On behalf of the Czech Republic
The Constitutional Court ruled on July 2, 1997 on the draft Criminal Chamber of the Supreme Court
Czech Republic to annul § 14 par. 1
point. d) e) Czech National Council Act no. 283/1991 Coll., on the Police of the Czech Republic
, as amended by Czech National Council Act no. 26/1993 Coll., which
amending and supplementing certain acts in area of internal order and security
, and related measures,
On 1 July 1998, repealed the provisions of § 14 para. 1 point. d) e)
Czech National Council Act no. 283/1991 Coll., on the Police of the Czech Republic,
in the wording of Czech National Council Act no. 26/1993 Coll., amending and supplement
certain laws on public order and security, and
On 24 January 1997 the Constitutional Court for Criminal Chamber of the Supreme Court
Czech Republic to annul § 14 par. 1
point. d) e) Czech National Council Act no. 283/1991 Coll., on the Police of the Czech Republic
, as amended by Czech National Council Act no. 26/1993 Coll., which
amending and supplementing certain acts in area of internal order and security
, and related measures, (hereinafter "law no. 283/1991
."). The petition was filed after the Supreme Court under Article. 95
paragraph. 2 of the Constitution of the Czech Republic (hereinafter "Constitution") and § 224 paragraph. 5 per
analogy of Act no. 141/1961 Coll., On Criminal Procedure (Criminal Procedure
), as amended, (hereinafter and "tr. r.")
broke criminal prosecution, namely the complaint procedure against the accused JM resolution
High court in Olomouc of 22 October 1996, file no. Ref. 3 30/96 on NTV
extension of custody of the accused till January 31, 1997, when the Supreme Court
found on the defendant existence of grounds for detention under § 67 clause.
A), b), c) tr. r. Supreme Court thus open criminal proceedings is
conducted at the Regional Court in Brno under file. Ref. 10 T 56/96.
The original proposal of the Supreme Court invoked the terms of the requirement
locus standi within the meaning of § 64 para. 4 of the Act no. 182/1993 Coll., On
Constitutional Court, as amended (hereinafter the "Act no. 182/1993 Coll. ")
analogy to § 224 paragraph. 5 tr. r. If the Constitutional Court
studied only in this petition, in the framework of the procedure pursuant to § 42 para.
1 and § 43 of Act no. 182/1993 Coll., the Constitutional Court would have come to || | are also generally valid conclusions.
The provisions of § 224 paragraph. 5 tr. l. defines the legal conditions interruption
prosecution for cases that would further procedural or process
deciding on guilt and punishment before a general court
violation of constitutionally guaranteed rights, if that court held the law on
which considers that it is unconstitutional. Unless these conditions are met, if
therefore given only to those facts in § 224 paragraph. 5 tr. l.
similar (analogous), ie., the general court in proceedings encounters
allegedly unconstitutional law, which would consequently be repealed, but which also does not make
respectively. is not decisive for the procedural steps in the
criminal case or not does not make its decision on guilt and punishment in
such things can not be subject to delay prosecution by
interrupted, by analogy with § 224, paragraph . 5 tr. r., in order to rectify
general court presumed unconstitutional. For this purpose, as
known to other legal instruments. Even if at first glance seemed
said analogue monitors the correct target, ie. The expected correction
unconstitutionality, and that for that reason it is permissible without any further, not
so, because its consequences would
discontinue prosecution under § 224 paragraph. 5 tr. r. analogy meant delays in the proceedings,
which would not be justified by the need to avoid direct
unconstitutional decision of the court.
Risk of rejection of the original proposal because of unacceptable analogy
§ 224 paragraph. 5 tr. r. and as a consequence, because of § 43 para. 1 point. d)
Law no. 182/1993 Coll. However, the petitioner ruled by adding original proposal.
For this supplement, as noted below, clearly shows that the proposed abolition
§ 14 par. 1 point. d) e) of the Act no. 283/1991 Coll.
Undermined the procedural steps of the Supreme Court, as the appeals court
so request provisions of paragraph 224. 5 tr. l.
was fulfilled and the locus standi of the petitioner no longer poses any shortage
In its proposal, filed pursuant to § 64 para. 4 of the Act no. 182/1993 Coll.
Respective Presidents of the Supreme Court stated that
on 15 November 1996 by the High Court in Olomouc Supreme Court | || complaint accused JM, t. no. in custody, against the resolution
appointed by the High court on October 22, 1996 sp. Ref. NTV 30/96.
Contested resolution has been accused's continued detention until 31 January 1997, as
High Court found the accused in the case, the existence of grounds for detention
according to § 67 clause. a), b), c) tr. l.
Accused in his complaint he pointed primarily to the fact that his
retention until 24 October 1994, as stated in the resolution
High Court, but in fact, already on October 23, 1994. The case-file | || Regional court in Brno file. Ref. 10 T 56/96, the Supreme Court found that the accused was
according to the protocol of detention detained in accordance with § 76 of the Criminal Code. l.
as a person suspected of 24 October 1994 at 17.30 hrs., after
prior consent of the competent public prosecutor. In the following
judge ruled Brno Municipal Court to remand the accused in custody
order dated October 25, 1994 sp. Ref. 7 Nt 1907-1994. Binding accused
for the state of things counted from October 24, 1994 17:30 pm. From
said protocol on the arrest of the suspect is also clear that this detention was preceded by detention
JM according to § 14 para. 1 point. e) of Act No.
. 283/1991 Coll., Which took place on 23 October 1994 at 17.30.
Petitioner in this context refers to the fact that the provisions of §
14 paragraph. 1 point. d) e) of the Act no. 283/1991 Coll. They do not follow their nature
riot hedging purposes, but ultimately pursue the same purpose
having in mind the provisions of § 76 of the Criminal Code. r., that
apprehension of a suspect of committing a crime [§ 14 para. 1 point. e)] or detention of a person
who was caught committing a crime [§ 14 para. 1 point. d)].
According to the petitioner's opinion, it is necessary to assess the restriction of personal liberty in a case
application of § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll.
criminal procedure in plane, but the plane riot.
From Art. 8, paragraph. 3 of the Charter of Fundamental Rights and Freedoms (
"Charter"), it is clear that this provision of the Charter is consistent only
provisions of § 76 of the Criminal Code. r., but not about the provisions of § 14 para. 1 point.
D), e) of the Act no. 283/1991 Coll. These have been the nature of collateral within the meaning
disciplinary measures, but basically pursue the same purpose as
provisions of § 76 of the Criminal Code. l.
As emphasized by the petitioner, on continuance of this legal dualism
regulation and could lead in practice leads to a double approach in detention.
One of them is the procedure pursuant to § 76 of the Criminal Code. r., which is in line with the Charter, then
second procedure according to § 14 para. 1 point. d) e) of the Act no. 283/1991
Coll., but ultimately at a separate time limits by
Act no. 283/1991 Coll. and the time limits specified in § 76 of the Criminal Code. r. leads to their
census and thus a violation of the deadline set for 24 hours in detention Art. 8
paragraph. 3 of the Charter.
Content identity of the two cited provisions of the Act no. 283/1991 Coll.
and the Criminal Procedure Code in effect permits in cases where they are given
conditions of detention for the suspect in accordance with § 76 of the Criminal Code. r., this provision
aside and choose instead detention under § 14 para. 1 point. d) e)
Act no. 283/1991 Coll. Ensuring by last
quoted provision does not affect the calculation of time decisive for determining the timeliness
filed a request for placing persons detained in custody pursuant to § 76 par. 4, § 77 par. 1
tr. r., or timeliness of the petition to extend the period of detention
according to § 71 para. 6 tr. l.
Current legislation ensuring according to § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll
. raises doubts in the opinion of the petitioner, as
allows circumvent the provisions of § 76 of the Criminal Code. r., which is a violation
. Article 8, paragraph. 3 of the Charter. The adjustment made to the provisions of § 76 of the Criminal Code.
Row. It is sufficient. For such a conclusion is evidenced by the Constitutional Court of
of 28 November 1996 sp. Ref. IV. US 246/96, in which the Constitutional Court
expressed the opinion that if there is to ensure that persons suspected of committing a crime
should be given 24 hours according to § 14 par. 3 of Law no. 283
/ 1991 Sb. empathize to a 24-hour time limit for detention under the Criminal Procedure
For all these reasons, therefore, proposes to repeal the provisions of § 14 paragraph
. Point 1. d) e) of the Act no. 283/1991 Coll.
Petitioner supplemented its original proposal in accordance with § 63 of Act no.
182/1993 Coll., As well as § 95 para. 1 of Law no. 99/1963 Coll., Civil
Procedure Code, as amended , its filing that the Constitutional court has been
11 March 1997. In it he said the following:
As a condition for a decision to extend it by Article 71.
3 tr. r., the proposal for this decision was the respective chairman of the Senate
(Attorney General), the High Court delivered no later than 15 days
before the end of the respective periods of detention. If this proposal is not
way (ie. In this period) submitted, the chairperson of the Senate and the
preparatory proceedings the prosecutor according to § 71 para. 6 tr. l.
dismiss the accused no later than the day after the deadline, which was the subject of custody
In this matter, the presiding judge of the Regional Court in Brno delivered
High Court in Olomouc proposal to extend custody of the accused on 9 October 1996. During
strict grammatical interpretation of § 71 para. 8 tr.
R., Which underlies the decision published under no. 10/1995 Collections
judgments and opinions in criminal cases can be referred to
fifteen-day period counted JM detention as a suspect according to §
76 tr . r., which took place on October 24, 1994, but not about his
detention under § 14 para. 1 point. e) of the Act no. 283/1991 Coll., on which
occurred a day earlier. In this case, the two-year period of his custody
ended October 24, 1996 and the proposal of the President of the Chamber of the Regional Court in Brno
of renewal would therefore be in accordance with § 71 para. 6 tr. l.
filed on time. The Supreme Court, as the court complaints, would therefore have a
aspects listed in § 147 paragraph. 1 tr. r. to examine the reasonableness of the accused's continued detention
Such a procedure would not be in conflict with Art. 8, paragraph. 3 of the Charter, according
which the detained person must be at least 24 hours per
released or committed to a court.
In contrast, if the deadline for detention, and thus the deadline of
ties counted also the period for which the accused was ensured according to §
14 paragraph. 1 point. e) of the Act no. 283/1991 Coll., would this proposal for extension of custody
filed late. The accused would therefore have to be already
cited § 71 para. 6 tr. r. released without
examined the reasonableness of the bond, respectively. conditions of § 71 para. 3 tr. l.
for its extension.
Constitutional (Article 8, paragraph. 3 of the Charter compliant) is considered by the petitioner
second of the suggested practices, but also in
inconsistent with the provisions of § 71 para. 8 tr. r., according to which the custody
counted only interception, a contrario therefore not secure.
Unconstitutional, however, this is not a statutory provision that the purely procedural institute
links correctly counted the other (previous) Process Institute detention, but
amendment to Act no. 283/1991 Coll., By Act of the Czech National Council || | No. 26/1993 Coll., Moving in § 14 para. 1 point. d) e) Disciplinary
institute criminal procedure to ensure the plane.
Supreme Court, as the supreme article general court system is
according to Art. 95 of the Constitution, as opposed to the Constitutional Court is bound by the law. If the
conclude that the law, which provisions should be applied in resolving a matter
is in conflict with constitutional law can not be applied directly to the Constitutional Act, but
submit the matter to the Constitutional Court. For these reasons, therefore, criminal
thing JM submitted to the Constitutional Court with a petition to annul §
14 paragraph. 1 point. d) e) of the Act no. 283/1991 Coll., as his consistent
respect and applications, ie. in the context of § 71 para. 8 tr. r., otherwise
led to the unconstitutional decision of the Supreme Court.
In a written response to the petition of the Supreme Court, filed on 2 April 1997
chairman of the Chamber of Deputies of the Czech Parliament at
accordance with § 69 of Act no. 182/1993 Coll., It was stated that the detention || | according to § 76 of the Criminal Code. r. and detention under the 14 paragraph. 1 point. d) and e) of the Act no. 283/1991 Coll
. There are two legal institutions that agree only partially
. A person suspected of committing a crime may
according to § 76 paragraph. 1 tr. l. to detain only investigator in urgent cases even
though she has not been charged, and that if it is given one of the reasons
custody. The detention, it must be prior consent of the state
representative. Without such consent may be arrested done only if the thing
Emergencies and consent can not be obtained in advance, particularly if
person caught committing a crime or encountered on the run.
The statement further states that the detention of a person who was caught
while committing the offense or under forensically documented
information is suspected of preparing, attempting or committing a crime
could under § 14 paragraph. 1 point. d) and e) of the Act no. 283/1991 Coll.
Done only policeman.
Deputies respects the opinion of the Constitutional Court in judgment
dated November 28, 1996 sp. Ref. IV. US 246/96, under which the
the event to ensure that persons suspected of committing a criminal offense
should be given 24 hours according to § 14 par. 3 of Law no. 283/1991 Coll.
Empathize to a 24-hour time limit for detention under the Criminal Procedure Code. If
criminal justice do not proceed in this manner, it is possible
such a practice could be considered unconstitutional. From this fact, nor
partially identical adjustments detention under the Act no. 283/1991 Coll.
and detention under the Criminal Procedure Code is not possible to derive unconstitutional
§ 14 par. 1 point. d) and e) of the Act no. 283/1991 Coll.
Czech National Council Act no. 26/1993 Coll., Amending and supplementing
certain laws on public order and security, and
related measures, was approved by the necessary majority of deputies of the Czech
national Council of 21 December 1992, was signed
appropriate constitutional officials, and duly promulgated.
In this state of affairs, notes how the party should be expressed
opinion that the legislative assembly acted in the belief that the law
is consistent with the Constitution and our legal order. It is up to the Constitutional Court,
in connection with grant requests Chamber of the Supreme Court of the Czech Republic
to repeal § 14 par. 1 point. d) and e) of the Act no. 283/1991 Coll.
Evaluate the constitutionality of the law and issue the appropriate decision.
Basic precondition proceedings on a petition to repeal a law or its individual provisions
determine whether it was passed and issued in a constitutionally prescribed manner
, as required by the Constitutional Court, § 68 para. 2 of Act No.
. 182/1993 Coll. To that end, the Constitutional Court requested from the Chamber of Deputies
shorthand report of the meeting of the Czech National Council, which was
amendment to Act no. 283/1991 Coll., Ie. The Czech National Council no. 26/1993 || | Coll., discussed and adopted. Of the total number of members of the Czech National Council
who stood within the meaning of Article. 103. 1 of the Constitutional Act of the National Assembly
no. 143/1968 Coll., On the Czechoslovak Federation, 200 members
a discussion of the amendment 21 December 1992 attended by 106 deputies
. For the adoption of the amendment, 96 deputies voted in favor, 10 against it
deputies. The proposal was therefore in accordance with the provisions of Act 24
Czech National Council no. 35/1989 Coll., On the Rules of Procedure of the Czech National Council,
in force on 31 December 1992, accepted.
In proceedings to annul statutes or individual provisions, the Constitutional Court examines
contents of these legal acts in terms of their compliance with
constitutional laws and international treaties under Art. 10 of the Constitution.
From this perspective, the Constitutional Court focused primarily on the genesis and
essence of the contested provisions of § 14 para. 1 point. d), e) of Act No.
. 283/1991 Coll.
By the contested provisions of Act no. 283/1991 Coll. reads:
"§ 14 Provision
(1) A police officer is entitled to detain a person
a) his conduct immediately endangering your life or the life or health
other persons or property;
b) attempted to escape during the demonstrations of § 12 para. 8 and § 13 para. 5;
c) at the police department verbally offends another person or a policeman or
intentionally pollutes or damages equipment or police property;
d) was caught committing a crime;
e) based forensically verifiable information is suspected of
preparation, attempt or committing a crime.
(2) Should the reasons for detention, the police officer is obligated to release the person immediately
(3) Provision may take more than 24 hours from the moment of personal || | liberty. "
From documentary evidence, which the Constitutional Court in the matter so far gathered
should be primarily based on the explanatory report to the Act of the Czech National Council
no. 26/1993 Coll. That in connection with § 14 para. 1 point. d), e) only
Notes that the draft amendment to this provision literally only takes
modification date contained in § 16 para. 1 point. c) af) of Law no.
333/1991 Coll., on the Federal Police Force and the Castle Police
(hereinafter the "Act no. 333/1991 Coll."). Even on the basis of the shorthand report
discuss the government's draft of the Czech National Council no. 26/1993 Coll.
Constitutional Court has come to any other findings which could further
illuminated the otherwise very sparse reasoning in paragraph 7 of the proposal relating to §
14 paragraph. 1 point. d), e).
As regards the explanatory memorandum to the Act no. 333/1991 Coll., Whose government
proposal has been discussed as Assembly Print under no. 701 VI.
election period, Federal Assembly of the Czech and Slovak Federal Republic,
That also does not contain any information that could enlighten the reasons for the adoption of a subsequent acquisition
incriminated provisions. This is so because
wording of § 16 para. 1 of this Act, the government proposal she points c) and f)
there was not. Under c) to read: "... a person who was
caught committing an offense if it is reasonable concern that the person will continue
infringement or obstruct the proper clarification of the matter."
Letter f) the wording of this provision in the text of the government's draft
completely lacks. However, despite the proposed text of the cited provisions
necessary after all of the explanatory memorandum in question come. It had to § 16
generally states: "A person may policeman provide, subject to the law
certain enumerated conditions. The institute is to be distinguished from
Institute detention and arrest by the Criminal Procedure Code ...".
The difference between the Government originally proposed wording of § 16 para. 1 of Act no. 333/1991 Coll
. and diction, which was finally adopted and which proceeded in the contested
draft amendment, ie. the Czech National Council no. 26/1993 Coll.
should explain stenographic record of the discussion of the draft law no. 333
/ 1991 Sb., respectively. Committees proposal armed and security to the resolution
Assembly of People and House of Peoples to the Chamber of Deputies publication no. 701, in which
were conceived and discuss the results of the government's draft of this law
constitutional committees of both Houses. A joint proposal from the committees of
his 20th point, serves to subparagraph b) must include the letter c)
added: "c) was caught committing a crime." Common
newsletter committees of the House of People in his presentation to the press no. 701
cited paragraph 20. draft resolution did not mention it, and included amongst others
commented that such simple additions or enhancements of the original
articulated wording of the governmental proposal Act. The proposed form of wording
text of letter c) will probably gradually taken shape during the debate MPs when
one originally recommended in § 16 para. 1 point. c)
government's proposal to insert the word "offense" the words "or offense".
Amendment extending the powers of police officers closer substantiated.
Regarding the letter f), which should also be completed entirely beyond
original government proposal, for it is a joint proposal of the committees appointed
mention. However, the shorthand report discussing the proposal
Act, the Federal Assembly is determined that during the debate, deputies came
complementary proposal to § 16 para. 1, namely
following wording: "... proposing to add point e) - based on verifiable information
is suspected of preparing, attempting or committing a criminal offense
. " Further justification cited supplement also lacks.
The same amendment was finally on the recommendation of the petitioner and reporters
refined, as is clear from the overall consideration and acceptance of others
amendments, and by adding the word "forensically" to
Traceability was clear and was useless potential misuse.
Discussed after the law was amended as a whole, the government proposal, as well as a joint proposal
committees and amended the approved amendments approved.
To determine the facts of the case, namely in terms of the very essence
circumstances and practical application of the contested provisions of Law no.
283/1991 Coll., The Constitutional Court requested a "Report on the joint negotiation committee set up
police commissioner and an advisory body composed of representatives
Police administration "(hereinafter" Report "), which was also paid to the issue of detention of persons
according to § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll
. and by 76 tr. l. In addition to the aforementioned reports requested joined
State body also its interpretation of the term "forensically proven
Own report is particularly noted that the Constitutional Court
no. 23/1997 Coll. from November 28, 1996 (file no. Ref. IV. ÚS 246/96)
made a breakthrough in the established practice of the Czech police, prosecutors and courts
in deciding on detention under § 14 para. 1 point. d), e) of Act No.
. 283/1991 Coll. and detention under § 76 par. 1 tr. l. The 24-hour deadline
restriction of personal liberty (arrest) pursuant to § 76 par. 1 tr. l.
to count the 24-hour period, which is often preceded
this institution, and to ensure that persons pursuant to § 14 para. 1 point. d) e)
Act no. 283/1991 Coll., although the reason and purpose are the same. Now
According to the cited judgment in the case of detention of a person suspected of committing a crime
need 24-hour deadline according to § 14 par. 3 of Law no. 283/1991
. empathize to a 24-hour time limit for detention under § 75, 76 tr.
R., Because the opposite approach to the relationship detention under § 14 para. 1 point.
D), e) of the Act no. 283/1991 Coll. and detention under § 75, 76 tr. r., as
yet common in proceedings before the ordinary courts, the opinion of the Constitutional Court
contrary to Article 8 paragraph. 3 of the Charter.
In the following issued general guidelines (the "Guidelines") no. 1/1997
of the Attorney General instructs prosecutors and police
authorities that in the 24-hour time limit for detention under the Criminal Procedure Code || | counted and the period during which a person has been assured by § 14 para. 1
point. d) e) of the Act no. 283/1991 Coll. The report cited at this point
he says that the instruction is in conflict with the law, which
suggests the following arguments.
There is no doubt that personal freedom is guaranteed (Art. 8, paragraph. 1
Charter). . Article 8, paragraph. 2 of the Charter then declares that no
not be deprived of his liberty except on such grounds and in the manner determined
law. There are two laws that are part of the law
Czech Republic, the same legal force, but having a different purpose, ie.
To limit personal freedom.
The first is the Criminal Procedure Code, the purpose of which is to regulate the procedure
bodies active in criminal proceedings so that crimes are properly identified and their
perpetrators justly punished.
The second is Act no. 283/1991 Coll., Whose purpose is to regulate the rights and obligations
Police of the Czech Republic in performing the tasks laid down in this Act
It is therefore evident, the report said that Article. 8, paragraph. 2 of the Charter is a general
mandate for legislative power to enact legislation limiting personal freedom
. The same authorization is then enshrined in Art. 7, paragraph. 1 of the Charter,
still more general sense than it is in Article. 8 paragraph. 2. As regards Article
. 8 paragraph. 3 of the Charter, there is a mandate for legislative power to modify the legal
restricting personal freedom found in some capacity, ie
. persons suspected or whoever is accused of committing a criminal offense
. This is the case precisely the Criminal Procedure Code, specifically § 75 and
76th In this context, the emphasis should be used to institute
detention. It's institute, highlighted in the Report, which knows only
Criminal Procedure. To restrict the freedom of another, here in specified cases, can only
here, specifically those entities. For 75 and § 76 par. 1 tr. r.
's investigator. Paragraph 2 of the last cited provision gives
option to restrict personal freedom to anyone, if such person has been caught in
crime or immediately thereafter, if necessary
to establish his identity, to prevent escape or to secure evidence.
Used the term "anyone" can be legitimately interpreted as meaning that it can also
policeman. From this perspective, there are reasons to restrict personal freedom
actually the same as in § 76 par. 2 tr. r., and in the provision
§ 14 paragraph. 1 point. d) of the Act no. 283/1991 Coll.
Identity reasons, can not be seen in § 14 par. 1 point. e) of the Act.
The last mentioned statutory provision affects those cases where
based on forensically substantiated information arose some suspicion
that a person has committed a criminal offense. Such a person is a police
requested under § 12 of Act no. 283/1991 Coll. for an explanation.
Same time, the need arises to verify certain data reported a suspicious person
or check other fact (forensic methods), respectively
Bring the matter to a stage where it is possible to pass such a person
investigators to prosecution. Such acts serve Institute
collateral. Restrictions on personal liberty, on the basis of this institute is
The report further admits that § 14 para. 1 point. d) of the Act no. 283/1991 Coll.
Is redundant. For the reasons mentioned above, it is possible in such cases
apply the provisions of § 76 par. 2 tr. l. However, as regards
§ 14 paragraph. Point 1. e) of the Act no. 283/1991 Coll., that provision has its
justified and not in conflict with the Constitution, which includes the Charter.
The report also gives its opinion to the Constitutional Court judgment no. 23/1997 Coll.
Understands it as a decision in a specific case, the result of which is not about finding
generally binding. The arguments contained in the judgment
The report notes that Art. 8, paragraph. 2, 3 of the Charter, which are the basis on which
finding is based, are reflected in § 75 and 76 of the Criminal Code. r. In another law, ie. the
Act no. 283/1991 Coll., is also a provision that derives from
Charter, which gives the possibility of legal restriction of personal freedom.
This provision is in accordance with Art. 7, paragraph. 1 of the Charter, as the explanatory memorandum to the
§ 14 Act no. 283/1991 Coll. According to the Senate report
opinion of the Constitutional Court probably did not take these facts in substantiation of its finding
account. § 14 par. 1 point. a) to e) of the Act no. 283/1991 Coll
. It is effective and should continue under this provision
The fact that the period of detention periods counted speaks very specifically
two acts, cited by the report.
First, explanatory memorandum to the Act no. 283/1991 Coll. to 14 says:
"Person police officer may provide only certain enumerated cases.
This institute should not be confused with the institute of detention and arrest by
Criminal Procedure Code and therefore can not be combined period if the detention
or arrest people during the detention period. This interpretation
corresponds with Art. 7, paragraph. 1 of the Charter ... ".
In addition to this issue cites Collection of judgments and opinions
in Criminal Matters, 1995, 3, p. 114, ruling in no. 10/1995:
"If the suspect's personal liberty is limited by its security pursuant to §
14 of Law no. 283/1991 Coll., on the Police of the Czech Republic, as other
regulations, can not be counted duration of the seizure to the time of arrest
accused under the relevant provisions of the Code of criminal Procedure. Deadline 24 hours || | which is according to § 77 par. 1 tr. r. a prosecutor is obliged to surrender the detained person
court with a petition for custody, starts to run
moment of detention of the accused in accordance with § 76 par. 1 tr. r. ".
In conclusion to this issue, it is recommended
Ministry of Justice, in the light of the foregoing reassessed instruction no.
1/97, which in its current form clearly disregards the question of incompatibility
deadlines stemming from the institute of detention according to paragraph 14.
1 point. d) and e) of the Act no. 283/1991 Coll. and the institute of detention under § 76 paragraph
. 1 tr. l.
As regards the term "forensically verifiable information" as used in §
14 paragraph. 1 point. e) Law no. 283 / / 1991 Coll., as interpreted by the Police Presidium
Interior Ministry here include: use
operative investigation means and operative techniques within the meaning of § 34 para. 1 and § 35 of Act No.
. 283/1991 Coll. and their continuous evaluation, identification
persons, crime scene investigation (including the preparation of complex documentation)
scene of finding corpses, its inspection and autopsy, examination
(objects, documents, as well as places that are not the place
criminal offense), execution and evaluation ballistics, toxicology expertise
against police registers, recognition (people and objects), review
alibi, cooperation with the police forces of foreign states, etc.
On 4 June 1997 the Constitutional Court, the initiative itself
sender opinion of the Ministry of Interior on the proposal of the Supreme
Court in the matter. The opinion of the Constitutional Court considers further
of documentary evidence, because it is not even an opinion within the meaning of § 42 paragraph
. 2 of Act no. 182/1993 Coll., As marked, not by statements in accordance with § 69
quoted law because the Ministry of Interior Affairs
is not a party or a secondary party (§ 28 cit. Act).
Mouth First Deputy Minister of the Interior in that material finds
disagreement with the opinion of the Supreme Court. Firstly, it is pointed out,
Ensure that persons suspected of preparing, attempting or committing a criminal offense or
person caught in the commission of the offense can carry
policeman completely independently, in keeping with § 14 para. 1 point. d) e)
Act no. 283/1991 Coll. In contrast, detaining suspected of a criminal offense may
within the meaning of § 76 par. 1 tr. l. to perform only investigator. Both
legal institutions thus coincide only partially.
Possible annulment of the contested provisions of Act no. 283/1991 Coll. would, among other things, resulted in
practice to the conclusion that a policeman would a person suspected of committing a criminal offense
could only detain, not only on the instructions of the investigator and
only in cases where there are grounds for detention. This would, in effect
led to considerable hindering the investigation. In the opinion of the Ministry of Interior
partly equal treatment restriction of personal liberty in the Penal Code and the
Act no. 283/1991 Coll. Although the census allows 24-hour time limits given in
both laws, which may contradict Art. 8, paragraph. 3 of the Charter, but on its
itself to justify the conclusion about the unconstitutionality of the contested provisions of Act No.
. 283/1991 Coll. In the event that the Constitutional Court granted the petition and
§ 14 paragraph. Point 1. d) e) of the Act no. 283/1991 Coll. canceled, it will be necessary, he says
material Interior Ministry to establish an appropriate deadline efficiency
relevant findings so that it could develop an appropriate legal
regulation which will enable the police authorities to detain a person suspected in other cases
, than those regulated by § 76 par. 1 tr. l.
The fair is considered one-year period. Finally he gives to the Constitutional Court
account, in connection with the trial of the case has considered the general
sufficiency period laid down in Article. 8, paragraph. 3 of the Charter.
In the Constitutional Court must answer the basic question
from which it derives further solving the case. This issue is the scope of Article. 8
paragraph. 3 of the Charter in comparison to the real scope and nature of § 14 para. 1
point. d) e) of the Act no. 283/1991 Coll., respectively. Following common problem
statutory regulation on the treatment of constitutional posed
cited article of the Charter. In other words, it is about whether common law
expected Charter, does not deviate from the terms of a legally
sectoral scope of its control beyond the outlined constitutional rule.
In this connection should be noted that the Charter is conceived as
immediately valid source of law, the rights contained in the Charter can be
rely directly on the basis of its wording. An exception to this rule is only
Article. 41 paragraph. 1 of the Charter, which restricts
immediate application of the Charter in certain social rights issues
so that makes reliance on these rights, implementing the legislation. Of
that a contrario it follows that the fundamental right contained in Art. 8, paragraph. 3
Charter under the legal regime of Article. 41 paragraph. 1 of the Charter does not fall. One can not therefore
rely directly on the basis of the wording of Article. 8, paragraph. 3 of the Charter, while
any laws when this right touch, not the more
beyond the limits laid down in the Charter, in this case Article . 8 paragraph.
Under Art. 8, paragraph. 3 of the Charter of the accused or suspect
a criminal offense may be detained only in cases specified by law.
Detained person must be immediately informed of the reasons for the detention, questioned
and within 24 hours, either released or brought before a court.
Judge must detained person within 24 hours of receiving him and
decide on custody or be released.
Charter used the terms "accused", "suspected of an offense"
"detention" certainly suggests that more legislation
restriction of personal freedom of persons indicated in the procedural position falls legally
sector in criminal law Process. Proof of this are the provisions
§ 75 and 76 of the Criminal Code. r., where the first one deals with the detention of the accused
investigator, second on the detention of the person, which has not yet been notified of the allegations
(§ 160 paragraph. 1 tr. r.), ie. the suspect also investigator
or anyone under the conditions specifically set forth in § 76 par. 2 tr. l.
To be respected time limit for detention, referred to expressly in Article. 8
paragraph. 3 of the Charter, it must be determined only as the exclusive and only
criminal procedure law, ie criminal procedure. Only this can guarantee
no exceedance of the prescribed time limits. § 14
Paragraph. Point 1. d) and e) of the Act no. 283/1991 Coll. However, a formal legal
(nominally) more "space" for the restriction of personal freedom, not
Although the accused, but those suspected, respectively.
caught while committing a crime or suspicious based on
forensically verifiable information from the training, or attempt to commit an offense. At this point
and cited provisions of Act no. 283/1991 Coll.
abandoning the constitutional legal framework which should, as a follow-up legal rights
respect and whom defines Art. 8, paragraph. 3 and Art. 41 paragraph. 1 (per
argumentum a contrario) of the Charter. Act no. 283/1991 Coll.
is not a source of criminal procedural law such as criminal law, but
form of administrative law, respectively. "Police". As such, is not
that law reglementovat materia other than being properly
police. If it happens so, and proof that the contested provisions of §
14 paragraph. 1 point. d) e) of the Act no. 283/1991 Coll., in terms of legislation
unconstitutional, even though a legislatively technical standpoint
admissible, since the cited provision is an indirect amendment to the Criminal Procedure
The fact that § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll.
Contradicts Article. 8, paragraph. 3 of the Charter, is documented also by the fact that the procedure for
restriction of personal freedom by the last cited provisions
assumes fall off if the reasons for detention that detainees be brought before a court
. Conversely, of § 14 para. 2 of Act no. 283/1991 Coll.
(Per argumentum a contrario) such session towards jurisdiction
does not follow, though detention under the contested statutory provision is inherently
detention within the meaning of Article. 8, paragraph. 3 of the Charter.
In this connection we must reckon with the objection according to which it is proposed to abolish
§ 14 par. 1 point. d) e) of the Act no. 283/1991 Coll.
Provision which, without being abolished as unconstitutional,
be interpreted and applied in a constitutional manner.
Constitutional Court in its Judgment. Nos. Pl. US 48/95 in the following spoke: "At
situation where a legislative provision allows
two different interpretations, one is in accordance with the constitutional laws and international treaties
under Article. 10 of the Constitution of the Czech Republic
and the other is in contradiction with them, there is no reason to repeal this provision.
in its application, the task of the courts to interpret the provisions of the Constitution
consistent manner. "
The Constitutional Court has held that cited the ruling in is undoubted, if she
nature of the contested statutory provision is not inconsistent with the Constitution (
as it was in the present case) and if the game only and only
interpretation of that provision, as well as continuing its applications.
Also illustrated on criminal procedural provisions can cite the example of § 75 and 76 of the Criminal Code. r.,
which are themselves in accordance with the Constitution. These provisions can be applied
constitutionally and unconstitutionally. In the latter case, initially
enjoys investigator § 76 par. 1 and then § 75. Such an interpretation and application
would certainly reasons for such revocation. § 76 of the Criminal Code. l.
Can However, if a draft legal provision which by its content, its essence
deviates from the constitutional framework, as is described above
regarding § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll., and which may
be interpreted and applied in both ways (and constitutionally
nonconformistly), then it no choice but to remove that provision. Only then can the
practice ruled unconstitutional and its use. Relying that it
competent authorities interpret and apply only within the Constitution when offering
interpretation and application purpose, which is ultimately unconstitutional means
resign the Constitutional Court as a judicial body
protection of constitutionality (Art. 83 of the Constitution).
As already stated, the Chamber of Deputies of the Parliament of the Czech Republic is the
considers that neither the partially identical adjustments detention under the Act no. 283/1991 Coll
. and detention under the Criminal Procedure Code does not derive
unconstitutionality of § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll.
Opposite the Constitutional Court's opinion is this, even if only partial
overlap between the two laws, the reason for the unconstitutionality of changes in the Law No.
. 283/1991 Coll., As it implies an overlap outside Art. 8, paragraph. 3 of the Charter.
Concluded that the contested provisions of the Act no. 283/1991 Coll.
deviates from the constitutional framework Art. 8, paragraph. 3 of the Charter, evidenced by the explanatory report on the
Law, which was subsequently adopted under no. 333/1991 Coll.
Although the original wording of § 16 para. 1 point. c) f) the government draft did not contain wording
today § 14 para. 1 point. d), e), even then, it was emphasized that the police ensure
Institute should be distinguished from detention and arrest
under the Criminal Code. If then the Czech National Council Act no. 26/1993 Coll.
Broaden the scope of § 14 para. 1 of Act no. 283/1991 Coll.
essentially a criminal procedure institutes did not mean anything other than a projection of
treatment given in § 76 of the Criminal Code. r., in conformity with Art. 8, paragraph. 3 of the Charter, to adapt
administrative law, which is a consequence of the reach of Art. 8, paragraph. 3 of the Charter
sprained. It should be noted that when discussing the original wording of § 16
Act no. 333/1991 Coll. Federal Assembly, ie. in July 1991, and especially
draft amendment (ie. the Act No. 26/1993 Coll.)
in December 1992 was aspect of constitutionality, respectively. unconstitutionality ever tracked
although at the time, came into effect a constitutional law no. 23/1991 Coll. (
On February 8, 1991), which is uvozovala Charter, including its Art. 8 paragraph. 3rd
The fact remains, and that the Constitutional Court is aware that the time restriction of personal freedom
referred to in that article of the Charter, in particular those
committed to non-judicial authorities, their absolute brevity (especially in
compared to some other laws of the states where the rule
falls below two days) has a two-edged. On the one hand it protects
personal freedom against unreasonable restrictions on her, but on the other, limits the right
detained suspect's defense counsel
within the meaning of § 76 par. 3, 6 tr. r., which just for its brevity is often unrealistic
advocate catch. It is beyond dispute that the 24-hour limit
is in that context the lack of adequate documentation for criminal
things to be able to prosecute the case of the detention of a suspect
. However, it is evident that it is not within the jurisdiction of the Constitutional Court
solve this fundamental problem, because it is a task exclusively framers.
The report concedes that the reasons for the restriction of personal freedom according to § 76 paragraph
. 2 tr. r., and § 14 para. 1 point. d) of the Act no. 283/1991 Coll.
are identical and that therefore the last mentioned provision is superfluous. In other words
This also confirms the yaw § 14 para. 1 point. d) of the Act no. 283/1991 Coll
. the scope of Article. 8, paragraph. 3 of the Charter. However, if the report
opinion that such an agreement is not at the level of § 76 par. 2 tr. l.
and § 14 paragraph. Point 1. e) of the Act no. 283/1991 Coll., not with this view
agree. In the opinion of the Constitutional Court, there is a focal point of both
statutory provisions that the suspect of a crime can be detained
within the meaning of § 76 par. 2 tr. l.
most immediately after the commission of the offense (for other conditions), while according to § 14 paragraph
. Point 1. e) of the Act no. 283/1991 Coll. it can be done anytime after
not only immediately. Any objection to a certain extent voiced
material in the Interior Ministry that the detention of the suspect, but not
during or after the crime falls under § 76 par. 1 tr. r. and it is therefore not an account
comparison cited provisions of Act no. 283/1991 Coll.
with § 76 paragraph. 2 tr. r., it is unnecessary. It is a fact that has a sense
primarily, if compared to restriction of personal freedom under the Criminal Code and
Act no. 283/1991 Coll., If he can do so by both laws as one policeman
and the same person, because at this point the double
legal framework creates the way of the latter Act unconstitutional
room for progress, in the sense 76 par. 1 tr. l. is not possible because there is only authorized entity
police investigator, also not a mere
policeman. On the other hand, it is possible that the investigator's
according to § 76 par. 1 tr. r. will be preceded by a police officer according to § 14 paragraph
. Point 1. e) of the Act no. 283/1991 Coll.
The report also suggests arguments to justify its view
constitutionality of § 14 para. 1 point. d) e) of the Act no. 283/1991 Coll. At that
Following Indeed invokes Article. 7 paragraph. 1 and Art. 8, paragraph. 2 of the Charter.
At this point must be reiterated that
police detaining a person caught in the commission of an offense or suspected of previously committed
preparation, attempt or a completed offense is its real essence
institute criminal procedural law. As such, falls under Article
. 8, paragraph. 3 of the Charter, that under special provisions, having
Precedence over Art. 7, paragraph. 1 of the Charter. If the Act no. 283/1991 Coll.
scope of this particular provision took out nominally, and thus founded
unconstitutional, as the Constitutional Court it is not good enough then
its constitutionality "catch up" referring to general Art. 7, paragraph. 1 of the Charter.
In essence, the same applies in relation to Art. 8, paragraph. 2 of the Charter, as far
understands the message as the constitutional basis of the contested provisions of Act No.
. 283/1991 Coll.
Addition collision under § 14 par. 1 point. d) e) of the Act no. 283/1991 Coll
. Article. 8, paragraph. 3 of the Charter of the Constitutional Court examined how he saves
§ 68 para. 2 of Act no. 182/1993 Coll., also possible incompatibilities with other
constitutional laws, respectively. Constitution and the international treaties
within the meaning of Article. 10 of the Constitution.
From this perspective, focused its attention primarily on Art. 1
Constitution. A prerequisite of law, on which the cited provisions
talking about is legal certainty associated with the requirement of stability
rights and legality právotvorby. A necessary condition for legal certainty, clarity
among other things, (certainty) legal norms.
As stated by the Constitutional Court in its Judgment. Nos. Pl. US 9/95, uncertainty
any of the provisions of the legislation must be considered inconsistent with the requirement
legal certainty and, therefore, the rule of law (Art. 1 of the Constitution), only,
the intensity of that uncertainty rules out possibility
determining the normative content of that provision by the usual
interpretive approaches. Diction, which offers particularly § 14 para. 1
point. d) of the Act no. 283/1991 Coll., is of the view, as well as in
compared with the wording of § 76 par. 2 tr. l. so general and vague that even
eg. the extensive commentary not to draw clear boundaries
application of this provision. The expression "caught while committing a criminal offense
" may, without further increasing accuracy
conditions include a relatively wide range of situations and create a relatively wide scope for the use of this provision
policeman, and the same as legal uncertainty this mailing
legal norms, ie. people detained in this context.
To the same conclusion may be, if it was used eg interpretation. and literal, which
in conjunction with the term "criminal offense" without further means well
certain vagueness of the contested provision, respectively. by the same relatively wide
difficult to grasp the scope of its use. It can therefore conclude that
of the contested provision is within its letter d) contrary
also with Art. 1 of the Constitution.
The Charter, except Article. 8, paragraph. 3, the Constitutional Court sees
unconstitutionality of the contested provisions of Act no. 283/1991 Coll.
still in their conflict with Art. 4 par. 4. Paragraph 2 of this provision allows
to limit fundamental rights and freedoms were under the conditions stipulated by the Charter
only by law. In the spirit of paragraph 4 of the same article then
when applying the provisions on limits of fundamental rights and freedoms must be preserved
their purpose and meaning. Such limitations shall not be misused for other purposes
than those for which they were enacted. Represents However, if the provisions of §
14 paragraph. 1 point. d) e) of the Act no. 283/1991 Coll. certain restrictions (limits)
personal freedom, then set those limits in the above Act,
next to the relevant provisions of the Criminal Procedure Code (§ 75, 76), allowing them
possible abuse to an extent that goes beyond Article. 8 paragraph. 3 of the Charter, thus
abuse for purposes other than those for which it should and could be properly
these limits in the Act no. 283/1991 Coll. established. It is a fact that
said the law could follow in terms of its purpose only targets correctly
police, not criminal procedure.
European Convention on Human Rights as amended by Protocols No.
. 3, 5 and 8, published under no. 209/1992 Coll. (Hereinafter the "Convention"), as well as
Protocols Nos. 9, 10 and 11 admits in its Art. 5, paragraph. 1 point. c)
lawful detention of a person for the purpose of bringing him before the competent judicial authority
for reasonable suspicion of having committed an offense.
In terms of paragraph 3 of the same provision also anyone who is otherwise deprived of liberty
in accordance with paragraph 1 point. c) of this Article shall
be brought promptly before a judge or other officer authorized
law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release pending trial.
Under the cited provision appears to fall, and with it conforms to § 76 of the Criminal Code. r.,
Since he assumed the procedural steps in the form of exercising judicial powers
following the detention itself (cf. Paragraph 4).
The same applies to the provisions of § 75 of the Criminal Code. l.
By contrast, the contested provisions of Act no. 283/1991 Coll.
with such sessions do not count (see § 14 para. 2 per argumentum a contrario) in
consequently fall outside the framework of the Convention. This fact confirms therefore that §
14 paragraph. 1 point. d) e) of the Act no. 283/1991 Coll. It is in conflict with Art. 5
paragraph. Point 1. c) and paragraph. 3 of the Convention.
The necessity of judicial review of the hedge, if nature
trestněprocesního detention when the necessity arises from the nature of Art. 5
paragraph. Point 1. c) and paragraph. 3 of the Convention, evidenced by the relevant case law of the Strasbourg
instances. Thus, for example. Concerning Ireland c / a United Kingdom
(1978 ser. A, no. 25, § 196), the Court in its decision stated that Article
. 5 paragraph. 1 point. c) allows deprive someone of liberty only for the purpose
brought before a competent judicial authority. The Court's decision in the case of De Wilde
et al. c / and Belgium (1971, ser. A, no. 12, § 71), it expressed the opinion that under Article
. 5, paragraph. 1 point. c) a person can be arrested and held in detention
only for the purpose of bringing him before the competent legal authority. This
opinion of the Court is still valid and has been invoked in other decisions
(Engel et al. C / Holland and 1976, ser. A, no. 22, § 58, De Jong et al.
C / and Holland, 1984 ser. a, no. 77, § 44 et al.).
International Covenant on Civil and Political Rights, promulgated under no.
120/1976 Coll. (Hereinafter "the Covenant") in Art. 9, paragraph. 3 assumes that everyone
who is detained on a criminal charge shall be brought promptly before a
a judge or other officer's law || | empowered to exercise judicial power and shall be entitled to trial within a reasonable
time or to release. The term 'accusation of criminal offense
"can not seem to understand the charge only in the technical sense, ie.
according to national criminal procedural law (§ 160 paragraph. 1, § 75 of the Criminal Code. r.).
Include even the suspicion of criminal activity.
Like the Convention, including the Covenant requires the aforementioned relationship between the arrest
(reinsurance) and subsequent judicial powers, and she continuity in
§ 14 paragraph. 1 point. d), e), para. 2 of Act no. 283/1991 Coll. miss. Therefore
contested provisions are in conflict with Art. 9 paragraph. 3 of the Covenant.
Given the results of the legal analysis, which was carried out in part III.
The Constitutional Court held that the provisions of § 14 para. 1 point. d), e) of Act No.
. 283/1991 Coll. must be in accordance with § 70 para. 1 of Act no. 182/1993 Coll.
to its conflict with Art. 1 of the Constitution, Art. 4, paragraph. 4 and Art. 8, paragraph. 3 of the Charter, Art. 5
paragraph. 1 point. c) and paragraph. 3 of the Convention and Art. 9 Sec. 3 of the Covenant cancel.
Because of the obvious need for a legislative solution to the issue of detention of the suspect
consistently in the Penal Code, as well as a constitutional
way, while according to § 70 para. 1 of Act no. 182/1993 Coll.
postpones the day of enforceability of the judgment to the date of 1 July 1998.
Chairman of the Constitutional Court:
JUDr. Kessler vr
III. Dissenting opinions
Dissenting Opinion of judges JUDr. Vladimir Klokočka and lawyer. Vladimir Paula
Dissenting opinion concerns the interpretation of the term "security" in the above-mentioned
provisions in relation to the term "detention" in accordance with § 76 of the Criminal Procedure
in the matter Pl. US 2/97, which makes the 24-hour deadline laid down in Article. 8, paragraph. 3
Charter of Fundamental Rights and Freedoms unrealistic.
In our opinion, in terms of the Constitution of the Republic and other possible interpretation of the concept
"security" in the case of point. d) e) of § 14 para. 1 of Law no. 283/1991
Coll., as amended, and such which would more appropriately match
constitutional requirements and needs of life.
Come out of the way in which defines, ie.
Necessities such as the conceptual notion of "detention" recalls § 76 of the Criminal Procedure Code.
Detention is defined first as a measure which makes investigator (not a police officer
) and usually with the prior consent of the prosecutor.
Detention is further feasible only if any of the reasons
binding. Finally, the investigator who carried out the arrest, perform certain
operations which are in detention law in paragraphs 3 and other
§ 76 of the Criminal Procedure prescribed, in particular, draw up a report and submit a report
record of the communication and other charges evidence to the prosecutor. All this
so without delay, at the latest within 24 hours of detention could
Person to be handed over to the court. Detainment realizes investigator therefore
after the person was a police authority ensured (§ 14 of the Act. No.
283/1991 Coll.), Or anyone under the conditions of § 76 par. 2 of the Criminal Procedure
limited to personal liberty and handed over to investigators.
Institute "collateral" under § 14 par. 1 point. d) and e) sentiment. Act
contrast connected with the necessities that are different. Ensuring done
police officer (not the investigator), and to his surgery
does not require the prior approval of another body. Hedges writes only official
record. The police ensure it can take up to 24 hours and counting "since
moment of restriction of personal freedom" (§ 14 par. 3 of the Act. No. 283/1991 Coll., As amended
). In contrast detention period determined "within 24 hours
from this detention," ie the surrender of a person investigators.
If we understand the collateral in case of § 14 para. 1 point. d) and e), "in fact, as
detention" under sub Constitutional Court judgment no. 23/1997
Coll., or as "identical in content" (as suggested by the Supreme Court in this matter
) would mean that making full use within 24 hours
providing a policeman, and assuming that the securities
interpreted as detention, investigators left with no time limit to complete the task to
which is obligated by law, except one, namely that that would have
detainee release the person, unless properly (ie. after completion of required actions
) handed over to the court.
Also, restrictions on personal liberty "anyone" under the conditions of § 76 par. 2
Criminal Procedure Code should be construed as detention under § 76 par. 1 of the Criminal Procedure
. Whoever does not intend policeman, since "anyone" is obliged
person had been caught immediately before the investigating officer or police authority
ensure that person and when the acts involved transmit
investigators. The provisions of § 76 par. 2 of the Criminal Procedure
is substantively identical to § 127 of the German Penal Code on "preliminary arrangement"
(Vorläufige Festnahme), which also does not do deadlines and orders
person anyone had been caught immediately hand over to the police authority.
The different characteristics and the definition of "detention" and "security" in both
these laws do not see any reason, but even the possibility
interpret § 14 para. 1 point. d) and e) as "actually arrest"
according to § 76 of the Criminal Procedure Code ( "actually" means "de facto" or "de jure
"?). After our court is not a sense of emotion. § 14 demarcation
"pořádkového purpose" in isolation from the "criminal purposes", but the list
cases in which a police officer may proceed with the detention of persons. Ensuring
itself but by its nature and actions that must be met, not
conceptually identical to detention under the Criminal Procedure Code and is against him
nature of the interim measure. Reflections on the move to ensure that criminal
plane and the inference that in those cases [point. d) a
e)] statutory collateral should not be construed as collateral, but as a form
(conceptually different) detention, goes too far, because
Constitutional Court in its judgment disturb, but přeinterpretoval
provisions of the Act by replacing the legal institutions and thereby actually became more
than "negative", namely "positive" legislator.
In fact, it is a speculation on disciplinary or criminal
planes, but a constitutional guarantee is a clear definition of who, when, to whom,
under what conditions and for how long can restrict personal freedom.
From a constitutional viewpoint, it is irrelevant whether it is viewed by riot or
of criminal purpose, but whether the contested provisions are in accordance with
constitutional guarantees of personal liberty, whether minimal interference by the state, needed to achieve
generally beneficial objectives, but also whether they are
means which is set dimensions also feasible and doable
: ultra vires posse nemo tenetur.
Constitutional guarantees in the Czech Republic, but mostly in most
Institute states of the European Union formulated focusing on the case of arrest and detention case
(where some constitutions are not limited to a general statement that the limitations
personal freedom is possible only on the basis of law).
When considering the reasonableness of the time it should be noted again the principle that nobody should be forced
to what exceeds its powers and possibilities - this is as true for individuals as
state. Therefore, the time limits and the limits provided
State authorities for specific acts and specific measures that may
called "collateral" or "detention" shall be such that
Adjusting these issues in the constitutions of states of the European Union is based mostly on
accumulation periods preliminary police seizure and detention and unveils
total of 48, respectively. 72 hours for those operations that are associated with deprivation
personal freedom, and that must precede the surrender of persons to the judges decision
on detention or release. Thus, for example. According to the Austrian Constitution (Constitutional Law
from 29. 11. 1988 on the protection of personal freedom), a person may be arrested
a crime and without a court order, but no later than before the expiry of 48 hours
must be released or handed over to the court.
German Basic Law in Art. 104, paragraph. 2 states that "the police can not on their own
able to hold anyone in police custody (in Eigen Gewahrsam)
longer than the end of the day after the arrest" and ( Art. 104 par. 3) that
"... anyone who has previously been arrested on suspicion of a crime
must be no later than the day after their arrest presented to the judge ...".
If Art. 8 of the Charter of Fundamental Rights and Freedoms provides in paragraph. 3
conditions of detention and the obligation of a detainee within 24 hours
either dismiss or cast a court, there is no reason to understand the term "detention" otherwise
until it matches the particulars specified in the § 76 of the criminal Procedure
. The time limit for detention is necessary in all cases be understood as a deadline
which begins transferring a person investigators. If then the
"security" within the meaning of § 14 para. 1 point. d) and e) of the Act. no. 283/1991 Coll.
Ceased to be seen as a "detention" within the meaning of § 76 of the Criminal Procedure Code, it would be even
deadline set by these two institutes for 24 hours
counted separately. This would create the aggregate amount of time is 48 hours and secondly
period provided for in Article. 8, paragraph. 3 of the Charter of Fundamental Rights and Freedoms in the case
detention would be workable.
This could be interpreted deadlines and time limits for state authority
manner consistent with European practice, our
Charter of Fundamental Rights and Freedoms and the realistic capabilities of police and investigating authorities.
Annulment of the contested provisions of § 14 of Act no. 283/1991 Coll., As amended
, as a consequence, does not appear necessary from the viewpoint
Charter of Fundamental Rights and Freedoms, as indicated above interpretation of Article 8 || | paragraph. 3 cited Charter is constitutional. Regarding the assessment
§ 14 of the contested law with respect to the Convention for the Protection of Human
rights and fundamental freedoms, we believe that it is a law that is more
in the preceding paragraphs, paragraph. 1 (especially in point c) regulation
questionable with regard to Article 5 of the Convention, which allows for deprivation of liberty
(hence the "collateral") only in a limited number of cases exhaustively that
generally have a direct relationship only with criminal matters and in relation to §
14 of the contested Act establishes criteria to ensure stricter and more
Dissenting Opinion of Judge JUDr. Pavel Holländer
Dissenting opinion submitted to the reasoning of the judgment, which was adopted by majority vote
is based on the following grounds:
The concept of security pursuant to § 14 para. 1 point. a) to c) of the Police of the Czech Republic
serves the purpose of disciplinary measures in the field of administrative law
. In contrast, according to ensuring the point. d) and e)
cited statutory provision must be in accordance with the majority vote seen as a
Institute, which does its job in the field of criminal procedural law.
Comparison of contested provisions of the Law on the Police of the Czech Republic with § 76
tr. l. shows several differences in their positions. Detention within the meaning of §
76 par. 1 tr. r. is an institution whose application should only be considered
if the presumption is given justification of custody, but was not
condition in the case of security pursuant to § 14 para. 1 point. d) e) of the Police of the Czech Republic
Another is then the difference between the provisions of the Police of the Czech Republic and
§ 76 par. 2 tr. r. In this case, the purpose of that provision, provide
lex specialis to the facts of the crime
restriction of personal liberty (§ 231 tr. from.), and allow the public and the limitation of personal freedom
defend another crime (and under the law exactly
limited circumstances). Already on the list can be without any doubt
conclude that in any case not the norm regulating the procedure
Police (although that provision requires the person to limit the personal freedom of a person
others caught committing a crime or immediately thereafter
transmit this person immediately investigator or police authority).
It is really surprising when according to the "Report on the joint commission meeting
established police commissioner and an advisory body composed of representatives
administrations of the Police of the Czech Republic" (the content of which is filed reasoning
finding) in that provisions of the Criminal Code. r. "used the term" anyone "can legitimately interpret
so that it may be the policeman." Adoption interpretation
contained in this report and will undoubtedly commonly applied in practice would mean
several absurd consequences. The first is to instruct the legislature
in detention according to the cited provisions of the Criminal Code. l.
police authority to pass a detainee to another law enforcement agency. In the case of healing
result of this absurd interpretation (ie. The consideration that in the case of detention
according to § 76 par. 2 tr. L.
Police handover police body is filled with very act of detention) started the second ludicrous | || consequence, that interpretation can not be remedied. This is a requirement to transmit
Detainee investigators and the subsequent counting deadline
detention. We should in fact twofold detention: the first police authority and
second investigator (with whom he would probably have been linked
start passing the 24-hour deadline). But this would lead to the possibility of opening direct and barely controllable
violations of the Charter of Fundamental Rights and Freedoms (
"Charter"). Another reason for the refusal to relate § 76 par. 2 tr. l.
on police procedure is constitutional maximum, contained in Article. 2. 2 of the Charter, under which
powers of state bodies and the procedure for its implementation is
legislator explicitly obliged to adapt and in any case this is not
infer interpretations. Speculative interpretation of § 76 par. 2 tr.
R., Applied in police and judicial practice is reminiscent
sophistical meditation, solving logical pun famous Bertrand Russell
a village barber.
I think that, therefore, ensure that the institute according to § 14 para. 1 point. d) and e)
Act on the Police of the Czech Republic allows police authorities
restriction of personal freedom if caught while committing a crime or, in the case
suspicions of his preparation, attempt or commit fraud, as opposed
from detention under § 76 par. 1 tr. r. regardless of the reasonableness of the bond.
The explanatory memorandum to § 14 of the Police of the Czech Republic, as well as ruling in
published under no. 10/1995 Collections judgments and opinions
contains a legal opinion, according to which the detention period can not be counted towards
the period of detention. Said legal opinion, as I have already mentioned
fully corresponded (resp. Continue to correspond) and the police,
respectively. judicial practice. The opposite opinion expressed by the Constitutional Court in its judgment
no. 23/1997 Coll., When it said that the opposite approach than counting
detention periods to periods of detention to ensure respect according to § 14 para. 1
point. d) e) of the Act on the Police of the Czech Republic and detention under § 75, 76
tr. r., it is in conflict with Art. 8, paragraph. 3 of the Charter.
Charter Article. 8 par. 3 obligation when deciding to remand in custody
surrender a person suspected of committing a crime within 24 hours from its
trial detention (or released).
The Charter also contains authorization lawmakers to legislate reasons
restriction of personal freedom (Art. 7, paragraph. 1, Art. 8, paragraph. 2 of the Charter).
Legislature specified the authority exercised establishment of a series of legal institutions,
pursuing various purposes, including institutes hits,
Detainment, jejž Charter binds to institute custody must be in relation to those cases
restriction of personal freedom to interpret the provisions within the meaning
special. Hence the impossibility for lawmakers
extend the period of deprivation of liberty, which precedes surrender
detainees court to make decisions about her remand in custody over
limit of 24 hours (extension of this period is the exclusive disposal || | framers of the constitution and is ruled by law be changed or interpretations).
If we accept the conclusion that the limit of 24 hours preceding the submission
detainees court can not change the law or interpretations
we are confronted with the following questions. If it is constitutionally precluded
aggregating periods of detention in accordance with § 14 para. 1 point. d) e) of the Act
On the Police of the Czech Republic, can be achieved through interpretation (as it did
Constitutional Court judgment no. 23/1997 Coll.), Or by way of derogation?
Constitutional Court in a number of its decisions (Pl. US 48/95, Pl. US 5/96, Pl. US 21/96
and others) accepted the proposition that in a situation where certain provisions
the legislation allows two different interpretations, with one
is consistent with constitutional laws and international treaties under Article
. 10 of the Constitution and the other is inconsistent with them, there is no reason
repeal this provision. When the application is for the courts to interpret the provisions
Also first six judges dissenting opinion to the judgment in the matter
under file. Nos. Pl. US 4/95 opined that "
can generally say that a certain vagueness (one)
provisions of a legal regulation must be considered inconsistent with the requirement of legal certainty, and therefore
law (Art. 1 Constitution), only if the intensity
this uncertainty precludes an assessment of the normative content of the provision
and using customary interpretive approaches. "
This view was subsequently accepted by a majority vote and applied in the reasoning of the judgment in
matter file. Nos. Pl. US 9/95. Was applied while a viewpoint
which in this case led to the conclusion that there is a meaningful and constitutionally conforming interpretation
alternatives and thereby rejecting the application for
annulment of the statutory provisions.
In the proposal to repeal § 14 par. 1 point. d) e) of the
Police of the Czech Republic, the court found itself between Scylla differentiate dual
interpretations, one of which conform to the Constitution and second constitutionally contradictory
and Charybdis rejection distinct constitutionally consistent interpretation
alternatives to which one can arrive at the usual interpretive methods.
If the Constitutional Court in its decision no. 23/1997 Coll. He received a legal opinion
under which limit collateral under § 14 par. 1 point. d) e) of the Police of the Czech Republic
empathize in the period of detention and did not interrupt proceedings
matter of the constitutional complaint under § 68 par. 2 of Act no. 182/1993 Coll.
expressed the belief in the possibility deal with the matter under adjudication
constitutionally conforming interpretation. Its content is an interpretation of the detention
contained in the Charter, in the sense that it is a restriction of personal freedom
in connection with suspicion of committing a crime, the police conducted
(either alone or with his consent
state representative) that precedes the person submitting the court for the purpose of deciding on its
The Constitutional Court decision and its justification, against whom directed
this dissenting opinion (even following the judgment Pl. US 18/96
which, after a series of discoveries, annulments general court decisions
grounds of unconstitutional interpretation of the Code of Civil Procedure § 250f., the Constitutional court approached
its cancellation), I see the expression of skepticism about the readiness of the general courts in applying laws
seek out and solve their issues
constitutionally conforming interpretation, understand Institute as an immediate source of law
also containing interpretative principles of abstract and often vague, sometimes
not exactly worded legal provisions.
Unlike the majority Vota I share the view expressed in Decision No.
23/1997 Coll., In the part of that justifies including deadlines
security pursuant to § 14 para. 1 point. d) e) of the Police Act
Czech Republic in the period of detention. Beyond the arguments contained therein
I point out the different purposes of the two institutes of criminal law, ie. To institute meaningful
security pursuant to § 14 para. 1 point. d) e) of the Police of the Czech Republic
if he is not given any reason for custody.
The contested provisions of the constitutional laws and international treaties under Article
. 10 of the Constitution because I see their inconsistency with Article.
8 paragraph. 3 of the Charter, but the principles of the rule of law which finds its expression
among others, the requirements for internal coherence
legal order and its certainty and clarity (Art. 1 of the Constitution).
He has quoted the opinion of the Constitutional Court, according to which "a certain vagueness
(one of) the legal provisions must be considered inconsistent with
requirement of legal certainty and, therefore, the rule of law (Art. 1 of the Constitution) || | only if the intensity of that uncertainty rules out possibility
Determining the normative content of that provision by the usual
interpretive approaches. "
Vagueness legal provisions is the reverse side disallowance requirement
legal terms, as well as the requirements of legal stylistics. The doctrine of the legal requirements
terms yet ranks linguistic accuracy, professional, legal
therefore accuracy, clarity, precision, stability and clarity
(see p. Luby, theoretical questions of legal terminology in normotvornom
process, Lawyer, n. 8, 1874 pp. 728; Schneider, Gesetzgebung, 2nd
edition, Heidelberg 1991, p. 247 et seq.).
requirement of clarity in legal terminology, ie.
constant use of legal terms, lies in the expression a concept
same name (or exclusion in synonymy), and vice versa, in conjunction certain
name is always the same term (or excluded in hononymie and polysemy).
However, this requirement can not be understood, and its fulfillment require absolutely .
legislative practice, for example, knows the admissibility of cases polysemy.
In such cases, however, must be the context of the use of the term also evident
its semantic difference.
In view of these considerations can be accepted terminology distinguish
institute of detention in the criminal process in relation to detention (
reflecting their semantic difference) that a shift in purpose, in the sense
emergence of detention reasons must empathize detention period until
detention. Acceptability of such differentiation interpretation, however, requires
as previously stated, the context of clarity and definiteness used
The absence of clear context, allowing without any doubt
establish a relationship institutes and ensure detention in a criminal trial,
I see the fragmentation of criminal regulation of the Criminal Procedure Code and the Police Act to
Czech Republic. Arbitrariness legislature regarding the formation
system of law, and the resulting inclusion of rules on the legal institutions of
one legal branches in various different sectoral legislation
rights, and therefore in a different context, may create uncertainty and ambiguity legal
regulation. This applies to an increased extent if the legal institutions
constitute legal regulation restricting fundamental rights and freedoms, in addition
in the area of criminal law. The certainty, respectively. Uncertainty
linguistic resources, the contested provisions also do not meet the requirements
legal terminology. Does not fulfill the requirement of professional
correctness (in the process of ensuring we can not talk about being caught committing a crime
, but only about getting caught in the act founding
suspicion of committing a crime), and fulfill the requirement of clarity (and
this in term forensically verifiable information).
These arguments lead me therefore to conclude that, contrary to § 14 paragraph
. Point 1. d) e) of the Act no. 283/1991 Coll., on the Police of the Czech Republic,
amended by Act no. 26/1993 Coll. with Art. 1 of the Constitution, and the justification of their