Found at the Constitutional Court of the Czech Republic No. 23 / 1997 Coll.

Order of the Regional Court in Ústí nad Labem - Branch Office in Liberec of 22 July 1996 No 28 This 191 / 96-15 is deleted.

In a timely constitutional complaint against the abovementioned order of the Regional Court in Ústí nad Labem - a branch in Liberec, which rejected the complainant's complaint against the order of the District Court in Liberec of 30 May 1996 No 18 NT 1258 / 96-6 on the taking of the complainant into custody for the reasons of Paragraph 67 (a), (b) of the Code of Criminal Procedure, the complainant persists in his view that the contested resolution infringed the provisions of Article 8 (2), (3), (5) of the Charter of Fundamental Rights and Freedoms ("the Charter '). In fact, the General Courts have ruled on the complainant's involvement on a proposal from the Prosecutor in breach of the provisions of Paragraph 77 (1) of the Criminal Code, since the period of limitation of his personal freedom exceeded 24 hours. Instituses of detention of a person suspected under the provisions of § 76 of the Penal Code and collateral under § 14 (1) (d), (e) of the ČNR Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, are quite identical. Therefore, if the Charter provides in Article 8 (3) that the detainee must be released within 24 hours at the latest, this provision shall apply both to the procedure under Paragraph 76 (1) of the Criminal Code and to the procedure under Paragraph 14 (1) (e) of the ČNR Act 283 / 1991 Coll., as amended. For these reasons, the complainant should have been released immediately, so that the decision on his detention was out of the question. Moreover, the binding courts did not properly address whether the grounds for the binding provided for by the law were given. For these reasons, the complainant proposes that his constitutional complaint be met for infringement of Article 8 (2), (3), (5) of the Charter and that the contested order be annulled.

The Regional Court in Ústí nad Labem - a branch in Liberec stated in the opinion of the President of the Senate that if the complainant was secured pursuant to § 14 of Act No. 283 / 1991 Coll., as amended, this period of detention cannot be counted against the time when the complainant was detained under the relevant provisions of the Code of Criminal Procedure. The 24-hour period within which the prosecutor, pursuant to Paragraph 77 (1) of the Penal Code, is required to refer the detainee to the court for the application for custody shall begin only when the defendant has been detained under Paragraph 76 (1) of the Penal Code. This view, as stated below, is based not only on the above-mentioned provisions of the Code of Criminal Procedure, but also in line with the comment on the Code of Criminal Procedure and the decision published under No 10 / 1995. In the present case, the reasons for taking custody were undoubtedly given.

The Constitutional Court, as it has already stated in a number of its findings, is not a court superior to the courts, is not at the top of their system, and can therefore no longer attract the right of review of their activities, provided that those courts in their activities proceed in accordance with the content of the Fifth Charter. In this respect, the Constitutional Court found from the investigation file of the Czech Police, Regional Bureau of Investigation, the Czech Office of the Czech Lípa, no. ČVV-63 / 20-95, and the recorded record of the Czech Police, Regional Directorate of the Czech Lípa of 28 May 1996, that the complainant was secured on 27 May 1996 at 13.30 at the Regional Directorate of the Police of the Czech Republic in Jeseník, and was transferred to the Czech Lípa, where he was placed in a holding cell on 28 May 1996 at 12.30. The record of detention of the defendant, drawn up on 28 May 1996 at 13.15. The police of the Czech Republic, the Regional Bureau of Investigation, the office of Česká Lípa, further it is clear that the complainant was detained pursuant to § 75 of the Code of Criminal Procedure and this detention was notified to the prosecutor on 28 May 1996 at 13.30 pm. The Police of the Czech Republic, the Regional Bureau of Investigation, the Institute of the Czech Lípa Institute, then took the initiative by letter dated 29 May 1996 to the Regional Public Prosecutor's Office in Ústí nad Labem - a branch in Liberec to propose the imposition of a detention order and the State Prosecutor subsequently proposed the taking of the complainant into custody under Section 68 of the Code of Criminal Procedure. This application was submitted on 29 May 1996 to the District Court of Liberec, which, by order of 30 May 1996 No 18 NT 1258 / 96-6, decided to take the complainant into custody on the grounds of § 67 (a), (b) of the Code of Criminal Procedure. The complainant's complaint against this order was decided by the Regional Court in Ústí nad Labem - a branch in Liberec by order of 22 July 1996 No 28 That was 191 / 96-15 by rejecting the complaint under Paragraph 148 (1) (c) of the Code of Criminal Procedure. On the grounds of its decision, it notes that the rules of the Code of Penal Procedure, which is decisive for the judge, should be consistently followed when deciding on detention, and in view of which the complainant was detained at 13.15 on 28 May 1996. If the complainant has then been secured earlier in accordance with the provisions of § 14 of Act No. 283 / 1991 Coll., as amended, it is not for the court to review this procedure, since only the relevant provision of the criminal order is relevant to the judge deciding on the existence of the detention grounds. In the order under appeal, the Regional Court further concluded that the complainant's grounds of detention under Paragraph 67 (a), (b) of the Code of Criminal Procedure were given.

The provision provided for in Section 14 of the ČNR Act No. 283 / 1991 Coll., in its original version, was essentially of an orderly nature, since its purpose was to eliminate the imminent or ongoing conduct consisting of a threat to the life or life or health of other persons or property [§ 14 (1) (a) of the Act cited], an attempt to escape on presentation pursuant to Sections 12 (8) and 13 (5) [§ 14 (1) (b) of the Act cited], or a verbal insult to the police department, by another person or police officer, or by intentional pollution or damage of equipment or police property [§ 14 (1) (c) of the Act cited]. The amendment of this Act implemented by the ČNR Act No. 26 / 1993 Coll., amending and supplementing certain laws in the field of internal order and security, and the measures related thereto, but extended the reasons for the provision to date for the reasons justifying the arrest of a person who was caught committing a crime [§ 14 (1) (d)] or who is suspected of preparing, attempting or committing a crime on the basis of criminalistic evidence [§ 14 (1) (e)]. By this amendment, the Institute of Security has already been moved to a purely criminal procedural level in both amended cases. In the latter cases, the detention is not merely a function of order, as what is at stake here is in fact the detention of either the perpetrator of the offence or the person suspected of preparing, attempting or committing the crime. The Constitutional Court therefore has doubts as to the constitutionality of the current caselaw of the General Courts, which is based on the opinion expressed in the order of the Regional Court in Brno of 1 February 1994 sp. zn. 9 This 47 / 94 and published in the Collection of Judgments and Opinions under No 10 / 1995. According to this Opinion of the General Courts, if the personal freedom of the suspect has been restricted by his detention pursuant to § 14 of Act No. 283 / 1991 Coll., as amended, the period of such detention cannot be counted against the time of detention of the accused under the relevant provisions of the Code of Criminal Procedure. On the contrary, the Constitutional Court considers that if a person suspected of committing a crime is brought to detention, a period of 24 hours under the provisions of § 14 (3) of Act No. 283 / 1991 Coll., as amended, should be added to the 24-hour detention period under § 75, 76 of the Code of Criminal Procedure. The opposite approach to the relationship of collateral under § 14 (1) (d), (e) of the ČNR Act No. 283 / 1991 Coll., as amended, and detention under § 75, 76 of the Criminal Code, as is still common in proceedings before general courts, is in the opinion of the Constitutional Court contrary to Article 8 (3) of the Charter, according to which the detainee must be released or surrendered to the Court within 24 hours at the latest. The judge must then question the person detained within 24 hours of taking over and decide whether to arrest him or release him or her.

Thus, if the complainant had already been detained on 27 May 1996 at 13.30 on suspicion of a crime, then on 28 May 1996 at 13.15 on the basis of Paragraph 75 of the Code of Criminal Procedure, and only handed over to the court on 29 May 1996, this was already the case after the 24-hour period. Furthermore, it should be noted that if the complainant was to be released (Paragraph 75 of the Third Code of Criminal Procedure) and the prosecutor did not do so and, on the contrary, made a motion under Section 68 of the Code to take the complainant into custody, the General Courts could not make a substantive decision on such a proposal, burdened by that irreparable deficiency. By failing to take into account this interference in the complainant's personal freedom, the General Courts, regardless of the legal basis, accepted the state's attorney's proposal for his release and decided on the complainant's custody, violated the complainant's constitutional rights enshrined in Article 8 (2), (3), (5) of the Charter.

The Constitutional Court therefore, without having been able to further examine the grounds for the detention pursuant to § 67 (a), (b) of the Criminal Code, the constitutional complaint for infringement of Article 8 (2), (3), (5) of the Charter pursuant to § 82 (2) (a) of Law 182 / 1993 Coll., on the Constitutional Court, complied with and annulled the contested order pursuant to § 82 (3) (a) of the Act cited.