Found at the Constitutional Court of the Czech Republic No. 101 / 1994 Coll.

The application for annulment of the provisions of Section 67 (b) of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, is rejected.

The applicant lodged a constitutional complaint against the order of the Regional Court in Ústí nad Labem of 4.11.1993 sp. zn. 1 To 664 / 93 in conjunction with the resolution of the Regional Court in Chomutov of 9.10.1993 sp. zn. NT 2068 / 93 together with the proposal to repeal the provisions of Article 67 (b) of Act No 141 / 1961 Coll., as amended, with the grounds for the fact that it was brought into custody under that provision, considering that the provision is contrary to Article 5 (1) (c) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '), as amended by Protocols 3, 5 and 8 (No 209 / 1992 Coll.), as it does not consider that the Convention as a reason for the waiver of personal concern that the defendant will be a witness or otherwise of action against the criminal proceedings. Otherwise, it would have to expressly admit that reason. He also stated that one of the preconditions for deprivation of liberty under the Convention is its purpose, which is to be brought before the competent judicial authority and not to prevent the influencing of witnesses.

Since the constitutional complaint met the conditions of § 78 (1) of Act No. 182 / 1993 Coll., the Chamber of the Constitutional Court, by order of 25.1.1994 sp. zn. II of the ÚS 138 / 93, suspended and delivered a motion to Parliament to express itself in writing as a party to the proceedings within 30 days (§ 69 of Act No. 182 / 1993 Coll.).

The Chamber of Deputies of Parliament, in its observations of 1 March 1994 signed by its President, PhDr. Milan Udem, stated that according to the Czech Code of Criminal Procedure (hereinafter referred to as "Tr.Z. '), the basic condition of the detention is that the person concerned be already charged (§ 68 tr.tim), i.e. that he is" sufficiently justified by the conclusion that he has committed the offence' (§ 163 (1). The reasons for the link set out in Section 67 (3) above apply in addition and cannot be applied without that basic condition. It further stated that Article 5 (1) (c) of the Convention has a different design, where the link is justified even if there is a "reasonable suspicion of a criminal offence '. This condition corresponds to § 68 (3) in conjunction with § 163 (1) (3). The other two reasons for binding are given alternatively and not cumulatively (in relation to that condition as in our section). As a precondition for collusion in accordance with Article 67 (1) of the Code. (b) the third subparagraph is always a reasonable suspicion that the person concerned has committed a crime, the collusion link according to our third subparagraph is already the first of the alternatives referred to in Article 5 (1) (c) of the Convention. This legal consideration was also followed by Parliament when it discussed the last amendment to the third amendment. The amendment therefore made extensive adjustments, but the link remained unchanged. At this stage, Parliament considers that the provisions of Paragraph 67 (b) (3) are in line with the Constitution, our legal order, including the international treaties by which we are bound. Finally, the Chamber of Deputies stated that it was up to the Constitutional Court to assess whether the provision referred to was in accordance with our legal order and to give a decision.

The Constitutional Court examined the appellant's proposal, the observations of the Chamber of Deputies of Parliament, as well as the relevant provisions of Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), as amended, the Convention and the Protocols to this Convention, and after having chosen as an interpretative method the meaning of regulation, it concluded that the proposal to repeal the provisions of Paragraph 67 (1) of the Rules of Procedure. (b) the third subparagraph of Article 5 (1) (c) is not justified as the Convention provides as a starting condition for arrest or other deprivation of liberty to take place under the law. This condition is met by our legislation, namely in Section 68 in conjunction with Section 160 (3) and Section 67 (3) (Article 68 (3)), that only the person who has been charged may be taken into custody; Article 160 (3) provides that such a person is the person for whom it is sufficiently justified to conclude that he has committed the offence, and Article 67 (3) provides that the reasons for the detention, including collusion, are set out in (b)]. Another condition under the Convention, which is decisive, is that it be a person who is reasonably suspected of committing a crime. This condition is also fully met in the provision of Section 68 (3), where it is expressly stated that only the person who has been charged may be taken into custody, the person who, according to the provision of Section 160 (3), is precisely the one for whom the conclusion that he has committed the offence is sufficiently justified. Although it is conceivable under the Convention that Article 5 (1) (c) provides for a reasonable suspicion not only of the commission of a criminal offence which is the subject of proceedings, but also of any other action already taken by the Czechoslovak Troika, referred to by Law No 119 / 1873, as amended, in force until 1950, he stated in Paragraph 175 (3), "when looking at witnesses, experts or other persons involved in the matter, in order to prevent the finding of the truth, or when otherwise seeking to hinder criminal proceedings by obstructing or concealing criminal offences, or when special circumstances justify the concern that he would do so." (b) a binding commitment already to the specific facts justifying the concern of collusion, in which it fully corresponds to the provision of Paragraph 175 (3) (3) (c) of Law No 119 / 1873 (z), as amended, where these facts were designated as special circumstances. The emphasis set out in Paragraph 67 (3) of the Convention on the fact that it must already be a specific fact sets out, in its substance and function, the reason for the link to the same plane as expressed in the Convention by the words "having given an opinion '[Article 5 (1) (c)]. Finally, as regards the last condition contained in Article 5 (1) (c) of the Convention, which is to be brought before the competent judicial authority, it must be pointed out that paragraph 3 of the same provision (Article 5 of the Convention), with which paragraph 1 (c) constitutes one whole and from which the words" bringing before another official person empowered by law to exercise judicial powers' state that it is not only a matter of bringing before a court, but of acts or "synergy 'of its kind, which saves not only the right to personal freedom but also aims at creating conditions for the purpose of criminal proceedings. Nor can it be inferred in this regard that the provisions of Paragraph 67 (b) (3) (c) of the Convention, when, pursuant to Paragraph 67 (b) (3) of the Convention, there may be a link with a person not only reasonably suspected of committing a crime, but also one for which specific facts justify the concern that he will be acting on witnesses or co-accused or otherwise obstructing the clarification of the facts relevant to criminal prosecution, since, by taking into custody of such a person, the actions or" synergy "of his kind are currently being carried out, which makes it possible to speed up the investigation and to punish the offender on one hand while saving the right to personal freedom on the other hand. It is not the exercise of the right to personal freedom when someone affects witnesses or co-defendants, or when they act in collusion.

In conclusion, the Convention, in Article 5 (1) (c), provides for the possibility of further delineation of the substance of the pleas in law, the condition being that this must be done on the basis of the principle of a reasonable suspicion of the commission of a criminal offence or of the acts already mentioned (see Section 175 (3), cited by Law 119 / 1873). The collusion referred to in Paragraph 67 (b) (3) also adequately protects the fundamental right to the freedom of the accused, because its reason is not only a reasonable suspicion of the commission of a criminal offence, but also a reasonable suspicion of another activity which is obstructing criminal prosecution (so-called collusion proceedings), as is the case for hiding or avoiding criminal proceedings [§ 67 (a) (3)]. In addition, this double cross-compliance of the detention is further reinforced by the rules contained in Section 72 (3), which states that the accused must be released immediately if the grounds for detention are absent, and that the duration of the detention grounds must be kept under constant review by the law enforcement authorities. In this context, the Constitutional Court considers that the regulation of collusion pursuant to Paragraph 67 (b) (3) of the Convention does not contradict Article 5 (1) (c) of the Convention and therefore the proposal was rejected.

The rights to attach a different opinion with their name on the decision pursuant to § 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, were used by the following judges: JUDr. Pavel Holländer and JUDr. Vlastimil Ševčík.