The Constitutional Court found No 219 / 2010 Coll.
The Constitutional Court found of 8 June 2010 on the application for annulment of Article 83a of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended
Valid
The Constitutional Tribunal found
Text versions:
08.07.2010
219
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 8 June 2010 in plenary in the composition of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Vladimir Kórka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel Rychetský, Eliška Wagner (Judge of the Rapporteur) and Michaela Židlická on the motion of the Second Chamber of the Constitutional Court to abolish § 83a of Law No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended, with the participation of the Chamber of the Czech Parliament of Parliament of the Czech Republic as participants in the proceedings
as follows:
Paragraph 83a (1) of the first and second sentences of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (penal order), as amended, read as follows: ', in preparatory proceedings by a prosecutor or police authority. In order to do so, the police authority needs the prior consent of the state's attorney.' is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
1. In the proceedings for a constitutional complaint brought under sp. zn. II. ÚS 1414 / 07, the complainant Ing. M. B. van S. requested the annulment of the order of the Supreme Court of 28 February 2007 sp. zn. 3 Tdo 161 / 2007, the judgment of the Regional Court of Pilsen of 22 June 2006 sp. zn. 9 To 255 / 2006 and the judgment of the District Court of Plzeň-South of 8 February 2006, No. 2 T 127 / 2005-1028, as it considered that the general courts infringed its fundamental rights guaranteed by Article 36 (1) and (2) of the Charter of Fundamental Rights and Freedoms (hereinafter "the Charter '), and should have been infringed by Article 4 (1), (2) and (4) of the Charter. On the basis of the above-mentioned decisions of the General Courts, the complainant was found guilty of the crime of illicit manufacture and possession of narcotic drugs and psychotropic substances and poisons pursuant to paragraphs 187 (1) and (2) (a) of the Criminal Code and sentenced to a prison sentence of 2 years with a suspension of 2 years.
2. In particular, the complainant expressed doubts in the constitutional complaint as to the legality of the house search and of the other premises, since it considered that the legal conditions had not been met in order to carry them out and therefore the general courts should not have taken such evidence into account.
3. The Second Chamber of the Constitutional Court did not consider it constitutionally conformal for the criminal rules to be a legal provision governing the procedure laid down in criminal matters (§ 82 et seq.) to determine the conditions under which it is permissible to undermine each individual's right to privacy by carrying out a home inspection (§ 83) differently (more strictly) than in the case of an inspection of other premises (§ 83a), although the inspection of other premises undoubtedly also constitutes an intervention into each individual's right to privacy, to a similar extent as in the case of a home examination.
4. The Second Chamber of the Constitutional Court therefore concludes that the provisions of Paragraph 83a (1) of the Criminal Code (hereinafter referred to as "the Order ') are contrary to the constitutional order of the Czech Republic. Therefore, by order of 26.2.2009 sp. zn. II. ÚS 1414 / 07, pursuant to § 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as" the Law on the Constitutional Court'), he suspended the proceedings for the annulment of § 83a (1) (c) of the Law on the Constitutional Court.
5. The Constitutional Court pursuant to Articles 42 (4) and 69 of the Law on the Constitutional Court has sent the application in question for the annulment of the contested provisions to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
6. The Chamber of Deputies of the Parliament of the Czech Republic, represented by President Ing. Miloslav Vlček, in its observations of 21 April 2009, merely recap the course of the legislative process leading to the adoption of the valid text of the contested provision § 83a (3) of the Order. At the same time, it agreed to abandon oral proceedings.
7. The Senate of the Parliament of the Czech Republic, represented by the President of MUDr. He also stated that, in view of the content of the debate on the adoption of the amendment relating to the state's attorney's authorisation for the so-called extension of the link in the preparatory procedure, it can be concluded that he is inclined to the opinion of the promoter of the amendment that, according to the amendment, the prosecutor is becoming a genuine master of the preparatory procedure and that his role is thus given significant reinforcement of the judicial character. The Senate has largely identified the fact that the proposed regulation in its entirety follows a factually and legally progressive direction towards the so-called passability and enforceability of the law. The Senate also agreed to abandon the oral hearing.
Conditions for the applicant's active legitimacy
8. The application for annulment of Paragraph 83a (1) of the Code of Criminal Procedure for its contradiction with the constitutional order of the Czech Republic was filed by the Second Chamber of the Constitutional Court in the context of the proceedings concerning the constitutional complaint of the complainant, Ing. M. B. van S., held under sp. zn. II. ÚS 1414 / 07, when the substance of the constitutional complaint was, inter alia, the opposition of the complainant to the procedure of the General Courts in assessing the legality of the inspection of other premises and parcels, the conditions of which are the content of the contested provisions of the Code of Criminal Procedure. It is therefore an application made in accordance with Article 64 (1) (c) of the Constitutional Court Act and the conditions of active legitimacy for its submission have therefore been fulfilled.
Constitutional conformity of the legislative process
9. The Constitutional Court must first examine whether the law in question has been adopted and issued in a constitutionally prescribed manner [see point 61 of the Constitutional Court's finding of 15 February 2007 (N 30 / 44 of the SbNU 349; 37 / 2007 Coll.) 1).
10. In relation to Act No. 558 / 1991 Coll., amending and supplementing the Code of Criminal Procedure and the Law on State Secrets, on the basis of which, with effect from 1 January 1992, the legal provision in question was entered into the Code of Criminal Procedure, the Constitutional Court did not ascertain whether it had been adopted and issued within the limits of the Constitution, and in a constitutional manner, since, for legislation issued before the Constitutional Tribunal's entry into force, the Constitutional Court was entitled to examine only their content compliance with the current constitutional order, but not the constitutionality of the procedure of their formation and observance of the standard powers [see the Constitutional Court Resolution No 5 / 98 of 22 April 1999 (U 32 / 14 SbNU 309) 2)].
11. In the period from 1.1.1993, i.e. from the date of entry into force of the Constitution of the Czech Republic, the following amendments to the legal provision in question were made. The first amendment took effect with effect from 1.1.1994, Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on Criminal Procedure, Act No. 21 / 1992 Coll., on Banks, and Act No. 335 / 1991 Coll., on Courts and Judges. Later, the contested provision was amended on the one hand in the context of the adoption of Act No. 283 / 1993 Coll., on the Prosecutor's Office, on the other, by Act No. 265 / 2001 Coll., amending Act No. 141 / 1961 Coll., on the Criminal Procedure (Criminal Code), as amended, Act No. 140 / 1961 Coll., the Criminal Act, as amended, and certain other laws.
12. In the light of the circumstances that the amendments to the contested provision introduced by the abovementioned laws were largely of a legislative and technical nature not having a major influence on the content of the contested provision, the Constitutional Court, having regard to the principles of procedural economics in the present case, has abandoned the closer review of the laws cited in respect of whether they were adopted and issued within the limits of the Constitution laid down in competence and in a constitutional manner, and has limited themselves, taking into account the observations of the Chamber of Deputies and the Senate, to the formal verification of the course of the legislative process of their adoption from publicly available sources of information (resolutions and parliamentary publications available in the Digital Library on the website of the Chamber of Deputies and Senate at www.psp.cz and www.senat.cz). Thus, the Constitutional Court concluded that the laws cited were adopted and issued within the limits of the constitutional competence and constitutional requirements. Therefore, it has undertaken to review the content of the contested provision of Article 83a (1) of the Rules of Procedure in the light of its compliance with the constitutional order [Article 87 (1) (a) of the Constitution].
Derogation of the contested provision
13. The contested provision of § 83a (1) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, reads:
Search warrant for other premises and parcels
(1) The President of the Chamber, a prosecutor or a police authority shall be authorised to order the inspection of other premises or parcels. The police authority needs the prior approval of the state's attorney. The order must be issued in writing and must be justified. It shall be delivered to the users of the premises or parcels concerned and, if not found during the inspection, immediately after the loss of the obstacle to delivery.
Reference aspects for the assessment of the proposal
14. The prosecution of crimes and the fair punishment of their perpetrators is a constitutionally and insurmountable public interest, the essence of which is to delegate responsibility for penalising the most serious violations of fundamental rights and freedoms by natural and legal persons to the State. If the criminal law allows the pursuit of public interest in the prosecution of crime through the robust and personal integrity of the individual restrictive instruments, their use must respect constitutional limits, as their use entails serious restrictions on the fundamental rights and freedoms of the individual. Thus, the limitation of personal integrity and privacy (i.e. the breach of respect for them) can only exceptionally occur on the part of the public authority, and only if it is necessary in a democratic society and the purpose pursued by the public interest cannot be achieved otherwise [cf.
15. In the case of the exercise of a search or inspection of other premises, this is in particular a restriction of the basic right of a person to the integrity of his or her residence, guaranteed by Article 12 (1) of the Charter, according to which "The residence is untouchable. It is not allowed to enter without the consent of the person who lives in it." The Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') also guarantees this fundamental right in Article 8 (1) when it states that" Everyone has the right to respect for his or her private and family life, residence and correspondence.', as well as the International Covenant on Civil and Political Rights ("the Covenant ') in Article 17, guarantees individuals this fundamental right protecting him or her against" arbitrary interference in private life, family, home or correspondence'.
16. While Article 8 (1) of the Convention guarantees respect (by public authority), inter alia, for private and family life and dwellings, that is to say, the fundamental right, or freedom in their classic, i.e. negative function, declares Article 12 (1) of the Charter of the Inviolability of Houses, which is clearly open to interpretation of both the negative and positive right to the protection of the inviolability of the dwellings from third parties. However, the text difference between the two provisions itself must be considered marginal, as the interpretation of classical fundamental rights and political rights has stabilised in Europe, however they are formulated, in two functional positions. The first function requires respect for the public authority for fundamental rights, that is, rights act as negative rights, fulfilling the function of defence of individuals against either excessive or completely inappropriate input of public authority into the free space of an individual who autonomously fills it with his actions as manifestations of his free will. The second function of fundamental rights recognised in Europe is protection. On the contrary, it obliges the public authority, the State and, in particular, the legislator and the executive to active activity (legislative or administrative), both in order to protect fundamental rights from possible interference by third (private) persons, or the protection function of fundamental law requires the public authority to develop an activity designed to create conditions for the implementation of fundamental rights. The two functions of fundamental rights are considered equivalent. Since almost every law contains certain restrictions on fundamental rights, and because its purpose is equally often to protect other fundamental rights or to protect the Constitution and to deal with public goods, it is the legislature's job to balance the two competing goods as far as possible so that they are both preserved as far as possible. In the recognised absence of a hierarchy of fundamental rights, there is no other way than to balance competing fundamental rights, while neither "too much" nor "too little" must be exercised by the legislator. (See for example Grimm, D.: The protective function of the state in European and US constitutionalism, Council of Europe Publishing, Strasbourg p. 119 et seq., or the decision of the German Federal Constitutional Court of BVerfGE 39, 1 (42)).
17. The Constitutional Court has clearly defined in its caselaw the importance to be attributed to the constitutional right to the integrity of dwellings under Article 12 of the Charter. In the judgment in Sp. III. ÚS 287 / 96 of 22.5.1997 (N 62 / 8 SbNU 119), it stated that "Home freedom as a constitutionally guaranteed right resulting from Article 12 of the Charter, by its nature and importance, is among the fundamental human rights and freedoms, since, together with the freedom of the individual and other constitutionally guaranteed fundamental rights, it completes the personality sphere of an individual whose individual integrity, as a fully necessary condition of the dignity of the individual and the development of human life at all, must be respected and consistently protected; Therefore, this protection falls under the protection of the constitutional system because - assessed only from a slightly different point of view - it is an expression of respect for the rights and freedoms of man and citizen (Article 1 of the Constitution)." The law guaranteed by Article 12 of the Charter is thus closely linked to the rights guaranteed by Articles 7, 8 and 10 of the Charter, which together creates the personality (private) sphere of each individual, which the law guaranteed by Article 12 of the Charter defines in a spatial manner by housing.
18. The Charter and the Convention do not, of course, specify the contents of the House Institute. By virtue of Article 82 (1) of the Rules of Procedure, the case law of the General Courts and the Czech Criminal Court, the Institute of Housing is defined as a residence space (housing, family homes, holiday homes, housing refunds, rooms in permanent housing facilities such as dormitories and hostels, as well as a rented hotel room, etc.) and premises belonging to it, which are to be considered to be all premises for which the title of ownership or other legal title entitles the use of that space for housing or living. Normally it will be a lease or lease, but the title can also be a material burden. The right to the inviolability of dwellings cannot be claimed by those who live in it without right. On the contrary, the concept of dwellings does not include premises which are not for living (other premises) within the meaning of § 82 (2) (3) of the Code, which are regarded as being mainly non-residential premises such as offices, workshops, factory halls, warehouses, business premises, as well as self-standing garages, which are not part of the dwelling (cf. Šámal, P. et al.: Penal order, commentary, I. part, 5th edition, C. H. Beck, Prague 2005, p. 629n., or somewhat different Šlíma, K. et al.: Comments on the Constitution and Listina, Nál. A. Čenek, Plzeň 2005, p. 693).
19. Contrary to the implied sub-constitutional definition of a residence establishment, the case law of the European Court of Human Rights (hereinafter referred to as the "ECHR ') builds on the wider concept of the residence establishment for the purpose of determining the scope of the fundamental right guaranteed by Article 8 (1) of the Convention and builds on its close connection with the right to private life. The wider concept of the Institute of Housing has been found by the ECHR in interpreting the Convention in the light of today's conditions, in line with the objective pursued by Article 8 of the Convention, namely to protect the privacy of persons from unauthorised interference by public authorities, since, in modern times, it is not possible to lead a sharp spatial separation of privacy in places used for housing and privacy in the working environment of a person. Therefore, under the right of respect for dwellings referred to in Article 8 (1) of the Convention, the ECHR also includes the requirement of respect for the privacy of the registered office of a company, branches or establishments of legal persons (cf. Decision of 16.4.2002 in case Société Colas Est. v France), the office space (cf. Decision of 25.2.1993 in case Crémieux v case of France or decision of 25.2.1993 in case Miailhe v France) or the premises of law offices (cf. Decision of 12.12.12.1992 in case of Niemietz z v Germany). He added that the restriction of the concept of housing in a way that excludes places of employment is not always possible when it is sufficient to point out the blending and impossibility to distinguish the individual's personal activities from those of his work (Niemietz v Germany, paragraphs 29 and 31). In addition to the case-law cited, the Constitutional Court adds that, although the first three decisions cited are based on domestic administrative procedures, the case-law is applicable in the present case, which concerns the review of criminal law, using an argument and a fortiori, since it is clear that criminal instruments have an even greater impact on the sphere of fundamental rights, despite the fact that the ECHR defines the concept of criminal offence autonomously and regardless of national classification. The latter decision is also relevant to the assessment of the case as it refers to the extension of the right to privacy.
20. The case law of foreign constitutional courts and local constitutionalism also takes a similar approach. For example, the case law of the German Federal Constitutional Court of the Housing Institute (Wohnung) within the meaning of Article 13 of the Basic Law of Germany, which guarantees the right to the integrity of dwellings and further regulates the conditions of its limitation, also explains more widely. Respect for and protection not only enjoys privacy in residential premises (housing in the narrow sense of the word), but also, for example, shops, office premises, business premises, craft shops, warehouses or agricultural buildings, etc., i.e. places where work or business is carried out. The German doctrine is based on the view that the autonomous fulfilment of private life and work activities are closely linked. The opening up of commercial premises to the public does not lead to the loss of their protection through the right to privacy or untouchable homes. However, the intensity of that right is declining and the justification for its restriction is subject to other conditions in that case. Nevertheless, it must be assumed that such commercial premises are not accessible to the public without restrictions. Only the will of their users (cf. Mangoldt, H., Klein, F., Starck, Ch.: Kommentar zum GG, Band I., 5. v.d., Verlag Franz Vahlen, München 2005, p. 1235n and the case-law of the German Federal Constitutional Court cited therein) decides on their entry.
21. The ECHR and the German Federal Constitutional Court, when interpreting the right to privacy in spatial form, i.e. the right to respect and protection of dwellings from external interventions, are not limited to the protection of premises used for housing but regard the right to respect and protection of dwellings together with the right to the integrity of persons and privacy and the right to protect personal freedom and dignity as an integral part of the private sphere of each individual, in the case of dwellings defined in a spatial way.
22. As the Constitutional Court has already pointed out, if robust and fundamental rights and individual freedoms are to be used, limiting instruments in promoting the public interest in prosecuting crime, they need to be within constitutional limits. "Criminal law sets a line between the criminal power of the state and the freedom of the individual in the intention that the exercise of criminal power of the state should not be against the individual an instrument of the desire of temporary holders of state power." (cf. Kallab, J. J.: Crime and punishment, Considerations on the foundations of criminal law, J. R. Vilímek, Prague 1916, p. 8). From the point of view of the imperative of constitutional limits in the application of the instruments of the criminal process, it should be noted that intervention in the fundamental right or the freedom of an individual by State authority is permissible only if intervention in a democratic society is necessary and is acceptable from the point of view of legal existence and compliance with effective and concrete safeguards against libel. The essential assumptions of a fair process require an individual to be provided with sufficient guarantees against the possible misuse of authority by the public authority [e.g. the finding of sp. zn. II. ÚS 502 / 2000 of 22.1.2001 (N 11 / 21 SbNU 83) or the finding of sp. zn. II. ÚS 789 / 06 of 27.9.2007 (N 150 / 46 SbNU 489), also available in the electronic database of decisions http: / / nalus.ujud.cz, and others].
23. These guarantees are primarily judicial control of the most intense interference in the fundamental rights and freedoms of persons, since even in criminal proceedings it is the duty of the courts to provide protection for fundamental rights and freedoms of individuals (Article 4 of the Constitution). Moreover, Article 13 The Convention explicitly requires that a person whose fundamental rights have been infringed, in its view, have an effective remedy before the national "institution," which must be interpreted in the light of Article 4 of the Constitution. It is also not acceptable for a court or judge to be a mere "helper 'of a public action, as by the very nature of the institution of the court (judge) the requirement of its absolute impartiality and independence [in the opinion of sp. zn. The Constitutional Court stated, inter alia:" Impartiality and independence in an objective position shall be assessed at a general level in relation to other power elements (principle of division of power), in terms of the ability of the actors (with a potential interest in a given outcome or conduct of the dispute) to influence the formation, duration and termination of the function of a member of the judicial authority (tribunal). Therefore, judges and members of judicial bodies must have a sufficiently independent status, which excludes direct or intermediate involvement in decision-making. The existence of protection against external pressures is assessed, for example, from the point of view of the existence of a potential possibility of influencing the career of a judge and of the possibility of causing the loss of his office. The status of independence certainly includes the guarantee of financial independence. Only then does he receive a formal order not to follow foreign instructions of material content, and only in so doing is neutrality and distance from parties. "]
24. In assessing impartiality and independence, it is not entirely possible to ignore the phenomenon of a case where the so-called appearance of independence and impartiality for third parties is also considered a valid criterion, as it is this aspect that is important to guarantee confidence in judicial decisions. This criterion reflects the social nature of judicial decision-making, which implies that, even if, in reality, there is no real reason (both subjective and objective) to doubt impartiality and independence, there is no possibility of a collective belief that such a reason exists (cf.
25. In the case of the use of criminal instruments restricting the fundamental rights and freedoms of the individual (including home inspection, inspection of other premises and land, personal inspection, detention and opening of consignments, wiretap of telecommunications), the requirement of judicial protection of fundamental rights must be reflected in the issuing of a court order and in its sufficient justification. This must be in line with both the requirements of the law and, above all, the constitutional principles on which the legal provision is based, or which limit its interpretation in retrospect, since the application of such a provision constitutes a particularly serious interference with the fundamental rights and freedoms of each individual (see, likewise, the found sp. zn. II. ÚS 789 / 06).
26. The above mentioned maxima resulting from the constitutional order of the Czech Republic require an independent and impartial body to decide on the issue of a search warrant for other premises and land. As such, in the above-mentioned sense, the prosecutor and, therefore, less so, the police authority cannot be regarded as such. It is not possible to ignore the fact that prosecutors perform the functions of a public action body in the contractual proceedings and are personally committed by law and by oath to the protection of the public interest (Section 18 (3) of the Prosecutor's Act). In a preparatory procedure in which they are fully dominant, they, together with the police authority, are obliged to organise their activities in such a way as to contribute effectively to the timeliness and rationality of the prosecution (Section 157 (1) of the Rules of Procedure). All of this may lead to legitimate doubts about the parties to their impartiality (or appearance) in assessing the conflict of fundamental rights and freedoms of persons with a public interest in prosecuting crime. After all, in the already cited finding sp. zn. Pl. ÚS 11 / 04 The Constitutional Court has clearly defined the requirements for a body which materially shows a quality that can be identified by the Court, "the constitutional order of the Czech Republic (Articles 81 and 82 of the Constitution) provides that the judiciary is carried out only by independent and impartial courts or, respectively, by independent and impartial judges who are governed by the fundamental rules of a fair trial (Article 1 (1) of the Constitution, Title Five of the Charter). These provisions may be interpreted as institutional guarantees of the materially understood exercise of judicial authority and therefore, from the point of view of the right to a fair trial, it is not necessary that in all cases the court within the meaning of Article 36 (2) of the Charter be solely an institution incorporated into the system of general courts, but must be an independent body whose members have independence and impartiality in their decision making. In addition, it must have unfounded access to examine all relevant aspects of the matter (both factual and legal), respecting the fundamental principles of a fair process (e.g. the principle must not be a judge in its own case or the principle must be heard by both parties), the enforceable decision cannot be reversed by another power act (definition of the judiciary in material terms). '
27. The contested provision of Paragraph 83a (1) of the Rules of Procedure sets out the conditions under which it is possible to order and inspect other premises and land, that is to say, the conditions for the use of a criminal process instrument limiting the fundamental rights and freedoms of an individual, in the present case the right to privacy in spatial form, i.e. the right to respect and protection of dwellings from outside interference.
28. Thus, in the light of the above constitutional considerations, the Constitutional Court had to assess whether parts of the contested provision met the requirements of the above principles and concluded that this was not the case.
29. The general concept of the contested provision of Section 83a (1) of the order laying down the conditions for the regulation and the carrying out of the inspection of other premises or parcels, and in particular its comparison with the provisions of Section 83 (3) of the order laying down the conditions for the regulation and for the performance of the house inspection, clearly shows that it reflects the concept of a narrower concept of the housing establishment. According to him, as mentioned above (see paragraph 18), the dwelling is defined only by the actual housing space, which must be distinguished from non-residential spaces. This approach, which, as a result of the restrictive interpretation of the right to private life, is then reflected in the determination of different (stricter) conditions for the regulation and the performance of the home inspection compared with the conditions for the regulation and the conduct of the inspection of other premises and parcels.
30. That concept, based on the strict distinction between the private life of an individual carried out in premises used for housing, which is provided with a higher degree of protection against potentially excessive public intervention, from the private life of a person, for example, in his working environment or in places which he uses for the exercise of his or her interests, or in the absence of activity in the form of simple relaxation or entertainment, the Constitutional Court considers, in the light of the principles set out in Section V. (A) of the Decision, to be inadmissible as he or she has missed the purpose of the fundamental right to private life [see, for example, Opinion No. 2. 11. The Constitutional Court is of the opinion that, especially at this time, when the autonomous fulfilment of private life and work or interest activities are closely related, it is not possible to do a sharp spatial separation of privacy in places used for housing from the places and environments created for work or business, or to satisfy their own needs or interests, even if activities taking place in public premises accessible or not closed, such as business activities, may be subject to certain restrictions which may constitute a certain interference with the right to private life. These, however, are well-defined in advance for the purpose of such restrictions, and also to a person, such as an entrepreneur, known in advance, and such a person equipped with this knowledge also enters into various specific types of activities such as entrepreneurship. However, it is without prejudice to the right of such a person to seek judicial protection against the law, albeit by anticipation of a specific intervention, which does not, however, comply with the principle of proportional limitation of the right to private life in its regulation or enforcement. As regards unbounded land (e.g. forests or meadows), a distinction should be made in principle between their entry and their "tour ', which is linked to interference with the integrity of such property (land). Therefore, its implementation must have the same regime as the inspection of enclosed spaces. It is a widely known and shared experience (especially from before 1989) that private life has often been realized in such a space through the preservation of things that should have remained hidden from the public and often mainly public power.
31. Therefore, as in the case of home inspection, as in the case of inspection of other premises, including farm houses, as well as land, there is a need to intervene in the private sphere of an individual with a spatial scope and for such intervention a prior court permit is needed.
32. This request is all the more urgent in the situation that our criminal order does not allow a subsequent inspection of other premises and land by the court. Thus these acts, which constitute an obvious interference with the fundamental right to private life, are found outside any immediate judicial control. On its necessity, the ECHR commented on the Camenzind v Switzerland (Decision of 16.12.1997). In this case, the ECHR noted an infringement of Article 13 of the Convention in relation to Article 8 of the Convention, despite the fact that the complainant had at his disposal a procedural means of contacting the relevant Chamber of the Federal Court of Switzerland. However, as a result of the "lasting intervention 'doctrine, he refused to submit it. In this situation, the ESLP found the existing procedural means inefficient. Similarly, a constitutional complaint could be considered in the Czech Republic directly against the regulation of a search of other premises, but the case-law of the Czech Constitutional Court partly shares the doctrine of" lasting intervention, "and the Constitutional Court consistently judges that if public intervention is not a non-reparable violation of fundamental rights, priority should be given to the application of the principle of subsidiarity. This means that a final decision on a matter which should also be dealt with as an objection to the right to private life in the form of a search [cf. I. ÚS 690 / 2000, sp. zn. I. ÚS 313 / 06, sp. zn. II. ÚS 434 / 06, sp. zn. III. ÚS 887 / 09 or sp. ÚS 1986 / 09 (available at http: / / nalus.ujud.cz)] can be reviewed in the proceedings on a constitutional complaint. In the intentions of the above, our constitutional complaint also appears to be an ineffective means of action. Moreover, it is certainly not desirable for the Constitutional Court to assess the proportionality of the regulation and the conduct of inspections of all premises first in similar cases. It could therefore unduly and prematurely intervene in the competence of the general courts to collect and evaluate evidence and thus predetermine the outcome of criminal proceedings.
33. In the light of the foregoing, the Constitutional Court notes that the contested parts of the provisions of Article 83a (1) of the Rules of Procedure cannot be regarded as constitutionally conformal, since they clearly infringe the aforementioned constitutional limits (Article 12 (1) of the Charter, Article 8 (1) of the Convention and Article 17 of the Pact), which are strictly necessary for the legal design (as well as for the application) of the instruments of the criminal process which restrict the fundamental rights and freedoms of individuals.
34. For the indicated reasons, the Constitutional Court decided, pursuant to Paragraph 70 (1) of the Law on the Constitutional Court, on the annulment of part of the contested provision of Section 83a (1) of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (criminal order), as amended, as set out in the operative part of this judgment, which will become enforceable on the date of its publication in the Collection of Laws (Section 58 (1) of the Law on the Constitutional Court).
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judges Vladimir Krórek, Jan Musil and Michaela Židlická to decide.
1) NB: Collection of finds and orders of the Constitutional Court, Volume 44, Found No. 30, p. 349, published under No. 37 / 2007 Coll.
2) NB: Collection of finds and orders of the Constitutional Court, Volume 14, p. 32, p. 309
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Regulation Information
| Citation | The Constitutional Court found No. 219 / 2010 Coll., on the application for annulment of § 83a of Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 08.07.2010 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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