426/2010 Sb.



The COMMUNICATION FROM the



The Constitutional Court



The plenary of the Constitutional Court in the composition of Stanislav Duchoň, Franz, Package

Vlasta Formankova, Turgut Güttler, Pavel Holländer, Ivana Janů, Vladimir

The Crust, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel Rychetský

(Judge-Rapporteur), Miloslav Výborný, Elisabeth Wagner and Michael

Adopted on 14 April. December 2010 on a proposal from the IV. the Senate's Constitutional

Court under section 23 of the Act No. 182/1993 Coll., on the Constitutional Court, in a case

law IV. the Chamber of the Constitutional Court for proceedings conducted under the sp.

Zn. IV. TC 2228/09, which departs from the legal opinions of the constitutional

the Court made the following findings,



This opinion:



If the constitutional complaint challenged the other space

or land, it is necessary to look at the effects of the award intertemporální sp.

Zn. PL. ÚS 3/09 (219/2010 Sb.) so that they are based on ex nunc, i.e.. only

from the date on which the award announced in the collection of laws, since this finding

specifically not designated otherwise (article 58, paragraph 1 in fine of the Act on the constitutional

of the Court). The supporting reasons for this finding can only be redeemed for futuro (in

future), not for a situation where the other space and

the land ordered (prior to publication of the award pl. ÚS 3/09 in the collection of laws) in the

accordance with the then applicable and effective wording of § 83a para. 1 of law No.

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

amended, the public prosecutor or, with the consent of the State

the representative of the police authority. Therefore, in these cases, the mere lack of

the consent of the judge with making tours of other premises and land

does not constitute a violation of the constitutional order guaranteed the fundamental rights and

freedoms.



Justification



(I).



The constitutional complaint SP. zn. IV. TC 68/09



1. On 21 February 2006. August 2009 was served with the Czech Constitutional Court

savings cooperatives, corporate ID 27444376 based Přílepská, 1692, 252 63

Solutions against the police of the Czech Republic "procedure, Service detection

corruption and financial crime, the service of criminal police and

the investigation, the Department of tax and money laundering 2. the Department ". In

constitutional complaints rail against the consequences made tours of other

premises (offices), since when it has been seized computing

technology and other things. He argues that the search warrant was not served,

as being a legal person, was not delivered to the Member of the statutory statement

body of a legal person, but only to its employees; When you perform a

the tours have been withdrawn, things without being in command is marked as

the person for whom the tour is to be made, and finally, according to the complainant, it was

the preamble to the statement inadequate. In conclusion, therefore, asked that the constitutional

the Court has forbidden the police of the Czech Republic to continue violating constitutionally

guaranteed rights and ordered her to restore the State before the violation of the rights and freedoms

i.e.. He ordered her to return the withdrawal stuff.



II.



2. Findings in the matter of a constitutional complaint the complainant, and Bytostav.

s., SP. zn. II. TC 860/10 on 2 December. September 2010 (available on the

http://nalus.usoud.cz) was in a similar case canceled the search warrant

other space on the grounds that the order was in the light of

the legal opinion expressed in case SP. zn. PL. ÚS 3/09 issued in violation of the

with the constitutional order, since the contested search warrant headquarters

issued to the complainant, the Prosecutor and not by the judge. The Constitutional Court

He stated that "this conflict ... could not be left out. Nothing to it

not changed completely the right of objection, the regional public prosecutor's Office in the

Ostrava, the tour took place on the basis of valid and effective

editing the podústavního law, which did not have an alternative. " In terms of the

reviews of retroactive effects concluded that "the right in;

If you give the unconstitutionality of the Act (which has already cancelled by the addressee

It is the public authorities) and the assessment of the previous facts constitutionally

Conformal legislation with ex tunc effects on the part of the public authorities is

permissible with regard to this, that does not constitute a violation of the principle of the protection of

citizens ' confidence in the law. intervention in legal certainty, or acquired

rights. ".



III.



Legal opinions, the party which he IV. Senate distinguished



3. the present legal opinion: after the cancellation of law § 83a in paragraph 1(b). 1

part of the first sentence and second sentence Act No. 141/1961 Coll., on criminal court proceedings

the Court (code of criminal procedure), it is necessary to constitutional complaints against a

the other premises and land (event against the intervention.

the DNA), issued under the rules in

the text of up to 8. July 2010, to accommodate already because the search warrant is

in conflict with the constitutional order as a result of its release (carried out by the

intervention) with the consent of the public prosecutor and not to the judge; It is

indecisive, that this objection the applicant in the proceedings before the Constitutional Court

uplift (find SP. zn. II. TC 860/10 on 2 December. September 2010).



4. the Opinion espoused by IV. appeal: to the intertemporální effects of finding sp.

Zn. PL. ÚS 3/09 must be regarded as that deriving ex nunc, i.e..

only from the date on which the award was announced in the statute book, and therefore

the lack of consent of the judge (if they are otherwise complied with the formal and

material conditions imposed on command by the law in force at the date on which

It was issued shall not constitute a breach of the constitutional order) guaranteed

rights and freedoms.



5. On a proposal from the Judge-Rapporteur concluded, IV. Chamber of the Constitutional Court, which

According to the work schedule is competent to decide in the matter of TechCrunch.com. IV. TC

2228/09 to the following conclusion. IV. the Senate would be in its decision

bound by the legal opinion arising from previous findings (especially sp.

Zn. II. TC 860/10 on 2 December. September 2010) and would require a constitutional complaint sp.

Zn. IV. TC 2228/09 be recognised as eligible on merits discussion. Already

only on the basis of a search warrant at a glance would have had to

without further comply with the reasons on which it rests find SP. zn. II. THE TC

860/10 on 2 December. September, 2010, for a tour of the other space was

ordered by the public prosecutor and not by the judge (even at that time this

How to match a valid and effective criminal procedure), and even though

that the complainant itself, this claim violation of their constitutionally guaranteed rights

not floating and violation of its constitutionally guaranteed rights sees in

the facts quite different.



IV.



The existing access to the Constitutional Court and the General starting points



6. In view of the finding of SP. zn. PL. ÚS 3/09 of 8 May. June 2010, you can

the conclusions expressed in cases relating exclusively to home visits

applied to other premises and land tours. The term "inspection"

If it is not specified in the following text, therefore, it is used by the promiscue to

for "House Tour", and for "a tour of the other premises and land".



7. There is a need to emphasize that the complainant, in which tour

performed, not by the person who would then have been accused or charged with a

in subsequent criminal proceedings to defend their rights, including the

the application of the objection to the illegally made and evidence on the

the basis of the obtained. If the tour has the character of a one-time intervention in

the constitutional order of the guaranteed rights and freedoms, then against him

the complainant only means of legal protection, which is the constitutional complaint.



8. On the contrary, the person, the party which will identify and provide evidence regarding the

suspected of having committed a criminal offence, it may in other phases of the criminal

proceedings against made the tour brojit for example. application of the request for

removal of defects in the procedure of the police authority or the Prosecutor

(see section 157a tr row.), as well as the expectation that you will enjoy the rights

of the code of criminal procedure as a person her accused or defendants.



9. at the beginning of the development of judikatorního was the Constitutional Court tour

evaluated as a one-time intervention that already at the time of the initiation of

a constitutional complaint had ended and whose consequences persist only in

process area of the subsequent control, management, and forming part of

However, restoring the status quo ante, as well as a ban on the continuation in the

violations of rights (freedom) addressed to any public authority,

they were conceptually excluded, and therefore it was decided to cancel the command to

House search (find in case SP. zn. III. TC 287/96 of 22 December 1995 on

May 1997, N 62/8 SbNU 119 ^ *).



10. in other decisions, the Constitutional Court favored before the

a search warrant the finding that there has been a breach of the constitutional order

guaranteed fundamental rights and freedoms, he ordered the police of the Czech Republic

restore the State before the violation of the rights and freedoms of the complainant, that is. return

the complainant materials when inspected withdrawn [find SP. zn. I. TC 201/01

of 10 June 1999. October 2001 (N 144/24 SbNU 59), finding in the matter of SP. zn. I. ÚS

424/2000 of 13 October. March 2002 (N 29/25 SbNU 227), finding in the matter of the sp.

Zn. II. TC 298/05 of 6 December 2005 October 2005 (N 196/39 SbNU 91)].



11. the next step in the case-law meant finding in the matter of TechCrunch.com. II. THE TC

362/06 from day 1. November 2006 (N 200/43 SbNU 239), when it was cancelled

command search warrant because it was issued without proper justification and

in relation to the complainant was (this command) violated article. 12 paragraph 1. 1 and

2 of the Charter of liberties; at the same time, however, the Constitutional Court


(inconsistently) noted that "by executing searches

avoid interference with constitutionally protected rights of the complainant, involved in

a constitutional complaint alleges as ... was carried out in accordance with

use the search warrant ... and with the relevant provisions of the

the criminal procedure code. ". In another finding in the matter of SP. zn. II. CS 474/07 dated

September 27, 2007 (N 151/46 SbNU 505), the Constitutional Court has ceased to find SP. zn.

II. CS 362/06 and subject to previous case-law, the Court found violations of the

the complainant's fundamental rights and freedoms by the police of the Czech Republic, to order the

her difficulty in that violations of fundamental rights and freedoms

the complainant and the State as a violation of. To cancel a command to

the tour did not occur. Findings in the matter of SP. zn. IV. TC 1780/07 of 25 October.

August 2008 (N 147/50 SbNU 297) set aside the Constitutional Court House

the search warrant. At the end of the preamble to the Constitutional Court, said: "it is quite evident,

the cancellation of the impugned search warrant statement acts on it

follow-up to invalidate their legal basis. Hence authorities

law enforcement to this defect after the appeal ruling

the Court duly take account of its implications and then in private practice and

Consequently, the decisions were based on ".



12. In the matter of SP. zn. II. TC 1414/06 decided by the Constitutional Court on 15 December.

July, 2010 finding a way that noted violations of the fundamental rights of the

the complainant, and the decision of the general courts set aside. From the management of this

the constitutional complaint had II. the Senate, which has the full

The decision of the Constitutional Court SP. zn. PL. ÚS 3/09. The Constitutional Court in the

justification a decision on a constitutional complaint noted that "evidence

obtained in a manner that he lost as a result of derogations the relevant legal

editing the code of criminal procedure a legal foothold, is proof of an absolutely ineffective and

in criminal proceedings unusable. ".



13. In the matter of SP. zn. PL. ÚS 3/09 the Constitutional Court of 8 April 2003. June 22, 2010

(219/2010 Sb.) your find motivated, inter alia, that the previous

to enable the Court to explore is all the more pressing when the criminal

the order does not allow nor the subsequent judicial review of the regulation of other tours

the premises and land by the Court. So, these actions represent a blatant

interference with the fundamental rights to private life, find themselves beyond any

immediate judicial review. In theory, although it was possible to consider

zstavní a complaint directly against a regulation space, but other tours

and the case-law of the Czech Constitutional Court partly shares the doctrine of "continuous

"that is the discretion of the an obstacle. In addition, the Constitutional Court has continued to

judikuje, that in the case of the intervention of the public authorities, which does not constitute

nereparovatelné violation of fundamental rights, it is necessary to give priority to

the application of the subsidiarity principle. This means that the reviewable in proceedings

on the constitutional complaint may be up to a final judgment in the matter, which should

should deal with the objection to interference with the right to private life in the form of

House searches. In terms of the constitutional complaint (against

command to perform inspections of other space) appears also as a

inefficient resource. Certainly it is not desirable that the Constitutional Court in the

similar cases judged by the adequacy of regulation and enforcement inspections

all the space first. He could be so excessively and prematurely

interfere with the competence of general courts to gather and evaluate evidence and

as a result, so without the result of criminal proceedings.



14. the final merits decision is a finding in the matter of SP. zn. II. THE TC

860/10 on 2 December. September 2010, which the search warrant was canceled other

space on the grounds that the order was in the light of the legal

the opinion expressed in the matter of SP. zn. PL. ÚS 3/09 issued contrary to the

the constitutional order, because the search warrant challenged headquarters

the complainant was issued by the Prosecutor and not by the judge. The constitutional

the Court stated that "this conflict while the Constitutional Court ... could not

to be left out. It changed completely the right of objection, the regional

the Prosecutor's Office in Ostrava, the tour took place on

the basis of the valid and effective adjustments to podústavního rights that did not

alternative. ". In terms of reviews of retroactive effects concluded that

"right; if you give the unconstitutionality of former

of the Act (which is the addressee of public power) and an assessment of the previous

facts of constitutional law with effects of Conformal ex tunc on the

the side of the public authority is admissible in the light of that, does not constitute a violation of

the principle of the protection of the citizens ' confidence in the law. intervention in legal certainty,

or acquired rights. ".



15. The Constitutional Court at the beginning of the review of the intervention of the public authorities to

fundamental rights and freedoms, consisting in the execution of the (House)

tours, he came to the conclusion that this intervention is justified (permitted in the

meaning of article 87(1). 12 paragraph 1. 1 of the Charter), is a judge on the

formal and material which meets the conditions laid down in the law and in the

the welter of divorcees by case law. He explained that to the intervention in

inviolability of the dwelling may occur up to a de facto performing tours,

rather than simply drawing up relevant search warrant; the fair

protection against this compels (a priori, i.e. neposkytnutelná in the time between

issuing a command, and follow tours) was to determine whether the

It was the intervention of the allowable or not, which could not be determine differently than

a review of the appropriate command. If the detected defects

(no constitutional relevance), in proceedings before the Constitutional Court of the

in terms of the procedural first accessed to the abolition of the order for

the tour, then only considered violations of the fundamental rights and freedoms and

imposed, the competent public authority, in order to restore the State before the

intervention, if necessary. prohibited to intervention continued; gradually Zstavní

the Court once again tenduje to direct the abolition of a search warrant.



16. In summary, it is the last development practice at judikatorní

the opinion that the complaint of a person which has been carried out without the tour

the person itself was later accused, or charged with, keeps track of your proposal

Another intention and objective than the person against whom it is on the basis of

the evidence, criminal proceedings; reviews dovolenosti however, the intervention

based on one and the same legal basis-search warrant. However, therefore,

the general rule is that no one can achieve protection for constitutional complaints

another (prohibition of actio popularis), in this particular case, the

the exception, according to which, the implications of the review of a search warrant when estimating and

in criminal proceedings, in which, as a participant in a criminal law relationship

acts by a person other than the person against the tour filed a constitutional

the complaint. The Constitutional Court of the defect made tours, in

the ultimate case of its absolute ineffectiveness or unusable as follows

evidence against the accused persons will always be assessed in the framework of the

the decision in the criminal proceedings on the merits (the findings of the Constitutional Court shall

so automatically translates into the legal conditions the person against whom it was

criminal proceedings are conducted).



17. Although the facts here rekapitulovaných cases

multiple interpretations, to protect the legal certainty of the parties concerned

joined by the plenary of the Constitutional Court for the adoption of this opinion.



In the.



Consequences of the cancellation of part of the provisions of the criminal procedure code, according to the finding of TechCrunch.com. PL.

TC 3/09



18. From article. 89 para. 1 of the Constitution ("the decision of the Constitutional Court is

enforceable as soon as it was published in the manner laid down by law, if

The Constitutional Court of enforceability has not decided otherwise "), and the Edit context

the law on the Constitutional Court [provisions of section 57 (1) (a)) and § 70 para.

1] cannot conclude anything other than that the law interferes not from

the beginning (ex tunc), but always up to date, that the Constitutional Court in the award

and if it fails, then the date on which it is published in the journal of laws

(hence the ex nunc). In the findings, SP. zn. PL. ÚS 13/05 of 22 December 2004. 6.2005 (N

127/37 SbNU 593; 283/2005 Coll.) and SP. zn. PL. ÚS 6/05 of 13 April. 12.

2005 (N 226/39 SbNU 389; 531/2005 Coll.) The Constitutional Court concluded that the

derogatory find, if there is an increased interest in the protection

constitutionality, may be enforceable before the date of its publication in the collection

laws; This will, however, need to be-not only for reasons of the requirements of the law,

but because of legal certainty-explicitly demonstrated. The effect of this

the concept is detailed legislation in relation to individual legal

acts which, on the basis of the annulled law have been issued, respectively.

in relation to legal relationships which arose and on its basis. have been

I consumed. The cancellation of the law as the principle for the futuro

is also reflected in the fact that when you use the options move the moment

enforceability of the award in the future (e.g., in order to have

the legislature sufficient time to replace editing the unconstitutional

standard compliant) is constitutionally after a grace period of enforceability of the

the contested legislation as constitutionally compatible and in this respect are

public authorities are obliged to apply such an adjustment, in other words

"nothing justifies the State authorities to ensure that in its decision making


apply the legal consequences of the cancellation of the findings of the Constitutional Court still

before these findings have become enforceable "(Vojtěch Prince,

The constitutional complaint-3., updated edition, Linde, Prague

2005). The purpose of this legislation is to highlight the fact that the cancellation

unconstitutional law in itself does not mean the revision of individual

legal acts, based on the application of neústavního regulation. Option, and

the intensity of the correction of the effects of the application of the standard is unconstitutional "graded

Depending on how significant intervention in the legal sphere of the individual law

raised "(Wagner, Dostál, Langášek, Pacheco: the law on the Constitutional Court

with the comment Prague, ASPI 2007, p. 291).



19. for the criminal law area, where a tour of another space or

plot of land in souzeném case, it falls, is listed (relationship to adjustment

individual legal acts which, on the basis of the cancelled rule

Regulation have been issued) enshrined in the provisions of § 71 para. 1, 2 (and

where applicable) 4 of the law on the Constitutional Court to the extent that "if it was on the basis of

the legislation, which was canceled, issued by a court in criminal proceedings

the judgment, which took legal force, but has not yet been executed, the abolition of

such legislation the reason for retrial under the provisions of

the law on criminal procedure ". If this situation does not occur, then the

"the other final decisions issued on the basis of the legal act, and

that has been cancelled shall remain unaffected; rights and obligations under

However, you cannot carry out such decisions "and" the rights and obligations of the

the legal relationships arising from the abolition of the law remain

unaffected ". It follows that if a search warrant is issued and

Subsequently the tour itself today at 8. July 2010, then

the existence of the finding SP. zn. PL. ÚS 3/09 on the quality of the command does not change anything.

If, on the date of cancellation law search warrant even

"not executed", is a derogatory find the reason that inspections

prevent with all the consequences that this entails; the provisions of paragraph 1, the

the present case does not apply, since this provision primarily heading to ratios

substantive, rather than on situations where prospectively repealed or

the unconstitutional declared procedural provisions governing partial

procedural acts in criminal proceedings, especially if the Constitutional Court did not adjudicate on the

the time of the enforcement aspects of their derogačního intervention otherwise (section 58

paragraph. 1 of the law on the Constitutional Court).



20. An exception to the right of that represents the control in a particular control

standards to the close links the proceedings in which the review of the constitutionality of

laws or other legislation, proceedings on constitutional complaints, from

which proceedings for review of standards emerged (the provision of section 78 of the Act on the constitutional

of the Court). If the standard due to its unconstitutionality cancelled and apply to

support the reasons for such a decision (the revoking of the award) in proportions and in the

an assessment of the constitutional complaint, of which the proceedings for review of the standards, then

is the Constitutional Court when deciding on constitutional complaints must to taken

derogačnímu award to take into account; otherwise they would be applied by the constitutional complaint

could not fulfil its function and to allow the complainant to protect its constitutional

policy of guaranteed fundamental rights and freedoms. From this, and only from this

the reason was because logically rejected the constitutional complaint SP. zn. II. THE TC

1414/07 (find, dated July 15, 2010), as from the proceedings of the

a constitutional complaint had II. Senate to repeal section § 83a para.

1 code of criminal procedure, which was later upheld by the full Constitutional findings

Court pl. ÚS 3/09.



21. For the reasons given above, the Constitutional Court upheld the plenary proposal IV.

the Senate, replied his derogatory opinion and in accordance with the provisions of § 23

the law on the Constitutional Court struck this opinion.



the President of the Constitutional Court



Pavel Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the opinion of the full Court's judges set aside

Stanislav Balík, Jiří Nykodým and Elisabeth Wagner.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 8, find

# 62, p. 119