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The Proposal To Repeal Section 160 Paragraph. 2. The Law

Original Language Title: Návrh na zrušení § 160 odst. 2 tr. zákona

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282/1998 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 14 June 2005. October 1998 in plenary on the draft e. E.

repeal of § 160 of paragraph 1. 2 of the Criminal Code No. 140/1961 Coll.



as follows:



The proposal is rejected.



Justification



(I).



E. e. filed a constitutional complaint to the Constitutional Court against the order

Municipal Court in Prague, SP. zn. 6 To 288/97, which was rejected by her

appeal against the judgment of the District Court for Prague 2 of 7. may

1997, SP. zn. 3 T-75/96. This judgment of the District Court of Prague 2 acknowledged

the appellant guilty of the offence receive a bribe under the provisions of

§ 160 paragraph. 2 of the Penal Code, committed by the fact that in exactly

the non-observed time since the beginning of 1994 to June 1994 in Prague

offices of real estate companies Real service in the non-residential premises in the Bazaar

witness J. M. and elsewhere called for under the promise that they will arrange for the property

the Commission of the district Prague 2 City District Office to raise the rent in

these areas, from j. m. and l. p. bribe, which then actually adopted

in the form of the golden chain, which returned after the L. P. Verify in

the Mayor of Prague 2 to rent increases in the

non-residential premises. For this offence he was sentenced for her

freedom in the duration of one year conditional deferral for a period of three years.



Against that judgment, the appellant filed an appeal, the municipal

a court in Prague by order under section 256 code of criminal procedure as unfounded

It has refused.



The appellant did not agree with your evidence, and to their legal

the evaluation of the two courts. Because this assessment in its opinion

related to the broad and vague provisions of § 160 of the wording of paragraph 1. 2

the criminal code, the appellant contacted her constitutional complaint

the proposal to repeal section 160 paragraph. 2 of the criminal code. The application of-

in the opinion of the appellants-occurrence of the event which is the subject

a constitutional complaint.



After a review of the constitutional complaint, the Constitutional Court came to the conclusion that the proposal

meets all the prerequisites of a constitutional complaint associated with a proposal for

cancellation of part of the Act pursuant to Act No. 182/1993 Coll., on the Constitutional Court, in

as amended, therefore, according to § 78 para. 1. law proceedings

interrupted and the order of the day 4. in March 1998 he advanced the proposal to repeal section

160 paragraph. 2 of the criminal code the plenary for a decision under art. 87 para. 1

(a). and the Constitution of the United States) for the use of § 78 para. 1 of the law on

The Constitutional Court, as the municipal court in Prague back against its decision to

the impugned provisions of the Act.



In support of its application for annulment of paragraph 160 paragraph. 2 of the criminal code

the appellant pointed to the existing case-law, which deals with the

receiving a bribe under sections 160 paragraph. 2 of the criminal code, according to which

This crime perpetrated by one who in connection with procuring

things of general interest bribe requests. It stated that this case-law

coming mostly from the earlier period under General Affairs

interest means not only the decision-making activities, but also other activities that

related to the performance of socially significant tasks (e.g. preparing

for the decision). The complainant cites the opinion of publications,

Dolenský, Valo, Vokoun: criminal substantive law-special part, in

which valid to modify záležejících in the bribery offences is

significantly marked by the past, when totalitarian State greatly etatizoval

our society and its economy, created a permanent advantage over demand

the offer, which arose for the most favorable conditions for corruption. Resulting from the

the situation of the State especially repressive means, whose wide

the application should allow the legal formulation of the constituent elements of these

criminal offences, in particular the very vague wording in the context of the

procuring things of general interest. According to this opinion will have to be in

the future to limit criminalization to cases of bribery, right when it comes to

bribe mainly in relation to decision of public affairs.



The wording of the provisions of § 160 of paragraph 1. 2 of the criminal code is considered by the

the appellant's very general and broad and can get under it to introduce a

a variety of different acts. Due to the fact that every social establishment

be treated differently on the various social processes going on, what was

Affairs of public interest in the social relations of the past,

It is not the same as today's concepts. The unconstitutionality of the contested provisions

the Criminal Code establishes that the appellant, in particular in the fact that while the concept of

"official" law formulates quite precisely in the provisions of § 89

paragraph. 9 of the criminal code, the definition of the term "in connection with procuring

things of general interest "completely sidesteps the law. In the opinion of the appellant, it is

on the fundamental issue, as this ultimately leads to

incorrect conclusions of general courts and to limit the personal freedom of citizens,

who should not be the disproportionate burden of criminal repression in the cases of the active

the performance of their business activities. Is convinced that this interferes with the

legal security of the citizen, which cannot be objectively and reliably

assume that its operations when its own business activities, thereby

constitutionally guaranteed rights in the implementation of a business, not because of the closer

undetermined conflict of business activity with the right of the public, such as

on the part of law enforcement authorities, evaluated other than myself

citizen intends and how the content took place.



The appellant considers it inappropriate that the definition of "procurement

things of general interest ", or" in connection with procuring things

general interest "was left to the case law, coming mostly from the

the period of the totalitarian system. In the opinion of the appellants in the

This is the performance of the activities of the personal rights of a business, namely the

to manage part of the real estate on the basis of the commercial contract, and in

It then goes on the conclusion or the non-conclusion of the rental agreement or

the landlord, his selection is subject to the free

decision making in the field of civil law.



The appellant further stated that according to the article. 39 Charter of fundamental rights and

freedoms ("the Charter") sets out the law, that action is

a criminal offence. According to the current arrangements, but what is the content of the discussions in the

the meaning of the criminal law specifies, defines and specifies only the

the case-law of general courts, and not the law itself, so it can be about the content of the concept of

"in connection with procuring things of general interest". In it,

He was convicted by the criminal offence of order sought a bribe in

connection with procuring things of general interest, even though it was her

business activity (property management), the rapporteur sees the

direct link to the contested provisions.



The appellant is of the opinion that the facts of the crime must

be formulated so that they are clear, predictable, certain and to

provide all available legal security for every citizen.

He claims that in the case of the provision of section 160 paragraph. 2 of the criminal code was

those rules have been violated, so the application of the contested provision was

a person's constitutional right to liberty under article. 8 (2). 1 and 2

Of the Charter and the right to transact business pursuant to article. 26 paragraph 2. 1 of the Charter, and in particular

the fact that an activity that is a manifestation of its right to do business has been substantively

evaluated the general courts, as the Affairs of general interest. Further

pleads infringement of article 81(1). 39 of the Charter, according to which the law lays down that

conduct is a criminal offence, and finally, article. 36 of the Charter and article. 6 (1). 1

Convention for the protection of human rights and fundamental freedoms, which guarantee the

the right to a fair trial.



In conclusion, the appellant stated that the provisions of § 160 of paragraph 1. 2 of the criminal

the law is in conflict with the Constitution and the Charter, as it is about the concept of indefinite,

that is not defined by law, so that about him in connection with a criminal

prosecution was not reasonable doubt. The appellant submits that, in the

the perpetration of the offence must be a continuous activity, and

publicly significant with a wider impact on society and business

its business activities carried out on the basis of the trade license and

under the trade agreement, things of general interest within the meaning of the criminal code

to cater to.



The President of the Chamber of deputies of the Parliament of the United Kingdom in its

comments on the proposal to repeal section 160 paragraph. 2 of the Criminal Code stated that

This provision is part of the criminal law in an unchanged form from

in 1961, and quoting from the explanatory memorandum, according to which corruption undermines

the confidence of the citizens of the State and economic institutions, and should therefore be

corruption not only prosecute if public officials, but also those

who cater to things of general interest. So far almost forty years old

practice in the application of this provision, the growing number of inmates

for this offence and stable interpretation of the terms contained in this

provisions suggests that section 160 paragraph. 2 of the criminal law is effective,

a clear and an indispensable part of this Act. About the need to preserve

prosecution of the criminal offence of bribery by the Convention of the European Union on the fight

against corruption, which stores carry out such measures, the Member States

to their respective legislation prohibited the acceptance of bribes


as a criminal offence. Similarly, conceives the offence of receiving bribes whether or not

the forthcoming Council of Europe Convention against corruption, which should not

limited to the criminal prosecution of public officials (officials), but also

the area of the private sector.



Based on these facts is in expressing concludes that the

the provisions of § 160 of paragraph 1. 2 of the criminal code should be maintained.



II.



After the assessment of the appellant's proposal to repeal the provisions of § 160 of paragraph 1. 2

the criminal law, the Constitutional Court came to a negative opinion.



The Constitutional Court dealt with the evaluation of the form and content of the provisions on

receiving a bribe in section 160 of the criminal code, as well as the importance of the legal

editing of the offence of bribery, and relevance of this criminal prosecution

in terms of the social activities. Legislation of bribery in

the third head of the third section of the special part of the Penal Code should be

considered as a whole. Criminal law talks about receiving a bribe on the one hand,

on the one hand about the bribery. As regards the acceptance of a bribe, according to § 160

paragraph. 1 of the Criminal Code punished, who in connection with procuring

things of general interest or promise shall take a bribe, according to § 160 paragraph.

2 of the Criminal Code shall be punished, who, in the circumstances referred to in

paragraph 1 calls for taking a bribe, according to paragraph 3 increases the criminal

the rate in the case that someone commits such crime as a public

factor. As regards active bribery pursuant to § 161 para. 1 of the criminal code,

commits this crime because who else in connection with procuring

things of general interest bribe provides, offers or promises, whereby dle

paragraph 2, once again a criminal rate increases in the event that this

acts committed by a public official. The merits of all the listed

offences thus lies in the fact that someone asks for a bribe, the promises

or provides in connection with procuring things of general interest.

Affairs of general interest is thus a basic prerequisite for the fulfillment of

the merits of these crimes. The complainant, however, in their

the argument for the annulment of the contested provision goes further and

argues that the entrepreneur in his or her business activities carried out by the

the basis of the trade license and according to the concluded trade agreement, things

"the public interest" to cater to. This separates the private and

public aspects of the two isolated realms and sidesteps the fact

that the law does not restrict the bribe connected only on the immediate

of general interest, but this notion at all of activities undertaken in

connection with procuring things of general interest. The use of influence on the

the material the Commission, which is an advisory body of the Council of the Borough of Prague

2, to ensure that the complainant has not increased the rent used Office

the space is to be understood as action taken in connection with the

procuring things of general interest.



In considering the interpretation of this concept, you can agree with the objections

the appellants that this notion is not included in the interpretative rules section

89 of the Penal Code and that the content of this concept is embodied in the law

kategorizujícího enumeration terms and is therefore in the courts to implement

the interpretation of individual cases, and they may rely on

the existing case-law, although mostly from the previous period. According to the

the case-law of the General Court Affairs of public interest activities,

that relates to the fulfilment of the tasks relating to matters of general interest, namely

not only the decisions of the organs of State power and administration, but also satisfying the interests of the

citizens and legal persons in the field of physical, social,

cultural and other needs when it comes to matters of General

(public) interest. You can agree that the interpretation of this concept different

the courts may create the impression that there is not a single, for the law does not provide

no definition of the notion of specific characters for his assessment, and

You can also agree with the fact that a completely unique content of this concept in

the Act would contribute to legal certainty of entrepreneurs. On the other hand, it is

clear that the influence as such and in relation to the way

requiring bribes and their nature may have in a market

the economy is so diverse that the attempt to form their even closer

the definition could mean such conceptual limitations, which has

all conceivable forms of this crime. The complexity of life

the company excludes the ability to objectively (in laws) formulated

rights affect your enumerations, and definitions of all the variability in its

manifestations. Therefore, in this context, the foreground job into just

the courts in the interpretation of this concept and its application to the individual

cases.



The appellant considers the concept of "provision of goods of general interest ' for the relic

"the old regime" and his statist tendencies, because it is not in the law

directly connected with the activities of a public entity "defined exactly

agents '. A public official is not criminal law omitted.

If he is this activity, it is an aggravating circumstance according to § 160

paragraph. 3 of the criminal code. In fact, in this respect, our

the present adaptation different from editing the European Union countries. German criminal

the law for example. in § 331 paragraph. 1 defines the entity receiving or

requesting a bribe as "the bearer of the official functions, or person bound

specific obligations towards the public administration ".



Also in the Czech Republic has a special responsibilities and obligations to the public

the Administration undoubtedly not only a public official, but also the one who on the basis of

the contract with the city assumes the task of catering to the interests of the municipalities in the management of the

the things, which the village belongs to. That fact is in our criminal law

represented just the words "in connection with the Affairs of the General

interest ". In the interest of the village was then barely a promise to raise the rent, arrange

When the municipality treats to increase overall.



It should be added that the appellant does not request the cancellation of penalties for bribery

in the criminal code at all, but only the abolition of one specific

the provision, arguing that it should be replaced with more descriptive wording.

Due to the design, and thus formulovanému to what has already been stated,

The Constitutional Court considered the consequences of the abolition of the provision in the criminal

the Act. When it came to the conclusion that the abolition of only the second paragraph of section

160 of the criminal code would not have solved the problem formulation and interpretation of the concept of

"the Affairs of general interest", since the other provisions would in

the criminal code remains intact. By law, only dropped one

the facts of the offence of receiving a bribe, which would in practice

has led to a paradoxical situation, because it would have been criminal offences where

someone accepts or promise a bribe, but it would not be punishable if it

someone asked for a bribe. It is therefore common ground that the provisions of § 160 of paragraph 1. 2

the criminal code could not break away from the context of the provision of section 160 of the criminal

of the Act and to repeal this provision only.



The Constitutional Court also dealt with the question whether the contested provisions of the criminal

the law is in conflict with the fundamental rights of and with art. 6 of the European

Convention for the protection of human rights and fundamental freedoms, as it claims

the appellant. He came to the conclusion that the diction of the contested provision is not in the

contrary to the article. 8 (2). 1 and 2, with art. 26 paragraph 2. 1, with the article. even with article 39. 36

Of the Charter, since the rights laid down herein does not violate or in any way

It does not limit. Although it must be admitted that the incorrect application of the

the provisions of the general courts could lead to violations of those rights,

However, such a situation should be addressed on a case by case basis. It Moreover,

generally applies to the decision-making activity of courts at all. Therefore, you cannot make

the wording of the legal text placeholder problem for cases of possible

the erroneous qualification and interpretation of its provisions or another court,

for the text of the law must be formulated so for good reasons

in order to hit all the possible variations of the crime.



Another issue in this case is whether the procedure of the general courts in the

implementation and evaluation of evidence, the legal assessment of the acts

the appellant, in the application of the contested provisions and has led to the violation of

fundamental rights of the appellants, as stated in the constitutional complaint. This

the question to the Constitutional Court in this proceeding on the proposal to repeal section 160 paragraph.

2 of the criminal code, since this will be the subject of a constitutional

the appellant's complaint.



In conclusion, it can be summarised that based on the facts, the Constitutional Court

did not find a contradiction to § 160 paragraph. 2 of the Criminal Code No. 140/1961

Coll. with the Constitution, constitutional laws or international treaties under article.

10 of the Constitution, and therefore, the application for annulment of the contested provisions.



The President of the Constitutional Court:



in the z.. Haboob in r.



Vice Chairman