragraph. 2. the order should
be cancelled either wholly or in part, with the expectation that lawmakers will be
given a reasonable time to such edit part one, title
the seventh-the complaint and proceedings (§ 141-150) the criminal procedure code, which would
meet the requirements of article. 6 (1). 1 of the Convention.
Partial annulment of the provisions of § 146 paragraph. 2. the order would be
derogována in paragraph (a)) of the cited provision, the words "....
the representatives, who shall exercise supervision over the preparatory proceedings, ... If it is a
a complaint against a resolution, to which the Prosecutor has given consent or
instruction, through the supervisor to the Prosecutor ... ", in
subparagraph (b)) the words: "(b))" and "... the superior prosecutor or...", and
the whole point (d)), so the provisions of § 146 paragraph. 2. the order would then be sounded:
"(2) if the time limit for lodging a complaint already to all entitled persons
has elapsed and the complaints have been upheld pursuant to paragraph 1, it shall submit the matter to
the decision of the
and) police authority and the public prosecutor of the Court,
(c) the presiding judge of the District Court) of the superior regional court,
President of the Chamber of the regional court superior to the High Court and the President of the
the Chamber of the High Court to the Supreme Court; in doing so, deliver, if it is
need a copy of the complaint to the Prosecutor and to the person who could be
decision on complaint directly affected. "
The Senate further stated that in its view the gap in the law konstatovanou
Unable to bridge any of the supporting applications of civil or administrative
procedural law, in particular because of their different purpose in them
set out the scope of the courts and related principle contained in article 2(2). 2
paragraph. 2 of the Charter, according to which the State power can be exercised only in cases
and within the limits laid down by law, and the way that the law provides. Is
clear that civil or administrative procedural rules of judicial review
the legality of the police of fines imposed in criminal proceedings, and consequently
the real influence of civil or administrative courts in criminal proceedings,
do not count.
Similarly, it is necessary to reject the possibility of review of the decision on
riot a fine Constitutional Court in the proceedings on constitutional complaints. In
otherwise, the Constitutional Court got to the position of the appellate instance,
Although other instances of the judicial system in General is not and cannot
be.
For all the above reasons, the Senate decided within the meaning of § 78 para. 2
Act No. 182/1993 Coll., on the Constitutional Court, as amended, to break
management and on the petition the plenum of the Constitutional Court on full or
partial annulment of article 146, paragraph 2. 2. order.
III.
Observations of the parties and the Ministry of Justice
In its observations on the draft, which is brought by the Chamber of deputies of Parliament
The Czech Republic on 27.4.2004 and signed by the Chairman of the
House of PhDr. Lubomír Zaorálkem, States that the assessment of the
things you must first address the question whether article. 6 (1). 1 of the Convention
turns out to decide on complaints against the resolution. It is concluded,
How is the concept of "criminal charges (criminal charge)" seen in case law
The European Court of human rights, for example. in the case of Engel and others against
The Netherlands. Furthermore, it is pointed out in the Constitutional Court in case SP. zn.
PL. ÚS 28/98 (collection of findings and resolutions of the Constitutional Court, volume 16,
find no 161, pp. 185 et seq.; promulgated under no. 2/2000 Coll.), in which
The Constitutional Court concluded that the fines in the legal order of the Czech Republic
represent the penalty for conduct within the meaning of article 4(1) of the tort. 6 (1). 1 of the Convention.
At the same time it is pointed out to the fact that the Constitutional Court has in the past already
dealt with in a similar case, and the decision of
in the matter of 28.1.2003 SP. zn. II. TC 118/01 (collection of findings and resolutions
The Constitutional Court, volume 29, finding no 13) stated that it saw no reason to
the assessment of the constitutionality of the applied the substantive and procedural law. With
the light of the case-law of the ECtHR and the Constitutional Court, it is necessary to regard
the view that the Prosecutor is not authority that meet the criteria of an independent
and impartial tribunal within the meaning of article 87(1). 6 (1). 1 of the Convention. In conclusion, he stated,
that the legislature acted in the belief that the law is adopted in accordance
with the Constitution, the constitutional order and laws of the United States. It is on the
The Constitutional Court, in the context of the examination of the proposal to assess the constitutionality of
This law and issued the appropriate decision.
In the comments to the proposal he handed the Senate of the Parliament of the Czech Republic day
26.4.2004 and signed by the President of the Senate doc. JUDr. Peter
Pithart, States that the provisions of § 146 paragraph. 2 is part of the criminal
the order of the date of adoption of this law by the National Assembly, i.e.. of the day
29.11.1961. To the present terms of reference, underwent a constitutional
issue no changes. Several of the amendments of the provisions has brought
only the formal changes to the wording of the changes in the structure and
the naming of the individual bodies active in criminal proceedings. The Senate
Parliament of the Czech Republic was established and began its constitutional tenure
December 1996. Comment as to which was based on the direct
the consideration and adoption of the impugned provisions of the code of criminal procedure, respectively.
the whole Institute complaint procedures cannot Senate Constitutional Court
provide, for a given legislative events took place prior to his
the establishment of the.
Over the lifetime of the Chamber is of the topic touched just called. "United
the amendment of the code of criminal procedure (Act No. 265/2001 Coll.), which brought both
supplement the provisions of § 146 paragraph. 2 about the rule that complaints against
the resolution of the Supreme Public Prosecutor's Office of the public prosecutor shall be decided by
the Attorney General, which means a certain confirmation criticised
the model, on the extension of the provisions of § 146a, establishing a list of
complaints against decisions of the public prosecutor and the police authority in the
designed to ensure people and property, which must be decided exclusively
the Court. In the debate of the Chamber on the draft "big amendment to the criminal procedure" was not
the issue of deciding the complaints specifically affected.
In its opinion, that at the request of the Constitutional Court has made the Ministry of
Justice day 22.4.2004 and signed by the Minister of
Justice Evans. Karl Čermákem, States that in terms of the guarantees which
should be in control of imposing a fine person, provided that
the fine is imposed, is a key concept of the term "criminal charges" in accordance with
article. 6 of the Convention. The Ministry pointed out on the article. J. Kmece "To
some aspects of the ne bis in idem principle in the light of the case-law of the European
Court of human rights ", criminal law 1/2004, page 24, in which the
cited judgment of the ECtHR in the case of Engel and ost. against the Netherlands, and stated that the
in the case-law of the ECTHR in the area is very kasuistická, and is therefore not
easy to identify, the management of which offences under national law
the warranty shall apply article. 6 of the Convention.
The Ministry also pointed to a recent ECHR decision on admissibility
the complaint against the Slovak Republic Mr. Tibor Juríka, which concerns the imposition of
fine in criminal proceedings, from which a justification it follows that article.
6 of the Convention shall not apply to proceedings for the imposition of a fine under the riot
criminal proceedings and to the proceedings for the imposition of fine are not subject
the guarantees relating to the proceedings in which the decision on criminal charges. From
that decision, then the Ministry of dovodilo, that the modification of the procedure for
Save the fine adjustment and complaint procedures in the code of criminal procedure
do not suffer from constitutional deficiency and ensures participants sufficient rights.
Has proposed that the provisions of § 146 paragraph. 2 of the code of criminal procedure was left in the
the existing form.
IV.
The case-law of the Constitutional Court in regard to enforcement of fines
Constitutional Court law fines in civil, administrative and criminal
control multiple times.
In his finding, SP. zn. PL. ÚS 28/98 (collection of findings and resolutions of the constitutional
Court, volume 16, finding no 161, p. 185; promulgated under no. 2/2000 Coll.)
He came to the conclusion that the fine imposed in administrative law and in
control activities are by their nature generally, eligible to hit the
fundamental rights and freedoms of natural persons with regard to their amount and
the possibility of repeated saves. May be issued on the basis of
discretion, so that it is not excluded or discriminatory effect their
saving to various entities. Are the penalties for tortious conduct in the
meaning of article 87(1). 6 (1). 1 of the Convention. Are laid down by law and intended as a
preventive and repressive measures at a time of public authority. Their amount is
Therefore, to be compared with the nature of the offences for which it is possible to also
Save a financial penalty. Such crimes knows our criminal law
dozens of and related to the issues of the management of certain legal processes and
checks (as in nature e.g. § 124a to 124 c, § 125, § 129, §
145a, 148a, § § 169b, § 171, § 175, 176, § § § 255, 257 bis of the criminal
of the Act). Pursuant to § 53 of the criminal code is a financial penalty in the
the obligation to pay the State from 2 to 5 million. The right to
a fair trial is guaranteed in their case. Therefore, if these
crime is penalties in the form of a financial penalty (often less than
riot fine) in article mode. 6 (1). 1 of the Convention, is not a good reason,
Why should this not be the case by the fines, which are often
nor does not require any fault.
Similarly, in its finding of TechCrunch.com. I. TC 211/99 (a collection of findings and resolutions
The Constitutional Court, volume 20, no. 152), the Constitutional Court stated that the riot
the fine imposed in the context of civil proceedings are also
eligible to interfere with fundamental rights and freedoms, and the Constitutional Court therefore
sees no rational and constitutionally legally acceptable reason for
different assessment by the fines within each
types of proceedings, all the more that the purpose of the code of civil procedure is
ensuring fair protection of rights and legitimate interests of the participants.
Law-fines imposed pursuant to § 66 tr. order of the Constitutional Court
dealt with the mj. in finding in the matter of SP. zn. IV. TC 13/99 (a collection of awards and
the resolution of the Constitutional Court, volume 15, finding no. 120). The Constitutional Court annulled the
resolution of the Bureau of investigation United States investigator and resolution
the District Public Prosecutor's Office, which was the complainant-a natural person
imposed a fine of CZK 20,000 riot for the fail the challenge. The reason for the
the Corte di Cassazione of the contested resolution was the finding that the complainant was not
entitled to dispose of the required data, and that it was therefore on the spot
impose a fine of a commercial company, and not the
a female employee. The question of the absence of judicial review to the Senate the constitutional
the Court did not address.
Similarly, the finding in the matter of SP. zn. II. TC 118/01 (collection of findings and resolutions
The Constitutional Court, volume 29, finding no. 13), the Constitutional Court set aside the order
the District Prosecutor and the resolution of the police authority of the riot
a fine of $500. The constitutional complaint was rejected primarily because
on the one hand there is the criminal proceedings in the present case, to the stage of the proceedings
the preparatory, so (according to the then edit the criminal proceedings) could not be
the call for the release of the money has been made, and the journal could not be thus
won a fine is imposed, and, secondly, due to the fact that in the case
the imposition of fine made the complainant to the synergy of the
proof that it could usvědčovat. Even in this case, the Senate
The Constitutional Court the question of the absence of judicial review.
By order in case SP. zn. III. TC 315/03 (published) of the Constitutional Court
rejected the constitutional complaint against the decision of the Czech Republic and Shelves
the resolution of the District Public Prosecutor's Office about the riot a fine of 5 000 CZK
imposed pursuant to § 66 tr. of the order on the grounds that the procedure of the public
power was in accordance with the code of criminal procedure. The question of the absence of judicial review
the Constitutional Court did not deal with the Senate.
In all three of the latter cases were the subject of the constitutional
the final decision on complaint riot a fine imposed pursuant to § 66
market order. In the first instance decision was issued to the police authority.
Subsequent complaints have been rejected by the public prosecutor. All of the above
a constitutional complaint to the Constitutional Court, the boards have been discussed in substance. The question,
whether the applicable law sufficiently meets the constitutional guarantees enshrined in article. 6
The Convention, however, none of the relevant boards of the Constitutional Court
did.
In the.
The case-law of the ECTHR in relation to enforcement of fines
The case-law of the ECTHR in the assessment of this question is to a large extent
kazuistická and inconsistent, as can be inferred from the decision of the ECTHR, eg. in
Engel and other matters against the Netherlands, 1976, Otztürk against Germany,
1984, Weber against Switzerland, 1990, Ravnsborg against Sweden, 1994, Putz
against Austria, 1996, Lauko against Slovakia, 1998, against Jurík
Slovakia, 2003.
Test that the ECTHR applies when the assessment of whether a penalty is
"criminal", was formulated in the judgment of the ECTHR in the case of Engel and others against
The Netherlands, 1976. Above all, it is necessary to determine whether the provisions of the
defining the offence belongs under the legal system of the respondent State to
criminal law, disciplinary (disciplinary) rights or both
at the same time. However, this is only a starting point and the fact as follows
obtained only have formal and relative value. More importance is itself
the essence of the offense, in particular, however, the severity of the sanction, which threatens the concerned
to the person. These criteria, the Court (ECtHR-Editor's note.) into account when
the assessment of whether the complainant was the subject of "criminal charge" within the meaning of
article. 6 (1). 1 of the Convention.
Of the above decision of the ECTHR, however, can be inferred that the test applied
The ECTHR is not entirely satisfactory, in particular when assessing whether a particular
disciplinary punishment stipulated (disciplinary) into national legislation is "criminal
charges "within the meaning of article. 6 (1). 1 of the Convention.
For example, in the case of Weber against Switzerland, 1990, the complainant was by the Court
stored riot fine 300 Swiss francs for breaches of confidentiality
a criminal investigation. The ECTHR has come to the conclusion that riot fine
stored by the Court was a criminal accusation according to art. 6 (1). 1 and 3 of the Convention.
On the contrary, in case Ravnsborg against Sweden, 1994, the complainant has been stored
3 fine courts in different degrees for inappropriate comments
written submissions. The ECTHR concluded that article. 6 (1). 1 of the Convention on the
the breach does not apply. He stated that the rules allowing the Court
to punish his conduct in proceedings before it are a common feature
the legal systems of the Contracting States. Such rules and penalties are derived
of the necessary powers of the Court to ensure the smooth and orderly progress of the judicial
control. The measures ordered by the Court pursuant to such rules are more
similar to the exercise of disciplinary powers than sentencing for dealing
of the offence.
On the same basis as in the case the judgment is Ravnsborg
The ECTHR in case against Slovakia Jurík, 2003, and the judgment in case against Putz
Austria, 1996 (see below).
Against Mr. Putzovi was conducted in 1985 by the Austrian courts of criminal
proceedings (in the context of bankruptcy). During the proceedings at the District Court in
WELS have been saved two penalties for interference in legal proceedings. The third
the fine order the Court of appeal in Linz. The complainant argued inter alia. infringement of article 81(1).
6 and article. 13 of the Convention, that did not have a fair hearing before a neutral
Tribunal or any effective remedy in terms of decision
about by the fines. The ECTHR concluded that a breach of the Convention
avoid, which motivated by particular provisions relating to interference
the court proceedings are not part of the Austrian criminal law. With regard to the
the nature of the offense, the Court to punish not rules for the proper
behavior in the proceedings before it are a common feature of the legal systems of
of the Contracting States. Such rules and penalties are derived from your own
the powers of the Court to ensure the proper and disciplined conduct of its proceedings.
The measures ordered by the courts in accordance with such rules are more like performance
disciplinary powers than sentencing for a crime. From
the ECTHR ruled that the kind of misbehaviour for which was
the complainant fined, it falls outside the purview of article. 6 of the Convention. With regard to the
the nature and degree of severity of the penalties of the ECTHR was of the opinion that what was in the
the case at stake, it was not significant enough to do
the classification of the offense as "criminal".
The latter judgment of the ECTHR in the case of Mr. Putz joined
dissenting opinion of Judge de Meyer, in particular as regards too
a narrow interpretation of the concept of "criminal charge" contained in article 81(1). 6 (1). 1
Of the Convention.
According to his view, experience has shown that the test contained in the judgment in Engel and
For more against the Netherlands, and the criteria applied are in it too
satisfying. Already in the cited judgment expressly stated that the
the characters provided by the first criterion, i.e.. the classification of the offence in the national
law of the sea, "have only the formal and the relative value of" from this point of view
not have any meaning, the "cash fines imposed to Mr. Putzovi were
based on the "not criminal code but the code of criminal procedure, the law on
the courts and the law on civil procedure. None of this can justify
exemption from the obligation to comply with the principles of fair process.
The importance of the second criterion-the nature of the offence-in terms of case
criminal law from the provisions of law in the judgment of the ECTHR, hoping for
Weber against Switzerland, 1990, when he stated that law enforcement penalties are
laid down in General to ensure that the members of the specific groups to comply with
specific rules governing their conduct (para. 33). With regard to the
proceedings before the courts in the same judgment, the European Court said that "the parties. ...
only persons involved in the proceedings as the children of the jurisdiction of the courts "and that" it
therefore do not fall within the realm of the judicial system "riot. It is therefore from
the opinion of the appointed judge de Meyer's hard to understand in which direction the
Ravnsborg cases and Putz (to which, in the opinion of the ECTHR, article 6 of the Convention
did not apply, since the measures taken against these two complainants was
"more similar to the performance of law enforcement powers than the imposition of the penalty for
Commission of the offence ") (Ravnsborg, para. 33 and 34), may differ from the
the judgment in case Mr Weber. As well as Mr Weber and Mr Putz and
Mr. Ravnsborg done nothing more than "took part in the proceedings as the person
children of the jurisdiction of the courts ", and a provision that was applied to them,
as well as that applied to Mr. Weber, is subject to a "potentially
... on the entire population ".
As well as the application of the third criterion is the degree of strictness of punishment
that is a risk to the person concerned in the cases referred to, has led to different
the conclusions, which clearly shows its inadequacy. You can accept that
the person does not have the right to proper treatment when there is only a small fine
or a short period of incarceration? And if so, where is the threshold of rigour, which
determined by this law? What is the amount? How many days? The severity of the penalty may be
taken into account in order to assess whether it was fair, especially in the
the light of the principle of proportionality, or researching the procedure, in which the
stored, or again to determine whether it requires the existence of remedies.
In conclusion, Judge de Meyer expressed the opinion that any sanctions imposed to someone
for certain behaviors, which can be considered as a deterrent, it is a "punishment",
Therefore, their own "character" falls within the criminal sphere. It must
in particular, pay for any penalty or restriction of freedom. Such
penalties may be imposed only a judicial authority, or to someone under her
supervision, which will allow the person concerned the guarantees laid down more or less
perfectly in the article. 6 of the Convention. It is for the States to ensure, under the supervision of
The ECtHR.
However, where, for example, order in the armed forces or of the
rules of behavior in the context of a professional organization, the judicial nature of,
the independence and impartiality of the authority imposing the penalty does not necessarily
be considered as well, as in the case when the matter is regulated in the normal
criminal law. In the exercise of powers by the police (disciplinary)
a hierarchical parent or a professional Council may not be considered to be apriori
as an independent tribunal or less neutral than "regular" court or
the jury in relation to the offence under ordinary law. But in all cases,
in the fields covered by the specific sanctions systems, as well as
under the general criminal law, the proceedings must be fair. That could
be, it is necessary, among other things, that the penalty was reasonably proportional to
offense and make it available to the appropriate appeals against it, if
exceeds a certain threshold of severity.
The case of Mr. Putz does not fall into the area of either maintaining order in
control, as it relates to the charge of the judge, begin actions against judges
for misuse of its authority or on the basis of a reasoned suspicion of
bias. This aspect of the case, taken together with the fact that
the complainant does not appeal against the decision, the judge led
to the conclusion that Mr. Putz did not have a fair trial. Because not available or
remedies, also believes there has been a breach of article. 13 of the Convention.
Vi.
Assessment of a Chamber of the Constitutional Court
After the evaluation of all of the above opinions and observations, it was
plenum of the Constitutional Court concluded that the proposal IV. the Senate on the cancellation of the entire
the provisions of § 146 paragraph. 2. the order is justified.
The fact that the plenary of the Constitutional Court considers fine for its
the nature of a generally eligible to interfere with fundamental rights and freedoms with
regard to their amount and the possibility of repeated saving, unmistakably shows
already from its finding in the matter of SP. zn. PL. ÚS 28/98. The Constitutional Court did not find
reason to depart from the opinions voiced in there. Fine are
penalties for tortious conduct. Are laid down by law and intended as a
preventive and repressive measures at a time of public authority. Can be
While released on a discretionary basis, so it is not excluded, or
the discriminatory effect of their store to various entities. Are therefore
as a rule, the decision on criminal charges within the meaning of article 87(1). 6 (1). 1
Of the Convention.
From that finding to be further inferred that the person affected
riot fine must have available the constitutional procedural guarantees
implied in the article. 6 (1). 1 of the Convention, according to which "everyone has the right to
so its a matter of fair (...) be dealt with (...) by the Court (.)
who will decide (...) about the legitimacy of any criminal charges
against him. (...)".
The plenary of the Constitutional Court, therefore, to accept the above opinion IV.
the Senate, according to which the existing text of § 146 paragraph. 2. the order in terms of
the existence of effective procedural guarantees and remedies suffers from constitutional
deficiency, whose essence lies in the absence of such legislation, which
comply with the requirements of article. 6 (1). 1 of the Convention in relation to the parties to whom the
the riot, the fine pursuant to § 66 tr. order stored in the preliminary proceedings
a police authority or a public prosecutor. Persons affected
Thus, § 146 paragraph. 2. order does not guarantee the ability to bribe the constitutional
the procedural right to judicial protection enshrined in article. 6 (1). 1 of the Convention. These
people are constitutionally neakceptovatelném uneven the procedural
position in terms of the practical application of the basic rights enshrined
in the article. 6 (1). 1 of the Convention, compared with persons who have been exerting
the fine pursuant to section 66 of the order imposed tr. Chairman of the Board, which can be considered
for the violation of equality in the rights enshrined in article. 1 of the Charter.
Especially the unconstitutionality of the incumbent significantly while the provisions of § 146
paragraph. 2. the order reflected in the cases (like cause that
the proposal was preceded by IV. the Chamber of the Constitutional Court), which is a riot
Although the fine imposed after the start of the preparatory proceedings, but still
before the prosecution. The Constitutional Court notes that
When you start a pre-trial investigation of criminal options not starting
criminal prosecution, but by the police authority shall draw up a record, in the
stating the facts in respect of which criminal proceedings are initiated and
way to learn about them (section 158, paragraph 3, tr.), in any
If not in terms of constitutional criminal procedure in this section
stand up to the right of the police authority to impose, without the possibility of nota bene
judicial review, fine. The question of whether the start option
preliminary proceedings record the police authority is constitutionally souladná,
could not be given to the content of the proposal (IV). the Chamber of the Constitutional Court in this
control by the Constitutional Court dealt with.
The majority opinion of the full Court of the Constitutional Court to cancel the options nepřiklonil
the contested provisions of § 146 paragraph. 2. the order in part, thereby-
the de facto role of the legislature in the positive-law system
appeals against resolutions on the riot to a fine (but not only about
her) has changed (apart from the fact that they themselves are not these parts
the provisions of § 146 paragraph. 2 unconstitutional; There is a gap in the law unconstitutional),
Although the natural advantage of the immediate application of such a procedure is
remedy the constitutionally nesouladného provisions of the Act.
The provisions of § 146 paragraph unconstitutionality. 2. the order of doing so does not result from
an analysis of the provision itself, but in particular contained in it
the constitutional gap, which the Constitutional Court notes. Having regard to the need for
the current state of the neústavního axle, the Constitutional Court is of the opinion that the
delete the spaces in the law unconstitutional is the necessary positive action
the legislature, in which the impulse might be merely an individual cancellation
provisions of the Act, which inherently unconstitutional space contains, in
the case, therefore, the provisions of § 146 paragraph. 2. order, that
lawmakers will be given a reasonable time to such adjustment
the first section, the head of the seventh-the complaint and proceedings (§ 141-150)
the criminal procedure code, which would correspond to the requirements of the article. 6 (1). 1 of the Convention.
Therefore, the legislature will be to along the lines of this finding in time accepted
constitutionally Conformal decisions on adjustment appeal
(a) against a decision of a police authority or the Prosecutor
imposing a fine pursuant to § 66 tr. order. Excluded is not the adoption of the
such adjustments, which leaves the decisions on such matters in the hands of
the Prosecutor, whose decision will be to follow up on the decisions of the Court
(so this spawns a decision making trojinstanční) or whether-as is
the editing decisions on complaints against a decision regarding the securing of people
and assets (§ 146a tr.)-adjusts the power of the Court to review the
a decision on the fines immediately.
The President of the Constitutional Court:
JUDr. Rychetský v.r.
Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,
as amended, the decision of the plenum have been judges.
Stanislav Balík, JUDr. Dagmar Lastovecká, JUDr. Jiří Nykodým and JUDr.
Elisabeth Wagner.
