The Constitutional Court found no 249 / 2005 Coll.

Motion denied.

The appellant requests that the Constitutional Court issue a finding repealing the provisions of Section 212 of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended. He stated that, before the District Court of Plzeň, the city is prosecuting the defendant, R. No. 8 T 148 / 2001, for acts of violence against a group of residents and individuals under § 196 (2) of the Criminal Code, and under § 197a of the Criminal Act, battery of health under § 221 (1) of the Criminal Act and under § 221 (1) and (2) (a) of the Criminal Act, violations of home freedom under § 238 (1) and (2) of the Criminal Act and extortion under § 235 (1) of the Criminal Act. In the case, on 26 April 2002, the City of Plzeň was declared a judgment which acquitted the defendant of all actions by the District Attorney of Plzeň of the City of Pilsen in respect of which the present proceedings were brought. This judgment of the District Court of Pilsen was repealed in its entirety by order of the Regional Court of Pilsen of 21.8.2002 sp. zn. 8 To 374 / 2002. In the context of this decision, the District Court of Plzeň was ordered by the City to "lay down" the injured D. K. 'in accordance with the procedure laid down in Paragraph 212 of the Criminal Code, which it has made in the preparatory proceedings and which have not been effective since 1 January 2002 under the Code of Criminal Procedure.

By order of the District Court of Plzeň, of 15 November 2002, the City of Pilsen, pursuant to Paragraph 224 (5) of the Criminal Code, was suspended the prosecution of the defendant by the procedure laid down in Section 224 (5) of the Penal Code and the case was brought before the Constitutional Court of the Czech Republic on the grounds that Article 212 of the Penal Code contradicts Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). In the criminal case, it is said that it is essential to consider the defendant's guilt as to how the credibility of the damaged D. K will be assessed. This assessment is intended to be used for the so-called prevention of otherwise inapplicable statements damaged under the provisions of Section 212 of the Criminal Code. Furthermore, the appellant stated that" a brief statement of the position of the Judge of the District Court of Pilsen is contained in the order of the District Court of Pilsen, dated 15.11.2002, sp. zn. 8 T 148 / 2001'.

The Constitutional Court pointed out to the appellant that the mere general reference to the brief reasoning of the opinion of the Court of First Instance of Pilsen (allegedly contained in the order of the District Court of Pilsen of 15.11.2002 sp. zn. 8 T 148 / 2001) was insufficient for the purposes of the proceedings before the Constitutional Court and invited him to complete the application to initiate the procedure for a proper constitutional legal argument in such a way as to make it clear that he sees, in particular, the non-compliance of the contested provision of the Code with the constitutional order of the Czech Republic.

In addition to its proposal (in response to the call from the Constitutional Court), the appellant stated that the contested provision of § 212 of the Criminal Code contradicts Article 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), Article 10 and Article 96 (1) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution'), as well as Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (note: for completeness, it should be added that the appellant cites Article 10 of the Constitution in force and effective before 1.6.2002, i.e. before the amendment of Constitutional Act No 395 / 2001 Coll., amending the Constitutional Law of the Czech National Council No 1 / 1993 Coll., the Constitution of the Czech Republic, as amended). The appellant stated that the amendment to the Code of Criminal Procedure, effective as of 1 January 2002, was undoubtedly based on Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, according to which it is one of the minimum rights of the defendant to question or to have witnesses questioned against himself. In principle, according to the new legislation - after 1 January 2002 - the proper notification of the defendant or his lawyer to question the witness is a precondition that the record of the testimony of such a witness may be used in court proceedings. In accordance with the wording of the Code of Criminal Procedure "effective before 1.1.2002 ', such a procedural approach was not required, and where the defendant did not have a lawyer or his lawyer requesting the hearing of witnesses, the court was able to read the report on the testimony of the witness in the main trial in accordance with the previous § 211 (2) (b) of the Code of Criminal Procedure, even without complying with the condition described. However, the defendant is not instructed under the current criminal rules that the facts which he makes in his statement but also in his observations on the individual evidence made may be used by law enforcement authorities as evidence against him. In this context, it should be noted from the appellant's point of view that the assessment of the defendant's credibility is a normal means of serving law enforcement authorities to address the issue of guilt. Rarely - and typically cases of an analogous case against the defendant and the injured - is a fundamental question of assessing the victim's credibility for the court's decision on the guilt or innocence of the accused. Paragraph 212 is precisely designed to assess this credibility. It is therefore to be served by the so-called" pre-publication "of a procedural act which is otherwise not applicable in court proceedings, since, if this is not the case, the earlier testimony of the witness could be read by some of the procedures set out in § 211 of the Code of Criminal Procedure.

According to the amendment to the Code of Criminal Procedure, effective as of 1 January 2002 - the appellant also states - that witnesses' statements are to be collected in the preparatory proceedings in cases in which, at first instance, a competent district court is competent to discuss and decide the case, in principle in a form which is not applicable in the proceedings before the Court. These are the so-called protocols for the submission of explanations under the provisions of Section 158 of the Criminal Code. Such records may be used only in the case of the main trial in the context of a simplified procedure by reading for the consent of both the defendant and the prosecutor. In connection with Article 37 (3) of the Charter and Article 96 (1) In the appellant's view, it is not conceivable that double "legal force 'be granted in court to means of proof which are not particularly applicable to the conflict with Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. In this context, the appellant asked the' rhetorical 'question whether equality would have been given to the defendants if, in relation to some of them, it had been possible to assess the credibility of witnesses, that is to say, to address one of the very important issues of criminal proceedings,' to use unusable evidence ', whereas, in relation to other defendants, such action would not have been possible. In his view, it is contrary to the constitutional principle of equality that one procedural inapplicable evidence may be a means of assessing the evidence situation, while otherwise, only because it is formally otherwise identified, not. Proceedly useless evidence should remain procedural inapplicable evidence without exception. Moreover, Paragraph 212 of the Code of Criminal Procedure states that the prevention of an earlier unusable statement which, according to the appellant, may be equal and condensed also in a number of cases equal to the" instructive question par excellence', the court may or may not. This legal classification could not only imply that the court will always take action to avoid a statement, but also that that procedure depends on the court's discretion. The latter is said to correspond to the wording of the law, because "if it were not to follow the concept of this, but the latter, the criminal order would certainly use the same wording in the order governing the said procedural procedure as in Paragraph 211 (2) (3) of the Penal Code, in which it is mandatory to read earlier procedural statements of the co-defendants or witnesses'. This again - in the appellant's view - contradicts the above-cited provisions of the Charter and the Constitution, which ensure equal rights of the parties to the proceedings.

The Constitutional Court sent a motion to initiate proceedings in accordance with the provisions of § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic - and requested the opinion of the Ministry of Justice of the Czech Republic (§ 49 (1) of the cited Act).

In the observations of the Chamber of Deputies of the Parliament of the Czech Republic, part of the explanatory memorandum relating to the provision of the criminal order in question is initially cited. Paragraph 212 of the explanatory memorandum states that: "In cases where the lawyer has not been given the opportunity to take part in the hearing of the witness in the preparatory proceedings and either the court or parties consider it necessary to repeat such hearing in the proceedings before the court, there may be disputes between the witness's repeated statements. For this reason, it is necessary to address the issue of the importance of the record of the hearing of a witness taken in the preparatory procedure and of its applicability in the proceedings before the court (taking into account the principle of the oral, immediate and right of the defendant to be present at least once in the performance of the evidence and to ask questions to the respondents). In this situation, it is not assumed that the record of hearing a witness from the preparatory proceedings would be read, as is the case with the procedure under Paragraph 211, when the whole protocol is read, which as a whole can then serve as equivalent evidence to the testimony of the witness in the main trial, but will only be" pre-shot "to distinguish it from reading to reading. The re-destination will consist of the reproduction of the parts of the previous protocol concerned, taken in the preparatory procedure without the presence of a lawyer requesting an explanation of the contradictions with the new main proceedings, and in itself will be used only to explain the discrepancies between his statement in the preparatory proceedings and in the proceedings and to enable the court to conclude on the veracity of the statement of such witness in the main proceedings. Contrary to the written statement of the witness, which is the full evidence from which the court may rely when concluding the defendant's guilt, only the established evidence of the testimony cannot serve in itself or in conjunction with others in the case of the evidence carried out as a basis for the statement of the defendant's guilt, since it was carried out without the presence of a lawyer, as a result of which the defence did not have the opportunity to ask such a witness questions and to raise objections to the conduct of the hearing, the protocol and, finally, the testimony of the witness. Exceptions to the extent necessary will have to be granted from this principle (for example, if there is an urgent or irrevocable act carried out prior to the communication of the accusation, where the accuracy and legality guarantee the presence of the judge, the questioning of minors, or the cases where the witness has testified under duress or has been bribed, or if the content of the statement has been manifestly affected by the conduct of the hearing in the main trial)."

In the view of the Chamber of Deputies (contained in its observations), the purpose of the preamble to the Protocol on an earlier statement pursuant to Paragraph 212 is that, depending on whether and how the witness or co-accused explained the discrepancies found in his statements, the court may, in the framework of a free assessment of the evidence (Paragraph 2 (6) of the Criminal Code), assess the credibility and veracity of his statement made in the main case. This also reflects the nature of the procedure under Paragraph 212, which does not allow the court or the parties to draw direct conclusions on the facts to be proved in the preamble to the preamble to the previous statement (Paragraph 212 (2), second sentence). Presumption of an earlier statement and the response of a witness or co-accused to existing contradictions will essentially only appear in the process of free assessment of the evidence by the court as one of the aspects according to which the court considers that the testimony of a witness or co-accused person made at the main trial is credible and true or not, or in what directions the facts and the extent to which it is so (referred to the publication of Šámal et al., Penal order, commentary, 4th edition, Prague, C. H. Beck 2002, p. 1381). The Chamber of Deputies also stresses - with regard to the principle of equality of parties - that not only the President of the Chamber, but also the procedural parties, who have the same opportunities, can present an earlier statement to the witness or the co-defendant, and therefore cannot be talked about the defendant's disadvantage.

The appellant's assertion that it is not possible for a double "legal force 'to be granted in the proceedings before the Court of First Instance to prove that it is not applicable (derogating legislation in the simplified procedure), the Chamber of Deputies states that the differentiation of the court proceedings following the differentiation of preparatory proceedings is based on the intention of the legislator to simplify and speed up criminal proceedings as far as possible in the least serious matters. Simplified court proceedings, following a shortened preparatory procedure, are designed to be as informal and simple as possible, but without the person against whom proceedings are conducted being reduced to his rights guaranteed by the Constitution, the Charter of Fundamental Rights and Freedoms, international treaties and the Code of Criminal Procedure.

As regards the appellant's reference to the alleged non-compliance of Article 212 of the Code of Criminal Procedure with Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, it is stated in the statement that the Chamber of Deputies, when discussing the amendment to the Code of Criminal Procedure, carried out by Law No 265 / 2001 Coll. also examined the various provisions in relation to the requirements set out in Article 6 of the Convention cited. The approved text is said to comply with Article 6 of the Convention. As regards the appellant's claim that Article 212 of the Code of Criminal Procedure is contrary to Article 10 of the Constitution, according to which the ratified and declared international treaties on human rights and freedoms by which the Czech Republic is bound are directly binding and take precedence over the law, the Chamber of Deputies, in view of the above, contends that the provisions of Article 212 of the Code of Criminal Procedure are in accordance with Article 10 of the Constitution, both in the version effective until 1 June 2002, as indicated by the appellant and in the version effective as from 1 June 2002.

Observations The Chamber of Deputies concludes that the legislature has acted in the belief that the law adopted is in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic and is left to the Constitutional Court to assess the constitutionality of the law in the context of the proposed proposal and to give the relevant decision.

The Senate of the Parliament of the Czech Republic stated in its observations that it had decided to approve the draft amendment to the Code of Criminal Procedure in question within the limits of the Constitution established competence and in a constitutional manner in the majority belief that the law adopted was in accordance with the constitutional laws of the Czech Republic and with the international obligations of the State. The Senate is said to have generally accepted the government's presentation of the draft amendment as an act of monitoring the change of overly complex and cumbersome management in a more effective crime-suppression tool, while maintaining (strengthening) democratic rules of a fair process. The perpetrator should not only be affected in this sense, but should do so as soon as possible after the crime has been committed. In the present context, the Senate also agreed with the specific government justification for the new Paragraph 212 of the Penal Code (remark: cf. The above mentioned explanatory report on the draft amendment) and did not in any way challenge the government's reasoning for the provision of the Penal Code in question; In general, he has clearly supported the direction of changes in criminal law legislation towards a higher level of law enforcement.

It is further stated in the Senate's observations that the appellant sees the discrepancies in question as a means of proof, or evidence that is not admissible in the main case (for the decision on guilt) because it did not arise in a contradictory manner. However, the legislature states, directly in § 212, that the explanation of the discrepancies with the "prevention 'is merely a supportive method of assessing the reliability of the statement in the main proceedings and, moreover, expressly prohibits the use of the pre-imprinted protocol as a basis for the statement of guilt. The legislature also made it clear in Paragraph 211 (3) that, in response to a substantially divergent statement from the same witness in the main trial, evidence which was made equivalent to that before the court, could only be evidence of such a record of the earlier statement of the witness, which was made in an interview with the possibility of the lawyer being present. Under Paragraph 212, a witness can only be confronted with his own earlier speech and only if there has been a substantial turnover in his statements. Significant contradictions in statements have a cause, whether banal (forgetting, confusion) or more serious (pressure at the time of investigation, etc.). Her recognition can only always increase the quality of the free assessment of evidence by court. An explanation of the cause of the conflict may weaken or strengthen the credibility of the statement. However, this procedure does not compete with the evidence submitted by the court. In the event of pre-screening, it is said that this is not a similarity with the reading of the witness who is absent, on the contrary, the witness before the court is fully testifying. The defense is being developed in full power. The credibility of the testimony of the witness before the court may be examined by the same method in accordance with Paragraph 212 by both parties. The redestination of an earlier statement is, according to the Senate, the method by which a witness can be subjected to any test from which a signal of its credibility is to emerge." Confronting "a witness with an earlier statement may in some cases lead to his memorization, so he" returns "to his statement from the preparatory procedure, this time in full procedural relevance. Therefore, it can be well assumed that the preamble to the declaration of denunciation does not fall within the scope of the rule on the execution of evidence outside the main proceedings, which it provides, for example, by the words of the Constitutional Court's finding, sp. zn. III. ÚS 376 / 2001 [Collection of findings and resolutions of the Constitutional Court (" the Reports of the Judgments'), Volume 24, Case 174, p. 291], that "such execution of evidence must guarantee the right of defence and the principle of conformity of the proceedings to a degree comparable to the conditions for the performance of evidence in the main proceedings'.

As regards the appellant's contention of the procedural arrangements, it is also necessary, in the opinion of the Senate, to distinguish between cases of possible non-compliance with the Constitution from cases of an unfairly conducted process in a particular case. The explicit legal ban on the use of the pre-established protocol as a basis for the statement of guilt is a ground of appeal in its breach. In contrast to the contested provisions of Paragraph 212 of the Code of Criminal Procedure with the constitutional principle of equality between participants, the Senate notes that the equality of participants must undoubtedly be understood here as equality between procedural parties, which means that in legal proceedings one party should not have a better procedural position than the other. In criminal proceedings, it concerns the procedural equality between the defendant and the prosecutor. According to that principle, the same rules of procedure shall apply to all parties to the proceedings. This is therefore not about equality, for example, for all defendants, as the appellant suggests. It can be added to the periphery, according to the Senate, that the provision under examination under Paragraph 212 may appear superfluous in some respects. The assessment of the reliability of the statements is part of the assessment of the evidence which is achievable in the established procedural intentions without the need for special treatment.

The Senate concludes that it is up to the Constitutional Court to assess the constitutionality of the contested provision of the law and to rule on the matter.

In its opinion on the proposal, the Ministry of Justice stated that equality of procedure, according to which all the parties to the proceedings have an equal status before the courts, is a procedural principle which can only be applied in a confirmatory procedure, where the participants are opposed as procedural opponents, i.e. in criminal proceedings the defendant and the prosecutor. However, this principle is interpreted in the application to initiate proceedings in such a way that one party to the trial, in the case at hand, the defendant, must have the same rights in every kind of court proceedings as regards the value of the evidence. Thus, in a simplified procedure under § 314b et seq. of the Code of Criminal Procedure, a single judge may, with the consent of the Prosecutor and the defendant, provide evidence by reading the official records of the explanations of persons and of other acts of preparatory proceedings taken in accordance with the procedure laid down in § 158 (3) and (5) of the Code. By contrast, Paragraph 212 (1) of the Code of Criminal Procedure provides for the prevention of certain protocols for questioning a witness or a co-accused of preparatory proceedings, which is of limited evidentiary importance because it addresses only discrepancies in the statements of a witness or of a co-accused person at the main trial, so that the court can assess the credibility and veracity of the statement made at the main trial in the framework of the free assessment of the evidence. According to the Ministry of Justice, these are two different institutes; by reading the official record in the simplified procedure, the self-judge shall carry out evidence, the prevention of the record of the hearing from the preparatory procedure (Section 212 (1) of the Criminal Code), only to assess the credibility and veracity of the witness or co-accused, and shall not be supported by a statement of guilt, because, under the conditions laid down in Article 212 (1) of the Criminal Code, the requirement for a fair trial within the meaning of Article 6 (3) (d) of the Convention on the Protection of Human Rights and Freedoms would not be respected.

The appellant also erroneously interprets in Paragraph 212 (1) of the Penal Code the word "may ', which is extracted from the context, and thus concludes that it is an optional possibility for the court to draw up statements from preparatory proceedings, and thus illustrates the further unequal position of the parties in relation to the provisions of Section 211 of the Penal Code, according to which the court is bound to read, under the conditions of those statements. In the opinion of the Ministry of Justice, the word" may "relate to the words" merely laid down "and thus aims to emphasise that, contrary to the previous provision of Section 211 of the Penal Code, according to which the statements are read, it is only possible, under the conditions set out in Section 212 (1) of the Penal Code, to draw up the minutes of the preliminary proceedings. However, it is not about the possibility for the court to draw up protocols, but about its duty in the event of contradictions in statements. Also in the commentary on the Code of Criminal Procedure, the 4th edition of the authors of Shámal, King, Baxter, Púry (p. 1380), it is stated that the procedure under Paragraph 212 of the Code of Criminal Procedure is binding and that the court must draw up a report to the witness or co-defendant on the previous statement from the preparatory proceedings, if it deviates from the Rules of Procedure. However, the Court of First Instance cannot attach any evidence other than that provided for in Paragraph 212 (1) of the Code of Criminal Procedure. The second sentence of the second paragraph of Paragraph 212, according to which the statement of statement which has been made before, cannot be a basis for the statement of the accused's guilt, even in conjunction with other evidence.

The Ministry of Justice concludes that § 212 of the Code of Criminal Procedure does not conflict with the constitutional order of the Czech Republic.

In accordance with Article 68 (2) of the Law on the Constitutional Court, as amended, the Constitutional Court was primarily concerned with the question of whether a law in respect of which the unconstitutional nature of the contested provision is objected was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

This is Act No. 265 / 2001 Coll., amending Act No. 141 / 1961 Coll., Coll., on Criminal Procedure of the Court (Criminal Code), as amended, Act No. 140 / 1960 Coll., Criminal Act, as amended, and some other laws. In this regard, the Constitutional Court, from the relevant Parliament's press releases, shorthand reports and voting data, found that the Chamber of Deputies of the Parliament of the Czech Republic had duly approved the draft law at its meeting of 25 May 2001 and the Senate of the Parliament of the Czech Republic approved the proposal in the version referred to by the Chamber of Deputies at its meeting of 29 June 2001. After signature by the President of the Chamber of Deputies, the President of the Republic and the Prime Minister the law was declared in the Collection of Laws in the amount 102 under No. 265 / 2001 Coll. Thus, the law in question was adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner.

1. Following this finding, the Constitutional Court took the view of the content of the contested provision of the law in terms of its compliance with the constitutional order of the Czech Republic (Article 87 (1) (a) of the Constitution.

Paragraph 212 of the Penal Code, which the appellant proposes to abolish, reads as follows:

(1) Where a witness or co-defendant deviates from his previous statement on essential points and, in the absence of the cases referred to in Paragraph 211 (3), or of a statement made as an urgent or non-reproducible act pursuant to Section 158a, he may be required to have a record of his hearing from a preparatory procedure in which the lawyer has not been given the opportunity to be present, or to have part of his or her party or chair of the Chamber, merely to explain the discrepancies in his or her statements, so that the court may, in the context of the free evaluation of the evidence, assess the credibility and veracity of his or her testimony made in the main proceedings.

(2) The redestination of an earlier statement referred to in paragraph 1 shall consist of the reproduction of those parts of the prior interview report to which the person to be questioned is to express himself and explain the discrepancies between his statements. The statement of denunciation which has been brought before cannot be a basis for the statement of the defendant's guilt, even in conjunction with others in the case of evidence carried out.

The Constitutional Court has pointed out many times that the principle of a constitutionally consistent interpretation of the law or of its individual provision or other legislation takes precedence over its abolition and that it is the duty of all public authorities to interpret and apply the right, taking into account the requirement to protect fundamental rights and freedoms. He stated that in a situation where a particular provision of legislation allows two different interpretations, one of which is in line with the constitutional laws and international treaties by which the Czech Republic is bound and the other is not, there is no reason to repeal that provision. In its application, it is the responsibility of all state authorities to interpret the provision in a constitutional manner (cf. In a democratic rule of law, which is understood primarily as a material rule of law, it cannot be permitted to apply the legal provision in force in a way that contradicts some of the fundamental constitutional principles. The duty of the courts to find the right is not only to seek direct, specific and explicit guidance in the legal text, but also to identify and formulate what is a specific law, even where it concerns the interpretation of abstract standards, constitutional principles, provisions of the Charter of Fundamental Rights and Freedoms and obligations arising from international treaties. Therefore, from many conceivable interpretations of the law, only an interpretation that respects constitutional principles (if such an interpretation is possible) must be used and the repeal of the provisions of the law on non-constitutionality should not be allowed to apply the provision in question unless it is infringed (the principle of minimising interference with the powers of other public authorities).

The Constitutional Court is of the opinion that the scope for the constitutionally conformal interpretation of the contested provision - subject to the principles set out above, repeatedly emphasised by this court - is also given in the present case. That's what the following considerations lead him to.

2. The appellant is of the opinion that the provisions of Paragraph 212 of the Criminal Code contravene Article 37 (3) of the Charter of Fundamental Rights and Freedoms, Articles 10 and 96 (1) of the Constitution, as well as Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms. In view of its argument, it is clear that the inconstitutionality of this provision essentially sees its alleged inconsistency with the principle of equality between the parties.

The principle that all parties are equal in the proceedings and have equal rights in the proceedings (Article 37 (3) of the Charter of Fundamental Rights, Article 96 of the Constitution, Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms) is one of the fundamental guarantees of the right to a fair trial. From the broadest point of view, it is an expression of equality between all people in law, guaranteed, inter alia, by Article 1 of the Charter of Fundamental Rights and Freedoms. In the present case, this general principle is reflected in criminal law and must be examined in particular in terms of equality between the prosecutor and the defendant. The constitutional principle of equality between participants in criminal proceedings is then further specified in the Code of Criminal Procedure. However, simple law must not contradict the superior constitutional principles enshrined in the laws of the highest legal force; The fundamental duty of the court is, as has already been stated, to interpret them in a constitutional manner. Any provision of a democratic rule of law must also satisfy the conditions of sufficient precision, certainty and predictability; However, the lack of these characteristics in relation to a specific legal provision must be achieved - if it is to be considered to be contradictory to the requirement of legal certainty and to the principle of the rule of law (Article 1 of the Constitution) - in such a degree that its intensity excludes the possibility of determining the normative content of the provision by means of the usual interpretation procedures in its interpretation (cf.

Such a constitutional conformal interpretation is, in the view of the Constitutional Court, possible even in the case of the contested provision, even if its interpretation remains in the plane of the language interpretation method. The first and fundamental condition laid down in the contested provision is that it can be treated as such only if the witness or co-defendant deviates from his previous statement at essential points and does not refer to the cases referred to in Paragraph 211 (3) or to the termination carried out as an urgent or irrevocable act pursuant to Paragraph 158a. Only in such a case can the record of his hearing from a preparatory procedure in which the lawyer has not been given the opportunity to be present to him, to one of the parties or to the President of the Chamber, be so called "pre-shots' to clarify the inconsistency (explained by the contradiction) in his statements; The purpose of this procedure is" to enable the court to assess the credibility and truthfulness of the statement made in the main case as part of the free assessment of the evidence. "Thus, the testimony of the witness or co-defendant takes place in the main trial before an independent court, respecting all rights of the defence, with the right to initiate this procedure, i.e. to foresee the testimony, being equivalent to both procedural parties, so that none is favoured or disadvantaged. The result can therefore - not exceptionally - be the result of a conclusion in favour of the defendant; above all, however, the application of the provision under examination makes it possible to establish in a transparent manner the facts of the case. It is essential that the preamble cannot, in itself (even in conjunction with other evidence) be a basis for the statement of the accused's guilt and is therefore not procedural evidence; It is only intended to assess the credibility of the witness's testimony or co-accused, however, now taken in the main case, with the proper involvement of the defence.

The existence of the contested provision, in the opinion of the Constitutional Court, is an expression of one of the fundamental principles of criminal proceedings relating to the very purpose of criminal proceedings in a democratic legal state, which is to regulate the procedure of law enforcement authorities in order to properly identify the offences and their perpetrators to be punished fairly (Section 1 of the Code of Criminal Procedure); it is a principle of monitoring the action of law enforcement authorities in order to establish the facts of a case of which there are no reasonable doubts, to the extent necessary for their decision (Section 2 (5) of the Code of Criminal Procedure). The Court of First Instance is then required, in the context of all the facts established in a proper manner, to carefully consider all the circumstances of the case individually and in their summary, and is guided by superior constitutional principles and the purpose of criminal proceedings (cf. above) under the law, on the basis of the facts established in the context of a fair trial. The purpose of the Institute under examination is therefore to enable it to get as close as possible to the reality of the matter, namely "what really happened '; Thus, even from the point of view of constitutional law, the principle of establishing the facts must be interpreted without reasonable doubt in accordance with the current wording of Paragraph 2 (5) of the Criminal Code. The contested provision therefore serves, in view of the basic principle of criminal proceedings, to adequately assess and clarify all relevant circumstances of a particular case; At the same time, it acts in conjunction with the superior principle that no one can be prosecuted except for legal reasons and in the manner laid down in the Code of Criminal Procedure (Paragraph 2 (1) of the Penal Code) and not contrary to it (cf. also Article 39 of the Charter). The contested regulation does not, as is already apparent from its text (cf. Section 212 (2), second sentence), contradict the principle that, when deciding on the main case, the court may only take account of the evidence which was carried out in this hearing (§ 2 (12) of the Code of Criminal Procedure).

In that context, it is appropriate to respond to the appellant's view that "double legal force 'cannot be granted to means of proof which are legally inadmissible, since, in relation to certain defendants, it would be possible to" use unusable evidence', whereas such action would not be possible against other defendants. In the view of the Constitutional Court, it can be concluded from this argument (and the whole proposal at all) that the appellant does not fully reflect the meaning and consequences of the contested legal provision, inter alia, in comparison with the provisions of § 211 of the Code of Criminal Procedure. This was also realised by the Senate, which states that the appellant considers the present explanation of the discrepancies as evidence or evidence which is not admissible for the decision on guilt because it did not arise in a contradictory manner. The substance of the Institute of Presumption of Evidence, within the meaning of the contested provision of Paragraph 212 of the Penal Code, excluding the accuracy of the appellant's consideration of the "dual legal power of evidence '- since there is no evidence or evidence involved - is sufficiently explained in the previous text of this finding, in the Senate's quoted observations and in the Chamber of Deputies' statement of reasons for the contested legal provision (see above). The content of these observations is clear, understandable and convincing and can therefore also be referred to - for brief reasons -.

The Constitutional Court also addressed the question of whether the contested provision does not create an inequality between defendants and defendants compared to those who do not. He answers that question in a negative way. Paragraph 212 of the Code of Criminal Procedure, and the principle of this finding at all, applies - given the nature of the case - even in the case where the defendant did not have a lawyer in the case under trial, unless he was given the opportunity to be present for questioning by a witness or co-accused within the meaning of that legal provision.

3. The appellant further contended that the contested provision was contrary to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, since the so-called "prevention of testimony to assess the credibility (witness or co-accused) may also be essential in assessing the defendant's guilt.

First of all, the Constitutional Court states - as regards the legal admissibility of the assessment of this alleged contradiction - that already in its finding sp. zn. Pl. ÚS 36 / 01, published in the ECR, Volume 26, Found No 80, and published under No. 403 / 2002 Coll., it stated that the constitutional incorporation of the general incorporation standard, thereby overcoming the dualistic concept of the relationship between international and national law (Constitutional Law No. 395 / 2001 Coll.), cannot be interpreted in the sense that it would result in the removal of the reference point of ratified and declared international treaties on human rights and fundamental freedoms in the assessment of national law by the Constitutional Court, even with possible derogatory consequences. The scope of the term "constitutional order 'cannot be interpreted only in the light of the literal wording of Article 112 (1) of the Constitution, but also in the light of Article 1 (2) of the Constitution. The Constitutional Court confirmed this conclusion also in its further decision-making practice (cf. Findings sp. zn. I. ÚS 752 / 02, Reports of Decisions, Volume 30, Findings No 54, and Fahr.

The Constitutional Court has therefore also examined the contested provision in the light of its compliance with Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms. In this context, however, it can be concluded that the fundamental principles of a fair process guaranteed in international human rights and fundamental freedoms treaties are enshrined in the Charter of Fundamental Rights and Freedoms within the framework of the constitutional order of the Czech Republic, so that if a provision of the law is found to be constitutional in this respect, it normally also complies with the principles enshrined in the international treaties which form part of the legal order of the Czech Republic.

This (positive) finding was also reached by the Constitutional Court in the present case.

In order to interpret the relevant article of the quoted Convention, which is - from the point of view of the issue under examination - in particular to take into account, namely Article 6 (3) (d), according to which anyone who is accused of a crime has the right to question or have witnesses questioned against each other and to obtain a summons and questioning of witnesses for his benefit under the same conditions as witnesses against each other, there are a number of decisions of the European Court of Human Rights. Thus, for example, in the Kostovski case against the Netherlands, 1989, A-166, the Court held that "the use of the statement made in the preparatory investigation does not in itself contradict Article 6 (1) and (3) (d) of the Convention, subject to respect for the rights of the defence. Those rights require a reasonable and sufficient opportunity to deny testimony against him and to question the witness, either in the composition of the witness or later. 'The same view was repeated by that court in the Delta case against France in 1990, A 1991A, when it stated, moreover, that" the admissibility of the evidence must first be assessed under national law and it is for national courts to assess the elements they collect. The rights of the defence require the defendant to have adequate and sufficient opportunity to oppose the prosecution's testimony and to ask questions to witnesses at the time of the witness's testimony or later "(cf. also the Constitutional Court's finding sp. zn. IV. ÚS 135 / 99, Reports of decisions, p. 14, p. 125, 126). In this regard, the Constitutional Court has therefore not found the unconstitutional nature of the contested provision of the criminal order, since the provision in question does not in any way call into question the appropriate and sufficient opportunity to deny the testimony against the defendant and to question the witness, either in the composition of the witness or later.

4. Only as an obiter dictum can it be recalled to certain parts of the appellant's argument (if it concerns the circumstances of a particular case) that although the proposal of a general court pursuant to Article 95 (2) The Constitution can be regarded as a so-called specific control of constitutionality - since the procedure before the General Court in the case in which the contested law is to be applied is not definitively terminated at the time of the application - the Constitutional Court, even in such a case, assesses the contested provision of law in general and does not solve the specific case. This is why the Constitutional Court does not provide detailed instructions on how to proceed in such a specific, until the end of the case, nor is it its task. It can therefore only be added briefly that a conscientious judge must be able to act in the application of the provision of Paragraph 212 of the Penal Code in question in such a way that the "screening 'does not equal, for example, the" guide question' (as stated in the statement of reasons for the proposal), but in order to enable him, inter alia, to assess whether the testimony of the witness or the co-accused in the main case is credible and thus contribute to a responsible finding of the facts.

Therefore, the procedural procedure provided for in Article 212 of the Code of Criminal Procedure does not preclude the issuing of a fair ruling, and does not infringe the rights of the defendant in any way; On the contrary, if that provision is applied in a procedural and constitutional manner - in a sensitive and responsible manner in relation to superior constitutional principles and the underlying principles of criminal proceedings - it contributes to the achievement of the purpose and purpose of criminal proceedings conducted by the competent authorities of the democratic rule of law.

Therefore, the Constitutional Court concludes that the grounds for the annulment of the provisions of Paragraph 212 of the Penal Code are not given, as they do not conflict with the constitutional provisions invoked by the applicant or with other provisions forming part of the constitutional order of the Czech Republic.

Therefore, the application was rejected in accordance with Paragraph 70 (2) of the Constitutional Court Act.