Found at the Constitutional Court of the Czech Republic No. 293 / 1996 Coll.
The finding of the Constitutional Court of the Czech Republic of 25 September 1996 concerning the constitutional complaint of the applicant Z. R. against the judgment of the Supreme Court of Prague of 6 February 1996 sp. zn. 7 To 175 / 95, as amended by the amending order of the Constitutional Court of the Czech Republic of 7 November 1996
Valid
The Constitutional Tribunal found
293
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The III. Chamber of the Constitutional Court of the Czech Republic decided on 25 September 1996 and 7 November 1996 on the constitutional complaint of the applicant Z.R. against the Supreme Court in Prague
as follows:
I. The judgment of the Supreme Court in Prague of 6 February 1996 sp. zn. 7 To 175 / 95 and the judgment of the Municipal Court in Prague of 14 May 1996 sp. zn. 42 T 16 / 95 are deleted from the part concerning the complainant.
II. The Supreme Court in Prague, as a court of appeal, is required not to take account of the period from 9 January 1996 to 6 February 1996 inclusive when deciding on the detention of the defendant.
III. The measure of the Supreme Court in Prague of 23 January 1996, which was appointed by the complainant to the lawyer JUDr. J. J., is hereby repealed.
Reasons
At the time of the formal and flawless constitutional complaint [§ 30 (1), § 34 (1), (2), § 72 (1) (a), § 2, 4 of Act No 182 / 1993 Coll., on the Constitutional Court], the complainant objects against the judgment of the Supreme Court in Prague and claims that by this decision (judgment of 6 February 1996 sp. zn. 7 To 175 / 95) his constitutionally guaranteed fundamental right under Article 40 (3) of the Charter of Fundamental Rights and Freedoms ("the Charter ') was infringed; It considers that, even though it had chosen a lawyer for appeal proceedings before the General Court, who had also declared himself in full authority to the Court of Appeal, the intervention of that court in appeal proceedings (and, in particular, in the public sitting in which the proceedings were closed) was the defence of the lawyer appointed by the Court.
With the emphasis on the fact that this is a gross interference in one of the particularly important rights constitutionally guaranteed to anyone subject to criminal prosecution, he proposed that the above-mentioned judgment of the Supreme Court in Prague be annulled by the finding of the Constitutional Court.
The President of the Chamber from which the contested decision was raised on the constitutional complaint against the call by the Constitutional Court (§ 30 (2), § 42 (3) of Law 182 / 1993 Coll.), so that he found the complainant's objections unfounded, since, with reference to the provisions of § 41 (1), (2) and (6) of the Code of Criminal Procedure (hereinafter referred to as "the Court of Appeal '), the provision of a lawyer" was intended solely for the exercise of the rights of defence by a lawyer's positive activities' when "the complainant elected lawyer was inactive during the applicable period '; he expressed his belief that the procedure chosen in the present case" follows from the theory of criminal proceedings', according to which "the application of the provisions of the substance closest to that issue (i.e. the provision of analogous) is admissible and necessary in the case under consideration. The failure to act of the chosen lawyer in its implications for the exercise of the rights of the defendant is the same as the situation in which those defendants would not have had to (§ 38 (1) (3))."
In the light of the above, and also because "if the procedure chosen had not been justified (in situations similar to the one in which the Court of Appeal found itself in the case under examination), it would not have been possible to prevent an uncontrolled extension of the criminal proceedings or to close them at all ', he added, without making a final suggestion that in the case under examination," the complainant's right of defence was not reduced'.
A similar opinion, which is identical in substance to that of the President of the Chamber, was also taken by the Attorney General (§ 76 (2) al. 2 of Act No. 182 / 1993 Coll.), which proposed that the Constitutional Court reject the complainant's constitutional complaint.
From the requested files of the General Court (sp. zn. 42 T 16 / 95 of the Municipal Court in Prague) and the Municipal Prosecutor's Office (sp. zn. Kv 59 / 92), as well as from the interview of the witness JUDr. M. K. Constitutional Court found the following facts of fact and legal relevance:
(a) By order of the investigator (Police of the Czech Republic - Office of Investigation of the City of Prague No. 22 / 120-?) of 8 February 1992, a criminal prosecution was initiated against the complainant (§ 163 (1) TRH) for the act described by the complainant "on 28 January 1992 in the afternoon at a more undetected time in Prague 6 in the garage no. 4 row garages" Under the Rock "on the street" U Sad "together with J. H. in order to obtain a private car stab wounds deliberately killed L. P., and then killed D. P., who arrived at the scene, and stole their personal car Fiat Uno red in a value of ca 300,000 Kčs."
In the present case, the investigator saw a crime of murder within the meaning of § 219 (1) (2) (a), (f) of the criminal law (hereinafter referred to as "tr. zak.").
A separate prosecution of J. H has been initiated, along with the complainant for the same act of identical legal qualifications.
(b) By order of the same investigator of 17 February 1992 (sp. zn. Kv 59 / 92), the complainant (and together with J.H.) was prosecuted for another act, which meant that "at the end of December 1991, at a later time in Prague 5, after a prior mutual agreement (sc. s H.), they were repeatedly waiting in the hall of the house at D. F., which after physical assault was intended to steal the keys to the apartment and then steal the money and vehicle BMW 524 This is worth over 100,000 CZK, but since D. F. did not show up at the time they were waiting for him in the hall of the house, the crime was not completed."
As with J. H., the act thus described was qualified as preparation of a robbery offence within the meaning of § 7 (1), § 234 (1), § 2 (b) of the Act.
(c) By order of the same investigator of 3 March 1992 (No MVV -42 / 120- 92), the case of the investigation of murder and robbery was linked to the joint proceedings of the investigation of another crime of theft pursuant to the provisions of § 247 (1), (2), (3), (3), (3), which was committed by J. H. himself, two of the following acts committed in Prague 5.
d) Following a resolution by the investigator of the Police of the Czech Republic - District Bureau of Investigation in Prague 4 of 20 March 1992, the complainant was continued in the suspended prosecution (for his previously unknown residence) on suspicion of a criminal offence against a public official within the meaning of § 155 (1) (a) (3) of the Act, which was committed on 10 January 1991 at the time of the sentence in Penitentiary No. 2 in Prague-Pankras during the demonstration of the disciplinary sentence against a SNV member, and
(e) Finally, by further resolution of the investigator (dated 20 March 1992 No. MVV 42 / 170-12), the investigation of the case was also linked to criminal prosecution for the crime of murder and robbery.
In the final phase of the procedural arrangements, the complainant was therefore prosecuted (in the circumstances mentioned above) for:
a criminal offence of murder (§ 219 tr. zak.) with a more stringent qualification in accordance with paragraph 2,
the offence of robbery (§ 234 (3)) with a more stringent qualification as referred to in paragraph 2; and
a criminal offence against a public official (§ 155 Tr.).
By order of the Municipal Court of Prague of 8 February 1992, the complainant was taken into custody in the light of the prosecution of "serious crime ', for the reasons set out in Section 67 (a), (b), (3), (3), (3), the Binding Order is justified by the fact that the complainant is a" very serious offence' (his legal name is not mentioned), which is threatened by a "high criminal rate ', which is a concern that he" will try to avoid prosecution by hiding or escaping', and, finally, that there is a "reasonable concern that he will be acting on the co-accused J. H. H., or still unheard witnesses'.
The binding thus imposed (as was the case with the co-defendant J. H.) was gradually extended by the general courts, referring, as a general rule, to the fact that "the termination of the investigation is mainly hindered by the fact that the investigative acts necessary to document the criminal activities of the accused have not yet been carried out ', etc.
On 26 February 1992, an indictment was filed by the Municipal Court in Prague (together with J. H., who was first placed), the complainant was indicted for crimes marked at the front, which he had already committed.
At this stage of the proceedings, the complainant was in custody at all since 8 February 1992 and in custody since 26 June 1992.
For the sake of completeness, it is appropriate to add that the complainant denied the actions he had been guilty of, the primary decision taken in the preparatory procedure - without any success - by appeal and, with the same result, by requesting release from custody; Only the Supreme Court of the Czech Republic, in its resolution of 21 October 1992 (sp. zn. 11 To 162 / 92), concluded that the reasons for the link within the meaning of § 67 (b) (3) (i) with the complainant (in the absence of specific facts and taking into account the procedural situation at the time) do not exist, so that the complainant (in the sense of the cited decision of the Supreme Court) was left in custody only for reasons of § 67 (a) (3).
The prosecution against the complainant (and the co-defendant J. H.) was dealt with by the Chamber of the Municipal Court in Prague 2 T from 4 to 10 November 1992 and, following the main trial, delivered a judgmental judgment (in accordance with the text of the indictment) and sentenced the complainant to 14 years imprisonment with inclusion in the III Correctional Group; The complainant was defended (from the time of the charges) by an appointed lawyer.
On the initiative of the appeal of the two parties, the Supreme Court of Prague (sp. rev. 11 To 72 / 93), to which the appeal file was submitted on 22 April 1993; The President of the Chamber to which the case was challenged, referring to the nature of the case and the status of the case, both in substance and in staffing at the office of the Supreme Court in Prague, proposed to the Supreme Court the extension of the detention until 30 September 1993.
By order of the Supreme Court of 4 May 1993 (sp. rev. 1 Tvn 90 / 93), the motion of the Supreme Court in Prague was granted.
The appeal of the parties to proceedings was dealt with by the Supreme Court in Prague in a private sitting and, by order of 27 September 1993, the judgment under appeal was annulled in its entirety [§ 258 (1) (a), (b), (c) (3)] and the case was referred back to the City Prosecutor in Prague for further investigation (§ 260 (3)), with the complainant remaining in custody in view of the circumstances previously stated (see sub. III).
The Court of Appeal in the Court of First Instance's judgment of First Instance ruled out a number of procedural errors, some of which had its origin in the preparatory proceedings (lack of a description of the crime of murder, the manner of provisions of experts, etc.), as well as defects in the facts (lack of evidence of odour), both in their implementation and in the extent of the evidence made, some of which (such as witness K. confirming to the complainant for the final period of his alibi, witness F. and so on) were omitted entirely, all of which led the Court of Appeal to believe that the conclusions of guilt (the complainant and the defendant J. H.) 'were inconclusive, inconclusive, inconsistencies and prejudicial, as they did not have a complete basis in the evidence'.
After the appeal of the first-degree judgment and the decision that the case was referred back to the City Attorney in Prague, the case file was referred to the Municipal Public Prosecutor in Prague on 1 October 1993.
The rectification of procedural formal misconduct by the appellate court was neither intrinsic nor time-consuming; Similarly, the parties to the addition of evidence, whether the complaints of the appellate court referred to omitted witnesses (with the exception of which it will be mentioned later, they were all in the district of the trial court) or to other evidence (insufficient evidence of odour marks and the resulting requirement of the appellate court to repeat and carefully document their new comparison, or to carry out a reconstruction and investigation of the crime of robbery, complementing expert opinions in the field of psychiatry and psychology); in this situation, only the parties to the interview of witness K. could cause some difficulties, given that this witness was outside the territory of the Republic (England) at the time of the investigation.
Despite the fact that the need for questioning of the witness appointed had already been brought to the attention of the Court of Appeal's first decision (dated 27 September 1993) and that the place of the witness's then residence (in general) was known, the first (failed) attempt to establish the exact address of the witness was made on 20 April 1994, although it is clear from the file that the witness's place of residence was known to his former wife (witness K., the complainant's co-worker); The complainant's lawyer (by letter dated 5 August 1994) responded to this startling inertia of the authorities active in the preparatory procedure by communicating the witness's exact address, while the investigator "searched" after this communication through the Interpol Centre in Prague (the first step was made by a request of 13 September 1994) and received a confirmation of the address communicated by the lawyer by fax of 3 October 1994. Further delays created unnecessary questions (via Interpol) whether the witness is willing to give his statement before the Czech authorities (and to this end come to the Republic).
So it happened that
1. the record of the testimony of the witness K. could only be taken on 28 February 1995 (the statement before the competent authority in London) and that - after further delays - the Municipal Prosecutor's Office in Prague was sent to the investigator on 20 March 1995,
2. the results of the (supplemented) investigation may have been "already" on 28 June 1995 and finally,
3. The new indictment (against the complainant and J. H.) was filed on 18 July 1995; the facts and legal qualifications were essentially consistent with the previous indictment.
On 27 October 1995, the defendant was heard by the Municipal Court in Prague as a court of first instance in an ongoing main trial (14 September to 26 October 1995) and, on 27 October 1995, delivered a judgment which recognised the defendant as guilty under the indictment, namely for the offences referred to in § 219 (1), (2) (f), § 7 (1) to § 234 (1), paragraph 2 (f), and sentenced him to 15 years in prison for the execution of the sentence imposed (§ 219 (2), with application of § 35 (1), § 39 (3) and (3) respectively).
The Supreme Court, by order of 9 August 1995 (sp. zn. 1 Tvn 201 / 95), extended the complainant's link until 7 February 1996 (the deadline for the complainant's connection within the meaning of Article 71 (4) (c) ended on 8 February 1996).
It could not be ascertained from the copies submitted of the judicial file when the judgment of the Court of First Instance was served on the parties to the proceedings and when, after the appeals lodged by all the parties, the case was referred back to the Court of Appeal; However, it may be considered that this was done at the end of 1995, since, on 9 January 1996, a public meeting was ordered by the Court of Appeal, which, however, was postponed several times (for reasons other than that), until 6 February 1996, a judgment was delivered by which the complainant was recognised as guilty of the offence of robbery [Paragraph 7 (1) to § 234 (1), (2) (f) (3) (3) (2), and a criminal offence against a public official (§ 155 (1) (a) (3) (c) (3) (2) (2) (2) (2) (3) (3) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5).
The party to the murder offence was again annulled by the Court of First Instance and the case referred back to that court in order to re-examine and rule, to the extent necessary (§ 259 (1) (3)); At the same time as the judgment was delivered, the complainant was ordered (for convicted offences) to execute the sentence which he entered on 7 February 1996.
The Court of First Instance (in respect of the complainant's person) expressed its reservations in respect of the design of the complicity and the expert's conclusions of the parties to the complainant's sanity at the same time when it concluded that, even on the basis of the facts to date (in the course of the subsequent proceedings of amendments), the Court of Appeal would have to consider the stricter legal qualification of the alleged murder also within the meaning of paragraph 2 (a), (b) § 219 (3) (a) (a criminal offence against two persons committed in a particularly rough manner), which, naturally (the Court of Appeal at the same time, may have its consequences in subsequent consideration of the sentence or of clearly resulting,
It follows from the chronological order that, in the period from the end of 1992 (the Court of First Instance 's reference report was not available), there had been greater delays in the appeal court until the end of September 1993 in the appeal proceedings. However, significantly greater delays occurred - between 1 October 1993 and 18 July 1995 (i.e. almost 22 months) - in the preparatory procedure. In order to justify these delays, the Constitutional Court did not find any reason, either in the file submitted or after oral proceedings in the evidence it had carried out, particularly when the requested surveillance file of the Municipal Prosecutor's Office in Prague showed that there was no record in this file from 27 December 1993 to 29 March 1995, which would prove the slightest interference of the Public Prosecutor in the ongoing investigation.
The defendant was appointed to the complainant immediately after the arrest (8 February 1992); the lawyer, as indicated by the content of the file, was already adequately active in the preparatory proceedings and, in the same way - judging by written submissions - he also served in the proceedings before the courts.
The complainant's binding was gradually and continuously extended by the competent courts, for the last time (on the application of the Court of First Instance) by order of the Supreme Court of 9 August 1995 on 7 February 1996, up to the legal length limit (§ 74 (1) (3)).
There is no basis in the case file for the judgment that the lawyer would act irresponsibly or that there would be a greater reduction in the rights of the defence by the law enforcement authorities; the first indication of the complainant's disagreement with the investigator's procedure can be observed in his complaint of 30 June 1995 addressed to the prosecutor, who is complaining, on the one hand, of delays in the case, and, on the other hand, that he was not given sufficient time to be aware of the results of the investigation, or that he had not been interviewed by his proposed witness, V., and, on the other hand, that the experts "examined him in prison within 15 minutes' to complete his expert opinion; the complaint results from a" notification of a criminal offence 'against the investigator, which the investigator should have committed by "action of illogical delays' and in a manner of investigation" which he targeted exclusively to the detriment of the complainant '.
The negative opinion of the Municipal Prosecutor's Office in Prague on the submission of the complainant is justified by the fact that the prosecutor concludes in it that "in the context of the follow-up requested by the Supreme Court in Prague only a few acts have been carried out" (!), or that the opposition of the parties to the experts of psychiatrists is unfounded, as the "basic expert examination was carried out before the first closure of the file material and after the completion of the investigation only the addition of the expert opinion was carried out."
These opinions are, however, contrary to the requirements of the Court of Appeal, which, after all, again part of the judgment of the Court of First Instance in relation to a crime of murder, has already been annulled for a second time (judgment of 6 February 1996) also for the incompleteness of the facts and defects in the evidence of the expert.
Serious procedural complications in the proceedings before the General Courts took place in the second appeal procedure, for which, for the duration of the preparatory procedure, a maximum of 37 days remained available for the period of detention.
The appeal court ordered a public meeting on 9 January 1996 for the hearing of the appeals lodged; by (fax) dated 8 January 1996, the complainant submitted a new defence lawyer (of 5 January 1996) and, at the same time, with reference to "other court proceedings' and" complexity and scope of the case ', requested that the public meeting already ordered be adjourned; that request was granted by the Court of Appeal, the sitting was adjourned on 23 January 1996 and, at the same time (at the meeting of the lawyer present), waived the complainant's obligation to further defend the criminal case (Paragraph 40 (3)).
By a further letter (fax) of 22 January 1996, the elected lawyer informed the President of the Board of Appeal that he would not appear at the hearing on 23 January 1996 "on account of incapacity for work 'and therefore the sitting was postponed again on 2 February 1996.
In this already critical situation, the President of the Board of Appeal, by a measure of 23 January 1996, appointed the complainant - with reference to the provisions of Paragraph 36 (1) (a), (3) (3) (3) - a lawyer in the person of JUDr. J. J., to which the chosen lawyer (by application of 30 January 1996) reacted by raising an objection to the President of the Chamber on the grounds that he "unreasonably intervened in the right of defence ', merely to" expedite the course of criminal proceedings'.
However, the session ordered on 2 February 1996 did not take place, as on 2 February 1996 at 6.30 pm, the co-defendant J. H. was found unconscious in his cell and the doctors of the prison hospital (MUDr. K. and MUDr. Š) expressed suspicion of intoxication with unknown drugs, with the defendant's current medical condition requiring intensive care, which naturally excluded his participation in a public session. For this reason, the public meeting was therefore adjourned again on 6 February 1996, when the judgment, as mentioned earlier, was delivered with the participation (as regards the complainant of the newly appointed lawyer). The complainant, the lawyer elected by him, has once again failed to appear in relation to his / her inability to attend, in spite of his / her proper notification of the date of the meeting and of the necessity of his / her participation.
For the sake of completeness and for the sake of clarity,
1. The complainant did not agree with the provisions of the Advocate General by the Court of Appeal and made its opposition not only to that defendant in his attempt to prepare the defence, but also to a separate document sent to the Court of Appeal, which led the designated lawyer to request an exemption from the complainant's duty to defend,
2. the situation was almost identical with that of the defendant J. H., but at the public meeting on 6 February 1996, two defenders (elected and appointed by the Court of Appeal) defended,
3. The requests made by the lawyers to waive the obligation of the complainant and the co-defendant, J. H., were no longer granted,
4. Both in the course of the public sitting and in the final motions, the defence's provisions were referred to by the defence's earlier views on the file, and the lawyer appointed by the complainant also stated that "despite the decision of the Chamber which he respects, he would like to emphasise that he does not feel subjectively entitled to represent the defendant, both for his disagreement and for the reasons set out in Sections 37 (2) and 38 (1) (3)"; It therefore limited its final proposal only by referring "to the written proposal of its predecessor (i.e. the lawyer originally appointed) without having anything to add to it '.
In the factual and procedural situation described (conduct of appeal proceedings) It was left to the Constitutional Court to conclude that the complainant's defence at the public meeting on 6 February 1996, in which the complainant's final conviction was, on the one hand, final (for the offences referred to in paragraphs 234 and 155), and, on the other hand, the annulment of that part of the first-degree judgment, which affected the offence referred to in paragraph 219 (3), was completely formal and was in fact limited to the physical presence of the defendant at the public session in which the decision was final in the part of the indictment.
On the basis of these facts and the procedural procedure of the preparatory procedure (after the appeal of the judgment of the General Court of First Instance) and (second) of the appeal proceedings, the Constitutional Court drawn the following conclusions:
The formally guaranteed right of defence (Article 37 (2), Article 40 (3) of the Charter) together with the presumption of innocence (Article 40 (2) of the Charter) are the fundamental conditions of the fair trial (Article 36 (1) of the Charter) in which the accused's guilt is to be established; These constitutional guarantees are also reflected in the Code of Procedure, the Code of Criminal Procedure (Paragraph 33 (1) (3)), which, in accordance with the Constitution, is built on a very clear principle of the priority of the choice of the lawyer (Section 33 (1), Section 37 (2) (3)), which the defendant is entitled to apply at any stage of the pending procedure (Section 37 (2) (3)); It is therefore always a matter for the defendant (defendant) to entrust his or her defence to whom and to whom of the persons entitled to provide legal assistance in the form of a defence in criminal proceedings (Paragraph 37 (3)), or whether or not to make use of his or her right of choice. However, the accused (defendant) is responsible for the choice made and, therefore, the general court is no longer entitled to assess the "quality" of the defence or the "inaction" of the lawyer, since he (the defendant) cannot be denied the right to choose the procedural tactic that he intends to enforce in the court proceedings; The contrary would mean an obvious interference of state power in the constitutionally guaranteed fundamental right of defence and, where appropriate, a certain - clearly undesirable and above all constitutionally inadmissible - form of state control over its execution.
Similarly, this applies in cases where the defendant does not exercise his right of choice; only if the defendant (defendant) has to have an ex-lawyer, the general court is entitled (must) to determine the defendant (s) in the absence of a choice of lawyer (s) (s) (s) (s) (s) (Article 38 (1) (3) (3)), without, however, being entitled to exercise the ordered defence in any way (s).
However, the right of free choice of lawyer and certain autonomy of his position in court proceedings (other public authorities) also implies the defence's duty not only to subject the defence to the conditions of the law (Section 41 (3), Section 16 of Act No. 85 / 1996 Coll., on the Advocacy), but also his duty to ensure that he provides legal assistance to the ethical rules of his profession; However, the lawyer is not liable to the court (public authority) but to the defendant, or to the body to which he is subject (§ 32 of Act No. 85 / 1996 Coll.), and therefore, if he is in breach of the defence of his / her obligations (or if he / she provides legal assistance non-separatis and not a criminal offence), the remedy cannot be dealt with otherwise than through the Czech Bar Association.
For the right of defence so constitutionally assumed, the pleas of the President of the Senate will not stand up to the very same opinion of the Attorney General, namely that "the merits and above all the legality of the procedure chosen" (i.e. the possibility of the defendant being represented by the defendant by the elected lawyer, beside him, to establish an application of the analogous provision of Paragraph 39 (1) (c) above) is justified not only by the theory of criminal proceedings, but also by the possibility of abuse of the right of choice of the lawyer (inaction, repeated by his choice, etc.), which could lead to an uncontrolled extension of criminal proceedings or impossible to an end of them at all '.
However, the liability of the defendant for the (timely) choice of lawyer does not imply an obligation for the general court to adapt the procedure and its conduct to the ideas and demands of the lawyer (defendant), even if the defence is taken over by the lawyer at the shortest time; In fact, the time needed to prepare the defence (including the exercise of the right to choose a lawyer) must be directed from the court to the lawyer and not the other way round, so it is a matter (professional responsibility) of the lawyer, if the representation is "last minute," as he deals with his legal and ethical obligations; the change in the person of the lawyer elected is therefore not in any way bound by the General Court in the course of proceedings under its regime.
Indeed, the above views of the appellate court and the Attorney General completely ignore the fact that the condition laid down in Article 40 (3) (1) of the Charter in the present case seems not to have been met, since it is possible to have serious and reasonable doubts that, in the case - as the law enforcement authorities repeatedly contend in various decisions - the lawyer appointed on 23 January 1996 had sufficient time to properly prepare, should the complainant defend effectively at the public meeting ordered on 6 February 1996.
It follows from the principles thus distributed that, in principle, it is constitutionally inadmissible to replace the lawyer elected by the lawyer appointed, or, in addition to the lawyer elected, to impose an ex-offo defendant on the defendant (accused), even if, in terms of length of custody, there is a risk of delay. It is a matter of the State (and the judicial authority itself) to create conditions for the administration of justice that would allow the limits set by the law to be met (compare the finding in IV ÚS 55 / 94 - No 42 in the Constitutional Court of the Czech Republic: Collection of Found and Order, Sv. 2, C. H. Beck Praha, 1995), as is the duty of the judicial authorities to respect these limits.
Under these aspects, the complainant's constitutional complaint therefore appears justified and there was therefore no choice but to comply with it as such and to the extent apparent from the operative part of the sub. Article 82 (1) of Act No 182 / 1993 Coll.), including the judgment of the General Court of First Instance (judgment of 14 May 1996 sp. zn. 42 T 16 / 95), since this decision also has its substantive and procedural basis in the annulled decision of the General Court of First Instance of the second degree as a court of appeal.
The procedural defects found by the parties to the defendant's defence by Z.R. were found by the Constitutional Court in a similar, albeit not in such a significant, form, form, form, and by the parties to the defence of the defendant J. H., to whom, in addition to the lawyer already established in the preparatory proceedings, his wife was elected by the Court of First Instance (§ 37 (1) and (3)), and the request of the lawyer previously appointed for exemption was no longer granted by the Court of Appeal; As a result, two defendants defended the defendant at a private session on 6 February 1996.
Although the Code of Criminal Procedure does not preclude the defence of several defendants in criminal proceedings (as opposed to civil proceedings) of one defendant (defendant), for reasons already explained earlier, the Constitutional Court considers it constitutionally inadmissible to be a forced intervention by a general court (possibly another law enforcement authority) and thus essentially for omission of the lawyer's choice. Therefore, the Constitutional Court finds also constitutionally inadmissible defects in the defence of the defendant J. H.; the failure of the General Court of the Second Degree sees that the Constitutional Court has failed to comply with the request of the lawyer appointed by the defendant J. H. for the waiver of the obligation to defend him (made at the sitting of 6 February 1996).
However, this error, clearly affecting the Constitution of the guaranteed right of defence also in the defendant J. H., did not pay any further attention to the Constitutional Court, on the one hand, because it was not contested by [Paragraph 34 (1), § 72 (1) (a) of Act No 182 / 1993 Coll.], on the other hand, because it had not been found by the Constitutional Court (for the reduced degree of detail already mentioned) identical to the parties to the restriction of the same right with the complainant, and therefore - taken into account this fact - the Constitutional Court of First Instance did not conclude that it would have been necessary (Paragraph 63 of Law 182 / 1993 Coll.) and that the parties to decide within the meaning of Paragraph 261 (Beneficial cohaesionis).
However, the result of the finding of the Constitutional Court is that the General Court of Grade II will be forced (Article 89 (2) of the Constitutional Law No. 1 / 1993 Coll.) - as regards the complainant - not only to decide again on the substance of the case, according to the procedural status of the appeals lodged against the judgment of the General Court of Class I of 27 October 1995 (that is to say, the procedural status of the established reason for the non-constitutionality), but also on the nature and regime of the detention of the complainant in the prison in which he is still present; However, these are already issues which are quite clearly affecting the general judiciary (§ 2, § 23 (1) (a)), and therefore the Constitutional Court left them out of its attention when it did not assess the reasons for the complainant's binding.
The Constitutional Court, on the other hand, had to consider the general interest in the proper and constitutionally consistent administration of justice, to which, as is understood by itself, the right of the State itself to a fair trial, particularly when, in criminal proceedings, the State itself, within the limits which it has set itself, is a party to the proceedings. The limits mentioned are without doubt the duty of the State to ensure that justice (in a fair process) is carried out without undue delay (Article 38 (2) of the Charter) and within a reasonable period of time (Article 9 (3) of the International Covenant on Civil and Political Rights by which the Czech Republic is bound within the meaning of Article 10 of Constitutional Law No. 1 / 1993 Coll.).
In the field of criminal justice in detention matters, it is, in the opinion of the Constitutional Court, appropriate time should be taken to be within the maximum period of four years (Paragraph 71 (4) (d)) in which the detention case must be terminated as such; This legal period, which is completely consistent with the constitutional courts, is understood by the Constitutional Court to mean that it is an inexcusable time limit towards a State which, within such a time limit, must be called upon by its authorities (Article 40 (1) of the Charter) to execute justice in the detention regime or release the defendant (accused) from custody.
However, this objective period - particularly directed towards the State as protection of the defendant (accused) - is bound not only by the State itself, but - taking into account its substance and meaning - applies in its own way to the position of the defendant (accused) in the proceedings, in the sense that it does not cover such obstacles (circumstances) as the State (its law enforcement authorities) does not affect. If the involvement of the defendant (accused) in the performance of the trial activity cannot be enforced by State intervention (§ 33 (1) and (1)), even if the involvement of the defendant (accused) in the execution of the evidence is an indispensable procedural condition (§ 202 (3) and (3)), the Constitutional Court - from a constitutional point of view - appears reasonable and fair (i.e. all the legal and constitutional conditions corresponding) - in the light of a high request to all law enforcement authorities - to pursue the purpose of criminal proceedings with the exercise of all the efforts and means legally available to them so that the proper exercise of justice is not jeopardised by such circumstances as the State itself as a procedural party; In other words, if the obstacles which prevent the State, despite the efforts made to bring a binding criminal case to an end within the prescribed period, are in extreme conflict with the purpose of criminal proceedings (§ 1 (3)), the nature and purpose of which infringe not only the law but also the conditions of a fair trial (prescribed procedure) as they result from the constitutional order of the Republic (Article 36 (1) of the Charter).
This includes not only the obvious efforts (intentions) of the defendant (accused) to avoid the ingenious conduct of the consequences of criminal prosecution (self-inflicted, simulations or aggravation in the state of health, etc.), that is to say, those involving clear efforts of procedural obstruction, but also those which - although lacking such features - already pursue extra-procedural objectives; This is clearly contrary to such phenomena at the expense of the State as a procedural party, both from constitutionally protected procedural bail-outs and even from the very scope of state law (Article 1 of Constitutional Law No. 1 / 1993 Coll.), but it is the Constitutional Court's belief that it is necessary to face them.
On the basis of these considerations, the Constitutional Court then concluded that the period of detention of the complainant in custody, as indicated in the operative part of this finding, i.e. the period from the date on which the complainant's chosen lawyer, with the submission of the mandate, requested the Court of Appeal to postpone the public session already ordered, until 6 February 1996, when, without any synergy of the lawyer chosen by the appellate court, the decision to be annulled is a barrier which cannot be included in the period provided for in Article 71 (4) (4) (4) (4) (4) (4) (4).
This belief, bearing in mind the fundamental value of the State (Article 1 of the Constitutional Act No. 1 / 1993 Coll.), has its own obligations (Article 83 of the Constitutional Act No. 1 / 1993 Coll.), as well as those imposed by the General Court (Article 90 of the Constitutional Act No. 1 / 1993 Coll.), gave the Constitutional Court an expression by saying sub. II the theme of this finding, which is the result of a change in the procedural situation (state status as a procedural party), as already mentioned; It has already been stated earlier why the Constitutional Court did not, by its decision, touch on the questions relating to the limitation of the complainant's personal freedom, as they result from the relevant decisions of the General Courts on the custody of the complainant (execution of the sentence), and why, in the subsequent decision of the General Courts, it left them entirely to their consideration. For this reason too, the statement in question in the present case should therefore be understood not as a mandatory imposition of the obligation on the General Court of Level II, but only for the definition of an otherwise necessary constitutional space of conformity, if the General Court of Grade II accedes to a new decision on the complainant's detention.
If the law enforcement authorities were not in a position to put an end to the complainant's constitutionally consistent criminal custody case in a final manner within a legal four-year period, it was necessary to ask the Constitutional Court whether the complainant's case was indeed so difficult and complicated that even the legal period of the investigation was not sufficient; After careful consideration of all relevant circumstances, the Constitutional Court concluded that this question could not be answered otherwise than by a negative answer; Addition of the evidence ordered by the appellate court by its nature and complexity did not in any way deviate from the evidence of difficulty where there is no direct and immediate evidence (in the case under examination in the case of murder and preparation for robbery) and where there is no choice but to draw the facts from the evidence indirect or, where appropriate, from the statements of the perpetrators themselves. It therefore appears that, as the findings of the Constitutional Court as well as of other criminal matters dealt with by the competent authorities in particular in the preparatory proceedings, the very length of the legally permissible investigative link, all the more so because, as evidenced by the general courts, the findings of the Constitutional Court and the other criminal matters which it dealt with, it also pointed out in the preparatory proceedings (e.g. finding No 34 in the Constitutional Court of the Czech Republic: Collection of findings and resolutions - Sv. 1, C. H. Beck Praha, 1994), they often suffer from vague and frivolous requests for extension of the ties, and, in fact, often in the grounds of the relevant resolutions, to the extent that they do not often have far to form copies [see the resolution of the Municipal Court in Prague of 8 February 1992 - sub-sub-b) and, and, in fact all the grounds of extension of subsequent resolutions, including decisions of higher degree]; In such cases, however, even longer periods become easily inadequate.
Although the Constitutional Court does not lose sight of the material and technical difficulties that, in particular at the early stage of the proceedings, the general courts (in particular the first degree) meet (the quality and extent of the information provided to them, often time pressure, etc.), it is not possible to forget that the imposition of the detention is always a serious interference in the individual's personal freedom and therefore requires extremely careful - although often difficult - decision of the court. Moreover, the nature of the detention decision, and in particular the consequences thereof, also led the legislator to emphasise its exceptional nature through the repeated imposition of special obligations (§ 71 (1), (2), (72) (1), (2) (3)) to all criminal authorities, which at the same time are reminded not only of the need for careful and conscientious decision-making, but also of the need for an emergency situation resulting from the legal restriction of personal freedom in the course of criminal proceedings to be reduced as short as possible, but at the same time also implies an equally important requirement for a reasonable speed of management.
The fundamental cause of the misconduct not only in this case is therefore seen by the Constitutional Court in the fact that the general courts, when imposing and in particular when extending the investigation, do not pay sufficient attention to the grounds claimed (i.e. they do not find out what facts are actually hidden behind the phrases used) and, if they do, completely neglect their duty to examine before their own decision whether and which evidence has already been carried out, or which evidence has not been carried out, why it did so, etc.
In fact, this apparent superficial nature of the decisions on the links on the other hand leads, in fact, to the fact that, under the circumstances, they rely for a reasonable reason on the "automatic" extension required by them, since it is sufficient that "the investigation cannot be carried out in its entirety and there is a high penalty for the accused ', etc. (see the application of the investigator of 14 January 1994 and others similar) or that" the procedure could not be terminated for the purpose of proving the burden even within an extended period of time' (explanatory note of the resolution of the Supreme Court of 25 May 1994).
Apart from the incomprehensible indifference or indifference of the investigator in the case under examination (see "search" for the whereabouts of witness K.), it is quite clear that the case was treated similarly by the "overseeing" public prosecutor, who apparently suffered not only from the indifference of the investigator, but accepted and itself submitted haughty proposals to extend the detention and, moreover, the delay in the proceedings without justification (see, for example, the late request of the Office of the State Prosecutor for the City of London - December 1994; a delay in bringing an indictment up to the last day of the extended detention, etc.). A similar approach of the Municipal Public Prosecutor's Office in Prague has also been shown in other directions, since moreover, what has already been mentioned, the Public Prosecutor's Office:
1. Although, since the charge against the accused was brought, it was (could not be) obvious that at least one of the perpetrators was a murderous attack against two persons and that the attack itself (due to the manner in which it was conducted and the extent of the destruction of the victims' bodies, which it caused) was characterised by an exceptional brute, a qualifying moment within the meaning of the provisions of paragraph 2 (a), (b) § 219.
2. fails to respect the appeals of the appellate court in respect of the scope and manner of expert evidence, which ultimately led the appellate court to withdraw the relevant sentence (parties to the murder by judgment of 6 February 1996); and
3. in its appeal against the judgment of the Court of First Instance of 27 October 1995 (after its notification on 21 November 1995 probably on the last day of the legal period justified only by the application to the Court of First Instance of 27 December 1995), it was noted that the end of the legal period of custody would occur on 7 and 8 February 1996 respectively, seeking the annulment of the full judgment of the Court of First Instance and the return of the case to the first stage proceedings (amended only in advance by the representative of the High Prosecutor in Prague at the public meeting on 6 February 1996), which contained the presumption of the release of the defendants from custody (§ 71 (4).
All these circumstances, both in their individual and in summary, led to the Court of Appeal, which had a period of only a little longer than one month for a substantive decision, for procedural complications which it did not expect, to find itself in a critical situation in the light of the provisions of Paragraph 71 (4). Although there is a strong suspicion that, at the final stage of the proceedings, the defendant's attempt to obtain the release of the complainant (and, together with him, the co-defendant J. H.) from the custody of the defendants, a sudden and probably unfounded change in the persons of the defendants, an attempt by the defendant to extend the appeal proceedings, etc.), which was likely to have been aimed at making the complainant's dismissal (and, together with him, the co-defendant J. H.), from the custody of freedom, it cannot be overlooked that even such an end to the procedural arrangements of which must be taken into account, in particular for the preparatory and procedural proceedings before the Court of First Instance, when the timetable should be taken into account of the necessary time for (possible).
The other thing, however, is whether similar tactics, or taking over the defense itself at a time when there is clearly not enough time to prepare it properly, are still compatible with the ethical principles of the conduct of advocacy.
Moreover, the experience of discussing this matter, in terms of decision-making on detention, fully consistent with the findings of dealing with other constitutional complaints concerning links, shows a lack of the current regulation of the binding regime.
All the reasons set out above, the Constitutional Court, in relation to the decision on detention, as well as the ex-officio findings obtained from the hearing of other constitutional complaints affecting the grounds and length of the investigation links, urges general conclusions also on the current regulation of the detention regime and on the reasoning of de hoc.
First of all, as regards the legal reasons themselves, the present regulation is designed completely separate from the action (offence) for which the binding is imposed (Section 67 (3)) or for which the offender is prosecuted; This alone - in the current practice of law enforcement authorities in particular - leads to a decision-making method in which it is often not far from certain elements of libel, virtually completely unexplored and often too extensive an interpretation of legal and therefore constitutional cauties. This is particularly apparent in the case of serious crimes, when all the current legal criteria for the imposition of the detention are more or less aside, and the only reason for the detention is precisely the nature or nature of the crime being prosecuted.
As far as the legal length of the investigation link is concerned, the current legislation is not entirely satisfactory, since it is very difficult to deal mainly with procedural obstruction, or with such circumstances as the State itself reduces its right to a fair trial, as was pointed out in this finding.
Chairman of the III Chamber of the Constitutional Court of the Czech Republic:
JUDr. Ševčík v. r.
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Regulation Information
| Citation | Found by the Constitutional Court of the Czech Republic No. 293 / 1996 Coll., on the constitutional complaint of the applicant Z. R. against the judgment of the Supreme Court in Prague of 6 February 1996 sp. zn. 7 To 175 / 95, as amended by the amending order of the Constitutional Court of the Czech Republic of 7 November 1996 |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.11.1996 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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