The Opinion Of The Full Inadmissibility Of A Constitutional Complaint To The Tc

Original Language Title: stanovisko pléna ÚS k nepřípustnosti ústavní stížnosti

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=81799&nr=40~2F2014~20Sb.&ft=txt

40/2014 Sb.



The communication from the



The Constitutional Court



The plenary adopted the Constitutional Court under the SP. zn. PL. ÚS 38/-14 day 4.

March 2014 in the composition of Stanislav Package, Louis David, Norman F

(Judge-Rapporteur), Jan Filip, Vlasta Formankova, Ivana Janů, Vladimir

The Crust, Jan Musil, Pavel Rychetský, Vladimir Sladecek, Radovan Suchánek,

Catherine Simackova, Milada Tomková, Jiří Zemánek and Michael April

on a proposal from the Senate the Constitutional Court i. pursuant to § 23 of the Act No. 182/1993 Coll., on the

The Constitutional Court, in the case of the legal opinion and management led by appeal under

SP. zn. I. ÚS 1662/13, SP. zn. I. ÚS 1677/13 and SP. zn. I. ÚS 2164/13,

which deviates from the legal opinion of the Constitutional Court has issued in

the award of 2 July. March 2004, SP. zn. I. ÚS 180/03 (N 32/32 SbNU 293) and

in the report of 16 April 2004. 6.2011, SP. zn. I. ÚS 864/11 (N 116/61 SbNU 695),



This opinion:



The constitutional complaint is inadmissible if the complainant in criminal proceedings

the law does not give leave to appeal in the prescribed manner (section 75 (1) of law No.

182/1993 Coll., on the Constitutional Court, as amended).



Justification:



(I).



The reasons for the submission of opinions



1. At present, the judge-rapporteur in the idea of three constitutional complaints,

in which the complainants stated that they are of the opinion that in their case

There is no reason pursuant to section 265b dovolací criminal code and against

the previous decision therefore submitted a constitutional complaint, without

would have run out before an extraordinary legal remedy in the form of appellate review. In

all three cases, the complainants no longer a two-month deadline to submit

the appeal has passed.



2. On 22 November. 5. the Constitutional Court delivered a constitutional complaint

the complainants l. v. and j. v., below the SP. zn. I. ÚS 1662/13.

The applicants in the constitutional complaint argue that the courts did not take into account the

their proposals on the taking of evidence, in particular on the implementation of the local inspection,

which was proposed already in the preparatory proceedings, since, from the crime scene were

taken just the lack of photos. According to the complainants was not

the testimony of the witnesses established that the complainants would have committed the listed

criminal offences. The Court of appeal, according to the complainants did not deal evaluation

evidence individually, and in mutual context and the courts in their

nevypořádaly, stating the reason has not been performed

designed by evidence from the defendants. The complainants are of the opinion that

in their case it has been violated the right to a fair trial, as well as

the right to equality of the participants.



3. On 23 December 2005. 5. the Constitutional Court delivered a constitutional complaint

the complainant, j. v., conducted under SP. zn. I. ÚS 1677/13. The complainant argues

completely faulty and unconvincing facts which

the existence of a criminal conviction was based on the identification of

offenders and determine their roles in the legislative storyline, in principle on a single

evidence on the testimony of a witness, which, objectively, is based on the důkazně

useless and contrary to the law made by the recognition. On the basis of

theories about the fruits of the poisoned tree is according to the complainant, this dismissal

also unusable. As a result of arbitrariness of the courts in determining

the actual state of affairs, and given the formal rejection of the opposition completely

the defence was, according to the complainant, violated the right to a fair trial and

has not been honoured by the principle of the presumption of innocence contained in the article. 40 para. 2 of the Charter of

fundamental rights and freedoms ("the Charter").



4. On 12 December 2003. 7. the Constitutional Court delivered a constitutional complaint

the complainant, P. O. S., under the SP. zn. I. ÚS 2164/13. The complainant

pleads infringement of the principle of equality of arms, since, in its opinion, the courts

prevented the implementation of the key evidence of the defence and took position to the

dubious evidence clearly unreliable witnesses. Furthermore, according to the

the complainant has also been a violation of the right to proper justification of the decision

and a breach of the prohibition of arbitrariness in decision-making of the courts. The unconstitutionality of and

nepřezkoumatelnost decision the complainant also sees in the neglected

evidence. From the judgment of the Court of appeal from the complainant, it is clear that the

its objections, nor to her proposed evidence did not respond in any way. The complainant

It considers that the courts of both its constitutionally guaranteed has been infringed by degrees right

enshrined in article. 8 (2). 1, 2 and 5 of the Charter, as well as the right to a fair

process.



II.



5. According to the provisions of § 72 para. 3 and § 75 of the 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 "), is a constitutional complaint inadmissible, if the complainant

all process has not exhausted the resources of the law to protect its

the law provides; This is true even for an extraordinary legal remedy that

the authority which decides on it, can be rejected as inadmissible for reasons of

Depending on his discretion, (amended effective from 1. 1.2013).



6. the relevant provisions of the Act of the Constitutional Court according to the

the opinion of the Constitutional Court and Senate quite unequivocally the obligation to

the complainants to exhaust before filing a constitutional complaint all process

the resources that the law the complainants to protect their rights provides,

Therefore the obligation to exhaust in criminal matters and the extraordinary appeal

a resource in the form of an appeal, if this is permitted.



III.



The existing practice of the Constitutional Court for leave to appeal in criminal

matters



7. it is clear from existing case-law, that the Constitutional Court has in the past to

the issue of the obligation of exhaustion of appeals in criminal matters

knowing whether a completely uniform. In finding SP. zn. I. ÚS 180/03 of 2 December.

3.2004 (N 32/32 SbNU 293), the Constitutional Court stated the following. "The complainant

his case has not submitted the appeal [section 265a et seq. of the code of criminal procedure (

"tr.")] and so it had to be built beyond a reasonable doubt that the

exhausted all the procedural means to protect their rights, because

According to the beliefs of the Constitutional Court may be the objections contained in the constitutional

the complaint effectively applied under any of the grounds under dovolacích

UST. section 265b para. 1 tr row. ... In this condition, with regard to the content of the

the contested decision and on the claims included in a constitutional complaint, could not

The Constitutional Court to reach a desirable degree of certainty to the conclusion that the complainant

has not exhausted all the procedural means to protect their rights, as has

referring to the provisions. section 75 para. 1 Act No. 182/1993 Coll., on the Constitutional Court,

because of such means shall be deemed to act exclusively with funds

to allow effective defense against interference with constitutionally guaranteed rights and

freedoms. The current practice of the criminal dovoláních does not give the

guarantee that all the cases that the Supreme Court deliberates on the initiative of

the appeal brought by the accused, shall be assessed from the perspective of maintaining

constitutionally guaranteed rights to a fair trial, because the Supreme Court

in some decisions explicitly does not allow for substantive review of the

terms of the objections relating to the infringement of the procedural steps,

prescribed for the discovery of the facts and the assessment of evidence (§ 2

paragraph. 5 and 6 tr row.), and regardless of the severity of the consequences for

fair decision of the case (article 36, paragraph 1, of the Charter and article 6, paragraph 1,

Convention for the protection of human rights and fundamental freedoms). " In essence,

the same line of argument, the Constitutional Court also used in finding SP. zn. I. ÚS

864/11 of 16 April 2003. 6.2011 (N 116/61 SbNU 695). In both cases, so

The Constitutional Court considered the constitutional complaint as permissible, even though the

the complainant has not exhausted all available means of protection of their rights.



8. Similarly, the Constitutional Court was also in several resolutions. For example, the

in its resolution SP. zn. IV. TC 3407/11 of 5 December 2002. 12.2011 [well resolution sp.

Zn. IV. The CS 430/11 of 2 December. 3.2011 (available as well as all other

the Supreme Court decision on http://nalus.usoud.cz)]

The Constitutional Court stated that "the Constitutional Court, in its decision-making practice, does not insist on

in criminal matters has always been against the meritornímu decision

Court of second instance shall be lodged before the attacks the decision of the constitutional complaint

the appeal, unless the constitutional complaints have been applied such objections,

that



prima facie

meet one of the dovolacích reasons according to the code of criminal procedure. This is because

both in terms of legal provisions, dovolacích reasons, as well as from the perspective of

judikatorní the practice of the Supreme Court, it is clear that the requirement of a constitutional

Court on the previous mandatory review was for the most part would be dovolací

formalistickým by adhering to the rule of inefficient usage of amending

resource. In addition, such a requirement would unduly delaying the possibility of

the Constitution of the review of the decision of the courts in those cases

When the complainant is perceived violation of the constitutionality of the technique, without at the same time

It considered that, in his case there is any dovolací reason embodied in the

the provisions of § 265b criminal procedure. "



9. The admissibility of a constitutional complaint with regard to (not) the exhaustion of appellate review in the

criminal proceedings are dealt with by the Constitutional Court in a resolution on SP. zn. IV. TC

851/11 of 18 May. 4.2011, saying: "it should be noted that the appeal of the

in criminal proceedings represents an extraordinary legal remedy that

the complainant is not, having regard to the limited circle of dovolacích reasons

strictly obliged to exhaust before submitting constitutional complaints. " To the said


the issue also applies the resolution SP. zn. II. TC 1707/09 dated March 6.

4.2012, where the Constitutional Court expressed this view: "in terms of the procedure for

a constitutional complaint is thus to be considered as a last appeal process

a means of protecting rights only if it can be applied within the

the opposition, which could be accommodated under the so-called. dovolací reasons. "



10. According to resolution SP. zn. III. TC 3458/10 of 14 April. 2.2011, is

primarily things the complainant, in order to assess whether the opposition, which is against

previous decisions of the general courts, can be effectively applied in the

the appeal, or whether you may apply directly to the Constitutional Court. "In the first place

It should be noted that the provisions of section 265a para. 1 and 2 of the code of criminal procedure (hereinafter the

"tr.") It follows that the appeal is admissible in such cases

an extraordinary remedy, however, due to the taxativnímu enumeration

dovolacích reasons (section 265b 1 tr row) may not always be "last

the procedural means by which the law to protect its rights to the complainant

provides "(article 72, paragraph 3, section 75, paragraph 1, of the law on the Constitutional Court). Is

While primarily a thing of the accused, to assess whether the objections,

against the decision of the Court of appeal (and, indeed, the Court of first

grades), can be "effectively" invoked in the appeal, or whether it can turn

"directly" on the Constitutional Court (However, if the answer a question incorrectly, you may

The Constitutional Court's procedure to find as "due to all the procedural

resources "within the meaning of section 75 para. 1 of the law on the Constitutional Court and the constitutional

complaint to refuse to). " Similarly, the Constitutional Court also expressed in the resolution

SP. zn. II. CS 1157/11 of 17 November. 5.2011.



11. Podřaditelností the complainant put forward objections under legal

dovolací reasons for the Constitutional Court dealt with e.g.. in its resolution SP. zn. III.

TC 3242/01 of 28 June. 2.2008, States the following: "Since he founded

the constitutional complaint for the most part to the objections that are not



prima facie

podřaditelné under legal dovolací reasons referred to in the provisions of section 265b

tr. of the order, on the exhaustion of this remedy is not fitted

take place if a similar submission to meritornímu dovolacímu

the review did not lead; The Constitutional Court therefore considered the constitutional complaint as a

permissible (cf. e.g. resolutions SP. zn. II. the TC 405/03). " In its resolution

SP. zn. II. the TC 405/03 of 5 June 2003. 5.2004, the Constitutional Court stated that "no longer

repeatedly in its case law the Court held that appellate review is an extraordinary

remedy to rectify the law explicitly defined

procedural and substantive defects, however, is not intended to review the facts and

legal findings made before the courts of first and second instance.

Due to the fact that the complainant is building its argument in the constitutional

complaints about the objections, which are not under legal podřaditelné dovolací

the reasons given in section 265b code of criminal procedure, there is no need to take

the exhaustion of this remedy, since his Administration would clearly

did not lead to meritornímu of the review. In the present case, the Constitutional Court has come to the

the conclusion that the constitutional complaint is admissible. "



12. Podřaditelností the complainant put forward objections under legal

dovolací grounds, the Constitutional Court also dealt with e.g.. in its resolution SP. zn.

IV. TC 400/04 of 7 December 2004. 11.2005, when the Constitutional Court after an assessment of the

the complainant put forward objections concluded that these objections were based on

the opinion of the Constitutional Court can be accommodated under the dovolací a reason referred to in section

265b para. 1 (b). (g)) code of criminal procedure, the complainant thus had available

a further appeal in the form of appellate review and the constitutional complaint so

was considered as inadmissible. Similarly, the Constitutional Court proceeded also in

resolution SP. zn. II. TC 1707/09 dated March 6. 4.2010. The Constitutional Court also

He insisted on the exhaustion of appeals before filing a constitutional complaint in the case

populate the other dovolacích reasons-for example, in its resolution SP. zn. IV. TC

2/05 of 11 November. 4.2005 (section 265b, paragraph 1 (b), (d)) code of criminal procedure),

resolution SP. zn. II. the TC 207/05 (12/37 SbNU 747) of 31 July 2003. 5.2005 (section

265b para. 1 (b). h) code of criminal procedure), resolution SP. zn. I. ÚS 99/06 of

on 19 December. 4.2006 (section 265b para. 1 (b) (c)) code of criminal procedure), or resolutions

SP. zn. III. TC 3507/10 of 12 October. 9.2012 (section 265b (1) (a). l)

the criminal procedure code).



13. The Constitutional Court is therefore in the resolutions referred to in paragraphs 11 and 12

in fact, dealt with the objections put forward under the podřaditelností the complainant

legal dovolací reasons and on the basis of his or her own conclusion about the

nepodřaditelnosti referred to the opposition under the dovolací reasons under section 265b

Code of criminal procedure stated that there is no need to insist on the exhaustion of appellate review

and the constitutional complaint as permissible (e.g. case

resolution SP. zn. II. the TC 405/03 or SP. zn. III. TC 3242/07). On the contrary, in

other resolutions (e.g., resolution SP. zn. IV. TC 400/05 and more, see

above), the Constitutional Court held that the complainant claimed the opposition was

in the opinion of the Constitutional Court can be accommodated under the grounds referred to in § dovolací

the criminal procedure code, 265b complainants should be available next patch

the resource and their constitutional complaint was assessed as

inadmissible. Such a practice, when the Constitutional Court itself shall be assessed

the (non) existence of dovolacích reasons and decision-making activities

The Supreme Court, however, appears to be inconsistent with the principle of subsidiarity

a constitutional complaint.



IV.



The current decision of the Constitutional Court concerning the appeal in criminal

matters



14. Currently, the Constitutional Court dealt with the condition of the exhaustion of appellate review in the

criminal matters in resolution SP. zn. I. ÚS 3315/1 of 6 September 2005. 11.2013,

where the Constitutional Court on the condition the exhaustion of appeal in criminal matters takes

and States that "... the procedure for appeal, and in any of its stages, with

cannot find themselves outside the constitutional framework for the protection of fundamental rights. If there are

in the law restricting the right of access to court under this

an extraordinary appeal, it is required to interpret the dovolací Court

and apply the conditions of admission of the appeal so that it followed the maxims of law

to a fair trial as defined by the European Convention for the protection of human

rights and fundamental freedoms and by the Charter. In other words, when deciding on the

dovoláních in the context of criminal proceedings criminal procedure code must be interpreted as

constitutionally Conformal manner and conditions of admission of the appeal pursuant to section 265b

the criminal procedure code should be interpreted so as to satisfy the Constitution

provided for the obligation of the courts to provide individuals the protection of his

of fundamental rights. ... It follows that the Supreme Court is obliged to

the appeal judge, that it has in earlier stages of the procedure

violated the fundamental rights of dovolatele, including his right to a fair

process. ... In other words the objections to violations of the right to a fair trial

are always eligible reason such extraordinary appeal under section 265b para. 1 (b). (g))

Code of criminal procedure (see, mutatis mutandis for civil proceedings, resolution sp.

Zn. III. TC 772/13 of 28 July 1999. 3.2013, paragraph 11). ... The Constitutional Court would

therefore exceeded its powers if it submitted a constitutional complaint

has discussed without to namítanému violations of the right to a fair

the process had the opportunity first to express Supreme Court. " Judge

in that resolution, the rapporteur also points out that in this case does not share the views of the

referred to in resolutions, SP. zn. III. TC 3050/09 and SP. zn. IV. TC 3407/11,

It is considered obsolete even with regard to the new wording of section 75 para. 1

the law on the Constitutional Court effective from 1. 1.2013. In connection with the

the resolution is also should be noted that this decision was not

the complainant is prevented from access to the Constitutional Court, due to the fact that the

at the time of issue of the decision to the complainant still ran two-month time limit to

filing an appeal to the Supreme Court.



In the.



The principle of subsidiarity a constitutional complaint



15. the provisions of section 75 para. 1 of the law on the Constitutional Court has its legal

the basis of the principle of subsidiarity a constitutional complaint, which also goes by the principle of

minimizing interference into the activity of the Constitutional Court of the public authorities,

which means that the constitutional complaint is a last means of protection

rights, emerging when the axle before such bodies is no longer

the standard procedure is possible. Constitutional justice is primarily built

on the principle of review things finally concluded, in which any

the unconstitutionality is no longer correct, the other way, IE. procedural

the resources are served from the legislation, governing the competent

(judicial) proceedings. The Constitutional Court does not belong to circumvent the law, since the show

is not part of the system of general courts (resolution SP. zn. III. TC 3507/10

of 12 October. 9.2012). Above all, the general courts



a priori

It is addressed to the imperative of formulated in article. 4 of the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution"). The protection of constitutionality in the rule of law cannot

only be the task of the Constitutional Court, but shall be the task of the entire judiciary.

The constitutional complaint, therefore, is a means of



Ultima ratio

[see, e.g. find SP. zn. III. TC 117/2000 of 13 October. 7.2000 (N 111/19

SbNU 79)] and is an instrument of protection of fundamental rights, after the incoming

the exhaustion of all available effective means to protect the rights of

applicable in conformity with the law on the system of public authorities

(resolution SP. zn. IV. The CS 2891/08 3. 4.2009).




16. the Purpose and functions of the constitutional complaint is remediation decisions or other

the intervention of a public authority to the constitutionally guaranteed rights of the complainant. To

This remedy, however, cannot occur without being exhausted all remedies

resources from law enforcement authorities, which are

available to the complainant. If the Constitutional Court would be contrary to the principle

of subsidiarity ruled myself without first have been exhausted all

options to achieve remedy of the infringement, could

while avoiding hitting the powers of other government agencies (here

General courts) and undermine the principle of the Division of competences. Therefore, in cases

When the complainant does not use all available procedural means of redress,

the Constitutional Court considers the constitutional complaint inadmissible (order sp.

Zn. III. TC 3507/10 of 12 October. 9.2012).



Vi.



To the decision-making activities of the Supreme Court



17. Dovolací control is in no way your stage is not outside of the constitutional

the framework of rules of a fair trial as defined Charter of fundamental

rights and freedoms and the Convention for the protection of human rights and fundamental freedoms

(hereinafter referred to as "the Convention") and the decision-making practice must not interfere with the constitutional principle of

the equality of the parties. Likewise, the decisional practice of the General

courts to interpret domestic law with the obligations arising for the conformally

The Czech Republic of the relevant international treaties (article 1, paragraph 2,

Of the Constitution). The Constitutional Court notes that article. 6 (1). 1 of the Convention (right to

to a fair trial) includes provisions, which must be the provisions of the

the legal procedural law is interpreted souladně, including those

the provisions of the code of criminal procedure, which define the grounds referred to in dovolací

the provisions of § 265b criminal procedure [find SP. zn. I. ÚS 55/04 of 18 May.

8.2004 (N 114/34 SbNU 187), similarly find SP. zn. II. TC 669/05 dated

5.9. 2006 (N 156/42 SbNU 275)].



18. Stand up or a plea that the competencies of the Court of dovolacího

deal with dovoláními by for reasons other than the reasons

resulting from the Supreme Court applied the interpretation of the code of criminal procedure.

Mandatory standards of competence are also for the Supreme Court article. 4, art. 90

and article. 95 of the Constitution in order to bind judicial power to protect fundamental rights. In

This spirit is to be interpreted as well as the legal definition of the dovolacích reasons of

which cannot be inferred the decision-making procedure that would

diversity in the ability to access different groups of the parties to the

The Supreme Court (find SP. zn. I. ÚS 55/04 of 18 May. 8.2004, similarly

find SP. zn. II. TC 669/05 of 5 July. 9.2006).



19. If the appeal Is an exceptional remedy, the purpose of which is

In addition to unifying the Judicature and the protection of fundamental rights, in particular,

then the constitutional complaint, the constitutional terms of their definition, cannot be

built next to the appeal in cassation, arguing that the defects, which are the interpretation of the excluded

of any review under the dovolacího of proceedings may be soothed in the

proceedings on constitutional complaints. This would become a constitutional complaint

dedicated an extraordinary legal remedy to correct the procedural and

factual errors of general courts, which, however, cannot, having regard to the

the constitutional definition of the role of the Constitutional Court (article 83 the Constitution).

Conversely, you can request that the Supreme Court interpretation of the provisions on the way

Code of criminal procedure of appeal to ensure the fulfillment of both these purposes control

of appeal (find SP. zn. I. ÚS 55/04 of 18 May. 8.2004).



20. the grounds for appeal are specified in an exhaustive manner in section 265b

paragraph. 1 (b). and to (b).) l) code of criminal procedure. Dovolací the reasons are

so framed that their content is not in the decision-making activity

The Supreme Court no doubt. In some cases, however, arise

doubts in application because under section 265b dovolacího para. 1 (b).

(g)) code of criminal procedure, pursuant to which the appeal may be filed, if the

"the decision is based on an incorrect legal assessment of the deed or other

an incorrect assessment of the material ". The interpretation of this dovolacího because of

shortly after its introduction, amendment to the criminal procedure code no. 265/2003 Coll.

carried out by Act No. 265/2001 Coll., implemented the Supreme Court very

in a restrictive manner, and the Constitutional Court, this approach to the control of

constitutionality of the repeatedly expressed. Delivered its opinion, in accordance with which too

restrictive interpretation of the merits test appeal is constitutionally untenable. In this

the context of the Constitutional Court recalled that dovolací control is in no way your

the stage is not outside the constitutional framework the rules of a fair trial

the finding of the Constitutional Court (SP. zn. II. TC 669/05 of 5 July. 9.2006).



the provisions of article 21. 6 (1). 1 of the Convention guarantees the right to a fair

process and article. 6 (1). 2 the Convention guarantees that the guilt of the accused must be

demonstrated in a lawful manner. The basic principle of fairness of the proceedings,

in particular, the principles of equality of arms and adversarial, is necessarily subject to the

and on the taking of evidence, in particular on how the evidence. The European Court of

human rights in their practice the doctrine, according to which the proceedings as

all must have a fair character of the required article 6 of the Convention,

including how to obtain evidence to the detriment and in favour of the accused

(cf. judgment of the Barbera et al. against Spain from 6 June. 12.1988

A146, section 68, or the judgment of the Schenk against Switzerland of 12 October. 7.1988,

A140, § 46n or Tseber currently, the judgment against the Czech Republic from the date of

22.11. 2012 No. 46203/08). Compliance with the rules of evidence, including

the taking of evidence, the credibility of the evidence Act guarantees

as a precaution against breaking the law-enforcement authorities in criminal proceedings,

ensures that the rights and freedoms of the citizen, is hitting only within the limits of the law and

guarantees the legitimacy of the law of the State to punish so (Repík, (B). the European Convention

on human rights and criminal law. Prague: Orac, 2002, pp. 194-195).

Checking compliance with these rules from the perspective of the right to a fair

the process does not belong only to the Constitutional Court, but agrees to the general courts.



22. The Constitutional Court is of the opinion that even a single evidence

(e.g. witness, scene recognition, inspection, etc.) and the way

its measures (call interception and recording of telecommunications, domestic

inspection and inspection of other premises, shipment tracking, etc.) or its

the omission may have a significant impact on the decision on the substance and its

the unconstitutional nature of the may violate the right to a fair trial (article 6

The Convention) or other right guaranteed by the Convention (article 8, paragraph 2, of the Convention).



23. The opinion of the Constitutional Court referred to in the award SP. zn. I. ÚS 4/04 dated

23.3. 2004 (pursuant to which the incorrect assessment of the facts cannot be

strictly separated from the incorrect legal characterisation of the deed, because these

two categories are essentially inseparable), however, does not mean that

The Supreme Court in any case where leave to appeal even in

relation to the factual findings, had to be considered pursuant to section dovolací reason

265b para. 1 (b). (g)) code of criminal procedure for the



prima facie

filled with. When dovolatel argues fair trial rights violations in

the field of taking of evidence (dovolací reason pursuant to section 265b para. 1 (b) (g))

Code of criminal procedure), or another of the reasons set out in § dovolacích

265b para. 1 code of criminal procedure is based on the article. 4, art. 90 and article. 95

The Constitution of the United States is always the duty of the Supreme Court, duly consider and

decide whether the dovolatelem referenced the reason or not a reason for such extraordinary appeal.

It is the only legitimate authority, which at this stage is for the

assess the fulfillment of a specific dovolacího the reason (see paragraph 54 of the judgment

The European Court of human rights in the matter of Janyr and the other against the United

Republic of 13 October. October 2011, no complaints 12579/06, 19007/10 and

34812/10) and that assessment is mandatory as a condition for any

a constitutional complaint (article 75, paragraph 1, of the law on the Constitutional Court).



VII.



The preamble of the operative part



24. From the wording of the provisions of section 75 para. 1 of the law on the Constitutional Court, as amended by

effective from 1 January 2005. 1.2013, clearly shows the obligation of the complainants

exhaust all means that they act to protect their

the law therefore provides an extraordinary legal remedy in the form of an appeal

in criminal matters, if the appeal is admissible in the case. If it is in

the provisions of section 75 para. 1 of the law on the Constitutional Court established an obligation to

exhaust and an extraordinary legal remedy, which the authority about him

Decides, it may be rejected as inadmissible for reasons that depend on

his discretion, the complainants must exhaust the extraordinary appeal

in the case where a resource is this permissible (section 265a code of criminal procedure).



25. the constitutional complaint is a means of protection of the rights, which is a subsidiary

to the standard "institutional" institutes. Above all, the general courts are

called upon to protect the rights of natural and legal persons, and only if it is not

achieved under the general remedy of the judiciary, may to the extent

limited aspects of the protection provided by the review of the constitutionality of the exercise

Of the Constitutional Court. The Constitutional Court cannot consider itself meet

the terms of that open space to meritornímu dovolacímu review

This role is not for him. The question of whether the complainant meet the objections

one of the dovolacích reasons, should be considered by the Supreme Court, as if


so the Constitutional Court has made without this assessment, while avoiding interfering

in the activities of the Supreme Court and, by extension, the General of the judiciary.



26. the standards of competence are also Binding for the Supreme Court article. 4, art.

90 and article. 95 of the Constitution in order to bind judicial power to protect fundamental rights.

Dovolací control cannot be located outside the constitutional framework for the protection

fundamental rights and the rules of due process, as defined by the Convention, and

By the Charter. The Supreme Court is therefore obliged, in the context of appellate review to assess whether the

has not been in previous stages of the procedure violated fundamental rights dovolatele,

including the right to a fair trial. Any reasonable objection to infringement

constitutional rights is the basis for the annulment of the contested decision in the proceedings

about the appeal. The Supreme Court is in this stage of the proceedings shall, when assessing the

the appropriate dovolacího this rule is due to apply and

do not transfer this responsibility to the Constitutional Court. It follows that the

the claim of the complainants party inefficiency in the use of appeal

the form of the appeal cannot succeed.



VIII.



The conclusion of the



27. Since the conclusions of the legal opinion, deviating from Constitutional

the Court in finding SP. zn. I. ÚS 180/03 of 2 December. 3.2004 (N

32/32 SbNU 293) and in finding SP. zn. I. ÚS 864/11 of 16 April 2003. 6.2011 (N

116/61 SbNU 695), and the Constitutional Court. under section 23 of the Act

No. 182/1993 Coll., on the Constitutional Court, the question of the complainant's duties

exhaust in criminal matters and an extraordinary legal remedy in the

form of appeal in relation to the admissibility of a constitutional complaint for assessment

the plenum of the Constitutional Court, which, with its line of argument in its entirety

identified and adopted a legal opinion, which is mentioned in the operative part of this

the opinion.



28. With regard to the rights of the parties and, in particular, with regard to the

the principle of legal certainty, this opinion apply to the constitutional complaint

submitted to the Constitutional Court on the day following the date of publication of the opinion of the

in the collection of laws.



The President of the Constitutional Court:



JUDr. Rychetský, v. r.



Different opinion referred to in section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, have taken to justify the opinion of the full Court

judge Vladimir Sladecek, and Radovan Suchánek.