In The Matter Of The Application For Revocation Under § § 398 400 And Parts Of The Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení části § 400 a části § 398 trestního řádu

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=66859&nr=90~2F2008~20Sb.&ft=txt

90/2008 Sb.



FIND



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

management,



as follows:



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,

is rejected.



Justification



(I).



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

imprisonment.



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

escape.



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

Justice.



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.



II.



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

consciousness.



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.



III.



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.



IV.



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.



In the.



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. "



Vi.



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

or political.



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

above.



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

mentioned above.



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.