The Constitutional Court found No 186 / 1997 Coll.
The Constitutional Court's finding of 4 June 1997 on the application for annulment of the provisions of § 14 paragraph 1 (d), (e) of the Act of the Czech National Council No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by the Act of the Czech National Council No. 26 / 1993 Coll.
Valid
The Constitutional Tribunal found
186
FIND
The Constitutional Court
On behalf of the Czech Republic
On 2 July 1997, the Constitutional Court decided on a proposal by the Criminal Chamber of the Supreme Court of the Czech Republic to repeal the provisions of § 14 paragraph 1 (d), (e) of the Act of the Czech National Council No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by the Act of the Czech National Council No. 26 / 1993 Coll., amending and supplementing certain laws in the field of internal order and security, and on measures related thereto,
as follows:
On 1 July 1998, the provisions of § 14 paragraph 1 (d), (e) of the Act of the Czech National Council No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by the Act of the Czech National Council No. 26 / 1993 Coll., amending and supplementing certain laws in the field of internal order and security, and on measures related thereto are deleted.
Reasons
On 24 January 1997 the Constitutional Court reached a proposal by the Criminal Chamber of the Supreme Court of the Czech Republic to abolish the provisions of § 14 paragraph 1 (d), (e) of the Act of the Czech National Council No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by the Act of the Czech National Council No. 26 / 1993 Coll., amending and supplementing certain laws in the field of internal order and security, and on measures related thereto (hereinafter "Act No. 283 / 1991 Coll."). The application was lodged after the Supreme Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 224 (5) per analogiam of Law No 141 / 1961 Coll., on criminal proceedings (criminal rules), as amended, suspended criminal proceedings, namely proceedings concerning the complaint of defendant J. M. against the order of the Supreme Court in Olomouc of 22 October 1996 sp. zn. 3.
Original draft Chamber The Supreme Court relied on the requirement of active legitimacy within the meaning of Article 64 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as "Act No. 182 / 1993 Coll. ', by analogy with the provisions of § 224 (5) (3). If the Constitutional Court had examined only such a proposal, in the context of the procedure under Sections 42 (1) and 43 of Act 182 / 1993 Coll., the Constitutional Court would have to reach the following and generally valid conclusions.
Paragraph 224 (5) defines the legal conditions for the suspension of criminal prosecution in the event of a breach of the constitutional rights guaranteed by that court in accordance with a law which it considers to be unconstitutional by a further procedural procedure or by a decision on guilt and punishment before a general court. If these conditions are not met, if only the facts are given to those in Section 224 (5) (3), which is similar (analogous), i.e. when a general court in the proceedings finds an alleged non-constitutional law which would therefore have to be repealed but which does not at the same time make it conditional on its procedural procedure in the criminal case or on its decision on guilt and punishment in such a case, the prosecution in question cannot be delayed by the suspension, by analogy in accordance with Section 224 (5) (3), in order to remedy the general court's presumption of inconstitutionality. Other legal instruments are known to do so. Although it would appear at first sight that the analogy is pursuing the right objective, namely to remedy the alleged inconstitutionality, and that it is already admissible for that reason, it is not the case, since, in its consequences, the suspension of the criminal prosecution pursuant to § 224 (5) (3) (a) per analogiam would constitute a delay in proceedings which would not be justified by the direct need to prevent a non-constitutional decision of the General Court.
However, the risk of rejection of the original proposal by reason of the inadmissible analogy § 224 (5) (a) and consequently by reason of § 43 (1) (d) of Law No 182 / 1993 Coll. was excluded by the appellant by supplementing the original proposal. It is clear from this addition, as stated below, that the removal of the proposed provision of Paragraph 14 (1) (d), (e) of Law No 283 / 1991 Coll. made the procedure of the Supreme Court conditional on the procedure as a complaint court, so that the requirement of Paragraph 224 (5) (f) was fulfilled and the applicant's active legitimacy no longer constituted a lack of the original proposal.
In its application, filed pursuant to § 64 (4) of Act No 182 / 1993 Coll., the President of the competent Senate of the Supreme Court stated that on 15 November 1996 the Supreme Court in Olomouc submitted a complaint to the Supreme Court of the defendant J. M., no., in custody, against the order appointed by the Supreme Court of 22 October 1996 sp. zn. Ntv 30 / 96. The defendant's custody of the defendant was extended by the contested order until 31 January 1997, as the Supreme Court found the existence of detention grounds in accordance with § 67 (a), (b), (c) (3) of the Court of First Instance in the case of the defendant.
The defendant pointed out in his complaint in particular that his detention did not take place until 24 October 1994, as stated in the resolution of the Supreme Court, but in fact already on 23 October 1994. From the file of the Regional Court in Brno sp. zn. 10 T 56 / 96 The Supreme Court found that the defendant had been detained under the detention protocol within the meaning of Section 76 (3) as a person suspected at 17.30 on 24 October 1994, following the prior consent of the competent prosecutor. Consequently, the judge of the Municipal Court in Brno decided to take the defendant into custody by order of 25 October 1994, sp. zn. 7 NT 1907 / 94. The arrest of the defendant shall be counted from 24 October 1994 at 17.30. It is also apparent from that protocol on the detention of the suspect that the detention was preceded by the detention of J. M. under § 14 (1) (e) of Act No 283 / 1991 Coll., which took place on 23 October 1994 at 17.30 pm.
In this context, the appellant points out that the provisions of Paragraph 14 (1) (d), (e) of Law No 283 / 1991 Coll. do not follow their nature of the orderly purpose of the security, but as a result pursue the same purpose as defined in Section 76 (3), namely the detention of a person suspected of committing a criminal offence [Paragraph 14 (1) (e)] or the detention of a person caught in an offence [Paragraph 14 (1) (d)]. In the appellant's view, it is necessary to assess the restriction of personal liberty in the case of the application of Paragraph 14 (1) (d), (e) of Law No 283 / 1991 Coll. in a level of criminal procedure rather than in a level of order.
It is clear from Article 8 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter") that only the provisions of Section 76 (3) of the Charter are in conformity with that provision, but no longer the provisions of Section 14 (1) (d), (e) of Act No 283 / 1991 Coll. They no longer have the nature of collateral in the sense of order-keeping measures, but in essence they pursue the same purpose as the provisions of Section 76 (3).
As the appellant points out, further retention on the dualism of this legislation may lead and lead in practice to a double approach in detention. One is the procedure under Section 76 (3), which is in accordance with the Charter, and the other is the procedure under Section 14 (1) (d), (e) of Act No. 283 / 1991 Coll., which, however, as a result of the separate calculation of the time limits under Act No. 283 / 1991 Coll. and the time limits referred to in Section 76 (3), results in their census and thus in a breach of the 24-hour period laid down for retention in Article 8 (3) of the Charter.
The identity of the two provisions cited by Law No 283 / 1991 Coll. and the Code of Criminal Procedure in cases where the conditions for the detention of a suspect under Paragraph 76 (3) (d) are given, does not apply that provision and instead choose the collateral under Paragraph 14 (1) (d), (e) of Act No 283 / 1991 Coll. The provision referred to in the last provision does not affect the calculation of the time limits applicable to the assessment of the timeliness of the application submitted for the removal of the person detained in custody pursuant to § 76 (4), § 77 (1) (3) or the timeliness of the application submitted for the extension of the duration of the detention period pursuant to § 71 (6) (3) (a).
The current provision of collateral pursuant to § 14 (1) (d), (e) of Law No 283 / 1991 Coll. raises doubts, according to the appellant, as it allows circumvention of § 76 (3) (d), thereby violating Article 8 (3) of the Charter. The adjustment made by the provisions of Section 76 (3) is sufficient. For this conclusion, the finding of the Constitutional Court of 28 November 1996 sp. zn. IV. ÚS 246 / 96, in which the Constitutional Court took the view that if a person suspected of committing a criminal offence were to be secured, the 24-hour period under Article 14 (3) of Law No 283 / 1991 was to be added to the 24-hour period for detention under the criminal order.
For all the above reasons, it is therefore proposed to repeal the provisions of Paragraph 14 (1) (d), (e) of Act No. 283 / 1991 Coll.
The appellant supplemented its original proposal within the meaning of § 63 of Act No. 182 / 1993 Coll., as well as § 95 (1) of Act No. 99 / 1963 Coll., by its submission to the Constitutional Court on 11 March 1997. In it he stated the following:
The legal requirement for a decision to extend the term of custody pursuant to Paragraph 71 (3) is that the application for such a decision has been served by the competent President of the Chamber (Attorney General) to the Supreme Court no later than 15 days before the end of the relevant period of the term of detention. If the proposal is not submitted in this manner (or within this period), the President of the Chamber and in the preparatory proceedings, the Prosecutor must, pursuant to Rule 71 (6) (3), release the defendant of his freedom no later than the day following the expiry of the period for which the duration of the detention was limited.
In the present case, the President of the Chamber of the Regional Court in Brno delivered an application to the Supreme Court in Olomouc to extend the detention of the defendant on 9 October 1996. In the narrow grammatical interpretation of Paragraph 71 (8) (a), on which the decision published under No 10 / 1995 by the Reports of Judgments and Opinions on Criminal Matters is based, J. M. 's detention as a suspect under Paragraph 76 (3) (a), which took place on 24 October 1994 but no longer covered by Article 14 (1) (e) of Act No 283 / 1991 (b), which took place earlier. In such a case, the two-year period for his detention would end on 24 October 1996 and the proposal by the President of the Chamber of the Regional Court of Brno to extend it would therefore be submitted in due time pursuant to § 71 (6) (3). The Supreme Court, as a complaint court, would therefore have to examine, from the aspects referred to in Paragraph 147 (1) (3) above, the justification for the extension of the defendant's custody.
However, such a procedure would be contrary to Article 8 (3) of the Charter according to which the detainee must be released or surrendered to a court within 24 hours at the latest.
On the other hand, if, by the detention period and therefore by the duration of the detention period, the period during which the defendant was secured under Paragraph 14 (1) (e) of Act No 283 / 1991 Coll., that proposal for extension of the detention period would also be delayed. The defendant would therefore have to be released to freedom, in accordance with § 71 (6) (3) (d), which is already cited, without examining the grounds for his binding, or the conditions of § 71 (3) (d) for its extension.
Constitutional (Article 8 (3) In the appellant's view, the second of the suggested procedures, which is at the same time contrary to the provisions of Paragraph 71 (8) (3), is in the view of the appellant, according to which only detention is included and therefore contrario is not collateral. However, this legal provision is not an unconstitutional provision, which correctly includes another (previous) procedural institute of detention in the purely procedural institution of custody, but an amendment to Act No. 283 / 1991 Coll., implemented by the Act of the Czech National Council No. 26 / 1993 Coll., moving in § 14 (1) (d), (e) of the Order Institute of Security to the Criminal Procedure.
The Supreme Court, as the supreme member of the system of general courts, is bound by law under Article 95 of the Constitution, as opposed to the Constitutional Court. If it is concluded that the law which is to be applied in the resolution of the case is contrary to the constitutional law, it cannot apply this constitutional law directly, but will bring the matter before the Constitutional Court. For the reasons set out above, the criminal case of J. M. is therefore brought before the Constitutional Court with a motion to abolish the provisions of § 14 (1) (d), (e) of Act No. 283 / 1991 Coll., since its consistent respect and application, i.e. in the context of § 71 (8) (3), would otherwise lead to an unconstitutional decision by the Supreme Court.
In written observations on the draft Senate of the Supreme Court, submitted on 2 April 1997 by the President of the Chamber of Deputies of the Parliament of the Czech Republic within the meaning of Section 69 of Act No. 182 / 1993 Coll., it was noted that the detention pursuant to Paragraph 76 (3) (d) and (e) of the Act No. 283 / 1991 Coll. are two legal institutes which only partially agree. A person suspected of committing a criminal offence may be detained only by an investigator in urgent cases, in accordance with Paragraph 76 (1) (a), even if he has not yet been informed of the charge, if one of the grounds for detention is given. The prior consent of the prosecutor is required to be detained. Without such consent, detention may be carried out only if the case cannot be delayed and consent cannot be obtained in advance, in particular if a person has been caught in an offence or has been caught on the run.
The statement also states that the detention of a person who has been caught committing a crime or on the basis of criminally documented information is suspected of preparing, attempting or committing a crime, can only be carried out by a policeman under the provisions of § 14 (1) (d) and (e) of Law No 283 / 1991 Coll. under the provisions of § 14 (1) (d).
The Chamber of Deputies respects the view of the Constitutional Court contained in the decision of 28 November 1996, sp. zn. IV. ÚS 246 / 96, according to which, if a person suspected of committing a crime is secured, the 24-hour period under Paragraph 14 (3) of Law No 283 / 1991 is to be added to the 24-hour period for detention under the criminal order. Where law enforcement authorities do not proceed in this way, such practice may be considered unconstitutional. However, it is not possible to derive the unconstitutionality of the provisions of § 14 (1) (d) and (e) of Law 283 / 1991 Coll.
Act of the Czech National Council No. 26 / 1993 Coll., amending and supplementing certain laws in the field of internal order and security, and on measures related thereto, was approved by the necessary majority of Members of the Czech National Council on 21 December 1992, signed by the relevant constitutional officials and duly declared.
In that regard, as the party to the proceedings points out, it must be stated that the legislature acted in the belief that the law adopted complies with the Constitution and our legal order. It is up to the Constitutional Court to examine the constitutionality of the Act and to give the relevant decision in connection with the application submitted to the Senate of the Supreme Court of the Czech Republic for annulment of the provisions of § 14 (1) (d) and (e) of Act No. 283 / 1991 Coll..
The fundamental condition of the application for annulment of the law or its individual provisions is to establish whether it has been adopted and issued in a constitutionally prescribed manner, as required by the Constitutional Court § 68 (2) of Act No 182 / 1993 Coll. To this end, the Constitutional Court requested a report from the Chamber of Deputies from the meeting of the Czech National Council, at which the amendment to Act No. 283 / 1991 Coll., i.e. the Act of the Czech National Council No. 26 / 1993 Coll., was discussed and adopted. Of the total number of Members of the Czech National Council, which, within the meaning of Article 103 (1) of the Constitutional Act of the National Assembly No. 143 / 1968 Coll., on the Czechoslovak Federation, 200 Members, 106 Members participated in the discussion of the amendment in question on 21 December 1992. 96 Members have spoken in favour of the amendment, with 10 against it. The proposal was therefore adopted in accordance with Article 24 of the Act of the Czech National Council No. 35 / 1989 Coll., on the Rules of Procedure of the Czech National Council, as amended on 31 December 1992.
In proceedings for the repeal of laws or their individual provisions, the Constitutional Court shall examine the content of those acts in the light of their compliance with the constitutional laws and international treaties referred to in Article 10 of the Constitution. In this respect, the Constitutional Court focused primarily on the genesis and substance of the draft contested provisions § 14 (1) (d), (e) of Law No 283 / 1991 Coll.
The draft contested provisions of Law No 283 / 1991 Coll. reads:
Security
(1) The officer is hereby authorised to provide the person who:
(a) directly endangers the life or health or health of other persons or property by acting;
(b) attempt to escape the demonstration provided for in paragraphs 8 and 13;
(c) in the police department, he verbally insults another person or officer or intentionally pollutes or harms equipment or police property;
(d) have been caught committing a crime;
(e) on the basis of criminally identifiable information, it is suspected of preparing, attempting or committing a crime.
(2) If the reasons for the detention are omitted, the officer must release the person immediately.
(3) Security may take no more than 24 hours from the time of restrictions on personal freedom. '
The paper evidence collected so far by the Constitutional Court on the matter should first be based on the explanatory report to the Czech National Council Act No. 26 / 1993 Coll. In the context of Paragraph 14 (1) (d), (e), it merely notes that the draft amendment to this provision only literally takes over the provisions contained in Sections 16 (1) (c) and (f) of Act No 333 / 1991 Coll., on the Federal Police College and the Castle Police Corps ("Act No 333 / 1991 Coll. '). Nor on the basis of a short-letter report on the discussion of the Government Bill of the Czech National Council No. 26 / 1993 Coll. The Constitutional Court has not made any further observations which would explain otherwise the very precise reasoning in recital 7 of the proposal concerning Paragraph 14 (1) (d), (e).
As regards the explanatory memorandum to Act No. 333 / 1991 Coll., whose government proposal was discussed as the House Press under No. 701 in the VI. parliamentary term of the Federal Assembly of the Czech and Slovak Federal Republic, it also does not contain any information which would explain the reasons for the adoption and subsequent adoption of the incriminated provisions. This is because the classification of Article 16 (1) of the Government's draft law did not include (c) and (f) at all. Under point (c), it was stated:... "a person who was caught committing an offence, if there is a reasonable concern that the person will continue or thwart proper clarification of the matter." Point (f) of the preamble to this provision, as amended by the Government's proposal, is completely lacking. However, contrary to the proposed wording of the provision cited, it is necessary to base the reasoning report in question. As regards Paragraph 16, the latter generally states: "A person can be provided by a police officer when the conditions laid down by law are fulfilled. This institute must be distinguished from the detention and arrest institute under the criminal code... '.
The difference between the originally proposed text of Paragraph 16 (1) of Act No 333 / 1991 Coll. and the dictation which was finally adopted and on which the proposal of the contested amendment, i.e. the Czech National Council Act No. 26 / 1993 Coll., should explain the narrowly written record of the discussion of the draft Act No. 333 / 1991 Coll., or the draft of the committees of defence and security on the resolution of the House of People and the House of Nations to the House Press No. 701, to which the results of the discussion of the government proposal of this law were taken by the constitutional committees of the two chambers. The joint proposal of the Committees, of its paragraph 20, states that point (c) should be inserted after point (b), which reads: "(c) has been caught committing a crime." In his speech to Press No. 701, the Joint Rapporteur of the House of People's Committees did not mention paragraph 20 of the motion for a resolution and included it among the others, which he commented as a simple addition or clarification of the original paragraph of the Government Bill. The text of paragraph (c) appears to have been drawn up gradually in the debate of Members, when one of them initially recommended, in Paragraph 16 (1) (c) of the Government's proposal, that the word 'offence' or 'offence' be inserted after the word 'offence'. The amendment did not further justify the extension of the police force. As regards point (f), which was also to be added completely beyond the original government proposal, the joint proposal of the committees appointed does not mention it. However, it is noted from the short-term report on the discussion of this bill in the Federal Assembly that, during the debate of Members, a supplementary motion has been tabled to Paragraph 16 (1), namely the following text:... "I propose to add paragraph (e) - on the basis of verifiable information, it is suspected of preparing, attempting or committing a crime." It also lacks further justification for the supplement cited. The same amendment was subsequently made more precise on the recommendation of the appellant and the rapporteurs, as is apparent from the overall discussion and adoption of the other amendments, by adding the word 'criminalistically', so that the latability is clear and does not offer the possibility of abuse. The act under discussion was then adopted as a whole in the text of the Government proposal as well as in the joint draft committees and in the text of the approved amendments.
In order to establish the facts of the case, namely as regards the substance and circumstances of the practical application of the draft contested provisions of Act No. 283 / 1991 Coll., the Constitutional Court requested a "Report on the joint conduct of the Commission set up by the Police President and an advisory body composed of representatives of the Police of the Czech Republic '(hereinafter referred to as the" Report'), which was also devoted to the issue of the protection of persons under § 14 (1) (d), (e) of Law No. 283 / 1991 Coll.
In its own Report it is noted above all that the finding of the Constitutional Court No. 23 / 1997 Coll. of 28 November 1996 (sp. zn. IV. ÚS 246 / 96) has made a breakthrough into the established practice of the Police of the Czech Republic, prosecutors and courts in deciding on collateral pursuant to § 14 (1) (d), (e) of Act No. 283 / 1991 Coll. and on detention pursuant to § 76 (1) (a). Within the 24-hour period of limitation of personal freedom (detention) pursuant to Article 76 (1) (3) of the Act, the 24-hour period, which was often preceded by that institution, was not included, even if the reason and purpose are the same. Now counting.
According to the cited finding in the case of the detention of a person suspected of committing a crime, the 24-hour period pursuant to Article 14 (3) of Law No 283 / 1991 Coll. should be added to the 24-hour period for detention under § 75, § 76 (3), since the opposite approach to the relationship of collateral under § 14 (1) (d), (e) of Law No 283 / 1991 Coll. and detention under § 75, § 76 (3), as is still common in proceedings before general courts, is, in the view of the Constitutional Court, contrary to Article 8 (3) of the Charter.
Following that, an order of a general nature (hereinafter referred to as "the order ') No 1 / 1997 of the Attorney General orders the prosecutors and police authorities to include within the 24-hour period for detention under the criminal rules the period during which the person was secured pursuant to § 14 (1) (d), (e) of Act No 283 / 1991 Coll. The report cited at this point states that the order is contrary to the law in force, which is the basis for the following arguments.
There is no doubt that personal freedom is guaranteed (Article 8 (1) of the Charter). Article 8 (2) The Charter then declares that no one can be deprived of liberty except for the reasons and in a manner laid down by law. There are two laws, which are part of the legal order of the Czech Republic, of the same legal force, but which have different purposes, i.e. to limit personal freedom.
The first is the Code of Criminal Procedure, the purpose of which is to regulate the procedure of law enforcement authorities so that the offences are properly detected and their perpetrators punished fairly.
The second is Act No. 283 / 1991 Coll., whose purpose is to regulate the rights and obligations of the Police of the Czech Republic in the performance of the tasks provided for by this Act.
Therefore, the report states that Article 8 (2) The Charter is a general mandate for power legislative to adopt a legal rule restricting personal freedom. The same authorisation is then enshrined in Article 7 (1) of the Charter, even more generally than in Article 8 (2). As far as Article 8 (3) of the Charter is concerned, there is a power of attorney for the lawful regulation of the restriction of the personal freedom of a person in a particular position, i.e. a person suspected or accused of committing a crime. This is the case in the criminal code, namely the provisions of Sections 75 and 76. In this context, emphasis should be placed on the detention institute used. It is an institute, underlines a report which only knows the criminal order. Only the specifically mentioned entities may restrict the freedom of another, in the cases provided for here. In the case of Sections 75 and 76 (1) (3), he is an investigator. Paragraph 2 of the last provision provides for the possibility of restricting the personal freedom of a person to anyone when such a person has been caught in a criminal activity or immediately thereafter, if necessary to establish his identity, to avoid escape or to secure evidence. The term "anyone" may be interpreted as being a police officer. From this point of view, the reasons for restricting personal freedom are indeed identical both in the provisions of § 76 (2) (a) and § 14 (1) (d) of Act No 283 / 1991 Coll. However, the identity of the reasons cannot be seen in Article 14 (1) (e) of the Act cited. The last mentioned legal provision affects those cases where, on the basis of criminally documented information, some suspicion has arisen that a person has committed a crime. Such a person is requested by the police within the meaning of the provisions of Section 12 of Act No. 283 / 1991 Coll. for clarification. At the same time, there will be a need to verify certain data provided by the suspected person or to verify other facts (by criminal methods), or to bring the matter to a stage where such a person can be transferred to the investigator to communicate the accusation. The Institute of Security serves for such acts. The restriction of personal freedom under this institute is legal.
The report also admits that Paragraph 14 (1) (d) of Law No 283 / 1991 Coll. is superfluous. For the reasons set out above, the provisions of Paragraph 76 (2) (3) can be applied in such cases. However, as regards Article 14 (1) (e) of Act No 283 / 1991 Coll., that provision is justified and does not conflict with the Constitution, including the Charter.
The report also gives an opinion on the finding of the Constitutional Court No 23 / 1997 Coll. It understands it as a decision in a particular case, which makes it not generally binding. The report notes that Article 8 (2), (3) of the Charter, which is the basis on which the finding is based, is reflected in Sections 75 and 76. In another law, i.e. Act No. 283 / 1991 Coll., there is also a provision which derives from the Charter and which gives the legal possibility of limiting personal freedom. This provision is in accordance with Article 7 (1) of the Charter, as stated in the explanatory memorandum to Section 14 of Act No. 283 / 1991 Coll. According to the opinion of the Report, the Senate of the Constitutional Court is likely not to take these facts into account when justifying its finding. Paragraph 14 (1) (a) to (e) of Act No 283 / 1991 Coll. is effective and it is necessary to continue to follow that provision.
The fact that the duration of the collateral is not taken into account is specifically referred to by two acts mentioned in the report.
First of all, the explanatory memorandum to Act No. 283 / 1991 Coll. on § 14 states: "A person can only be provided by a police officer in cases of taxa. This institute shall not be confused with the detention and arrest institute under the criminal rules and, therefore, time limits may not be combined if a person is detained or arrested during the period of detention. This interpretation corresponds to Article 7 (1) of the Charter... '.
In addition to this problem, the Collection of Judicial Decisions and Opinions in Criminal Matters, 1995, 3, p. 114, Judicate No. 10 / 1995: "If the personal freedom of the suspect has been restricted by his detention under § 14 of Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by other regulations, the period of such detention cannot be counted against the time of detention of the accused in accordance with the relevant provisions of the criminal Code. The 24-hour period within which, pursuant to Paragraph 77 (1) (a) of the Rules of Procedure of the Public Prosecutor is required to refer the person detained to the court for the application for custody shall begin only when the defendant has been detained pursuant to Section 76 (1) (a) of the Rules of Procedure. '
At the end of the Report on this issue, it is recommended that the Ministry of Justice re-evaluate, in the light of the above, order No 1 / 97, which, in its present form, clearly does not respect the issue of incompatibility of the time limits resulting from the freezing institute pursuant to § 14 (1) (d) and (e) of Law No 283 / 1991 Coll. and the detention institute pursuant to § 76 (1) (3).
As regards the term "criminalistically identifiable information" used in § 14 (1) (e) of Act No. 283 / 1991 Coll., according to the interpretation of the Home Presidium of the Ministry of Interior, this includes: the use of operationally identifiable means and operational techniques within the meaning of § 34 (1) and § 35 of Act No. 283 / 1991 Coll. and their continuous evaluation, identification of persons, examination of the crime scene (including the processing of comprehensive documentation), examination of the location of the body, inspection and autopsy, examination (objects, documents as well as well as non-crime scene), conduct and evaluation of ballistic, toxicological expertise, lustrations in police records, reconnaissance (persons and items), investigation of alibi, co-operation with police forces of foreign states, etc.
On 4 June 1997 the Constitutional Court, on the initiative of the sender himself, took the position of the Ministry of Interior on the proposal of the Senate of the Supreme Court in the present case. This opinion is considered by the Constitutional Court to be another piece of documentary evidence as it is neither an opinion within the meaning of § 42 (2) of Act No. 182 / 1993 Coll., as indicated, nor a statement within the meaning of § 69 of the Act cited, since the Ministry of the Interior is neither a participant nor an intervener in the matter (§ 28 of the Act).
The First Deputy Minister of the Interior, in the said material, disagrees with the opinion of the Senate of the Supreme Court. First of all, it is emphasised that the detention of a suspect in the preparation, trial or commission of a criminal offence or persons caught in the commission of a criminal offence may be carried out by a police officer completely separately, in the terms of § 14 (1) (d), (e) of Act No. 283 / 1991 Coll. On the other hand, the detention of a criminal suspect may only be carried out by an investigator within the meaning of Paragraph 76 (1) (3). The two legal institutes therefore only partially agree. The possible abolition of the contested provisions of Law No 283 / 1991 Coll. would, among other things, lead in practice to the conclusion that a police officer suspected of committing a crime could only be detained, only at the direction of the investigator and only where grounds of detention are given. This would then lead to a considerable difficulty in the investigation in its consequences. In the view of the Ministry of the Interior, the partial identical regulation of the restrictions on personal freedom in the Code of Criminal Procedure and in Act No. 283 / 1991 Coll. allows for the addition of the 24-hour periods given in both laws, which may be contrary to Article 8 (3) of the Charter, but does not in itself justify the conclusion of the inconstitutionality of the contested provisions of Act No. 283 / 1991 Coll. If the Constitutional Court were to comply with the application and Article 14 (1) (d), (e) of Law No 283 / 1991 Coll. repealed, it will be necessary, says the Ministry of the Interior, to establish an appropriate period for the effectiveness of the finding in order to prepare appropriate legislation to allow police authorities to detain a suspect in cases other than those covered by Section 76 (1) (a). A period of one year shall be deemed appropriate. Finally, the Constitutional Court is taken into account to consider the general adequacy of the time limit laid down in Article 8 (3) of the Charter in the context of the present case.
In the view of the Constitutional Court, the answer to the fundamental question from which the further resolution of the case depends should be sought. This question is the scope of Article 8 (3) of the Charter as compared to the scope and reality of § 14 (1) (d), (e) of Act No. 283 / 1991 Coll., or the problem of the continuation of the ordinary legal regulation to the regulation of the constitutional law represented by the quoted article of the Charter. In other words, it is a question of whether the ordinary law envisaged by the Charter does not deviate from the legal sector subject to its regulation outside the framework indicated by the constitutional legislation. In that context, it should be added that the Charter is designed as an immediately valid source of law, where rights in the Charter contained can be invoked directly on the basis of the wording of its provisions. An exception to this principle is only a provision of Article 41 (1) of the Charter which limits the immediate application of the Charter to certain social rights by making it conditional on the application of those rights by means of implementing legislation. It follows from that and contrario that the fundamental right contained in Article 8 (3) of the Charter does not fall under the legal regime of Article 41 (1) of the Charter. It can therefore be invoked directly on the basis of the wording of Article 8 (3) of the Charter, with any laws which, if they affect that right, are more likely to exceed the limits laid down in the Charter, in the present case Article 8 (3).
Within the meaning of Article 8 (3) The documents of the accused or suspected criminal offence may be detained only in cases provided for in the law. The detainee shall be immediately informed of the grounds for detention, heard and, at the latest within 24 hours, released or surrendered to the court. The judge must interview the detained person within 24 hours of taking over and decide whether to arrest him or release him or her.
The Charter used the terms "accused," "suspected criminal offence" and "detention" undoubtedly suggest that more detailed legislation on restrictions on the personal freedom of persons in the indicated procedural position falls within the legal sector's procedural law. This is evidenced by the provisions of § 75 and § 76 (3), when the first of them refers to the detention of the defendant by the investigator, the second to the detention of a person who has not yet been indicted (§ 160 (1) (3)), i.e. the suspect also by the investigator, or anyone under the conditions laid down in particular in § 76 (2) (3).
In order to respect the time limit for detention, as expressly provided for in Article 8 (3) of the Charter, it must be laid down as exclusive only by the law of criminal procedure, i.e. the Code of Criminal Procedure. Only then can it be guaranteed not to exceed the specified time limit. However, Paragraph 14 (1) (d) and (e) of Act No 283 / 1991 Coll. formally created another "space 'for the restriction of personal freedom, not the accused, but persons suspected or suspected of committing a criminal offence or suspected on the basis of criminally identifiable information from the preparation, trial or commission of a criminal offence. On this point, the provision of Law No 283 / 1991 Coll. thus excluded from the constitutional legal framework which, as a subsequent legal regulation, should respect and which defines Articles 8 (3) and 41 (1) (per argument and contrario) of the Charter. Law No 283 / 1991 Coll. is not the source of criminal law as a procedural order, but as a form of administrative law or" police law. "As such, it is not for that law to relegate material other than the right police. If the contested provisions of § 14 (1) (d), (e) of Act No. 283 / 1991 Coll., are so, and are evidenced by the contested provisions, it is a constitutional non-conformal rule, although legally technically permissible, since the provision cited is an indirect amendment to the criminal order.
The fact that Article 14 (1) (d), (e) of Law No 283 / 1991 Coll. contravenes Article 8 (3) of the Charter is also documented by the fact that the procedure for the limitation of personal freedom under the last provision referred to presupposes that the reasons for the detention of the detainee should not be omitted if the person detainees are to be surrendered to the court. By contrast, Article 14 (2) of Act No 283 / 1991 Coll. (per argument and contrario) does not result in such a relationship towards jurisdiction, even if the collateral under the contested legal provision is essentially a detention within the meaning of Article 8 (3) of the Charter.
In that context, the objection that the withdrawal of the proposed provision of Paragraph 14 (1) (d), (e) of Law No 283 / 1991 Coll. is a provision which, without being abolished because of its inconstitutionality, can be interpreted and applied in a constitutional manner. The Constitutional Court, in its finding sp. zn. Pl. ÚS 48 / 95, then stated: "In a situation where a provision of legislation allows for two different interpretations, one of which is in accordance with the constitutional laws and international treaties provided for in Article 10 of the Constitution of the Czech Republic and the other is in conflict with them, there is no reason to repeal that provision. In its application, it is for the courts to interpret the provision in a constitutional manner. '
The Constitutional Court considers that the quoted judicate is unquestionable if the very nature of the contested legal provision does not conflict with the Constitution (as was the case in the present case) and if it is merely an interpretation of such provision and its subsequent application. Illustrated also in criminal procedural provisions, the example of paragraphs 75 and 76 of the Rules of Procedure, which are in themselves consistent with the Constitution, can be given. These provisions can be applied both constitutionally and unconstitutionally. In the latter case, the investigator first uses § 76 (1) and then § 75. Such interpretation and application would certainly not justify the annulment of Section 76 (3).
However, if the draft legal provision, which by its content, departs by its substance from the constitutional legal framework, as it was introduced from above in respect of Paragraph 14 (1) (d), (e) of Act No. 283 / 1991 Coll., and which can be interpreted and applied both in a constitutional and non-conformal manner, then there is no choice but to repeal the provision. Only then can its unconstitutional use be excluded in practice. To rely on the fact that it is interpreted and applied only within the framework of the Constitution, when interpretation and application are offered for purpose, which is as a result non-constitutional, is to resign from the function of the Constitutional Court as a judicial authority for the protection of constitutionality (Article 83 of the Constitution).
As already stated, the Chamber of Deputies of the Parliament of the Czech Republic considers that even from the partially identical arrangements of collateral under Act No. 283 / 1991 Coll. and detention under the Code of Criminal Procedure, it is not possible to derive the inconstitutionality of § 14 paragraph 1 (d), (e) of Act No. 283 / 1991 Coll. On the other hand, in the view of the Constitutional Court, this, even if only partially overlapping of the two rules, is the reason for the inconstitutionality of the regulation in Act No 283 / 1991 Coll., as it means an overlap outside the scope of Article 8 (3) of the Charter.
The fact that the contested provision of Act No. 283 / 1991 Coll. deviates from the constitutional framework of Article 8 (3) of the Charter also testifies to the explanatory note to the Act which was subsequently adopted under Act No. 333 / 1991 Coll. Although the original classification of Paragraph 16 (1) (c), (f) of the Government's proposal did not contain the wording of Article 14 (1) (d), (e), it was already emphasised at that time that the police security institute should be distinguished from the detention and arrest under the criminal rules. If the Act of the Czech National Council No. 26 / 1993 Coll. extended the scope of Paragraph 14 (1) of Act No. 283 / 1991 Coll. essentially on the Criminal Procedure Institute, this meant nothing more than an overlap from the regulation given in § 76 (3), conformal to Article 8 (3) of the Charter, to the regulation of administrative law which, as a result, was out of reach of Article 8 (3) of the Charter. It should be recalled that when discussing the original classification of Article 16 of Law No 333 / 1991 Coll. in the Federal Assembly, i.e. in July 1991, and in particular the draft amendment (i.e. Act No. 26 / 1993 Coll.) in December 1992, the aspect of constitutionality or inconstitutionality was not followed at all, although at that time Constitutional Act No. 23 / 1991 Coll. (8 February 1991), which introduced the Charter, i.e. Article 8 (3) thereof, was already in force.
The fact remains, and the Constitutional Court is aware, that the period of limitation of personal freedom referred to in the cited article of the Charter, in particular the one which obliges other than judicial authorities, is of absolute short duration (especially as compared to the legislation of some other countries where it does not normally fall below two days). While, on the one hand, it protects a person's personal freedom against disproportionate restrictions, on the other hand, it restricts the right of the detained suspect to defend himself by a lawyer within the meaning of § 76 (3), (6), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (3), (4), (4), (5), (5), (5) and (5), (5), (5), (5), (5), (5), (5), (5), (5), (5), (5) and (5), (5), (5), (5), (5), (5), (5), (5), At the same time, it is out of the question that the 24-hour period is insufficient in that context for proper documentation of the criminal case to be able to prosecute, if it is to detain a suspect. It is clear, however, that it is not within the power of the Constitutional Court to address this fundamental problem, as that is the task of the legislator alone.
The report also admits that the reasons for the limitation of personal freedom under Article 76 (2) (a) and Article 14 (1) (d) of Law No 283 / 1991 Coll. are identical and that the last provision cited is therefore superfluous. In other words, it is also confirmed that Article 14 (1) (d) of Law No 283 / 1991 Coll. is removed from the scope of Article 8 (3) of the Charter. However, if the report considers that such an agreement is not at the level of § 76 (2) (a) and § 14 (1) (e) of Act No 283 / 1991 Coll., this view cannot be accepted. In the opinion of the Constitutional Court, there is a point of contact between the two legal provisions in that a suspect of a crime can be detained within the meaning of § 76 (2) (3) (a) at most immediately after the offence has been committed (for the fulfilment of another condition), whereas according to § 14 (1) (e) of Law No 283 / 1991 Coll. this can be done at any time thereafter, not only immediately. Any objection, which has to some extent also been made in the Ministry of the Interior's material, that the arrest of the suspect, but not in the act or after that, falls within the scope of Paragraph 76 (1) (3) and that, therefore, the comparison of the provision cited by Law No 283 / 1991 with § 76 (2) (3) (a) is not appropriate. The point is that it makes sense, first of all, when the restrictions on personal freedom under the Code of Criminal Procedure and Act No. 283 / 1991 Coll., if a police officer can do so under both laws as one and the same person, since, at this point, double legislation creates an area for non-constitutional procedure through the last law, within the meaning of Section 76 (1) (3) (d), it is not possible, because only a police investigator is a legitimate entity here, and not just a police officer. On the other hand, however, it is possible that the procedure of the investigator pursuant to Article 76 (1) (3) of the Act No. 283 / 1991 Coll.
The report also suggests an argument justifying, in its view, the constitutionality of Paragraph 14 (1) (d), (e) of Act No 283 / 1991 Coll. It follows that Articles 7 (1) and 8 (2) of the Charter are invoked. At this point, it should be recalled that the police detention of a person caught committing a crime or suspected of having previously committed a preparation, trial or completed offence is, in essence, a procedural institution of criminal law. As such, it falls under Article 8 (3) of the Charter, namely under special provisions, which take precedence over Article 7 (1) of the Charter. If Law No 283 / 1991 Coll. has nominally removed them from the scope of this special provision and thus established its inconstitutionality, as the Constitutional Court considers, its constitutionality cannot be "caught up" by referring to Article 7 (1) of the Charter. In fact, the same applies in relation to Article 8 (2) of the Charter, to how much the report understands them as a constitutional basis by proposing the contested provision of Act No 283 / 1991 Coll.
In addition to the conflict of the contested provision § 14 (1) (d), (e) of Law No. 283 / 1991 Coll. with Article 8 (3) of the Charter, the Constitutional Court examined, as required by Article 68 (2) of Act No. 182 / 1993 Coll., also possible non-compliance with other constitutional laws, or Constitution, as well as international treaties within the meaning of Article 10 of the Constitution.
From this point of view, he focused his attention primarily on Article 1 of the Constitution. Legal certainty related to the requirement of stability of law and the legality of legal formation is a prerequisite for the rule of law referred to in the provision cited. The need for legal certainty is, among other things, clarity (certainty) of legal standards. As already stated by the Constitutional Court in its finding in sp. zn Pl. ÚS 9 / 95, the indeterminity of one of the provisions of the law must be regarded as contradictory with the requirement of legal certainty and hence the rule of law (Article 1 of the Constitution), only if the intensity of that uncertainty excludes the possibility of determining the normative content of that provision even by means of standard interpretative procedures. The distinction offered in particular by § 14 (1) (d) of Act No. 283 / 1991 Coll., is so general and uncertain that even with its extensive interpretation, it is not possible to reach clear limits on the application of this provision. The term "caught in the commission of a criminal offence 'may, without further detailed conditions, cover a relatively wide range of situations, thereby creating a relatively wide margin for the use of this provision by a police officer, and thus the same legal uncertainty as to the addressees of this legal standard, i.e. persons covered in the context. The same conclusion can be reached if the interpretation, or even literal, were to be used, which, in conjunction with the term" committing a crime, "also implies a certain indeterminity of the contested provision, namely the very same and relatively difficult to define framework for its use. It can therefore be concluded that the proposed contested provision is also contrary to Article 1 of the Constitution within the meaning of point (d) thereof.
As regards the Charter, in addition to Article 8 (3), the Constitutional Court sees the inconstitutionality of the contested provisions of Law No 283 / 1991 Coll. in their collision with Article 4 (4) of the Charter. Paragraph 2 of that provision allows the limits of fundamental rights and freedoms to be regulated only by law under the conditions laid down in the Charter. In the spirit of paragraph 4 of that Article, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. Such restrictions shall not be misused for purposes other than those for which they have been established. However, if the provisions of Paragraph 14 (1) (d), (e) of Law No 283 / 1991 Coll. constitute a restriction (s) on personal liberty, then the provision of such restrictions in the cited law, in addition to the relevant provisions of the Code of Criminal Procedure (§ 75, § 76), allows for their possible abuse to an extent beyond the scope of Article 8 (3) of the Charter, i.e. misuse for purposes other than those for which it should and may have been correctly established in Law No 283 / 1991. This is about the fact that, in terms of its purpose, the law can only pursue the objectives of the police, not the criminal procedure.
The Convention on the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 3, 5 and 8, published under No 209 / 1992 Coll. (hereinafter referred to as "the Convention '), as well as Protocols No 9, 10 and 11, permits in its Article 5 (1) (c) the lawful other deprivation of liberty of a person to be brought before the competent judicial authority for a reasonable suspicion of the commission of a criminal offence. For the purposes of paragraph 3 of that provision, anyone who is otherwise deprived of liberty in accordance with the provisions of paragraph 1 (a) shall also be deprived of liberty. (c) this Article shall be brought immediately before a judge or other official person empowered by law to exercise jurisdiction and shall have the right to be tried within a reasonable period of time or to be dismissed during the proceedings.
It appears to fall under the provision cited and is in conformity with Article 76 (3), since it envisages a procedural procedure in the form of the exercise of judicial authority following the detention itself (cf. paragraph 4). The same applies to the provisions of Article 75 (3) of the Treaty.
On the other hand, the contested provisions of Law No 283 / 1991 Coll. do not provide for such a relationship (see § 14 (2) per argument and contrario), as a result of which they are out of the scope of the Convention. That fact therefore confirms that Article 14 (1) (d), (e) of Law No 283 / 1991 Coll. is contrary to Article 5 (1) (c) and (3) of the Convention.
The relevant case law of the Strasbourg instances also testifies to the need for judicial control of the security carried out, if the nature of the criminal procedural detention is such as to result from Article 5 (1) (c) and (3) of the Convention. For example, Ireland c / a United Kingdom (1978, Ser. A, No 25, § 196) The Court of First Instance found in its decision that Article 5 (1) (c) allows a person to be deprived of his freedom for the sole purpose of being brought before the competent judicial authority. In the decision of the Court of First Instance in case De Wilde et al. c / a Belgium (1971, Ser. A, No 12, § 71), it is considered that, pursuant to Article 5 (1) (c), a person may be arrested and held in detention only for the purpose of being brought before the competent judicial authority. This opinion of the Court of First Instance is still valid and has been expressed in other decisions (Engel et al. c / a Holland, 1976, Ser. A, No 22, § 58, De Jong et al. c / a Holland, 1984, Ser. A, No 77, § 44 etc).
The International Covenant on Civil and Political Rights, issued under No 120 / 1976 Coll., hereinafter referred to as "the Covenant," in Article 9 (3), provides that anyone who is detained on a criminal offence charge must be brought immediately before a judge or other official who is legally empowered to exercise judicial authority and has the right to criminal proceedings within a reasonable period of time or to be released. In so doing, the term "criminal charges' may not be understood only in the technical sense, i.e. in accordance with national criminal law (§ 160 (1), § 75 (3)). Including, for example, suspicion of crime.
Like the Convention, the Pact also requires the above-mentioned session between detention (detention) and subsequent judicial powers, which are linked in § 14 (1) (d), (e), (2) of Law No 283 / 1991 Coll. missing. The contested provision is therefore also contrary to Article 9 (3) of the Pact.
In the light of the results of the legal analysis carried out in Part III, the Constitutional Court considers that the provisions of Article 14 (1) (d), (e) of Law No 283 / 1991 Coll. should be repealed pursuant to Article 70 (1) of Law No 182 / 1993 Coll. for its contradiction with Article 1 of the Constitution, Article 4 (4) and Article 8 (3) of the Charter, Article 5 (1) (c) and Article 5 (3) of the Convention and Article 9 (3) of the Pact.
In view of the obvious need for a legislative solution to the question of detention of the suspect consistently in the Code of Criminal Procedure, as well as in a constitutional manner, the date of enforceability of the finding on 1 July 1998 is also postponed under Paragraph 70 (1) of Act No 182 / 1993 Coll..
President of the Constitutional Court:
JUDr. Kessler v. r.
The right to give a different opinion on the finding in the report on the hearing and its connection to the decision, stating its name under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, was used by the judges JUDr. Vladimir Klokot and JUDr. Vladimir Paul. The same right was exercised by Judge JUDr. Pavel Holländer as regards the grounds for the finding.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 186 / 1997 Coll., on the application for annulment of the provision § 14 paragraph 1 (d), (e) of the Czech National Council Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended by the Czech National Council Act No. 26 / 1993 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 21.08.1997 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0