In The Matter Of The Application For Revocation § 146 Paragraph. 2 Of The Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení § 146 odst. 2 trestního řádu

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=59540&nr=45~2F2005~20Sb.&ft=txt

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the Court (code of criminal procedure), as amended, is repealed on the date of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.