The Constitutional Court
On behalf of the United States
The Constitutional Court decided in plenary consisting of Chairman Paul Rychetského and
judges of Stanislav Duchoně, Bumpkin, Formánkové, Vlasta Vojena
Güttlera, Pavla Holländera, Ivana Janů, Vladimir Crust, Dagmar
Lastovecké, Jiří Mucha, Jan Musil, Jiří Nykodýma, Miloslava
Excellent and Eliška Wagner about the design II. the Chamber of the Constitutional Court on the
repeal of § 400 paragraph. 1 and § 398 paragraph. 6 of the code of criminal procedure, with the participation of
The Chamber of deputies of the Parliament and the Senate, as participants
1. The provisions of § 398 paragraph. 6 first sentence and section 400 paragraph. 1 of law No.
141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by
amended, shall be abolished on 31 December. December 2008.
2. the proposal to repeal section 398 paragraph. 6 second sentence Act No. 141/1961 Coll. on
criminal procedure (code of criminal procedure), as amended,
The definition of things and a recap of the proposal
1. the constitutional complaints have been filed to a carriage on 29. December 2005
with h. (the "complainant") seeks the annulment of the resolutions of the City
Court in Prague, SP. zn. NT 450/2004 of 9 July 2004. in September 2005, which have not been
accepted his offer of bail in the amount of Czk 100 000, has not been accepted
offer his written promise, and was denied his request for release
from custody, and the resolution of the High Court in Prague, SP. zn. 1 It
43/2005 of 4 October 2005. November 2005, which was his complaint is rejected.
They claim that they have been violated his fundamental rights under art. 8 (2). 2 and
article. 38 para. 2 of the Charter of fundamental rights and freedoms ("the Charter").
2. From the attached file of a municipal court in Prague SP. zn. NT 450/2004
The Constitutional Court found that the Official Court in Hof (the Federal Republic of
Germany) went on to the complainant on 8. November 2004 under SP. zn. 1 Gs
1914/04 command to the arrest. The reason for this was the charge that he had in the nine
cases, in Exchange for help to other foreigners, in violation of the law
they arrived in the period from August 2003 to August 2004, in the territory of the Federal
Republic of Germany, to the benefit of more foreigners, and as a member of
organized groups, and in two cases, the same conduct in the same
time, he had to try. This was supposed to commit an offence under section 92 para. 1
number 1, number 6, § 92a para. 1 number 1, number 2, § 92a para. 3, and section
paragraph 92B. 1 of the Aliens Act, and the Federal Republic of Germany pursuant to §
22, § 23, § 53 of the Criminal Code of the Federal Republic Germany. Was it
útěkový reason is found to be binding.
3. on the basis of this arrest warrant was the complainant from 27. December
2004 limited to freedom and the resolution of the President of the Chamber of the municipal court in
Prague No. 450/2004 of Nt-23 of 29 October 2003. December 2004 was taken into
temporary custody. By order of the High Court in Prague, no. 1
3/2005-97 of 3 July 2003. znora 2005 was his complaint as unfounded
rejected. Non-dated 14. in March 2005, the complainant agreed with your
the release of the prosecution in the Federal Republic of Germany and the same
consent and repeated questioning, held at the municipal court in
Prague, May 22. April 2005, when the then resolution No. j. Nt 449/2004-217
decided on the conversion of a preliminary binding to bind the extradition. 29 April 2004. April
2005 proposed by the Prosecutor of the municipal public prosecutor's Office in the
Prague, to the Minister of Justice has authorized the issue of the complainant to the criminal
the prosecution in the Federal Republic of Germany.
4. By decision of the Minister of justice no. 2352/2004-MO-M/13 of
May 12, 2005, on the one hand allowed the release of the complainant to the criminal
the prosecution in the Federal Republic of Germany, and at the same time was the realization of the release
postponed until the end of the criminal proceedings against him are conducted
in the District Court in Děčín under SP. zn. 6 T 93/2003, or until after the
the end of a possible prison sentence. About this decision
He was the municipal court informed non-Ministry of Justice
delivered on 17. May 2005. Non, delivered on 11 July. August 2005,
Municipal Court in Prague has been informed that the decision of the Minister of
of Justice of 12 October. in May 2005, it was replaced by decision
the Minister of justice no. 2352/2004-MO-M/25 of 5 December 2003. August 2005,
When the change consisted in modifying the file tag control, held at the
The District Court in Děčín on SP. zn. 6 T 93/2002. Fax sent
on 19 December. September 2005, he was finally in Prague City Court informed that
the decision of the Minister of Justice of 5 November 2002. August 2005 has been replaced by
by decision of the Minister of justice no. 811/2004-MO-M/31 of 12 November.
in September 2005, which was to postpone the realization of the release of the extended period of time to
the end of the proceedings conducted by the police of the Czech Republic, by the criminal
Police and investigation, the Department for the detection of organised crime
under ČTS: 148/ÚOOZ-V7-2003-E2, or until after the end of any
5. Submission of 15 April. June 2005, the complainant asked for the release of the
extradition binding, and offered a financial guarantee amounting to 100 000 Eur and
a written promise. By order of the municipal court in Prague no Nt 450/2004-264
of 9 June. September 2005 not accepted the offer of bail and the offer
a written promise and proposal for the release of the binding extradition was rejected.
By order of the High Court in Prague No 1 To 43/2005-282 dated May 4.
November 2005, the complainant's complaint was dismissed as unfounded.
6. a constitutional complaint, the complainant points out that, in the proceedings
The District Court in Děčín under SP. zn. 6 T 93/2002 delays that
in this case include thirteen co-defendants and a final decision can be
expect more in the horizon years. Regarding the newly initiated criminal
the prosecution argues that about eight of the nine alleged deeds is prosecuted in
The Federal Republic of Germany in the proceedings for which the extradition is in the
the binding. Concerned, therefore, that may be in the territory of both States in parallel
sentenced to an identical crime. This criminal prosecution while
should be initiated "just in case" If the prosecution in the Federal
Republic of Germany were frustrated. It is also of the opinion that, from the start
the last prosecution reasons extradition binding and, paradoxically,
the authorities of the Federal Republic of Germany are waiting for his release and authorities responsible
in criminal proceedings, are waiting for their criminal prosecution in the Federal
Republic of Germany. The complainant is already more than a year is in custody,
without its proceedings there was any progress. The permanence in
extradition custody is harassment from the defence in criminal proceedings
against him in the Federal Republic of Germany, even if just for the opportunity to
its effective execution of agreed to its release. To the very
fear of the escape says that a few years ago, he married a citizen of the United
Republic, which now has a four-year daughter that properly old and
the Czech Republic does not intend to leave. While the proceedings before the district
a court in Decin is in progress for several years without being tried because of
7. The Constitutional Court has called on the parties to express their views to the constitutional
the complaint. The municipal court in Prague, which is the only one put it, to refer to the
the preamble to its decision. It is considered that due to the severity of the criminal
things, for which the Federal Republic of Germany on the issue of calls is
undoubtedly, given the concern of the escape and thus of thwarting the release. Points out that the
with the release of the complainant agreed and the right to bring a complaint against the decision of the
on the conversion of binding prior to extradition is expressly waived. If
the complainant has not received a decision of the Minister of Justice, which was
release, it should be allowed to be turned directly to the Ministry of
8. In the reply, the complainant pointed out that the police authority is now prosecuted
for the identical operation for which is located in extradition custody. In that
connection attempts repeatedly asked to police against him
launched a criminal prosecution for other works, for which he is prosecuted also
in the Federal Republic of Germany. Considers that extradition binding in
the fact is replaced by binding the inquiry, for which, however, there is no
the legal reason, for binding, it takes more than 16 months.
9. at the invitation of the Constitutional Court the Minister of Justice said that in the light of
the fact that the realization of the release has been delayed because of the
RES pending prosecution, was not considered any
a specific time limit for this postponement. Does not consider that the statutory
the adjustment was to the detriment of fundamental rights of the person whose extradition is going on, and it
in particular, having regard to the fact that it has the right to request a release from
extradition custody. To postpone the implementation of the release occurred with regard to the
information about criminal proceedings against the complainant conducted in
territory of the country.
10. at the invitation of the Constitutional Court said the District Court in Děčín, that under the sp.
Zn. 6 T 93/2002, it is against the complainants and other individuals criminal
proceedings for offences of a criminal organisation under Section 163a para. 1
criminal law and illegal crossing of the State border pursuant to section 171a
paragraph. 1 and 2 (a). (b)), and (c)) of the criminal code, which consists in the organisation of
illegal transfer of persons in the Federal Republic of Germany. The complainant
nepravomocně was sentenced by a judgment of the District Court in Děčín from 15 October.
November 2002 for one attack of the alleged offence to a penalty involving deprivation of
freedom in the duration of eight months, conditionally deferred for a trial period in
duration of 18 months. The complainant in this matter was in custody from 26.
June 2001 to 12. November 2002. On the appeal against the judgment so far
It wasn't factually decided, and forecast a further control was
given that Court to a term of months with regard to this, that this is a
crime committed in forty incremental acts asked for
a total of fifteen persons to blame. The Constitutional Court notes that
This is not factually and temporally identical acts like the ones for which he is prosecuted in
The Federal Republic of Germany.
11. The police of the Czech Republic informed the Constitutional Court, that in the case of the next
the prosecution of the complainant were acts of criminal proceedings in the case of suspicion of
the offence of illegal crossing of the State border pursuant to §
171a para. 1 and 2 (a). (c)) of the criminal code the complainant started already
on 7 December. July 2003. After you begin criminal prosecution in August 2005
the complainant questioned and since February 2006 were carried out interrogations of five people (from the
the two of them getting fired is based the arrest warrant, which is
the complainant in extradition custody), which had to be repeatedly předvolávány.
The other operations are carried out.
12. II. Chamber of the Constitutional Court came to the conclusion that there is no reason for
rejection of the constitutional complaint pursuant to section 43 of Act No. 182/1993 Coll., on the
The Constitutional Court, as amended by later regulations (hereinafter referred to as "the law of
The Constitutional Court "). The essence of the constitutional complaint is the opposition of the complainant
with the postponement of its release to the criminal prosecutions of which under section 400 paragraph.
1 of the criminal procedure code the Minister of Justice decided. The Minister of Justice
It is formally a part of the Executive, that is, completely outside the judiciary, without
in his position it was possible to find necessary material conditions of
authority. General courts according to this and related provisions
the criminal procedure code fail to the legitimacy of the duration limitation of personal freedom
expended is bound for reasons other than the existence of for the release. In
last but not least is not in the podústavním law in General for extradition, i.e., binding
even if the postponement issue, determined the maximum possible duration of
This binding, as in the case of binding pursuant to § 67 et seq.. the criminal
of the order. II. the Senate's Constitutional Court therefore concluded that the provisions of section
400 paragraph. 1 code of criminal procedure clearly is in breach of article 88(3). 8 (2). 1 and
5 of the Charter, or article. 5 (3). 1 (b). (c)) and paragraph 2. 3 of the Convention on the protection of
human rights and fundamental freedoms (hereinafter referred to as "the Convention").
13. Subsequently reached II. the Senate concluded that the statutory limits of the
review by way of summary proceedings pass off the request for release from custody
the liberty, which exclude, inter alia, a review of all decisions
the follow-up to the decision on custody under section 398 paragraph. 5
the criminal procedure code, including the decision to delay the release pursuant to section 400
paragraph. 1 code of criminal procedure, are expressly enshrined in § 398 paragraph. 6
the criminal procedure code. Therefore, the expanded design and on the proposal to repeal section 398 paragraph. 6
the criminal procedure code.
Recap the essential parts of the representation of the parties
14. the President of the Chamber of deputies of the Parliament after the recap
the legislative process stated that the basic source control extradičního
the European Convention on extradition agreed 13. December 1957 (No. 549/1992
SB.). The one in the article. 19 para. 1 provides for the possibility of the requested party to defer the
surrender of the requested person so that it could prosecute or execute
the penalty for the offence other than that for which the release is requested. Submitter
the draft Act No. 539/2004 Coll., implementing these provisions justify the
proposal for a new provision needs the practice, saying that delay would not
prevent foreign authorities end their criminal proceedings within a reasonable time.
The purpose of the provision is to find a balance between the service
international commitments on the one hand and the need for clarification of the criminal
activities and fair punishment of the perpetrators of such offences committed in
the territory of the United Kingdom on the other. The legislature acted in
the belief that the law is adopted in accordance with the constitutional order, and
the legal order of the Czech Republic. In conclusion, on the Constitutional Court, in order to
to assess the constitutionality of the law.
15. the President of the Senate, said that the new legislation was extradičního
conceived as a nearly complete reception of the commitments of the Czech Republic from
international treaties and the legal acts of the European Union in the region.
The previous legislation did not differ in principle, but walked around without
the explicit description of the delay the release and the possibility of temporary transfer, which
were included only in the article. 19 of the European Convention on extradition. This contractual
the rules have been implemented directly, even if the law was not explicitly
scope of State authorities to decide. Municipal Court in Prague
at that time held that permission to postpone the surrender of the requested person is
under the authority of the Minister of Justice (SP. zn. 1 Nt 120/92 in Coll. 96 NS, 2:
85). Therefore, when discussing the amendment was emphasized the issue of completely
the new "European" universal legal instruments and the adjustment was seen
as a mere legislative editors present adaptations, which is
long-term use of the functionality i examined the constitutional conformity.
16. He stated that although the law does not require it, you can assume that the delay
the issue occurs after the assessment and on a proposal from the relevant bodies active in
criminal proceedings that are unlike the Minister of justice capable of
to design and assess the effectiveness of the postponement. With reference to the case-law
The Supreme Court and the European Court of human rights does not consider the
the decision of the Minister of Justice to postpone the issue for decision
deprivation of liberty, which would constitute a deprivation case to court without his
17. The Court held that the reason for this binding is undoubtedly expended to secure
the release itself, and therefore the Court is not, in order to this binding pursuant to section 397
paragraph. 3 bound legal detention reasons. To issue has become what
quickly as possible, and therefore absentuje and limit the maximum duration of this binding.
Yet if the postponement of release is not supported by the argument that their
domestic criminal proceedings is in principle finished finalizing things, then
such a delay seems to be clearly contrary to the purpose of the international
the obligation to extradite. Therefore, the explanatory memorandum to § 400 paragraph. 1 of the criminal
the order stated that should go for the cases when the time on their domestic
criminal proceedings can be estimated very accurately, and in a matter of weeks rather
than months. Again, that such a criminal prosecution must be given
precedence over the prosecution of the persons who are at large, as drew
The European Court of human rights in the case against Germany (Wemhoff
No 2122/64 of 27 November. June 1968). Therefore, the question of whether in the
problematic cases delay the release to go abroad rather not a defect
the legality of the procedure before a lack of legislation with the constitutional order.
Hypothetically, you can consider that the decision of the Minister of Justice is
reviewable in the mode of administrative justice.
18. He added that extradition binding is not absolute, but is subject to the binding
standard procedural guarantees and it is in accordance with the Convention
required to review the legality of the deprivation of liberty (lasting judgment
The European Court of human rights in the matter of Weeks v United
the Kingdom # 9787/82 of 2 June 2003. March 10, 1987). It is therefore under § 396 of paragraph 1.
6 of the code of criminal procedure is also possible after the postponement of extradition to a foreign country to apply
periodic requests for release and design its replacement under section 73
or section 73a of the code of criminal procedure. From the schema to Grotius, Hugo
aut dedere aut punire
cannot deduce the absolute satisfaction of the deprivation of liberty of the person, of the
which is it, and do it without another means of ensuring or alternatives
alternatives to freedom release expectations (most likely in cases of postponement
the release due to the completion of the domestic criminal prosecution), even if
an alternative residence required by the people at large not too frequent.
19. In conclusion, he stated that the Senate of the Parliament discussed the draft amendment
the majority believe that it is in accordance the constitutional order and the
international obligations. Left on the Constitutional Court the assessment of the constitutionality of
the contested provisions.
20. Following the extension of the design of the President of the Chamber of Deputies again pointed out
on the legislative process, which resulted in the adoption of Act No. 539/2004 Coll.
that Institute summary vydávacího proceedings was introduced by law
No 150/1997 Coll., and the subsequent edit § 398 paragraph. 6 of the code of criminal procedure was
taken as a refinement, having regard to the current problems associated with
determination of the jurisdiction of the Court on the requests and complaints
a person in extradition custody. He pointed out the decision SP. zn. III. THE TC
534/06 (dated January 3, 2007 in http://nalus.usoud.cz/), and SP. zn. III.
TC 383/04 (52/35 ins SbNU 615), that obligatornost expended links
is a manifestation of the will of the State to comply with international obligations. Also pointed out
on the legal conditions of the Institute of management vydávacího and concluded the short,
that the legislature acted in the belief concerning the compliance of the adopted Bill with
the constitutional order.
21. the President of the Senate after the extension of the proposal pointed to its observations to the
the original part of the proposal, saying that his remarks are reasonably applicable
continue to apply. In relation to argument on this note the level of the newly admitted
the security of judicial review of the duration of the expended links via
more or less the level of competence, the provisions of § 73b paragraph 1(a). 3 of the code of criminal procedure (see
normative reference in § 398 paragraph. 6 of the code of criminal procedure) raises doubts about
options to meet the complainant criticised the constitutional requirements. He concluded,
the Senate debated a draft law containing provisions on the grounds
the limits and in the manner prescribed by the Constitution in the majority belief that is in
accordance with the constitutional order and the international obligations.
The conditions of the locus standi of the applicant
22. the proposal was submitted to II. appeal to the Constitutional Court within assessment
a constitutional complaint, which reached the conclusion that § 400 paragraph. 1 code of criminal procedure
in conjunction with § 398 paragraph. 6 of the code of criminal procedure, which occurred
the fact that is the subject of a constitutional complaint, is in breach of article. 8
paragraph. 1 and 5 of the Charter, or article. 5 (3). 1 (b). (c)) and paragraph 2. 3 of the Convention.
It is therefore a proposal made in accordance with § 64 para. 1 (b). (c)) of the
The Constitutional Court. Are, therefore, subject to the conditions of locus standi.
The constitutional conformity of the legislative process
23. The Constitutional Court is in accordance with § 68 para. 2 of the Act on the Constitutional Court of the
proceedings for review of the standards first must assess whether the contested legal
provision was adopted and published within the limits of the Constitution laid down the competence
and constitutionally prescribed way. The legislative process of the adoption of law No.
539/2004 Coll., which was added to the code of criminal procedure § 400 paragraph. 1 and §
398 paragraph. 6 However, the Constitutional Court has found to be constitutionally Conformal already in
finding SP. zn. PL. ÚS 66/04 (dated May 3, 2006-no 434/2006 Coll.).
To this end, the Constitutional Court has no reason to change anything even now
the case under consideration.
The diction of the contested provisions of the code of criminal procedure
24. paragraph 398 paragraph. 6 of the code of criminal procedure reads as follows:
"The person on the proceedings on the application for release from custody shall apply mutatis mutandis
the provisions of § 72 para. 2 and Article 73b paragraph 1(a). 3. For decisions on applications
for release from custody of the accused, the Court, which ruled on the
extradition custody in accordance with paragraph 5. "
The provisions of § 400 paragraph. 1 code of criminal procedure reads as follows:
"If the presence of the person whose extradition it is necessary in the Czech
for purposes of termination of criminal prosecution or enforcement of a sentence
deprivation of liberty in connection with another criminal offence other than that which is
the subject of the request for her extradition to a foreign State, the Minister of Justice
After the decision to allow the release of release this person can defer to the
of the requesting State. "
The content of the contested provisions compliance with the constitutional order
25. The right to personal liberty belongs in the catalogue of fundamental rights and freedoms
the front instead. This is due, inter alia, that in case of its infringement can
have repair and satisfakční features of legal liability only
limited effect. For this reason, already at the level of the constitutional order there is
express limitation to this right to intervene, that is further
Thanks to the principles elaborated that the jurisprudence found in conjunction with
theories. Restrictions or even deprivation of liberty is possible only for reasons of
and in a way that is determined by law (article 8 of the Charter), and
the relevant statutory provisions, in particular, must be reserved and
All aboard only if their legitimate purpose cannot be achieved otherwise
(see for example. Klíma, m.: commentary on the Constitution and the Charter. Plzeň:
The publishers Inc., 2005. p. 652). Nothing
does not change the fact that the adjustment of the rights of the podústavního has a relatively wide
the scope of when instantiating the reasons and the ways in which this can be
constitutionally guaranteed rights to intervene (see for example. BIP. In.:
The Constitution and the constitutional order of the Czech Republic. 2. part: rights and freedoms. Prague:
Linde Prague, 1995. page 83). Among the basic principles of restriction of personal
freedom bound (which must reflect law podústavní) include
the need for committal and hold it only for a legitimate purpose,
proportionality between the personal freedom of the individual and the interest of the company
the limitation of this freedom, the need to limit personal freedom for the absence of
another resource to achieve the identical object, balancing the benefits of restrictions
personal freedom with respect to losses arising from it, and finally,
the exclusive competence of the Court to decide. It can therefore be concluded that the ability to
hit the right to personal liberty given to the level of constitutional order
has the nature of exceptions to the rule, according to which this freedom is not
permitted to intervene. The exception is then always must be interpreted exclusively
in a restrictive way.
26. The essence of the extradition is an act of judicial cooperation, which aims to
surrender of persons by the State on whose territory it is located, i.e., the State on the issue of
the person requested, State of issue, requiring you to, that is, the State which is
applicable to criminal proceedings or in whose territory the person
accused of an offence (cf.. Růžička, m. Zezulová, j.: detention and
binding in the Czech criminal proceedings. 1. Edition. Prague: c. h. Beck, 2004.
p. 598). Judicial cooperation in the case under consideration is leaning on the
The European Convention on extradition, which the Czech Republic is bound (article 1
paragraph. 2 of the Constitution of the Czech Republic). In accordance with domestic legal tradition
is the performance of State sovereignty when the lawyer for your extradition proceedings at the level
podústavního rights divided between the Court and the Minister of Justice, it is
Therefore, the principle of shared responsibility. The Court decides whether there is a
any legal impediment to extradition (cf. Jelínek, j. et al.: criminal
procedural law. 4. updated edition. Prague: Eurolex Bohemia, 2005.
p. 712; Supreme Court resolution SP. zn. Tcnu 17/95 in Coll. 1996, 5 NS
: 151). The subsequent decision of the Minister of Justice or
do not allow the release of (§ 399 of criminal procedure) represents the political dimension
expression of State sovereignty in the lawyer for your extradition proceedings (cf. Madar, z. a kol.:
Dictionary of Czech law. 3. an expanded and substantially revised.
II. part. Linde Prague, 2002. p. 1510). The result of the decision of the Minister of
Justice may be "only" the immediate release of the requested person
the requesting State or her release from custody (§ 399 paragraph.
5 of the code of criminal procedure). In this context, it is possible to mention that special
extradičního control law on the basis of a European arrest
warrant (section 411 and following of the criminal procedure code) principle of shared competence
the Court and the Minister of Justice, in favour of the exclusive
the powers of the Court.
27. In the context of extradition after the decision on admissibility of publication (§
397 of the Criminal Code) or after the qualified person's consent, by which the
(§ 398 of criminal procedure), it must be remanded in extradition
binding. Its purpose is to ensure that person's presence for the next
procedure in issuing proceedings, respectively. for the realization of the release (cf. in Samal,
P. et al.: code of criminal procedure. Comment. II. part. 5. release. Prague: C. H. Beck
2005. p. 2591-5) as the other forms of bringing him before the competent judicial
authority of the requesting State for reasonable suspicion of having committed a criminal
crime scene [article 5, paragraph 1 (b) (c)) of the Convention]. From the perspective of the text of the podústavního
law and according to the theory, which relates to it, therefore it is a binding
obligatory, which implement the international obligations of the State, the
multilaterally, in particular pursuant to article. 1 of the European Convention on extradition (cf.
also the Jelínek, j. & al.: the criminal code and the criminal procedure code with comments and
case law and related regulations in full. 24. the updated
According to the State to release 1. 10.2006. Linde Prague: 2006. p. 848).
The decision-making activity of courts in the context of the logically
does the fact that extradition could be replaced by another binding
measures (resolution of the High Court in Prague, SP. zn. 1 To 41/95, in
Coll. NS 1996, 5:158). And from the explanatory memorandum to the draft law No. 539/2004
Coll shows that unlike the expended links can be (just) temporary custody
(pursuant to section 396 penal procedure) to replace the guarantee within the meaning of § 73 and 73a
the criminal procedure code (page 59).
28. Edit podústavního rights in case of restriction of personal freedom by the binding
in the framework of the vydávacího control is not perfect. Not regulated solution
competition preliminary extradition custody, i.e.. binding before the Court decision on the
the admissibility of extradition, and the expended links, IE. the binding after the Court's decision on the
the admissibility of the issue on the one hand, and on the other hand, other restrictions
personal freedom of the persons concerned, i.e. binding in the context of criminal proceedings
maintained in the territory of the imprisonment or expulsion of the binding,
as well as links to other extradition requests for extradition, or hub transport binding
on the basis of a European arrest warrant (cf. Šámal, p. a kol.:
The criminal procedure code. Comment. II. part. 5. release. Prague: c.h. Beck, 2005.
page 2564, paragraph 6). Further fate of the limitation of personal freedom by the binding binds to
the proceedings in which it was imposed (cf. binding. Jelínek, J., Sovák, From:
The criminal code and the criminal procedure code with comments, and the case-law, the law on the
the judicial system in matters of youth with the notes and the related regulations. 20.
updated edition by status to 1. 1.2004. Linde Prague, p. 53;
or Šámal, p., Púry, f., Rizman, s.: the criminal law. Comment. I. part.
6. the amended and revised edition. Prague: c. h. Beck, 2004. p. 336
point 2; and there referred to the case-law of general courts). It is therefore not resolved
counting the period of the postponement of the expended links for prosecution in the territory of the
which has the practical consequence, in particular, in a position to issue abroad (and
a conviction in a foreign country), for example, to pass the withdrawal request
the issue justified the subsequent domestic criminal prosecution for the same
deed. At the level of podústavního is not finally dealt with or
never exceed a time limit extradition binding, such as is the case in
"the inquiry" links pursuant to § 71 para. 8 of the code of criminal procedure.
29. A similar imperfection can be seen even in the (UN) defining what is
legal and what the political aspect of the lawyer for your extradition management, respectively.
by aligning the legal solution of conflicts on the border with the constitutional order.
Yet this Division has a relevance to the scope of competence of the Court and
the Minister of Justice on the one hand, and constitutionally legitimate restrictions
personal freedom expended by binding to the other side. In the present case as to the
the definition of competencies for the deferment of publication. In other words, it is about whether
the fact that it is against the person whose extradition it comes, be conducted in the territory of the
(other) criminal prosecution, an obstacle to the Edition that is strictly legal in nature
30. concerning the competence of the Minister of Justice in the lawyer for your extradition procedure is in
this context, it should be noted that the Minister of Justice is a body
the Executive, which does not meet the criteria of the Court or in the material sense
(cf. judgments of the European Court of human rights in the matter of Bouamar against
Belgium # 9106/80 of 29. February 1988, in a case against the Slovak Lauko
Republic # 26138/95 of 2 May. September 1998, etc.). In the context of editing
podústavního law there is no possibility of a review of any decision of the
the Minister of Justice in criminal proceedings by the courts (case
The Supreme Court, SP. zn. 11 Cc 117/2005 of 22 December 2004. August 2005). From
the case also supported by the wording of section 4 of the judicial code, the administrative is also
excluded, to the decision of the Minister of Justice in criminal proceedings
It could be the subject of the review of the administrative court. This deficit is not at all
problematic, if the Minister of Justice issued a decision of political
nature, which are not liable to affect the rights of others. In proceedings of the
extradition is not problematic at all, therefore, the decision to allow the release,
the effect of which is the issue in accordance with the decision of the Court, as well as
the decision to prevent the release, resulting in a release of
extradition custody. However, the deficit is listed on constitutional
unacceptable situation where the Minister of Justice (together) to make decisions about
rights and thus rather on fundamental rights and freedoms (cf. judgment of the
The European Court of human rights in the case of Albert and Le Compte # 7299/75
and no. 7367/76 of 10 March. February 1983, etc), and even if a decision about
a de facto extension of the expended links to neznemožnil to foreign authorities
terminate the criminal proceedings within a reasonable time. in accordance with the
the explanatory memorandum (p. 60).
31. From article. 8 (2). 5 of the Charter (article 5, paragraph 4, of the Convention) that not only
the exclusive competence of the Court to decide on the restriction of personal freedom, but also
and its duration. Exclusively the Court is therefore empowered to decide not only on the
the necessity of the committal for a legitimate purpose and merits test
its duration. On extradition binding apply exactly the same
the criteria, as to any other restriction of personal freedom, as has been
mentioned above. I expended must be binding, therefore, always under the effective
the control of an independent court (cf. SP. zn. PL. ÚS 29/98 in N 83/14 SbNU
-No 138/1999 Coll.). This check is in the case of extradition of the binding on the level
podústavního law generally debatable.
32. The provisions of § 398 paragraph. 6 sentence first, code of criminal procedure, governing the
request for release from custody, cannot be considered as a means of
effective judicial review, since it expressly limited the review to the circumstance
whether he did not miss the reason for links, or whether it is clear that, given to the person
the accused and the circumstances of the case, the prosecution will not lead to the imposition of
unconditional imprisonment, and flush Strip didn't lose no prosecution
(section 72 (2) of the criminal procedure code) and gives the possibility to replace the binding
guarantee, promise, the supervision of the probation officer or financial guarantee (section
73B paragraph 1(a). 3 of the code of criminal procedure). We must add that the latter goes against
the principle of obligatornosti expended ties as described above. As well as
consideration about whether the person in custody is threatened with extradition conditional or unconditional
a custodial sentence is practically impossible, because it depends on the performance
Justice abroad and not in the territory of the country. Therefore, the sole criterion
specifically resulting from the law that the Court is entitled to request
release from custody to explicitly examine the existence of a reason for the release. To
similar conclusion, indeed, reached the doctrine (Šámal, p. a kol.: criminal
of procedure. Comment. II. part. 5. release. Prague: c.h. Beck, 2005. page.-2561
point 12), which is alarming given the absence of a statutory definition of
the maximum period of its duration, as mentioned above. This legislation
in doing so, completely fits into the concept, according to which the Court's role is limited to
a review of the formal requirements for applications for the release of her next, respectively.
duration and review of the existence of obstacles to the issue exhaustively
as defined in § 393 criminal procedure code with that of all other matters
in fact, shall be decided by the Minister of Justice. Such restriction of judicial power
at the expense of the Executive cannot be considered necessary and is not suitable
with regard to the principle of the separation of powers and the resulting sole jurisdiction
Court to rule on limitation of personal freedom of the individual. In other words,
It is not possible to make high demands on the decision on the admissibility of
issue (cf. find SP. zn. III. TC 534/06), and no longer on the
the decision, which they are.
33. the text of the provisions of § 400 paragraph. 1 code of criminal procedure, it is clear that, in the
the competition of a criminal prosecution, for which extradition is to be made, with
criminal prosecution for different offense than the one that is the subject of the application
on the issue of, or with the power of imprisonment in this country, it is in the
the powers of the Minister of Justice (and not a court) to decide,
which of the above processes takes precedence. This legislation builds on the
The European Convention on extradition and has a rational kernel in that the requested
State can be as a result of applications for the issue complicated by or even
Unable to attend their own criminal justice.
34. At the level of podústavního rights while not regulated, whether and who should
such a decision of the Minister of Justice to initiate, and is therefore
formally acceptable to the Minister and without any initiative decided to
It probably happened in the case, which was the basis for the proposal in this
things. Nor is it at the level of podústavního rights, such as modified
the criteria should be the Minister of Justice to drive and it does nothing
nor from the explanatory memorandum to the Act No. 539/2004 Coll., Minister of Justice
Therefore, it is at the level of podústavního rights given the arbitrariness in question, whether it is for
other criminal proceedings conducted in the territory of the requested person so
fundamental to this person, despite the extradition request in person in the territory of the country.
In other words, the Minister of Justice is authorized to decide on this issue
and despite all the law enforcement authorities that such criminal
proceedings, including the Court and the public prosecutor's Office, which is (on the
the difference from the Minister of Justice), constitutionally called defend the interests of the State in
criminal proceedings. It is necessary to see that both the Minister of Justice
the implementer of the delay issue, and the court hearing before the
the admissibility of extradition, the specific context of a given Edition may
for the first time to learn until after the case is submitted. Neither the Minister of
Indeed, Justice does not have and cannot have detailed
information about who is in the territory of the country leads the criminal proceedings, how many
they are and in what are stage. This is due, among other reasons, that the police
the authorities that carry out penal proceedings do not fall within its
the resort. It is therefore about a similar situation, such as when the school authorities
criminal proceedings according to established practice, in particular for the purpose of conducting
joint management within the meaning of section 20 of the Penal Code, and for any
Save the total or aggregate punishment pursuant to section 35 of the Penal Code
determine whether the accused person is not subject to any other against prosecution, in
first and foremost, by the fact that the accused will ask itself. In this context,
is it possible to once again point out the rules of the European arrest
warrant where this is in accordance with § 411 of paragraph 1. 9 of the criminal procedure code the Court exclusively,
which also decides on postponing the surrender to the requesting State "if it is
necessary to fulfill the purpose of criminal prosecution or enforcement of a sentence involving deprivation of
freedom of the saved person, that is to be passed for an act other than a
the one that is listed in the European arrest warrant ".
35. By a decision of the Minister of Justice to postpone the release is
in fact, derogován, or played down, the purpose of the expended links in favor of
because of the postponement. In his extradition proceedings is effectively
interrupted until the end of another or other criminal
prosecution or a custodial sentence.
36. As for the postponement of the issue of the realization of the release cannot occur,
There can be no legitimate reason given limitation of personal freedom expended
Bond pursuant to section 397 paragraph. 3 of the code of criminal procedure, of which it was decided to
by the Court. Extradition of the binding and its length cannot be justified by something
other than the realization of the release (see for example the decision of the European Court
for human rights in the matter of Chahal v United Kingdom, judgment No.
22414/93 of 15 March. November 1996, in a case against Latvia Slivenko, no.
48321/99 of 9 December 1999. October 2003, and in case Singh against the Czech Republic No.
60538/00 of 25 October. January 25, 2005). Although it is therefore postponing the release
a legitimate step under art. 19 para. 1 of the European Convention on extradition,
eliminating the reason for the limitation of personal freedom expended is bound,
which is undoubtedly the implementation of extradition, although the exact (upozaděné)
the form is cause for extradition continue to be given. At the level of podústavního rights
Finally, nor is it addressed their extradition or interruption because of the binding
Regulation of the prison population in the territory of the country, as mentioned
37. in considering the postponement of release is also necessary to consider that in the context of the
another criminal prosecution at home may be given to the need to
the presence of the prosecutions, which, however, may not necessarily be in the form of
This person-bound, and that the limitation of personal freedom may be binding in
prosecution in the Czech Republic is replaced by another Institute. If it is given by
the reason that, for the proper conduct of the prosecution was
being pursued by a person in custody is therefore constitutional imperative that the
in the respective proceedings shall be decided by the Court in accordance with § 67 et seq..
the criminal procedure code. From the constitutional point of view it is not possible to make this
the Court's decision, if not, prima facie, seem to replace the Minister of
Justice, as a representative of the Executive, which has
limited powers in criminal proceedings, if such a nota bene
the decision is not subject to any judicial review. While the one who does this
the decision refers to, i.e., published by the person of the decision nor know
and in fact cannot therefore brojit against him or in an application for release from
binding under section 398 paragraph. 6 of the code of criminal procedure, as a single process
resource available. This is due to the fact that the Minister of Justice
not according to § 12 para. criminal procedure law enforcement authority
and therefore it does not apply to the obligation to deliver their decisions, in General
as defined in § 62 et seq. the criminal procedure code. In the logic of the article. 2 (2). 3 of the Constitution
The United States cannot, therefore, the Minister of Justice, in
the case under consideration only became aware of its decision by the Court. This is not a
therefore a situation comparable with the State Prosecutor's decision on the further
detention pursuant to § 71 para. 2 and 3 of the criminal procedure code, which is
the Constitution (cf. Article 5, paragraph 4, of the Convention) perhaps with
regard to the imminent possibility of judicial review (cf. SP. zn. I. ÚS
573/02 in N 41/32 SbNU 397, etc.). However, in its current state is not a court
decision of the Minister shall be entitled to examine ex officio, nor is it obliged to
This decision served to the person who is in custody, and finally
is not entitled to review the decision or in the context of the application of the latter
the said persons for release from custody.
38. The Constitutional Court takes the view that top implied questions
related to the competition extradičního control with other criminal
procedures are strictly legal issues, however in them plays its
the role and task of the State in the protection of their interests, which are purely political
character. Their legal character, however, is due to the fact that the political
representation within the legislative activities clearly defined General
the conditions for the functioning of the criminal proceedings and related issues, taking
decision making fully entrusted in accordance with the constitutional order be able to court. So
It is, moreover, even if the European arrest warrant, as was
39. It is necessary to consider also the question whether, despite the aforementioned deficits
It is not possible to overcome the situation constitutionally Conformal interpretation given
issue. In this context, it should also be noted that article. 19.
paragraph. 1 of the European Convention on extradition specifically does not address who has requested
the party may decide to delay the release, and to which the national implications, and
does not know nor the principle of shared competence in the lawyer for your extradition proceedings. The Constitutional Court
in particular, in this context, misconstrued, that after the entry into force of the European
Convention on extradition did not exist national treatment, which would
and therefore, this Convention was applied in general courts directly.
In the absence of specific implementing legislation was therefore within the competence of
General courts interpret the European Convention, in accordance with all of the constitutional
principles because they were not as closely bound by law (now article 2
paragraph. 3 of the Constitution of the Czech Republic). By resolution of the City Court of
Prague, SP. zn. 1 Nt 120/92 (in Coll. 1996 NS, 2:85; RT 12/96),
introduced the practice of conferring decision-making powers to postpone the issue until the
the Minister of Justice, without the decision of the Court was
However reviewed. This practice can be understood by ordinary courts
as inadmissible self-limitation of general courts and as a de facto resignation
on their own powers with consequences not only in the area of the separation of powers, but also in
field of fundamental rights and freedoms (see article 4 of the Constitution of the Czech Republic). On
that nothing can change the fact that this practice could be in the
certain cases, the economic process. The current legislation
podústavního rights that clearly the general courts in proceedings
on an application for release from custody expended reserves only
check for the existence of extradičního because, as mentioned above, i.e.,
petrifikovala only constitutionally unorthodox interpretation of the European Convention on
the issue, so as to reach him before the ordinary courts.
40. it would perhaps be possible to infer an implicit obligation of the Minister of
Justice delivered the decision to delay the release of the person whose
Edition goes, as well as the obligation of the Court to review this decision in
the context of the application for release from custody. In this context, however,
significant that the only procedural means to initiate judicial review
the binding is being expended request for release from custody. The subject of the proceedings in the
This request is only the question whether the person on whom it is still
kept in custody or whether extradition is to be released from this links.
The Court is not left at all no room, within the framework of this
request a decision about anything. In this frame, therefore, at all
does not fit the possibility that the Court, in proceedings on this request dealt with
the legality of decisions of the Minister of Justice about the postponement and that the printed
where appropriate, this decision set aside. The consequence of that would be in the case of illegality
the decision of the Minister of Justice to postpone the release of the person, of the
regards, released, would answer to the constitutional order. On your
as a result, it was the denial of the article. 1 (1). 2 of the Constitution of the United
Republic in connection with the European Convention on extradition. Such a consequence
However, it is not entitled to draw even the Constitutional Court, as one of the State
the authorities, which must also referred to constitutional context
maintained by them. Indeed, as a result of such a possible review of the legality of
the decision to delay the release of logically, nor does it lead, since as a result of
the possible illegality of the decision to delay the release has become
immediate implementation of extradition, and the obligatory extradition binding
is not in conflict.
41. In this situation, podústavní right in accordance with art. 2 (2). 3 of the Constitution
The United States expressly does not give the courts the possibility of General to examine whether he was
given and remains the reason for which it has been release postponed, even with
regard to the principle of proportionality between the interested persons, that is,
on personal freedom, that requires the State to perform the interest of criminal
management and domestic interest in the implementation of the criminal proceedings and the enforcement of
the punishment. These questions are exclusively entrusted to the Minister of Justice,
as the authority of the Executive, as was also mentioned above. General courts
While themselves initiating review of the constitutionality of the current legislation
and this explicit legislation obviously suits them. Therefore, you can
conclude that the ordinary courts are constitutionally consistent interpretation of the European option
the legislature's adoption of the Convention and may have squandered the Act No. 539/2004 Coll.
to prevent this situation, could something using the interpretative
methods to correct the Constitutional Court.
42. the Constitutional Court notes that according to the article. 8 (2). 5 of the Charter is not
possible to the Minister of Justice, as the authority of the Executive, on the
limitation of personal freedom of the individual and of his other duration, without
the decision could be reviewed by the Court, or to the design of
who is this decision refers to. Decision to postpone the issue is not with the
regard to its consequences nothing less than a decision on the duration of other
extradition custody (as the State Prosecutor's decision on the further
detention pursuant to § 72 para. 3 and 4 of the criminal procedure code) nota bene from another
than extradition. It must, therefore, be a decision falling within the
under the effective control of the Court.
43. The Constitutional Court thus landed reasons pursuant to section 70 para. 1 of the law on
The Constitutional Court annulled the provisions of § 398 paragraph. 6 first criminal sentences
order, and section 400 paragraph. 1 code of criminal procedure and with effect as of 31. December
2008, so that the legislature had the opportunity in the meantime better edit this
issues. In accordance with the principle of minimizing the interference was in accordance with § 70
paragraph. 2 of the Act on the Constitutional Court rejected the proposal to repeal section 398 paragraph. 6
the second sentence of the criminal procedure code, as in this part of the provision
the above reasons were found to cancel.
44. The Constitutional Court finally points out that, once again, edit
podústavního rights pertaining to extradition is otherwise imperfect and
requires significantly more attentive care of the legislator. This imperfection
lies in the fact that it is not legislatively resolved everything important (maximum
limit the duration of the extradition of a binding, the initiative for the activity of the Minister of
Justice, etc.), and they are not resolved or system context (relationship
expended for binding binding in the context of a criminal prosecution and imprisonment,
etc.), which have been discussed above (in particular, paragraphs 28 and 36). Therefore, The Constitutional
the Court of appeals to lawmakers to made more complex as soon as possible
editing of this issue, which affects substantially the personal
the freedom of the individual and its basic procedural rights.
45. According to § 44 para. 2 of the Act on the Constitutional Court was dropped from the oral
the negotiations, because from it could not be expect further clarification of the matter, and both
participants expressly agree to this procedure.
The President of the Constitutional Court:
JUDr. Rychetský in r.