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