The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled on 31 December 2004. January 2001 in plenary on the proposal to repeal section
paragraph 44. 2 Act No. 141/1961 Coll., on criminal court proceedings (the criminal
regulations), as amended,
The provisions of section 44, paragraph. 2 Act No. 141/1961 Coll., on criminal proceedings
the Court (code of criminal procedure), as amended, is repealed on the date of
the announcement of the award in the collection of laws.
A regional court in Prague in the resolution of the criminal case of the defendant L. W.
He has refused under section 44, paragraph. 2 Act No. 141/1961 Coll., on criminal
judicial proceedings (code of criminal procedure), the participation of victims-Komerční banka, Bank
Bohemia, M. No, Ing. R. v. and the complainants n. k.-the main version.
In this resolution, the regional court in Prague in particular stated that
The Regional Prosecutor in Prague handed to l. s. impeachment for four
the offences of fraud under section 250, paragraph. 1 and 4 of the criminal code, which
He had a let-among other things-that's the view of 25 June. 3. the 1993
borrowed amount Czk 25 000 against the promise to ensure the loan by stopping it
acquired of land in the cadastral territory of Karlovy Vary. However, this loan
failed and the land eventually gave up Agrobance, and s. Příbram to
securing other loans.
However, because the resolution of the regional commercial court in Prague from March 8. 11.
1996, SP. zn. 92 to 39/96, in conjunction with the resolution of the High Court in Prague
on 2 December. 4.1997 SP. zn. 4 Ko 396/96 was on the debtor's assets L. W.
bankrupt and their claims in bankruptcy proceedings in a position
bankruptcy creditors signed up all the listed damage, admits
A regional court in Prague, their participation in the trial with regard to section 14
Act No. 328/1991 Coll., on bankruptcy and settlement, as amended
regulations. [Note: the provisions of article 14, paragraph 1, point (b) (c)) of the law on
bankruptcy implies-inter alia-the management of claims
relate to the assets belonging to the estate or to be
satisfied from this asset, which is bankrupt,
interrupt, except as to the criminal proceedings, "in which, however, cannot decide on the
In the constitutional complaints against the abovementioned resolution the plaintiff in particular
argued that it was violated her constitutional rights resulting from the article. 36
paragraph. 1, article. paragraph 37. 3 and article. paragraph 38. 2 of the Charter of fundamental rights and
freedoms (the "Charter") and of the article. 1 of the Constitution of the Czech Republic (hereinafter referred to as
"The Constitution"). To the unconstitutionality of said there has been "as a result of the provisions of § 44
paragraph. 2 of the code of criminal procedure ", which is referred to the provisions of the Charter and
In violation of the Constitution.
The plaintiff in the first instance, pointed to the provisions of section 43, paragraph. 1 of the criminal
the order, according to which the one was a criminal offense to harm the health,
due to property, moral or other damage (damaged), has the right to
make suggestions on additional evidence, inspect documents, attend
the main version and a public meeting held on appeal and before
end of the trial to comment. In accordance with paragraph 2 of the same provision
is damaged, be entitled to also propose that the Court in convicting judgment
accused an obligation to compensate the damage. According to the (contested)
the provisions of section 44, paragraph. 2 of the code of criminal procedure in proceedings for offences
belonging to the jurisdiction of a regional court will decide on the participation of
a corrupted Court depending on the nature of the case.
From any of the provisions of the code of criminal procedure apparently could not determine why the law
"it allows a court in matters belonging to the jurisdiction of a regional court
any way to make decisions and nepřezkoumatelným about whether to admit,
or incur the participation of the victim in criminal proceedings, which happens without
any predetermined criteria for such decisions, in addition
without the possibility of appeal "(article 141, paragraph 2, of the Criminal Code).
The plaintiff in the contested provisions sees a
inconsistency, since the ability to prevent the participation of the damaged covers
only proceedings before the regional court after the filing of the indictment, while the
indictment cannot restrict the rights of the injured party.
The plaintiff admits that pursuant to § 14 paragraph. 1 (a). (c)) of the law on
bankruptcy and settlement (NB: the regional court in the contested resolution
did) after the Declaration of bankruptcy cannot be used in criminal proceedings, decide on the
compensation, however, "these restrictions shall in no way affect the other rights,
the injured party in accordance with section 43, paragraph. 1 of the criminal procedure code, which, in such a
the decision shall remain unaffected ". Rights under this provision, namely the
It is for each injured party, regardless of whether it could be
a claim for compensation. So even if the injured party does not make a claim for
the damages, the Court must be given the full process option (cf..
Proceedings of the NS No. II/62, R 8/74 Coll. tr. r.).
The contested resolution the Regional Court allegedly does not contain any compelling
the reasons for which would damage things meant to be unable to exercise the rights
referred to in the provisions of section 43, paragraph. 1 of the criminal procedure code, and in addition, for the
the situation, when the law this decision excludes the possibility of review by the Court
a higher level on the basis of a proper appeal.
Therefore, the plaintiff suggested that referred to the resolution of the regional court in
Prague was cancelled, and at the same time proposed and the repeal of section, paragraph 44. 2 of law No.
141/1961 Coll., the criminal procedure code, as amended.
Pursuant to section 74 of the Act No. 182/1993 Coll., on the Constitutional Court, can be combined with
constitutional complaints filed the proposal to repeal the law or other legal
Regulation or their individual provisions whose application
occurred, which is the subject of the constitutional complaint, if
According to the complainant's allegations are inconsistent with the constitutional law or
international agreement under article. 10 of the Constitution, respectively. the law, if it is
on other legislation.
Due to the fact that the plaintiff along with constitutional complaints filed by
This legal provision and the proposal to repeal the provisions of section 44, paragraph. 2
the criminal procedure code, and that the application of this provision, the occurrence of the event
that is the subject of the constitutional complaint, the Constitutional Court under section 78, paragraph. 1
Act No. 182/1993 Coll., on the constitutional complaint procedure was interrupted, and the proposal on the
the repeal of this provision of the law to the plenum of the Constitutional Court stepped
the decision referred to in article. paragraph 87. 1 (a). and) of the Constitution.
The proposal to repeal the legal provisions of a party to proceedings is expressed,
which is in accordance with § 69 paragraph. 1 of law No. 182/1993 Coll., the Chamber of Deputies
Parliament of the Czech Republic, which stated that under section 44, paragraph. 2
the criminal procedure code would be the regional court-in practice-not accept damaged
to control the only important reason, for example. If it is necessary in the interests of the protection of
classified information, or if this is the case, in which they can be hundreds of
or the thousands of victims, and should respect all procedural
victims ' rights disproportionately more difficult or to frustrate the progress of the entire
the criminal proceedings. Specific problems with the application of that provision in the
the practice is apparently aware of the Government, in its proposal for the amendment of the criminal
regulations proposed to be repealed the restrictions relating to the participation of
the injured party in the cases in the first instance by the District Court.
Under this proposal would be that the restriction could be decided only in the
procedures with an exceptionally high number of victims, where they damage
to be able to exercise their rights only through a limited number of
common agents. Therefore, the Chamber of Deputies admits that the contested
the provisions of the "requires some changes", which should, however, be
made up in following up on the adoption of appropriate new legislation
The provisions of section 44, paragraph. 2 of the code of criminal procedure was provided for in the communication of the
the Chamber of Deputies approved the required majority of the members of the legislature,
the law was signed by the respective constitutional actors and was duly announced
in the collection of laws.
In conclusion, the House of Commons States that it is up to the Constitutional Court, in
the context of the examination of the proposal for the abolition of that provision has assessed the
its constitutionality and issued the relevant decision.
Pursuant to section 48, paragraph. 2 and § 49 paragraph. 1 of law No. 182/1993 Coll. asked
The Constitutional Court on the proposal for a Ministry of Justice-
the Legislative Department. The Ministry said that their proposal to the plaintiff
repeal of section, paragraph 44. 2 of the code of criminal procedure did not justify closer, so he says "can be
to this general statement to respond only that section, paragraph 44. 2 of the criminal
the order is not with those articles of the Charter, in violation of, and is not contrary to article even.
1 of the Constitution ". Adhesion control is part of the criminal proceedings and the
in it, the claim of the injured party against the defendant for damages caused by
a criminal offence. The essence of the complaints is that the sufferer
can apply their claims for damages in criminal proceedings and the Court
This claim may admit or damaged to refer to proceedings in matters
civil, not, however, entitled to refuse. Therefore, if the Court
under section 44, paragraph. 2 of the code of criminal procedure, shall decide on the participation of the injured party
No, not while the damaged already in another act as
the party, however, does not prevent it in any way in the exercise of the right to compensation for damages in
civil or other proceedings. The victim is still in full
to the extent retained the right to pursue its right to set procedure for
an independent and impartial tribunal in accordance with article. 36 of the Charter and is maintained
also the equality of parties to the proceedings (article 37, paragraph 3, of the Charter) and the principle of
to the public (article. paragraph 38. 2 of the Charter). Therefore, the Ministry of
Justice considers that the proposal to repeal section, paragraph 44. 2 of the code of criminal procedure
It is not reasonable.
Even before the Constitutional Court dealt with the examination of the proposal, meritorně,
focused on the question of whether it made any assumptions after
The Constitutional Court found that, in the present case, the reason was given to start the
the management of the so-called. specific control standards within the meaning of the provisions of § 64 paragraph.
1 (a). (d)), in conjunction with the provisions of section 74 of the Act No. 182/1993 Coll., as
contested statutory provisions was in the matter of the general courts actually
applied, therefore, his application of the occurrence of the event which is the subject
the constitutional complaint. The Constitutional Court also found that, in the present case was
the law issued before the Constitution became effective, and that he therefore
It is not for to review the constitutionality of procedures and compliance with the
regulatory powers, but only its content conforms to the contemporary
the constitutional order (see the resolution of the Constitutional Court, SP. zn. PL. ÚS 5/98
A collection of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 14, p. 309, or
the finding of the Constitutional Court No. 261/2000 Coll.).
The Constitutional Court notes that nothing prevents him in discussion and meritorním
the merits of the decision.
1. The appellant submits that the contested provisions of section, paragraph 44. 2 of the criminal
the order is in conflict with article. paragraph 36. 1, with the article. paragraph 37. 3, with the article. paragraph 38. 2
Of the Charter and with the article. 1 of the Constitution.
Article 36 paragraph. 1 of the Charter provides that everyone may sue laid down
the procedure of its right to an independent and impartial court and in specified
cases with another authority. Article 37, paragraph. 3 of the Charter provides that the
all participants are equal in proceedings. Article 38, paragraph. 2 of the Charter of
says that everyone has the right to make his case was discussed publicly, without
undue delay, and in his presence, and to express to all of the
carried out by the evidence. The public may be excluded only in cases
laid down by law. Article 1 of the Constitution says that the Czech Republic is
a sovereign, unified and democratic legal State, based on respect for
rights and freedoms of man and citizen.
The Constitutional Court therefore concentrated on the question whether the contested provisions of section
paragraph 44. 2 of the code of criminal procedure is not stated in the constitutional kautelami
conflict. In this context, considered it necessary to deal with-at least
in the basic features-the question of the status of the victim in criminal proceedings, and
the purpose of the contested provisions of section, paragraph 44. 2 of the code of criminal procedure.
2. A) in this respect, the Constitutional Court notes in the first place, that the contested
provision allows a court in proceedings for offences pertaining to
the jurisdiction of the District Court to decide on the participation of the injured party in accordance with
the nature of the case. While crimes belonging to the
the jurisdiction of the District Court, defines the code of criminal procedure (section 17) as such
the offences for which the law stipulates a penalty of deprivation of liberty, whose lower
the border is at least five years, or for which you can save an exceptional punishment.
Of the crime of terror, sabotage, sabotage, and crimes
According to the law on the protection of the peace takes place in the first instance by the district court proceedings and
then, if the lower limit of the lower penalty. It is therefore clear that the procedure for
the crime belonging to the jurisdiction of a regional court covers
those criminal acts, which can characterize the higher degree of
social hazard. Against the decision of the nepřipuštění participation
the injured party in criminal proceedings is not admissible complaint (cf. § 141
paragraph. 2 of the code of criminal procedure and the other).
(B)), the Constitutional Court further donated-with regard to the contested provisions
the criminal procedure code-custom the position of the injured party in criminal proceedings. In
this direction is to determine in particular the provisions of section 43 of the criminal code, which
the injured party is defined as a person that was a criminal offense to harm the
health, caused by the property, moral or other damage. The sufferer has
the right to make suggestions on additional evidence, inspect documents, attend
the main version and a public meeting held on appeal and before
end of the trial to comment. Damaged, which in accordance with the law
against the accused is entitled to damages, that he was a criminal offence
caused by, is entitled to propose to the Court also in the convicting judgment
accused an obligation to compensate the damage. In addition, the criminal
the prosecution of certain offences listed exhaustively and can start already
to initiate criminal prosecutions continue only with the consent of the injured party,
While consent to criminal prosecution can corrupt the express
the Declaration take any time back, and it's up to the time before the Court of appeal
Removes the final consultation (Section 163a of the Criminal Code).
(C)) the concept of the criminal proceedings in the Czech Republic-on the status
damaged-comes from the fact that the victim is a separate party
management with a fairly broad procedural rights (section 12 (6) of the criminal
the order). It should be noted that the sufferer does not lose its
position in criminal proceedings that he has already been fully replaced by pity
(for example, before the start of the prosecution or in its course), and the concept of
the injured party is therefore broader than the concept of subject complaints, for
includes such injured party, who is not entitled to make a claim on the
compensation for damages in criminal proceedings. Although adhesion procedure in which
to discuss the claim of the injured party to damages, it is part of the criminal
management and merges with him (cf. Samal/King/Baxa/Púry: the code of criminal procedure-
comment 1. vyd., c. h. Beck, 1995, pp. 171 et seq.), it is possible to make
partial conclusion that procedural rights of the injured party, as parties to the criminal
proceedings, which only the right to compensation for damages.
Comment to the contested provisions of the code of criminal procedure lists (cit., str.
185) that the reasons for allowing the District Court to decide on the nepřipuštění
damaged-and therefore the sense of the provisions of section 44, paragraph. 2 of the code of criminal procedure-
may consist, for example. in fact, that in matters of management of the State
the secret, it is a serious, complex and extensive criminal case, where the
deciding on compensation may not exceed the framework of the purpose of the criminal
the prosecution, or where a regional court may have difficulty with the service with a view
the large number of victims, who are as foreign natural persons
nationals or foreign legal persons, which could
violate the principles of speed control, etc.).
2. On the basis of the above solutions have reached the Constitutional Court, the following
And the Constitutional Court) in its considerations based primarily from the fact
the position of the injured party is differently regulated in criminal proceedings
deeds belonging to the jurisdiction of a regional court over control of the
the crime belonging to the jurisdiction of the District Court. If
in the first case, the District Court has, under the provisions of section 44, paragraph. 2
the criminal procedure code the possibility of the participation of the victim in criminal proceedings
choose "according to the nature of the case", in criminal proceedings
offenses in the competence of the District Court of the criminal procedure code the Court of such
the power to confer. The diversity of the status of the victim in proceedings before the
referred to the courts-in this direction-the Constitutional Court shall not be considered for
reasoned and meaningful, as well as in proceedings before the regional
the Court may also, in the proceedings before the Court the district occur such as. the fact that the
It matters of State secrets, this is a serious,
the complex and extensive criminal case, where the decision on compensation may
going beyond the purpose of criminal prosecution or the Court may have difficulty
When the service having regard to the large number of victims, who are as
natural persons of foreign nationals or foreign legal
persons, which could lead to infringement of the principle of speed control, etc.
Mainly for this reason, the Constitutional Court came to the conclusion that the contested
the provision is unconstitutional because, in effect, raises
an unjustified inequality of the parties in the implementation of their rights in the
the proceedings before the district and regional court. This violates article. 1 and article. 3
paragraph. 1 of the Charter in conjunction with article. paragraph 36. 1 of the Charter.
(B)), the Constitutional Court also arose from the fact that the sufferer is in accordance with the legal
adjustments to the criminal proceedings, the Czech Republic, a separate party with
fairly extensive procedural rights, which are not limited to the right to
compensation for damages. It follows from this that has the right to participate in criminal proceedings
and in its context to apply the procedural rights as defined by the criminal procedure code.
The provisions of section 44, paragraph. 2 of the code of criminal procedure gives the District Court have the right to
the participation of the injured party to decide, "according to the nature of the case".
Although in a particular case may certainly be situations where participation
a damaged (corrupted) in criminal proceedings may indeed threaten
its sense of itself and lead to negative consequences, it is not possible-from
the constitutional terms-without doubt fully accept such
the statutory scheme, which allows district courts to decide on the
non-participation of the victim in criminal proceedings and in those cases,
When the participation of any of the purposes of criminal proceedings cannot be compromised.
Indeed, the fact cannot be overlooked that the resolution, which is
the County Court shall be empowered to decide about the injured party cannot be nepřipuštění
to file a complaint, and this resolution is therefore nepřezkoumatelné.
And this circumstance-in the opinion of the Constitutional Court-determined by the unconstitutionality
the contested provisions of the code of criminal procedure.
If it is according to the article. 1 the Constitution of the Czech Republic, democratic
the rule of law, it means that-among other things-that its legal order to correspond with the
the principle of foreseeability of the consequences of the law and its certainty and
clarity. Only such a law, for which the consequences can be clearly
predict, is referred to the concept of democratic
State. In the case of the provision of section, paragraph 44. 2 code of criminal procedure, however, compliance with the
the principle of predictability in the law is not indisputable, since this
provision allows the regional court to decide on the participation of the nepřipuštění
the injured party in criminal proceedings, practically without any closer
specified criteria. A potential risk is exacerbated by the fact that the relevant
the decision is not reviewable by a Court of higher instance. The unconstitutionality
the contested provisions therefore sees the Constitutional Court and that it violates the
the right of the injured party (as parties and thus a participant of criminal proceedings) to
a fair trial according to the article. paragraph 36. 1 of the Charter. An undisclosed
exclusion options, participation in the management of the injured party is also violated by
the constitutional principle of the equality of the parties in accordance with article. paragraph 37. 3 of the Charter of
and in its consequences also article. paragraph 38. 2 of the Charter guarantees to everyone,
to make his case was discussed in his presence, and to be able to express
all carried out by the evidence.
(C)), the Constitutional Court also could not overlook (and in its comments to the draft
Indeed, it highlights and Chamber of Deputies), and the Government of the Czech
Republic-being aware of the shortcomings seem to the provisions of section 44, paragraph. 2
criminal procedure-in the framework of the draft amendment to the criminal procedure code submitted
The Chamber of Deputies (print no 383) the new wording of this provision
in this diction: "If the number of victims Is extremely high and the individual
the exercise of their rights, could be vulnerable to the rapid progress of the criminal
the prosecution of the Chairman of the Board and shall decide, in preliminary proceedings, on a proposal from the
Prosecutor judge that can damage their rights in the criminal
control apply only through a common agent, which
they choose. Shall notify the decision in proceedings before the Court and, in preliminary
proceedings, the State representative of the victims, who have already raised a claim for
the damage; the other victims of the decision shall be notified when the first act of the criminal
the proceedings, which shall be summoned or which is vyrozumívají. In
management must not appear more than five common agents of damaged.
Common agent exercises the rights of victims, which he represents, including
a claim for damages in criminal proceedings. " It is therefore clear
the Government proposal was deleted in the above mentioned constitutional
the shortcomings of the existing text of article 44, paragraph. 2 of the code of criminal procedure.
The Constitutional Court, if the quoted provisions unconstitutional and finds from
for this reason, it is deleted, and therefore the legislative trend in this
area. It cannot change anything, nor the fact that the Government's proposal for the House
the Chamber of Deputies did not approve.
For these reasons, the Constitutional Court, the provisions of section 44, paragraph. 2 of the code of criminal procedure
for its conflict with article. 1 of the Constitution and with article. paragraph 36. 1, with the article. paragraph 37. 3 and with the
article. paragraph 38. 2 the instrument on the date of its publication in the journal of laws.
The President of the Constitutional Court:
JUDr. Kessler v. r.
Under section 14 of Act No. 182/1993 Coll., on the Constitutional Court, have taken to
the decision of the judges of the different views. Vlastimil Sevcik and JUDr.
Pavel Param V.