In The Case Of A Proposal To Repeal The Provisions Of The Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení ustanovení trestního řádu

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=51060&nr=77~2F2001~20Sb.&ft=txt

77/2001 Sb.



FIND



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,



as follows:



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the Court (code of criminal procedure), as amended, is repealed on the date of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



Justification



(I).



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

compensation '].



II.



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.



III.



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.



IV.



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

This issue.



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.



In the.



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 formal.



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.).



VI.



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

conclusions.



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.