In The Case Of A Proposal To Repeal Part Of The Ust. Section 74 Paragraph. 2 Of The Code Of Criminal Procedure

Original Language Title: ve věci návrhu na zrušení části ust. § 74 odst. 2 trestního řádu

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163/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court ruled June 20. April 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Ivana Janů,

Vladimir Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný, Elisabeth Wagner (the judge rapporteur) and

Michael Židlická of design II. Chamber of the Constitutional Court for annulment of the

the provisions of section 74 paragraph. 2 the second part of the sentence for a semicolon to Act No.

141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by

amended, with the participation of the Chamber of deputies of the Czech Parliament

the Republic and Senate of the Parliament of the Czech Republic as parties to proceedings



as follows:



I. the provisions of section 74 paragraph. 2 the second part of the sentence for a semicolon, including

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

regulations), as amended, which reads "; If the release of the

After the publication of zprošťujícího-binding judgment, has a complaint of the State

the representative of the suspensory effect only, if the State Prosecutor also

appeal against the judgment, "is cancelled on the date of publication of this finding in the

The collection of laws.



II. The accused will always be zprošťujícího immediately after the release of the judgment

released. The complaint to the public prosecutor against a decision of the

the release of the accused from custody after the release of zprošťujícího

the judgment does not have suspensory effect



Justification



(I).



Even the definition of things) and recap the draft



1. In proceedings on constitutional complaints conducted under SP. zn. II. the TC 331/10

the complainant m. demanded the cancellation of the resolution of. High Court in Prague of the day

22.12. 2009 SP. zn. 10 To 125/2009, as it had for that top

the court violated the constitutionally guaranteed right to guaranteed article. 8 (2). 1, 2 and 5

The Charter of fundamental rights and freedoms (the "Charter") and also the rights of

enshrined in article. 5 (3). 1 (a). (c)). 5 (3). 3 and 4 and article. 6 (1). 1

Convention for the protection of human rights and fundamental freedoms (hereinafter as "

The Convention "). The resolution of the High Court in Prague has repealed the resolution

The regional court in Pilsen, Czech Republic of 7 April. 12.2009 no j. T 3/34 2008-9891,

which the complainant was released from custody. On the basis of the

the complaints of the public prosecutor of the District Public Prosecutor's Office in Pilsen

the High Court set aside the discharge resolution of the regional court, the complainant

kept in custody and his request for release rejected.



2. The essence of the constitutional complaint, the complainant's doubts about that

then, what has been handed down over him and it was decided whether the judgment of the

his release from custody, the Court decided the investigative complaint

the Court of appeal of the State Prosecutor, who also filed a notice of appeal and the

zprošťujícího judgment, to keep the complainant in detention. This procedure

According to the complainant, it is in breach of article. 5 (3). 3 of the Convention in the interpretation

traktované the European Court of human rights (hereinafter "ECHR") since

1968 (the decision of the FEDERAL REPUBLIC OF GERMANY in the Wemhoff. from 27 April. 6.1968). Violations of the

fundamental rights of the complainant, was also in the fact that he was not the Chief

the Court allowed a personal hearing in the context of deciding on the duration of custody.

According to the complainant, it was also the decision of the High Court for its General

justification in essence nepřezkoumatelné.



3. the second Chamber of the Constitutional Court did not consider it part of a constitutionally Conformal

a semicolon sentence of the second paragraph of section 74. 2 Act No. 141/1961 Coll., on criminal

judicial proceedings (code of criminal procedure), as amended, as

contradicts the requirement on the adequacy of the limitation of personal freedom, when

does not respect the requirement of prokázaní the presence of reinforced the reasons for

Another limitation of personal freedom, who shows how the case-law of the

The Constitutional Court [find Constitutional Court SP. zn. IV. TC 689/05 of 12 December.

12.2005 (N 225/39 SbNU 379) ^ *], the ECTHR case-law of the FEDERAL REPUBLIC OF GERMANY (Wemhoff.

of 27 June. 6.1968, Labita v. Italy of 6 April. 4.2000, Rokhlina in.

Russia of 7 July. 4.2005, available at http://www.echr.coe.int), respectively.

This literally denies the request. Therefore, the plenum of the Constitutional Court submitted

application for annulment of the cited provisions.



I. B) representation of parties



4. The Constitutional Court pursuant to the provisions of § 42 paragraph. 4 and section 69 of Act No. 182/1993

Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the law of

The Constitutional Court "), the present proposal on the annulment of the contested

the provisions of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.



5. The Chamber of deputies of the Parliament of the Czech Republic, represented by the President of the

Ing. Miloslav Vlčkem, in its comments of December 12. 3.2010 only

rekapitulovala the course of the legislative process leading to the adoption of

the current version of the contested provisions section 74 paragraph. 2 the second part of the sentence for

the criminal procedure code by semi-colons. At the same time agreed with by refraining from

the oral proceedings.



6. the Senate of the Parliament of the Czech Republic, represented by Chairman MUDr.

Přemysl Sobotka, in representation of 12 June. 3.2010 also described

legislative procedure of adoption of the current version of the contested provisions of section

paragraph 74. 2 the second part of the sentence for the criminal procedure code by semi-colons (Amendment

criminal procedure carried out by Act No. 265/2001 Coll.) By the Senate. Further stated,

the whole of the present amendment was amendments to the criminal procedure with

reform ambitions and in its whole and legally monitor the substantive

the direction of the so-called progressive. continuity and law enforcement. The Senate

consultation the amendment is directly affected by the alleged legal section

editing; but the debate was conducted, in part, to any other comparable material

the amendment, i.e.. a new State Prosecutor.

extending bindings in the preparatory proceedings. This proposal on stronger

the State Prosecutor and the Senate after critical výborovém plenary

the hearing eventually nerevidoval. From the context of the management of the debate can be

arguing about a shift of the Senate to the petitioner's opinion, that it was necessary to

changed the position of the Attorney General in criminal proceedings, duly

to project the Institute links. The Senate also expressed agreement with the

abandonment of the oral proceedings.



II.



The conditions of the appellant's evidence is active



7. the proposal to abolish the sentence of the second part of section 74 paragraph for the semicolon. 2

the criminal procedure code for his conflict with the constitutional order of the Czech Republic was

filed (II). appeal to the Constitutional Court in the framework of the constitutional complaint

the complainant, m. z. conducted under SP. zn. II. the TC 331/10 when the essence of the

the constitutional complaint was of the opinion that any continuation of custody after

announcement of the zprošťujícího judgment of the Court of first instance is in contradiction with the

The Convention, with the possibility of continuation of the links is based on the relevant part of the

first instance appealed against the provisions of the code of criminal procedure. It is therefore a proposal submitted

According to § 64 paragraph. 1 (a). (c) the Act on the Constitutional Court) and the conditions for active

the evidence to its submission were therefore met.



III.



The diction of the contested provisions



8. The contested provisions of the second part of the sentence with a semicolon for the provisions of section 74

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

regulations), as amended, reads as follows:



"If the release from custody after the publication of the judgment, the zprošťujícího

the complaint to the public prosecutor have suspensive effect only if the State has filed

the representative also appeals against judgment. ".



IV.



A description of the legislative procedures, the adoption of the contested provisions of the Act



9. The Constitutional Court is in accordance with the provisions of section 68, paragraph. 2 of the law on

The Constitutional Court in proceedings for the annulment of laws and other legislation

obliged to examine whether the contested act or part of it has been received and

issued within the limits of the Constitution laid down the competence and the constitutionally prescribed

in a way. The provisions in question were adopted before 1993, therefore, the

before the validity and effect of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"),

that represents the reference criterion for the assessment of the constitutionality of

the legislative procedure, the adoption of the legislation [see resolution of the plenum

The Constitutional Court, SP. zn. PL. ÚS 5/98 of 22 December 1998. 4.1999 (32/14 SbNU

309) ^ *]. Because in a later period adopted the changes were only

formal language, respectively, for the related mainly with the substitution

the institution of the public prosecution institution of public prosecutor's Office, the Constitutional Court

the legislative procedure for the adoption of the provisions of the Act nepřezkoumával.



In the.



Terms of reference for the assessment of the proposal



In) Relevant provisions of the Constitution and the Convention



10. According to the article. 1 (1). 1 the Constitution of the Czech Republic is the rule of law

based on respect for the rights and freedoms of man and citizen. In the very

the base of the rule of law is "principle, according to which freedom is

the individual and the State assumed its limitations is the exception "(cf.. (C).

Schmitt. Constitutional Theory. Durham and London: Duke University

Press, 2008, p. 204). The idea of the rule of law therefore logically grows and

the whole concept of the criminal proceedings. Even in criminal proceedings must be a maximum of

examined individuals ' rights and freedoms, because of the purpose and method of bagatelizací

the management of the criminal proceedings may be unjustified and disproportionate

interference in the private individual freedom (cf. Constitutional Court

SP. Zn. II.-1975/08, available at http://nalus.usoud.cz). From

the constitutional point of view is always a significant assessment of the questions to which

extent can (still) in the public interest, as defined in the criminal code to
punishment, legitimately restrict the basic rights of the accused in the specific

course of criminal proceedings (cf. Constitutional Court SP. zn. I. ÚS

1305/09, available at http://nalus.usoud.cz), which primarily falls

just the right to personal freedom.



11. The provisions of the article. 8 (2). 1 of the Charter guarantees everyone a personal

freedom, which belongs in a catalogue of fundamental rights and freedoms of the front place

[cf. section 25 award SP. zn. PL. ÚS 63/06 of 29 June. 1.2008 (N 21/48

SbNU 223; 90/2008 Sb.) ^***]. Space and borders for constitutionally aprobované

restrictions on the right to personal freedom then lays down, in particular, the provisions of article. 8

paragraph. 2 and article. 8 (2). 5 of the Charter [cf. Constitutional Court SP. zn.

IV. TC 689/05 of 12 December. 12.2005 (N 225/39 SbNU 379)]. A similar, indeed

even more detailed adjustment includes the Convention on the protection of human rights and

fundamental freedoms. According to its article. 5 (3). 1 no one shall be deprived of his

freedom in addition to exhaustively set out the cases. The deprivation of personal freedom

may occur only in accordance with the procedure prescribed by law. According to the article. 5 (3).

1 (a). (c)) of the Convention can be an individual get rid of freedom because of the legal

the arrest of the person or other deprivation of liberty for the purpose of presentation prior to the

the competent judicial authority for reasonable suspicion of having committed a criminal offence

or if there are reasonable grounds to believe that it is necessary to prevent her in

committing an offence or fleeing after committing. In the article. 5 (3). 3

The Convention is then stipulated that anyone who is arrested or otherwise deprived of the

in accordance with the provisions of paragraph 1 (b). (c)) of this article, shall

be immediately brought before a judge or other official person empowered to

by law to exercise judicial powers and has the right to be tried within a reasonable

period or released during the proceedings.



In B) limitation of personal freedom bound



12. The Constitutional Court has on several occasions commented on the nature of the binding, which include

together with the detention and arrest of most serious procedural interventions in

the rights of the accused. The content of the legal Institute of the binding represents the definition of the

constitutionally acceptable default reasons for limitation of personal freedom of the accused with the

order to prevent the destruction or hinder achievement of the purposes of criminal proceedings

[cf. Constitutional Court SP. zn. PL. ÚS 4/94 of 12 April. 10.1994 (N

46/2 SbNU 57; 214/1994 Coll.), find SP. zn. I-40/04 of 24 September. 2.

2004 (N 28/32 SbNU 261), SP. zn. IV. TC 689/05 of 12 December. 12.2005 (N

225/39 SbNU 379)]. Temporary limitation of personal freedom is bound under

the opinion of the Constitutional Court must comply with several conditions [cf. point 25

the finding of the Constitutional Court SP. zn. PL. ÚS 63/06 (see above)]: "between the basic

understanding limitations of personal freedom bound (which must podústavní the right to

reflect the necessity to include the imposition of binding) and holding in it just for the

a specific legitimate purpose, proportionality between personal freedom of the individual

and the company's interest to limit this freedom, the need for restrictions on personal

freedom for the absence of other means to achieve the same objectives,

balancing the benefits of the limitation of personal freedom with regard to this

the resulting losses, and the exclusive jurisdiction of the Court to decide finally. ".



13. Due to the fact that the binding can represent enormous intervention in personal

the sphere of the individual, was given to her in the case law of the Constitutional Court

extraordinary attention. In his opinion, binding "represents an exceptional

measures concerning the restriction of personal freedom and has to be stored only

then, if there is no other kind, how to limit a particular concern for

the binding can be ordered "(cf. Constitutional Court SP. zn.

II.-897/08, available at http://nalus.usoud.cz). The uniqueness of this

ensuring the Institute is given by the fact that the binding has serious negative

effects: relieves the "freedom of the person presumovaně the innocent before the

the definitive findings of guilt, isolates the accused from his family and

the social environment has serious social and psychological consequences,

It can serve as a means of pressure on the accused, in order to achieve its

the confession "(Repík, (B). the European Convention on human rights and criminal law.

Prague: Orac, 2002, p. 228). Because the binding can seriously

the personal freedom of the individual, it has to be, as a legitimate

a statutory exception to the general rule of inadmissibility of intervention in the personal

the freedom of the individual, always be interpreted exclusively in a restrictive way, how to

Indeed, the ECTHR case-law confirms. It has a list of exceptions to rights

on the freedom of an exhaustive character, and therefore is only a narrow interpretation of the

compatible with the objective of the provisions of the article. 5 of the Convention (Giulia Manzoni against

Italy, 1997, Quinn against France, 1995). The use of this process

the Institute should be always considered from the perspective of proportionality to

fundamental rights of the accused.



14. The intervention into personal liberty is to be seen always in terms of time;

because the binding is exceptional, the Institute can take only essential

a necessary period of time. It takes a longer time than is strictly necessary, the measures

unreasonable, unduly involved in the fundamental right to personal

individual liberty guaranteed article. 8 (2). 1 of the Charter, which is a

the situation should be granted priority. According to the ECTHR is "the continuation of the

limitation of personal freedom justified only if there are

a specific indication of the real needs of the public interest, which, apart from the

the presumption of innocence, the principle of respect for outweigh personal freedom "

[cf. e.g. decision in Letellier against France of 26 June. 6.

1991, Muller against France from 17 May. 3.1997, Punzelt against Czech

Republic of 25 June. 4.2000 or Jecius against Lithuania of 31 May. 7.

2000, cf. also find Constitutional Court SP. zn. IV. TC 689/05 of 12 December.

12.2005 (N 225/39 SbNU 379)]. The continued restriction of personal freedom

the binding must be in relation to the proportionality of the constitutionally konformnímu

the public interest in the effective prosecution of criminal activity. They change over time

on the contrary, decreases the legitimacy of the restrictions of fundamental rights for the benefit of the public

interest in the fulfillment of the purpose of criminal proceedings and amplifies the need to restore the

respect for the fundamental rights of the individual.



15. In order to ensure the respect and protection of the fundamental right to personal freedom,

the ECHR HAS developed the so-called. the doctrine of reinforced the reasons. According to this doctrine must

General courts to respect the requirement of necessity of the existence of a reinforced

the reasons for the duration of the restriction of personal freedom, otherwise it cannot be continued

limitation of personal freedom, even to the imposition of binding could be based on the

a reasonable suspicion, aprobovat. When assessing the proportionality of the restriction

the personal freedom of the General Court shall deal mainly with the fact that the

strengthened or weakened by suspicion of having committed an offence, for

which the accused is prosecuted. Specifically speaking, the duration of the suspect

"a sine qua non for legality of continued ties, but after a certain

While more is not sufficient in itself. In such cases, the Court must

determine whether there are other (relevant and sufficient) reasons presented by

law enforcement authorities in criminal proceedings, that would justify this

the continued deprivation of liberty "(decision of 7 December 2004. 4.2005 in case

Rokhlina against Russia). The national court must therefore determine whether additional

the reasons presented by the law enforcement authorities in criminal proceedings may justify

the continued detention of the person concerned (cf.. Hubálková, E.

Convention on human rights and the Czech Republic. Prague: Linde, 2003, s.

131).



16. Because the ECHR HAS always assesses the adequacy of the time restriction of personal freedom

binding, specifically expressed in many of their decisions when

in terms of time can be considered binding even for reasonable, and when no longer

a binding represents interference in the right to personal liberty guaranteed by the Convention.

According to the ECTHR there is in fact a time limit, that deprivation of liberty

a binding must not exceed. As well as the Constitutional Court stresses (paragraphs 13 and

14), it is also proved by the exceptional, binding time well-defined on

as long as necessary. While the determination of the beginning of this period, usually

It does not present a problem, quite a crucial question is the determination of the end

the period of detention, which would be more in accordance with the Convention. From the case law of the ECTHR

It follows that this period starts at the moment when the person was effectively deprived of the

freedom, and ends with the publication of the judgment of the Court of first instance, although still

become final (cf.. Repík, (B). the European Convention on human rights

and criminal law. Prague: Orac, 2002, p. 228).



17. this rule is expressed in the decision of the ECTHR Wemhoff against Germany from

27 June. 6.1968, according to which the binding ends with regard to the article. 5 (3). 3

The Convention on the date on which the decision is made on the indictment, even though the Court of first

the degree. This legal opinion of the ECTHR has confirmed in its decision the Labita

versus Italy of 6 April. 4. in 2000, in which he said that the end of the binding with

regard to the article. 5 (3). 3 of the Convention is the day when the decision is made to

the merits of the prosecution, even if only in the first instance. From these

the decision clearly shows that the detention of a person after having been exempted from

guilt, can no longer be covered with the exception of the připuštěnou article. 5 (3). 1 (a).

(c)) of the Convention. The ECTHR, although he admitted that a deadline for the execution of the decision of the

the release of freedom is often unavoidable, but this time must be

reduced to a minimum (Giulia Manzoni from day 1. 7.1997). An important

implications of this legal opinion is that the duration of custody cannot be

extended performance zprošťujícího suspensory effect of the judgment. In a similar
case the reason for the deprivation of liberty under article. 5 (3). 1 (a). (c) of the Convention)

ended up. From the case law of the ECTHR, it is possible to infer the conclusion that if the

Court of first instance declared the exculpatory judgment, the accused must be

immediately released, although the State Attorney immediately appealed (cf..

Repík, (B). the European Convention on human rights and criminal law. Prague:

ORAC, 2002, s. 229). If the accused is released, it must be stated,

that is a violation of the right to personal liberty guaranteed article. 5 (3).

1 of the Convention. To the further limitation of personal freedom may occur during filling

disposition of the anticipated article. 5 (3). 1 (a). and the Convention, which allows)

lawful incarceration after conviction by a competent court. A person who, after

condemnation disputes that lasted a long time because of the binding of the unreasonably delays in

the procedure for the appeal, cannot rely on article. 5 (3). 3 of the Convention,

but can only argue and prove violations of the rights guaranteed by article. 6

paragraph. 1 of the Convention.



In C) Inspiration elsewhere: practice in the Slovak Republic



18. The Constitutional Court States that the ECHR HAS found the response of the practice described in the Slovak

Republic. Slovakia has adopted an extensive amendment of the code of criminal procedure, which

should ensure respect for the fundamental rights of individuals, in accordance with

as interpreted by the Slovak Constitutional Court, and in particular the ECTHR. The Case Law Of The ECTHR

to the article. 5 (3). 1, 3 and 4 of the Convention has been comprehensively implemented in

Code of criminal procedure of the Slovak Republic. So Slovakia fulfils the commitments,

that arise from the Convention. The explanatory memorandum of the Slovak Ministry of

Justice of 2007 lists the specific changes that this amendment

points. One of them is the unconditional release of the accused from custody

After the liberation of the Court of first instance. The Ministry of Justice on the

This site referring to supporting the principles of the ECHR decision in the matter of Wemhoff

against Germany from 1968 (see p. 4). Explanatory memorandum on left

against Italy, Labita decision which States that the more the duration of custody

After the zprošťujícím the judgment already cannot justify the exception permitted under

article. 5 (3). 1 (a). (c)) of the Convention. In other words, binding after publication

acquittal decision loses backing in the provisions of subparagraph (c)) article. 5

paragraph. 1 of the Convention, the extent to which the procedural guarantee article. 5 (3). 3 of the Convention, which

It guarantees the right to be tried within a reasonable time limit, in relation to this

the provisions of the Convention. Therefore, it is not possible to hold a person in custody,

If it was about the legitimacy of the charges already decided. The explanatory memorandum

stresses that, in accordance with the decision in the matter of Wemhoff is

the date on which binding ends the day when deciding on the charges, albeit only by a Court of

first instance (cf. p. 23).



VI.



Your own review



19. The Constitutional Court and in the light of the above constitutional aspects

He had to judge whether the incriminated parts of the contested provisions comply with the

the requirements arising from the above principles, and came to the conclusion that the

This is not so.



20. The provisions of section 74 paragraph. 2 the second part of the sentence with a semicolon for the criminal

the order modifies the suspensory nature of the complaint, the public prosecutor after the publication

zprošťujícího judgment is under appeal at the same time. The exculpatory

the judgment is issued when not on the basis of the

the evidence established guilt of the accused, whether because of that (and) has not been proven,

that the offence for which the accused was prosecuted at all, or (b) in

plea, the proposal marked a deed is not a criminal offence, or (c) was not

evidence that the accused committed this deed (see § 226 criminal procedure

where are laid down and some of the other reasons). Following the release of

zprošťujícího judgment of the Court must examine the investigative phase, whether the reasons for custody

last or have not changed (see section 72 (1) of the criminal procedure code).

Since the accused was acquitted by a court decision, is entirely in the

the obvious, that the reasons for detention are no longer made, and that the duration of the

the binding is no longer justified. Just because the General Court immediately after the

release zprošťujícího of the judgment issued also a resolution on release from custody

to freedom. The current wording of the provisions of section 74 paragraph. 2 the second part of the sentence for

a semicolon criminal procedure then in effect represents the permissions

the Prosecutor's decision to the Court for release from custody, albeit on time

limited period of time, until the decision of the appeal court to reverse.



21. In terms of constitutionality is hardly acceptable to

the continuity of the limitation of personal freedom was not bound by the judgment zprošťujícím

in no way impaired. In the opinion of the Constitutional Court, this legislation

criminal procedure authorizing the Prosecutor to lodge a complaint with the

suspensory effect contradicts the narrow interpretation of the article. 5 (3). 1 (a). (c))

conjunction with article. 5 (3). 3 of the Convention. The text of the fallen part of the

the provisions of the code of criminal procedure is completely unambiguous and its deficits

Unable to overcome the constitutionally Conformal interpretation.



22. The Constitutional Court therefore came to the conclusion that the contested part of the provisions of section

paragraph 74. 2 of the code of criminal procedure is in direct contradiction with the requirements arising from the

the principles contained in the case law of the ECTHR (paragraphs 14 to 17), which are not

the Czech legislation are respected. The continued restriction of personal freedom

After the release of zprošťujícího judgment ceases to be justifiable from the

public interest in the effective prosecution of crime, as

It is not filled with the requirement of the presence of reinforced the reasons for the

the links (item 15). If the case law of the ECTHR, to cope with the resulting time

result has been increasing reasons that legitimised the continued duration of custody, it is

obvious that this requirement not part of challenged provisions of the criminal

the order of honour. Release zprošťujícího of the judgment in fact causes

the disappearance of these reasons. In other words, the waiver of the indictment represents a

the moment in the course of criminal proceedings when the reasons for leaving in the

custody disappeared or are selectively reduced to a minimum, because the charge is

showed the unauthorized, and that verdict, and therefore not given the public

interest on the duration of custody, which might prevail over the requirement of the

respect for personal freedom. If it is given by the Court of the obligation to deal with the

with that, whether it is strengthened or weakened by a suspect of committing a

the Act (section 15), following the release of zprošťujícího judgment

justification is refuted by the suspected by a court decision on the

neoprávněnosti charges. The release of the accused could not be considered

premature, even if it is given the option to appeal the Prosecutor in

against the accused, the Court of appeal. As the Constitutional Court has declared

already in the find sp.. SP. zn. IV. TC 689/05 of 12 December. 12.2005 (N

225/39 SbNU 379), the reason for the extension of the binding of a completely

neodůvodněném a hypothetical conclusion on the compliance of the appeal options

the Court of appeal "is completely arbitrary, contrary to the article. 8 (2). 2. 5

Of the Charter, not only by extending over the legal framework of the reasons for the restrictions

personal freedom, but also the fact that it puts the complainants charged to implicitly

the expected inability to rebut the Court of first instance

defence. ".



23. Suspensive effect of complaint raises the status of the public prosecutor, when the

from an individual required greater sacrifice than is possible from the person to whom it is indicative

the presumption of innocence-Court confirmed here, reasonably require. The constitutional

the Court cannot, therefore, accept the concept of the Czech legislation, according to which the

the links for the moment. Implementation of competence

set napadaným the provisions of the code of criminal procedure prosecutors leads to

undue and protiústavnímu to the fundamental right to personal

freedom, however, must be respected even in the formulation

criminal law standards. Therefore, we can conclude that the duration of the custody

cannot be extended through the suspensory effect of the decision on the release of

ties caused by complaints of the public prosecutor, since this construction leads

to undue interference with constitutionally guaranteed the right to personal freedom

of the accused.



24. The Constitutional Court has in a number of its decisions, the interpretation of the article.

paragraph 89. 2 of the Constitution [cf. Constitutional Court SP. zn. PL. ÚS 2/03 of

19 July. 3.2003 (N 41/29 SbNU 371; 84/2003 Coll.), find SP. zn. Pl. ÚS

41/02 of 28 October 1999. 1.2004 (N 10/32 SbNU 61; 98/2004 Coll.), find SP. zn.

PL. ÚS 45/04 of 22 December. 3.2005 (N 60/36 SbNU 647; 239/2005 Coll.)],

According to which "the binding is not only the operative part of the award, but also the justification, or you

its parts, which include, ' reasons. " The provisions of section 74 paragraph. 2

the criminal procedure code will grant the contested part of the sound: "suspensory effect

My only complaint with the public prosecutor against a decision to release

the accused from custody and the parties to the complaint against the decision of the připadnutí

financial guarantees of the State. If, however, was the Prosecutor in the publication

such a decision, his complaint has suspensive effect only

then, if it was made immediately after the announcement of the decision. ". This provision

It will be necessary to unload the constitutionally conformally so that this standard cannot be applied

in the case of a judgment in the case issued exculpatory. The result of the abolition of

the part of the code of criminal procedure must be that the accused will always be after the release of

zprošťujícího judgment immediately released. The complaint

the public prosecutor against a decision to release the accused from custody on
the freedom after the release of zprošťujícího judgment does not have suspensory effect. The constitutional

the Court is aware that a time limit for the execution of the decision of the

release on freedom is necessary, however, recalls that in the case Labita

against Italy (item 17) was the delay in the release from custody of the reason

the necessity of the implementation of administrative formalities in the length of approx. 10 hours

the ECHR HAS found to be unreasonable.



The President of the Constitutional Court:



JUDr. Rychetský in r.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, Volume 39,

find no 225, p. 379



** Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 14,

the USN. No 32, p. 309



NB. Red: a collection of findings and resolutions of the Constitutional Court, volume 48,

find no. 21, p. 223, no. 90/2008 Sb.

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