The Constitutional Court found No 201 / 2016 Coll.
The Constitutional Court's finding of 19 April 2016 sp. zn.
Valid
The Constitutional Tribunal found
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22.06.2016
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201
FIND
The Constitutional Court
On behalf of the Republic
On 19 April 2016, the Constitutional Court decided, under sp. zn.
as follows:
The application for annulment of Article 15 (3) second sentence and Article 5 of Decree of the Ministry of Justice No 23 / 1994 Coll., on the Rules of Procedure of the Prosecutor's Office, on the establishment of branches of certain prosecutors and on the details of the acts carried out by legal candidates, as amended, is rejected.
Reasons
Recital of the proposal
1. In its submission to the Constitutional Court on 26 March 2014, a group of Members of the Chamber of Deputies (hereinafter referred to as "the appellants') proposed to the Constitutional Court the annulment of the provisions of § 15 (3), second sentence, and paragraph 5 of Decree of the Ministry of Justice No. 23 / 1994 Coll., on the Rules of Procedure of the Prosecutor, on the establishment of branches of certain prosecutors and details of the acts carried out by the legal practitioner, as amended (hereinafter referred to as" the Rules of Procedure ').
2. The appellants are no longer fully satisfied with the procedure as was created by the last form of the contested provisions through the amendment of Decree No. 4 / 2014 Coll., amending Decree No. 23 / 1994 Coll., on the Rules of Procedure of the Public Prosecutor, the establishment of branches of certain public prosecutors and details of the acts carried out by the legal candidates, as amended, ("Amendment No. 4 / 2014 Coll. '). This amendment was signed by the Minister of Justice on 2 January 2014 in a government which the Chamber of Deputies did not express confidence and which gave its resignation. Mgr. Marie Benešová, as Minister of Departure and without trust, had no legitimacy to change the jurisdiction of the Prosecutor's Office. In parliamentary democracy, a government that has no parliamentary trust is to focus only on the normal and necessary maintenance of the state. Changes in the jurisdiction of law enforcement authorities with an impact on the constitutional right of persons to a legal judge do not fall within the normal and immediate administration.
3. Furthermore, the appellants object to Article 2 (3) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution '), according to which state power serves all citizens and can only be exercised in cases, within the limits and methods laid down by the law, and to Article 2 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter'), according to which state power can only be exercised in cases and within the limits laid down by the law, in the manner laid down by the law. The state body is also the Public Prosecutor's Office. This has extensive rights in pre-trial criminal proceedings, when it oversees the activities of a police authority, but it can also investigate certain offences itself. It is logical that preparatory criminal proceedings, as an element of the State's overseers' activities, must be governed by the principle of legality, which is currently contained in the provisions of the Constitution and the Charter. The principle of legality also applies to the fact that any state body, but only the body responsible for the law, cannot be active in the overseer's activities, from the point of view of establishing both substantive and local jurisdiction. In the present case, therefore, the requirement that the jurisdiction of a public authority be given by law is infringed.
4. According to the appellants, the contested regulation is equally contradictory to Article 79 (1) of the Constitution, according to which the ministries and other administrative bodies may be established and their scope laid down only by law, and to Article 80 (2) of the Constitution according to which the status and competence of the Prosecutor's Office shall be determined by law. The appellants take the view that the condition of legality enshrined in these provisions does not only apply to the determination of the competence of the public prosecutor as a whole, but also to its individual offices (s) in the form of their jurisdiction. If the Constitution leaves a provision to the ordinary law, it is the legislature's duty to make such a provision in substance and it cannot be left to the substatutory rules if the Constitution itself does not allow any further transfer to those rules.
5. Furthermore, the appellants point out that if the Constitution states in its Article 79 (3) that the ministries, other administrative authorities and authorities of the Territorial Authority may, under and within the limits of the law, legislate, if they are empowered to do so by law, then the statutory statutory provisions thus enacted, and hence those issued under the empowerment provision in § 40 (2) of Act No 283 / 1993 Coll., on the Prosecutor's Office, as amended, cannot allow further tertiary standards. The contested provisions, however, contradict this ban on tertiary standards, as they allow the jurisdiction of the supervisory public prosecutor to be established by a simple codecision between the Attorney General and the Attorney General. It is not only that, as explained above, the requirement that the jurisdiction of a public authority be given by law is violated in the present case, but even that jurisdiction is not set at all by a legislative act. The jurisdiction otherwise granted under the general rules can be changed by tertiary standard formation - by individual decision - by de facto co-decision of the Attorney General and the Attorney General. At the same time, there are no clear limits to this decision - it depends on the discretion of the two prosecutors concerned and there is room for libel.
6. According to the appellants, Article 38 (1) of the Charter was not respected, according to which no one may be removed from his legal judge and the jurisdiction of the court and the judge shall be governed by the law. The Court of First Instance for preliminary proceedings shall be the District Court, according to the seat of the Prosecutor's Office, which submitted a proposal to the Court. In the event of a change in the prosecutor's office in the preparatory criminal proceedings, it is constitutionally doubtful that the jurisdiction of the court for decision-making in the preparatory proceedings, such as detention, wiretaps, etc. The legal judge is the criminal judge of the District Court, who operates in the District of the Supervisory Prosecutor, and the rule of law assumes that the Supervisory Prosecutor will be from the Prosecutor's Office in whose district the offence has occurred. By changing the state's overseer's office, the custody judge will also change, which already has a constitutional dimension. Moreover, the current situation in which prosecutors may cause a change in the jurisdiction of the court also creates an inequality of "weapons," because the defense does not have such an option.
7. Finally, the appellants refer to some of the media-famous cases, such as Senator Jiří Chunk or former MEP MUDr. David Rath, when the problems of the provisions appear obvious to them.
8. The appellants consider that other parts of the Rules of Procedure are also in doubt, but on the ground that they have decided to challenge only the most problematic clause, they propose that the Constitutional Court annul its provisions in the second sentence of Paragraph 15 (3) and (5) on the date of the declaration of the finding in the Collection of Laws. At the same time, they asked that, given the importance of the principle of impossibility to be removed from their legal judge, their proposal should be considered as a matter of priority.
Observation by the party and amici curiae
(a) Statement by the Ministry of Justice
9. The Ministry of Justice has pointed out that the Rules of Procedure as such are supported by legal authority in the Law on the Prosecutor's Office pursuant to § 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court. As regards the question of the legitimacy of the Minister of Justice, Marie Benešová, at that time a member of the Government who had not obtained the trust of the Chamber of Deputies referred to the finding of the Constitutional Court of 9 February 2010 sp. zn.
10. Furthermore, the Ministry of Justice stated that the appellants failed to see the specific position of the Prosecutor, to which the Constitution confers a key task in Article 80, which is to represent a public action. In this respect, it should be stressed that the exercise of a public action is not a decision on (fundamental) rights of persons. The activities of the Prosecutor's Office are then within a sufficiently specific legal framework, as defined in Article 80 of the Constitution, the Law on the Prosecutor's Office, Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, and the Rules of Procedure. If the provision of Paragraph 40 of the Public Prosecutor's Act explicitly allows for the regulation of the Rules of Procedure, including the regulation (not only of the local jurisdiction of the individual prosecutors, this clearly does not break the principle of the exercise of public authority within the limits and in the manner laid down by the law.
11. Allegations that the contested provisions give systemic scope for libel may also be rejected, as any decision by the Prosecutor's Office is always governed by a number of principles and principles arising from the criminal law, the Law on the Prosecutor's Office (see, for example, its § 2 (2) provisions) or other laws. From the point of view of the formal reasoning of the proposal, it can be pointed out at this point that, in the constitutionally well-interpreted legal order, it is impossible for the legislation to include an authorisation to apply libido. The Court of First Instance's lib case-law refers to individual excesses in which the law is not respected, in which the determining authority, by its reasoning, completely detaches itself from the factual or legal situation. In interpreting the Constitution and the Charter relied on by the appellants, sublegislating would in principle not be possible.
12. The Constitutional Court has also stated that constitutional order does not guarantee the right to a "legal prosecutor" (Resolution of 27.11.2012 sp. zn. IV. ÚS 3627 / 12, available at http: / / nalus.ujud.cz). In principle, it is also possible to imagine a situation where the system of prosecutors does not partially or entirely copy the system of (criminal) courts, or where the prosecutors as a monocratic and centralised body will not be subdivided internally horizontally or vertically, that is, the question of local or material jurisdiction and the "legal prosecutor" will completely fail, as there will be only one prosecutors, always responsible. Not the Public Prosecutor's Office, but only the courts have a constitutionally protected position (even in the individual legal judge). It is also necessary to refer to the order of the Constitutional Court in which objections against the construction of the local jurisdiction of the Prosecutor's Office were rejected, although the Constitutional Court had sufficient space to comment on the issue (e.g. Resolution of 23.10.2012 sp. zn. I. ÚS 3807 / 12, 22.11.2012 sp. zn. I. ÚS 3569 / 12, 13.11.2012 sp. zn. I. ÚS 3906 / 12, 26.11.2012 sp. zn. I. ÚS 3556 / 12 and 19.2.2013 sp. zn. II. ÚS 4717 / 12; available at http: / / nalus.udou.cz). The interested party therefore considers that the issue of local jurisdiction of the public prosecutor in the preparatory procedure can generally be regulated by a substatutory law, or that for this issue the reservation of law cannot be imposed, even in an objective manner (neither the position nor the competence of the public prosecutor within the meaning of Article 80 of the Constitution), nor in the light of the reservation in relation to the limits of subjective fundamental rights, since the question of local jurisdiction of the public prosecutor is not at all eligible to intervene (in the absence of a constitutionally guaranteed right to a "legal public prosecutor ').
13. As regards the alleged contravention of Article 79 (1) of the Constitution, the Ministry of Justice stated that it did not agree to the subordination of the Public Prosecutor under the term "Administrative Office" within the meaning of that Article. On the contrary, it follows from the scheme that the Public Prosecutor's Office (Article 80) exists alongside ministries and other administrative offices (Article 79), i.e. not as their subcategories, even in the light of the fact that the constitutional task entrusted to it, namely the representation of a public action, does not conflict with the activities of administrative authorities. In this way it can also be pointed out that the judgment of the Supreme Administrative Court of 4 October 2011, sp. zn. 2 As 93 / 2011, according to which the principal task of the Prosecutor's Office "is to represent the State in public proceedings. It can be seen from the constitutional establishment of the Public Prosecutor's Office that it is not an administrative office within the meaning of Article 79 of the Constitution, but that it is a specific state authority of executive authority which is in a specific relationship of subordination to the Ministry of Justice '. The Constitutional Court also stated, in the decision sp. zn. Pl. ÚS 17 / 10 of 28.6.2011 (N 123 / 61 SbNU 767; 232 / 2011 Coll.), that the Prosecutor's Office is not part of the jurisdiction, but" is not a direct administration' (paragraph 39). With regard to the alleged contradiction with Article 80 (2) of the Constitution, it can be pointed out once again that the Constitution establishes a public prosecutor as a whole, as a single body, the individual components which are individually referred to as "the" public prosecutor, "in the context of the Public Prosecutor's Act, are not preceded by the provision cited.
14. With regard to Article 79 (3) of the Constitution, this provision confers powers on ministries and other administrative authorities to legislate, but may only be implemented on the basis and within the limits of the law if they are empowered by law. That provision should be interpreted strictly in the sense that this authorisation must be specific, unambiguous and clear [cf. the finding of 21 June 2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If that is the case, the Constitutional Court examines whether the statutory law was passed by a state body authorised to do so and within the limits of its competence, that is to say, whether, in the exercise of that competence, the state body was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem). The legislator's clear will to regulate must be more detailed than the law provides for. However, even in such a case, the substatutory legislation may not interfere with matters reserved for regulation only by law (so-called reservation of the law) [cf. the finding of 18 August 2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.), the finding of 22 October 2013 sp. zn. Pl. ÚS 19 / 13 (N 178 / 71 SbNU 105; 396 / 2013 Sb.)].
15. The party to the proceedings does not agree with the claim that it followed ultra vires if it issued an order (in the contested measure). Paragraph 40 (1) (a) of the Public Prosecutor's Act clearly imposes an authority on the legislator within the scope of the Decree, which lays down the Rules of Procedure of the Public Prosecutor. In highlighting the constitutional concept of a public prosecutor as a whole, relations between the various components of the public prosecutor (which are not constitutionally prescribed) can undoubtedly be regarded as a material eligible for regulation at the level of the Rules of Procedure. It is difficult to imagine a rational procedure by the legislature, which would expressly empower the Ministry, for example, to establish a public prosecutor with exclusive competence (cf. § 40 (2) of the Public Prosecutor's Act), without allowing for any provision of a decree (rules of procedure) of a material or local jurisdiction of such a public prosecutor (in preparatory proceedings), thereby denying the "exclusivity" of such a public prosecutor. It may also be rejected that the contested provisions are contrary to the prohibition of tertiary standards, since the decisions made on their basis are certainly not normative acts, but individual decisions which are conceptually the application of the standard in a particular case, rather than the creation of a new standard.
16. As regards the alleged contradiction with Article 38 of the Charter, the Ministry of Justice considers that these objections are ultra petitum, as they are not directed against the provisions of the Decree, but against the construction of Paragraph 26 of the Code of Criminal Procedure.
17. On the individual cases referred to by the appellant, the Ministry of Justice does not wish to express any doubts as to whether the contested provisions were applied at all, in particular in the case of the second sentence of Paragraph 15 (3) of the Rules of Procedure, where this can be ruled out in terms of time.
18. The Ministry of Justice, referring to the order of the Constitutional Court sp. zn. In this context, it pointed out the Government's proposal for the Prosecutor's Office Act and the Government's proposal to amend some of the laws relating to the adoption of the Prosecutor's Office Act, submitted to the Chamber of Deputies in 2013 (VI. Election, Prints No. 1054 and 1055), and it stated that although these were withdrawn by the Government (Government Resolution of 24 July 2013 No 555), these draft laws are currently being recast and can be believed to have been re-submitted in 2014, "leading to the resolution of the situation '.
19. Finally, the Ministry of Justice proposed to reject the proposal.
(b) provision of further observations
20. The Ombudsman announced to the Constitutional Court that she did not exercise her right of access to the proceedings pursuant to Article 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 404 / 2012 Coll.
21. The Constitutional Court also called, for the purposes of Article 48 (2) of the Law on the Constitutional Court, for the opinion of the Supreme Court in Olomouc, the Supreme Prosecutor's Office in Olomouc, the Supreme Court in Prague, the Supreme Court in Prague, the Supreme Court, the Supreme Prosecutor's Office and the Czech Bar Association.
(c) observations by the Supreme Court in Olomouc
22. The Supreme Court in Olomouc stated that it held a long-term position that the regulation of the jurisdiction of the Prosecutor's Office should be included in the Criminal Procedure Act (Criminal Code), and believes that this issue will become part of the debate on the upcoming recdification of the Criminal Code. Otherwise, he did not make more use of the possibilities of responding to the appellants' arguments and only briefly stated that no decision-making activity related to the contested provisions had been recorded within the framework of the Regime of its criminal section.
d) Statement by the High Prosecutor in Olomouc
23. The High Prosecutor's Office in Olomouc first recalled that the jurisdiction of the Supreme Prosecutor to supervise the maintenance of lawfulness in the most serious cases of economic crime but also in the type of other serious cases of corruption was introduced by Decree No. 311 / 2000 Coll., amending Decree No. 23 / 1994 Coll., on the Rules of Procedure of the Prosecutor, the establishment of branches of certain prosecutors and details of the operations carried out by the legal practitioner, as amended by Decree No. 265 / 1997 Coll. and Decree No. 218 / 1998 Coll., since 5.10.2000. Practical problems of penalising these types of crime have shown the need for a higher degree of centralisation and specialisation of prosecutors, which could be achieved precisely by the establishment of specialised trade unions in senior prosecutors. The original concept of jurisdiction of the Attorney General's Office only envisaged the so-called obligation to delegate certain criminal matters which formally fulfilled the conditions of the obligation of the Attorney General's office, but were not material cases of extremely serious, legal or factual complexity, to lower prosecutors. This concept of competence of the Attorney General's Office to supervise the maintenance of legality in the preparatory procedure has remained unchanged to date at substantial points, but has been gradually modified in response to practical knowledge and application problems.
24. A more significant change in the concept of jurisdiction of the Attorney General's Office was brought by Decree No. 88 / 2005 Coll., amending Decree No. 23 / 1994 Coll., on the Rules of Procedure of the Prosecutor's Office, the establishment of branches of certain public prosecutors and details of the actions carried out by the legal candidates, as amended, ("Amendment No. 88 / 2005 Coll.") with effect from 28.2.2005. In addition to the so-called obligation jurisdiction of the Supreme Prosecutor's Office (§ 15 (1) and (2)), the so-called optional jurisdiction was introduced. It was newly allowed to decide on the jurisdiction of the Attorney General to supervise the maintenance of lawfulness in preparatory proceedings, even in cases of so-called bank crime or criminal activity committed to the detriment of a State which did not comply with the damage limit laid down in paragraphs 15 (1) (a) to (c) of the Rules of Procedure where the seriousness, legal or factual complexity of the case so required. Such an attraction was (and has so far) required the prior approval of the Attorney General. The decision shall be given in the form of a resolution.
25. The reason for Amendment No 88 / 2005 Coll. was that a number of extremely serious or complex (legally or in fact) cases were below the damage limit, so that they could not be dealt with by specialised prosecutors in the public prosecutors' offices, although they were cases which, in terms of modem operandi, sophisticated and complex implementation or other aspects, were entirely comparable to those which fulfilled the conditions of the obligation jurisdiction. These cases were, for example, cases of some "failed campaigns," credit fraud or pyramid fraud - so-called "aircraft" etc., but also cases where the criminal offence is not a "cause of harm" but a sign of "benefit," or the calculation of the damage is relatively low (below the threshold laid down in Section 15 of the Rules of Procedure), but are very large and complex cases (typically cases of handling public contracts in the volume of hundreds of millions or billions of CZK, etc.).
26. Another group of cases which required the introduction of so-called optional jurisdiction were criminal cases which were excluded from the joint proceedings initially conducted by the Attorney General's Office for one of the offences referred to in Paragraph 15 (1) of the Rules of Procedure, while, following the exclusion from the joint proceedings, the action excluded no longer fulfilled the conditions of the obligation of the Attorney General's jurisdiction, and thus the matter had to be referred to the lower State Prosecutor, even if otherwise a substantive or subjective link with the original criminal case was established. In particular, there were cases of the exclusion of one of the accused for a separate trial for an act which did not fall within the jurisdiction of the Attorney General's Office but was materially linked to a criminal case originally brought together, or of one of several jointly negotiated and factually closely related acts for a separate trial. Last but not least, it was also a case where it was only after the prosecution had been brought, or after the prosecution had begun, that further action or criminal liability of other persons, but for whom the conditions of jurisdiction of the Attorney General's Office for Supervision had not been imposed. This led to situations where, after a longer period of criminal proceedings, a new prosecutor of the lower prosecutors had to familiarise himself with part of the case after its exclusion, who not only did not have knowledge of the original case and the evidence situation, but did not even have an overview of the evolution of the original criminal case from which the new criminal case was excluded. The introduction of so-called optional jurisdiction was therefore a logical and natural development and response to practical problems arising from certain "pull-out" of the type-defined part of the criminal cases from the "ordinary" jurisdiction of the prosecutors, since the original regulation was very brief and the effects associated with this "pull-out" were very poorly addressed.
27. The same problem was also raised in cases of legalisation of the proceeds of crime or participation, where the so-called source crime was one of the offences referred to in Article 15 (1) of the Rules of Procedure. However, its solution came only to Amendment 4 / 2014 Coll. It is only the second amendment to Section 15 of the Rules of Procedure in more than 13 years from the introduction of the jurisdiction of the Attorney General to supervise the maintenance of legality in preparatory proceedings, which has been significantly modified by the original concept of jurisdiction of the Attorney General. In this case, too, this was an amendment adopted after the application practice and problems had been analysed for a long time, and therefore it is a natural development and an "evolutionary" modification of the concept of the material competence of the Attorney General.
28. Amendment 4 / 2014 Coll. brought two major changes. The first constitutes an extension of the so-called "obligation jurisdiction 'to certain offences related to the legalisation of proceeds from crime, if the so-called source offence is one of the offences referred to in Article 15 (1) of the Rules of Procedure. The introduction of optional jurisdiction by Amendment No 88 / 2005 Coll. did not solve the problems with such criminal activity, as the conditions of attraction of a case with so-called optional competence (now Section 15 (5) of the Rules of Procedure) generally did not fall on these cases; for such offences, it was possible in fact either to conduct joint proceedings with the so-called source criminal offence (but this in practice brought many problems, including the extension of criminal proceedings due to the need to carry out evidence in excess of the need for a so-called source criminal offence), or to pass on the knowledge for supervision to the lower public prosecutor, which, however, did not have knowledge of the so-called source case, which was often crucial for the success of criminal proceedings.
29. The second amendment is the sentence of Paragraph 15 (3) of the second Rules of Procedure, which allows for the attraction of a case in which, after its exclusion from the joint proceedings of the Attorney General's Office, there is no jurisdiction under Paragraph 15 (1) or (2) of the Rules of Procedure. This change is nothing new either, and it is just a clarification of earlier procedures, or the elimination of certain application problems. In some cases, the provision on the so-called optional jurisdiction introduced by Amendment No 88 / 2005 Coll. could not be applied, and the criminal case had to be referred to the lower public prosecutor after its exclusion from the joint proceedings for further supervision, with all the negative consequences already described above. This concerned in particular cases where the legal feature of the offence was not the cause of the damage (Paragraph 15 (4), now paragraph 5 of the Rules of Procedure on "optional jurisdiction 'in both alternatives, and therefore, in the case of offences which are not caused by damage, its application is not considered or would be problematic), but where there is a close link in substance with the original criminal case (and the related issue of the application of the same heading of evidence, the need to coordinate criminal proceedings, or the need to ensure that criminal proceedings are carried out in the original case and in cases excluded), and the need to ensure the exercise of supervision of the same prosecutions was an essential condition for the purpose of criminal proceedings, and many in both criminal matters (i.e. in the original case also excluded). Typically, there were mainly cases of corruption or cases of significant corruption (in particular cases of manipulation of public contracts, as well as cases of evasion of information from criminal files, illegal influence of criminal proceedings, etc.) and cases related to the legalisation of criminal proceeds. This created a situation where, following the exclusion of a case from the joint proceedings, it was possible to decide on the so-called attraction of a case under Article 15 (4) (now Article 5) of the Rules of Procedure and in such a case could continue to be supervised by the Attorney General, whereas in other cases such a procedure was not possible and the criminal case excluded had to be referred to a lower public prosecutor. The issue of the proceeds of crime was responded to by the amendment No. 4 / 2014 Coll. by extending the binding and substantive jurisdiction of the Attorney General's Office by Article 15 (2) of the Rules of Procedure. The same amendment then responded to problems with the impossibility of exercising supervision after the exclusion of part of the criminal case from the joint proceedings for certain offences by introducing an option to decide on the attraction of a case under the second sentence of Paragraph 15 (3) of the second Rules of Procedure.
30. The attraction shall be decided by a resolution to which the Supreme Prosecutor must give his prior approval. The law does not explicitly state which criteria must be taken into account when deciding on an attraction. Article 15 (5) of the Rules of Procedure, where the criteria of gravity, fact or legal complexity are mentioned, can undoubtedly be applied in this respect, but certain other criteria, such as the economy of criminal proceedings, the need to coordinate more criminal proceedings, the need to draw from the same heading of evidence, the need to ensure mutual awareness of the related cases, including the need to ensure the conspiracy of the related criminal matter, in which operational means of search are applied, etc. (The criteria for the attraction of a case under Paragraph 15 (3) of the second Rules of Procedure are therefore broader than those of the attraction of a case on the basis of the so-called optional jurisdiction under Article 15 (5).
31. As is clear from the above, the provisions of Paragraph 15 (5) of the Rules of Procedure have already been inserted into it in 2005 and have been applied without any problems in judicial practice for 9 years. Although the provisions of Paragraph 15 (3) of the second Rules of Procedure are a new institution, this provision merely addressed a partial "inequality 'where, in certain cases excluded from the joint proceedings for which the conditions of Paragraph 15 (1) of the Rules of Procedure were no longer laid down, it was possible, even after their exclusion, to conduct supervision at the Attorney General's Office, since it was possible to decide on their attraction under Paragraph 15 (4) (now Article 15 (5) of the Rules of Procedure, whereas in other cases the decision on the attraction could not be given. In both cases, it was a gradual adjustment of the concept of jurisdiction of the Attorney General in order to exercise oversight over the maintenance of legality in preparatory proceedings, which has always responded to application problems and practice findings, as demonstrated by the fact that, over more than 13 years, only two more fundamental amendments to the Rules of Procedure were made, all the amendments being preceded by several years of practical processing and detailed internal discussions at least within the public prosecutor's system and were not random, ad hoc changes.
32. Dispute with Article 2 (3) of the Constitution and Article 2 (2) The instruments of the High Prosecutor's Office in Olomouc stated that, on a general basis, it is not only legal provisions that can be accepted to determine jurisdiction without exception. As a standard, exemptions from the law may be applied by individual decisions, where this is already foreseen for the preparation of legislation in Article 50 (2) of the legislative rules of the Government, where it is stated that "the authority authorised to authorise exemptions from the law must be defined in which cases and to what extent it may authorise exemptions and which essential criteria it should follow when deciding on exemptions'. It is clear from Article 15 (5) of the Rules of Procedure that the provision in question contains the designation of the body which decides on the exemption in which cases the scope of such a decision, as well as the restrictive criteria (limits) for determining jurisdiction (seriousness, facts or legal complexity of the case), is identifiable. It should be noted here that the above-mentioned Article 50 (2) of the Government's legislative rules requires the definition of only basic decision-making criteria. The determination of the basic criteria for decision-making under Rule 15 (5) of the Rules of Procedure is therefore sufficient. Similarly, in the second sentence of Article 15 (3) of the Rules of Procedure, the basic parameters foreseen by Article 50 (2) of the Government's legislative rules are the determination of the body which decides the exemption in which cases and the scope of such a decision is available. In the activities of the Public Prosecutor's Office, the practice is that the criteria of gravity and the factual and legal complexity of the case are also taken into account when deciding under this provision.
33. As regards the reference made by the appellants to Articles 79 (1), 80 (2) and 79 (3) of the Constitution, it should first be noted that a group of Members refers to Article 79 (1) in relation to the determination of the competence of the Prosecutor's Office The Constitution is entirely unfounded because the Prosecutor's Office cannot be classified either as ministries or as other administrative bodies, in which case reference can be made to the case-law of the Supreme Administrative Court (see judgment of 27.10.2005 sp. zn. 6 As 58 / 2004) as well as to literature (Suchanek, R. in Bahěľová, L., Filip, J., Molek, P., Podhrazký, M., Sukánek, R., Šimek, V., Vyhnánek, L. Constitution of the Czech Republic. Comment. Prague, Linde, 2010, p. 944). The position of the Prosecutor's Office as a special body (sui generis body) at the limits of executive and judicial power is accepted by the majority in the professional public, including senior judicial offices (see also the finding of the Constitutional Court of 28.6.2011 sp. zn. At the Prosecutor's Office, Article 79 (1) The Constitution cannot apply either because the Prosecutor's Office has its own constitutional legislation in Article 80 (2) of the Constitution, which expressly and completely regulates the Prosecutor's Office as laid down in Article 79 (1) of the Constitution in general terms for ministries and other administrative offices.
34. Furthermore, as a group of Members in their proposal, it is not possible to identify the constitutional rule that the status and competence of the Prosecutor's Office must be laid down by law, as well as to determine the jurisdiction of individual prosecutors. The scope is an institute of substantive law and must be understood by the scope of the tasks which are set out for the public authority. The powers are then the funds entrusted to the public authority to implement the mandate. The competence is to define the scope of the application between the various public prosecutors and, therefore, the Institute of Procedure. It is not possible to identify the institutes of competence and competence of the public prosecutor (although of course they follow each other), because they have different content and their relationship is not even inferior to each other. The establishment of the Public Prosecutor's Office shall then mean the legal establishment of the Public Prosecutor's Office in the system of public authorities, having regard to its importance, influence and position between such bodies, including their relation. Consequently, it is not possible, from the point of view of the language interpretation of Article 80 (2) of the Constitution, to underestimate the competence of the Prosecutor, either under the status or under the jurisdiction of the Prosecutor, nor by an extended interpretation of that provision.
35. The Constitution is implemented by the Law on the Prosecutor's Office, which regulates the status, scope, internal relations, organisation and administration of the Prosecutor's Office and others (see § 1 (2) of Act No. 283 / 1993 Coll., on the Prosecutor's Office). Paragraph 1 (1) of Act No. 283 / 1993 Coll., on the Prosecutor's Office, as amended by Act No. 14 / 2002 Coll., provides that the Prosecutor's Office is a system of state authorities, the jurisdiction of the Prosecutor's Office is generally set out in Section 4 of the Law on the Prosecutor's Office and in a number of other acts (in particular the Code of Criminal Procedure, Act No. 218 / 2003 Coll., on the Liability of Youth for Illegal Acts and on Judicial Jurisdiction in Youth Matters, and others). Accordingly, Article 80 (2) of the Constitution is fully respected. Paragraph 40 (2) of the Public Prosecutor's Act then contains a legal authorisation from which the existence of Article 15 of the Rules of Procedure is also derived.
36. Here it is necessary to point out certain differences between the jurisdiction arrangements at court level and the jurisdiction arrangements at the level of the public prosecutor. Article 80 (2) The Constitution provides that the status and competence of the Prosecutor's Office shall be laid down by law, and there is no provision at the constitutional level to lay down the obligation and jurisdiction of the Prosecutor's Office to adapt the law. However, in relation to the courts, reference must be made not only to Article 91 (2) of the Constitution, according to which the jurisdiction and organisation of the courts shall be determined by law, but also to Article 38 (1) of the Second Charter, which provides that the jurisdiction of the court and the judge shall be laid down by law, which shall constitute a requirement for a clear, precise determination of the court within whose jurisdiction the particular case to be taken is to be taken (Kocourek, J. and Záruba, J. Law on Courts and Courts, Law on Public Prosecutor. Commentary. 2. supplemented and revised edition, Prague: C. H. Beck, 2004, p. 175).
37. Similarly, it is possible to refer to the finding of the Constitutional Court of 3. 10. 1996 sp. zn. III. ÚS 105 / 95 (N 91 / 6 SbNU 171), in which the Constitutional Court concluded that not all cases where constitutional rules refer to law, a closer regulation by lower regulatory acts is excluded; This is only the case if the constitutional law expressly reserves such regulation only the law. When making a comparison, it is clear that while, for example, Article 79 (1) The Constitution provides for the possibility of determining the jurisdiction of the Ministry or of another administrative body "only by law '; such a strict rule is not provided for in respect of the Public Prosecutor. The argument chosen in the motion of a group of Members is aimed at establishing the right to a" legal prosecutor' by analogy with the principle of a legal judge in Article 38 of the Charter. However, the Charter does not guarantee such a right (see the order of the Constitutional Court of 27.11.2012 sp. zn. IV ÚS 3627 / 12).
38. Furthermore, it cannot be agreed with the argument of a group of Members that the authority of the Attorney General and the Attorney General allows the handling and transfer of specific criminal cases. Individual jurisdiction decisions are standard procedures at the level of the courts as well as prosecutors (see, for example, Section 25 of the Criminal Code or Section 12d (2) of the Prosecutor's Office Act), where, when the law on the grounds and form of such procedures is complied with, the procedure is in accordance with the law.
39. In contrast to the alleged contravention of Article 38 of the Law of the High Prosecutor's Office in Olomouc, it stated that the appellants did not contest the constitutional conformity of § 26 of the Code of Criminal Procedure and, on the contrary, contested provisions which themselves do not concern the determination of the jurisdiction of the Court. The contested provisions deal exclusively with the determination of the material and local jurisdiction of the Attorney General (or the Prosecutor-General) in order to exercise supervision of the maintenance of legality in preparatory proceedings. The entire Section 15 of the Rules of Procedure contains organisational legal rules relating to the determination of the jurisdiction of the Prosecutor, not to the determination of jurisdiction of the courts in preparatory proceedings. However, perhaps the appellants do not challenge Paragraph 26 of the Code of Criminal Procedure intentionally because, in the resolution sp. zn. IV. ÚS 3627 / 12 of which the Constitutional Court stated that this provision contained a clear and general rule which ensures a firm and predictable division of the agenda between the courts of the matter.
40. As regards the appellants mentioned in the specific case, the Attorney General in Olomouc considers that this is not the case where one of the provisions which the proposal challenges is applied. They are not so clear about the present case.
e) Statement by the Supreme Court in Prague
41. The Supreme Court in Prague has stated that it does not consider it appropriate to comment on the matter in the light of the fact that it does not prejudge its conclusions on the criminal matter of former Member MUDr. David Rath, who could reach him on appeal.
f) Statement of the High Prosecutor's Office in Prague
42. The High Prosecutor's Office in Prague first said that the applicants misdeclare the impact of Amendment No. 4 / 2014 Coll. These amendments brought only the second sentence of Paragraph 15 (3) into the Rules of Procedure of the contested provisions. The contested version of Paragraph 15 (5) of the Rules of Procedure was added to it (then as paragraph 4) with effect from 1 October 2005 by Amendment No 88 / 2005 Coll. in the capacity of the Minister of Justice, Dr. Pavel Nemce, and the Rules of Procedure thus contained it for the ninth year. The Rules of Procedure have been amended repeatedly in the meantime, by Decree No. 252 / 2007 Coll. (Minister JUDr. Jiří Pospíšil), No. 7 / 2010 Coll. (Minister., Dr. Daniela Kovářová) and No. 462 / 2011 Coll. (Minister, Dr. Jiří Pospíšil). Neither the subsequent Minister of Justice, JUDr. Pavel Blažek, Ph.D., has apparently found the provision of Paragraph 15 (5) of the Rules of Procedure unconstitutional during his annual term of office. It can thus be recalled that the Constitutional Court of 22 March 2011 sp. zn.
43. The contested provisions of the Rules of Procedure, according to the High Public Prosecutor's Office in Prague, correspond to constitutional requirements, since Article 80 of the Constitution, in accordance with the wishes of the Constitution, contains a reference to the legal regulation, which is the Law on the Prosecutor's Office, in which the legislature foresees in its provision § 40 of the Decree implementing the Ministry of Justice, which provides for derogations from the local and material jurisdiction of individual prosecutors. In the event that the Ministry of Justice is entitled, on the basis of legal authority, to modify, in addition to local and substantive competence within the meaning of Article 15 of the Rules of Procedure, the interpretation of the provisions of the so-called optional jurisdiction of the Attorney General's Office appears to be constitutional and in accordance with the Law on the Prosecutor's Office, taking into account the procedural guarantees contained therein.
44. In the description of the procedural conditions for the application of the contested provisions of the Rules of Procedure, the appellants are confined to "merely a codecision between the Attorney General and the Attorney General." In this context, it is important to draw attention to the need to fulfil the material conditions for the contested procedure. In particular, the conditions laid down in Article 15 (3) of the Rules of Procedure (i.e. the exclusion of a criminal case from a case still supervised by the State's Attorney General, which is covered by his obligation of jurisdiction) or in Article 15 (5) of the Rules of Procedure (including the seriousness or the gravity or legal complexity of the case). The procedural conditions are the assent of the Attorney General and the decision in the form of a resolution on that procedure, although there is no possibility of a complaint against that decision, such resolutions may, in the light of the conditions set out above, be affected by illegality or nothingness.
45. Such a mechanism, which allows for an exemption, on the basis of a legal and reasoned decision, under certain legal conditions, is not a rule of law, including its principle of legal licence. The contested institute must be seen not as an optional competence but as an optional competence in specific criminal matters, since the proposal of the contested procedural institute can only be applied under conditions that can only be assessed in a specific criminal case. The contested provisions of the Rules of Procedure are formulated clearly and logically necessary to a certain degree of generality, but sufficiently specifically enough to make it clear which authority is called upon to determine the jurisdiction of the Prosecutor to supervise the preparatory procedure as to the extent of such determination and under which conditions jurisdiction can be so determined.
46. At the same time, the overall context and meaning of Article 15 of the Rules of Procedure should be seen in the context. The special competence of the Attorney General's Office to supervise the preparatory management was linked to the emergence of trade unions of serious economic and financial crime in these prosecutors, which was the result of the social demand for a tool to combat this kind of crime more effectively. Until the creation of these trade unions, considerable funds have been spent from the state budget and their prosecutors are high specialists in the areas concerned. Their aim is to take away otherwise relevant prosecutors in complex and extensive criminal matters. This is also linked to the requirement for economic governance, which is clear in particular from the second sentence of Paragraph 15 (3) of the Rules of Procedure. The cases referred to here appear to be of a type that, often after a very long and complex preparatory procedure conducted at the Attorney General's Office, there should be a situation where a new prosecutor and a new police authority should take over part of the prosecuted action. This would logically mean, inter alia, the need to study the file and the associated further extension of the preparatory procedure. Thus, the completion of the preparatory procedure with the High Prosecutor's Office and for failure to fulfil the conditions laid down in paragraphs (15) (1) and (2) of the Rules of Procedure is an expression of the principle of expedited criminal proceedings under Article 2 (4) of the Penal Code and, in its consequences, for the benefit of the accused. It can also be pointed out, for example, that the criteria for the withdrawal and commandment of a case between the courts pursuant to Article 25 of the Penal Code or Article 23 (1) of the Penal Code, applicable to the prosecutors per analogiam, are similar to those of the contested provisions of the Rules of Procedure.
47. As regards the alleged contravention of Articles 79 (1) and 80 (2) of the Constitution of the Supreme Prosecutor's Office in Prague, it states that the reasoning that the Prosecutor's Office may be substitutable to the term "Administrative Office" must be rejected if it is undoubtedly not a Ministry. The Public Prosecutor shall not be given the authority to give administrative decisions within his or her jurisdiction and to decide on rights and obligations. For this view, it can also be found in the (unmarked) commentary on the Constitution, where it is stated, inter alia, that "Article 79 is placed in the title of the third Constitution, which is devoted to executive power, it can therefore be assumed that, from the point of view of the constitutional authorities, the authorities which exercise state administration, i.e., the organizational bodies of the State 'within the meaning of Act No. 219 / 2000 Coll., on the property of the Czech Republic and its representation in legal relations'. The Supreme Administrative Court also does not consider the Prosecutor's Office to be an administrative office (see its judgment No 6 As 58 / 2004-45). Where Article 80 (2) The Constitution provides that the status and competence of the Prosecutor's Office are laid down by law, and that the obligation to determine the jurisdiction of the Prosecutor's Office cannot be understood at the same time. If this were the intention of the legislator, it would certainly proceed in the same way as in the courts, where reference must be made to Article 38 (1), second sentence, of the Charter, where it is stated that the jurisdiction of the court and the judge shall be governed by law. The content of the order of the Constitutional Court of 27 November 2012, sp. zn. IV. ÚS 3627 / 12, according to which" the right to a legal prosecutor does not guarantee the Charter, whereas Article 38 (1) of the Charter cannot be interpreted so extensively that the guarantees provided by it would also be extended in relation to the prosecutor, because of the difference in the status of a prosecutor in criminal proceedings of the most ubiquitous nature. The Prosecutor's Office is not an authority that - standing over the parties to proceedings - authoritatively and definitively decides on the guilt and punishment of the accused, but as a party in criminal proceedings'.
48. On the provision of Article 79 (3) of the Constitution of the Supreme Prosecutor's Office in Prague, it stated that the institutes of competence and competence of the Prosecutor's Office cannot be identified as they have different content. The scope is the Institute of Physical Law. The powers are then the funds entrusted to the public prosecutor's office in order to realise its responsibilities. In its case-law (see resolution sp. zn. IV. ÚS 566 / 12, II. ÚS 3935 / 12, II. ÚS 445 / 13 or I. ÚS 455 / 13; available at http: / / nalus.ujud.cz) The Constitutional Court concluded that, pursuant to Section 26 of the Code of Criminal Procedure, the Prosecutor of the Attorney General's Office has, within the framework of his local jurisdiction, the selection of the Tribunal of the Tribunal, or the Judge of the District Court, to submit a motion for selection in the preparatory procedure. The texts under appeal correspond to the standard rules on individual jurisdiction decisions (e.g. § 25 of the Criminal Code, § 12d (2) of the Prosecutor's Office Act).
49. As regards the alleged infringement of Article 38 of the Charter, the High Prosecutor's Office in Prague considers that the contested provisions do not address the determination of the jurisdiction of the Court of First Instance or the jurisdiction of the courts in general. The Meritum of the problem solved should therefore be sought rather in the provision of Section 26 of the Code of Criminal Procedure. The jurisdiction of the court is not based on the Rules of Procedure, which, in a given context, is only a technical link, but a criminal order. This would not bring the Rules of Procedure, but the Code of Penal, to the contrary. However, the Constitutional Tribunal has already dealt with the constitutionality of Article 26 of the Criminal Code in its decision-making activities. It may be referred to resolutions sp. zn. IV. ÚS 3627 / 12 and sp. zn. III. ÚS 1033 / 07.
50. As regards the specific criminal matters referred to in the proposal, none of them concerned the wording of the contested provisions of Paragraph 15 of the Rules of Procedure.
51. For the above reasons, the High Prosecutor's Office in Prague considers that the proposal submitted is not justified.
(g) observations of the Supreme Court
52. The Supreme Court - its criminal formation - agrees with the proposal, having regard to Article 38 (1) of the Charter. Although there is no indication from practice of the need to address this issue by any unifying instrument, it cannot, in principle, be concluded that the two contested provisions allow the jurisdiction of the public prosecutor to be changed in the exercise of supervision over the maintenance of legality in the preparatory procedure, thereby in conflict with that provision of constitutional order. Although Article 38 (1) The Charter specifically concerns only the court and the judge, it must be maintained that the law governing the activities of the Prosecutor's Office should be consistent with it and should not prevent its fulfilment. The substantive jurisdiction of the courts in the preparatory proceedings is always given to the district court and local jurisdiction is derived from the one which made the relevant application (§ 26 (1) of the Code of Criminal Procedure). The jurisdiction of the court is thus determined in principle for the entire preparatory procedure, with the fact that the change can only take place as a result of the referral of a case on the grounds of the jurisdiction of another prosecutor acting outside the jurisdiction of that court (§ 26 (2) of the Criminal Code). This structure makes the jurisdiction of the Court of First Instance in the preparatory proceedings dependent on which prosecutors exercise oversight over the maintenance of legality in the preparatory proceedings. Having regard to Article 38 (1) This means that the jurisdiction of the Prosecutor must be determined by law and that, if derogations are to be granted in determining the jurisdiction of the Prosecutor, they must also be provided for by law and not by the law of a central administration. The two provisions against which the application for revocation is directed are such that they do not comply with that requirement.
h) Statement of the Supreme Prosecutor's Office
53. The High Prosecutor's Office sent an opinion on the various arguments of the appellants, essentially in the same wording as the High Prosecutor's Office in Olomouc.
54. In addition to its current application practice, the High Prosecutor's Office added that, in the case of § 15 (3) of the second Rules of Procedure, it is not large, since this legislation only became effective on 24 January 2014. By 13 May 2014, a total of 2 requests for prior consent were received from the two prosecutors (one at the screening stage and one at the investigation stage) and both were granted. As regards Article 15 (5) of the Rules of Procedure (paragraph 4 of paragraph 23 of the Rules of Procedure), in 2013 it was 14 and in 2014 it was 13.5.
55. The Supreme Prosecutor also stressed that it has examined the requests received on the basis of the file material and its decision (or measure) on (not) the granting of prior consent. In essence, this is a specific type of delegation decision (prior approval of the Attorney General in conjunction with the subsequent procedural order of the Attorney General's office that it is responsible for the supervision of the maintenance of legality in the preparatory procedure), which, unlike the "classic" delegation, changes the substantive competence. Contrary to the delegation pursuant to § 25 of the Criminal Code (possibly pursuant to § 12a (2) of the Public Prosecutor's Act), which may be carried out on its own motion (and under § 25 of the Criminal Code for "important reasons'), the procedure provided for in § 15 (3), second sentence, and paragraph 5 of the Rules of Procedure in practice requires several stages of control, conditional upon the relevant proposal (application) of the Lower Prosecutor, prior agreement of the Supreme Prosecutor (which is or is not granted after examination of the necessary file material, in writing, the measure of the Supreme Prosecutor being duly justified) and the subsequent decision of the Supreme Prosecutor to exercise of supervision of the legality in the preparatory proceedings. All documents relating to this procedure shall form part of the criminal record and shall be accessible to the defendant and his defence at the stage of the prosecution. The whole procedure under the proposal for the contested provisions is thus transparent and verifiable and is in no way arbitrary.
56. As regards the practical reasons for the granting of the previous assays under the second sentence of Paragraph 15 (3) and (5) of the Rules of Procedure, it can also be noted that it is typically the factual or legal complexity of the case, its gravity or its scope, the factual or legal link or the procedural link between the case and another matter processed on the trade union's serious economic and financial crime of both prosecutors. In the case of a procedure under Paragraph 15 (3) of the Second Rules of Procedure (which is subsidiary to the procedure under Paragraph 15 (5) of the Rules of Procedure if the criteria for giving prior consent under Paragraph 15 (5) of the Rules of Procedure, for example because of the amount of damage caused), are not met, there may be situations in which a part of the case is excluded from the joint proceedings, or a part of the case is excluded from the procedure under Article 15 (1) of the Rules of Procedure, or against one of the accused (e.g. for speeding up proceedings or other important reasons for the outcome of such proceedings, which are normally directly related to the case, and in which the matter is no longer in force of the law, and where there are no longer significant reasons for the enforcement of the exercise of the supervision of the earlier (principal) state of the case. From a practical point of view, the procedures laid down in the second sentence of Paragraph 15 (3) and (5) of the Rules of Procedure need to be considered as useful, contributing to the professional and effective conduct of criminal proceedings. Thus, the Supreme Prosecutor does not find any grounds for the annulment of the contested provisions.
ch) Comments of the Czech Bar Association
57. The Czech Bar Association largely disagrees with the applicants' arguments. According to the case law of the Constitutional Court of the Prosecutor's Office, it is not part of the judicial authority and is not comparable with the courts, see the findings of the Constitutional Court sp. zn. Pl. Pl. ÚS 17 / 10 (N 123 / 61 SbNU 767; 232 / 2011 Sb.), Pl. ÚS 3 / 09 (N 121 / 57 SbNU 495; 219 / 2010 Sb.), Pl. ÚS 11 / 04 (N 89 / 37 SbNU 207; 220 / 2005 Sb.) or Resolution sp. There is also a legal doctrine (reference to the same work as mentioned above in paragraph 33) to the fundamentally identical conclusions on the part of the public prosecutor as a power of executive with the status of sui generis. If, from the point of view of constitutional law, the public prosecutor cannot be regarded as a judicial authority, only the constitutional principles of executive power must be applied to him, which is a specific part of him. Proposals referring to Article 2 (3) The Constitution concludes that the preparatory procedure must also be governed by the principle of legality as a classic element of the state's supremacy, but in the view of the Czech Bar Association, neither the Constitution nor the Charter contain any requirement that the local or functional jurisdiction of a particular public authority be determined by law, unless it is a court. Only in relation to courts does Article 38 of the Charter apply the term "jurisdiction." From the constitutional point of view, there is no strict requirement to determine the state's attorney's jurisdiction to a specific case at the level of the law. The arguments, which are the core content of the proposal, have already been refuted in the case-law of the Constitutional Court.
58. Despite this opposition to the reasoning of the motion, the Czech Bar Association considers that the annulment, possibly interpretative, of the Constitutional Court could be appropriate in the matter. Even if the contested provisions do not show formal inadequacy, in specific cases the anchored mechanisms are abused. It is a tool applied especially in politically exposed cases. It should be noted that the prosecutors are more active in some cases than others and make themselves visible. The second aspect of the matter is that, by withdrawing the case from the public prosecutor responsible for the place where the offence was committed at often significantly greater distances, the principles of equality between the parties to the particular proceedings are distorted in the form of an increase in the time and logistical complexity of the defence actions.
(i) replica of the applicants
59. The Constitutional Court sent the observations received to the appellants for a possible reply. They gave their consent to the Supreme Court's statement and, on the contrary, the statement by the Ministry of Justice and the Prosecutor's Office did not convince them of the illegality of the application.
60. In response to the observations of the Ministry of Justice, the appellants stated that this Ministry did not recognise the link between the State's Attorney's Office and the Court of First Instance. It is true that a number of interventions are decided by the court, but at the request of the state's attorney. The power of the Public Prosecutor's Office is significant, and therefore formal procedures for handling this power must be guaranteed, including the fundamental principle of the legality of the state's activities as a whole, i.e. the Public Prosecutor's Office. If the law provides for the jurisdiction of the Prosecutor's Office by a general standard under which the State is represented by the Prosecutor's Office which operates there, unless the law provides otherwise (Section 7 of Act No. 283 / 1993 Coll., on the Prosecutor's Office), then this standard also applies to the scope of the preparatory procedure (proposals for binding, wiretap etc.). If the law allows an exemption to be provided for by law, it is clear that such an exemption cannot be provided for by a resolution of the Attorney General issued with the consent of the Attorney General. These two entities cannot issue legislation but only individual legal acts and procedural acts. The Ministry cannot distort the law by issuing a decree.
61. The appellants' statements of the High Prosecutor's Office have inferred a misunderstanding of the difference between the decree and the law, when the legal mandate does not in any way imply that the decree should further empower individual "wrangling with cases" of the Attorney General and the Attorney General. The contested provision would not be unconstitutional only if the law itself provided for such an option and if such a decision by the Prosecutor's Office - as part of the executive power and one of the parties to the trial - did not affect the jurisdiction of the Court of First Instance. If the principle of legality is established as protection of entities, for example, in criminal proceedings, this is all the more true of criminal proceedings. While the right to a legal prosecutor is not provided for by the Constitution, it is determined by law. Compliance with this requirement is also due to the connection of the judge for the preparatory proceedings to the appropriate prosecutors. If there were no such link, it would be possible to change jurisdiction within the public prosecutor's office. Finally, the appellants stressed that the statistics provided in the statement show a significantly increasing trend in moving cases between 2011 and 2013, while the highest prosecutor has always complied with all the proposals' automatically '.
62. In order to express the High Prosecutor's Office in Prague, the appellants stated that they were basing the constitutional requirement of legality, if it was sufficient for the law to refer to the decree, and that they could then also modify things that do not have the foundation in the law. In fact, the power to issue the Decree of the Ministry of Justice contained in the Act does not in any way imply that the Order itself will further empower a specific official to decide on the jurisdiction of the Prosecutor's Office without the law providing for it. One of the fundamental shortcomings of the contested regulation is the absence of the possibility of reviewing the change of the appropriate prosecutors on the defendant's initiative; Therefore, it is necessary to exclude the libel by decision-making in individual cases outside the rules generally laid down by the law, by a mere statutory regulation. If the law does not allow the Attorney General and the Attorney General to change the jurisdiction of the Prosecutor, neither can the Order, let alone the social order or economic reasons. On the objection that part of the contested provision was already part of the Rules of Procedure before 2014, the appellants state that only Amendment 4 / 2014 Coll. strengthened and extended the possibility of the application of unlawful and unconstitutional libel in the change of the public prosecutor, which is outside the proper control of the judiciary. Inconstitutionality or illegality may be contained in the legal system for a longer period, with the fact that a defective provision is not used. However, as evidenced by the statistics of the Supreme Prosecutor's Office, the contested regulation started to be used.
63. From the observations of the Czech Bar Association, the appellants claim that the Czech Bar Association states, with only another argument, the grounds for the annulment of the contested provisions, in particular with reference to their abuse.
64. Finally, in the reply, the appellants point to new specific important criminal cases in which the contested provisions are to be abused, where "strange changes in the jurisdiction of criminal cases between the Czechs and Moravia cover the Supreme Prosecutor's Office," while the defence does not have the opportunity to change the jurisdiction of the prosecutors, thereby undermining the "equality of arms" before the courts. In conclusion, the appellants called on the Constitutional Court to "put an end" so that the prosecutors could choose, without any basis in the law, a court to decide on interference in people's rights: "It is right to abolish the imaginary trains between Prague and Ostrava with a stop in Olomouc, which carry selected criminal cases."
Assessment of the proposal in terms of Sections 64 and 67 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended
65. The application was made pursuant to Paragraph 64 (2) (b) of the Constitutional Court Act by a group of 27 Members and the Constitutional Court considers that, formally, it complies with the requirements of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.
66. The Constitutional Court further notes that, despite the Ministry of Justice's said legislative work on the new Law on the Prosecutor's Office (see above paragraph 18), the contested provisions of the Rules of Procedure are still in force and there is no reason to terminate the procedure under Paragraph 67 (1) of the Law on the Constitutional Court.
Assessment of the proposal in the light of Article 68 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
67. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in proceedings for the annulment of a law or its individual provisions, assesses whether the contested law has been adopted and issued within the limits of the constitutional competence and the constitutional procedure.
68. In this regard, the appellants oppose the last amendment to the contested provisions by Amendment 4 / 2014 Coll. with the fact that Mgr. Marie Benešová, as the Minister for the Duma, has signed it, although a government that does not have the confidence of the Chamber of Deputies, should focus only on the normal and necessary maintenance of the State.
69. However, as the Ministry of Justice notes in its observations, the Constitutional Court expressed its views on this issue in its finding, sp. zn. Pl. ÚS 6 / 07 (see above). In this regard, it stated, inter alia, that the "Government Delegation Institute 'in the discharge' of its functions under Article 62 (1) of the Treaty. (d) The Constitution is based on the concept of the need for a permanent exercise of executive powers, where it is not desirable in a legal State that any power in a State should not be exercised by its senior body for a certain period of time. The concept of a pre-limited power of the Interim Government, typically by excluding certain acts from its competence, carries the risk that rigid - or, in establishing limits of relative (or indeterminate) uncertainty - will make it difficult for the entire executive power to function properly,... is not the solution to the government's crisis of transferring political control to the Constitutional Court... The regime of the Interim Government places responsibility primarily on the Chamber of Deputies itself, which thus gives (time) room to create a sufficient political majority to express confidence in the new stable government... The Minister responsible for the constitutional political responsibility for the work of the Ministry, who is controlled in this respect by the usual means of parliamentary democracy, such as interpolation (Article 53 (1), (2) of the Constitution), the right of citation of the Chamber of Deputies and its bodies or the Commission of Inquiry (Article 30, Article 38 (2) of the Constitution). Another control mechanism, which monitors the activities and calls for constitutional liability by the Minister, is the possibility of withdrawing him from office. Article 74 The Constitution shall be the responsibility of the Prime Minister (motion to appeal the Minister) and the President of the Republic (appeal itself)."
70. In that finding, the Constitutional Court also stressed the existence or absence of such an authorisation at all times in the legislature's possession, since the existing restrictions on substatutory legislation, when "through the conditions of legal authorisation (Article 79 (3) of the Constitution). In this respect - with respect for balancing the relations between executive and legislative powers - there is no urgent need to impose specific constitutional restrictions on the Ministry or any other administrative authority for their substatutory constitutional legislation... It is only Parliament that finds the necessity, or the appropriateness, of issuing a statutory regulation for the proper implementation of the law on a particular matter." In the opinion of the Constitutional Court of the Ministry and other administrative offices, they do not "have a direct link - unlike the government - to the political will (trust) of the Chamber of Deputies. The Minister is accountable to the Government, the Chamber of Deputies only in a mediate manner." The Constitutional Court thus concluded, in the finding of sp. zn. The Constitution is not specifically limited to the extent and content of the ex constitutionone, in a situation where the Ministry is managed by a minister who is a member of the Government who is provisionally in charge of the performance of its functions under Article 62 (d) of the Constitution, "although at the same time stressed the need to consistently apply" general requirements for delegated standards, which must only be within strictly interpreted limits of content, scope and - in particular - the purpose of the empowerment standard '.
71. The mere fact that the appellants contend that Amendment 4 / 2014 Coll. was signed by Mgr. Marie Benešová, as the Minister for the Dedication, cannot in itself justify the annulment of the draft contested provisions.
The text of the contested provisions of the Rules of Procedure and the related rules
72. Paragraph 18 of the Code of Criminal Procedure governing the jurisdiction of courts in criminal proceedings shall read as follows:
"(1) The proceedings shall be held by a court in whose district the offence has been committed.
(2) If the crime scene cannot be ascertained or if the offence has been committed abroad, proceedings shall be held by the court in whose district the defendant lives, works or stalls; if these places cannot be identified or are outside the territory of the Czech Republic, the proceedings shall be conducted by a court within whose circumference the act has become apparent. '
73. Paragraph 26 of the Code of Criminal Procedure governing the jurisdiction of courts in criminal proceedings shall read as follows:
"(1) In order to carry out the preparatory work, the district court in whose district the public prosecutor who has made the application shall be responsible.
(2) The Court of First Instance, with which a public prosecutor has submitted an application pursuant to paragraph 1, shall be responsible for carrying out all the proceedings of the court in the course of the preparatory procedure, provided that the case is not referred for the jurisdiction of another public prosecutor acting outside that court. "
74. The Territorial and Jurisdiction of the Prosecutor's Office is governed by the Law on the Prosecutor's Office in § 7, which reads:
"(1) The offices of the prosecutors and their territorial areas are the same as those of the courts.
(2) The Prosecutor's Office shall be responsible for representing the State in the court in which the Prosecutor's Office operates, unless otherwise provided for in specific legislation. '
75. The law on the Prosecutor's Office in § 40, which reads:
"(1) The Ministry shall determine by decree:
(a) the Rules of Procedure of the Prosecutor's Office;
[(b) deleted],
(c) the procedure for the selection and recruitment of legal candidates;
(d) the content of the waiting experience, its organisation and details of the final examination;
(e) a range of operations which may be carried out by legal candidates.
(2) By decree, the Ministry may provide for exceptions to the headquarters and territorial districts of the High, Regional and District Prosecutor's Councils, in the district of the Supreme, Regional or District Public Prosecutor's Office, to establish its branches or to establish a public prosecutor's office with exclusive jurisdiction or to determine that a case of a particular kind from the district of several prosecutors will be dealt with by a single prosecutor's office. "
76. The Rules of Procedure shall contain the section headed "Jurisdiction of prosecutors in the preparatory proceedings', containing the provisions of Sections 12 to 16. Their valid wording is as follows (the contested provisions are highlighted in bold):
(1) In order to exercise supervision of the observance of the legality of criminal proceedings, the competent public prosecutor shall be assigned to a public prosecutor who is present in a court which would have been competent to take action after the prosecution has brought proceedings at first instance, unless otherwise provided for in that order. If the action relating to the pre-prosecution procedure cannot be carried out by a competent public prosecutor because of his urgency, he shall be carried out by a public prosecutor who shall, in such a case, inform the competent public prosecutor without undue delay and forward the case to him.
(2) If, due to the incompleteness of the findings of fact, it is not possible to determine the competence of a prosecutor to exercise the supervision of the maintenance of lawfulness in criminal proceedings at a time when a police authority has made a record of the opening of criminal proceedings, such an alert shall be transmitted to the public prosecutor of the appropriate degree at the headquarters of the police authority or its organisational component. If it is a police authority with competence for the whole of the Czech Republic, it shall be delivered by the police authority to the Regional Prosecutor's Office at the headquarters of the police authority or its organisational body, with the person who did this.
(3) Unless otherwise provided for in this Order, a prosecutor to whom an alert has been received on the opening of criminal proceedings and which is not deemed to be locally or factually competent shall take all measures which are not liable to delay, including the issuing of a decision by a prosecutor in accordance with the Code of Criminal Procedure using the operational means of search which fall within the competence of the Public Prosecutor and to which he is entitled, so as not to thwart the purpose of the criminal proceedings. Otherwise, the case shall be referred to the public prosecutor's office on a local and material basis. It shall at the same time inform the police authority which transmitted the record of the opening of criminal proceedings.
In cases where it is for an investigation or a shortened preparatory procedure to be carried out by a public prosecutor (Section 10 (2)), the supervision of the legality of the procedure before the prosecution procedure shall be exercised by a public prosecutor who would otherwise be competent to carry out an investigation or a shortened preparatory procedure where, on the basis of the facts established, that competence of the public prosecutor can be determined. If the fact that it is a criminal offence becomes apparent, only during the examination of the facts reasonably suggesting that an offence has been committed, the prosecutor who is supervising it at that time shall immediately forward the case to such a prosecutor. Paragraph 12 (3) shall apply mutatis mutandis.
The High Prosecutor's Office is responsible for overseeing and acting alone in the maintenance of legality in preparatory proceedings in a matter which has been withdrawn from the immediately lower Public Prosecutor's Office.
(1) To exercise supervision of the maintenance of legality in preparatory proceedings in matters of intentional crime
(a) committed in the activities of a bank, an investment company or an investment fund, a securities dealer, an insurance company, an insurance company, a pension fund, a building savings bank or a savings and credit cooperative, if damage was caused to at least CZK 150 million;
(b) natural or legal persons committed in connection with the wrongful exercise of the activities of the bodies referred to in (a), where damage has been caused by them at least CZK 150 million;
(c) which caused damage to the property or shareholding of the State at least CZK 150 million;
(d) according to Title Five or Sixth of the Special Code, if they have been committed for the benefit of an organised criminal group, as well as offences of abuse of the authority of an official pursuant to Section 329 of the Criminal Code or offences of acceptance of bribery, bribery or indirect bribery pursuant to § 331 to 333 of the Criminal Code, if they have been committed in connection with the detection or investigation of offences under Title Five or Sixth of the Special Code;
(e) affecting the financial or economic interests of the European Union, if they have caused damage of at least CZK 150 million,
(f) committed against a single European currency for the benefit of an organised criminal group, a member of an organised group, on a large or large scale, or in the event of proceedings against criminal offences directed against a single European currency by a police authority which carries out the tasks of a special central office under Article 12 of the International Convention on the Prevention of Money Recruitment;
(g) committed in connection with insolvency proceedings;
is the competent public prosecutor of the Attorney General's office, in whose district there is a lower public prosecutor's office, which would otherwise be competent in the matter.
(2) In order to exercise the supervision of the observance of legality in preparatory proceedings in the case of criminal offences involving the holding in accordance with Section 214 of the Criminal Code, the negligence holding in accordance with Section 215 of the Criminal Code, the legalisation of the proceeds of criminal activity under Section 216 of the Criminal Code and the legalisation of the proceeds of criminal offences arising from negligence under Section 217 of the Criminal Code, the competent public prosecutor of the Attorney General's Office, in whose territory there is a lower prosecutorial office which would otherwise be competent in the case where the source offence is one of the offences referred to in paragraph 1.
(3) The Attorney General shall be responsible for any of the offences referred to in paragraphs 1 and 2, as well as for the exercise of supervision of the legality of preparatory proceedings in respect of other offences in respect of which joint proceedings are carried out, unless the case is excluded from joint proceedings. Where a case is excluded from the joint proceedings and in respect of such a case the jurisdiction of the Attorney General is not given in accordance with paragraph 1 or 2, the Attorney General may, with the prior agreement of the Attorney General, decide that he is competent to supervise the maintenance of legality in the preparatory proceedings as well as in this case, otherwise the case must be referred without delay to the public prosecutor in question and at the local level.
(4) The Attorney General may decide, after prior agreement of the Attorney General, that a lower prosecutor is responsible for the supervision of the legality of the preparatory proceedings in criminal matters referred to in paragraphs 1 to 3; its jurisdiction shall be determined in accordance with the principles set out in Sections 12, 14 and 16.
(5) If the gravity, facts or legal complexity of the case so requires, the Attorney General may decide, with the prior consent of the Attorney General, that he is responsible for the supervision of the maintenance of legality in preparatory proceedings in cases
(a) referred to in paragraph 1 (a) to (c) and (e), even if they have been caused by damage of less than CZK 150 million, or
b) if damage occurs on the property of another subject at least CZK 150 million.
(1) Where, pursuant to the previous provisions, jurisdiction is conferred on several prosecutors to exercise supervision, supervision shall be exercised by the person responsible for the supervision of an investigation against an offender or the most serious offence; otherwise he who began to supervise first.
(2) In order to further investigate a case referred back to the Prosecutor by the court to which he has been referred or ordered, the competent prosecutors who supervise the preparatory procedure shall be responsible. "
Assessment of the contested provisions as regards the jurisdiction of the public prosecutor
(a) a legal authorisation for the statutory regulation of the jurisdiction of the public prosecutor
77. The Constitutional Court had first to consider, in the context of the assessment of the rationality of the application, whether it was possible at all in general that the jurisdiction of the Prosecutor's Office was governed by a statutory law, whereby the appellants referred to Article 2 (3) of the Constitution, Article 2 (2) of the Charter, Article 79 (1) and (3) and Article 80 (2) of the Constitution. It concluded that such a way of regulation could not be excluded and priori.
78. Article 2 (3) of the Constitution and Article 2 (2), mutatis mutandis The Charter prescribes that state power can only be exercised in cases, within the limits and in the ways laid down by law. The doctrine of these constitutional provisions suggests that public authorities "must closely respect their statutory competences which they must not exceed. They are only entitled to act when the law expressly provides for it" (Šiměl, V. in Bahěľová, L., Filip, J., Molek, P., Podrazký, M., Suchanek, R., Šiměnek, V., Zeměnek, L. Constitution of the Czech Republic, comment. Praha: Linde, 2010, str. 56). "It is a general constitutional principle which is reflected in the reservation of the law in all cases where the establishment of state bodies, the establishment of their organisation and competence, as well as the procedural rules governing their conduct, procedure." (Grospich, J. in Knapp, V. et al., the creation of law and its current problems. Praha: Linde Praha, a. s., 1998, str. 99). "The substantive, competent and procedural conditions for the application of state (public) power can be adapted only by law." (Mikule, V. in Sládeček, V., Mikule, V., Syllova, J. Constitution of the Czech Republic, comment. Praha: C. H. Beck, 2007, p. 22).
79. However, this does not mean that the law could not make a more general, basic and empowering the Ministry to make a more specific adjustment (see the latter). Article 79 (3) The Constitution allows the empowerment provision of the Act to transfer more detailed legislation to the substatutory legislation (Rychetský, P. in Rychetský, P. et al. Constitution of the Czech Republic, commentary. Praha: Wolters Kluwer, a. s., 2015, p. 17). As already stated by the Constitutional Court in its finding in sp. zn. III. ÚS 105 / 95 (N 91 / 6 SbNU 171), and not in all cases where constitutional rules refer to law, it is excluded from the scope of further regulation by lower regulatory acts; This is only the case when the constitutional law expressly reserves such regulation only the law.
80. In this respect, it is possible to find similarity with the situation addressed in the rejection of the decision of 18.4.2001 sp. zn. Pl. ÚS 55 / 2000 (N 62 / 22 CollNU 55; 241 / 2001 Coll.), in which the Constitutional Court assessed the situation where the implementing regulation of the Ministry of Interior was entrusted to determine which municipal authorities, city offices, or city districts offices will be entrusted with the exercise of competence on the Matrica section. At the same time, the appellants referred to Article 105 of the Constitution, according to which the exercise of the administration can only be entrusted to the authorities of the State if the law so provides, and to Article 100 (1) of the Constitution, according to which the second law determines when the local authorities are administrative districts. They considered that the Constitution thus provided for the requirement that the entrustment of the actual and territorial powers of the authorities of the state administration in the exercise of the administration should be carried out by law. However, the Constitutional Court did not find the unconstitutional nature of such contested arrangements.
81. The Constitutional Court does not find any reference by the appellants to Articles 79 (1) and 80 (2) of the Constitution. As indicated in their observations by the Ministry of Justice, the individual prosecutors and the Czech Bar Chamber and, as is apparent from the judgments of the Supreme Administrative Court mentioned in these observations (6 As 58 / 2004, 2 As 93 / 2011, 1 As 51 / 2012) and other sources (Suchanek, R. in the above mentioned work, p. 944), the Public Prosecutor must be regarded as an executive body of sui generis which cannot be substitutable after the terms "Ministry 'or" other administrative office' used by Article 79 (1) and (3) of the Constitution.
82. In particular, however, the appellants, which is also pointed out in the observations received, misinterpret the concept of "scope 'contained in Articles 79 (1) and 80 (2) of the Constitution. As the public prosecutor explains in the statements sent, the substantive scope is the Institute of substantive law and it must be understood by the scope of the tasks which are set out for the public authority. It is a legal expression of the role and position of the state body in certain social relations, in which it is essentially the legal role and activity entrusted to it [Constitutional Court finding of 24 April 1996 sp. zn. I. ÚS 38 / 95 (N 35 / 5 SbNU 283)]. The scope of the Prosecutor's Office is defined in Section 2 (Sections 4 and 5) of the Prosecutor's Office Act. The powers are then the funds entrusted to the public authority to implement the mandate (for example, Mikule, V. in Sládeček, V., Mikule, V., Syllova, J. Constitution of the Czech Republic, comment. Prague: C. H. Beck, 2007, p. 566), or the actual implementation of the public authority in the appropriate form, i.e. in the form of a standard-making or individual-decision [Constitutional Court finding of 9.10.2003 sp. zn. IV. ÚS 150 / 01 (N 117 / 31 SbNU 57)]. The competence is to define the scope of the scope within a particular system of public authorities, i.e. between the various public prosecutors and thus the Institute of Procedure. As a general rule, there is a distinction between the substantive jurisdiction, which determines the type of authority which is in charge at first instance and the authorities called for to decide on remedies, the functional competence which determines which of the authorities of a particular level of organisation is entitled to decide and, finally, the local jurisdiction according to which of the more substantive competent authorities is to decide (cf. Madar, Z. et al. Dictionary of Czech law. Praha: Linde Praha, a. s., 1995, str. 904 et al.). At the level of the Act, the material of the jurisdiction of the State Prosecutor's Office is governed by Sections 7 (2) and 12 (a) and 12b of the Law on the Prosecutor's Office (cf. paragraphs 10 to 13 of the Administrative Order, Sections 13 to 15 of the Tax Code, Sections 9 to 12 of the Civil Code, Section 7 of the Administrative Code and Sections 16 to 26 of the Criminal Code). It is therefore not possible to identify the institutes of competence and competence of the public prosecutor (although of course they follow each other), since they have different content and their relationship is not even inferior to each other. Article 80 (2) In addition, the Constitution also uses the concept of" state of the prosecutors', which, however, means the legal establishment of a public prosecutor in the system of public authorities, having regard to its importance, influence and position between such bodies, including their relation. Thus, the term "jurisdiction 'cannot be underestimated either under the" position' or under the "scope 'within the meaning of Articles 79 (1) and 80 (2) of the Constitution. In doing so, the Constitution establishes the" Public Prosecutor's Office' (in a single number) as (one) constitutional body (institution) and does not mention individual public prosecutors (see Articles 80 and 109), and only by law is that body established as a "system of state authorities' (§ 1 (1) of Act No. 283 / 1993 Coll., on the Public Prosecutor's Office, as amended by Act No. 14 / 2002 Coll.). Therefore, the reservation laid down in Article 80 (2) of the Constitution also explicitly applies only to the" status and competence of the Prosecutor's Office ', that is to say to this constitutional body (body) in its entirety, and not to the regulation of the jurisdiction of individual "offices' (degrees within the" system ') of that institution, i.e. to individual prosecutors.
83. It is clear here that the provisions of the Articles of the Constitution referred to in the preceding paragraphs are different from the wording of Article 38 (1) of the Charter, which alone provides for the reservation of jurisdiction. The diversity which is justified, since the courts and judges, and thus the legislation concerning them, must clearly be subject to higher requirements than those of other public authorities. It should be pointed out that, of course, the Prosecutor's Office plays an indispensable role in criminal proceedings, but it does not guarantee the Charter against judges the right to a legal prosecutor.
84. The position of a prosecutor in criminal proceedings is already different from that of a judge by having the most obvious character [compare the finding of the Constitutional Court of 28 June 2011 sp. zn. Pl. ÚS 17 / 10 (N 123 / 61 CollNU 767; 232 / 2011 Coll.), in particular its paragraphs 33 and 38]. The Public Prosecutor's Office is not an authority which stands over the procedural parties authoritatively and definitively decides on the guilt and punishment of the defendant, but as a party in a court proceedings (see Section 12 (6) of the Criminal Code), it has a constitutional obligation to represent a public action in this proceedings (Article 80 (1) of the Constitution). It is clear that the Public Prosecutor's Office is not equipped with impartiality in the sense of the General Courts and, for example, it cannot be denied the right to choose its own procedural and investigative tactics [Constitutional Court finding of 3.7.2003 sp. zn. III. ÚS 511 / 02 (N 105 / 30 CollNU 471)]. While a number of legal guarantees of independence and impartiality of the public prosecutor can be found and similar features can be established with the public prosecutor as with a subjectively independent judge, the elements of the judicial authority that distinguish him from him, such as the elements of authority or administrative supervision contained in the provisions of § 11a, 12, 12c, 12d and 12e of the State Prosecutor's Law, which establish, for example, the authority of the High Prosecutor to remove the matter from the lower public prosecutor and to deal with it separately, if its instructions are not followed or are inoperative or there are unfounded, or the authority of the Head of Public Prosecutor to exercise supervision and to give instructions for the procedure for the proceedings of the public prosecutors which he is in charge. Thus, the current concept of a state prosecutor's position in criminal proceedings does not permit the design of the principle of the independence of a prosecutor in a quality comparable to that of the judge's independence and the right to a legal prosecutor in the sense of the award of a case to a public prosecutor designated in accordance with the same strict rules as for the distribution of the contested cases between judges (similarly, the Constitutional Court resolution sp. v IV. ÚS 3627 / 12, to compare the status of the public action and of the public prosecutors. Phenyk J. Public action, Episode I. History, present and possible development of public action. Edice Handbooks of the Czech Republic, 2001, volume 62, p. 149- 159).
85. For the reasons set out above, the Constitutional Court finds the constitutionally consistent argument of the Ministry of Justice, the Prosecutor's Office and the Czech Bar Association that the existence and priori of legislation implementing the jurisdiction of the Prosecutor's Office cannot be ruled out in detail at the level of the statutory law.
86. In addition, the Constitutional Court considered the constitutionality of the contested provisions on the jurisdiction of the Prosecutor's Office from the point of view of the wording of the legal authorisation contained in Section 40 of the Law on the Prosecutor's Office, on the basis of which the Rules of Procedure were issued, and, in this context, the Constitutional Court found no breach of the constitutional order.
87. The Constitution allows ministries to legislate, but only on the basis of a law containing the relevant express legal authorisation and only within the legal limits set. Act containing the authorisation to issue the legislation referred to in Article 79 (3) At the same time, the Constitution must contain limits (limits) on such empowerment (Rychetský, P. above mentioned work, there). As the Constitutional Court stated, for example, in its finding of 15 September 2015 sp. zn. Pl. ÚS 13 / 14 (297 / 2015 Coll.), the powers of the ministries to legislate for the implementation of the law are "conditional on the existence of an explicit legal mandate and its limits, and according to the case law of the Constitutional Court, the provision must be interpreted strictly in the sense that such authority must be specific, unambiguous and clear [cf. Case C. If that is the case, the Constitutional Court examines whether the substatutory law was passed by a state body authorised to do so and within the limits of its competence, that is, whether it was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem) in the exercise of that competence." To put it simply, "the point is that if it is to be under the X-Act, this rule does not make it Y, but that it should be X1, X2, X3. The legislator's will to regulate above the legal standard must be evident from the authorisation provision. However, even in such a case, the substatutory legislation may not interfere with matters reserved for regulation only by law (so-called reservation of the law)" [mutatis mutandis, see also the finding of 18.8.2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.) or the finding of 22.10.2013 sp. zn. Pl. ÚS 19 / 13 (N 178 / 71 SbNU 105; 396 / 2013 Sb.)].
88. The Rules of Procedure were issued by the Ministry of Justice with reference to the empowerment provisions contained in Section 40 of the Public Prosecutor's Act. In analysing the empowerment provision in question for its individual elements, it is clear that the Ministry of Justice (apart from matters relating to legal candidates, which may be waived in the context of the present case) is entitled to the following:
(a) laying down the Rules of Procedure of the Prosecutor's Office;
(b) providing for exceptions to the offices and territorial districts of the Prosecutor's Office;
(c) the establishment of offices of the Prosecutor's Office;
(d) the establishment of a public prosecutor with exclusive competence; and
(e) a determination that a particular kind of case will be dealt with by one public prosecutor.
89. In the opinion of the Constitutional Court, the possibility of defining the jurisdiction of the Prosecutor's Office by means of implementing legislation arises from two of the above elements of the empowerment provision § 40 of the Prosecutor's Law referred to in points (d) and (e).
90. In the first case, it is the authority of the Ministry of Justice in the decree to determine that certain items of a kind from the district of several prosecutors will be handled by one prosecutor (Section 40 (2) of the Prosecutor's Act). It is, in essence, a mandate to determine jurisdiction, since it is precisely the determination of jurisdiction which is used to resolve the question which specific public prosecutor from the organisational structure of the public prosecutor is called upon to deal with a particular case (cf. Skulová, S. et al. Administrative law of procedure. 2nd edition. Pilsen: Aleš Čenek Publishing and Publishing, 2012, p. 73). According to the wording of that mandate, the public prosecutor's office, which will deal with matters of a kind from the district of several public prosecutors, may not be a public prosecutor's office of the same degree as the public prosecutors from whose districts he is to deal with matters. Article 15 of the Rules of Procedure, where the jurisdiction (Prosecutor's Office) of the Attorney General's Office is always bound by the jurisdiction of the lower Prosecutor's Office in its constituency, which would otherwise (according to the general rules on substantive and local jurisdiction) be relevant.
91. In the latter case, the opinion of the Ministry of Justice contained in its observations on the constitutional complaint may be accepted, according to which the explicit authority of the Ministry to establish a public prosecutor with exclusive competence (cf. § 40 (2) of the State Prosecutor's Act) also includes the authorisation to establish, by decree (Rules of Procedure), the substantive or local jurisdiction of such public prosecutor (in preparatory proceedings). Although the institutions of competence and jurisdiction cannot be identified, as mentioned above, as they have a different content and their relationship is neither inferior to each other, the definition of jurisdiction must be understood as condicio sine qua non for the pursuit of the activities of an exclusively operating public prosecutor in a preparatory procedure which he expressly authorises to establish that provision. The establishment of a public prosecutor with exclusive competence is thus inevitably linked, should this no longer be the case, to the definition of his jurisdiction, which therefore becomes a reasoned part of the implementing regulation issued on the basis of such authorisation.
92. In the light of the above, the Constitutional Court therefore concludes that, from the classification of the parts concerned of the mandate contained in Paragraph 40 (2) of the Law on Public Prosecutor's Office, the legislature's clear will to adjust the jurisdiction of the Public Prosecutor's Office in the preliminary proceedings by means of the Decree of the Ministry of Justice, even though it is not expressly provided for in this mandate, thus making the requirement for substatutory legislation - the existence of the legislature's apparent will to regulate above the legal standard [see the Constitutional Court's finding of 14.2.2001 sp.
(b) further objections by the appellants to the contested regulation in force
93. The Constitutional Court also dealt with the contested regulation in the light of the appellants' other objections. The first objection is that the contested provisions allow for a change in the jurisdiction of the supervisory prosecutors by a joint decision of the Attorney General and of the Attorney General, since, in fact, that jurisdiction is not determined by any legislative act but by an individual decision.
94. However, the Constitutional Court does not consider that the possibility of such a decision would be contrary to constitutional order. As explained in its observations by the Ministry of Justice, since decisions made on the basis of the contested provisions are not standard legal acts, but individual legal acts, which constitute the application of the standard in a particular case, rather than the creation of a new standard, it is true that such legal structures do not conflict with the prohibition of tertiary standardisation.
95. The changes in the jurisdiction of public authorities, which are decided by individual decisions, are not generally unknown to the rule of law, both in respect of the Public Prosecutor's Office (§ 12d (2) of the Public Prosecutor's Office) and the courts (§ 25 of the Criminal Code).
96. Also, when compared to foreign legislation, the possibility of certain changes in the jurisdiction of the public prosecutor does not appear to be unusual, according to the decision of one of the higher levels of its system.
97. In Poland, for example, the jurisdiction of the Prosecutor's Office, like in the Czech Republic, is regulated by the law of the Minister of Justice of 11 September 2014 on the internal rules of the Public Prosecutor's Department's General Units (Regulamin wewnętrznego urzędowania powszechnych unistva organizacyjnych procuratura). Paragraph 58 (1) of the Law provides, first of all, that the local jurisdiction of the Public Prosecutor is governed by the local jurisdiction of the courts in the preparatory proceedings, but paragraph 5 allows the Chief Prosecutor to decide on a change in the jurisdiction of the Public Prosecutor of the Lower Degree ("W szczególnie uzasadnionych przypadkach, ze względu na dobem prowadzonego postępowania, kierownik jedonistki wyższego stopnia może, w drodze posanowienia, przekazać sprawę do prowadzenia lub nadzim innej podległej onistce niż jonistka właściwa w myśl ust. 1.").
98. In Austria, Paragraph 21 (2) of the Criminal Code (Strafprozeßordnung) provides that the Prosecutor-General of the Prosecutor-General is entitled to take part in any proceedings within his jurisdiction; in individual cases, it may assume the tasks and powers (powers) in the case of its subordinate prosecutors.
99. In the case of Slovakia, Law No 153 / 2001 Z. z., o procuratúre, in the provision of § 51 to the Prosecutor General and within the scope of his jurisdiction, allows the district prosecutor to determine the exceptions to the provisions of § 46 to 50, i.e. practically all provisions governing the jurisdiction of the procuratures.
100. In Germany, the law and the obligation to supervise the activities and the procedure of prosecutors are the responsibility of the Head of the Prosecutor-General, who has the right in this connection to impose binding instructions on the execution of any case, including the right to withdraw a case from any public prosecutor in his district and assign it to another public prosecutor, or even to deal with it himself [Section 145 of the Federal Law on the Organisation of the Judicial Organisation (Gerichtsverfassungsgesetz)].
101. It is clear that this comparison does not support the view that the public prosecutor could not make individual decisions on the change of jurisdiction. On the contrary, it appears that the contested regulation in the Rules of Procedure, compared with other provisions of the changes in jurisdiction in the Czech legal order, as well as the international comparison made above, is more stringent when, for example, the decision on jurisdiction in question cannot be made by the Attorney General himself, but also the agreement of the Attorney General must be given.
102. The second objection raised by the appellants is that there are no clear limits to the decisions in question and therefore there is room for libel. But even here, the Constitutional Court does not find their criticism possible.
103. First of all, it must be recalled that the Prosecutor's Office is not a body that stands over the procedural parties and decides on the guilt and punishment of the accused. As has already been described above, its position is different and, logically, the degree of rigidity with which it is necessary to consider the rigidity and detail of its jurisdiction vis-à-vis the requirements of the jurisdiction of the courts. The intensity of the need to avoid any leeway with regard to the jurisdiction of the prosecutors is undoubtedly less than in the case of courts and judges. In the case of the Public Prosecutor's Office, greater flexibility is clearly permitted in this regard.
104. Even a closer look at the contested provisions does not give rise to any concern about the nature of their application. In the case of Paragraph 15 (3) of the second Rules of Procedure, it should be noted that this provision is only applicable in a situation where the case is excluded from the joint proceedings and such a case would no longer be subject to the jurisdiction of the Attorney General under Article 15 (1) or (2) of the Rules of Procedure. This connection with the exclusion from the joint proceedings is relatively closely defined in the area in which a decision on jurisdiction may be given. The need to maintain supervision with the Attorney General, whose prosecutors already have a case in question, is quite simple in these cases, and not only does it raise doubts as to the correctness of their purpose, but, on the contrary, it is a tool which is extremely reasonable, contributing to the speed of the proceedings and thus to the protection of the right of the accused to discuss the case without undue delay, or within a reasonable period, as guaranteed in Article 38 (2) of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
105. The contested regulation in § 15 (5) of the Rules of Procedure undoubtedly follows a rational purpose. At the same time, it sets out certain criteria (seriousness, factual or legal complexity of the matter) which are intended to govern decision-making. The possibility of attraction is also firmly limited by the fact that the Attorney General can only access it
(a) in the case of intentional offences committed in the course of the activities of a bank, investment company or investment fund, a securities dealer, insurance undertaking, a health insurance undertaking, a pension fund, a building savings bank or savings and credit cooperative, or (2) natural or legal persons committed in connection with the unauthorised exercise of the activities of the listed entities, or (3) who have suffered damage to the property or property share of the State, or (4) who have been affected by the financial or economic interests of the European Union; or
b) if damage occurs on the property of another subject at least CZK 150 million.
106. On the basis of that, it cannot be borne in mind that the contested regulation contains more obvious criteria and limits for jurisdiction decisions than, for example, Section 25 of the Penal Code, which allows the court to change jurisdiction in any case and merely provides, as a precondition for such a decision, that this can be done for "an important reason '. This, in a situation where Section 25 of the Criminal Code provides for the possibility of a change of jurisdiction of the court, which, as explained above, should be subject to stricter standards than in the case of prosecutors. It is also clear from the above-mentioned international comparison that the contested legislation is more restrictive.
107. Even so, the Constitutional Court has not found the appellants' arguments to be justified.
Assessment of the contested provisions with regard to the jurisdiction of the court
108. In the next step, the Constitutional Court addressed the contested provisions as regards their link with the jurisdiction of the Court. It concluded that, even in this regard, there were no grounds for compliance with the proposal.
109. Pursuant to Article 38 (1) of the Charter, no one may be removed from his legal judge, the jurisdiction of both the court and the judge being determined by law. This provision is among those by which the legislature limits the division of power between legislative and executive power. It provides for a reservation of the law according to which the matter in question can only be regulated by the law, so that the normative power cannot be exercised by the Government, the Ministry or any other body. Even legislators are not allowed by law to create an authority to enable these authorities to do so. On the contrary, the principle of division of power is consistent with the fact that the constitutional scope of power sets limits on both executive and legislative authorities. The concept of a rule of law, which finds its constitutional status in Article 1 (1) of the Constitution, shows that neither the legislator nor the executive body can dispose of the forms of law or sources of law at all, but must follow the aspects of the legislator. In the past, the Constitutional Court has already stated that it cannot be allowed that the sphere of protection of fundamental rights and freedoms is under executive authority which is not entitled to do so [see the finding of the Constitutional Court of 23.7.2013 sp. zn. If the legislature entrusted the jurisdiction of the court and the judge solely with the law, it excluded secondary regulation, even if it were possible and desirable from all other aspects.
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Regulation Information
| Citation | The Constitutional Court found No 201 / 2016 Coll., on the application for annulment of § 15 (3), second sentence, and § 5 of Decree No. 23 / 1994 Coll., on the Rules of Procedure of the Public Prosecutor, the establishment of branches of certain public prosecutors and details of the actions carried out by legal candidates, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 22.06.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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