293/1996 Coll.
FIND
The Constitutional Court of the Czech Republic
On behalf of the United States
III. the Senate of the Constitutional Court of the Czech Republic decided to 25. September 1996 and 7.
November 1996 in the matter of a constitutional complaint the petitioner from R.
The High Court in Prague
as follows:
I. the judgment of the High Court in Prague from January 6. February 1996, SP. zn. 7 this
175/95, and the judgment of the municipal court in Prague from 14 June. May 1996 sp.
Zn. 42 T 16/95, in the part concerning the complainant deleted.
II. The High Court in Prague as a Court of appeal is directed to when
deciding on the custody of the accused from r. from seeing to from 9. January
1996 to 6. February 1996 inclusive.
III. Measures of the High Court in Prague from 23 July. January 1996, which was
appointed the complainant, an advocate of JUDr. J. F., is hereby repealed.
Justification
Timely filed and formally flawless constitutional complaint [section 30, paragraph 1, §
34 para. 1, 2, § 72 para. 1 (b). and), para. 2, 4 of law No. 182/1993
Coll., on the Constitutional Court], the complainant against the rails of the High Court in
Prague and argues that this decision (judgment of 6 February 1996 sp.
Zn. 7 To 175/95) has been violated his constitutionally guaranteed fundamental right
arising from article. 40 para. 3 of the Charter of fundamental rights and freedoms (hereinafter referred to as
"The Charter"); specific violations of this law establishes that, although
the appeal before the ordinary court has chosen to advocate that
the Court of appeal also showed a proper power of Attorney, the intervention of this Court
it in the appeal and the proceedings (and especially in the public session, in which the control
Defense Attorney appointed defended the end) by the Court.
Stressing that it is a gross intervention into one of the particularly important
constitutionally guaranteed rights to anyone who is exposed to criminal prosecution,
suggested to the top marked with the judgment of the High Court in Prague has been finding
The Constitutional Court cancelled. President of the Chamber, from which the contested decision
came, to a constitutional complaint to the challenge of the Constitutional Court expressed (section 30
paragraph. 2, § 42 para. 3 of Act No. 182/1993 Coll.) so, that the objections
the complainant found unfounded, because-with reference to the provisions of
§ 41 para. 1, 2 and 6 of the code of criminal procedure (hereinafter referred to as "tr.")-provisions
advocate of the Court of appeal directed solely to "the real fulfillment of the rights
the defence lawyer's positive activities ", when" the complainant selected
Defense Attorney was idle "during the relevant period; expressed its conviction that
the chosen procedure in a given case "follows from the theory of criminal proceedings", according to
the application of the provisions of the "content of the nearest for the solution of the said
issues (i.e. the provisions read-across) is permissible and in the present
things i needed. Inaction of the chosen defence counsel in their
the implications for the realization of the rights of the accused to a defence, which is identical
situations in which they did not have a defense attorney in the case, when it must have (§ 38
paragraph. 1 tr row.) ".
With this in mind, and also because "If the chosen procedure was not
the creditor (in situations similar to the one in which in the present case
He was the Court of appeal), it would not be possible to prevent the uncontrolled
the extension of the criminal proceedings, or is it even close ", drew
without raised the final proposal, that in the present case "not to reduce the
the complainant's rights of defence ".
A similar opinion, completely consistent with the expression of the content of the President of the Chamber,
took also the Director of public prosecutions (article 76, paragraph 2, al, law No.
182/1993 Coll.), which suggested that the constitutional complaint, the Constitutional Court
the complainant rejected.
The General Court of the requested files (SP. zn. T 42 16/95 municipal court
Prague) and the municipal public prosecutor's Office ibid. (SP. zn. KV 59/92),
as well as of the hearing of a witness. M. k. Constitutional Court found these
factual and legally relevant facts:
(I).
and Police investigators (Resolution) of the Czech Republic-Bureau of investigation
the city of Prague # s. VV 22/120-?) of 8 March. February 1992 it was against
the complainant initiated criminal prosecution (§ 163 para. 1 tr row) for deed
that is described so that "the complainant on 28. January 1992 in the afternoon in the
the closer the nezjištěnou time in Prague 6 in the garage No. 4 garages "
the rock "in the street" on the set "together with j. h. in order to obtain a personal car
puncture wounds, deliberately killed L. P., and then trowel killed D. P.,
that came on the scene, and alienated their personal car Fiat Uno
the red color in the value of ca 300 000 Czech Crowns ".
In the following described deed he saw the crime of murder investigator in
meaning of section 219 paragraph. 1, para. 2 (a). and), f) of the Penal Code (hereinafter referred to as
"tr.").
Together with the complainant for consistently described the deed with the same legal
qualifications has opened a separate criminal prosecution J. H.
(b) by order of the same investigators) of 17 December 1999. February 1992 (SP. zn. KV
59/92) was against the complainant (together and also against J. H.) initiated
prosecution for another act consisting in the fact that "at the end of the month
December 1991 in closer nezjištěnou time in Prague 5 after previous mutual
Agreement (SC. with H.) waited in the hallway of the House repeatedly on D. F.,
physical assault they steal the keys to the apartment and then steal from him
money and the vehicle BMW 524 in value over 100 000 Czech Crowns, however, since
the fact that d. f. ' no-show ' at a time when it in the hallway of the House
waiting to dokonání crime caused ".
As with j. h. thus described the deed has been qualified as a
preparation of the offence of robbery in the sense of § 7 para. 1, § 234 para. 1,
paragraph. 2 (a). (b)).
(c) by order of the same investigators) of 3 July 2003. March 1992 (n. j.
MVV-42/120-92) was with the Affairs of the investigation of the murder and robbery associated to
the joint management of the investigation of the offence of theft according to the next
the provisions of § 247 paragraph. 1, 2, 3 tr. Cust., which should let J. H.
itself, and that two successive acts of terrorism committed in Prague 5.
(d)) Then the police investigator by order of the United States-the district
Bureau of investigation in Prague 4 of 20 September. March 1992 has continued
against the complainant in a broken criminal prosecution (for his previously unknown
stay) on suspicion of a crime of assault on a public official in the
the meaning of § 155 para. 1 (b). and the tr.), which should happen on 10.
January 1991 at the time of enforcement of the sentence in prison No. 2 in Prague-Pankrác during
demonstrations for the performance against the national disciplinary punishment SNV, and
(e) Finally, the next resolution) investigators (dated March 20, 1992 No.
MVV 42/170-12) was investigating the matter connected with criminal prosecution
for the crime of murder and robbery.
In the final stage of the editing process, the complainant was therefore prosecuted (for
the facts mentioned above) for
the crime of murder (section 219 tr. Cust.) with more stringent qualification according to
paragraph 2,
the offense of robbery (section 234 tr. Cust.) with more stringent qualification according to
paragraph 2 and
the crime of assault on a public official (section 155 tr.).
II.
Municipal Court in Prague by order of 8 June 2004. February 1992, the complainant was
due to the prosecution "for serious crime" taken into custody, and it
for reasons of § 67 (a). a), b) tr round the remand order is justified,
that the complainant, it is a "very serious offence" (his legal
the designation is not shown), which is threatened by "the high criminal rate",
Hence the concern, "they will try to avoid prosecution by
could hide or flee ", and finally, that" given the reasonable concern,
that will operate on spoluobviněného J. H., or on
nevyslechnuté witnesses ". Thus imposed binding (by analogy, as was the case with
spoluobviněného j. h.) was gradually extended, general courts
as a rule, with a reference to "prevent completion of the investigation in particular,
that have not yet been carried out investigative measures needed for documentation of
crime of the accused ", etc.
III.
On 26 April. February 1992 the City prosecutor in Prague Municipal Court
Prague filed an indictment, which (along with J. H., which was built on the first
the complainant was charged with instead of) for offences marked front, which
He should let that happen previously. In this stage of the proceedings was
the complainant in detention at all from 8. February 1992, in custody, then from 26.
June 1992.
For completeness, add that the deeds asked him for blaming the complainant
denied, that upheld the first decision of the pre-trial
challenged-without success-appeals and with the same result
He handed a request for release from custody; only the Supreme Court of the United
States, in its resolution of 21. October 1992 (SP. zn. 162 11/92)
the conclusion that the reasons for custody within the meaning of section 67 (a). (b)) for the complainant.
(for the lack of specific facts and taking into account the then
procedural status) do not exist, so the complainant (within the meaning of the cited
the decision of the Supreme Court) was still left in custody already just from
§ 67 (b) of the reasons. and row 2)
IV.
The indictment against the complainant (and the spoluobžalovanému J. H.) discussed the
the Senate of the municipal court in Prague 2 T on 4 and 5. up to 10. November 1992 and
After the trial brought conviction (in conformity with the wording of the
the indictment) and the complainant, order the imprisonment in duration of 14 years,
included in the III. the remedial group; the complainant pleaded (from the time of
accusation) appointed an attorney.
In the.
On the initiative of both procedural appeals the parties dealt with things in the High Court
Prague (SP. zn. 11 It 72/93) to which the file with appeals was
submitted 22. April 1993; the President of the Chamber, to which the matter has challenged, with reference
on the nature of the case and then the material and personal status in the workplace
The High Court in Prague designed by the Supreme Court of the extension of the binding to the 30.
September 1993.
By order of the Supreme Court of 4 February. May 1993 (SP. zn. 1 Tvn 90/93)
It was the design of the High Court in Prague.
The appeal process parties High Court in Prague has been discussed in the
a private session and in its resolution of 27 June 2002. September 1993 was affected
judgment set aside in its entirety [§ 258, paragraph 1 (a)), b), c) tr round.]
and the matter was returned to the city prosecutor in Prague to outof-Court (§
260 tr row.) with the fact that the complainant with regard to the previously established
circumstances continue to be ponecháván in custody (see the sub. (III)).
Vi.
The Court of appeal in the appeal court's decision and said a variety of
procedural irregularities, some of which already has its origin in the management
Preparatory (insufficient to describe the offence of the crime of murder, the way
provision of experts, etc.), and also defects in findings
(the lack of relevance of the odour), both in terms of their
implementation, as well as in the extent of the evidence taken, some of which
(e.g., witness to the complainant to decide. confirmatory for alibi
witness F, and so on) were omitted completely, all of which led the Court of appeal
to believe that the findings of guilt (the complainant and spoluobžalovaného j. h.)
"suffer from nepřesvědčivostí, contradictions, and předčasností, as not
full support in conducted by the evidence ".
VII.
After the judgment of the Corte di Cassazione and to decide that the case is returned to the
outof-city prosecutor in Prague, file things
referred to the public prosecutor's Office on the municipal court in Prague on 1.
October 1993.
Remediation process formal misconduct, that had denied the Court of appeal,
Neither the content nor the time not challenging; Similarly, it was
the parties to the additional evidence, whether the Court of appeal are subject to the complaints
on the neglected witnesses (with the exception of which will be mentioned later, all
in the circuit court process) or other evidence (lack of
weight of odour and the consequent requirement for Court of appeals
on repetition and careful documentation of their new comparison, or
the implementation of the reconstruction and investigation concerning the criminal attempt
crime of robbery, adding expertise in Psychiatry and
Psychology); in this situation, certain problems may arise only party
hearing of a witness to, and due to the fact that the witness at the time of
the investigation was outside the territory of the Republic (in England).
Still, that the need for the hearing of a witness pointed out already appointed
the first decision of the appeal court of Cassation (dated September 27, 1993), and that
# svědkova former residence (in General) were known to the first (failed)
attempt to determine the exact address was made up to 20. April 1994,
Although it is clear from the file that the site svědkova was known to stay its
former wife (witness to the trees, the complainant); on this to
striking the indifference of the authorities engaged in preliminary proceedings, responded
the complainant's lawyer (non-from 5 August 1994) communication svědkovy precision
addresses, while the investigator even after this communication, "in search of" using the
The Central Office of Interpol in Prague (the first step towards the application of 13 May.
September 1994) and the Central Office by fax of 3. October 1994 received confirmation
address communicated by the Attorney. Further delay to accrue unnecessary queries
(Interpol) whether the witness is willing to make his testimony
the Czech authorities (and, for that purpose, to come to the Republic).
So it happened that
1. a record of the testimony of a witness to be taken could up to 28 June. February 1995
(testimony before the competent authority in London) and that-after the other roads
-was the municipal public prosecutor's Office in Prague sent 20 investigators.
March 1995,
2. to get acquainted with the results of the (padded) investigation could be
accessed "already" 28. June 1995 and, finally,
3. new indictment (on the complainant and j. h.) was made on 18 July 2005. July
1995; as to the legal qualification of the facts and was essentially
the same as the previous indictment.
VIII.
Filed indictment discussed flush municipal court in Prague as a court.
degree in the continuing trial (14 September to 26 October 1995)
October 27, 1995, in which the complainant has acknowledged the guilty according to
the indictment, i.e. offences according to section 219 paragraph. 1, para. 2 (a). f), §
7 (2). 1 to § 234 para. 1, para. 2 (a). (f)), both in the aiding and abetting
within the meaning of § 4 para. 2 and article 155 para. 1 tr. Cust., and denounced it for punishment
imprisonment in duration of 15 years and for the performance of the sentence it ranked
the guarded (section 219, paragraph 2, for the use of section 35, paragraph 1, § 39
paragraph. 3 tr.). On the application by municipal court in Prague extended the
The Supreme Court in its resolution of 9 March 2005. August 1995 (SP. zn. 1 Tvn 201/95)
the binding of the complainant to the 7. February 1996 (the period the complainant, within the meaning of section links
paragraph 71. 4 tr row ended on 8 July 2006. February 1996).
From the submitted copies of court records could not be determine when a
judgment of the Court and parties delivered and when--after the lodgement of
appeals from all parties to the proceedings--the case was again
referred to the Court of appeal; You can, however, be considered that to happen on
the end of 1995, as already on day 9. January 1996 was ordered
public meetings of the Court of appeal, which, however, was several times
odročováno (the reasons for this later) until 6 May. February 1996 was
the Court of Appeal handed down a judgment, which the complainant was convicted
the preparation of a criminal offence of robbery [§ 7 para 1 to § 234 (1), para.
2 (a). f) tr.] and the crime of attack on a public official [§
paragraph 155. 1 (b). and) tr.] and for them sentenced to imprisonment
in the duration of six years with the inclusion of his performance in a guarded [§
234 para. 2, § 35 para. 1 and § 39a para. 2 (a). c) tr.].
Party of the crime of murder was the judgment of the Court and again canceled and
This Court returned the matter to the extent necessary, it again discussed and
decided (article 259, paragraph 1 row tr.); at the same time with the announcement of the judgment was
the complainant ordered (for the convicted crimes) the sentence that
the complainant joined on 7 December. February 1996.
What the judgment of the Court of Cassation, section II. the Court of Appeal expressed a degree of
(as regards the complainant's person) its reservations, in particular, to the construction of
aiding and abetting and expert conclusions party app's
sanity, when at the same time concluded that, on the basis of the existing
factual findings (nedoznají in the course of the next control changes) will be
no need to think about more rigorous legal classification of the offence under consideration
the murder also referred to in paragraph 2 (a). a), b) § 219 tr. (criminal
action against two people committed a particularly raw way), which naturally
(Court of appeal heard an appeal by the public prosecutor at the same time) may
have its consequences during subsequent deliberations on a sentence or a clearly
arising from delays.
From the time sequence shows, therefore, that in the period from the end of the year 1992
(the order of the Court and the report was not available) to the end of September
1993-in control-to greater delays at the Court of appeal;
However, a substantially greater delays arose in the period 1-. October 1993 to 18.
July 1995 (i.e. almost 22 months)-in the preparatory proceedings. For
justification for the delay and did not find the Constitutional Court or in the submitted
spisovém material, even after completion of the oral proceedings it carried out in the
evidence of any reason, especially when the demand of the supervisory file
The municipal public prosecutor's Office in Prague showed that from 27. December
1993 to 29. March 1995 is not in this docket bland recording
forward even the slightest intervention of the public prosecutor's Office to the ongoing
DGA.
IX.
Defense Attorney was appointed to the complainant immediately after the committal (delivery
on February 8, 1992); This Defender, as it shows the contents of the file, the
a reasonably active already in the preparatory proceedings and as well-judging by the
written submissions-featured in the proceedings before the Court.
The binding of the complainant was gradually and continuously to the competent courts
extended, most recently (on the proposal of the Court of first degree) by a resolution of the Supreme
of the Court of 9 June. the date of 7 August 1995. February 1996, so to itself
the limit of the compulsory binding (section 74, paragraph 1 tr row).
In the file there is no basis for any judgement that the Defender progressed
irresponsibly. There would be any significant shortening of the rights of the defence
by the authorities in the criminal procedure law; the first hint of app's
disagreement with the procedure investigators can be seen in his complaint of
on 30 November. June 1995 addressed to the representative of the State, of which it complains, first,
the delays in the case, on the one hand, that for the (second) introduction to results
the investigation of him was not given sufficient time, or that it was not
carried out by the proposed witness in the hearing, and that, to complement the
the expert's report to the experts "to investigate in the prison at the time of 15 minutes";
the complaint is against the investigators ' offence ', the
the investigator should commit "by senseless delay" and in a manner
investigation, "which focused exclusively to the detriment of the complainant".
Negative opinion of the municipal public prosecutor's Office in Prague to submit
the complainant is justified by a Prosecutor in it takes the
the conclusion that "in the framework of the investigation requested the High Court in Prague was
made only a few acts "(!), or that even the opposition party experts
psychiatrists is unfounded, because "the basic expert examination was
carried out before the closure of its material and, after the investigation was
done only supplement the expert's report ".
These opinions, however, are in conflict with the requirements of the Court of appeal,
that, moreover, again part of the judgment of the Court and, with regard to the
the offence of murder, for the second time to annul (judgment of 6 February
1996) also for the incompleteness of facts and defects in the expert
the taking of evidence.
X.
To serious procedural complications in the procedure before the general courts occurred in
the second appeal proceedings, for which-for the length of the preliminary proceedings-from
terms of the remand period remained available for a maximum of 37 days.
The Court of appeal to hear appeals ordered public meeting
on day 9. January 1996; Administration (by fax) of 8 June 2004. January 1996 submitted under
the complainant, a power of attorney to the defense of (dated January 5, 1996) and the new Defender
at the same time, with a reference to "other proceedings" and "the complexity and sheer size of the
things ", asked for an adjournment has already ordered a public meeting; This
the Court of Appeal upheld the request, session postponed to 23. January 1996 and
at the same time (for the meeting of present) appointed defense attorney tribute
the complainant's duties in this criminal case further defend (§ 40 tr.
row).
The next administration (by fax) of 22 December 2004. January 1996 to the President of the chosen defence counsel
the Chamber of the appeal court said that to act on 23 June. January 1996
does not attend "because of an inability to work", and, therefore, there was a re-
adjournment of the session, and on day 2. February 1996.
In this already critical situation, the President of the Chamber of the appellate court action
of 23 December 2003. January 1996 instituted the complainant--with reference to the provisions
§ 36 odst. 1 (b). and), para. 3 tr row.--advocate in the person of JUDr. J. F.,
on which the chosen defence counsel (Administration of 30 January 1996) reacted
dispute of bias against the President of the Senate on the grounds that
the said procedure "while avoiding hitting into the rights of the defence", and it just
Therefore, "contrary to the law in order to speed up the progress of criminal proceedings".
However, neither the meeting ordered on day 2. February 1996, there had been, since the date of
February 2, 1996, at 6.30 pm. spoluobžalovaný was j. h. found in his cell
unconscious and doctors Hospital of the prison service (MUDr. K. and MUDr. W).
say the suspected poisoning of unknown drugs, saying that the current
the State of health of the accused requires intensive care, which naturally
his participation in public meetings is prevented. For this reason, it was therefore
public meeting once again adjourned on day 6. February 1996, when the also-
with the participation of (in terms of the complainant's newly) appointed an advocate-was
judgment, as has previously been mentioned; the complainant selected
Defense Attorney through proper notification of the date of the meeting and over the voucher to the
the need for its participation on it again with a link to your work
the inability of the meeting.
For completeness, and to illuminate the things it should be added that the
1. the complainant with the provision of defence counsel Court of Appeal disagreed, and its
the opposition has signaled not only towards the defenders when you try to
the preparation of the defence, but also by a separate document addressed to the Court of appeal
the Court, which led to the request for an advocate appointed by the waiver
the complainants plead,
2. almost identical situation was also the defendant J. H., which, however,
public meeting on 6. February 1996 advocated two defenders (selected and
appointed by the Court of appeal),
3. requests designated advocates for a waiver of the complainant and
spoluobžalovaného j. h. continues to espouse was rejected
4. how in the course of public meetings, and in the final proposals
the provisions of the advocates appealed to an earlier opinion of the defence of
the file, in addition to the complainant, the appointed defense attorney presented that "through the
the decision of the Senate, which respects, would like to stress that the
subjectively do not feel entitled to the accused from r. represent both
for his opposition, and also for the reasons referred to in § 37 para. 2 and § 38
paragraph. 1 tr row. "; your final design therefore, restricted only by "on
a written proposal from its predecessor (i.e., originally set up by Defender), without
should deliver him. "
For vylíčeného the factual and procedural status (during the appeal proceedings)
The Constitutional Court had no choice but to conclude that the complainant's defence for
public meeting on 6. February 1996, in which, first, to
the final condemnation of the complainant (for criminal offences according to section 234 and 155
tr. Cust. "), and to the cancellation of that portion of the judgment, that
touching a criminal offence according to section 219 tr. Cust., was purely formal and
in fact, only on the physical presence of the appointed defence counsel for
public session, in which, under the present indictment was
to a final decision.
From these facts, as well as from the proceedings during the preparatory
proceedings (judgement of the Court of Cassation after a general degree) and (second) control
the Appeals Court concluded the following conclusions:
XI.
Constitutionally guaranteed the right to defence (article 37, paragraph 2, article 40, paragraph 3,
The Charter) together with the presumption of innocence (article 40, paragraph 2, of the Charter) are
the basic conditions of a fair trial (article 36, paragraph 1, of the Charter), in
where the fault of the accused (defendant) has to be identified; These constitutional
guarantees are reflected even in the procedural code, code of criminal procedure (§ 33
paragraph. 1 tr row.), which in conformity with the Constitution, is built on a completely
a clear policy priority choice of defence counsel (article 33, paragraph 1, section 37, paragraph 2, tr.
r.), that is, the accused (defendant) is entitled to apply at any
neskončeného stage of the proceedings (article 37, paragraph 2 tr round); It is therefore always things
the accused (defendant), when and who of the persons authorized to provide
legal assistance in the form of the defence in criminal proceedings (§ 37 tr row.)
the defense, if necessary. whether their right of choice at all. For
However, the choice made, the accused (defendant) himself is responsible, and
is therefore no longer a General Court to assess the "quality" of defence or
"inaction" advocate, as he (obhajovanému) cannot be denied the right to
the choice of procedural tactics, which intends to its intention in the proceedings before the Court
to enforce; the opposite would mean an obvious intervention of State power to a constitutionally
the guarantee of the basic rights of the defence and, where appropriate, whether or not a certain-
clearly undesirable, and above all-a form of constitutionally impermissible
control over its performance
Similarly referred to, even in cases when the accused (defendant) of your
the right to defence counsel does not use the option; only in the case of proceedings in which
the accused (defendant) must have a defence counsel ex lege, the General Court shall be entitled to
(obliged) when choosing a lawyer, the accused failed (the accused)
Defense Attorney to appoint (§ 38 paragraph 1 tr row.), without, however, even in such a
the case was entitled to a documented performance of the defence however preside over (§ 41
paragraph. 1, 2, 6 tr row).
From the right of free choice of defence counsel and a certain autonomy of its position in the
proceedings before the Court (in other public authorities) but at the same time, it is apparent
obhájcova the obligation to not only submit to the power of the Defence Act (§ conditions
41 tr row, section 16 of Act No. 85/1996 Coll., on the legal profession), but at the same time also
its duty of care in the provision of legal assistance to the ethical rules
of their profession; for the fulfilment of the obligations of the provisions of § 41 para. 1,
2 and 6 tr row, however, advocate corresponds to not Court (public authority),
but obhajovanému. authority to which it is subjected, able in the printer (§ 32 Act No.
85/1996 Coll.), and therefore, if he violates an advocate in the performance of the defence to him
indicative of the obligation (or provides a legal aid non lege artis, and
unless a criminal offence), cannot be remedied otherwise than by way of a remedy
The Czech Bar Association.
For this constitutionally understood the right of defence does not hold water outlets of the President
the Senate and the content is completely identical to the opinion of the Director of public prosecutions,
namely, that "the merits and legality of the chosen procedure in particular" (IE.
option under the current duration of the representation of the accused elected Attorney
next to him to appoint defence counsel applications read the provisions of § 39 para.
1 tr row.) not only is justified by the theory of the criminal proceedings, but also options
abuse of the right to choose defence counsel (lawyer, repeated its inaction
choice, etc.), which could lead to uncontrolled renewal
criminal proceedings, or to the impossibility to close them at all. "
From liability obhajovaného for (early), however, did not advocate option
the General obligation of the Court to adapt the mode of management and its
the progress of the expectations and requirements of defence counsel (the defendant), even if the defence
He took over the defense attorney in the slightest; run the time needed for the preparation of
the Defense (including the right to choose defence counsel) is the need to focus
from the Court to a lawyer and not vice versa, so it is for (professional
responsibility) Defender, will take over the representation of the "last-minute" as
with their legal and ethical obligations, settlement; the change in the person of
the chosen defence counsel is not because the General Court in the course of the proceedings in his
in no way bound by the scheme.
Indeed, earlier referred to the opinion of the Court of appeal and of the Supreme State
the representative of the completely overlook that in the present case had apparently not been met
or condition of the provision of article. 40 para. 3.1 of the Charter, since it can be
have serious and reasonable doubt about that-how the authorities responsible for
law enforcement repeatedly in the various decisions of the agree-
"challenging and difficult factual and legal", defence counsel had been appointed by 23 July.
January 1996 sufficient time for proper preparation, if the complainant had effectively
defend in public session on day 6 ordered. February 1996.
Divorced from policy then shows that in the proceedings before the
the Court (preliminary proceedings) of the chosen defence counsel advocate appointed,
eventually. next to the chosen Defender to impose upon the accused (defendant) Attorney
ex officio member, is in principle constitutionally unacceptable, even if it (e.g..
in terms of the length of pre-trial detention) are in danger of default. Is
namely, the things the State (and the judiciary itself) in order for the administration of Justice
created by such conditions, which would enable to meet the limits, that's
the law has established itself (compare the same finding in case IV. TC 55/94-No 42
in the Constitutional Court of the CZECH REPUBLIC: a collection of findings and orders. 2, c. h. Beck, Prague
1995), as well as the obligations of the institutions of the judiciary of those limits.
Under these aspects it seems therefore constitutional complaint the complainant reasonable,
and, therefore, had no choice but to comply with the, and as such her decision
clearly from the operative part of the sub. I and III jingles this finding, issued by the General
courts in proceedings affected the procedural defects, cancel (§ 82 par. 1
Act No. 182/1993 Coll.), including the decision of the General Court.
instance (judgment of 14 May 1996, SP. zn. T 42 16/95), as well
This decision has its substantive and procedural basis in decision now annulled
the General Court II. as a Court of appellate instance.
XII.
Procedural defects of the defence of the accused parties of r. were Constitutional
a court in a similar, albeit not as pronounced form, also found the parties
the defence of the defendant J. H., which in addition to the defence counsel appointed by
preliminary proceedings was his wife in appeal proceedings (depending on power of Attorney
of 22 March. January 1996) Defender (§ 37 para. 1 al 1 tr row.)
While the application previously appointed defence counsel waived the obligation to
continue to defend the Court of appeal was not upheld; as a result,
the defendant in the non-public meeting on 6. February 1996 advocated
defenders of the two.
Although the code of criminal procedure does not preclude criminal proceedings (as opposed to
civil proceedings) of one of the accused (accused), advocated the
more defense lawyers, the reasons set out earlier, the Constitutional Court
constitutionally impermissible to so forcefully by the intervention of the tragic
the General Court (or other body active in criminal proceedings), and
Therefore, in essence the omission made the choice of defence counsel. Considers, therefore,
The Constitutional Court also constitutionally unacceptable defects, as well as for the defence of the accused J.
H.; misconduct of the General Court II. the degree of constitutional court sees that
request an advocate appointed by the defendant, j. h. for waiver
It continues to advocate for an unlisted meeting raised (6 February
1996).
This misconduct clearly affecting that restrictive way to
The Constitution guaranteed the right to defence of the accused also J. H., however,
The Constitutional Court did not pay more attention, both because this defect
was not challenged [§ 34 paragraph 1, § 72 para. 1 (b)) and Act No. 182/1993
Coll.], both because it did not find (for the aforementioned reduced rate
boldness) identical with the restriction of the same misconduct of the parties rights
the complainant, and the proto-přihlédnuv to this fact-reached the constitutional
the Court concluded that it would be necessary (section 63 of Act No. 182/1993 Coll.) and party
This the accused decide within the meaning of the provisions of § 261 tr row.
(beneficium cohaesionis) and, therefore, the parties to the relevant part of the decision, it
the General Court left untouched.
The result of the award of the Constitutional Court, however, is that the General Court II. the degree of
will be forced to (article 89, paragraph 2, the Constitutional Act No. 1/1993 Coll.)-if
as for the complainant-not only decide on the merits, and according to the
process state after appeals from the judgment of the General Court
Degree of 27 June. October 1995 (i.e. According to the procedural status of the
the emergence of the identified reason of unconstitutionality), but also on the nature and
the detention of the complainant in the prison regime, which so far is located; here
but it is no longer about issues that are clearly affecting the kompetenčně
General of the judiciary (section 2, article 23, paragraph 1, tr. Cust. "), and is therefore Constitutional
the Court left aside their attention when the reasons for custody
the complainant's neposuzoval.
XIII.
Vypořádav is as follows with constitutional complaints, or objections to defects,
that although they were not accused himself in the proceedings before the general courts found
the Constitutional Court had, on the other hand, the general interest as well weigh in on a sound and
constitutionally souladném the administration of Justice, to which, as means self
you assign the right, the State itself to a fair trial,
especially when in criminal proceedings the State itself, within the limits that you set,
is interested (procedural) party. These limits entirely certainly
also the obligation of the State to justice (in a fair process)
been enforced without undue delay (article 38, paragraph 2, of the Charter) and in
a reasonable time (article 9, paragraph 3, of the International Covenant on Civil and
political rights, which is the Czech Republic within the meaning of article 3(1). 10 the constitutional
Act No. 1/1993 Coll. bound).
For the area of the criminal justice system in cases of detention is, in
the belief of the Constitutional Court, reasonable time-limit should be considered in
a maximum limit of four years (article 71, paragraph 4, tr row), in which the remand the criminal
the case must be definitively completed as such; This statutory time limit, entirely
comply with constitutional kautelami, means the Constitutional Court so that it is a
nepřekročitelný time limit pointing towards the State, which in the following specified
the time limit must be arrayed with authorities (article 40, paragraph 1, of the Charter)
ready to do justice in the binding mode or the accused
(the accused) to release from custody.
This objective period-while pointing in particular to the State as a protection
the defendant (accused)-However, it binds not only the State itself, but-
přihlížeje to its essence and meaning-it refers to their way, to the
the position of the defendant (accused) in the proceedings, in the sense that
does not cover such barriers (the circumstances), on which the State (his school authorities
in criminal proceedings) has no effect. If the synergy of the accused
(the accused) to the procedural activity cannot be State intervention in any way enforce
(§ 33 al 1 1 tr row.), even if the participation
the defendant (accused) for the taking of evidence is a vital process
condition (section 202 (3) al 1 tr row.), the Constitutional Court-from
constitutional terms-a reasonable and fair (i.e. all legal and
the constitutional conditions of the corresponding)-when the highlighted the requirement for all
authorities active in criminal proceedings-keep track of the purpose of criminal proceedings with the
exert all efforts and resources of which they are by law to
provided that the proper administration of Justice was not threatened by such
circumstances, that through it efforts and resources of State as a process
the party's influence; put in other words, if the obstacles
defending the State, despite an effort to remand the criminal thing implemented in
the prescribed time limit, the judicial end, are in extreme contradiction with the purpose of
criminal proceedings (§ 1 CL. round), its nature and the aim of breaking not only
law, but also the conditions of a fair trial (fixed
procedure), as they result from the constitutional order of the Republic (article 36, paragraph 1,
Of the Charter). This includes not only the obvious efforts (intentions) the accused
(the accused) to avoid the consequences of conduct associated with obmyslným
criminal prosecution (self, simulations or exodus resulted in the health
the State, etc.), therefore the hearing carrying distinct procedural obstruction efforts,
But even such that-although such characters lack-monitor no longer
mimoprocesní objectives; such phenomena clearly vybočujícím at the expense of the State
as a process, the parties both from the constitutionally protected procedural technique, so
even from the very framework of the legality of the State (article 1 of the constitutional law
No. 1/1993 Coll.), however, is based on the belief of the Constitutional Court shall be
face.
Based on these considerations, therefore, the Constitutional Court eventually concluded that the
the complainant spent time in custody and noted in the phonolite of this
the award, IE. the period from the date when the complainant selected a defender with
presentation of a power of Attorney has asked the appeals court to adjourn has already ordered
public meeting, January 6. February 1996, when it was without any
the synergy of the chosen defence counsel Court of Appeal handed down this finding
discontinuing the judgment, the nature of the obstacles, which, for the reasons already
divorced cannot be addressed in the period the provisions of § 71 para. 4
TR row.
This belief, bearing in mind the basic values of the State (article 1
Constitutional Act No. 1/1993 Coll.), their own obligations (article 83
Constitutional Act No. 1/1993 Coll.), as well as those stored general courts
(article 90 of the constitutional law No. 1/1993 Coll.), the Constitutional Court gave expression
the statement sub. (II) the jingles of this finding, which is the result of changes in
procedural situation (position of the State as a process), how about it already
was mentioned; previously explained why the Constitutional Court by its
the decision did not touch questions connected with the restriction of personal freedom
the complainant, as they result from the relevant decision of the general courts of
the detention (imprisonment), and why it is possible to
the subsequent decision of the general courts-completely left to their discretion.
Also for this reason should be mentioned in the present statement of affairs
understood not as a mandatory requirement, the General Court II.
degree, but only for the definition of the necessary otherwise constitutionally consistent
area, if a General Court II. degree to the new decisions on detention
the complainant shall proceed.
XIV.
If law enforcement authorities were not final and
way to be a harmonious coupling criminal case, constitutionally the complainant finally
end within the statutory four-year period, formed the Constitutional Court needed
to ask the question whether it was in the case of the complainant about the matter, indeed, so
difficult and complicated, that neither the statutory period of detention has not been
sufficient; The Constitutional Court after careful consideration of all critical
circumstances, came to the conclusion that this question cannot be given other than
a negative response; additional evidence ordered by the Court of appeal in its
the nature and intensity of důkazně and in no way difficult materie
where there is no direct and immediate evidence (in the present case the
preparations for the robbery and murder) and when can the findings of
draw from the evidence circumstantial, or from statements made by the perpetrators themselves. It seems
Therefore, that on the ascertained defects involved in especially gratuitous
the reliance of the competent authorities-in particular in the preparatory proceedings-on
the actual length of the legally permissible pre-trial detention, and that the more
and general courts, as they suggest the findings of the Constitutional Court and of other
criminal cases in which he has dealt with and also the shortcomings revealed in them
said (cf. e.g. find no 34 in the Constitutional Court of the Czech Republic:
A collection of findings and resolutions-sv. 1, c. h. Beck, Prague 1994) often suffer from
vague and frázovité proposals for the extension of the binding, and in addition, they often
the summaries of the relevant decision to the bezobsažnostem resort,
so much so that their justification are often far from the form
předtiskům [see resolution to the municipal court in Prague from 8 February 1992-sub.
(b)) and all subsequent resolutions extending the fact, including decisions
the higher courts]; in such cases, however, no amount of time limits
easily become insufficient.
Even if the Constitutional Court does not lose sight of the substantive and technical difficulties
which-especially in the early stage of the procedure-when deciding on custody, General
courts (in particular and) encounter (quality and range supplied to them
information, often time pressure, etc.), cannot be ignored, that the imposition of
the binding is always a serious encroachment on the personal freedom of the individual, and therefore
requires an extremely careful-even if the often-difficult decisions of the Court.
The nature of the decision, and in particular the consequences resulting therefrom,
Indeed, even the legislature led to the fact that its exceptionality also stressed
the repeated imposition of special obligations (§ 71 (1), 2, § 72 para.
1, 2 tr round.) all the institutions of the criminal proceedings, which at the same time recalls
not only the need for a careful and conscientious decision making, but also the need for
a State of emergency arising out of the legal restrictions on their personal freedoms during
criminal proceedings to shorten the period of time as short as possible, which, however, at the same time
also as important the requirement for reasonable speed control.
The underlying cause of misconduct under consideration not only sees in this matter
Therefore, the Constitutional Court in that the ordinary courts are imposing, and in particular in the
extending the pre-trial detention pay sufficient attention to the alleged
reasons (i.e. do not identify what really is behind the phrases used in the
the fact they're hiding), and if it ever engaged in, completely neglecting my
the obligation before your own decision to examine whether and which
evidence has already been made. which of the selected evidence made
they were not, why it happened, etc.
This obvious shallowness of binding decisions on the other side are
for all bodies active in the preparatory proceedings leads to the fact that (under the
circumstances, reasonably) rely on "automatic" desired by them
the extension of the binding, as it is sufficient that "investigations could not be in
the entire range is performed and the accused is threatened with high penalty ", etc. (see
proposal for investigators of 14 June January 1994 and other similar) or that
"it was not possible for the burden of management demands to end up even in the extended
period "(odůvodňovací sentence of the resolution of the Supreme Court dated May 25,
1994), etc.
– In the present case from the unfathomable indifference or
inertia (see "search" after a stay of a witness to.), is completely
Obviously, similarly, in the case acted and "overseeing" the State
the Prosecutor's Office, which obviously wasn't the investigators not only suffered from,
but the technique, and in itself, providing the frázovité proposals for the extension of the binding and the
In addition, delays in proceedings itself for no reason there (see e.g., late
the request of the Office of the Prosecutor for the city of London-December
1994; procrastination with the indictment until the last day of extended custody
etc.). A similar approach of the municipal public prosecutor's Office in Prague
However, he showed in other ways, as, moreover, what příkladmo already
stated, the Prosecutor's Office:
1. Although from the time of the laying of charges against the accused be (could not
not to be) obvious that at least one of the perpetrators of the deadly attack against the
two persons, and that the attack itself (due to the way it was conducted, and to
the extent of the devastation caused by the bodies of the victims) was marked by an extraordinary
brutality, qualifying moment in terms of the provisions of paragraph 2 (a).
a), b) § 219 tr. was overlooked (as the Court of first degree),
2. ignored the complaint, the Court of appeal, as regards the scope and
the expert evidence, which eventually led the Court of appeal
(the second) the cancellation of the relevant rozsudečného the operative part (party murder
by judgment of 6 December 2001. February 1996), and
3. in the appeal against the judgment of the Court of first degree of 27 June. October 1995 (after the
its announcement, 21. November 1995, probably on the last day of the statutory period
reasoned to document lodged at the Court on 27. December 1995) on the note that
the end of the statutory period of detention occurs on 7 December 8, respectively. February
1996, asked for the cancellation of the entire judgment of the Court of degree and returning
things in the management of (changed to the delivery of a Deputy Chief
Prosecutor at the public meeting on 6. February
1996), which carries the presumption of release of defendants from custody (section 71
paragraph. 4 tr row).
All of these circumstances, both in their detail, so in your
summary, led eventually to the fact that the Court of appeal, which for the substantive
the decision left available time for just a little more than one month,
for procedural complications, that he did not expect, in terms of the provisions of §
paragraph 71. 4. r. found himself in a critical situation; even if rubbed strong
suspect that in the final stage of the proceedings was made by the defendants on
ad hoc meetings (probably a demonstrative attempt suicide, sudden and
apparently an unreasonable change in persons, advocates efforts to advocate for the selected
the complainant for an extension of the appeal proceedings, etc.), whose purpose was
apparently an attempt to obtain the release of the complainant (and with it the
spoluobžalovaného j. h.) from custody, not to be overlooked that, even
such ad hoc attempts-after all, it was on the part of the accused of certain
the kind of procedural tactics, which for the current regulation of criminal procedure cannot be
-they can not prevent law enforcement authorities so completely lose of
consideration and reflection on procedural regime of the things must take them in
account, which applies in particular for preparatory proceedings and proceedings before the Court as well.
the degree to which the schedule should take into account the necessary time
for the control (if any) remedies.
Another thing, however, is whether similar tactics, eventually taking over the defence itself
at a time when obviously there is not enough time to properly prepare it, is
still compatible with ethical principles, practice.
XV.
The experience of this stuff to make decisions on custody,
completely appropriate knowledge of other constitutional complaints
concerning the links point to the inadequacy of the present legislation
the binding mode.
All the reasons as explained above, the Constitutional Court, with regard to the
deciding on custody, as well as, ex officio, derived from knowledge
discussion of other constitutional complaints concerning reasons and length
investigation ties, forcing the General conclusions of whether or not the current
legislation binding mode and to considerations de lege ferenda.
First of all, as regards the legal reasons are currently editing
constructed completely at a distance from the fact (of the crime), for which the
imposes binding (§ 67 tr row.), or for which the offender is prosecuted; It has already
in and of itself-at the current practices of law enforcement
in particular-leads to this decision, in which it is often not
far from certain elements of arbitrariness, or completely nepřezkoumatelného and
often too broad interpretation of statutory and therefore constitutional
technique. This is reflected in particular in severe offences, when all
the current statutory criteria for the imposition of binding are going more or less party and
private (and often the only) reason for this binding is just type or nature of the
being sued the offence.
As to the compulsory pre-trial detention appears to be the current legislation
as not entirely satisfactory, because only very difficult it can be to cope
especially with the procedural filibuster, or with such circumstances,
that the State itself running out on his or her right to a fair hearing, how to do it
It was pointed out, moreover, in this award.
The Chairman III. the Chamber of the Constitutional Court of the Czech Republic:
JUDr. Ševčík in r.
