In The Matter Of An Application For Annulment Of Parts Of The Criminal Code And The Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení částí trestního zákona a trestního řádu

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=63023&nr=434~2F2006~20Sb.&ft=txt

434/2006 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled the day 3. May 2006 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Vladimir Crust, Dagmar Lastovecká, Jiří Mucha, Paul

Rychetský, Miloslav Výborný, Elisabeth Wagner and Michael on April

the proposal of the Group of members of Parliament of the United Kingdom

and a group of Senators Senate of the Parliament of the Czech Republic to repeal section 21

paragraph. 2 of Act No. 140/1961 Coll., the criminal code, as amended, and on the

repeal of section 403 paragraph 1. 2, section 411 paragraph. 6 (a). (e)), section 411 paragraph. 7 and § 412

paragraph. 2 Act No. 141/1961 Coll., on criminal court proceedings (the criminal

of procedure), as amended,



as follows:



The proposal to repeal section 21 para. 2 of Act No. 140/1961 Coll., the criminal code, in the

as amended, and to repeal section 403 paragraph 1. 2, section 411 paragraph. 6 (a). e), §

paragraph 411. 7 and § 412 paragraph. 2 Act No. 141/1961 Coll., on criminal court proceedings

the Court (code of criminal procedure), as amended, is rejected.



Justification



(I).



The definition of things and a recap of the proposal



1. The Constitutional Court was on 26. November 2004 served group

members of the Chamber of deputies of the Czech Parliament and groups

Senators Senate of the Parliament of the Czech Republic (hereinafter referred to as "appellants") on the

cancellation in the provisions of the criminal procedure code marked headers ("tr.

regulations ") and of the Criminal Code (" tr. ") for the date of publication of

the finding in the journal of laws.



2. In the introductory part, the appellants have summarized the reasons and circumstances of the adoption of the above

marked with the legislation. The provisions of § 21 para. 2 of the criminal code was

adopted the amendment of the Act No. 537/2004 Coll. and the provisions of § 403 paragraph 1.

2, section 411 paragraph. 6 (a). (e)), section 411 paragraph. 7 and § 412 paragraph. 2 of the code of criminal procedure

his amendment was adopted no 539/2004 Coll. pursuant to the appellants are as follows

provision (hereinafter ' the contested provisions ') in breach of article. 1, art. 4

paragraph. 2, article. 14. 4 and article. 39 of the Charter of fundamental rights and freedoms (hereinafter

also the "Charter"). Those amendments was in the Czech legal order

implemented the so-called. "European arrest warrant", in accordance with the framework

by decision of the Council of the European Union no 2002/584/JHA of 13 June 2002 6.2002

the European arrest warrant and the surrender procedures between Member States.



3. The appellants pointed to the fact that the Czech Government initially

States, together with the suggestions of the above novel, proposed also

the amendment to the article. 14 of the Charter by inserting a paragraph of the fifth, which had read:

"A citizen can be passed to a Member State of the European Union to the criminal

prosecution or imprisonment, if it is apparent from the

the Czech Republic's commitments as a Member State of the European Union, which cannot be

limited or excluded. " Proposal for an amendment of the Charter was the Chamber of Deputies

rejected 2 June 2006. April 2004. Were then referred to the amendment to the Act and tr tr.

regulations adopted by the Chamber of Deputies and the President of the Republic against the veto,

who argued their protiústavností.



4. According to the contested provisions can be passed to a citizen of the United States

abroad (i.e. in a Member State of the European Union) for the purpose of

criminal prosecution, which is apparent from the reasons hampering exhaustively defined

the surrender of the requested person referred to in section 411 paragraph. 6 (a). a) to (e))

the criminal procedure code. Among these reasons not stated that the reason for

refusal of surrender of the person was the fact that it is a Czech citizen.

The fact that a Czech citizen may be issued in another EU Member State,

It follows, in addition to § 21 para. 2. law and § 403 paragraph 1. 2. the order, whether or not

the provisions of § 411 of paragraph 1. 6 (a). (e)) and § 411 of paragraph 1. 7. the order, even if

indirectly. These provisions represent a derogation from the obligation to issue

citizen to another EU Member State. At the same time, however, from these provisions

using the argument that the Court contrario always meet requests for

the handover of the Czech citizen if demand is to be passed to the

of another Member State for the purpose of criminal prosecution.



5. the marked provisions are therefore in breach of article. 14. 4 of the Charter,

According to which the citizen must not be forced to leave their homeland. The prohibition referred to

in this article of the Charter is clear and unconditional. The right of a citizen not to be

forced to leave their homeland is a fundamental right, that is, within the meaning of

article. 1 of the Charter, an unwaivable, inalienable, and nepromlčitelné

non-cancelable. It is therefore not a citizen has no way to dispose of. The Charter

does not allow that fundamental right is restricted by law. This was agreed and

the explanatory memorandum to the proposed Charter amendment, rejected by the

Deputies of the Parliament of the United Kingdom on 2 February 2005. 4. in 2004, as above.

The appellants have pointed out the fact that the Government of the United States, as

the submitter of the amendment to the criminal law and the criminal procedure code, changed its

the argument then, what was her proposal for the amendment of the Charter should be rejected.

Only since April 2004, the Government began to argue with the fact that the amendment of the Charter

There is no need, as presented by the amendment to the criminal codes of both with her

are not in conflict.



6. According to the appellants ' compelled the citizen to leave his country, within the meaning of

article. 14. 4 of the Charter, it is out of the context of a similar nature, which is

expulsion of aliens within the meaning of paragraph 5 of the same article. In both cases, the

This is done against the will of the person concerned. The result of this intervention by the State is

In addition, the prevention of the entry of the citizen on the territory of the Bohemian State, which is another

the right which the Charter explicitly confers on citizens (article 14, paragraph 4, sentence

the first of the Charter). According to the plaintiffs, it is necessary to use the "argumentum and

Minori ad maius ". If the Charter prohibits forcing a citizen to leave the

country, which can understand at least the indirect forcing (indirect compulsion), the

rather, it prohibits its transfer, which is a compelling urge direct resources, IE.

through forced restrictions on freedom in the forward link and then

by passing the authorities of the Member State of the EU.



7. The appellants take issue with the interpretation of the Charter, which justify the constitutional

konformnost the contested provisions of the then Minister of Justice to.

Robin on his appearance in the Chamber of Deputies. According to him, it was

the purpose of the article. 14. 4 of the Charter, to prevent the authorities of a State to be able to develop on the

the individual pressure to leave the Republic, as was the case with the so-called.

"Redevelopment". According to the plaintiffs, it is necessary to search for an objective sense article.

14. 4 of the Charter, which is independent of the historical themes of acceptance

This adjustment. Is incorrect based on historical themes, the legislature,

but on the contrary, it is to be acknowledged, "from the text of the law, which alone can be

support for objective intentions about the meaning and purpose of legal norms, even in

the changing social context. ".



8. From the point of view of the constitutional law contested by editing the violation occurs

státoobčanského of the relationship between State and citizen. In this context,

the appellants referred to the finding of the Constitutional Court, published under no.

207/1994 Coll., according to which a citizen has the right to protection by the State. With

by the contested provisions are contrary and any modification of this

the principle would be possible only in the plane of constitutional, not just legal.



9. the prohibition of extradition of their own citizens abroad is, according to the appellants '

the general principle that is recognized in the States of the European Union, which

kindly quote the relevant constitutional provisions in several Member States

The EU. The solution is particularly illustrative of the Slovak, where no amendment to the Constitution

90/2001 Z.z. has changed the original provisions of article. 24 paragraph 2. 3 of the Constitution of the Slovak

States, so that from his body ("every citizen has the right to a free input

on the territory of the Slovak Republic. A citizen can not be forced to leave

It is not possible, expel or extradite to another State. ") has been dropped

the words "or issue to another State". The constitutional change was also in Germany

or in France. Comparatively speaking, therefore, it follows that it is not possible

break the principle of the protection of the State's citizens and to transmit them to the criminal

control to the State of the EU without a constitutional amendment.



10. According to the appellants, the contested adjustment is (ESP. § 412, paragraph 2 the tr.

procedure) also in breach of article. 39 of the Charter, according to which: "just the law

provides that the offence is a crime and what penalty, as well as other

harm to the rights or assets, may be a criminal offence save. ". The provisions of the

§ 412 paragraph. 2. order takes literally edit article. 2 (2). 2 of the framework

the decision, according to which there is for the listed offences for

transfer of the person to the criminal proceedings abroad does not require double-sided

criminalisation. The appellants allege that the adjustment thus conceived (in addition to the

the name) in no way these offences does not define. It will therefore be possible to Czech

National was passed to the criminal prosecution abroad without it was

pass for an act that would have been a crime under Czech law. As a particularly

a serious problem that the appellants sees those acts that can commit "on

distance ", for example. through computer technology. There may be a

a wide range of acts which would fall under section 412 enumeration of paragraph 1. 2 (a).

k) tr. procedure ("computer crime"). In this case,

requires knowledge of all criminal laws of EU countries. As a problem, even if

smaller, it sees the plaintiffs in those actions which you can commit only on the territory of the

of the State, although this can be a problem for the developmental stages

of the offence. Some of the conduct referred to in section 412 of paragraph 1. 2. regulations do not


equivalent in the Czech legal system, for example. arson indicated in point cc)

the said provisions. The trade in stolen vehicles pursuant to section 412 of paragraph 1.

2 (a). AA) market order in some EU countries coming in

account of the fault in the form of negligence and the full knowledge of them would be able to

citizens discover only a detailed study of the foreign criminal legislation. It is not

certainly possible to require that citizens were experts from the law of all EU countries,

Since this would be contrary to the principle of "ultra posse nemo tenetur '.

The legislature will be required to address this issue at the level of the law, for example.

publications list of criminal standards in each of the twenty five States

The EU.



11. The appellants stressed that the question of the compatibility of the contested

provisions with the constitutional order of the Czech Republic could not argue,

as a result of the principle of the primacy of European law before domestic law

There was an indirect modification of the constitutional order, namely article. 14. 4

Of the Charter. The following could be argued only if the framework

the decision was directly applicable Community act, which is not.

The importance of the article. 14. 4 of the Charter cannot be modified nor the principle of

eurokonformního interpretation, since the obligation to interpret domestic State

the right to souladně with the European law is not unlimited and does not go so far as to

the Member State and its courts have been forced to interpret national provisions

including the Constitution contrary to its wording. The provisions of article. 14. 4

Of the Charter prohibits the forced to leave their homeland is, so its

eurokonformní interpretation in the sense that it forced the abandonment of the motherland for the

certain circumstances admits he was clearly going against interpretation

the text of that article.



II.



Recap the essential parts of the representation of the parties



12. The challenge of the Constitutional Court as the parties have submitted observations

pursuant to section 69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended

(hereinafter referred to as the "law on the Constitutional Court"), the Chamber of deputies of the Parliament

The Czech Republic and Senate of the Parliament of the Czech Republic.



13. According to the Chamber of Deputies was to § 21 para. 2 of the criminal

law supplemented by Act No. 537/2004 Coll., which were discussed by the Chamber

the Chamber of Deputies. the electoral period, as parliamentary print no 514. The draft law

It was approved in a 3. reading on 30. June 2004 and after approval by the Senate was

President of the Republic, on July 23. August 2004, returned to the Chamber of Deputies

reconsideration.



14. the provisions of section 403 paragraph 1. 2, section 411 paragraph. 6 (a). (e)), section 411 paragraph. 7 and §

412 paragraph. 2 was added to the code of criminal procedure by Act No. 539/2004 Coll.

which were discussed by the Chamber of deputies also in 4. parliamentary term,

as parliamentary print no 533. The Bill was approved in a 3. reading day

June 30, 2004 and after approval by the Senate was returned to the President

Republic, 23 September 2002. in August 2004, the Chamber of Deputies for reconsideration.

The President of the Chamber of Deputies against the veto continued to serve the requisite number of

votes on adopted laws on 24. September 2004. Subsequently, both the laws of the

signed by the Chairman of the Chamber of deputies of the Parliament and the Prime Minister and

duly promulgated in the collection of laws.



15. the substance of the things the Chamber of Deputies stated that the cancellation of the contested

the provisions would, nothing has changed, that can be used by the European

the arrest warrant to pass the Czech citizen of another Member State

The European Union and the citizens of the United States would have lost more convenient

position in comparison with persons who are not citizens of the Czech Republic.

Although the Government has submitted to the Chamber of Deputies, together with the

amendments to both the criminal codes of conduct, whether or not the amendment of the Charter, but

The Chamber of Deputies underlined that the Parliament of the Czech Republic is

sovereign representative of the constituent and legislative power. Was not

bound by the legal opinion of the party making the amendment of the Charter (in this case

the Government of the United Kingdom) and was entitled to things take their own opinion.



16. In the context of the examination of the proposal of the Chamber of Deputies distinguishes two

the citizens of the United States passing types on the basis of a European arrest

the warrant. On the one hand it is a surrender to the imprisonment or

the protective treatment or protective upbringing which is subject to the approval of the

a citizen of the United States, under section 411 of paragraph 1. 6 (a). e) tr. order. Cannot be

then talk about the breach of article. 14. 4 of the Charter, because of the opposition of the

the citizen will be the reason for the issuance of the decision to reject the transfer.

Furthermore, it is the transmission of a citizen of the United States to another Member State

The EU, for criminal prosecution, which is not subject to the agreement of the citizen. When

the hearing was heard in the Chamber of deputies to support the conclusion that this

the issue is not in breach of article. 14. 4 of the Charter, the arguments that can be

divided into three groups.



17. The first is the historical arguments. For the adoption of the Charter, the legislature

responded to the practice of the period before 1989, when the ruling forced mode

a number of citizens leaving the Republic, although to do so did not want to. The provisions of the

article. 14. 4 of the Charter is to be regarded as a contemporary response to action

"Redevelopment" of the era of Czechoslovak normalization mode. From the historic

interpretation shows that at the time of the adoption of the Charter did not ústavodárce mean

the ban on extradition of citizens to a foreign country for criminal prosecution, but the ban

expulsions of its own citizens. It is based on the majority opinion

The Chamber of Deputies, illustrate that the words used in the article. 14. 4 second sentence "forced to

leaving the country "should be understood as an irreversible process, not as a

the temporary transfer of the person to a third State for prosecution, after which

the end will not be citizens of the Czech Republic placed in his return to the

the homeland of any obstacles. The historical method of interpretation also used the Constitutional

Court eg. in finding SP. zn. PL. ÚS 5/95 (collection of findings and resolutions

The Constitutional Court, volume 4, finding no. 74; competition no 6/1996),

When interpreting article. 12 paragraph 1. 2 of the Constitution of the Czech Republic (hereinafter "the Constitution"),

where mj. He stated that: "article. 12 paragraph 1. 2 of the Constitution, which provides that no one

against his will, cannot be deprived of citizenship, responds in particular to the

the institution of withdrawal of nationality from the time before November 1989 and trying to

the constitutional law by modifying such an interference with the rights of the citizen to prevent ".



18. The second group were the comparative arguments. The Czech legislation is

the nearest Slovak legislation. In the Constitution of the Slovak Republic was

expressed an explicit prohibition on the extradition of their own citizens in the article. 23 para. 4,

According to which "every citizen has the right to free entry on the territory of the

Of the Slovak Republic. It is not possible to force a citizen to leave the country, it is not

possible to expel or extradite him to another State ". After the amendment of the Constitution Act.

90/2001 Z.z., which deleted the final words "or issue to another State",

tagged article of the Slovak Constitution reads as follows: "every citizen has the right to freedom of

entry into the territory of the Slovak Republic. It is not possible to force a citizen to

He left the country, and it is not possible to expel him. " Thus, the adjustment of Slovakia

consistently distinguishes the terms "force to leave the country" by "issued to another

the State ".



19. the last Argument is the fact that one of the constitutional requirements,

asked on the Czech Republic, is also the compliance with its

under international law (article 1, paragraph 2, of the Constitution). Of article 2 of the Act

concerning the conditions of accession of the Czech Republic and other countries to the European Union

It is apparent that from the date of accession, the provisions of the original treaties and

acts adopted by the institutions and the European Central Bank prior to the

the date of accession, become binding on the new Member States and shall apply

under the conditions laid down in those treaties and in this Act.

A failure to adopt transposing the European arrest warrant would be article 1

paragraph. 2 of the Constitution violated.



20. The Chamber of Deputies, said that even in the event that turned out to

the right view of the appellants, that article. 14. 4 of the Charter prohibits the transmission of the

citizens of the Czech Republic, another EU Member State, it would not be possible to

the conclusion about the unconstitutionality of the contested provisions. In this case,

It would be necessary to solve the conflict of fundamental rights according to art. 14. 4 of the Charter of

and constitutionally protected values according to the article. 1 (1). 2 of the Constitution, their mutual

poměřováním, as is apparent from the case-law of the Constitutional Court (see, for example.

find SP. zn. PL. ÚS 15/96 of 9 September. October 1996, published in the collection of

the findings and resolutions of the Constitutional Court, volume 6, finding no. 99; promulgated under the

No 280/1996 Coll.). The Chamber of deputies also stated that the provisions of §

412 paragraph. 2. the order is identical to the exhaustive referred to in article 14(2). 2

paragraph. 2 of the framework decision on the European arrest warrant, which

does not give the Member States the option of derogating legislation. This

implementation does not change the criminal liability for the acts, Czech citizens

Act on the territory of the Member States of the EU. The citizens of the Czech Republic

fell and turns out the scope of the criminal law in force in the territory of the other

States of the European Union on the territory of these States committed by criminal

activities (principle of territoriality).



21. From the observations of the Czech Senate shows that the debate

in the Senate, when discussing both novel has resulted in the conclusion that the content of the article. 14

paragraph. 4 of the Charter does not prevent the implementation of the European arrest warrant. In

article. 14. 4 of the Charter is expressed in the ban of excommunication, deprivation of homeland,


the expulsion, etc., which is the obvious "Reminiscence binding to totalitarian period

power, "so was not used the term" expulsion ", but" forced abandonment

the motherland. " Transfer to the criminal proceedings in the Member State of the EU is categories

quite different, as it does not disrupt the státoobčanský volume. Criminal

the prosecution in the EU may not necessarily be flush and you can imagine as well as

voluntary dostavování the accused individual procedural acts

commuting. The provisions of article. 14. 4 of the Charter does not mean a ban on the issuance of

citizen to an EU Member State for the purpose of criminal prosecution.



22. The traditional notion of extradition for criminal prosecution is not a "pithy constitutional

the categories ", but rather is based on the principles of criminal law.

If the State is on the principle of personality, usually does not extradite its citizen,

State with preferential use of the principle of territoriality of the person.



23. The Senate drew attention also to the historical context of the prohibition of extradition of citizens to

the legal level. The Imperial ban on the issue of his subjects from the year 1772, and his

the anchoring of the criminal code on the period from the year 1852 match top

the consolidation of absolutist power, with its territorial and personnel

the expression. In contrast, the borders within the European Union are losing importance. The citizens of the

The United States are also citizens of the EU, using mj. freedom of movement in the

within the Union. These rights and freedoms are exported also to the adoption of a specific

responsibility in the creation of a single European legal space.

All EU Member States must comply with the European standards of the rule of

State, including the application of the principles of a fair trial. The provisions of article. 7

Moreover, the EU Treaty gives the possibility to suspend the rights of a Member State in

the situation, when found to be serious violations of the rule of law

by that State.



24. Critics of the proposals of both the novel during a debate in the Chamber of

that purpose-oriented interpretation of the article. 14. 4 of the Charter will be a bad example for the

the future. It is not to be interpreted as clear and easy to understand rule

Of the Charter, but need to go the way of adjustment of the provisions of the Charter

so, in order to allow the implementation of EU law, without conflict with

the constitutional order. The restrictive interpretation of the provisions on fundamental human

rights and freedoms is inadmissible.



25. as regards the applicant alleged breach the principle of two-sided

that, some of the criticism of Senators noted that so far

the European area there have been only a minimum harmonisation of the criminal norms.

In contrast, the supporters of both amendments pointing out that in principle will

Act on the prosecution of offenders for acts committed in the territory of the

the given foreign State. In addition, all meetings are broken by

double criminality, in fact, also be punishable according to Czech law,

While they are just named differently.



26. in accordance with the provisions of § 42 para. 3 of the law on the Constitutional Court was

as requested by the Minister of Justice. According to this expression of

the fact that the previous Minister of Justice (Robin),

at the same time with proposals for amendments to the criminal code and code of criminal procedure, a proposal

the amendment to the article. 14. 4 of the Charter, from the amendments to the

This provision of the Charter was necessary. He did so only with respect to

unsuccessful attempt to ratify the Statute of the International Criminal Court,

that showed the disparity of professional and lay public opinions on the interpretation of the

the provisions of article. 14. 4 second sentence of the Charter. The Ministry then

has submitted a proposal for an amendment of the Charter, in the event that would prevail in the Parliament

the view that such an amendment is necessary.



27. in addition to language and systematic interpretation, which they argue

the plaintiffs, it is necessary to examine the provisions of the Charter and in the whole range

take into account, in particular, the circumstances of its creation and more context.

The applicant declared a ban on the extradition of citizens abroad

did not include any of the Institute in force in Czechoslovakia or the Czech

the past. On the contrary, the Constitution of 1920 and 1948 to protect the right to a completely

different, namely the right to emigrate from the territory. State. The provisions of article. 14

paragraph. 4 second sentence of the Charter must be understood as a guarantee against violent

evictions politically uncomfortable people.



28. the Minister to refer to the article. 23 para. 4 of the Constitution of the Slovak Republic

a similar sense as the Chamber of Deputies. The Czech Constitution never

did not include a ban on the extradition of citizens abroad (prohibition of extradition) and

does not contain such a prohibition. Similarly, bow or arguments

comparative, which promoters. Like the Czech Constitution

does not contain a prohibition of extradition, nor the Constitution of the Hungarian, Spanish, and Swedish.

Depends on the constitutional tradition of a particular State, that is the question

extradition question constitutional or not.



29. Further pointed out the last Court of Justice EC (

"ESD") in case C-105/03 Maria Pupino, of 16 December 1999. 6.2005, in particular on the

There laid down the obligation to interpret domestic law souladně with the framework

the decision, issued by the EU's commitments in the framework of the so-called. III. the pillars of the.

ECJ case law in the area of III. pillar given the same effect as

in the first pillar, for reasons of a declaration made in Czech Republic

accessing EU (Declaration No 26 of the Czech Republic on article 35 of the Treaty on

The EU, the final act to the Treaty of accession of the Czech Republic and other

countries to the EU, published under no. 46/2004 Coll., m. s.). No fundamental right

According to the citizen of the Charter cannot be affected by passing it to the EU Member States,

because in those countries the death penalty is abolished, it is guaranteed the right to

the defence and protection of human rights binds the following countries also article. 6 of the Treaty on

The EU.



30. The provisions of article. 39 of the Charter concerns the conditions of criminal liability and

modifies the principle "nullum crimen sine lege", that is by its nature

the principle of the criminal law. The provisions of § 412 paragraph. 2. the order shall

This policy does not affect, because the new terms do not provide for the criminal

liability, but modifies the conditions of application of the process of the Institute

surrender of persons on the basis of a European arrest warrant. Criminal proceedings

in such a case shall be conducted in a foreign country, and the task of the Prosecutor and of the Court

in the management of the transmission is not to assess the question of whether a particular person

committed a criminal offence, but only to assess whether conditions are given by

to pass this person to another EU Member State. Whether it is an act of

as described in the European arrest warrant, the criminal offence is always provided

the law requiring the Member State concerned. Transposition of article 3(1). 2 (2). 2

The framework decision on the European arrest warrant does not finish

the abolition of double criminality review negotiations, for which the authorisation is sought

the surrender, but only to its limitations. The criminalization of the offence under Czech law

you will not be assessed only if two conditions are satisfied,

i.e.. that it is a criminal offence for which it is possible to the Member State

is punishable by deprivation of liberty for a maximum of at least three

years or to order protective measures associated with the restriction of the freedom of

at least 3 years, and that this offence consists in conduct referred to in section

412 paragraph. 2. order.



31. All in § 412 paragraph. 2. order defined conduct is punishable in

all European Union countries and are also punishable in the Czech Republic. If

list of criminal conduct in § 412 paragraph. 2. the order contains terms which

our tr. the law does not recognize, it does not mean that the negotiations, which are not in

The Czech Republic. For example, the "arson" corresponds to the facts

podstatám criminal offences set out in section 179 of the criminal code or section 180

(General risk) and in the case of computer crime can go for example. about

tr. fraud (section 250 tr. law) or harming foreign rights (209

tr. of the Act).



32. in any event, if the judicial authority of the requesting Member State

be indicated in the European arrest warrant, that the deed is considered as one of the

negotiations under article. 2 (2). 2 of the framework decision, it does not mean that our

the judicial authorities without further decide on surrender of the requested person. On the contrary,

If the Prosecutor had already in interlocutory proceedings is justified

doubts about the subsumpci deed under some of the criminal acts

referred to in article 14(2). 2 (2). 2 of the framework decision, it should take from the judicial

authority of the requesting Member State to request additional information to

the removal of such doubts.



33. In addition, the deletion review of the double criminality of the negotiations is not in

the area of judicial cooperation in criminal matters is nothing new. Czech

Republic since 1992 is a party to the European Convention on mutual

assistance in criminal matters (No. 550/1992 Coll.), which is not required for

the provision of legal assistance to the requesting State a condition

double criminality (interpretation of article 5 of the Convention and

on the other hand).



34. On article. 4 (4). 7 of the framework decision, the Minister stated that the reasons in

This article addresses these are optional and therefore on the willingness of the Member

State, whether it is to their legal order annulling or not. In essence,

These are the reasons for refusal, is identical with the optional grounds for refusal

the release of persons pursuant to article. 7 (2). 1 and 2 of the European Convention on extradition

(549/1992 Coll.), so it is not a completely new Institute. The reason for the refusal

the European arrest warrant pursuant to article. 4 (4). 7 (b). a) Framework

the decision shall apply only if the Czech authorities active in criminal


management has already initiated prosecution for an offense committed on the Czech

the territory, which is identical to the crime for which it has been exposed to

the European arrest warrant, or if it was for the offence in question

a person lawfully convicted and the sentence was executed, is practiced or

can no longer be enforced, or pass another obstacle preventing the ne bis in idem principle [§

paragraph 411. 6 (a). (c)), and (d)), tr.]. According to the Minister is not always appropriate

take advantage of this Institute. For example. It may be a distant crime

illegal crossing of the State border pursuant to section 171a tr. of the law. The reason for the

rejection of the European arrest warrant pursuant to article. 4 (4). 7 (b). (b))

The framework decision has not been transposed in the Czech legal order.



35. the representation of the Chamber of Deputies and the Senate have submitted the appellants

comprehensive replica, in which it reiterated the substance of their arguments

referred to in the proposal. If the Chamber of Deputies admitted on your

expression of the ability to use the principle of proportionality in the settlement of the conflict

between article. 14. 4 of the Charter and article. 1 (1). 2 of the Constitution, the appellants

Note that the principle of proportionality has an effect only if

the two rules, and the need to respect the two values to be incompatible

consequences. In this case, it's not such a collision because the sign-in

to reservations under international law certainly didn't want to Czech Republic's obligations

weaken the standard of protection granted by national law to its citizens. In

this context pointed to the article. 17 of the Convention for the protection of human rights and

fundamental freedoms ("the Convention"), pursuant to which no

international legal obligation cannot lead to the weakening of the existing degree of

national protection of the rights and freedoms of individuals. Additionally, in the article. 1 (1). 2

The Constitution as to the commitment of the State and not individuals.



36. The proposal to repeal section 412 paragraph. 2. order the appellants submitted, first,

so, that leaves the principle of double criminality, both because

does not contain an enumeration of constituent elements of criminal acts, but only their

names. They pointed out the basic principles of criminal law, with the following

the requirements are such basic principles of the democratic rule

the order in which it is necessary to take, so the condition is populated with the article. 9.

2 of the Constitution.



37. as regards the representation of the Chamber, the appellants have pointed out the fact

that the essence of the problem is the wording in the article. 14. 4 of the Charter, i.e..

"forced to leave the country". By passing the citizen to another country in the EU is

confidence in his State, consisting in the fact that it would protect them against States

the other, which is among others. and State sovereignty, which persists in the EU. In

This way, the appellants pointed out the decision of the Federal Constitutional

the Tribunal's letter of 18 March 2004. 7. in 2005, according to which "Edition custom

citizen to another country interferes with the special relationship of the citizen to a legal

the system, in whose formation is involved in ". The appellants do not share the conclusion

The Senate, the States of the EU comply with the same standard of protection of human rights, and

They pointed out the results of the decisions of the European Court of human rights,

When only for the year 2005 was released 18 judgments against Austria, 12 against

Belgium, 10 against Finland, 50 against France, 100 against Greece, 67 against

Italy, 17 against Hungary, 44 against Poland and 15 against Great Britain.



38. In the second part of its replicas the plaintiffs have pointed out problems

associated with the implementation of the framework decision on the European arrest

warrant that touches the two constitutional issues. The first is his

conflict with the article. 14. 4 of the Charter, and the second is a breach of fundamental

the principles of the democratic rule of law. Implementation of the European

the arrest warrant does not respect a constitutional ban on bezvýjimečný

forwarding, issue or another urge citizens to leave the country.

It also does not respect the basic legal principles of its own to all Member

States of the EU, which are the principle of the legality of the predictability of law and

formal principle of publicity rights. A breach of these policies

above all, by the principle of double criminality was abandoned, that would

Perhaps, as the only one able to legitimize the potential opportunity to

another EU Member State, persons who have committed criminal acts in this

State.



39. as regards the issue of European law, the appellants have pointed out

the conclusions of the award SP. zn. PL. ÚS 50/04, where the Constitutional Court held that the

take precedence over European law is not absolute, and Member States may

to book a reservation especially on issues where the stakes are a threat to the principles of

democratic rule of law and the protection of fundamental rights and

freedoms.



III.



The conditions of the locus standi of the appellants



40. the proposal that is the subject of the examination of the Constitutional Court, was filed

a group of forty-seven members of the Chamber of deputies of the Czech Parliament

States and the Group of twenty one Senator, in accordance with the

conditions contained in § 64 para. 1 (b). (b)) of the Act on the Constitutional Court.

On the side of the plaintiffs are therefore met the terms of locus standi.



IV.



The constitutional conformity of the legislative process



41. The Constitutional Court, in accordance with the provisions of § 68 para. 2 of the law on

The Constitutional Court, in proceedings for review of the standards must first assess

whether the contested act was adopted and issued within the limits of the Constitution laid down

competency and constitutionally prescribed way. According to the data of the

the Chamber of deputies of the Czech Parliament, publicly available on its

website (http://www.psp.cz), was both a Bill

novelizujícího criminal law, the draft law novelizujícího of the criminal

of procedure, submitted to the Chamber of deputies by the Government of the United Kingdom on 12 April.

November 2003. Both proposals were approved on 30 November. June 2004

the resolutions passed by the Chamber of Deputies no 1224 and no 1225. Of the 183 present

members of the city for the amendment of the Penal Code 92 members and

83 votes against. For the amendment to the criminal procedure code submitted 93

of the 185 members and 85 votes against.



42. the draft amendment to the criminal law was then approved, on July 29. July

2004, voices from the present 35 sixty two senators (resolution No. 339),

the draft amendment to the criminal procedure code was approved on the same day with the same number of votes

(resolution No. 400). Both laws, President of the Republic on 23 December 2005. August 2004,

He returned back to the Chamber of Deputies, that the voices of the 101 members and 105

members of Parliament for the amendment of the Penal Code, the returned by the laws.

Both laws were properly promulgated under Act No. 537/2004 Coll. and no. 539/2004 Coll.

From the above findings show that the two laws were adopted and

issued in the prescribed manner.



In the.



The diction of the contested provisions of the criminal law and criminal procedure



43. To cancel the proposed provisions of § 21 para. 2 of the Criminal Code (law

No. 140/1961 Coll., as amended) reads as follows: "a citizen of the United States may be

passed to another Member State of the European Union only on the basis of the European

the arrest warrant ".



44. To cancel the proposed provisions of the code of criminal procedure (Act No. 141/1961

Coll., as amended) reads as follows:



The provisions of § 403 paragraph 1. 2: "the Czech Republic may pass its own citizen

to another Member State of the European Union, only under conditions of reciprocity.



The provisions of § 411 of paragraph 1. 6 (a). (e) governing one of the situations

the Court shall refuse the surrender of the requested person): "this person is a citizen of

The United States or has permanent residence in the Czech Republic, its transmission is

requires to imprisonment or protective treatment or

protective care and the person before the competent court shall declare to the log,

refusing to submit to the execution of a sentence or a preventive measure in the

requiring the State; This statement cannot be undone. ".



The provisions of § 411 of paragraph 1. 7: "if it is passed a State citizen of the United States

or a person who has a permanent residence in the Czech Republic, to requiring the

State for criminal prosecution, the Court shall make the transfer by that person will be

returned to imprisonment or protective treatment or

protective care in the United States, where it will be saved to the kind of

a sentence or a preventive measure, and this person after the pronouncement of the judgment in

requiring the State so agrees with the performance penalty or protective

measures requiring State. Thus, the Court shall proceed only in the case that

requiring the State to provide assurance that the person passes to the Czech Republic to

enforcement of a sentence or a preventive measure. If the State is not requiring

the warranty is granted, the Court shall refuse the surrender of the requested person. ".



45. the provisions of section 412 of paragraph 1. 2 (which is related to the content of paragraph 1

the same provision, calculated acts which a Czech court does not detect

their offence under the law of the United States):



"The negotiations referred to in paragraph 1:



and) participation in a criminal organisation,



b) terrorism,



c) trafficking in human beings,



(d)) the sexual exploitation of children and child pornography,



e) illicit drug trafficking and psychotropic substances,



f) illicit trafficking in weapons, munitions and explosives,



g) corruption,



h) fraud, including that affecting the financial interests of the European communities

within the meaning of the Convention of 26 July 1995. July 1995 on the protection of the financial interests of

Of the European communities,



I) legalization of proceeds of crime,



j) counterfeiting of currency,



k) computer-related crime,



l) environmental crime, including illicit


trade in endangered animal and plant species and their breeds and

varieties,



m) facilitation of unauthorised crossing the national border and when

residence,



n) murder, grievous bodily injury,



o) illicit trafficking in human organs and tissue,



p) kidnapping, restriction of personal freedom and hostage taking,



q) racism and xenophobia,



r) organised or armed robbery,



s) illicit trafficking in cultural goods, including antiques and

works of art,



t) swindling,



u) racketeering and extortion,



v) counterfeiting and piracy of products,



w) forgery of administrative documents and trafficking therein,



x) forgery of means of payment,



from) illicit trafficking in nuclear or radioactive materials,



y) illicit trafficking in hormonal substances and other growth promoters,



AA) trade in stolen vehicles,



BB) rape,



CC) arson,



DD) criminal offences whose prosecution and punishment is the responsibility of the

The International Criminal Court,



EE) hijacking aircraft or vessel,



FF) sabotage. ".



Vi.



Classic extradition and transfer of people between EU Member States on the basis of

the European arrest warrant



46. According to the doctrine of criminal law, extradition means the extradition

by the State on whose territory it is situated, to another State, at its request, for

the purpose of criminal prosecution or enforcement of a sentence. The aim of the Convention is

prevent the offender, in order to escape criminal prosecution or

the sentence by flees to another State. The obligation of the State of residence

to issue the offender usually arises on the basis of international treaties

(the extradition treaty, the Treaty on legal assistance in criminal matters

etc.). Own extradition is based on a number of principles, which

in particular, the principle of reciprocity, double criminality,

the inadmissibility of extradition of their own citizens, the inadmissibility of the release for the

set the circle of crime and specialties. The theory of criminal law

distinguishes between material and formal extradition law. Material extradition

the right presents a summary of the conditions under which it arises according to the international

the law of the obligation to extradite the offender. The formal extradition right then

regulates special proceedings before the authorities of the requested State, at the end of which the

the decision to issue or refuse a perpetrator, therefore the answer to the request

the requesting State (Musil j., Kabir, Samal, the course of the criminal

law-criminal procedural law, c. h. Beck, 2003).



47. issue (extradition) of persons abroad in Czech law governing the

the provisions of § 391 et seq.. the criminal procedure code. The whole procedure has three stages, i.e..

the preliminary investigation (art. 394 et seq.), Court (§ 397, 398) and

the authorization and implementation of release (paragraph 399). In the framework of the preliminary investigation the State

representative to determine whether the conditions for extradition under

material extradičního rights. After a preliminary investigation, decides on the

the proposal of the State Prosecutor, the competent regional court, as a rule on whether it is

the release of the permissible. The final phases of the whole process is a decision of the Minister

Justice about enabling extradition to a foreign State. The Minister may

do this only if the jurisdiction (county or Supreme) Court decided

that release is permissible. This does not mean that, in the case of a positive

the Court's decision, the Minister shall release the person to enable. In § 399 paragraph. 2 tr.

the order listed the cases in which the Minister may decide that the issue of

the person shall not permit. The Minister then in its activities in accordance with the

the principles of diplomatic intercourse between States, or in the form of the interministerial

contact, if international agreements so allow.



48. While the classic extradition process is quite lengthy, as

shown on the Czech example (in other States, this procedure

similar), and with the participation of the Minister of Justice as representative

the Executive, represents the pass-through process under the framework decision

The European Council of 13 December 6.2002 on the European arrest warrant and the

surrender procedures between Member States (2002/584/JHA) significant

simplify and speed up the whole process. The European arrest warrant, therefore,

replaces, in relations between EU Member States, the classic extradition and

represents a qualitatively quite different procedure. It is therefore necessary

to distinguish between the extradition and transfer of the classical people between Member

States of the European Union on the basis of a European arrest warrant, which

Indeed, is a Czech criminal procedure code. The entire process is expended or pass-through

entrusted to the competent courts, which are governed by law only, eliminating the

the intervention of the Executive power in the final stage, as is the case for classic

extradition.



49. According to the preamble of the framework decision is a fundamental purpose of the European

to cancel an arrest warrant within the European Union formal procedure

the issue of people, which, after the pronouncement of a final judgment to Shun

Justice, and speed up the procedure for extradition of persons suspected of having committed

the criminal act. The objective set for the EU, i.e.. become an area

freedom, security and justice, the cancellation of the classic extradition between

individual Member States and the replacement of the system of surrender between

the various judicial authorities. The traditional formal relations of cooperation between the

Central Government authorities or by diplomatic, which until

yet prevailed, are being replaced by a system of free movement of judicial

decisions in criminal matters. Still, therefore, will no longer be the person suspected

of a criminal offence are issued on the basis of an individual act

in the executing State, but on the basis of the Court's decision in

the requesting State of the EU, which has a direct effect even in the State of

executing. The activity of Central Government authorities is replaced by

cooperation of the various courts, the role of central authorities of the State is so

limited to practical and administrative assistance.



50. the framework decision underlines that the mechanism of the European arrest

warrant is based on a high degree of confidence between the Member States of the EU,

Therefore, its implementation may be suspended only in the event of a serious and

persistent violations of the principles laid down in the article. 6 (1). 1 of the EU Treaty

by a Member State, if such violations formally by the Council

found to be in conformity with the article. 7 of the EU Treaty.



51. The European arrest warrant is, therefore, an individual legal act

issued by a Court of a Member State of the EU, which requires the arrest and transfer

a person from another Member State. The European arrest warrant shall be

does not apply to claims crime. May be issued only on the

suspected of having committed criminal offences for which it can be stored in the

requiring the EU Member State of imprisonment (or other measures

of liberty) with the upper limit of the rate of at least 12 months, or

sentenced to imprisonment (or to a protective measure) in length

at least 4 months (cf. Article 2, paragraph 1 of the framework decision and section 404

paragraph. 2. procedure). In the case of thirty-two explicitly state, of penalty

acts, if it is possible for them (requiring EU Member State) to save

a custodial sentence of a maximum of at least three years, the rate is

breached the principle of double criminality. Therefore, it is sufficient if an offence for

that is required to pass, is a criminal under the law that requires the State

(for analysis of the Institute the European arrest warrant cf. eg. Pole,

P., European arrest warrant, legal forum No. 2/2004, pp. 76 et seq.).



VII.



The content of the contested provisions compliance with the constitutional order



52. the Constitutional Court is the judicial body of the protection of constitutionality, that

reviewing the constitutionality of all acts of the public authorities of the Czech Republic. In

the principle, therefore, his authority also applies to the Czech national

standards, which, in conformity with art. 10A and article. 1 (1). 2 of the Constitution, shall be carried out

commitments of the Czech Republic to the EU. As with other State

authorities, on the basis of an article. 10A of the Constitution of the Czech Republic to the EU

to some extent, to limit the powers of the Constitutional Court. Due to the

the doctrine of the primacy of Community law, the ECJ may Constitutional Court by its

authority over standards of this law apply only under certain

circumstances. According to the ECJ, in the areas which are covered exclusively by the

Community law, precedence and has this right cannot be disputed

reference criteria of the national law, even constitutional level.

According to this doctrine, therefore, the Constitutional Court does not have jurisdiction to rule on

the constitutionality of the norms of European law, even in a situation where they are

contained in the legislation of the Czech Republic. Its competence

to assess the constitutionality of Czech standards is, therefore, limited in the same sense.



53. In finding SP. zn. PL. ÚS 50/2004 of 8 June 2004. March 2006 (declared under

No 154/2006 Coll.) The Constitutional Court refused to recognize the doctrine of ESD, if required

the absolute primacy of Community law. The delegation stated that the part of the

the powers of the national authorities, the EU institutions may take as long as

These powers are exercised in a manner compatible with the EU institutions

preserving the foundations of the State sovereignty of the Czech Republic and in a manner that

the very nature of the material does not affect the rule of law. Is

of course, if this exceptional and highly unlikely

the situation does not occur, the Constitutional Court, guided by the above-mentioned doctrine of ESD,

will not be reviewing individual standards of Community law with regard to


their compliance with the Czech constitutional order. In this case, however,

the appellants argued that the adoption of such a contradiction just eurozatykače

with essential necessities of the democratic State of law has occurred.



54. Nevertheless, in finding SP. zn. PL. ÚS 50/04, the Constitutional Court also outlined

other exceptions to the opinion that it does not have the jurisdiction to review the constitutionality of the

the legislation of the Czech Republic adopted as a transposition or

implementation of European law. In a situation where Member States

implement the standards of European law and this implementation leaves

Member State discretion as regards the choice of means to

the realisation of the objective laid down by the standard of European law, the Member State

may review the results to ensure compliance with its own Constitution. Member

States have the flexibility to choose the means of Community law

to ensure these objectives, selecting those resources that are in the

accordance with their Constitution, and excludes those with the Constitution in

the conflict. As a result of this doctrine, expressed in finding SP. zn. PL.

TC 50/04, where the delegation of powers does not give any space to the Member State

of discretion as regards the choice of means, i.e.. There, where the Czech legal

the adjustment reflects a binding standard of European law, the doctrine of the primacy

in principle, Community law does not allow the Constitutional Court to review the

such a standard in terms of conformance to the Czech Republic with the constitutional order of the Czech

States, with the exception, of course, listed in section 53.



55. Although the contested provisions are, by their nature, therefore, mandatory,

the situation in this case is significantly different from the case in the award

SP. zn. PL. ÚS 50/04 in the fact that there is no Community law in

the classical sense of the word, i.e.. under the first pillar, but this is about the European Union

right under the third pillar in the form of a framework decision. The Constitutional Court

agree with the applicant that the framework decision, which was the basis for

the adoption of the contested norms, does not have direct effect. The purpose of the framework

the decision is the approximation of the laws, regulations and administrative provisions of the Member States.

Framework decisions are binding upon the Member States as to the result

to be achieved, with the choice of form and methods leaves

the national authorities. The framework decision is impossible without national

implementation relied upon against natural or legal persons. The framework

the decision must therefore be carried out by national legal acts, which are

become a part of the provisions is designed to cancel.



56. Although the challenged provisions were adopted in order to transpose

the framework decision, which does not give any room for discretion

a selection of resources, still may be the case when you can

The Constitutional Court review for compliance with the constitutional order. Whether

so can do will depend on the nature and status of current standards

adopted within the framework of the third pillar, such as framework decisions.



57. questions regarding the nature and status of such EU acts

stems from the differences between them and traditional standards of Community law.

For example. framework decisions shall be taken by the legislative procedure laid down in

Title VI. The EU Treaty in the framework of the so-called. "third pillar", that is, on

the proposal of the Commission or of a Member State are hereby approved unanimously

The Council, i.e.. the consent of all the Member States, after consulting the European

Parliament. As above, the direct effect of such a framework

the decision is excluded by article 34 para. 2 (a). (b)) of the EU Treaty. This will

MJ. different from the primary Community law (in particular the memorandum)

and classical secondary Community law produced by the EU institutions,

According to the article. 251-252 of the EC Treaty. In addition, the obligation to implement the framework

decision of the European Court of Justice is not enforceable because the title VI.

The EU Treaty does not know the subject of an action for breach of contract (see article 226 of the Treaty on

EC). It is, however, enforceable political and administrative pressure, the European

the Commission to the Member States. Therefore, if you are not an adequate transposition

This framework decision shall not take direct effect [see cited article 34

paragraph. 2 (a). (b) of the EU Treaty]. The European arrest warrant in the application

the Member States shall be subject to the jurisdiction of the European Court of Justice in

matters of validity and interpretation of framework decisions in the framework of the

preliminary ruling, under the terms of article. 35 of the EU Treaty (see Squire j.:

"The limits of the review of the constitutionality of the transposition of the framework

the decision on eurozatykači, Právní rozhledy 3/2006).



58. The implications of these differences for the current nature and position of such

standards, in relation to the legal order of a Member State, are not yet in the

ECJ case law definitively and clearly expressed. Although the cited article 34

The EU Treaty expressly provides that framework decisions do not have direct

the effect of the decision in the case, Maria Pupino, the ECJ held that the contract of

The EU has a principle of loyal cooperation, analogous to the one who is

provided for in article 10 of the EC Treaty. As a result of this principle have

the framework decision of the indirect effect (see case C-105/03 Maria Pupino, dated

16.6. 2005, para. 42-43, English on the Internet at ESD

http://www.curia.eu.int. This means that the national courts are obliged to "in

greatest extent possible, national law interpreted in the light of the wording

and the purpose of the framework decision in order to produce the result that the framework

the decision follows and so reached compliance with article. 34 para. 2 (a). (b)

The EU Treaty "(ibid., para. 43). ESD left open the question of what

the obligation for national courts in a situation where they can't unload their national

law, in accordance with the framework decision. In other words, the ECJ did not touch

the issue of priority, IE. whether, as in the case of Community law, have

framework decisions shall take precedence over national law, i.e. whether they are national

the courts are obliged to postpone its national law on the sidelines, if in

contrary to the framework decision. In their written observations to the

Italy, Sweden and the United Kingdom insisted on "the intergovernmental character of the

cooperation between Member States under Title VI. The EU Treaty "(para.

26 ibid.). By the Advocate General in the case of m. Pupino stressed that

While "minor tightness of the cooperation treaty on European Union is evident in

the definition of the framework decision, which excludes the direct effect. The concept of

"policy" indicates that the EU Treaty contains not only the Interstate

cooperation, but also the collective exercise of the sovereignty of the Union "(the opinion of the General

advocate Kokott in case m. Pupino, of 11 July. November 2004, para.

31, 32). See also Squire j.: Eurokonformní interpretation of the framework decision

-the obligation or judicial activism, the Jurisprudence of the No 8/2005, page.

37 et seq..



59. The ECJ Itself, therefore, in no way, whether the principle of precedence applies

and on the framework decisions. In the case of m. Pupino, the ECJ also touched

such questions as to whether the principle of priority, which he interpreted in relation to the

Community law, in the same way also apply to European Union law

that framework decisions are only intergovernmental in nature, or whether it

Here comes the account of some other interpretation. Thus, it can be stated that

the case law of the ECJ, concerning the precise nature of the acts of European Union law, such as

are the framework decisions, it is still under development.



60. Such status represents perhaps the ideal situation for the submission

the problems mentioned by the ECJ as a preliminary matter. However, due to the

the fact that the Belgian Cour d ' Arbitrage, I submitted a question to the ECJ

concerning the validity of the framework decision, there is no reason for it,

to the Constitutional Court of the Czech Republic progressed as well. Wait for the decision of the

The ECJ would not be entirely appropriate, since the contested provisions remain

effective and can cause them to surrender a person on the basis of the European

the arrest warrant. In this situation, the Constitutional Court shall be deemed to be absolutely

necessary to decide whether the fundamental rights of these persons are

compromised or not. In an effort to resolve this dilemma, the Constitutional Court decided,

consider whether the provisions implementing the framework decision can be

interpreted in accordance with the Czech constitutional order. Because decided

that such interpretation is possible, it is not necessary to wait for clarification from the top

outlined issues of EU law from the ECJ.



VIII.



Assessment of compliance of the contested provisions with article. 14. 4 of the Charter of



61. From article. 1 (1). 2 of the Constitution, in conjunction with the principle of cooperation,

set in article 9(3). 10 of the EC Treaty, it follows the constitutional principle, according to which they have

be domestic legislation including the Constitution interpreted souladně with

principles of European integration and cooperation with Community institutions and bodies

of a Member State. Therefore, if there are several interpretations of the Constitution, whose

part of it is the Charter of fundamental rights and freedoms, of which only some of the

These lead to the attainment of the undertaking, which took over the Czech Republic in

with regard to the membership in the EU, it is necessary to choose the interpretation that

supports the implementation of this commitment, and not the interpretation that this

the realization of the impossible. These findings also apply to the interpretation of the article. 14.

4 of the Charter.



62. the appellants ' allegation is not justified, that the national

the adoption of a European arrest warrant was disturbed by the ongoing relationship between the

the citizen and the State. Citizen passed to the criminal proceedings in the Member State


The EU remains well within the duration of this proceeding, under the protection of the Czech State.

The European arrest warrant allows only limited transfer of citizen

to his prosecution in the Member State of the EU for specifically defined the deed,

and after this nothing prevents him to return control back to the

the territory of the Czech Republic. Citizen has the right to defend itself against the measures of the institutions

law enforcement when you pass under the European arrest

warrant appeals, including from even a possible constitutional

the complaint.



VIII/a



63. The new legislation the criminal procedure code, which allows you to pass a citizen of the United

Republic to another EU Member State, to the criminal proceedings without a doubt

breaks the previous statutory scheme, which she [and so far

does not allow – see section 393 paragraph 1. 1 (b). and the tr.) the order of] the issue of citizens to the

for there ongoing criminal proceedings. The Constitutional Court is of the

the view that the unconstitutionality of the contested provisions cannot be inferred merely from the

the fact that the Government of the United States, as the originator of both the novel

criminal codes, first considered appropriate to make a change to the Charter

fundamental rights and freedoms, and only after the rejection of the amendment of the Charter

The Chamber of deputies should be inferred that its started to change is not needed. The constitutional

the Court agrees with the legal opinion expressed by the Chamber of Deputies, according to the

which is the Parliament of the Czech Republic representative of constituent and

the legislative power, and was not, therefore, bound by the legal opinion of promoter

the amendment of the Charter.



64. The provisions of article. 14. 4 of the Charter, according to which the first sentence of each

citizen of the right to free entry on the territory of the Republic, and the second sentence

a citizen cannot be forced to leave their homeland, certainly makes it impossible to

exclude the Czech citizen of the community of citizens of the United States as

democratic State to which it binds the bond of nationality. From

text of the article itself. 14. 4 of the Charter cannot be, without additional arguments

clearly answer whether and the extent to which excludes limited-time pass

citizen to an EU Member State for there ongoing criminal proceedings, if

has the right, after the end of this procedure to return to their homeland. Language interpretation

the term "forced to leave the country" can encompass even such

relatively short pass citizen to criminal proceedings abroad.



65. the fact that the text of the article. 14. 4 of the Charter does not match itself on

question whether it can pass the Czech citizen to an EU Member State for there

criminal proceedings are in progress, can be illustrated by example, Slovakia

the plaintiffs also allege. Slovak legislation

is your basis in the former Federal Charter of fundamental rights and freedoms

the Czech adaptation of the nearest. In the Constitution of the Slovak Republic was expressed

an explicit prohibition on the extradition of their own citizens in the article. 23 para. 4. After the effective

the amendment to the Constitution, no 90/2001 Z.z., which deleted the final words "or

issue to another State ", article of the Slovak Constitution reads:" every citizen of the

has the right to free entry on the territory of the Slovak Republic. The citizen is not

You can force it to leave the country, and it is not possible to expel him. " Slovak

the adjustment therefore consistently distinguished and differentiates the terms "forcing him to leave

the homeland "and" expulsion "from the" release "of the citizen of another State. Czech edit article.

14. 4 of the Charter is, in comparison with the adjustment of the Slovak, expressis

as a closer, and always spoke and speak only about the prohibition of forcing a citizen to

leaving the country.



66. the concept of banning "forced to leave the country" can be interpreted as

extensively, so restrictively. The Constitutional Court, in agreement with the applicant,

considers that the importance of the article to resolve the issues. 14. 4 of the Charter is to be

Search the objective sense. For the assessment of the significance of this provision

Documents have their place, in particular, the historical themes, the adoption of this modification.

The provisions of article. 14. 4 second sentence of the Charter first appeared within the

article. 15 paragraph 1. 2 design of the Charter in the report of constitutional committees of the House of

the people and the House of Nations of 7 November. January 1991 (see Printing 392,

http://www.psp.cz). The Constitutional Court agrees with the applicant, and with the

the participants in this proceeding, that the experience with the crimes of the Communist regime

She played a vital role in shaping of the Charter. This role has played even at

the formation of the current article. 14. 4 of the Charter to the turn of the years 1990 and 1991

then still quite recent experience, associated in particular with the action "Redevelopment",

When the Communist regime forced an uncomfortable person to leave the Republic

(cf. for example. Kavěna m., the basic right of a citizen of the CZECH REPUBLIC not to be forced to

leaving their home country, the European arrest warrant and the international criminal

the Court, EMP # 5/2004, pp. 42 et seq., at p. 43, or Sour j., year

2004 in the development of selected Czech institutes constitutional law-1. part,

Právní rozhledy No. 12/2005, pp. 425-426). Historical interpretation, therefore,

suggests that the provisions of article. 14. 4 of the Charter never had nothing

extradition.



67. The intention of the ústavodárce, based on historical experience, that

they are in a situation when the historical memory for future generations,

-because they are bound to contemporary experiences, is not by itself

the decisive argument. The Constitutional Court therefore sought an objective meaning

article. 14. 4 second sentence of the Charter, which is to be measured by the current

There is the beginning of the 21st century. of the century. In search of an objective meaning

designated provisions of the Charter, the Constitutional Court took into account also

the historical genesis of the extradition law Institute. Extradition of offenders

the general crime rate in principle until the 19th century. century did not exist, and

a more serious problem was not a nor, having regard to the low mobility of

the European population of the time, as well as the very limited degree

cooperation between existing European States (cf. Blade no-Sturm

P., public international law, Prague, 2003, p. 353).



68. The existing extradition adjustment has, in the majority of European States, its

the origin of the model created in the 19th century. of the century. Because on the one hand, excluding direct

the effectiveness of the Court decision in a criminal case, including the arrest warrant in the

another State (cf. Musil j., Kabir v. Šámal, the course of the criminal

law, c. h. Beck, Prague 2003, p. 962), both claimed by the full's

control and full criminal jurisdiction over its own citizens (in the original

the concept of the subjects), which were not allowed to perform any third States.

The principle according to which the State traditionally do their own citizens to

criminal proceedings abroad, so far from being initially did not reflect

the fundamental right of citizens not to be released, but rather conveys state

sovereignty over its citizens in its former concept. The principle of nevydávání

own citizens for prosecution abroad at

strong justification in the widely prevailing mutual mistrust between the

rival European powers.



69. Only later, after the tragic events that occurred in particular in

Europe in the first half of the 20th century. century, the principle of nevydávání of its own

citizens transformed State claimed responsibility for own

citizens on the principle of the protection of their own citizens before the release.

The practice has remained the same, so just changed her reasoning. Some

States, on the basis of their historical experience, went so far as to

the ban on extradition of integrated into their constitutions (e.g. Article 55 paragraph (l) of the Constitution

The Republic of Poland or article. Article 16(1). 2 of the Basic Law of the Federal Republic

As regards Germany, the neighboring States.) The ban on extradition is gradually

Scroll to the area of fundamental freedoms, which is quite understandable for the

a situation where in the world there are still a number of non-democratic regimes,

that do not provide the right to a fair trial in their own standards

for example. the EU Member States.



70. it cannot be ignored that the current era is associated with extremely high

the mobility of people, increased international cooperation and growing

confidence among the democratic States of the EU, which puts on the editing issue in

under the new requirements of this Union. In the EU there is a qualitatively new

the situation. The citizens of the Member States shall, in addition to the civil rights of their

States, also the rights of EU citizens to them. ensure free movement in the

across the whole Union. The EU's area of freedom, security and justice, which

facilitating the free movement of citizens, and ensures their safety and

protection (see the preamble of the EU Treaty). The European arrest warrant is based on

of these realities and makes cooperation bodies active in criminal proceedings

more efficient. Replaced by the cooperation of Central Government authorities

EU Member States, judicial authorities and direct cooperation makes an exception from the

the principle of the prohibition of extradition of their own citizens in criminal proceedings to the

abroad.



71. If they are Czech citizens will benefit with the Statute

EU citizenship, in this context, it is natural that with these benefits is

must accept a degree of responsibility also. Investigation and suppression

the crime that occurs in the European area, it is not possible

successfully implemented within an individual Member State, but requires

broad international cooperation. The result of this cooperation is to replace

earlier procedures of extradition of persons suspected of crimes new

more effective mechanisms, reflecting the realities of 21. of the century. The current

standard of protection of fundamental rights within the European Union does not by


The Constitutional Court no reason to believe that this standard of protection

of fundamental rights through the application of the principles arising from them, has a lower

quality than the protection provided in the Czech Republic.



72. in finding an objective importance article. 14. 4 of the Charter, these

the facts ignored. It is not in accordance with the principle of an objective

a purposive interpretation, reflektujícího the reality of the present EU, based on the

high mobility of citizens within the whole EU space to article. 14

paragraph. 4 of the Charter has been interpreted as meaning that it does not allow nor limited in time

pass citizen to another Member State for the purpose of criminal proceedings

the crime of protest this citizen in this State, if the

guarantee that the criminal proceedings will, at his own request,

passed back to the United States for possible sentence (cf. section 411

paragraph. 7 tr.). Time-limited pass citizen to criminal proceedings

ongoing in another EU Member State, then the conditional

transfer to the country again, so it is not and cannot be a compelling urge to leave the

country within the meaning of article. 14. 4 of the Charter. Similarly, you can draw attention to the

adjustment, according to which the citizen of the Czech Republic or a person with permanent residency in the

The Czech Republic will be passed to the imprisonment or

the protective treatment or protective care in another Member State of the Union

only with their consent [section 411 (6) (b), (e)), tr.]. It follows from this,

that without his consent is not abroad to imprisonment

freedom no one passed.



VIII/b



73. The appellants have pointed out the Constitution of Estonia (article 36, paragraph 2), Lithuania

(article 13, paragraph 2), Poland (article 52, paragraph 4), Hungary (article 69, paragraph 1),

Slovenia (article 48), Germany (article 16, paragraph 2), Finland (article 9 (3)),

France (article 88-2, point 3), Italy (article 26), Portugal (article 33, paragraph 3)

or Spain (article 13, paragraph 3). The Constitution enshrining the right of those countries

State citizens to being extradited to a foreign country, or governing

exceptions for international treaty or namely only in relation to the EU.

Because in many countries in connection with the European arrest warrant

a change to the Constitution (the proposal provides for Germany and France), the promoters of

It was the existence of a general, widely shared by the constitutional principle of

prohibiting the extradition of their own citizens abroad. According to them, of

the conclusion is drawn that the transposition of the European arrest warrant in the United

Republic cannot be implemented otherwise than after previous constitutional change.



74. the Constitutional Court took into account that actually occurred in many countries in

the context of the implementation of the European arrest warrant to the amendment

Home of the Constitution (the following data according to reports on the XXI. The Congress Of FIDE,

Dublin, June 2004, available at http://www.fide2004.org, unless the

stated otherwise). In addition to the petitioner mentioned Germany and France can be

mention mj. Slovenia (Constitutional Act No. 24-899/2003) and Latvia.



75. The appellants, however, did not include a number of other EU Member States, where

the ban on extradition of their own citizens did not represent at all the question of the constitutional

principle, and not even been enshrined in law podústavním. For example. in

Greece has never been a ban on the issue of citizens considered the constitutional principle and

has always been dealt with only at the level of the law. Similar was the case in Denmark, where

It also was enough to change the current state of a mere change in the law. For

the situation, when the national Constitution questions of extradition or transfer of offenders

abroad does not regulate, there was no need to make any constitutional changes in the

The Netherlands (in accordance with the decision of the Council of State of the Netherlands), Belgium

Luxembourg or in Sweden (see reports on the aforementioned XXI. Congress

FIDE). In the specific constitutional situation of Great Britain was not a

adjustment of the European arrest warrant a more fundamental problem, because

British law to ban extradition of their own citizens never before (cf..

Blade, no, Sturm, p., public international law, Prague, 2003, page.

354). In contrast, the British lawyers themselves traditionally this solution nadřazovali

above the law (cf. the European continental countries. Biron, H.Ch.-

Chalmers, k. e., The Law and Practice of Extradition, London 1903, page.

13). British model that always allow for extradition of own citizen

in General, followed by the Republic of Ireland and Malta (cf. C. Stanbrook, I.-

C. stanbrook, c., Extradition: Law and Practice, 2nd ed., Oxford, 2000

p. 313, p. 385, p. 427).



76. The applicant referred to amend Poland Penal Code, code of criminal procedure

the Court and the law přestupkový law of 18 March 2004. March 2004 (Dz.u. 2004,

# 69, pol. 626). This amendment was not formally changed article. 55

paragraph. 1 the Polish Constitution (the plaintiffs incorrectly cite article 52, paragraph 4).

27 June 2002. 4. the Polish Constitutional Tribunal annulled the 2005 decision of the P/1/05

certain provisions of the amendment to the criminal law for the marked contradiction with article.

55 paragraph 1. l the Polish Constitution, according to which extradition is banned by the Polish

the citizen ("Ekstradycja polskiego obywatela jest zakazana.") and under whose

the second paragraph is prohibited extradition of persons suspected of political

the non-violent nature of the crimes. Polish Constitutional Tribunal said that, under the

the concept of extradition, within the meaning of article 87(1). 55 of the Constitution, must be, a fortiori, for their

also the transfer within the meaning of the European arrest warrant.



77. In this context, the Czech Constitutional Court points out that

the text of the article. 55 paragraph 1. 1 the Polish Constitution excludes any form of extradition

the Polish citizen (including even pass by the European arrest

warrant), as opposed to the language of article. 14. 4 the Czech Charter. In comparison

with the Czech constitutional order so the Polish Constitution does not give space for

its possible the interpretation of souladný with the obligations of the State towards the EU.



78. Having regard to these facts cannot be put right the appellants that from

comparative perspective can be inferred the existence of the general constitutional

the principle of the prohibition to issue its own citizens abroad and the need to

require for the implementation of the European arrest warrant a constitutional amendment. In

a number of EU Member States to avoid any constitutional change. The constitutional change is

necessary only where there would be a statutory change, induced by implementing

the European arrest warrant, in violation of the Constitution, i.e. in the home

the situation in which the domestic release or handover of the Constitution a citizen to a foreign State for the

the purpose of a criminal prosecution directly excluded.



VIII/c



79. The Constitution of the United States docked in the article. 1 (1). 2 general principle,

According to which the Czech Republic complies with the obligations under the

of international law. The Constitution should therefore be attached importance to

Conformal in terms of international law, as the Constitution itself is

in terms of value against international law, the (cf. find SP. zn. Pl. ÚS

31/03, a collection of findings and resolutions of the Constitutional Court, volume 32, finding no.

16, p. 143; promulgated under no. 105/2004 Sb.).



80. starting from 1. May 2004 article. 1 (1). 2 of the Constitution of new meaning in

relation to the compliance with the obligations which result from the Czech Republic

its membership in the EU. As the Constitutional Court in its case-law stressed,

European law is based on the fundamental values common to all

members of the EU. The Constitutional Court is so signed up to European legal culture and to

its constitutional traditions. In the light of general principles of law,

existing in all Member States of the Union, also the Constitutional Court

interprets the constitutional provisions, in particular the Charter of fundamental rights and

freedoms (find SP. zn. PL. ÚS 5/01, collection of findings and resolutions of the constitutional

Court, volume 24, no. 149, p. 79; promulgated under no 410/2001 Coll.).



81. It follows from the provisions of article. 1 (1). 2 of the Constitution, in conjunction with the principle of

cooperation, as embodied by the article. 10 of the EC Treaty, it follows the constitutional principle,

According to which domestic laws including the Constitution are to be

interpreted, if possible, souladně with the processes of European integration and

cooperation of the European institutions and the authorities of the Member State (see, by analogy,

the decision of the Polish Constitutional Tribunal to 15/04 of 31 July. in May 2004,

OTK ZU ser. A., the amount of 5, No 47, pp. 655-668, and notably in terms

about the regulations of the so-called. III. the pillars of the ECJ, decision of 16 April 2003. June 2005,

According to which the principle of conforming interpretation also applies to the framework

decisions taken under Title VI. Treaty on European Union, see case

C-105/03 Maria Pupino. 43).



82. the constitutional principle of the interpretation of domestic law with the obligations of the United souladně

States arising from its membership in the European Union is limited

a possible meaning of the constitutional text. Article 1 (1). 2 of the Constitution, therefore, is not

the provisions of any eligible to change the meaning of any other

the express constitutional provision. If the home of the interpretation methodology

constitutional law does not allow you to lay out a standard souladně with

European law, it is up to the constitutional legislators paid change the Constitution. This power

However, ústavodárce can perform only in terms of the preservation of the essential

the terms democratic rule of law (article 9, paragraph 2, of the Constitution), which

are not available, so ústavodárce the power to amend these requirements

You cannot transfer or agreement referred to in article. 10A of the Constitution (cf.. Holländer, P.,

The focal point of the Constitution, and discretion in material ústavodárce, a lawyer for no. 4/2005).



83. It therefore follows that, if there is one, according to the home of the methodology

interpretation, several possible interpretations of the Constitution, with only some of the


These lead to the attainment of the undertaking, which took over the Czech Republic for its

membership in the European Union, it is necessary to choose the interpretation which supports

the implementation of this commitment, not the interpretation that this implementation

makes it impossible. This principle shall be maintained at the same article. 1 (1). 2 of the Constitution.

These findings also apply to the interpretation of the article. 14. 4 of the Charter. Because

The Constitutional Court interpreted the meaning of the article. 14. 4 of the Charter, according to the home

methodology of interpretation of the Constitution, there was no need to do the measurement in account

attributable to values and principles of European law and constitutional law

domestic.



VIII/d



84. The finding of the Constitutional Court, published under no. 209/1994 Coll., on which

refer the appellants state citizenship ", defined as a time-

permanent, locally unlimited legal relationship of physical persons and the State, which is

against the will of individuals usually signify your acceptance, on the basis of

his subjects are formed mutual rights and obligations of

in particular, the law on the protection of individuals from the State on its territory

and beyond, in the right of residence within its territory and in the right to participate in its management

Public Affairs "(find SP. zn. PL. ÚS 9/94, a collection of awards and

the resolution of the Constitutional Court, volume 2, finding no 40, page 7).



85. the right of the citizen to the protection by the State is exposed. in the fact that

should there be an infringement of article 81(1). 14. 4 in conjunction with article. paragraph 36. 1 of the Charter

and article. 6 (1). 1 of the Convention, if the citizen was passed to the criminal proceedings to the

State where standards of criminal procedure did not meet the requirements

in criminal proceedings, e.g. the Czech constitutional order. in a situation where the

It was actually compromised the right of the citizen to a fair trial (article 36, paragraph 1,

Of the Charter), or where a citizen could be subjected to torture or other

inhuman or degrading treatment or punishment (article 3 of the Convention, article 7

paragraph. 2 of the Charter). This, of course, in the case of the European arrest

the warrant is not.



86. in 2003, the ECJ held that ' the Member States have mutual

confidence in their criminal justice systems and each of them recognises the criminal

the law in force in another Member State, even if the application

their own right came to the conclusion "[case C-187/01 and

C-385/01, criminal proceedings against Hüseyinu Gözütokovi (C-187/01) and Klaus

Brüggemu (C-385/01), (2003) ECR I-1345, para. 33]. Should always be

Mindful of the fact that all EU Member States are signatories to the

The European Convention for the protection of human rights and freedoms. Therefore, it cannot be

citizen beyond prejudice to his rights by his criminal case

will be decided in another Member State of the Union, for each Member State

The EU is bound by the standard of human rights protection, which is equivalent to

the standard required in the Czech Republic, while the legal systems of all the

the Member States are based on the values to which our State

signed up only after 1989. The Czech Charter of fundamental rights and freedoms

also is based on the European Convention for the protection of human rights and

freedoms.



87. the framework decision, with regard to the previously mentioned principle of mutual

trust between EU Member States in the functioning of the criminal justice system,

based on the fact that the implementation of the European arrest warrant can be

pause only in the case of serious and persistent violations of the principles

laid down in article 4(1). 6 (1). 1 of the EU Treaty (protection of human rights)

by a Member State, where such violations must be formally

The Council established in accordance with article 7(2). 7 of the EU Treaty (paragraph tenth

of the preamble).



88. in a policy of insurance which guarantees the protection of the Czech citizen to

constitutional law level, can be considered the provisions of § 377 of the order, according to the market.

where the application authority of a foreign State cannot be accepted if its

executing the Constitution of the United States have been infringed or such provision

the legal order of the Czech Republic, where it is necessary to insist without reservation,

or, if the request was damaged by another significant protected

interest in the United States. This principle, contained in title twenty-fifth

the first section of the tr procedure (listed as the General provisions), i.e.

covers both the classical management expended according to the section of the second, so the

the procedure for surrender of the person between EU Member States on the basis of the European

the arrest warrant, according to the third section of the same title. About the importance of

provisions are still leads the professional discussion (cf.. Zeman J.,

"The limits of the review of the constitutionality of the transposition of the framework

the decision on eurozatykači, Právní rozhledy 3/2006).



89. Although the provisions of the criminal procedure code begin with this marginal

"the protection of the interests of the State", in particular, from the text of the first sentence of the

inferred that they would act, in particular, the interest of the State on how to avoid

violations of the fundamental rights of Czech citizens, as enshrined in the constitutional order

The United States, which is also an integral part of the Charter of fundamental rights and

freedoms (... If you would regard the Constitution have been infringed United

States or such provisions of the legal order of the Czech Republic, the

which must be without reservation to take...).



90. A person who has to be forwarded to another EU country, is preserved the right to

to relevant provisions of law in criminal proceedings

the complaint, which has a suspensory effect (article 411, paragraph 5, tr.), and

possibly also a constitutional complaint, and after the period during which the constitutional

the Court rules, the deadline for the surrender of the person is not running (§ 415, paragraph 3, tr.).

These provisions are maintained to protect the citizen, where appropriate, other persons,

that has to be passed on to the criminal proceedings, and at the same time is maintained

the condition that due to the surrender of the requested person will not be in the individual

case, without prejudice to the constitutional order of the Czech Republic.



91. These policies comply with the framework decision, according to which nothing

in it shall be interpreted as prohibiting refuse to surrender a person

the European arrest warrant has been issued, if any, on the basis of

objective facts, the grounds for believing, that the said arrest warrant

It was issued for the purpose of prosecuting or punishing the person on the basis of

his or her sex, race, religion, ethnic origin, national

nationality, language, political opinions or sexual orientation,

or that that person's position may be for one of these reasons

worsened by. The framework decision does not prevent a Member State, to

applying its constitutional rules relating to due process,

freedom of Association, freedom of the press and freedom of expression in other

the media. The framework decision also expressly declares,

that no one should be removed, expelled or extradited to a State in which the

There is a serious risk that he would be subjected to the death penalty, torture

or other inhuman or degrading treatment or punishment.



92. The reason for the rejection of the request for surrender of the requested person is mj.

a situation where the offence for which the European arrest warrant

issued by an amnesty that was granted in the Czech Republic,

or the criminal prosecution or punishment is statute-barred in the Czech Republic,

If the prosecution of this offence falls within the scope of the

the criminal laws of the United States [section 411 (6) (b)).

order].



93. it is also Preserved the principle of ne bis in idem. Under section 411 of paragraph 1. 6

(a). (c)) tr. a request for the order will be rejected if the requested person

was in the Czech Republic or the foreign State for the same Act has already been

sentenced by a final decision and the sentence has already been carried out or is being

exercised or can no longer be enforced, or the criminal proceedings in the United

Republic or another Member State by a final decision concluded,

in the absence of such a decision in the prescribed proceedings canceled.



94. Finally, it should be pointed out that the criminal proceedings are in progress

the requested person on the territory of the Czech Republic takes precedence over passing

the requested person according to the European arrest warrant [under section 411 (6)

(a). d) tr. order Court rejects surrender of the requested person if

the requested person is prosecuted in the Czech Republic for the same Act, for

which the European arrest warrant].



95. It is therefore not justified to claim that national by editing the

the European arrest warrant has been disturbed by the relationship between the citizen and the State.

Citizen passed to the criminal proceedings in the Member State of the EU, and at the time of

the duration of the criminal proceedings under the protection of the Czech State. European arrest

the order allows only limited transfer of the citizen for his prosecution in the

the Member State of the EU for specifically defined the deed, and after the end of

This criminal proceedings does not prevent him to go back (possibly to

the sentence in the territory of the Czech Republic). The criminal procedure code specifies the

the reasons for which the surrender of the person to another Member of the Union does not

(ESP. § 411). Citizen has the right to defend itself against the measures of law

enforcement remedies that have a suspensory effect (see

section 411 paragraph. 5 tr.), including eventual constitutional complaint. In

If the passing of the citizen in violation of the constitutional order, to

pass citizen does not occur.



96. in those conclusions, it is necessary to take into account not only the protection of the rights of persons


suspected of having committed an offence, but also the interests of victims of crime

offences. To protect the rights of victims and victims generally appears as a

more practical and equitable, that criminal proceedings took place in the State in

which the Commission of the offence (cf. conditions for solution

the case of overlapping of multiple European arrest warrants in Section 419 tr. procedure and

article. 16 of the framework decision, where one of the basic conditions, the

consideration of the questions of the place of the offence). Since the implementation of the European

the arrest warrant for the passing of your own citizens is subject to

reciprocity (section 403, paragraph 2, tr.), the applicant challenged the adjustment

It protects the rights of persons who are considered as a person damaged by the Czech

the criminal procedure code. In general it can be said that in the State where the crime

There has been, will be, having regard to the evidence in this State shall

located, criminal proceedings are faster, more efficient, and at the same time

more credible and fairer for both the accused and, where

the victim of the offence.



IX.



The compliance of the contested provisions with other provisions of the Charter of



97. The Constitutional Court considered the compliance of the contested provisions, particularly section 412

paragraph. 1 and 2 of the tr procedure, as well as with article 39 of the Charter, according to which the law

provides that the offence is a crime and what penalty, as well as other

harm to the rights or assets, may be a criminal offence save. The provisions of §

412. the order implements article editing. 2 (2). 2 of the framework decision and the

breaks the principle according to which persons shall not be issued for criminal prosecution to

abroad, unless they are suspected of having committed an act which is a criminal

how the law of the requesting State and in the State of the transferring. According to the

Section 412 (1) market order in the case, which is required for criminal forwarding

actions for which it is possible to save the State in requiring a prison sentence

freedom with the upper bounds of the criminal rates of at least three years or require

protective measures associated with the restriction of liberty of not less than three years and

consisting in the negotiations, which the Authority requiring the State marks in

the European arrest warrant as one or more of the activities referred to in

paragraph 2, the Court does not determine whether it is an offense punishable under the law of the United

of the Republic. The provisions of § 412 paragraph. 2. the order then lists the criminal

offences for which court in connection with the delivery procedure does not check their

offence under the law of the United States.



98. At first glance, it would seem that the argument that relates to that section

412 is in breach of article 39 of the Charter, can be rejected as from

the principle of the excluded. In particular, it should be noted that article. 1 (1). 3

The framework decision provides that "the provisions of this framework decision does not

without prejudice to the obligation to respect fundamental rights and general principles of law, as enshrined

in the article. 6 of the EU Treaty ". Therefore, the framework decision cannot be

interpreted in a way that would require the Member State to do something

would mean a breach of fundamental rights, including the principle of legality,

laid down in article 4(1). 39 of the Charter.



99. The generally accepted principle of legality, is contained in the article. 39 of the Charter,

means in particular the requirement that the State can save a person a penalty

only on the basis of sound information contained in its own right, according to the

which is the exact behavior of this State is prohibited. In this way, the State

giving all operators to anticipate the consequences of their actions (General

the requirement of predictability). This requirement has two aspects. The first is,

that the law of the State shall clearly and precisely define the conduct which is prohibited

(the clarity of the standards). Second, there must be a connection between the

conduct of the accused and the subject areas, or public interest of the State,

(I) to punish (nexus, i.e. link with criminal jurisdiction of

the State), in order to allow the entity to realize that his

behavior raises the consequences foreseen by the laws of that State.



100. Seen from this perspective, the argument against § 412 tr. of law, expert

literally, would mean that the Czech Republic has failed in the request

respect for the principle of predictability, criminal law. But this

the argument ignores the fact that article. 39 of the Charter generally restricts the Czech

Republic in its own criminal jurisdiction. Indeed, it does not regulate or

extradition or surrender of the person. In a situation where the Czech law gives Czech

Republic of the extradition or surrender of the person, located in the

the jurisdiction of the Czech Republic, its criminal jurisdiction applies against

the defendant, so it would seem that the article. 39 of the Charter will not apply. Finally, the

§ 412 tr. order does not define the crime and that this provision could be

applied, such offences must be precisely defined in the law of the State

requesting the release or surrender of the person. The provisions of article. 39 of the Charter,

According to its wording, applies strictly where Czech Republic sama's

wishes to prosecute the person. In this case, absolutely

that article applies. 39 of the Charter requires that such prosecutions took place

only for the criminal offence defined in its criminal code. From the top

for the reasons given by the adoption of the provisions of § 412 tr. order of the Czech Republic

did not infringe the principle of legality, embodied in article. 39 of the Charter.



101. The Constitutional Court therefore does not identify with the arguments of the appellants,

who argue that § 412 paragraph. 2. the order is in conflict with article. 39 of the Charter,

because this adjustment not does not define criminal offences not requiring

double criminality. If this were a substantive provision

dealing with the offence of acting in a manner in which it is § 412 paragraph. 2 tr.

order, that is, its just the naming of any statutory definition, without an

would certainly be a conflict with the article. 39 of the Charter. The Constitutional Court, however, is based on the

the fact that § 412 paragraph. 2. the order is not the provisions of substantive,

but a procedural. Transmission pursuant to a European arrest warrant yet

It is not the imposition of a sentence within the meaning of article 87(1). and article 39. 40 of the Charter.



102. persons suspected of having committed a criminal offence and transmitted pursuant to

the European arrest warrant will not be prosecuted for the crime

pursuant to section 412 of paragraph 1. 2. the order, but the criminal proceedings will be conducted for

offences defined in substantive law requiring State of the EU. Legal

the calculation of the offences in § 412 paragraph. 2. regulations (article 2, paragraph 2,

The framework decision) solely serves the procedural steps of the Court. Czech

the Court in the event that the authority of the requesting State marks in the European

the arrest warrant to be passed to the person's behavior as one of the negotiations

referred to in section 412 of paragraph 1. 2. order, or article. 2 (2). 2 of the framework

the decision does not determine the criminalization of such offence under the law of the Czech

of the Republic. The adoption of section 412 tr. procedure therefore does not entail that the

criminal law of all EU member countries become applicable to the territory of

Of the Czech Republic. It means only that the Czech Republic helps others

the EU Member States in the enforcement of the criminal law. The person in the

Czech Republic (citizens, residents and other persons commonly

located on its territory), therefore, the provisions of § 412 tr. of the order does not

the obligation to be familiar with the criminal law of all EU countries.



103. The enumeration of offences in § 412 paragraph. 2. order, or article. 2 (2). 2

In addition, the framework decision corresponds generally to actions which are punishable

and according to Czech law, though it may not exactly match the name of the

of the relevant offence. Enumeration of offences that do not require

double criminality, it is not given, it would be expected that the

some of these negotiations is not a crime in any of the Member

States, but on the contrary, that it is a conduct which, having regard to the

shared values, are punishable in all Member States of the EU. The reason for this

This enumeration is revving up the execution of the European arrest warrant,

because of the discovery that such procedure instantiations of offence referred to in

Czech law. In addition, the adoption of this framework decision, each

EU Member State expressed its consent with the understanding that all offences

falling within the following categories defined in General will also be criminally

prosecuted.



104. the fact that § 412 tr. procedure does not provide a legal basis for the

the prosecution in the Czech Republic, still does not exhaust the question of whether or

was not violated article. 39 of the Charter. As the provisions relating to cooperation in

criminal matters between independent States, this question cannot be considered

only from the perspective of the United States. You must also have in mind that the

the person subject to the jurisdiction of the United States, may also be

subject to the criminal jurisdiction of other States. This may be the case,

when their action took place partly in the Czech Republic, partly in another

State, or their behavior in the Czech Republic has provoked consequences in another

State. This legislation must therefore be seen in a wider sense, since it refers to

international context and must be aware of the fact that, in

such cases will apply legal systems other than

home, Czech. This aspect brings another dimension of the protection granted

article. 39 of the Charter.



105. this additional dimension article. 39 of the Charter is that it prevents

The Czech Republic participate directly or assist another State which

does not respect the principle of legality, in the implementation of criminal penalties. To do this,


There would be a situation where the Czech Republic sama netrestala and forwarded

should the accused to a State which does not respect the principle of legality. This should be taken

into account the importance of the decision of the European Court of human rights under the

article. 3 of the Convention (case of Soering v. United Kingdom), which prohibits the

Member States of the Council of Europe to the State of extradition, which is not bound

the prohibition of cruel or arbitrary treatment and who does not give a guarantee that this

the ban does not break.



106. In the light of other considerations, above, aspects of the principle of

of legality, the Constitutional Court may assess whether leave request

double criminality is a violation of article 6(1). 39 of the Charter. Request

double criminality is a typical insurance policy against the States having

the contractual obligation to extradite someone to punish for conduct which, in itself,

does the reason prosecution. It was a guarantee against liability

work or tolerated the conduct of the recipient State, that

disregarded the principles of legality, the prohibition of cruel, arbitrary or

unfair treatment or punishment. The basic idea is that if both

the States concerned find a particular type of conduct is worthy of punishment, then

the issuing State can hardly claim that the punishment for such conduct would

He was cruel, arbitrary or contrary to the principle of legality.



107. Leaving the principle of double criminality in relation to Member

Therefore, the EU States will not infringe in any way the principle of the legality of the Czech Republic. In General, the

words, a requirement of double criminality, as may be the fuse,

abandoned in the relationship between the EU Member States that have sufficient

level of mutual convergence of values and mutual trust, it is a

democratic regimes following principles of "rule of law" and are bound

the obligations to comply with this principle. This is exactly the situation in which the level of

convergence between the 25 EU Member States has reached such a degree of mutual

trust that I do not feel the need to cling to the principle of double criminality.



108. following the conclusion that the principle of legality according to art. 39 of the Charter does not require the

insist on the principle of double criminality as a necessary component

the handover process, the Constitutional Court turned its attention to the assessment of the

the question whether the surrender of the person under the framework decision is not contrary to article. 39

Of the Charter. It goes without saying that this article would have forbade the Czech Republic

pass a person for the purposes of prosecution to the State which would, in his

the law did not clearly defined, that the conduct which the accused committed,

is a crime in that State. But there is nothing in the framework decision, what would

The Czech Republic from being saved, thus proceeded. Moreover, even if it would be

This behavior in a State which intends to claim against the person of its criminal

power, exactly defined, the principle of legality still requires

Nexus (see explanation above) between the alleged conduct and the State wanting to take

prosecute.



109. International law recognizes several legitimate considerations that enable

of the State to exercise its criminal jurisdiction. These generally accepted

aspects are the principle of nationality borders, protection of the universality and

territoriality. Apart from a few minor exceptions, which do not need to be

the deal, the first three principles do not pose any serious problem in

relation to the requirement of nexus. In terms of the requirement of nexus, therefore, does not change anything

at the previous state when the citizens of the United States and the next person in its

the powers were and are responsible, under the law of that State,

those offences which they commit abroad. To all persons fell

and turns out the territoriality principle, establishing the scope of the criminal law

the material on the territory of foreign States (including the EU) on the territory of the

These States to commit crime. The appellants ' reasoning about buying

national criminal legislation, publishing all of the other 24

EU Member States are therefore not appropriate. The principle of territoriality, although

a total of generally accepted, bringing some application problems. For example, the

It is generally accepted that the State may exercise their criminal jurisdiction for

the behavior implemented on its territory, which is sufficient for the recognition of the nexus.

However, the principle of territoriality also includes the application of the powers of the State

at the hearing, that although there have been outside its territory, but the consequences have affected

its territory.



110. The Constitutional Court is based on the fact that the handover of the Czech citizen or other

persons legally with a holding in the Czech Republic for the purpose of

prosecution in another EU Member State will regularly find it

into account only if the conduct criminal znamenajícímu

the crime occurred not in the Czech Republic, but in another Member State of the Union.

If there is a part of the offence abroad, work in the United

Republic, will be considered criminal prosecution in the Czech Republic. By

a setback for the transfer of the person to the criminal proceedings abroad

[cf. section 411 (6) (b), (d)), tr.], unless, having regard to the

the nature of the negotiations, the more effective prosecution in another EU Member State,

for example. because in this state it is decisive evidence of the deed

played mostly in that State, etc.



111. According to the article. 4 (4). 7 of the framework decision, the executing

judicial authority to refuse to execute a European arrest warrant if the

as regards the offence that has been committed wholly or partly in the territory of

the executing Member State or in a place that is in the territory of the

shall be considered. This provision, which provides domestic judicial authority

discretion, whether the European arrest warrant, refuse,

protects the value of legal certainty, which is also the value of the rights of European and

compliance with which at European level is a precondition that the Czech

the constitutional order will allow the application of European law in the domestic legal order

(in this case, the implementation and application of the framework decision). Article

4 (4). 7 of the framework decision, while not specifically in the Czech legal

regulations implemented, but in accordance with the principle of constitutional Conformal

interpretation of the Czech judicial authority must take into account the confidence of Czech

State citizens that their conduct in the territory of the Czech Republic is

regulated by the Czech criminal law. Indeed, if staying for a Czech citizen at the

the territory of the Czech Republic, it is applied to its domestic law, conduct of

Hence also constitutionally protected trust this person in it, that its

legal action shall be accompanied by the legal consequences set by Czech law.

The General value of legal certainty in the area of constitutional law is its

in principle, formulated in the article. 39 of the Charter and in plane podústavního

the law is expressed in a general principle, the provisions of § 377 tr. the order, which

secondarily, applies in respect of section 411 paragraph. 6 (a). d) tr. order will be

applied only if the same Act is not criminal so far

the prosecution in the Czech Republic.



112. According to § 377 tr. regulations, interpreted within the meaning of 4 (4). 7

The framework decision, i.e. the Czech citizen will not be passed to another

EU Member State on suspicion of having committed a criminal offence which had

be committed in the territory of the United States, except in cases where, with regard to the

the particular circumstances of the offence, it is necessary to give priority to

the implementation of criminal prosecution in the requesting State, for example, for reasons of

the proper establishment of facts of the negotiations, which are for the most part

took place abroad, and prosecutions in the Member State of the Union is in a given

the case is more appropriate than the prosecution of that person in the territory of the Czech Republic.

Discretion of the Court, which may, but need not, refuse enforcement of a European

the arrest warrant, there is no need, because in many cases it will be appropriate

that person was suspected of having committed a criminal offence, even if its passed to the

activity in the territory of the United States (e.g., the organizer of the

the Act, whose implementation was in another Member State of the Union).

Further to this provision, however, does the instantiation to decision-making

practice and at this stage is not on the Constitutional Court to this practice anticipated.



113. The Constitutional Court emphasises that the Czech Constitution does not protect only

Czech State citizens confidence in the Czech law, but also protects the

confidence and legal certainty as well as other people, rightly as the

the territory of the Czech Republic (e.g., persons of foreign nationality with permanent

the stay on the territory of the Czech Republic).



114. A specific category, under the principle of territoriality,

constitute criminal offences perpetrated in particular through distance,

computing, which in theory concede that the consequences of the acts,

which occurs in the Czech Republic, another EU Member State

populate the merits of the crime. The Constitutional Court admits that

would, in exceptional circumstances, the application of the European

an arrest warrant in violation of the constitutional order of the Czech Republic,

in particular, in the case that the tort was parttime offence pursuant to

the law of the requesting State, has not, however, a criminal offence under Czech

criminal law, or would even be ingested in the Czech Republic

constitutional protection (e.g. in the framework of the constitutional protection of freedom of speech). In this

the meaning of the appellants ' objections are well founded. In this, though


the unlikely event she would be the application of § 377 of the order.

that contains the mechanism to avoid the institutional consequences of the European

the arrest warrant, within the meaning of the above.



115. Therefore, even if the contested provisions may be tr. regulations applied

unconstitutionally, such hypothetical and is not an unlikely situation

the reason for their removal. The Constitutional Court conversant in their

case-law stated that "in theory, you can, of course, each of the provisions

legislation administered incorrectly, thus conflicts with the constitutional

the regulations, which in itself cannot be a reason for cancellation as follows

Alternatively, the applicable regulation incorrectly. " (find SP. zn. Pl. ÚS

8/98, a collection of findings and resolutions of the Constitutional Court, volume 12, finding no.

141; promulgated under no. 300/1998 Coll.). In other words, if the law

eligible to have multiple interpretations, and only one of them is

unconstitutional, it is necessary to choose the interpretation of constitutionally Conformal (find SP. zn.

PL. ÚS 48/95, collection of findings and resolutions of the Constitutional Court, volume 5, finding

# 21; promulgated under no. 121/1996). The purpose of the procedure for the General inspection

However, the standards do not address all the various hypothetical situations that

so far, there have been, even if perhaps sometimes can occur. If the following Constitutional

the Court proceeded, exceeded by its function, which belongs within the

General inspection standards, and replaced by the protection of the fundamental rights which

from the nature of things must provide general and administrative courts.



116. with regard to the compliance of the contested provisions with article. 8 of the Charter, i.e.. with

the right to personal freedom, fundamental rights enshrined in this article are

provided in the procedure of the judicial authorities prescribed under section 409 et seq..

the criminal procedure code.



117. The Constitutional Court finally points out that the EU Council may, after consultation with the

The European Parliament, to extend the list of offences referred to in article 14(2). 2

paragraph. 2 of the framework decision, which do not require the principle of double

that, on other kinds of crime (article 2, paragraph 3, of the framework

decision). Can only do so by a unanimous decision, that is, only

with the consent of the representative of the United States, which will, in its possible

consent to an extension of the list of such offences, to take account of whether or not to

the requirements of the Czech constitutional order. At the same time, of course, will not be

excluded re-examination of Czech criminal law amended

The Constitutional Court.



118. with regard to all the above conclusions of law, the Constitutional Court

the proposal rejected.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, a decision of the plenary, the judges adopted a

Stanislav Balík, Vlasta Formankova and Elisabeth Wagner.