The Constitutional Court found No 239 / 2005 Coll.
The Constitutional Court found of 22 March 2005 on the application for annulment of the provisions of § 242 (2) of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (criminal order)
Valid
The Constitutional Tribunal found
Text versions:
17.06.2005
239
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 22 March 2005 in plenary composed of JUDr. PhDr. PhDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Jana, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr. Eliška Wagner on the motion of the Second Chamber of the Constitutional Court on the annulment of the provisions of § 242 (2 of Law No 141 / 1961 Coll., on the criminal Code),
as follows:
1. Paragraph 242 (2) of Act No. 141 / 1961 Coll. is deleted from the date of the declaration of the finding in the Collection of Laws.
2. Article 5 (4) The Convention on the Protection of Human Rights and Fundamental Freedoms is necessary to hear the defendant before deciding on his complaint against the State's order to continue the detention.
Reasons
Definition and recap of the proposal
The Constitutional Court received a formal and timely notification of the constitutional complaint by T. K., no., in custody in Praha- Pankrác, against the order of the Municipal Court in Prague of 4 February 2004 sp. zn. 44 To 54 / 2004. The procedure for this constitutional complaint is conducted under point II.ÚS 96 / 04. By order of the Municipal Court in Prague of 4 February 2004 No 44 To 54 / 2004-231, the complainant's complaint against the order of the Prosecutor of the Municipal Prosecutor in Prague of 18 December 2003 No. KZv 293 / 2003-173 was rejected as unfounded. By doing so, the complainant, pursuant to Article 71 (3) of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, was held in custody.
The Second Chamber of the Constitutional Court suspended proceedings on constitutional complaints pursuant to § 78 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and proposed the annulment of § 242 (2) of the Criminal Code.
The complainant, referring to the case-law of the European Court of Human Rights in case A.B. against Slovakia, argued, inter alia, a breach of the principle of equality of arms, according to which all parties to the dispute must have the same opportunity to speak and defend their truths and none of them must have a significant advantage over the opposing party. The Second Chamber of the Constitutional Court concluded that, in accordance with Article 5 (4) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') and the caselaw of the European Court of Human Rights (" the Convention'), the conduct and decision of the Court of Justice on the complaint of the defendant in this case are subject to all the requirements for the conduct of a proper process, as the complainant makes an example of. The fundamental institutional guarantees of fairness of proceedings for the continuation or termination of restrictions on personal freedom include the right of the accused to be heard in a contravention procedure in which the legality of the continuation of the detention is reviewed. Under the current legislation [§ 74 (1), § 146a (1) (a), § 148, 149, 240 and 242 of the Code of Criminal Procedure and § 31 of Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of Courts and on the amendment of certain other laws (the Law on Courts and Courts)], applied by the Municipal Court in Prague in the present case, the court decides on a complaint against the decision of the State Prosecutor to leave the defendant in custody in a private session. The members of the Chamber and the recorder shall be present. Other persons shall be excluded from participation in a private session. The Court of First Instance shall be entitled to refer only to the order of the Prosecutor on the extension of the detention, the complaint lodged against that order and the documents contained in the file. In the opinion of the Second Chamber of the Constitutional Court, this provision does not correspond to the above-mentioned right of the accused to a fair trial, enshrined in the Convention, which is an international treaty pursuant to Article 10 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
Recital of the essential parts of the observations of the parties
The Constitutional Court sent a motion to initiate proceedings in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., as amended, to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.
The Chamber of Deputies stated that in its decisions the Constitutional Court repeatedly (the findings published under No. 121 / 1996 Coll., No. 286 / 1996 Coll., No. 38 / 1999 Coll., No. 83 / 1999 Coll., No. 192 / 1999 Coll., No. 290 / 1999 Coll., No. 3 / 2000 Coll., No. 98 / 2004 Coll.) applied to the principle of the priority of constitutionally conformal interpretation prior to deregation, i.e. in a situation where a particular provision of the law allows two different interpretations, one being consistent with the constitutional order and the other being contrary to that provision, no reason is given; when applying it, it is for the courts to interpret the provision in a constitutional manner. It further recalled that in a case of fact similar to that of (Case C-573 / 02 ÚS 573 / 02 of 23 March 2004) The Constitutional Court found that the general courts referred to in the interpretation of the Code of Criminal Procedure did not provide room for hearing the accused in the custody proceedings. However, pursuant to Article 10: The Constitution shall apply if an international treaty provides for something other than a law, the international treaty shall apply. Therefore, the provisions of the Code of Criminal Procedure must be interpreted in a constitutional manner, which means, in the present case, the need to respect the established and unambiguous interpretation of Article 5 (4) of the Convention by the European Court of Human Rights. Therefore, the Chamber of Deputies appears to be more appropriate in a constitutionally conformal interpretation of the provisions of Paragraph 242 of the Penal Code than of the Penal Code, even taking into account the provisions of Section 243 of the Penal Code, governing the performance of evidence in a private session which is of a mandatory nature in terms of simple law. This provision should also be applied taking into account Article 5 (4) of the Convention and its interpretation by the European Court of Human Rights. Therefore, the Chamber of Deputies concludes that the objective pursued by the proposed proposal might not be met by the derogating provision of Paragraph 242 (2) of the Criminal Code.
The Senate stated that it dealt with this legal provision in the context of the proposal of the so-called great amendment to the Code of Criminal Procedure (implemented by Act No. 265 / 2001 Coll.), when the compliance of the state's attorney's authority to decide in the preparatory procedure on the continuation of the link with Article 8 (5) of the Charter of Fundamental Rights and Freedoms was fundamentally discussed. The requirement that the right of the defendant to be heard before the judgment may be exercised in proceedings for the continuation or termination of the custody, has not been specifically stated. The Senate has largely agreed that the proposed amendment, as a result, monitors the positive transformation of too complex, costly and cumbersome management into a more effective (faster) crime-suppressing tool while maintaining democratic rules of a fair process.
However, it generally noted that Article 5 (4) The Convention is interpreted strictly in such a way that, after a certain period of hesitation with regard to the full application of the requirements of a fair trial for detention proceedings, oral proceedings must be held if there is a connection in criminal proceedings (Nicola v. Bulgaria, 25 March 1999 and others). Scope of application of Article 5 (4) In so doing, the Convention goes beyond its wording, which is confined to deciding on the defendant's proposal, and also concerns the decision to extend the detention (e.g. Grauzinis versus Lithuania, 10 October 2000). Thus, the European Court of Human Rights considers Article 5 (4) of the Convention to be a guarantee of habeas corpus. The Convention imposes a general obligation on Contracting States to respect its provisions in the interpretation of the European Court of Human Rights. Application of the rule referred to in Article 10 However, the Constitution for the Application Privileges of the International Agreement before the Law appears to be complicated by both the implied development of the opinion (interpretation) of the European Court of Human Rights itself and by similar changes in the view of the Constitutional Court on the subject (e.g. Decision sp. zn. III. ÚS 22 / 03, sp. zn. I. ÚS 53 / 03, sp. zn. Pl. ÚS 4 / 94). Therefore, the courts expect a better basis for a change of law than a more complex ("thorny") interpretation route. The requested legislative revision of the custody procedure in the case may not change the form of a non-public hearing, but it should probably seek the conditions for its integrity while respecting the principle of equality of arms and taking into account the need for efficiency of management.
Therefore, in the view of the Senate, it is at the Constitutional Court to assess the constitutionality of the draft contested provision.
Derogation of the contested legal provision
Paragraph 242 (2) of the Criminal Code reads as follows:
"(2) Other persons shall be excluded from participation in a private session."
Conditions for the applicant's active legitimacy
The application for annulment of the provision of Paragraph 242 (2) of the Code of Criminal Procedure was lodged by the Second Chamber of the Constitutional Court in connection with the Constitutional Complaint of T. K., which is discussed by that Chamber under point II.II of the ÚS 96 / 04. The essence of the constitutional complaint is to disagree with the procedure of the General Court, which, by its procedure, applied the precisely contested provisions of the Code of Criminal Procedure. It is therefore possible, on the part of the Second Chamber of the Constitutional Court as the appellant, to state that the provision of the standard contained in § 64 (1) (c) of Act No 182 / 1993 Coll., and therefore the conditions of the active legitimacy, is fulfilled.
Constitutional conformity of the legislative process
The Constitutional Court is required, in accordance with the provisions of § 68 (2) of Act No. 182 / 1993 Coll., as amended, to assess whether the contested law was adopted and issued in a constitutional manner.
With regard to Act No 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, the Constitutional Court did not establish whether it had been adopted and issued within the limits of the Constitution's established competence and the constitutional prescribed manner, since, for legislation issued before the Constitutional Court's effective date, 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 legislature [see Resolution of the Constitutional Court of First Instance, pp. Pl. ÚS 5 / 98, Collection of Finances and Orders of the Constitutional Court (hereinafter referred to as "the Reports of Decisions'), p. 32, p. 309].
The Constitutional Court therefore limited itself to reviewing the single amendment to the legal provision in question, which occurred by 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. In this amendment, the second paragraph was amended as follows: "Unless this law provides otherwise, the participation of the prosecutor in a private session is not compulsory 'and the third paragraph has been renumbered second.
From House Press No. 535 of the first parliamentary term The Chamber of Deputies found that it was a government bill that was justified in the course of the procedure: "Participation of the prosecutor in a private session in a situation where the defendant's or the lawyer's participation is excluded is contrary to the principle of equality of parties in court proceedings and the role to be played by the prosecutor under the Constitution. Therefore, the presence of persons at a private session shall be limited to the members of the Chamber and the Registry. ';
From House Press No. 552 of the first parliamentary term of the Chamber of Deputies, the Constitutional Court found that the Organising Committee had proposed abandoning the discussion of the principles of the government bill. From the report of the rapporteurs of the Defence and Security Committee, the Constitutional Law Committee and the Committee of Petitions, for Human Rights and Nationals of 5.11.1993 (House Press No. 633) The Constitutional Court found that it had recommended a government bill for approval, with adjustments which did not concern the provision in question. The resolution of the Chamber of Deputies of the 14th session of the first parliamentary term, held on 10 November 1993, gave its assent to the Government's draft Code of Criminal Procedure, as amended by the approved amendments. Voting No 157 shows that 184 Members present were 104 in favour, against which 10 and 41 abstained.
President, Prime Minister and Prime Minister The Chamber of Deputies signed the law and it was declared on 10 December 1993 in the Collection of Laws in the amount of 74 under No. 292 / 1993 Coll.
The Constitutional Court therefore notes that Law No 292 / 1993 Coll. was also adopted in a constitutional manner.
Content compliance of the contested provision with the constitutional order
According to the current legislation [§ 74 (1), § 146a (1) (a), § 148, 149, 240, 242 and 243 of the Code of Criminal Procedure, and § 31 of the Law on Courts and Judgments], the court decides on a complaint against the decision of the State Prosecutor to hold the defendant in a private session in which members of the Chamber and the Registry are present and other persons are excluded from participation in a private session. The Court of First Instance shall be entitled to refer only to the order of the Prosecutor on the extension of the detention, the complaint against that order and the documents contained in the file. This provision, in the opinion of the Second Chamber of the Constitutional Court, does not comply with Article 5 (4) of the Convention, according to which the fundamental institutional guarantees of fairness of proceedings for the continuation of restrictions on personal freedom include the right of the defendant to be heard in a confirmatory procedure in which the legality of the continuation of the detention is examined.
In its decisions, the European Court of Human Rights has included the right to be heard among the fundamental procedural guarantees applied in cases of restrictions on freedom (see, for example, the judgment of 28.10.1998 Assenov and Ost. v Bulgaria, 24760 / 94, § 162): "The Court recalls that Article 5 (4) provides for the right to bring an application for proceedings in which the Court would check compliance with the procedural and substantive conditions necessary for the lawfulness of deprivation of liberty within the meaning of Article 5 (4) (see Brogan). Although the proceedings referred to in Article 5 (4) may not always be accompanied by safeguards similar to those prescribed in Article 6 (1) for civil and criminal proceedings (see Megyeri against Germany, 1992), it is necessary that they be judicial in nature and offer guarantees of an adequate type of appropriate deprivation of liberty. In the case of a person whose deprivation of liberty falls within the scope of Article 5 (1) (c), a hearing is necessary (see Schiesser and Sanchez-Reisse against Switzerland, 1986, Kampanis against Greece, 1995). '[" The Court records that by virtue of Article 5 § 4, an arrested or detailed person is appointed to bring processes for the review by a court of the procedural and substantive conditions which are essential for the lawfulness', in the sense of Article 5 § 1 (see paragraph 139 above), of his or her deprivation of liberty (see the above-mentioned Brogan and Others judgment, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see the Megyeri versus Germany judgment of 12 May 1992, Series A no. 237A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question.].
This legal opinion was confirmed by the European Court of Human Rights in many other decisions (cf. http: / / hudoc.echr.coe.int / hudoc / decision of 25.3.1999 Nikolova versus Bulgaria, 31195 / 96, § 58, line 20; 4.7.2000 Niedbala versus Poland, 27915 / 95, § 66, ŠV12; 11.7.2000 Trzaska versus Poland, 25792 / 94, § 74, šv12; 10.10.2000 Graužinis versus Lithuania, 37975 / 97, § 31, Šat4; 9.1.2001 Kawka versus Poland, 25874 / 94, § 57, ž12; 13.2.2001 Garcia Alva versus Germany, 23541 / 94, § 39, Sv 13; 13; 13; 2001 Lietzzow versus Germany, 24479 / 94, § 14; 2001 Schöps versus Germany, § 25116 / 94, § 44, 1342.42.42.42.42.42.42.49.2003; The ECHR thus clearly interpreted the principles contained in the earlier decisions (Decision of 21.10.1986 Sanchez-Reisse v Switzerland, 9862 / 82, § 51, § 18, or of 13.7.1995 Kampanis v Greece, 17977 / 91, § 47 (1)).
According to the established case law of the European Court of Human Rights, it is also necessary to impose the same requirements as those laid down for the initial decisions on the waiver of liberty, which clearly results from both the decisions cited above and from the decision of 29.11.1988 Brogan and others versus the United Kingdom (11209 / 84, § 65). It is irrelevant whether these proceedings are carried out on the initiative of the prosecutor or on official responsibility (see decision of 19.10.2000 Włoch v Poland, 27785 / 95, § 128; Graužinis versus Lithuania, § 28, § 7).
That view of the European Court of Human Rights also includes the adjustments to the same issues in the legal systems of neighbouring Austria and Germany, which are substantially different from those contained in the criminal rules.
According to Article 181 (1) of the Austrian Code of Criminal Procedure (BGB1. 1975 / 631), the orders on the imposition or continuation of the investigation are effective for a maximum period of time (detention period) as well as the order of the Court of First Instance on the continuation of the investigation. the final date of the deadline must be stated in the resolution. The detention proceedings must be carried out before the end of the detention period or the defendant must be dismissed. The regulation of the detention procedure is, in principle, comprehensive in Article 182 of the same law. According to him, the judge of inquiry is in charge of a custody procedure that is not public. The defendant, his attorney, the prosecutor and the curator are notified of the date of his performance. The defendant shall be brought to the hearing, unless this is not possible for the disease, and shall be represented by a lawyer. First, the prosecutor shall submit his proposal to extend the investigation and justify it. The defendant and his attorney have the right to oppose. The curator may comment on the grounds of detention (question of detention). The parties may request the addition of the facts which arise from the file. The investigating judge may, on official or at the initiative of the parties, hear witnesses or carry out other evidence if he considers it appropriate; the parties have the right to ask questions. Achieving the purpose of the investigation shall not be jeopardised by negotiations. The defendant or his lawyer is entitled to the last word. The investigating judge shall then, by order, decide whether to release or extend the detention, the order must be delivered orally and drawn up in writing. This decision shall be subject to a complaint against the defendant and the prosecutor, which shall be lodged within three days of the publication of the decision of the second degree court.
Under § 117 of the German Code of Criminal Procedure (RGBl. 253 / 1877; BGBl. III 312-2), if the defendant is in custody, he may at any time propose a judicial review of whether the arrest warrant is to be revoked or suspended pursuant to § 116 (detention review). In addition to the application for a detention review, the complaint is inadmissible. This shall be without prejudice to the right to lodge a complaint against a decision made on the basis of a proposal. The Judge may order separate investigations which are relevant to future decisions on the maintenance of the investigation and, after carrying out those investigations, to carry out a new review. Where an investigation period of three months has taken place without the defendant proposing a custody review or a complaint against the detention, a custody review shall take place under official supervision, unless the defendant has an attorney. According to Article 118 of the same Act, the custody review is decided after oral hearing. Oral proceedings may be proposed by the defendant, or may be carried out under official responsibility, including in proceedings concerning a complaint against an arrest warrant. If an investigation is maintained after oral proceedings, the defendant shall be entitled to further oral proceedings only if the investigation has lasted at least three months and two months have elapsed since the last oral proceedings. Entitlement to oral proceedings shall not apply for the duration of the main trial, or where a judgment has been delivered imposing a custodial sentence or a freedom of restrictive measures to remedy and security. Oral proceedings must be carried out without delay; may not be ordered later than two weeks after the idea of the proposal without the consent of the defendant. According to Paragraph 118a, the place and time of oral proceedings must be notified to the Public Prosecutor as well as to the defendant and the lawyer. The defendant must be brought to oral proceedings unless the presence at the hearing has been waived or the presence at the hearing is prevented by a large distance or illness of the defendant or by other unremovable obstacles. If the defendant is not brought in for oral proceedings, his rights in the proceedings shall be exercised by the lawyer. In oral proceedings, the participants present must be heard. The nature and extent of the execution of the evidence shall be determined by the court. The decision must be published at the end of the oral hearing. If this is not possible, the decision shall be given within one week at the latest.
The existence of the right of the accused to be heard also in the decision to remain in custody is recognised in the regime of our rule of law in the light of Article 5 (4) of the Convention, as well as the commentary on the Code of Criminal Procedure of Pavel Šámal (cf. Collectif: Code of Criminal Procedure: Commentary, 4th edition, Prague C. H. Beck, 2002, p. 424 and 425). They repeatedly put forward convincing arguments for this interpretation, such as Vladimir Ježek (Bulletin of the Advocate General 2002, 3: 52), Jan Štěpán (Bulletin of the Advocate General 2002, 6 - 7: 59 and 61), Bohumil Repík (Bulletin of the Advocate General 2003, 9: 37 - 41), and Jiří Herczeg (Bulletin of the Advocate General 2004, 4: 34 - 39).
For the reasons set out above, it is therefore quite clear that even under the conditions of the Czech legal order, the hearing of the defendant by the court is necessary, in accordance with Article 5 (4) of the Convention, before a decision is made on his complaint against the order of the prosecutor on the continuation of the detention.
The method of deciding on a complaint against the State's Attorney's decision to keep the defendant in custody is not specifically regulated. However, the form of the procedure in which a court in the Chamber, under the rules in force, decides on detention in the preparatory proceedings is defined explicitly, even indirectly. This is a private meeting. In this case, the court shall decide where it is not prescribed by law to take decisions in the main court or in a public sitting (Section 240 of the Code of Criminal Procedure) and persons (other than members of the Chamber and the Registry) shall be excluded from participation in a private session (Section 242 (2) of the Code of Criminal Procedure). If there is a need for evidence at a private session, this is done by reading the protocols and other documents (Section 243 of the Code of Criminal Procedure).
According to the applicable legislation, represented in particular by the provisions of Sections 146a (1) (a) and 240 of the Code of Criminal Procedure, a complaint against a decision by the State Prosecutor to retain the defendant in custody in cases in which the jurisdiction of a single Judge is not given (Section 314a (1) of the Code of Criminal Procedure) shall be decided by the Chamber in private session. However, the private meeting does not meet any of the principles of the implementation of this procedure as set out in Article 5 (4) of the Convention, as set out in the above decisions by the European Court of Human Rights. The above view of the European Court of Human Rights underlines one of the elements of the contradictory procedure, namely the right of the party to be heard of the application in its case and the evidence on which it is based. It is therefore the right of the defendant to be heard as a procedural party to which, in particular, in the main proceedings, the right to comment on each individual evidence under Section 214 of the Penal Code and on the right to a final statement under Section 216 (2) of the Penal Code and on the last word under Section 217 of the Penal Code. It is therefore not about the obligation of the court to examine the defendant and, if any, the rights of the defendant. The evidence of the hearing of the defendant, whether in the preparatory proceedings (including before the decision to take the defendant into custody) and in the proceedings before the court, is essentially used to establish the specific facts relating to criminal proceedings which are to lead to a reliably established factual basis. It is therefore not solely used to establish the opinion of the defendant on criminal prosecution or on a proposal from the prosecutor (e.g. taking the defendant into custody, carrying out the evidence, etc.) or the decision of the prosecutor (e.g. keeping the defendant in custody). Therefore, there is no need to refer the Chamber of Deputies to a collision of the provisions of Section 243 of the Penal Code with the rights guaranteed by the Convention in the direction under consideration.
In order for the defendant to be heard as a procedural party before a court ruling on a complaint against a decision by the prosecutor to keep the defendant in custody, the provisions of Paragraph 242 (2) of the Penal Code, which exclude the defendant (and anyone else) from attending a private session, prevent it from being heard as a procedural party. Therefore, the legislation in force does not allow the defendant to be heard, in a decision on the legality of the binding in general, and the duration of the binding in particular, once he has been brought into custody. Knowledge of the defendant's views on the matter, as presented in writing in a complaint against a decision by the State's Attorney, appears to be completely inadequate from the point of view of the requirements of the Convention on this kind of procedure. The hearing of the parties before the judgment of the Court is an essential feature of the contradictory nature of the proceedings. The importance of the right to be heard as an element of public opinion in the decision-making of the court is at the forefront of criminal proceedings, where the accused is in fact worse than the police authority and the public prosecutor. The fact that the court decides on the legality of the duration of the ex-offo bond, as well as the fact that none of the parties are present in the court's decision-making, and therefore the equality of the parties to the court is formally maintained, cannot change the current legislation's deficit.
The Constitutional Court always prefers a constitutionally conformal interpretation of the standards of simple law prior to their deregation. In the present case, the Constitutional Court concluded that there is no constitutional conformance in the interpretation of simple law and, therefore, the provision of Paragraph 242 (2) of the Criminal Code on the matter. The legislation under assessment is exhaustive and unambiguous. Therefore, the current practice of the general courts, which, when deciding on complaints against decisions by prosecutors on the continued duration of the detention, decides without the defendant's personal involvement, without the defendant being able to be heard before the court's decision on the case, corresponds to the rules in force in the simple law. This was also imported by the Constitutional Court in its resolutions sp. zn. I. ÚS 53 / 03 and sp. zn. III. ÚS 22 / 03 (not published), which is also mentioned in this connection by the Senate. It should be added that the Constitutional Court, in those cases, remained merely to examine the conformity of the procedure of the ordinary courts with the simple law. Thus, it examined only one of the important elements of the right to a fair trial.
Therefore, the General Courts do not have the possibility to interpret the legislation clearly in order to comply with Article 5 (4) of the Convention. The manner in which this would be possible is not mentioned in the decision on page I. ÚS 573 / 02 (Reports of Decisions, Volume 32, Found No 41, p. 397) referred to in this connection by the Chamber of Deputies. On the contrary, that finding explicitly states that, under Article 10 of the Constitution, if an international treaty provides for anything other than a law, an international treaty shall apply. At the same time, it is noted in this finding that the current situation is clearly unconstitutional and should be amended. The issue in question has not yet been dealt with by the Constitutional Court, nor has it been dealt with by the Constitutional Court, in the light of the right of the defendant to be heard by the Court before the decision on the continuation of the detention, nor in the decision on the decision on the Constitutional Tribunal, Pl. ÚS 4 / 94 (Reports of decisions, Volume 2, Found No 46, p. 57; published under No 214 / 1994 Coll.), referred to by the Senate. Although this finding was addressed by a judicial review of the State's order on the continued duration of the binding, it was only in view of the absolute impossibility of such a review in the then legal order. Even the above-mentioned views of the professional public (Pavel Šámal, Jan Štěpán, Bohumil Repík, and Jiří Herczego) do not comment on the possibility of a constitutional interpretation of the law, but only on the possibility of the defendant being heard by the court in the present case, given the higher legal force of the Convention.
The Constitutional Court is known from the proceedings in case sp. zn. IV. ÚS 394 / 04 (order of 30 November 2004 will be published in volume 35 of the Reports of Decisions) that the President of the Chamber of the Municipal Court in Prague is known in the complaint proceedings against the decision of the Prosecutor of the Municipal Public Prosecutor in Prague on the continued duration of the binding under sp. zn. 44 This 618 / 2004 conducted an interview with the defendant before the case was decided. However, in the view of the Constitutional Court, such a procedure does not sufficiently fulfil the objectives of Article 5 (4) of the Convention in its consequences. The Czech criminal trial is rigid and regulates the subject in a comprehensive and unequivocal way, as was imported above. If the Senate is to decide on the matter, it can only decide in specified forms, and this is a private meeting in the present case. Thus, in simple law, there is no possibility for the entire Senate, or one of its members, to conduct an interrogation of the defendant before a private session is held. The Code of Criminal Procedure allows the President of the Chamber or an authorised member of the Chamber to do so only in exceptional cases. However, the court's ruling on the matter and therefore the requirement that the defendant be heard by the court is of a regular nature. Thus, the objective set out in Article 5 (4) of the Convention has not been fulfilled, as only one of the members of the Chamber and not the entire Senate have been questioned by the defendant. The other members were in the same situation when examining the defendant's complaint as if there had been no hearing of the defendant by one member of the Senate at all, as they themselves "did not hear the defendant." Therefore, the Constitutional Court considers that even in this way the constitutional interpretation of Paragraph 242 (2) of the Code of Criminal Procedure cannot be established, or the entire regulation of a simple law in relation to Article 5 (4) of the Convention.
Therefore, if this provision is contrary to the constitutional order, which undoubtedly includes the Convention as a ratified and declared international treaty on human rights and fundamental freedoms pursuant to Article 10 of the Constitution (see, to that effect, the provisions of Article 4 (1) (a) of the Rules of Procedure, the Rules of Procedure, Volume 26, Found No 80, p. 317; published under No 403 / 2002 Coll.), the abolition of the unconstitutional legal provision under Article 87 (1) (a) of the Constitution is appropriate.
As an obiter dictum, the Constitutional Court considers it necessary to state that, in cases where the review of the State's decision on the continued duration of the detention is decided by a single judge (§ 314a (1) of the Code of Criminal Procedure), no form of procedure by law is provided for and therefore nothing is prevented from applying the Convention directly. In this case, as well as in other cases of lack of legal regulations, a single judge has a constitutional obligation to complete the right. In this context, the Constitutional Court takes the view that the Federal Constitutional Court of the Federal Republic of Germany [e.g. in BVerfGE 9, 338 (349)], according to which the judicial activity is not merely a decision-making exercise, but is the task of the judge to express in his decisions values which are immune to the rule of law but are not expressed at all or only insufficiently in the text of the law. However, the judge must refrain from insolence and his decision must rest on a rational argument. It must be clear that the written law does not fulfil its function to resolve a certain legal problem. The judgment will then close this gap in the law according to the standards of practical reason and "general ideas of justice in society." However, such a case was not dealt with in the context of the draft Second Chamber of the Constitutional Court (ref. II. ÚS 96 / 04 - see Sub I.).
Nor was the case in the case under examination in the case at hand in which the court decided on a request for the defendant to be released from custody, that is to say, a further ruling by the court on the detention of the defendant. In this context, the Constitutional Court points out that it is not possible to apply to the same extent the above-mentioned criteria, which can only be applied to the complaint proceedings of the defendant against the State's order on the continued duration of the detention.
In the view of the Constitutional Court, Paragraph 242 (2) of the Penal Code is not contradictory to Article 5 (4) of the Convention alone, but only in relation to those provisions of the Penal Code which govern the judicial review of the State's resolution on the continued duration of the detention. It would therefore appear more appropriate if the procedure for this judicial review were adapted separately. Accordingly, as in the case of proceedings for the arrest of the defendant (§ 77 (2) of the Code of Criminal Procedure), or as in the abovementioned German and Austrian regulations. In a separate regulation, there could be a better and more unequivocal adjustment of the obligations of the courts in the review of the State's decision on the continued duration of the link, on the one hand, and the rights of the defendant (as well as of the public prosecutor as the other procedural party) on the other. This is, in particular, a time point, a question of the nature of the "hearing 'of the defendant, an understanding of the parties concerned (or the defendant in the case of the defendant) about the conduct of the defendant and, last but not least, of the possibility of the defendant giving up that right. Under such conditions, Paragraph 242 (2) of the Criminal Code could continue to be an unchanged part of the Criminal Code. Pending a clear adjustment to this issue, it will be up to the general courts to find procedural procedures and thus to ensure the law, given the reasons that led the Constitutional Court to this decision. The Constitutional Court is a so-called negative legislator without the right to positively formulate laws as simple laws. A democratically elected legislative body, namely Parliament, is entitled to a positive form of the rule of law, in accordance with the principle of State power division. The Constitutional Court is only entitled to abolish those parts of a simple law that are contrary to constitutional order. For the reasons set out above, the Second Chamber of the Constitutional Court has complied with the proposal and Article 242 (2) of the Code of Criminal Procedure pursuant to § 70 (1) of Act No. 182 / 1993 Coll., as amended, has been annulled.
In a number of its decisions, the Constitutional Court expressed its views on the interpretation of Article 89 (2) of the Constitution, in its most recent case-law, in particular on the finding in sp. zn. Pl. ÚS 2 / 03 (ECR 29, p. The Constitutional Court continues to insist on these conclusions.
The importance of highlighting "load-bearing reasons" is increasing where, even after the repeal of a legal provision which is contrary to constitutional order, the regulation of the simple law of the subject under consideration is not clear. This is particularly the case where, even after the annulment of the legislation, the public authorities may apply the law in contravention of the principles which led to the annulment of the relevant legal provision. Therefore, the Constitutional Court has included in the operative part of the finding the basic constitutional principle (or its interpretative argument), which results from a set of supporting reasons leading to a decision on the application for annulment of the legal provision.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 239 / 2005 Coll., on the application for annulment of the provisions of § 242 (2) of Act No. 141 / 1961 Coll., on criminal proceedings (Criminal Code) |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 17.06.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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