Communication from the Constitutional Court No 238 / 2018 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 25 September 2018, sp. zn.
Valid
238
COMMUNICATION
The Constitutional Court
On 25 September 2018, the Plenum of the Constitutional Court was adopted by the President of the Court, Paul Rychetský, and the Judges Ludvík David, Jaroslav Fenyk, Josef Fiala, Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radvan Sukánek, Milada Tomková, David Uhíř and Jiří Zemánek, on the proposal of the IV Chamber of the Constitutional Court pursuant to Article 23 of Law No. 182 / 1993 Coll., on the Constitutional Court of 1 November 2017, on the legal opinion of the Constitutional Court of the Member States of the Constitutional Court of 1 November 2017.
the following opinion:
If, in a private sitting, the court rejects an unfounded complaint [Paragraph 148 (1) (c) of the Code of Criminal Procedure] against a decision rejecting an application for the renewal of proceedings [Paragraph 283 (d) of the Code of Criminal Procedure] in a situation where it itself does not repeat the evidence itself or not, it is not a breach of Articles 36 (1) and 38 (2) of the Charter of Fundamental Rights and Freedoms.
Reasons
Reasons for submitting an opinion
1. On 3 January 2018, a constitutional complaint was received from the Constitutional Court, which is based on sp. zn. IV. ÚS 38 / 18 and to which the complainant seeks the annulment of the resolution of the Municipal Court in Prague No 46 T 3 / 2015-1543 of 17 July 2017 and the resolution of the Supreme Court in Prague sp. zn. 7 To 100 / 2017 of 20 October 2017.
2. The contested decisions were issued in proceedings for the renewal of criminal proceedings, in which the complainant was found guilty of a particularly serious crime of murder under the provisions of § 140 (2) and (3) (j) of the Criminal Code at trial by judgment of the Supreme Court No 6 Tdo 1458 / 2015-61 of 25.5.2015. The complainant justified its proposal by changing its own statement of the parties' motives.
3. The City Court in Prague discussed the complainant's proposal in a public session and rejected it as an unfounded constitutional complaint by the contested resolution. According to the court of inquiry, the change in the complainant's statement does not change what crime he has committed and how. The court in the main proceedings allegedly did not come out of the complainant's statement but also from other evidence which corresponded to the confession. The municipal court also explained why he did not believe in changing the complainant's statement, with the fact that the change of attitude took place only when he realised that the actions he had previously carried out were punished in accordance with the law.
4. Against a first-stage decision, the complainant lodged a complaint rejected by the Supreme Court in Prague by the contested resolution as unfounded in a private meeting of constitutional complaints. The Court of First Instance, inter alia, identified the argument put forward by the court finding that the complainant's guilt was proved by other evidence than his testimony. In a constitutional complaint, the complainant also contends that the complaint court should have ordered a public meeting.
5. The Fourth Chamber of the Constitutional Court is of the legal opinion that the procedure of the Complaints Court in the absence of a public meeting - in the absence of a review by the referring court of the established situation - is in line with the complainant's constitutional rights. This derogates from the legal opinion expressed in the Constitutional Court's findings sp. zn. I. ÚS 1377 / 16 of 14.9.2016 (N 175 / 82 SbNU 705) and sp. zn. I. ÚS 1135 / 17 of 1.11.2017. He therefore had no choice but to apply Article 23 of Act No. 182 / 1993 Coll., on the Constitutional Court and to refer this question to the plenary.
6. Although the Constitutional Court Resolution sp. zn. The same applies to the finding of sp. zn. I. ÚS 1135 / 17. Neither of the findings in this way limits their conclusions, nor can it be unequivocally inferred from their narratives that, in the cases at the time considered, the complaint courts would have carried out the evidence (all the more so because they had carried out the evidence going beyond the evidence carried out before the Court of First Instance, or that they had reconsidered the evidence made against the Court of First Instance).
The Constitutional Court's current decision-making practice
7. The right of the defendant to take a decision on a complaint against a first-degree decision on the application for renewal of proceedings (if it is a matter of substance) has been dealt with by the Constitutional Court many times.
8. In its resolution in sp. zn. I. ÚS 117 / 04 of 18.5.2004, referring to the legal regulation (§ 240 of the Code of Criminal Procedure), it stated that "the procedure of the Court of Appeal and its decision taken in private session could not be regarded as a misconduct which could give rise to the unconstitutionality of the Rejection Order on the complaint '. In its resolution sp. zn. II. ÚS 880 / 07 of 3.5.2007 with reference to the resolution sp. zn. I. ÚS 176 / 04 of 11.5.2004 (U 31 / 33 SbNU 515) added that" in other context, the Constitutional Court had in the past concluded that, if the legislature had allowed the public to abandon the principle of legal action in proceedings which were not taken into account until after the public hearing of the case was allowed by the court of finders and appeals, it had acted in accordance with the constitutional order'.
9. The finding of sp. zn. III. ÚS 608 / 10 of 26.8.2010 (N 173 / 58 SbNU 513) addressed the situation in which the Court of First Instance granted the application for renewal of proceedings, but rejected the complaint in a private session (in addition to the situation where the defendant had not received the complaint). The Constitutional Court found that "[d] the disclosure carried out in the renewal proceedings in order to establish whether the alleged new evidence or facts within the meaning of Article 278 (1) [of the Code] are the basis of free assessment of the evidence pursuant to § 2 (6) or the principles of oral and immediate action under § 2 (11) and (12) of the Code of Criminal Procedure '. According to the Constitutional Court, the evidentiary proceedings must be of a contradictory nature which cannot be ensured in a private sitting. Therefore," if the Court of First Instance decides on a complaint against a decision of the court which has been authorised to renew, it may... revoke the contested decision itself and reject the application for authorisation of renewal pursuant to § 283 (d) of the [Code of Criminal Procedure] (i.e. for reasons of unfounded reasons on the basis of factual considerations) only... in a public sitting'.
10. The CSA 608 / 10 also identified in other cases dealing with the same procedural situation (i.e. when the Court of First Instance did not allow the recovery of the proceedings, as it did in a private sitting). For example, the resolution sp. zn. IV ÚS 305 / 11 of 19.3.2012 and the findings sp. zn. III. ÚS 1455 / 11 of 18.7.2013 (N 125 / 70 SbNU 141), sp. zn. III. ÚS 566 / 13 of 14.11.2013 (N 189 / 71 SbNU 259) or sp. zn. I. ÚS 2826 / 13 of 10.2.2015 (N 29 / 76 SbNU 383).
11. Of the decisions referred to and of the "pilot" finding sp. zn. III. It was clear that the ÚS 608 / 10 only affected situations where the complaint court ruled on a complaint from the prosecutor against a decision to restore proceedings. This is confirmed by a number of resolutions by which the Constitutional Court rejected constitutional complaints similar to those from which the proposal for this opinion was made.
12. In resolution sp. zn. I. ÚS 3022 / 11 of 6.3.2012 For example, the Constitutional Court stated that the finding of page III of the ÚS 608 / 10 "clearly does not affect the case of the complainant, since the decision of the Court of First Instance in the present case did not allow the recovery of proceedings but the complainant's application was rejected '. Likewise, in Resolution sp. zn. III. ÚS 3977 / 11 of 20 June 2013, the Constitutional Court" did not agree with the complainant's objection that there had been a breach of the right to open proceedings and the right to a fair hearing by the complainant court in its private session. The Code of Criminal Procedure allows for such a procedure in § 240, since public meetings are not expressly prescribed here. The complainant's reference to the Constitutional Court's finding, sp. zn. III. ÚS 608 / 10... will not stand up because it is based on a different factual situation (there was a complaint lodged by the prosecutor against the defendant in which the defendant was not given the opportunity to comment on the complaint by the prosecutor). "
13. Resolution sp. zn. I. ÚS 2942 / 14 of 12.11.2014 The Constitutional Court pointed out that, in the finding of the sp. zn. The Court of First Instance reassessed the evidence without carrying it out itself and without giving the parties the opportunity to comment on the evidence or the newly established substance of the case '. The Constitutional Court further added, in its cited order, that "in the present case, however, this is a different matter. The complaint court did not carry out the evidence or reassess the evidence in the file. His decision cannot be surprising, since the Court of First Instance has already rejected the complainant's proposal and the complaint court has identified the grounds for his decision. The Court of First Instance carried out a review only in legal and not in fact'. In practice, the Constitutional Court has consistently justified the resolution of IV of 1 October 2014.
14. A similar wording was also set out in the preamble to the resolution sp. zn. I. ÚS 2518 / 15 of 1 February 2016, in which the Constitutional Court recalled that the finding of sp. zn. III. ÚS 608 / 10 should be seen as a whole and that its individual parts should not be torn apart without taking into account its legal and factual context. According to the Constitutional Court, the finding in question "does not change the fact that, if the Court of Appeal confirms the decision of the Court of First Instance, it can also rule in a private sitting. This does not in any way infringe the principles of complementarity or the right of the defendant to challenge the evidence made, since in this case the appellate court does not take evidence. This conclusion is also based on the finding of page III of the ÚS 566 / 13 of 14.11.2013 (N 189 / 71 SbNU 259). In view of the fact that a decision was taken in a public sitting before the municipal court and the regional court fully accepted the conclusions of that court, it is not possible to speak of a breach of the complainant's fundamental right to the public hearing his case '.
15. Resolution sp. zn. II. ÚS 3348 / 15 of 9.8.2016 The Constitutional Court once again recalled that "the principles of public and oral law, which are undoubtedly among the fundamental principles of criminal proceedings, are applied in their entirety in the main case before the Court of First Instance, which is also at the heart of the criminal proceedings as it is at the centre of evidence. The application of these principles is then modified at different stages of criminal proceedings, given the specificities of which management phase. In general, two forms of hearing are foreseen by law - public and private meetings. Where the law on a complaint against a decision of a Court of First Instance foresees a private meeting to be held, it is not possible, on the basis of the above, to establish a breach of the principles of the public and of the oral procedure, and it is not possible to accuse the Regional Court of anything in that regard '.
16. The legal opinion changed (now overcome) by finding sp. zn. I. ÚS 1377 / 16 of 14.9.2016 (N 175 / 82 SbNU 705). In this case, in the context of the unchanged constitutional and sub-constitutional legislation, and despite the different factual and legal context (see resolution sp. zn. I. ÚS 2518 / 15), the Constitutional Court applied the conclusions of the finding in sp. v. III. ÚS 608 / 10 of 26.8.2010 (N 173 / 58 SbNU 513) to situations where the Complaints Court confirmed the primary decision rejecting the application for renewal. In doing so, the Constitutional Court found infringement of the complainant's right guaranteed by Article 36 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter '). The arguments set out in the decisions cited by the Constitutional Court (see paragraphs 12 to 15 of this Opinion) are not dealt with as, beyond the recap of the decision, the finding in question is not addressed. The ÚS 608 / 10 only states in a single paragraph:
"Taking into account the postulate adopted by the Constitutional Court in its recollection of the" pilot 'finding sp. zn. III. ÚS 608 / 10 of 26.8.2010 (N 173 / 58 CollU 513), according to which the Court of First Instance ruled on a complaint under § 286 (3) [the Code of Criminal Procedure] must be subject in a proportionate manner to the principles governing the appeal proceedings in respect of the implementation and assessment of the evidence by the Court of Appeal and its own judgment on the substance of the case, it cannot be concluded that the Regional Court in Ostrava should have ruled on the complaint by the complainant in a public sitting. Indeed, it is clear from the provisions of Section 263 of the [Code of Criminal Procedure] governing proceedings before the Court of Appeal that the Court of Appeal may also decide to appeal in a private sitting, but only in the cases foreseen in Sections 253, 255 and 257, respectively, Section 258 (1) of the [Code of Criminal Procedure], subject to compliance with the condition set out in Section 263 (1) (b) of the [Code of Criminal Procedure], that is to say, when the court does not act in substance. Otherwise, it shall take a decision in a public session. In the present case, the complaint court ruled on the complainant's complaint meritally, so it was appropriate to discuss it in a public hearing, under the conditions of the analogous conditions of the second instance court's decision of appeal.'
17. The finding of sp. zn. I. ÚS 1377 / 16 was not entirely followed in the case-law of the Constitutional Court. On the basis of its previous case-law, the Constitutional Court established, in its resolution No II, the ÚS 2831 / 16 of 11 October 2016, in which it explained that the conclusions of the finding of the Constitutional Court No III, the ÚS 608 / 10 do not in any way affect "the case where the Court of Appeal confirms the decision of the Court of First Instance (as was the case with the complainant), and it can also decide here in a private sitting. This does not in any way infringe the principles of complementarity or the right of the defendant to challenge the evidence made, since in this case the Court of Appeal no longer carries out the evidence '. The inconstitutionality of the procedure of the Complainant Court in the form of a non-establishment of a public meeting was not found by the Constitutional Court even in Resolution sp. zn. II. ÚS 2132 / 17 of 8.8.2017. It rejected the constitutional complaint for obvious unfounded reasons, although the Constitutional Court did not respond specifically to the objection raised not to the establishment of a public meeting.
18. In Resolution sp. zn. III. ÚS 1576 / 17, the Constitutional Court sought to distinguish the case at the time from the one dealt with in the decision sp. zn. I. ÚS 1377 / 16 (see above):
"As indicated by the Constitutional Court in Resolution III of the ÚS 62 / 04 of 15.4.2004 (U 19 / 33 of the SbNU 409), the General Courts cannot take over the newly alleged facts or evidence without assessing them in relation to the facts and evidence of which the original facts have arisen. It is also necessary to evaluate the evidence in the procedure for the application for renewal; However, of course, in such a way as not to assess the defendant's guilt (the complainant) as follows, for example, from the finding of sp. zn. I. ÚS 2517 / 08 of 24.2.2009 (N 34 / 52 SbNU 343). In the present case, however, the Constitutional Court did not find any misconduct in the procedure of the courts, even in the sense of a breach of the consistency of the proceedings and of the taking of evidence. In the present case, the conditions for the independence of the Constitutional Court were not met by a similar finding of sp. zn. I. ÚS 1377 / 16 of 14.9.2016. There was no substantive examination of the evidence in excess of that carried out by the Regional Court in a public sitting... or direct implementation of the evidence, as was the case in the case of the finding of sp. zn. I. ÚS 1377 / 16 of 14.9.2016 (N 175 / 82 SbNU 705), cf. paragraph 15; the said complainant does not change the fact that the Supreme Court was aware of the content of the file in the criminal case.
The procedure of the Supreme Court is both consistent and consistent with the case law of the European Court of Human Rights, when, according to the judgment of 19 December 1997 in the Helle case against Finland, complaint No 20772 / 92, paragraphs 59 and 60, the appeal court, when rejecting the appeal, can also limit itself to accepting the reasoning of the lower court. Therefore, it is not contrary to this, when the Supreme Court responded to the complaints by explicitly referring to the conclusions of the Court of First Instance, which correspond to the requirements of the constitutional context. The fact that the Complaints Court has, in other directions, more detailed or emphasised the constitutionally conformal conclusions of the Court of First Instance cannot also be described as a fault. Nor has such a procedure infringed the principle of double-digit criminal proceedings. '
19. The Constitutional Court has re-applied to the finding of sp. zn. I. ÚS 1377 / 16 in the now overturned finding of sp. zn. I. ÚS 1135 / 17 of 1 November 2017. He found that, by rejecting the decision rejecting the application for renewal, the complainant's rights guaranteed by Article 36 (1) of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') were violated in a private session. Beyond the reference to the sp. zn. I. ÚS 1377 / 16 The Constitutional Court has not put forward any new arguments.
Own justification of the opinion
20. The Committee of the Constitutional Court first focused on whether the obligation of the Complaints Court to decide in a public sitting results from legal regulation. If this were the case, the plenary would have to consider whether the non-establishment of a public meeting in violation of the law constitutes not only the illegality of the subsequent decision of the court, but also its illegality. Otherwise, if the Act does not provide for a public hearing for a complaint against a decision which has not been authorised to renew the procedure, the plenary must examine whether this requirement nevertheless arises from Article 6 (1) of the Convention and Article 36 (1) of the Charter (or from Article 38 (2) thereof, see below), how it has completed the findings sp. zn. I. ÚS 1377 / 16 and sp. zn. I. ÚS 1135 / 17.
Legislation
21. The Code of Criminal Procedure recognises four basic forms of the sitting. The main proceedings (§ 196 et seq.), public meetings (§ 232 et seq.), private meetings (§ 240 et seq.) and detention sessions (§ 73d.). Under Section 240 of the Code of Criminal Procedure, the court shall decide in a private session where it is not prescribed by law to take decisions in the main trial, in a public session or in a detention session. This does not preclude the law from expressly stating in some cases that a meeting is or may be a private meeting (e.g. § 263 (1) of the Code of Criminal Procedure).
22. Pursuant to Paragraph 286 (1) of the Criminal Code, the court shall decide on the application for renewal in a public sitting, with the exceptions set out in Paragraph 286 (2) of the Penal Code, for which a decision may be taken in a private sitting. Pursuant to Paragraph 286 (3) of the Criminal Code, a complaint with suspensive effect is admissible against the decision on the renewal authorisation. The title of the Seventh Code of Criminal Procedure (Section 141 et seq.), which provides for a complaint procedure, does not provide for any form of court decision. In accordance with Section 240 of the Code of Criminal Procedure, the Court of Complaints shall, in principle, rule in a private sitting, which shall also apply to the decision on the complaint against a decision rejecting an application for renewal for unfounded reasons. The rejection of a complaint against a decision which has not been authorised to resume proceedings is therefore in accordance with the law in a private sitting.
23. However, even the procedure of the courts consonant with the law may be contrary to the fundamental rights of the parties. The Constitutional Court's board therefore focused on Article 6 (1) of the Convention and Article 36 (1) of the Charter, of which, according to the findings of sp. zn. I. ÚS 1377 / 16 and sp. zn. I. ÚS 1135 / 17, the obligation of the Complaints Court to take decisions in proceedings on the application for renewal of proceedings in a public sitting.
Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms
24. Article 6 (1) of the Convention:
"Everyone shall have the right to have his or her affairs dealt with fairly, publicly and within a reasonable period of time by an independent and impartial court, established by law, which shall decide on his or her civil rights or obligations or on the validity of any criminal charges against him. The judgment must be declared publicly, but the press and the public may be excluded either for the entire or part of the process in the interests of morality, public order or national security in a democratic society, or where the interests of minors or the protection of the private life of the participants so require or, to the extent deemed strictly necessary by the court, if, in the light of special circumstances, the public proceedings could be prejudicial to the interests of justice. '
25. However, the cited article of the Convention on the Protection of Human Rights and Fundamental Freedoms does not fall at all on the procedure on the proposal for renewal of proceedings. The Convention does not guarantee the right to reopen an already completed trial and, in the examination of the application for renewal of proceedings, no decision is taken on civil rights or obligations or on the legitimacy of criminal charges (see the judgment of the Grand Chamber of the European Court of Human Rights in Bochan v Ukraine of 5.2.2015 No 22251 / 08; § 44, see also the order of the Constitutional Court sp. zn. IV. ÚS 3306 / 09 of 4.2.2010 or resolution sp. zn. I. ÚS 2942 / 14 of 12.11.2014).
26. The European Court of Human Rights has nevertheless, in some cases, extended the protection of Article 6 (1) of the Convention and of the procedure for reopening the proceedings, provided that the legislation thus called the appeal was in line with other remedies, such as the Czech leave. In its judgment in the San Leonard Band Club v Malta of 29.7.2004 (No 77562 / 01, § 40 et seq.), for example, it took into account that, in Malta, the recovery of proceedings could be sought by an objection to an incorrect legal assessment of the case, which, inter alia, in view of the absence of a third review instance, meant that it was essentially a traditional remedy (the nature of the remedies covered by Article 6 (1) of the Convention, as well as the Marest judgment of 25 June 2009 against Croatia).
27. However, there is no doubt that the application for renewal of proceedings under § 277 et seq. of the Code of Criminal Procedure is an exceptional remedy not falling within the scope of Article 6 (1) of the Convention. The renewal of the proceedings takes account of cases of final termination and its purpose is not to remedy any misconduct of the courts in the main proceedings (for this purpose the appeal and, where appropriate, a constitutional complaint is used; after all, the application for authorisation of renewal is not even decided by an instant superior court), but to respond to new facts or evidence which were previously unknown to the court. The application for renewal is not limited in time to exceptions [Paragraph 279 (b) of the Code of Criminal Procedure), the proposal does not constitute an effective means of protecting the law that would have to be exhausted before the submission of other means of protection of rights (constitutional complaints, complaints to the European Court of Human Rights), and the decision on it depends, inter alia, on the discretion of the court whether the alleged new evidence and facts could have an impact on the outcome of the previous proceedings. The application for renewal of proceedings under the Code of Criminal Procedure is therefore, according to its nature, an exceptional remedy excluded from the scope of Article 6 (1) of the Convention.
Article 36 (1) of the Charter of Fundamental Rights and Freedoms
28. The statements of this opinion of the surpassed findings were limited (apart from the contravention of the Convention, see above) to the finding of contravention of Article 36 (1) of the Charter. However, these findings are argued to be based on the exits of the finding sp. zn. III. ÚS 608 / 10 of 26.8.2010 (N 173 / 58 SbNU 513), which, although in a different situation, found that the Charter had not established a public meeting and a breach of Article 38 (2). In other words, it is clear from the reasons for the findings that the alleged infringement of Article 36 (1) of the Charter, as stated in the operative part, was to result from the alleged infringement of Article 38 (2) of the Charter.
29. Article 36 (1) of the Charter:
"Any person may seek the application of his or her right in an independent and impartial court and in specified cases to another authority. '
30. Article 38 (2) of the Charter:
"Everyone has the right to have his case discussed publicly, without undue delay and in his presence and to be able to comment on all the evidence carried out. The public may be excluded only in cases provided for by law. '
31. Article 96 (2) of the Constitution of the Czech Republic:
"The hearing shall be oral and public; the exceptions are provided for by law. The sentence shall always be declared publicly."
32. Although the Charter expressly allows the legislature to provide for an exemption only from the right to open the case, the Constitutional Court has already stated in the sp. zn. The instruments need to be interpreted together with Article 96 (2) of the Constitution (which also allows for an exception to the principle of mouth). He stated that "the term 'his case' must be interpreted as requiring that anyone whose rights and obligations are to be dealt with in court proceedings should have the opportunity to take part in the proceedings and to comment on all the evidence carried out and that the Court of First Instance should act in its presence and in the public domain, provided that the law does not provide for an exception within the meaning of Article 96 (2) of the Constitution, which, however, is only possible in respect of the principle of mouth and the public '.
33. In accordance with this interpretation, the Constitutional Court considers, as a matter of principle, a constitutional conformal hearing of appeals in private meetings without the parties present, if such a procedure is appropriate in the law. In its Opinion in sp. zn. Pl.
34. The interpretation of the Constitutional Court, according to which appeals may be held in private meetings without the parties present, shall be based on two basic bases. First, that the parties have the possibility of hearing their case orally, publicly and in their presence already in the previous stages of the proceedings (typically before the Court of Appeal or, where applicable, the Court of Appeal; the opinion of the Constitutional Court in plenary sp. zl.
35. Secondly, the constitutional conformity of appeals in private meetings arises from their nature as they are usually aimed at examining legal issues. The determination of the facts is primarily the task of the finding courts and the instance of a superior court is based on the facts thus ascertained, unless the evidence itself repeats or completes [cf. paragraph 259 (3) of the Criminal Code or Article 213 of the Civil Code; See also the findings of the Constitutional Court sp. zn. III. ÚS 3432 / 15 of 8.8.2017 or sp. zn. I. ÚS 3725 / 10 of 3.8.2011 (N 139 / 62 CollNU 175)] - such a reassessment of the facts takes place in the presence of the parties, if they do not waive that right [Constitutional Court finding sp. zn. II. ÚS 222 / 07 of 26.4.2007 (N 72 / 45 SbNU 143)]. The court seised may also refer the case back to the Court of First Instance to supplement the taking of evidence [§ 258 (1) (b) of the Code of Criminal Procedure or § 219a (2) of the Civil Code], which subsequently also occurs in the presence of the parties.
36. There is no reason why this should not also apply to proceedings for the renewal of criminal proceedings. First of all, it must be recalled that it does not decide on guilt and punishment (nor on deprivation of liberty). This was already the case in the previous proceedings in which the defendant was finally convicted. It is true, as stated by the Constitutional Court's finding, sp. zn. III. TASK 608 / 10 that the renewal procedure is in a number of aspects of the analogous phase of criminal proceedings taking place on the substance. It follows that, in order to establish whether there is alleged new evidence or facts in accordance with Paragraph 278 (1) of the Criminal Code, the principle of free assessment of the evidence and of the principles of mouth and urgency cannot be excluded and that the proceedings must be of a contradictory nature. However, this logically applies to the stage of the procedure at which the evidence actually takes place, or to situations where a second-degree court, on the basis of a repetition or addition of the evidence, makes different factual conclusions (cf. § 259 (3) of the Criminal Code).
37. The Court of First Instance, which takes its decision in principle in a public sitting, also has the centre of gravity of the evidence in proceedings for the renewal of criminal proceedings. In that case, the defendant has the opportunity to be present at the hearing of his case (which he had already had before the Court of Appeal in the main proceedings) and to comment on all the evidence carried out. Of course, it is not impossible that even a complaint court decides to carry out the taking of evidence and to make a substantial reassessment of the facts found by the court seised. However, if the Court of First Instance rejects the application for retrial and the complaint court agrees with its assessment, the review of the evidence or the addition of the evidence usually does not take place at all (see also the resolution in section III of the Resolution 1576 / 17). In such a situation, the right of the defendant to comment on all the evidence carried out by holding a private meeting is not affected at all (which does not change anything, if the complaint court becomes aware of the content of the file in the case in question, the content of the criminal file is also commonly known to the Constitutional Court, without having held oral proceedings to that effect; Resolution sp. zn. III. ÚS 1576 / 17), with the right to open the case in its presence being fulfilled before the court seised [cf. II. ÚS 2307 / 15 of 1.12.2015 (N 203 / 79 SbNU 305); in which the Constitutional Court, in the procedure of the Complaints Court, which, in the proceedings for the request for the waiver of the sentence of imprisonment, added evidence in a private sitting, on the basis of which it decided differently from the Court of First Instance, found the infringement of the right to express its views on the evidence made; However, the Constitutional Court did not find a breach of the right to open the case, but stated that the discussion of what affects the court's decision did not necessarily have an oral nature].
38. The previous findings, sp. zn. I. ÚS 1377 / 16 and sp. zn. I. ÚS 1135 / 17 base their argument on the finding of sp. zn. III. ÚS 608 / 10, from which they concluded that the provisions of the Penal Code relating to appeal proceedings must be applied to the complaint against the decision to refuse the retrial (point 17 of the decision of page 1377 / 16). Thus, in a private session, they consider that a complaint can only be decided on where an appeal can be decided on in a private session. However, there is no such finding, sp. zn. III. ÚS 608 / 10.
39. The finding was first established that the proceedings against the decision on the application for renewal of proceedings "should apply mutatis mutandis to the finding of the right to be present at the hearing and to the right to comment on the evidence which the Constitutional Court has found in its findings concerning the criminal proceedings, including the proceedings before the appeal court [see, for example, the finding of sp. zn. I. ÚS. The findings referred to are those in which the Court of First Instance prevented the defendant from taking part in a mandated public session, in which he also tightened up the sentence (sp. zn. I. ÚS 2971 / 09 of 17.2.2010), when he added evidence in a private session and reached new factual and legal conclusions (sp. zn. II. ÚS 222 / 07 of 26.4.2007 and sp. zn. I. ÚS 2669 / 09 of 25.11.2009), when he did not deal with the objections raised in the complaint (sp. zn. I. ÚS 1756 / 08 of 24.11.2008), when - in the civil proceedings - he decided without the regulation of the act (sp. ÚS 1537 / 09 of 19.1.2010).
40. In the finding of sp. zn. I. ÚS 574 / 05 of 30.5.2006 (on which the finding of sp. zn. III. ÚS 608 / 10 is also referred to), the Constitutional Court even stated (in a situation where the convicted person missed a public session in proceedings to change the suspended sentence to unconditional detention): "The absence of a public session before the Court of First Instance cannot be caught up in an appeal proceedings against a judgment of the Court of First Instance. Therefore, the objection that the complaint was decided by the Regional Court in a private sitting, contrary to Article 38 (2) of the Charter, does not appear to be possible in the present context, since the complainant itself removed the possibility of hearing the case in his presence at the court of inquiry; in so doing, in proceedings before the court seised, in taking evidence, the requirement that the defendant be present at the sitting has its primary purpose in order to be able to comment on all the evidence carried out. '; In other words, according to the Constitutional Court, and in the process of converting the conditional sentence into an unconditional one, it is sufficient to hold a public meeting at first instance, even if the defendant did not take part in the sitting by his own fault.
41. Therefore, the conclusion reached by the now overcome findings cannot be inferred from the quoted sentence of the decision sp. zn. III. ÚS 608 / 10 of 26.8.2010 (N 173 / 58 SbNU 513). Nor can it be done from the part of the finding in which the Constitutional Court found that, in view of the nature of the procedure for the renewal of proceedings, "the decision of the Court of First Instance on a complaint under Paragraph 286 (3) of the Code of Criminal Procedure must be subject in a proportionate manner to the principles governing the appeal procedure as regards the implementation and assessment of evidence by the Court of Appeal and its own decision on the substance of the case (cf. § 259 (3), § 263 (7) of the Code of Criminal Procedure) '. In fact, the finding expressly stresses that it refers to the taking of evidence and refers to those provisions of the Code of Criminal Procedure which address the conditions under which the Court of Appeal may make other factual findings.
42. The findings of sp. zn. I. ÚS 1377 / 16 and sp. zn. I. ÚS 1135 / 17 therefore conflict with the settled case law of the Constitutional Court on the rights guaranteed by Articles 36 (1) and 38 (2) of the Charter.
43. In accordance with it, it is necessary to conclude that the Complaints Court does not in principle have to order a public meeting to deal with a complaint against a decision which has been rejected for unfounded reasons. However, in view of the constitutional right to express its views on all the evidence carried out, this shall apply only if it does not re-evaluate the facts found by the court seised in a manner which affects its legal conclusions and if it does not repeat or fail to comply with the evidence made before the court seised or, where appropriate, in the context of the original criminal proceedings.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, they took up the full view of the Judge Tomáš Lichovník and David Halič.
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Regulation Information
| Citation | Notice from the Constitutional Court No 238 / 2018 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 25 September 2018 sp. zn. Pl. ÚSN. 47 / 18 on the possibility of the Court of First Instance not ordering a public meeting to discuss a complaint against a decision to refuse an application for the renewal of criminal proceedings |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 23.10.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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