236/2001 Sb.
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court ruled June 20. February 2001 in plenary on the draft. F. P.
the cancellation of the words "lawyers and" in § 46 paragraph. 4 of Act No. 85/1996 Coll., on
advocacy,
as follows:
The proposal is rejected.
Justification
(I).
24 September. 1. in 2000, the Constitutional Court has the constitutional complaint. F. P.,
the represented party. H. k., against the judgment of the city court in the
Prague from 12. 10.1999, ref. Ca 38 357/98-40, together with which it was filed
on the cancellation of part of the provisions of section 46 paragraph. 4 of Act No. 85/1996 Coll., on
the legal profession, as amended, (hereinafter referred to as "the law of
advocacy "), and to the extent that the words" and ", for its conflict with article. 10
The Charter of fundamental rights and freedoms, no. 2/1993 Coll. (hereinafter the "Charter"),
as well as for the discrepancy with the law consisting in the fact that no one is obliged to
myself usvědčovat.
The second Chamber of the Constitutional Court by a resolution from the 20. 6.2000, ref. II. THE TC
46/2000-13 interrupted the proceedings on complaints, and annulment of the provisions of
the Bill advanced to the plenary.
A final ruling by municipal court in Prague from 12. 10. the 1999 REF. 38 Ca
357/98-40 was rejected navrhovatelova action against the decision of the
the Board of appeal of the Czech Bar Association ("CBA") from 8. 9.1998
SP. zn. To 147/97.
Disciplinary board disciplinary Commission of the CZECH BAR ASSOCIATION, by decision of 10. 4.1998, SP. zn. To
147/97 order the applicant a fine of 5 000 Czk. The appeal against the
This decision of the Board of Appeal dismissed the CBA and the contested decision
confirmed. Against the final decision of the authority of the CBA railed projector
administrative action by the municipal court in Prague, which dismissed the action.
The General Court of the fact that in the opinion of the appellant applied in the management of
administrative action, the provisions of § 46 paragraph. 4 of the Act on the legal profession,
constitutional right enshrined in article. 10 of the Charter, according to which everyone has the right,
in order to preserve his human dignity, personal honour, good reputation and
protected by its name, has the right to protection from unauthorized zasahováním
in private and family life, as well as to protection against unauthorized
the collection, publication or other misuse of the information about your person.
The applicant emphasises, at the municipal court in Prague,
The Constitutional Court was submitted to the assessment of the constitutionality of § 46 paragraph. 4
the law on the legal profession, which was rejected, therefore, that the question of the use of this
legal provisions were not the subject of proceedings before the General Court.
He from the BAR ASSOCIATION from 27. 6. in 1997, by the appellant, was
the applicant is asked to provide the client the file available to the CZECH BAR ASSOCIATION. (I)
When he was not given a section, on the basis of which it happened, it is clear
in the opinion of the appellant, that this was the procedure according to § 46
paragraph. 4 of the Act on the legal profession. That provision was applied in the case.
Under these circumstances, it was the duty of the General Court to proceed under section
paragraph 109. 1 (a). (c)) of Act No 99/1963 Coll., the code of civil procedure, in
as amended, (hereinafter referred to as "the service"). the proceedings
and to submit to the Constitutional Court for annulment of the part of the proposal of the legal
the provisions. The Court itself had come to the conclusion that the cited provisions of the
the law on the legal profession, which has to be when discussing or deciding things
used, is inconsistent with the Charter.
Crucial in terms of its proposal to the plenary, in addition to the emphasis that the
No one is obliged to usvědčovat himself, the appellant considers that the right to
protection of the information from the client, under the article. 10 of the Charter, which is
Therefore, in violation of the cited provisions of the law on the legal profession, and to the extent
the words "lawyers and". The point is, that the contested statutory provision allows
the presentation of the client file to persons other than the only specific
the lawyer, whom were certain confidential information communicated to his client, and in
the file stored.
For the appellant would consider such a constitutional adjustment that would allow
the release of the client's file, or its parts, only with the consent of the client.
The present adaptation but allows that with regard to the examination of specific
cases between the lawyer and his client were confidential client data
made available closer to the unspecified and unknown circuit of the other persons.
Proposes, therefore, that the provisions of section 46 paragraph. 4 of the Act on the legal profession in
the scope of the words "lawyers and" was cancelled for its conflict with article. 10
Of the Charter. The legislation, which will be the things the solution eventually chosen to be in the
accordance with the Constitution of the Czech Republic (hereinafter referred to as "the Constitution").
II.
From the comments of participants on the draft, which the Constitutional Court under section 69, paragraph. 1
Act No. 182/1993 Coll., on the Constitutional Court, as amended,
(hereinafter referred to as "the Act"), comes from the nature of things in the account only
representation of the Chamber of Deputies.
Its President, to the design of, inter alia, stated that the provisions of section 46 paragraph. 4
the law on the legal profession is a precondition to the Control Board of the CZECH BAR ASSOCIATION could
to fulfil the tasks cited by law, IE. the supervision of the
compliance with the law on the legal profession and professional rules lawyers, and other
the authorities of the CZECH BAR ASSOCIATION. In addition to the General obligations, which the lawyers law No.
101/2000 Coll., on the protection of personal data and on amendments to certain acts,
it applies to them and the obligation of secrecy about all facts
which are brought in connection with the provision of legal services in accordance with section 21
the law on the legal profession. The members of the organs of the CZECH BAR ASSOCIATION and its employees, as well as on the
all persons involved in disciplinary proceedings, the obligation
confidentiality also applies, in a completely identical range. Therefore,
representative of a party considers that the contested provisions of the law on advocacy,
in the part of the sentence for a semicolon, expressed by the words "and", is not in breach of
with the constitutional order of the Czech Republic or with international conventions,
which the Czech Republic is bound.
In this state of Affairs notes that the legislature acted in
the belief that the law is adopted in accordance with the Constitution, the constitutional order
The Czech Republic and its legal order. It is therefore on the Constitutional Court, in order to
in the context of the examination of the proposal to assess the constitutionality of the contested legal
provisions and decided.
The legal representative of the applicant in the reply to the opinion of the participant in the first place
notes that the presentation of the file gives a lawyer available supporting documents,
that it may incriminate him. So alone provides evidence for his accusations, and it
not only for the disciplinary offence, but also for the crime. For more significant, however,
the complainant considers that the fact that something like this can happen
his client. The obligation of secrecy imposed on lawyers, the authorities of the
advocacy and their employees, to which the observations of the participant points out,
It is not enough to guarantee, to avoid such consequences. This is the case
Therefore, the law does not define the way in which it is to be a client file
submitted. Whereas it specify advocacy bodies (see Bulletin
advocacy No. 1/99, p. 79 et seq.). It has to be according to the file posted
by mail, you may lose during transport and get into the hands of anyone.
Even after the submission of the dossier to the authorities of the CZECH BAR ASSOCIATION is not regulated the way in which it has
be protected against unwanted manipulation with it. From the letter attached to the
the reply, the complainant indicates that it is for the disciplinary board. In
the context of judicial proceedings (administrative action) can the client file
leave the realm of advocacy. If it finds him administrative court the circumstances that
indicate that a crime has been committed, it may lead to criminal
prosecution lawyer or client because the Court duty of secrecy
saved by the Act on the legal profession is not bound. In addition to the listed
criminal aspects cannot be overlooked that in the file are personal
sensitive client data protected by Act No. 101/2000 Coll., Implied
the consequences can occur against the wishes of the client, as the complaint to the Attorney
may be made by the counterparty, or anyone else, and he has to the client file
submit. In conclusion, a replica of the petitioner States that it is not possible
soon the qualitative difference between the information that the lawyer has since
the client and other data, IE. advocacy documents, both contained in the
the client file. Therefore, cannot pay the same regime for the control of
lawyer and BAR ASSOCIATION, as the contested act.
The Constitutional Court has taken under section 48, paragraph. 2 and § 49 paragraph. 1 representation Act
the draft also from the Ministry of Justice.
His foremost Legislative Department stated that in section 74 of the Act required
relationship, filed constitutional complaint and proposal for the repeal of the law or its
individual provisions of the proposal, the complainant cannot be unequivocally inferred.
In relation to the subject of the constitutional complaint has further considered that the request file
lawyer containing certain information about a person, the client cannot be considered as
any intervention in the constitutionally guaranteed rights of the person of the lawyer, but on the contrary
This client. Therefore, even if the procedure was a CBA application section
paragraph 46. 4 of the Act on the legal profession, it was against a lawyer
a direct hit to its constitutionally guaranteed rights and freedoms.
The relationship between lawyer and client is, in the opinion of the Ministry of
Justice touches especially paragraph 3 of the article. 10 of the Charter. Listed here
law should mainly protect the client against unauthorized disclosure
or misuse of personal information, provided by a lawyer and that are
be kept in the file. In this context, reference is made to section 21 of the Act on
advocacy advocate imposing an obligation of secrecy in relation to
to the client. For the case of the disciplinary proceedings, the law on the legal profession imposes an obligation to
secrecy to the same extent and lawyers-CBA and its members
employees, as well as other persons involved in disciplinary proceedings.
The Act on the legal profession is therefore sufficiently protected in this manner in the article.
10 of the Charter constitutionally guaranteed right.
III.
In the framework of the examination of the procedural conditions for management filed the proposal with the constitutional
the Court dealt with the question of the validity of the contested provisions of § 46 paragraph. 4
the law on the legal profession at the time of delivery of the Constitutional Court. Detect
Therefore, as the stores section, paragraph 68. 2 of the Act, whether the law on the legal profession, in which
the contested provisions included, was accepted and published in the limits of the Constitution
established competence and constitutionally prescribed way. For this purpose,
requested by the Chamber of Deputies těsnopisecké messages from its meetings, on
which was the legislation discussed and adopted.
From the těsnopisecké message from 40. the meetings of the Chamber of Deputies, held 13 June.
3. in 1996, the Constitutional Court found that the proposal on the issue of the law on advocacy has been
at the conclusion of the third reading of the accepted ratio of 81 votes for, 10 against. The law on the
the legal profession was due to the article. paragraph 39. 1 and 2 of the Constitution validly adopted and
eventually signed by the competent constitutional officials, and declared in the collection
laws.
IV.
In proceedings for annulment of the laws or their individual provisions examines
The Constitutional Court of the content of these legal acts in terms of their compliance with the
constitutional acts and international treaties under article. 10 of the Constitution, as he
It stores the section 68, paragraph. 2 of the Act.
The Constitutional Court therefore examined the nature of constitutional complaints-i.e., whether the person
the complainant is directly affected in its constitutionally guaranteed right that no one
is not obliged to myself usvědčovat-from the perspective of the contested legal
the provisions.
The statutory provisions (§ 46 (4)), part of which is designed to cancel,
added:
"(4) the control Council to oversee compliance with this Act and the
professional rules of the Chamber of lawyers and other authorities; the members of the supervisory
the Council must be given access to all documents, as well as other
documents, lawyers and Chambers. ".
From documentary evidence, that the Constitutional Court in the case so far gathered,
You must first and foremost be based on the explanatory memorandum to the law on the legal profession.
Whereas, the report was contested parts of the law
namely, it does not address not found anything that could bring in the things
clear. Even the amendment of the Act on the legal profession, law no 210/1999 Coll., and explanatory memorandum
the message to him, the provisions of § 46 paragraph. 4 of the Act on the legal profession had been moved.
The constitutional guarantees of the rights of the citizen's objective in that it is not obliged to
usvědčovat itself, you need to search in the Charter in particular.
From this point of view, it is appropriate to recall the provisions of article. paragraph 37. 1
The Charter, which provides that everyone has the right to refuse to testify if they
She caused the danger of criminal prosecution or person nearby.
A special provision in this context is article. 40 paragraph. 4 of the Charter, which
the right to refuse to testify, the accused, and this right must not
to be deprived in any way. Special because it relates to an accused person, not
anyone, and at the same time the accused that by law [section 33 (1) of the Act
No. 141/1961 Coll., on criminal court proceedings (code of criminal procedure), as amended by
amended, (hereinafter referred to as "tr.")] the obligation to testify, it
Unlike for example. from the witnesses, which is primarily article. paragraph 37. 1 of the Charter
touches.
Beyond the prohibition on coercion of another can be referred to the testimony of hopelessly
the constitutional right to be understood in a broader scope so that other evidence is not
a citizen is obliged to provide against each other.
To this extent, it is the constitutional right guaranteed by article. 40 paragraph. 2
Charter zakotvujícím the presumption of innocence. From this principle stems the principle of
other, namely the in dubio pro reo, establishing an obligation to at least
authorities active in criminal proceedings to prove the guilt of the accused, if it is to be
to a conviction. And then the other of this obligation implies the absence of a
the obligation of the accused to usvědčovat itself in any way,
not only their own testimony. The logical consequence of the prohibition of any
coercion of a citizen to the hopelessly.
Using the same logic of the argument it is possible to infer the absence of
obligations to the hopelessly from article. 40 paragraph. 3 of the Charter, which, inter alia,
talking about the law of personal defense. The confession of the accused in this
the context of the sole of his right.
With regard to the Convention for the protection of human rights and fundamental freedoms, no.
209/1992 Coll., no 243/1998 Coll. (hereinafter referred to as "the Convention"), it is necessary to rely
about the article. 6 (1). 2 (presumption of innocence). 3 (b). (c)) (right to personal
the defence).
The International Covenant on Civil and political rights, no. 120/1976 Coll.
(hereinafter referred to as "the Covenant") talks about the presumption of innocence in article. 14 paragraph. 2. Article. 14
paragraph. 3 (b). (g)) then explicitly states that every person who is charged with
of the offence, not to be compelled to testify against himself or to confess guilt.
Referred to the provisions of the constitutional law on the rights of the person the nature of criminal
the accused had to be cited, therefore, that the complainant, as a "kárně
the accused "(§ 33 (1) of the Act on the legal profession), the analogous position
just as "criminally accused" (§ 35e (2) the Act on the legal profession).
The proposal to repeal the contested provisions of the Act on the legal profession is its
similar precautionary nature Institute "obligations to release things" in
the meaning of § 78 tr row, which commits each, even the accused.
If the obligation to voluntarily submit to the doličnou thing, and it is
real especially with the accused, who so obviously make precisely to
provide factual evidence against each other, while at the same time does not need to
to ensure such a thing, which in practice will be rather exceptional, and will not be
necessary to proceed in accordance with paragraph 2 of the cited provisions, cannot meet the
the order for the obligations of the force, and that neither the procedure provided for in § 66 tr. l.,
does not have to be without prejudice to the article. 40 paragraph. 2 of the Charter, or article. 6 (1). 2, of the Convention and
article. 14 paragraph. 2 of the Covenant. Coercion to comply with the obligation to refer the
the way of the application of section 66 tr row would be constitutional if they covered the other
than the accused, committed to the obligations to submit a matter to the doličnou.
If, however, a thing, for the purposes of criminal proceedings will be
ensure, which is probably in most cases, and the accused her
fails (fails to fulfil the obligation of editors), he may be withdrawn. There is, however,
apply in the alternative, further securing the Act under section 79 tr. l.,
withdrawal of the case.
While such "withdrawal" cannot be understood as coercion to release
the factual evidence against oneself. Withdrawal of the stuff here is from this point of
the same nature as other precautionary steps taken under the criminal procedure code,
applied regardless of, respectively, against the will of the accused (see e.g..
"Ensuring of funds on account for the Bank", § 79a tr. l.,
"Household and personal tour", section 82, 84 and 85 tr row, etc.).
In these cases, it is not about coercion of the accused to provide evidence
against itself, but about ensuring the factual evidence, albeit forced against the
the will of the accused. The implementation of such acts against the will of the accused in the
It is not contrary to the Constitution.
If however the constitutionality should be understood broadly as follows, after all, would
the paralysed criminal proceedings, namely, obtaining evidence and their
the implementation in its progress.
With the contested provisions of the law on legal profession comparable statutes of criminal procedure
reinsurance operations include therefore the fuses the constitutionality, respectively.
their interpretation of the constitutionality of the constitutionally the preserve can be conformal,
in particular for section 78, paragraph. 1 tr row.
The fuse of the same type in the following to section 46 paragraph. 4 of the Act on the legal profession,
the text for a semicolon, it offers, in the opinion of the Constitutional Court, the provisions of section
paragraph 33. 5 and 6 of the Act on the legal profession.
Referred to in paragraph 5 has kárně the accused, inter alia, the right to propose evidence,
that should be made. It is logical that then is not obliged to
to provide incriminating evidence against himself, unless it does so
on a voluntary basis.
If they do so, unless therefore voluntarily e.g.. the client file should
BAR ASSOCIATION disciplinary authority to proceed in the alternative, pursuant to paragraph 6, where it stands: "...
other evidence may be carried out only when voluntarily provided.
The evidence, which cannot be done this way, it shall at the request of the Chamber and its
the cost of the Court; ...". The practice, however, is different in this regard, as mentioned
the authority referred to on the way the client files, but does not require the non-compliance alleged
obligation to issue file is classified and penalised as separate
disciplinary transgressions.
Due to the assistive program code of criminal procedure in disciplinary proceedings (§ 35e
paragraph. 2 of the Act on the legal profession) it should be the Court, as the authority in the
criminal proceedings that, in the event that the accused lawyer refuses to kárně
submit or issue the client file, apparently acted adequately according to
§ 78 and 79 tr row, whose constitutionality or constitutional interpretation and application
in terms of self-reproach and coercion to him have been discussed above.
In doing so, should respect the conclusions of the parties referred to the interpretation, not only in the alternative
applied criminal procedure, but also directly to the contested provisions of section 46
paragraph. 4 of the Act on the legal profession, not to get into conflicts with the Constitution.
In other words, he would have to respect the requirement of interpretation of the law,
Therefore, the interpretation of the only constitutionally Conformal (see find plenum of the Constitutional Court
No 186/1997 Coll.).
When such a reasonable application of § 78 tr. lines would have to be taken into account
its paragraph 2, according to which the order or the obligation within the meaning of the editorial
paragraph 1 does not have the one who should submit or issue an instrument, the
the content relates to the circumstances which apply a prohibition on questioning (§ 99 tr. l.).
In relation to kárně accused a lawyer would be a prohibition referred to in paragraph
2 the last cited provisions, i.e.. because of the respect for the obligations of the
the secrecy imposed by him under section 21 of the Act on the legal profession. The same provisions
However, in its paragraph 6, provides for an exception in that direction, that the obligations
secrecy is a lawyer cannot invoke in disciplinary proceedings, as well as to
the lawyer, who was commissioned by the Chairman of the Control Board by performing the
preparatory operations to check whether an offence (section karnej 33
paragraph. 3 and § 46 paragraph. 4 for a semicolon to the law on legal profession).
Appropriate use of the code of criminal procedure (section 78) in such cases, the
should consist in the fact that the impossibility of challenging the obligation
confidentiality in the disciplinary proceedings in this context excludes the use of the section
paragraph 99. 2. l., and as a result, and section 78, paragraph. 2. l. otherwise,
expressed, the competent court would in this situation should insist on compliance with the
Editor kárně the obligations of the accused lawyer. If it still
and the client file would be necessary for the purposes of disciplinary proceedings
ensure, which is practically in almost all cases, followed by
mutatis mutandis in accordance with § 79 tr row. If it was not, the need to ensure
obligation just to its submission within the meaning of section 78, paragraph. 1 tr row.
It was not possible to enforce in any way, for the reasons given above.
Finally, the Court would be requested as follows bearing documentary evidence made for
the purpose of the disciplinary proceedings.
As an obiter dictum, the Constitutional Court adds that you should be aware of the
the role, in which he performs here: not a body active in criminal
management, but the authority involved in disciplinary proceedings against
the lawyer, in a given case on the initiative of the client. This would, inter alia,
for example. that she is from the client to the file which performs evidence
for disciplinary proceedings, that the client has committed a crime, he could not
proceed in accordance with § 8 paragraph. 1. the second sentence of the tr row, but he would have to
respect the provisions of § 168 paragraph. 3 of Act No. 140/1961 Coll., the criminal
the law, as amended, namely Act No. 210/1999 Sb.
(hereinafter referred to as "tr."). According to the first of them, "the authorities are ...
shall be obliged to immediately notify the Prosecutor or the police authorities
the facts suggesting that the crime has been committed. " According to the
the provisions referred to as second in the order of "the notification requirement does not
lawyer or trainee who learns about the committed criminal
crime in connection with the exercise of advocacy or legal practice "; This
the provisions will undoubtedly also applies to disciplinary authorities of the CZECH BAR ASSOCIATION, for the Court,
that would be active on their request pursuant to § 33 paragraph. 6 and § 35e paragraph.
2 of the Act on the legal profession, otherwise it would lose its meaning. Find out if they
the requested court from the file that the offence committed by contrast, lawyer,
should proceed as if this finding made directly to disciplinary
authority of the BAR ASSOCIATION (article 168, paragraph 1 and 2, tr.).
In these conclusions, the Council does not change the legitimate complaints in navrhovatelově reply
concerning the lack of protection of client files floating around
the point of view of their content by unauthorized person worked. ALEX will be on how to
above, responds.
The legal possibility of obtaining evidence for the purposes of disciplinary proceedings (or even
the criminal) against the will of kárně (or even criminally) the accused cannot be
simplistically understood as illegal and unconstitutional coercion of the accused to
providing evidence against yourself. It is necessary to distinguish it constitutionally
the guaranteed right of privilege against self-incrimination on the one hand, therefore,
submit evidence against each other under the forcing, from legal options, which has
disciplinary (criminal), much against the will of the accused to procure evidence, IE. (I)
their detention has not been issued, and in its detriment, on the side of the
the second.
In the.
Taking into account the results of the legal and constitutional analysis of the Constitutional
the Court proposal to repeal of § 46 paragraph. 4 of the Act on the legal profession in the range
the words "lawyers and" under section 82, paragraph. 1 of law rejected.
The President of the Constitutional Court:
JUDr. Kessler v. r.
