In The Matter Of The Application For Revocation Of The Provisions Of Section 212 Of The Act No. 141/1961 Coll.

Original Language Title: ve věci návrhu na zrušení ustanovení § 212 zákona č. 141/1961 Sb.

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249/2005 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court decided on 5 July 2004. April 2005 in plenary in the composition of JUDr.

Stanislav Balík, JUDr. Francis Skinner, JUDr. Turgut Güttler, JUDr.

Pavel Holländer, JUDr. Ivana Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří

Mucha, JUDr. Jiří Nykodým, JUDr. Miloslav Výborný, JUDr. Eliška

Wagner and JUDr. Michael April decided to design the District Court

Plzeň-city on the repeal of the provisions. section 212 of the Act No. 141/1961 Coll. on criminal

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



as follows:



The proposal is rejected.



Justification



(I).



The appellant claims that the Constitutional Court has issued a finding, which cancels the ust.

section 212 of the Act No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure),

in the wording of later regulations. He stated that before the District Court

Plzeň-city under SP. zn. 8 T 148/2001 criminal prosecution

the defendant R. # for the works, which should commit offences

violence against a group of inhabitants and against individuals under section 196 paragraph. 2

the criminal code and the criminal code, under section 197a, bodily injury

pursuant to § 221 para. 1 of the criminal code and, pursuant to § 221 para. 1, para. 2

(a). and the Penal Code, violations of) House of freedom under section 238,

paragraph. 1, para. 2 of the criminal code and blackmail under section 235 paragraph. 1

of the criminal code. At issue was the District Court Plzeň-city declared the day

26.4.2002 judgment, which was the defendant acquitted of all indictments

The district Plzeň-city attorney, for which it is guided by this

control. The judgment of the District Court of Plzeň-city was in its entirety

by resolution of the regional court in Pilsen of 21.8.2002, SP. zn. 8 it

374/2002, cancelled. In the framework of this decision was to the District Court

Plzeň-city saved to damaged D. K. "předestíral" according to §

212 code of criminal procedure, which has made her testimony in preliminary proceedings and

that are not based on the wording of the criminal procedure code, effective from 1.1.2002, in the proceedings

usable in court.



By order of the District Court of Pilsen-town of 15.11.2002 was pursuant to section

paragraph 224. 5 criminal code, prosecution of the defendant R. No procedure

pursuant to § 224 of paragraph 1. 5 of the code of criminal procedure is interrupted and the matter was submitted to the

The Constitutional Court of the Czech Republic on the grounds that the provisions of § 212

Code of criminal procedure is contrary to article 6 of the Convention for the protection of human rights and

fundamental freedoms ("the Convention"). In a criminal case is said to be because

for the consideration of the question of the guilt of the accused is essential, as it will be evaluated by the

the credibility of the damaged D. K. This assessment is to help just called.

předestření the process-otherwise unusable testimony damaged by

the provisions of § 212 code of criminal procedure. Furthermore, the applicant stated that "a brief

the preamble to the single judge of the District Court opinion, Plzeň-city is

contained in the resolution of the District Court of Pilsen-town of 15.11.2002, sp.

Zn. 8 T 148/2001 ".



The Constitutional Court of the petitioner pointed out that a mere general reference to brief

the preamble to the single judge of the District Court opinion, Plzeň-City (supposedly

contained in the resolution of the District Court of Pilsen-town of 15.11.2002, sp.

Zn. 8 T 148/2001) for the purposes of proceedings before the Constitutional Court the lack

and called for him to complement the proposal to begin the procedure for proper

no constitutional argument, so that it was quite obvious what exactly

non-compliance of the contested provisions sees the code of criminal procedure with the constitutional

policy in the United States.



In its motion tween (reacting to the challenge of the Constitutional Court)

the appellant stated that the contested provisions of § 212 of criminal procedure is contrary to

article. 37 para. 3 of the Charter of fundamental rights and freedoms, article. 10 and article. paragraph 96.

1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), as well as the article. 6 (1). 1

Convention for the protection of human rights and fundamental freedoms (Note: for

completeness, it should be added that the applicant cites article. 10 of the Constitution, as amended,

a valid and effective before 1.6.2002, i.e. before the amendment, made by the constitutional

Act No. 395/2001 Coll. amending the Constitutional Act of the Czech national

Council No. 1/1993 Coll., Constitution of the Czech Republic, as amended

regulations). The appellant stated that the amendment of the code of Criminal Procedure effective from

1.1.2002 is undoubtedly in the provisions governing the implementation of witness

testimony in the proceedings before the Court (and not at all on the issue of the applicability of

individual testimonies or explanations written witness

in preliminary proceedings) came out of the article. 6 Convention for the protection of human rights and

fundamental freedoms, which is one of the minimum rights of the accused

the right to examine or have examined witnesses against him. In principle, is said to be

According to new legislation-that is, proper notification after 1.1.2002-

the accused or his defence counsel on the hearing of a witness a precondition for

Protocol on the testimony of such witness in proceedings before the Court

used. According to the text of the code of criminal procedure "effective before 1.1.2002 '

such a process approach has not requested, and, where the accused did not have a lawyer,

or his lawyer did not ask for it to be about the witnesses, vyrozumíván

could the Court Protocol on the testimony of a witness in the trial to read by

the former section 211 para. 2 (a). (b)) code of criminal procedure even without meeting the just

the conditions described. The accused, however, is not under the current code of criminal procedure

poučován about that fact, stating in the course of his testimony, but

also in the context of their observations to each made the evidence may

be law enforcement authorities used as evidence against him. In

this connection is necessary in the opinion of the applicant pointed out that the

evaluation of the credibility of the accused is the standard means of serving

authorities active in criminal proceedings to resolve questions of guilt. Often-and

Typically, cases analogous to the subject, in which case against each other

is the testimony of the accused and the injured party-is for the decision of the Court of

guilt or innocence of the accused absolutely crucial issue reviews credibility

the injured party. The provisions of § 212 has just to assess the credibility of

to serve. Therefore, it has to serve through the so-called. "předestření"

the testimony of such a procedural step, which is otherwise in the proceedings before the Court

unusable, because if that is the case, it would be possible to an earlier

the witness's statement read by one of the procedures referred to in paragraph

211 code of criminal procedure.



According to the amendment to the criminal procedure code, effective as of 1.1.2002-puts forth

the claimant-count with the fact that, in the preliminary proceedings, collected

the testimony of witnesses in cases in which it is in the first instance to discuss and

the decision of the competent District Court, and that, in principle, in the form

in the proceedings before the Court is useless. It's about the so-called. the protocols on the administration of

explanation pursuant to the provisions of section 158 code of criminal procedure. Use these records

can be used only when the trial under the simplified procedure,

the consent of the accused and the Prosecutor to read. In the context of

with the article. 37 para. 3 of the Charter and article. paragraph 96. the Constitution is not, in the opinion

the appellant was conceivable that in the proceedings before the Court is accorded a dual

"legal power" evidence resources that are useless, especially for

conflict with the article. 6 to the Convention for the protection of human rights and fundamental freedoms.

In this context, the appellant put his "rhetorical" question whether it would be

given equality of defendants, if in relation to any one of them can be

to assess the credibility of witnesses, that is, to solve one of the very important

questions of criminal proceedings, "use of unserviceable evidence", while in the

relation to other defendants would be such a procedure was not possible. According to his

opinion, is inconsistent with the constitutional principle of equality, so that one process

unusable evidence could be a means to evaluate the evidence,

so far, what else, only thanks to the fact that it is formally marked, and not otherwise.

Process unusable proof should remain procedurally blowout

proof without exception. The provisions of § 212 criminal procedure code Moreover

the fact that předestření earlier testimony that is unusable by

the applicant can be and frequently are also said to be in a number of cases, the equal

"a guiding question par excellence", the Court may, but need not. This

the legal diction could mean not only a presumption, in compliance with which

the Court always proceeding to předestření testimony, but also a situation that

the procedure depends on the reasoning of the Court. The latter concept is then said to be completely

certainly corresponds to the wording of the law, because "if he did not follow the

the concept of this, but that the criminal procedure code would be used in diction

governing the procedural steps referred to the same formulation as in the provisions of

section 211 para. 2, paragraph 1. 3 of the code of criminal procedure, in which the dismantling

prescribes reading earlier termination of the applicable procedural

co-defendants or witnesses ". It then once again-in the opinion of the applicant-

contrary to the provisions of the Charter and the top cited the Constitution, which provide

equal rights of participants in court proceedings.



II.



The constitutional court proceedings in accordance with the provisions of section

69 of Act No. 182/1993 Coll., on the Constitutional Court, as amended

regulations, the parties-the Chamber of Deputies and the Senate

The United States and also the opinion of the Ministry of Justice


United States (article 49, paragraph 1, of the Act).



In the Chamber of deputies of the Parliament of the Czech Republic is an introduction

quoted part of the explanatory memorandum, relating to the subject matter of the provisions

the criminal procedure code. In the explanatory memorandum to § 212 is justified as follows:

"In cases where the lawyer was not given the opportunity to participate in

hearing of a witness in the pre-trial process and either the Court or the parties consider

necessary to repeat such a hearing in proceedings before the Court, it may cause

incompatibility between the repeated statements of a witness. For this reason, it is necessary to

to address the issue of the importance of the Protocol on the questioning of a witness, taken in

preliminary proceedings and its application in the proceedings before the Court (even with

taking into account the principle of oral deposition, immediacy, and the rights of the accused

be at least one present implementation of evidence and to ask persons examined

Questions). Does not anticipate that the Protocol on the questioning of a witness from the preparatory

the proceedings would be in this situation, as is the case with the procedure

pursuant to section 211, the entire log is read, which as a whole may

serve as the equivalent of proof compared to the testimony of a witness in the trial,

but it will be only the so-called. předestřen, in order to differentiate the different implementation

from reading the evidence. Předestření will consist in the reproduction of the concerned

parts of the previous Protocol was acquired in preliminary proceedings without

the presence of a defense lawyer is asking for an explanation of the discrepancies with the new in the main

version composed by notice and by itself will serve only to

the witness explained the contradictions between his testimony in preliminary proceedings and in

proceedings before the Court and to the Court on the basis that he could make a conclusion on the

the credibility of the testimony of such witness, consisting in the main version. On

the difference from the readings of the Protocol on the testimony of a witness who is

a full proof, from which the Court can base the conclusion of guilt

the defendant, only that we gladly accept the Protocol on a witness cannot

serve by itself or in conjunction with other evidence in the case made

support of conviction of the defendant, as it was done without

the presence of the defence counsel, in consequence of which the defence had the opportunity to ask

such a witness questions and float against the course of the questioning, protokolaci

and, finally, the testimony of a witness. From this principle will need to be in

extent necessary to admit exceptions (e.g. If the emergency or

enjoy the action, carried out prior to indictment, when accuracy and

the legality of the warrants the presence of the judge, the questioning of minors

witnesses, or of cases where the witness testified under duress, or was

bribed, or if the content of the testimony, apparently influenced by progress

testimony in the trial). "



In the opinion of the Chamber of Deputies (contained in its observations) the purpose of the

předestření Protocol on an earlier termination pursuant to section 212 is to follow

whether and how a witness or spoluobviněný explained the contradiction in

his allegations, the Court could in the context of free evaluation of evidence (§ 2 para.

6 of the code of criminal procedure) to assess the credibility and the veracity of his testimony

made in the trial. This is expressed as well as the nature of the procedure under section

212, which does not allow nor the Court nor the parties do from předestřeného

the Protocol on the earlier testimony of direct conclusions on the facts of

(article 212, paragraph 2, second sentence); předestření earlier statements and responses

the witness or spoluobviněného on the existing contradictions are fundamentally effect

just in the process of free assessment of evidence by the Court as one of the factors

According to which the Court considered whether the testimony of a witness or spoluobviněného

statements made at the trial is credible and true or not, respectively.

What are the guidelines regarding which of the facts and to what extent this

is dependent on the publication (Samal et al., the criminal procedure code, comment, 4.

Edition, Prague, c. h. Beck, 2002, p. 1381) the Chamber of Deputies on

stresses, with regard to the principle of equality of the parties-that

to present the earlier testimony the witness or spoluobviněnému may not only

President of the Chamber, but also the procedural side, which have the same

opportunities, and therefore, you cannot talk about the disadvantage of the accused.



To the appellant's contention that it is not conceivable that, in proceedings before the

the Court granted double the "legal force" evidentiary resources

not applicable (divergent legislation within the simplified procedure),

The House of Commons States that the differentiation of the proceedings before the Court in

following up on the differentiation of the preparatory proceedings is based on the intention to

criminal proceedings in the legislature at least serious matters the most

to simplify and speed up. Simplified proceedings before a court, following the

abbreviated preparatory proceedings, is conceived as a maximum of non-formal and

simple, without, however, the person against whom the proceedings has been truncated

on their rights guaranteed by the Constitution, the Charter of fundamental rights and

freedoms, international treaties and the code of criminal procedure.



As regards the alleged inconsistency of the claimant on the gift card provisions of § 212

the criminal procedure code with the article. 6 of the Convention for the protection of human rights and fundamental

freedoms, it is in the comments mentioned that the Chamber of Deputies when the

consideration of the amendment to the criminal procedure code no. 265/2001 Coll., judge

individual provisions in relation to the requirements as expressed in the article. 6

cited Convention. The approved text is said to be with the article. 6 of the Convention. What is

as regards the navrhovatelova claim that the provisions of section 212 of criminal procedure is in

contrary to the article. 10 of the Constitution, under which ratified and announced by the

the international treaty on human rights and freedoms, which the Czech

Republic immediately binding and take precedence over the law,

Chamber of deputies-in view of the above, the claim that the provisions of-

§ 212 of criminal procedure is in accordance with art. 10 of the Constitution, both in the text of the

effective up to 1. June 2002, which provides the applicant, as well as in the text of the

effective from 1 January 2005. June 2002.



Representation of the Chamber of Deputies is closed the opinion that the legislative

the Corps acted in the belief that the law is adopted in accordance with the Constitution,

the constitutional order and laws of the United States and is left

The Constitutional Court, in the context of the examination of the proposal to assess the constitutionality of

This law and issued the appropriate decision.



Senate of the Parliament of the Czech Republic in its statement said it decided on the

approval of the draft amendment to the criminal procedure code, within the limits of the Constitution

The United States provided for competencies and constitutionally prescribed manner in

a majority belief that the law is adopted in accordance with the constitutional

the laws of the United States and with the international obligations of the State. The Senate apparently

generally accepted the Government's presentation of the draft amendment to the Act, as

which is monitored by a change too complex and cumbersome procedure in

a more effective tool of suppression of crime while preserving the (strengthening)

democratic rules of a fair trial. The offender is to be in this

the meaning of not only involved, but the State as soon as possible after having committed

of the offence. In that context, the Senate also identified with a particular

the Government's justification of the new code of criminal procedure § 212 (Note: see above

cited the explanatory memorandum to the proposal of the amendment), and its approach in no way

questioned the Government's justification, filed to the subject of the provisions of

the criminal procedure code; generally said to be clearly supported the direction of changes

criminal legislation to a higher level of enforcement.



In the Senate, says that the applicant shall consult on the

explaining the discrepancies in the testimony of předestřením as a means of proof,

or evidence that is not in the main version (for the decision on the guilt)

admissible, because the kontradiktorně did not arise. The legislature, however, directly in the

the provisions of § 212 provides that an explanation of the discrepancies "předestřením" is only

supporting the assessment of the credibility of the testimony method in the main version and

In addition, expressly forbids the use předestíraný Protocol as a basis of the operative part

on the guilt. The legislature also in the provision of section 211 para. 3 clear

in response to substantially the same testimony of a witness is to depart in the main

version may be a testament to the ranking equally against testimony before the

the Court only read of such a Protocol on the earlier testimony of a witness who

When the hearing was held with the possibility of the presence of an attorney. According to the

the provisions of section 212 of the witness can be confronted only with his own

the earlier manifestation of, and only, if his statements to

a profound turnaround. Substantial discrepancies in the testimonies to their cause, whatever the

already banal (forgetting, confusion), or severe (pressure at the time of

investigations, etc.). Its recognition can only enhance the quality of

free evaluation of the evidence by the Court. An explanation of the causes of conflict may

the credibility of the testimony of the disabled, or vice versa. However, this procedure

does not compete with the evidence adduced by the Court. In the case of předestření said it's not about

the similarity of the testimony of the absent witness reading, on the contrary, a witness before

the Court fully. The defense is developed in full

the strength of the. The credibility of the testimony of a witness before a court may, by the same method

pursuant to section 212 on an equal basis to examine both sides of the process. Předestření

earlier testimony is based on observations of the Chamber method, in which you can


submit a witness some kind of test, which has the result signal

assurance. "Confrontation" with the earlier statements made by the witness may result in

some cases to his upamatování, so the "returns" to its

notice of preliminary proceedings, this time in full the procedural relevance.

Therefore, I can well believe that the that we gladly accept the Protocol on the

the dismissal does not apply the rule of evidence outside the trial,

laying down, for example. in the words of the CZECH Constitutional Court SP. zn. III. THE TC

376/2001 [collection of findings and resolutions of the Constitutional Court (hereinafter referred to as "collection

the decision "), volume 24, finding no 174, p. 291)], that" such implementation

evidence must guarantee the right of defence and the principle of audi alteram partem

proceedings to the extent comparable with the terms of the taking of evidence in the main

version ".



As regards the plaintiff alleged defects in the editing control,-according to the

opinion of the Senate – potential non-compliance cases to be distinguished with the Act

The Constitution of the United States of unfairly held only process cases

in a particular case. An express statutory prohibition on the use of the log as předestřeného

the substrate is conviction in his violation of reason applying the correction

resources. To the provisions of § 212 namítanému violation of the code of criminal procedure with the

the constitutional principle of the equality of participants in the Senate noted that equality

participants is obviously understood the procedural equality of the parties,

that means that in a legal proceeding does not have one of the parties a

the procedural position than the other party. In the trial of criminal

procedural equality between the accused and the Prosecutor. According to the policy

have for all participants of the proceedings before the Court to pay

the same rules of procedure. It is not therefore about equality, for example. all

the defendants, as indicated by the applicant. The edge can be according to the

The Senate added that the provisions of section 212 may at some point of view

seem redundant. The assessment of the credibility of the testimonies of belongs to

evaluation of the evidence, which is achievable in the established procedural

terms, without the need for special adjustments.



The Senate closes so that it is for the Constitutional Court to examine the constitutionality of the

the contested provisions of the Act and in the matter of decision.



The Ministry of Justice in its opinion on the draft stated that

procedural equality, according to which all parties to the proceedings of the

proceedings before the Court of equal status, is a procedural principle, which can be

applied only in the proceedings by the adversarial, when against

the participants of the process, i.e., as the respondent in criminal proceedings the Court

the accused and the Prosecutor. In the application initiating proceedings is, however, this

policy is interpreted so that one side of the process, in this case

the accused must have in each type of proceedings before the Court the same rights,

as regards the value of the evidence. So in simplified proceedings pursuant to

the provision of section 314b et seq.. Code of criminal procedure a judge may, pursuant to § 314d

paragraph. 2 with the consent of the Prosecutor and the accused make a proof

reading the official explanation of the records of persons and to perform additional actions from

preliminary proceedings taken by the procedure under section 158 paragraph 2. 3 and 5

the criminal procedure code. By contrast, the provisions of § 212 paragraph. 1 code of criminal procedure

Adjusts the předestření some of the protocols on the hearing of a witness or

spoluobviněného of the preparatory proceedings, which has only limited evidence

meaning, because it addresses only the contradictions in the testimonies of a witness or

spoluobviněného examined in the trial, the Court could in the context of the

free evaluation of evidence to assess the credibility and the veracity of the testimony,

made at the trial. In the opinion of the Ministry of Justice as

two different institutes; reading the official record in the simplified

the management of the single judge conducts proof předestření Protocol on the questioning of

preliminary proceedings (§ 212 (1) of the criminal procedure code) is used only a single judge

to assess the credibility and truthfulness of the witness or spoluobviněného and

You cannot rely on them the blame because under the terms of the

the provisions of § 212 paragraph. 1 code of criminal procedure would not have complied with the requirement to

a fair trial within the meaning of article 6 (1). 3 (b). (d)) of the Convention on the protection of

human rights and freedoms.



The appellant said to also mistakenly interprets article 212 paragraph. 1

the criminal procedure code, the word "may", which is pulling out of the context and the

comes to the wrong conclusion, that this is an optional ability to court

to present the testimony from the preliminary proceedings and documents the more unequal

the position of the parties in relation to the provision of section 211 of the criminal

the order, according to which, under the conditions laid down therein, the court testimony of an obligate

reads. The word "may" in the opinion of the Ministry of Justice attaches to

the words "předestřeny only" and aims to emphasize that unlike

the previous provisions of section 211 code of criminal procedure, according to which the notice of termination

You can read, under the conditions referred to in article 212 paragraph. 1 of the criminal

the order of the protocols on interrogation of the preparatory proceedings only to present. It's not

However, about the ability of the Court to present protocols, but about his responsibility in the

case of discrepancies in the testimonies. Also commenting on the criminal procedure code, 4.

the release of the authors of the Samal, King, Baxa, Púry (p. 1380) stated that the procedure

According to § 212 of criminal procedure is compulsory and that the Court must, in the main

version spoluobviněnému to present the witness or the Protocol of an earlier

notice of preliminary proceedings, if it deviates from it at the trial.

However, the Court cannot give the Protocol on this earlier testimony of another

the importance of evidence, before he gives the provisions of § 212 paragraph. 1 code of criminal procedure.

He said it reflects Pregnantně the second sentence of the second paragraph of section 212, according to

that Protocol, which was termination předestřen, cannot be the basis

conviction of the accused, or in conjunction with other in case

made to the evidence.



The Ministry of Justice concluded so that the provisions of section 212 of the criminal

order with the constitutional order of the Czech Republic is not in conflict.



III.



The Constitutional Court, in accordance with the provisions. § 68 para. 2 of the Act on the Constitutional Court,

as amended, primarily dealt with the question of whether a law, on

which is raised the unconstitutionality of the contested provision was adopted and

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

way.



This is the Act No 265/2001 Coll., amending Act No. 141/1961 Coll.,

the criminal procedure (code of criminal procedure), as amended,

Act No. 140/1961 Coll., the criminal act, as amended, and

some other laws. In this respect, the Constitutional Court of competent

Council papers, těsnopiseckých reports and data on the course of the vote

He found that the Chamber of deputies of the Czech Parliament the draft of this law properly

approved at its meeting held December and the Senate of the Czech Parliament 25.5.2001

the proposal approved as amended by the meeting of the deputies of the transferred

29.6.2001 June. After the signature of the Chairman of the Chamber of Deputies,

President of the Republic and the Prime Minister has been promulgated in the collection of

laws in the amount of 102 under the number 265/2001 Coll., the Act in question was

adopted and published within the limits of the Constitution laid down the competence and constitutionally

in the prescribed manner.



IV.



1. After this the findings stepped up the Constitutional Court to assess the content of the

the contested provisions of the Act in terms of its compliance with the constitutional

policy in the United States (article 87, paragraph 1 (a)) of the Constitution.



The provisions of § 212 code of criminal procedure, whose annulment the applicant proposes

added:



(1) If a witness Departs or spoluobviněný in important respects from the

his earlier testimony, and unless the cases referred to in the provisions of § 211

paragraph. 3 or a statement made as urgent or unrepeatable

the Act under section 158a, he may be, his interrogation log from the preparatory

control, which has not been given the opportunity to make defenders he was present,

or its relevant parts of one of the parties or by the President of the Senate

only předestřeny to explain discrepancies in his statements to the Court could

in the context of the free assessment of evidence to assess the credibility and truthfulness of his

testimony in the trial.



(2) Předestření an earlier denunciation under paragraph 1 shall consist in the reproduction

those parts of the Protocol on the previous questioning, which has heard the

the person to express and explain the contradictions between his statements. The Protocol on the

the testimony, which was předestřen, can not be basis of conviction

the accused, even in conjunction with other evidence in the case made.



The Constitutional Court has already emphasised that the principle constitutionally consistent

interpretation of the law or its individual provisions, or any other legal

the regulation takes precedence over its cancellation, and that it is the duty of all institutions

public authority to interpret and apply the law with regard to the requirement

the protection of fundamental rights and freedoms. The Court held that in a situation where certain

the provisions of the legislation allows for two different interpretations, with

one of them is in accordance with constitutional laws and international treaties,

to which the Czech Republic is bound, and another does not, there is reason to

the cancellation of such a provision. When its application is the task of all State

authorities interpret the provisions constitutionally Conformal manner (cf..


for example. find SP. zn. PL. ÚS 5/96, ECR, volume 6, finding no.

98; promulgated under no. 286/1996 Coll., or find pl. TC 48/95, collection of

the decision, volume 5, finding no 21; promulgated under no. 121/1996). In

a democratic legal State which is seen primarily as a material

the rule of law, namely, the unacceptable use of valid legal provisions

in a manner which is contrary to some of the fundamental constitutional principles.

The obligation of the courts to find the right to not only search for direct,

specific and explicit instructions in the legal text, but also the obligation to

identify and articulate, what is the specific law, even where it is the

the interpretation of abstract standards, the constitutional principles, the provisions of the Charter

fundamental rights and freedoms and the obligations arising from international agreements. From

many conceivable interpretations of the law, it is therefore necessary in any case to use

only such an interpretation that respects the constitutional principles (if such a

the interpretation of the possible), and to repeal provisions of the Act for unconstitutionality

proceed only if the provision in question cannot be used without

was the constitutionality of the violated the principle of minimizing the interference (the powers of the

other public authorities).



The Constitutional Court is convinced that the space for constitutionally Conformal

the interpretation of the contested provisions-in compliance with the above

principles, this Court repeatedly zdůrazňovaných-is also in this analysis

If given. It leads to the following considerations.



2. the applicant is of the opinion that the provisions of section 212 of criminal procedure

contradicts the article. 37 para. 3 of the Charter of fundamental rights and freedoms, article. 10 and article.

paragraph 96. 1 of the Constitution, as well as the article. 6 (1). 1 of the Convention for the protection of human rights

and fundamental freedoms. With regard to its line of argument, it is clear that the

unconstitutionality of that provision essentially sees in his alleged

non-compliance with the principle of equality of the parties.



The principle that all the participants in the proceedings are equal and that they are in control

equal rights before the Court (article 37, paragraph 3, of the Charter of fundamental rights and

freedoms, article. 96 of the Constitution, article. 6 (1). 1 of the Convention for the protection of human rights and

fundamental freedoms) is one of the fundamental guarantees of the right to a fair

process. From the broadest, general terms, it is a sign of equality

of all the people in the rights guaranteed. article. 1 of the Charter of fundamental rights and

freedoms. In that case, this general principle is reflected in the area of law

criminal and must be examined, in particular, from the perspective of equality between

the public prosecutor and the defendants. The constitutional principle of the equality of the participants

the criminal procedure is then closer to be specified especially in the code of criminal procedure.

Simple right, however, must not contradict the constitutional principles, the parent

expressed in legislation of the highest legal force; the basic duties of the Court

It is, as already stated, interpret the constitutionally Conformal manner.

Each provision of the legal regulation of the democratic rule of law must

also fulfil the conditions of sufficient accuracy, certainty and

predictability; the lack of these properties in relation to a particular

legal provisions must, however, be achieved-if it is to be considered

inconsistent with the requirement of legal certainty and the principle of the rule of law (article.

1 of the Constitution)-such a degree that its intensity excludes the possibility of

determination of the normative content of the provision by using the usual

the interpretative practices in its interpretation (see find the Assembly, the constitutional

Court SP. zn. PL. ÚS 2/97, ECR, volume 8, finding no. 91;

promulgated under no. 186/1997 Coll.).



Such a constitutional interpretation is, in the opinion of the Constitutional Court and in the

the case of the contested provisions of the possible, even if its

interpretation remains in the plane only to the interpretation of language. The first

and the basic condition laid down in the contested provision, namely, that

follow him can only be deviated if a witness or

spoluobviněný in important respects from their earlier testimony, and if

of the cases referred to in article 211 paragraph. 3 or a statement made

as urgent or unrepeatable Act pursuant to section 158a. Only in this

case may be, the Protocol on the questioning of the preparatory proceedings, in

which has not been given the opportunity to make defenders he was present, any

of the parties or by the President of the Senate only so-called. předestřen, to clarify

dissonance (discrepancy explained) in their testimonies; the purpose of this procedure,

"that is, the Court could in the context of the free assessment of evidence to assess the

the credibility and the veracity of his testimony in the trial ". To

Thus, the testimony of a witness or spoluobviněného occurs in the main proceedings before the

an independent Court of law, in compliance with all the rights of the defence, and the right to

to initiate this process, IE. předestření testimony, have equally both

the procedural side, so no it is not even an advantage nor disadvantaged.

The result may therefore be-not exceptionally-i finally sounding in

favor of the accused; above all, however, the application of the analysis of the provisions of

allows for a transparent way responsibly determine the facts of the case.

It is essential that the Protocol that we gladly accept it cannot be itself (and even

in conjunction with other evidence) underlying the conviction of the accused and not

Therefore the process-applicable evidence; It is intended only for assessment

the credibility of the testimony of the witness or spoluobviněného made now

in the trial, already for the proper participation of the defence.



The existence of the contested provision is-in the opinion of the Constitutional Court-

the manifestation of one of the basic principles of criminal proceedings related to the

by the end of the criminal proceedings in the democratic rule of law, which is the

Edit procedure bodies active in criminal proceedings, so that the offences

have been identified and their perpetrators punished (§ 1

the criminal procedure code); It's about the principle of pursuing such a procedure of law

criminal proceedings, that the facts of the case was detected, which are not

reasonable doubt, to the extent necessary for their decision (section

2 (2). 5 of the code of criminal procedure). The Court is in the context of all the facts,

discovered in a proper manner, obliged to consider carefully all the circumstances

the case individually and in total, while their parent is kept

constitutional principles and the purpose of the criminal proceedings (cf. above) according to the law,

on the basis of the facts found in the framework of a fair trial. The purpose of the

the investigation of the Institute is, therefore, allow as much as possible to the State

things in terms of reality, i.e., "what really happened"; so it is necessary to

from the perspective of the Constitution interpreted policy facts

without reasonable doubt under the current wording of section 2 (2). 5 the criminal

of the order. The contested provision thus-in light of this basic

the principle of criminal procedure-is used to a sufficient consideration and clarification

all the relevant circumstances of the particular case; He has also been

synergies with the parent principle that no one can be prosecuted otherwise

than for legal reasons and the manner prescribed by the criminal procedure code (§ 2

paragraph. 1 of the Criminal Code) and not in conflict with it (cf. also article 39

Of the Charter). The contested regulation is not-as is clear from its text

(cf. in particular paragraph 212, paragraph 2, second sentence)-in violation of nor with the principle,

that, in deciding in the trial ... the Court may take into consideration only those

the evidence at this hearing were made (§ 2 para. 12 of the criminal

procedure).



In these contexts, it must respond to the navrhovatelovu account

It cannot be granted "double legal force" evidentiary resources

that are legally unacceptable, as in respect of certain defendants

It would be possible to "use of unserviceable evidence", while the other

the defendants would such a procedure was not possible. In the opinion of the Constitutional Court

from this argument (and the entire proposal at all) should be inferred that the

the appellant not 100% reflects the meaning and consequences of the contested

the statutory provisions. even in comparison with the provisions of section 211 of the criminal

of the order. I became aware of this Chamber, whose representation is claimed that the

the Rapporteur looks to the explanation of discrepancies předestřením

the testimony as evidence, or evidence that it is not for the

the decision on the guilt, because kontradiktorně does not arise. The essence of the

Institute "předestření notice" within the meaning of the contested provisions of § 212

the criminal procedure code, excluding the correctness of navrhovatelovy consideration of "dual

legal force of evidence "-since there is no evidence, nor about the

evidence is not sufficiently explained in the previous

the text of this finding, in that expression of the Senate and in the comments

The Chamber of Deputies the appellant and to the explanatory memorandum to the contested

legal provisions (see above). The content of these terms is clear,

understandable and convincing and can therefore be used to them-because of the short-

refer to.



The Constitutional Court and the question whether the contested provisions shall not constitute

the inequality between the accused, who have an advocate, in comparison with the

the accused who do not have a lawyer. This question in the negative.

The provisions of § 212 code of criminal procedure, and the principles of this finding at all, namely the

applies-given the nature of things-even for the case where the accused in the

Mr. things Cojocaru, if he was not given the opportunity to


He was present at the hearing of a witness or spoluobviněného within the meaning of

the statutory provisions.



3. the appellant further specifies its objection that the contested provisions of the

It is in breach of article. 6 of the Convention for the protection of human rights and fundamental

freedoms, as the so-called. předestření testimony used to assess

assurance (witness or spoluobviněného) can be crucial when you

assessment of the guilt of the accused.



The Constitutional Court in the first place-preliminary point concerning the legal admissibility of

the assessment of this alleged breach-that already on your award SP. zn. PL.

TC 36/01, published in the European Court reports, Volume 26, finding no 80, and

published under no. 403/2002 Coll., stated that the constitutional entrenchment of the General

inkorporační standards and thus overcome the dualistic conception of the relation of the right

international and national law (Constitutional Act No. 395/2001 Coll.),

cannot be interpreted in the sense that his removal would

terms of reference and the renowned international treaties ratified

on human rights and fundamental freedoms in the assessment of national

the law of the Constitutional Court, even with possible derogačními consequences. Range

the concept of "constitutional order" cannot be interpreted only in the light of

wording of the article. paragraph 112. 1 of the Constitution, but also with regard to the article. 1

paragraph. 2 of the Constitution. The Constitutional Court confirmed this conclusion, even in its more

decision-making practice (cf. findings SP. zn. I. ÚS 752/02,

the decision, volume 30, no. 54, and PL. TC 44/02, ECR

volume 30, finding no. 98; promulgated under no. 210/2003 Coll.)



Therefore, the Constitutional Court assessed the contested provisions and in terms of its

accordance with article 6(1). 6 (1). 1 of the Convention for the protection of human rights and fundamental

freedoms. In this context, however, it can be noted that the core principles of

a fair trial, guaranteed by the international conventions on human

rights and fundamental freedoms are in the framework of the constitutional order of the Czech Republic

enshrined in particular in the Charter of fundamental rights and freedoms, so that if

certain provisions of the law is found to be constitutionally Conformal from

This point of view, the usually principles, enshrined in the international

agreements that are part of the legal order of the Czech Republic.



This (positive) the findings reached by the Constitutional Court in the case.



To interpret the relevant article of the Convention, which is the quoted-

aspects investigated the problems-in particular, account should be taken, namely to

Article 6 (1). 3 (b). (d)), pursuant to which every person who is charged with

a criminal offence has the right to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him, there are a number of decisions of the European

Court of human rights. So for example. in the case of Kostovski against the Netherlands.

1989 A-166, this Court held that ' the use statement made in

the preliminary investigation itself is not contrary to article 6 (1). 1 and 3 (b). (d))

The Convention, subject to the rights of defence are respected. Those rights

require to give an adequate and sufficient opportunity to deny testimony

directed against him and the witness questioned, either in the composition of the testimony

or later ". The same view repeated court in case against Delta

France from 1990 and 1991-and, when further argued that "the admissibility of evidence is

should be judged according to the particular national law and national

courts to evaluate the elements that gather. The rights of the

the defence require that an accused person should have adequate and sufficient opportunity to

to contradict the testimony of the prosecution witnesses and to ask questions at the moment of witness

testimony or later "(cf. also the finding of the Constitutional Court, SP. zn. IV. TC

135/99, ECR, vol. 14, pp. 125, 126). Even in this direction

Therefore, the Constitutional Court of the unconstitutionality of the contested provisions of the code of criminal procedure

did not find, since the legislation in question with an adequate and sufficient

the opportunity to deny the testimony against the accused and give witness

question, either in the composition of the testimony or later,

does not dispute.



4) only as obiter dictum may be to certain parts of the argument

of the applicant (if the circumstances of a particular case touches)

recalled that, although the proposal of the General Court under art. 95 para. 2

The Constitution may be regarded as a so-called. specific control of constitutionality-as

the proceedings before the General Court in the matter, at which the solution has to be infected

the law used is not in the time of the petition has been finally ended-Constitutional

even in this case, the Court shall examine the contested provisions of the legislation

in General, and a particular case does not address. Step-by-step instructions on how to proceed in

particular, has not yet been finally neukončeném the case, therefore, the constitutional

the Court does not serve, and it's not his job. It can therefore only briefly to supplement,

the conscientious judge must be able to when you use of the provision

§ 212 criminal procedure act in such a way as to "předestření"

nerovnalo for example. "leading question" (as stated in the preamble of the proposal),

but that allowed him to-among other things-assess in particular whether the testimony is

the witness or spoluobviněného in the trial credible and that the

contribute to the establishment of facts to the responsible things.



Procedural steps pursuant to section 212 of criminal procedure according to

the belief of the Constitutional Court shall not prevent the issue of a fair decision and

the rights of the accused does not violate in any way; on the contrary, if it is referred to the provisions of

applied process properly and constitutionally conformally-so sensitively and

responsibly in relation to the parent's constitutional principles and related

the basic principles of criminal proceedings-contributes to the achievement of the purpose and meaning of

criminal proceedings, kept by the competent authorities of the Democratic

State.



Therefore, the Constitutional Court concluded that the reasons to cancel the provisions of §

212 code of criminal procedure is made, as it is not in conflict with the constitutional

the legislation, which the appellant alleges, or with other provisions, which

are part of the constitutional order of the Czech Republic.



Therefore, the proposal was in accordance with the provisions. § 70 para. 2 of the Act on the Constitutional Court

rejected.



The President of the Constitutional Court:



in the z.. Holländer in r.



Vice Chairman

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