The Constitutional Court found no 345 / 2017 Coll.
The Constitutional Court found of 8 August 2017 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
19.10.2017
345
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 8 August 2017 (as amended by the amending resolution of 21 August 2017) in plenary of the President of the Court of Pavel Rychetský and the Judges and Judges of Jaroslav Fenyk (Judge of the Rapporteur), Louis David, Josef Fial, Vladimir Sládeček, Radovan Sučánek, Kateřina Šimáčková, Vojtěch Šimíček, Milady Tomková, David Uhlíř and Jiří Zemánek on the application for annulment of the first sentence and § 143 (1) of the Law No 141 / 1961 Coll., on Criminal Procedure, as amended by the Constitutional Complaintiff. 1.
as follows:
Motion denied.
Reasons
Definition of the subject-matter
1. The complainants requested the annulment of their constitutional complaint in the heading of the specific decisions of the Regional Court in Prague ("the Regional Court ') by which that court rejected the complaint of the complainants as damaged in criminal proceedings against the order on the obligation of the defendant to pay the costs of the injured persons for the exercise of their claims in the adhesion proceedings, on grounds of delay, and at the same time rejected their request for the recovery of the deadline for filing by an unjustified person. The facts were that the Kladno District Court, before which the criminal proceedings in question had been brought, had ordered the defendant to pay only partly the costs of the victims, and they wanted to oppose the relevant order by making a complaint. However, for health reasons, the complainant's agent missed a period of three days to file the complaint, the day following the expiry of the period in vain, sending the court, on behalf of the complainants, the complaint in question, together with the medical report and the request for repayment of the period provided for in Paragraph 61 (1) of the Criminal Code. This request was not granted by the Regional Court on the grounds that Paragraph 61 (1) of the Criminal Code confers the right to request repayment of the period only to the defendant and thus to reject the complainant's complaint for delay in accordance with the relevant procedural procedure.
2. Complainants, pursuant to the provisions of § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., joined with their constitutional complaint the proposal to repeal the provisions of § 61 (1) of the First Law No. 141 / 1961 Coll., on criminal proceedings (the Code of Criminal Procedure), as amended (hereinafter referred to as the Code of Criminal Procedure) and the provisions of § 143 (1) of the Code of Criminal Procedure, in the scope of the word "three" (hereinafter referred to as "the contested provisions"). The First Chamber of the Constitutional Court decided by order of 13 September 2016 No. I. ÚS 2084 / 16-16 (available at http: / / nalus.ujud.cz) by interrupting the proceedings for a constitutional complaint and the application for annulment of the contested provisions pursuant to § 78 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, referred the plenary of the Constitutional Court to the judgment.
Recital of the proposal
3. The complainants justify their application for annulment of the contested decisions by stating that, although they are aware of the fact that the so-called adhesion proceedings are governed only by the Code of Criminal Procedure and the provisions of the Civil Procedure Rules cannot be applied by analogy, it should not be taken into account that the injured and the pest are in a civil legal sense equal to the ex-delicto obligation relationship and that, in terms of substantive law, the claim of the injured and the criminal proceedings is governed by the Civil Code, while equality before the law is an elementary human law and the fundamental principle of the democratic and legal state, expressed in Article 1 of the Charter of Fundamental Rights and Freedoms ("Charter '). The complainants consider that the Code of Criminal Procedure confers the right to apply for repayment of the time limit provided for in Paragraph 61 only because it is opposed by a public prosecutor who is a representative of the institution, but does not reflect the fact that, in the context of an adhesion procedure, the injured and the pests who are in a private-law dispute in which they should have an equal position.
4. The complainants also argue that the right to be reimbursed for the costs of criminal proceedings may be exercised as damage only in accordance with the procedure laid down in Section 154 of the Code of Criminal Procedure, and thus cannot be exercised in any other proceedings, such as civil proceedings.
5. The complainants continued to oppose the provisions of Paragraph 143 (1) of the Code of Criminal Procedure to the extent of the word "three ', setting a three-day time limit for lodging a complaint. The complainants justify this proposal by saying that it is the numerous practice of law enforcement authorities that the resolutions against which the complaint is admissible are distributed on Friday and therefore the deadline is actually shortened to just one working day, as these resolutions are normally delivered to the data boxes of lawyers and thus already served by filing for a completely unrelated purpose. Such resolutions are actually delivered by a majority on Friday.
6. The complainants consider that the three-day period is not reasonably justified and is disproportionate to the seriousness of the cases on which it may affect. This is a period which applies not only to the victims, but also to the accused, in particular to whom the resolutions in question will be significantly affected by their rights, where, as an example, the complainants present a resolution on taking custody. This deadline is also considered by the complainants to be non-discriminatory in relation to the normal duration of the criminal proceedings, which are normally held months to years.
7. The complainants therefore concluded that by allowing the recovery of the period provided for in Paragraph 61 (1) of the Penal Code only to the defendant as one party to the civil law dispute in the adhesion proceedings and by the too short (three-day) deadline for the lodging of a complaint under Article 143 (1) of the Penal Code, their right to judicial and other protection within the meaning of Article 96 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), Articles 36, 37 (3) and 1 of the Charter is violated. Since the sole reason for the breach of these fundamental rights is the unconstitutionality of the contested provisions, the complainants proposed their annulment.
Comments from other interested parties and further comments from complainants
8. The Constitutional Court sent the complaint to the parties in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended:
9. On behalf of the Chamber of Deputies of the Parliament of the Czech Republic, its President Jan Hamáček spoke. It recalled the course of the adoption of the legislation by which the contested provisions were introduced into the rule of law, stating that, in the explanatory memorandum, the reasoning for the two contested provisions was missing, pointing out that since the adoption of the Code of Criminal Procedure in 1961, the contested provisions were not amended with a single irrelevant exception and concluded that it was for the Constitutional Court to assess the constitutionality of the contested provisions.
10. Similarly, his President Milan Štěch spoke for the Senate of the Parliament of the Czech Republic. He also pointed out in his observations that the contested provisions had already been part of the rule of law since 1961, with the Senate of the Parliament of the Czech Republic not beginning its activities until the end of 1996, and thus legislated only in the context of the discussions of the above amendments, which concerned a more comprehensive amendment to the Code of Criminal Procedure - Act No. 265 / 2001 Coll., amending Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, Act No. 140 / 1961 Coll., the Criminal Act, as amended, and some other laws introducing, inter alia, by way. It also stated that, even in the context of the discussion of related substantive debates in the Senate of the Parliament of the Czech Republic, the presentation of the current views of the Senators concerning the contested provisions was not available. The President of the Senate of the Parliament of the Czech Republic also concluded that it was up to the Constitutional Court to assess the constitutionality of the contested provisions.
11. The Ombudsman has decided not to exercise her right to intervene before the Constitutional Court in the present case.
12. On the contrary, the Government of the Czech Republic ("the Government"), by order of 28 November 2016 No 1072, took note of the initiation of the procedure before the Constitutional Court, decided to enter it, proposed to the Constitutional Court to reject the application, authorised the Minister of Justice to represent the Government before the Constitutional Court, ordered the Minister for Human Rights, Equal Opportunities and Legislation to inform the Constitutional Court of its resolution, and sent its observations to the Constitutional Court.
13. The Government considers the proposal to be manifestly unfounded as it calls into question the concept of favor defensionis, with the Constitutional Court having previously answered the question of the circle of persons responsible for bringing back the deadline. It referred to the order of the Constitutional Court of 5.4.2006 sp. zn. II. ÚS 509 / 05 (all decisions of the Constitutional Court are available at http: / / nalus.ujud.cz). The Government further analysed the conclusions of this resolution, stating that they were materially impacting on the situation of the appellants and that, in their wording, the Constitutional Court, too, relied on the special importance of the possibility of requesting repayment of the term of the accused as compensation for the obligations which may be imposed on him in criminal proceedings.
14. The Government also pointed out the importance of the Favor Defensionis concept for criminal proceedings and pointed out that it was a legitimate attempt by the legislature to limit the possibility of a motion to waive the time limit only to the defendant, as evidenced by the fact that neither other criminal proceedings bodies have this option, nor even a prosecutor as a party to the criminal proceedings.
15. The Government also referred to the case-law of the Constitutional Court [the findings of sp. zn. Pl. The Government has also subjected the contested provision of Paragraph 61 (1) of the Code of Criminal Procedure to a test of discrimination, concluding that, although the injured party is treated differently in the context of the adhesion procedure, in the absence thereof, there is a justifiable reason and there is no disproportionate differentiation. Indeed, according to the Government, the exact same procedural rights in the adhesion proceedings would lead to a limitation of the right to a fair trial, as this would result in an overview, extension and other negative effects.
16. The Government also referred to the order of the Constitutional Court of 30 July 2014 in sp. zn. I. ÚS 3984 / 13, to the finding of the Constitutional Court of 7 September 2010 in the Pl. ÚS 22 / 09 (N 186 / 58 SbNU 633; 309 / 2010 Coll.) and to the other case-law of the Constitutional Court, and recalled that, in the present case, the so-called non-accesoric equality, the infringement of which is based on only the inequality of extreme or such an act.
17. The Government also referred to the order of the Constitutional Court of 9.11.2004 sp. zn. III. ÚS 587 / 04 (U 53 / 35 SbNU 621), of which it stressed in particular the need to reconcile the rights of the injured party with the purpose of criminal proceedings, although it is a party to the proceedings. It also recalled some other decisions of the Constitutional Court in which the complainants missed the deadline for lodging a complaint under § 143 of the Code of Criminal Procedure.
18. In addition, the Government expressed its views in detail on the contested provision of Paragraph 143 (1) of the Code of Criminal Procedure, within the meaning of "three." It stressed the general importance of the legal time limits, which is also recognised by the Constitutional Court, to which it referred, for example, to the finding of 14 January 2013 sp. zn. IV. ÚS 376 / 11 (N 12 / 68 SbNU 177) and others; Referring to the finding of the Constitutional Court of 16 October 2012 sp. zn. Pl. ÚS 16 / 12 (N 174 / 67 SbNU 115; 369 / 2012 Coll.) admitted that the inadequate duration of the time limit may constitute an unconstitutionality and subjected the three-day time limit for lodging a complaint in accordance with the provisions of § 143 (1) of the Code of Criminal Procedure to the test of constitutional conformity of the time limits with the conclusion that the latter has stood.
19. The three-day period is the same for all addressees, it is not an arbitrary period, since it is laid down elsewhere by the law, and it is a period linked to an appeal against decisions with which there are not regularly too serious consequences. In addition, it is a period of traditional, testifying to those who watch over the protection of their rights. In addition, that period is linked to an appeal which is only used during the proceedings and must therefore be known to the parties in advance.
20. The Government also referred to the order of the Constitutional Court of 28 April 2015, sp. zn. II. ÚS 667 / 15, in which the Constitutional Court had the view that only a formal complaint could be lodged within that period and only a further justification could be given. These so-called blancet complaints are actually being used, which is also accentuated in its practice by the Constitutional Court, which sees nothing illegal in it. In addition, the Government referred to the relevant case-law, such as the Constitutional Court finding of 22.9.2016 sp. zn. I. ÚS 2491 / 16, the Constitutional Court finding of 4.10.2016 sp. zn. III. ÚS 2836 / 16 or the Constitutional Court finding of 20.9.2016 sp. zn. II. ÚS 1820 / 16. However, it also raised the conclusion that the Constitutional Court's finding of 16 June 2002, sp. zn. I. ÚS 369 / 2000 (N 77 / 26 SbNU 267), that the courts do not always have to wait for the grounds for the complaint, as it is not clear whether it will be processed at all.
21. The Government further points out that even if the time limit is not respected by an entity which is not entitled in criminal proceedings to apply for the waiver of the time limit, it is still possible to contact the Minister of Justice with an incentive to lodge a complaint for infringement. This is not the only way to guarantee the legality of the decisions of law enforcement authorities against which a complaint is admissible.
22. The Government also stressed that, in the present case, it was mainly a question of the costs of proceedings, which, according to the Constitutional Court, is generally below the intensity of violations of human rights or fundamental freedoms. In addition, the Government refers to a number of decisions of the Constitutional Court confirming this conclusion.
23. In conclusion, the Government confronts the existence of the contested provisions with the requirements of the European Court of Human Rights case-law and concludes, on the basis of their analysis, that they meet those requirements. The Government therefore proposed to the Constitutional Court to reject the proposal.
24. The Government also accentuates the fact that the complainants did not contest at the same time the three-day deadline for the application for repayment of the time limit provided for in Paragraph 61 (1) of the Penal Code, which they themselves fulfilled.
25. The Constitutional Court allowed the complainants to comment on the views of the other parties and the intervener. The complainant made use of this possibility and sent their reply to the Constitutional Court, in which they criticised the government in particular. First, the complainants dispute the relevance of the Government's argument that the time-back institute is one of the manifestations of the favor defensionis principle. They claim that although the purpose of the criminal proceedings, as defined in Section 1 (1) of the Criminal Code, does not contain elements of the restitution theory, it is an obvious relinquishment of the past, particularly in recent years, which has been overcome by the development of legislation [the complainants pointed out in particular the adoption of Act No. 45 / 2013 Coll., on the victims of crimes, and the amendment of certain laws (Act on the Victims of Crime), as amended, and the current amendment of § 2 of the Code of Criminal Procedure, which introduced the principle of ensuring the rights damaged in its paragraph 15, and the Constitutional Court of First Instance of 7 May 2014]. They also pointed out that when deciding on compensation, the criminal court must comply with all provisions of civil law, and the sentence in the condemnation judgment imposing an obligation on the defendant to compensate for the damage is an enforceable title and must therefore be justified as carefully as the judgment granting the obligation to compensate for the damage in civil proceedings.
26. Another line of argument put forward by the complainant is that the institute favor defensionis concerned with the relationship between the prosecution and the defence, not the adhesion procedure. They also stated that the Government's reference to the Constitutional Court's Judicial Document under point II.II of the ÚS 509 / 05 was not possible since the legislation had undergone significant changes since it was issued, in addition, it concerned another procedural situation in which neither the defendant existed in the criminal proceedings as the criminal prosecution had been initiated. Thus, the right to seek repayment of the time limit should not be exercised by the person against whom the proceedings are brought, since the defendant has not yet been heard, and equality would not be undermined.
27. The complainants also rejected the Government's statements on discrimination. According to the complainants, discrimination is brought about by the legislation in question because, in addition to procedural equality, it is affected by their right to own the property guaranteed by Article 11 of the Charter. In addition, they point out other discrimination, consisting of the fact that the court asked the injured parties to prove that they had paid their incurred costs to the lawyer before they could decide to pay those costs at all. Furthermore, the complainants consider that discrimination against the victims is unjustifiable, since, while the unequal position of the prosecution and the defence in criminal proceedings pursues a legitimate objective and corresponds to the specific nature of criminal proceedings, the adhesion procedure concerns the relationship of two private legal entities, with the advantage of pests. It also does not agree with the Government's view that the advantage of the defendant under the contested legislation does not constitute a breach of so-called non-accesorial equality, as it is not an extreme inequality, given that the primary purpose of criminal proceedings is not to settle the victim's claim. The complainants argue here that the forced first to pay the costs to the agent and the possibility only then to ask for compensation for those costs, in a situation where the appeal against such a negative decision was rejected for delay, had very negative consequences for some of them.
28. The complainants further develop and essentially reiterate their arguments for concluding that the three-day period for lodging a complaint is unconstitutional. They provide examples of decisions against which a complaint is admissible, which very fundamentally interfere with the rights of individuals (e.g. a resolution on detention), argue that the specific content of the decision can never precisely be anti-cited, and that the fact that the three-day period has been found to be constitutionally conformal in some other legal institutions does not mean that it is constitutionally conformal even in the event of a complaint under the criminal rules. They do not consider the argument that a so-called blank complaint can be lodged and subsequently supplemented within a certain period of time, as the law enforcement authorities do not have a legal obligation to wait until after receipt of the written justification. Finally, in the light of the analysis by the Government of the case-law of the European Court of Human Rights, the complainants conclude that the unconstitutionality of the three-day period for lodging a complaint in their case was given by a combination of several factors (length of the period, delivery on Friday, justifiable reasons for missing the deadline, not being able to request recovery).
29. In view of some qualitative new arguments, the Constitutional Court sent this statement to the other parties. The Senate of the Parliament of the Czech Republic took advantage of the opportunity to express itself, but it did not consider its further observations to be useful, and the Government, through the Minister of Justice, which has partially repeated and partially supported its original argument, has put forward several new arguments. To put it simply, in his observations, he has, in particular, re-clarified the concept of procedural status of the injured party in criminal proceedings, whereby, inter alia, with reference to the judges of the Constitutional Court under sp. zn. I. ÚS 1587 / 07 of 9.6.2008 (N 104 / 49 of the SbNU 531) and sp. zn. II. ÚS 1177 / 16 of 12.7.2016, points out that the guarantee of the rights of the accused and the injured person in criminal proceedings is not the same, since the possibility of seeking his private claim against the accused in criminal proceedings is for the injured only benefit of the Legis always possible to enforce his claim in civil proceedings. He also pointed out a contradiction in the statement of the complainants who argued that the rights of the injured party had been gradually extended in recent years and referred to the law on victims of crimes of 2013, but the same conclusion was also tried to demonstrate the 2001 case law.
30. The Minister of Justice also rejected the complainant's argument that the Favor Defensionis will not be applied in the adhesion proceedings, as the adhesion proceedings are an integral part of criminal proceedings. The defendant is also at a disadvantage in some respects, as he often learns about the claim of the injured party only before his interview and is therefore forced to react without preparation. The unequal status of the injured and accused in the adhesion proceedings may also be demonstrated on the grounds that the injured, for example, does not have the right to oppose a criminal order. This is also intended to imply that, in the paradigm of this special public law, it is not possible to talk about the advantage of pests within the meaning of the private law on liability for damage. The Minister of Justice also supported his previous conclusion on the impact on the current case of the general conclusions of the Constitutional Court resolution, sp. zn. II. He pointed out that the essential conclusion of this resolution is that the recovery of the deadline is a fully legitimate part of the Favor Defensionis Institute. However, he rejected the complainants' claim that in their case there was also a breach of the right to property ownership, since the law on the lodging of an appeal against a negative decision on compensation for the costs of the injured parties and its application does not in any way indicate whether or not the court will comply with the injured parties.
31. The Party of the three-day period considers it essential that the complainants have not provided any basis for their conclusion that this period would not be operational as a result of mass delivery on Friday. It recalls that, even before the introduction of data boxes, such a situation could theoretically have occurred, and therefore cannot be attributed to the electronics of the justice system; moreover, due to data boxes, the link to the court offices or postal service providers falls, on the contrary, significantly reducing costs and the necessary physical activity. In addition, the Vigilantibus iura scripta sunt principle applies, and thus the complainants and their lawyers should have been prepared for delivery on the last day of the working week.
32. As a qualitative new argument, the argument of the Minister of Justice about the need to distinguish between the objective constitutionality of the legal standards under consideration and the possible breach of the subjective rights of the complainants by their applications must be considered. The Minister of Justice points out that any breach of the complainant's subjective rights may have been caused by a specific factual situation, but not necessarily by the application of the contested provisions of the Code of Criminal Procedure, which, moreover, appear frequently in the decision-making process of the Constitutional Court, but have never been indicated by their constitutional non-conformity. In this context he referred to the findings of the Constitutional Court sp. zn. I. ÚS 643 / 04 of 6.9.2005 (N 171 / 38 SbNU 367), sp. zn. II. ÚS 544 / 2000 of 12.3.2001 (N 41 / 21 SbNU 363), sp. zn. I. ÚS 2920 / 09 of 8.2.2011 (N 14 / 60 SbNU 141), sp. zn. Pl. ÚS 33 / 97 of 17.12.1997 (N 163 / 9 SbNU 399; 30 / 1998 Sb.), sp. Pl. ÚS 21 / 96 of 4.2.1997 (N 13 / 7 SbNU 87; 63 / 1997 Sb.), sp.
33. In particular, in view of the last newly mentioned argument of the Minister of Justice, the Constitutional Court called on the complainant to further comment. They insisted on their position. In particular, they stated that the rational rationale of the Favor Defensionis is to ensure equality of "weapons" between the public action and the defence, not the adhesion procedure. The argument against the discriminatory dimension of the current case also did not convince the complainant because, in their view, he is in a tautological circle in which, if the State favours someone by a positive right, this advantage can never be considered unlawful, which is contrary to the concept of discrimination. On the three-day deadline, the complainants made their previous argument in the sense that they did not have the opportunity to substantiate the generally known fact of sending resolutions in criminal proceedings on Friday afternoon with a relevant survey. However, they consider it crucial that, in contrast to the original delivery to the postal service operator, the situation is now specific by automatically accepting the documents in the data box even if, for example, another submission is sent on Friday afternoon. According to the complainants, the government did not even provide instructions on how they, or their lawyers, could comply with the principle of vigilantibus iura if the submission was delivered to them on Friday afternoon and on Monday morning there was already an unforeseen deterioration of the health status of their lawyer.
34. The distinction between the objective constitutionality of the contested provisions and the violation of the complainant's subjective rights is left to the Constitutional Court by the complainants. They add, however, that if the resulting solution is to heal the infringement of their right by interpreting or applying the contested provisions against their explicit wording, the defendant will undoubtedly see it as a violation of his rights.
35. Since the last statement by the complainants was more or less predictable in a way consistent with their previous positions, it responded to the arguments in the last statement by the Minister of Justice, the Constitutional Court did not consider it necessary to send that statement to the other parties, as it could not be believed that new essential facts or arguments could be established.
Assessment of the conditions of the standard review
36. The application for annulment of the contested provisions was submitted to the complainant pursuant to § 64 (1) (e) in conjunction with § 74 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, and forwarded by the First Chamber of the Constitutional Court to the decision of the full court by a resolution specified above sub 2. Since the application is being dealt with in the procedure for so-called specific control of standards, the Constitutional Court had to examine whether the contested provisions were applied in the previous proceedings, which resulted in a constitutional complaint, with which the application for annulment of the contested provisions was linked (cf. inter alia inter alia a multi resolution sp. zn. Findings sp. zn. As is apparent from the above (sub 1), in the previous proceedings, the complainants requested a repayment of the time limit for lodging a complaint against the order for reimbursement of the costs of the injured persons, due to the unforeseen medical indisposition of their agent on the last day of the three-day period for lodging the complaint. As is apparent from the reasoning set out in the heading of the decisions of the General Courts, the complaint was rejected because of the delay in bringing proceedings within the meaning of Section 143 (1) of the Criminal Code and the request by the agent to recover the time limit was not met precisely because the hypothesis of the standard in Section 61 (1) of the First Criminal Code addresses that provision only to the accused. It should therefore be noted that the presumption of a procedure for a specific examination of the standards relating to the application of the contested provisions, which resulted in the fact which is the subject of a constitutional complaint, is fulfilled.
37. All the contested provisions are also valid and effective at the date of the decision on this proposal, in the same text as it was applied in the procedure from which the constitutional complaint and the related application for annulment of those provisions arose. The application was therefore submitted by an authorised body with regard to the provisions of the legal order eligible to be examined in the proceedings for the annulment of laws and other legislation under the second part of Title II of the First Act No 182 / 1993 Coll., on the Constitutional Court, as amended.
Text of the contested provisions
38. Paragraph 61 (1) of the First Code of Criminal Procedure reads: "(1) Where the defendant or his lawyer is missing for important reasons, he shall, unless otherwise provided for in the law, be granted a period of appeal by the institution to which the appeal is due to be given back. ';
39. Paragraph 143 (1) of the Criminal Code reads: "(1) The complaint shall be lodged with the authority against whose order the complaint is directed within three days of notification of the order (§ 137); where the order is notified to both the defendant and his guardian or the lawyer, the period shall run from that notification which has been made at the latest. '; In the present proceedings, the repeal of this provision is proposed only to the extent of the word" three. "
40. The text of the contested provisions at the time of the decision against which the constitutional complaint against the complainants, accompanied by the application for annulment of those provisions, is identical to the amounts of sub 38 and 39 respectively.
Constitutional conformity of the legislative process
41. The two provisions under appeal have been part of the Code of Criminal Procedure since its entry into force and have been amended only once [Paragraph 61 (1) of the Code of Criminal Procedure, Act No. 265 / 2001 Coll., amending Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, Act No. 140 / 1961 Coll., Criminal Act, as amended, and certain other laws, (the "Great Amendment" of the Code of Criminal Procedure), which between the words "will allow him" and "the authority" shall not provide otherwise, "; Article 143 (1) of the Penal Code by Act No. 55 / 2017 Coll., amending Act No. 40 / 2009 Coll., the Penal Code, as amended, Act No. 141 / 1961 Coll., on Criminal Procedure, as amended, and other related laws replacing the words" legal representative 'by the word "guardian']. The contested provisions were not applied in the proceedings before the General Courts in the version of either of the two amendments, since the first of them did not have any impact on the complainant's case and the second came into effect only after the decision against which they are opposed in the proceedings on a constitutional complaint. Therefore, the contested provisions, as amended, cannot be independently examined even in the present proceedings before the Constitutional Court. In accordance with its previous case-law, the Constitutional Court thus finds that the adoption of the two contested provisions took place prior to the entry into force of the Constitution, and the Constitutional Court is therefore not responsible for reviewing the constitutional conformity of the legislative process [cf.
Constitutional conformity of the provisions of § 61 (1) of the First Code of Criminal Procedure
(A) To comply with Article 37 (3) of the Charter
42. Since this is a question that concerns equality, the Constitutional Court had to first consider whether the contested provision constituted a constitutional renegotiated discrimination. It was based on the so-called discrimination test, or since the question now addressed lies in the issue of procedural equality, which is generally guaranteed by Article 37 (3) of the Charter, taking into account its modified form the so-called test of equality of participants [cf.
43. 17 / 15 / 2008, p. 17 / 2007, p. 17 / 2007, p. 17 / 2007, p. 17 / 2007, p. 17 / 2007, p. 17 / 2007, p. 15 / 02 (N 11 / 29 SbNU 79; 40 / 2003 Sb.); Case C. 1 / 13 of 10.7.2014 (N 138 / 74 SbNU 141; 162 / 2014 Sb.
44. Although it is possible to compare the status of certain types of procedural bodies in the legal proceedings (see, for example, the judgment of the ECHR in Paulík v Slovakia, No 10699 / 05 of 10.10.2008, paragraph 54) in order to fulfil the other conditions of Article 3 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '), such a provision must, at the same time, distinguish itself from that of a person in a de facto similar position in terms of his interest in the proceedings (the same interest as any other person in a favourable procedural position) from that of a person in a favourable position, for example in civil proceedings, etc.), but with de iure of different legal status in such proceedings.
45. In principle, discrimination is not an option where it should be based only on the fact that certain types of procedural bodies have a de jure different procedural position, corresponding to their de facto different legitimate interests which they assert in the proceedings. It is a very different law-based interest in the management of a particular type of procedural entity that shows what procedural rights and obligations the relevant procedural arrangements confer on it, in the light of its importance in achieving the purpose of the proceedings [cf., for example, the finding of sp. zn.
46. The Court of First Instance, having regard to the status of the applicant and defendant in the civil proceedings in question, stated that, in order to fulfil the criterion of a comparable procedural position, it was sufficient that the two procedural bodies were parties [cf. The accused and the injured are parties to the criminal proceedings (Section 12 (6) of the Code of Criminal Procedure), but, in view of the specificities in the status of procedural entities in criminal proceedings, this conclusion applicable to civil proceedings of the defendant cannot be transposed in an unchanged form and into criminal proceedings. This is due to the fact that, in view of the importance of achieving the purpose of civil proceedings, the interests of both the defendant and the claimant of identical importance are rightly reflected, since the purpose of this type of legal proceedings is achieved precisely through a qualified conflict of presummation of the conflicting interests of these two procedural parties (see above, sub-paragraph 44).
47. The Constitutional Court points out at this point that, although specific, it is not the primary role of the Constitutional Tribunal to assess the constitutionality of the contested legislation in the light of the particular situation.
48. As regards the equality of the subjects of criminal proceedings, in particular the person against whom the proceedings are held (hereinafter referred to as "accused 'in general, irrespective of the specific procedural position of that person), and the injured person in criminal proceedings, the situation is different from that of the applicant and the defendant in civil proceedings, since the legitimate interests of the procedural entities in criminal proceedings and the relations between them are not as unequivocal as the relations between the parties to the civil proceedings of the defendant.
49. Equality of participants under Article 37 (3) The Charter of Criminal Procedure of the Constitutional Court, in its case-law, generally admits a public action - defence [cf., for example, the finding of sp. zn. I. ÚS 3235 / 15 of 26.4.2016, paragraph 85; the finding of sp. zn. III. ÚS 599 / 14 of 5.11.2015 (N 194 / 79 of SbNU 207), paragraph 10; the finding of sp. zn. III. ÚS 2569 / 14 of 16.4.2015 (N 82 / 77 of SbNU 191), paragraphs 16-17; the finding of sp. zn. II. ÚS 3780 / 13 of 11.2014 (N 206 / 75 of SbNU 313), paragraph 30; the find sp. the finding sp. zn. Pl. ÚS 7 / 09 of 4.5.2010 (N 102 / 57 SbNU 315; 226 / 2010 Coll.), point 23; the finding sp. zn. II. ÚS 2014 / 07 of 14.5.2008 (N 86 / 49 SbNU 217), point 14; the finding sp. zn. I. ÚS 608 / 06 of 29.4.2008 (N 79 / 49 SbNU 153), point 19; the finding sp. zn. II. ÚS 336 / 06 of 28.3.2007 (N 56 / 44 SbNU 719); fr. fr. Findings sp. zn. I. ÚS 32 / 95 of 21.5.1996 (N 40 / 5 SbNU 331)] or accused [cf., e.g. Findings sp. zn. I. ÚS 55 / 04 of 18.8.2004 (N 114 / 34 SbNU 187)] or their advocates [cf., e.g. Findings sp. zn. Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 SbNU 61; 98 / 2004 Coll.); Found sp. zn. III. ÚS 617 / 2000 of 4.10.2001 (N 143 / 24 SbNU 27)] among each other.
50. If the consideration of equality was included also damaged, this was generally only where his statement served as evidence of the testimony [cf. for example, the finding of sp. zn. III. ÚS 177 / 04 of 18.11.2004 (N 172 / 35 of SbNU 315)], and thus it was still a situation of equality of "weapons' between the defence and public action, or where there was an inequality in the position of the various groups damaged between themselves [cf. sp. find sp. zn. Pl. ÚS 6 / 2000 of 31.1.2001 (N 22 / 21 of SbNU 195; 77 / 2001 Sb.) and the finding of sp. I. ÚS 570 / 99 of 12.6.2001 (N 87 / 22 SbNU 227)]. The reason why the Constitutional Court does not compare the position of the accused and the injured in criminal proceedings is the different meaning of the rights of the reflected interests of the two categories of entities to achieve the purpose (or purposes) of criminal proceedings, which is also reflected in the legislation of the two parties.
51. The subjects of the main criminal proceedings are accused and the law enforcement authorities. The rule of law recognises the immediate interest of the defendant in the outcome of the proceedings and therefore also provides him with a number of rights which provide him with potential (i.e. whether or not they can be demonstrated in any individual case) effective control over the outcome of the proceedings. In the course of criminal proceedings, since there is considerable significant interference in the rights and freedoms of the accused, which, in the event of recognition of the guilt, aims to impose a penalty, which also constitutes a further substantial interference with his fundamental rights and freedoms, the law of criminal proceedings must enable the accused, at least potentially (depending on the circumstances of the particular case), to effectively influence the development and outcome of criminal proceedings for his benefit. This condicio sine qua non compliance with the law on criminal proceedings with the requirements of a fair trial remains unchanged throughout the course of the criminal proceedings, although otherwise the position of accused persons in a session with law enforcement authorities changes substantially (cf. the position of a prosecutor as guarantor of the rights of accused persons in preparatory proceedings vs. the position of a prosecutor in the main trial as a party to the proceedings proving the defendant's guilt).
52. By contrast, the victim is not a principal but only a secondary criminal proceeding relationship. At the same time, this is usually a significant source of evidence, which is not directly related to the rule of law recognised by the interest of the injured person in criminal proceedings, but rather to the interest of the law enforcement authorities in the proper detection of the facts in accordance with the provisions of Section 2 (5) of the Criminal Code. The rule of law protects, as a primary concern for the injured in criminal proceedings, essentially the settlement of any money of an invaluable claim of a private nature arising from the offender as a result of the commission of a criminal offence (compensation for damages, non-property damage, the issue of unjustified enrichment). In addition, although the rule of law recognises other partial interests of the injured party in criminal proceedings (see below sub 59 et seq.), it does not, in principle, consider the injured party's legally relevant interest in the conviction of the offender. Thus, in criminal proceedings, the accused does not deal directly with the injured but with the law enforcement authorities, even at the level of the proceedings in which the injured party exercises his right to compensation, non-property damage or to the issue of unjustified enrichment (hereinafter referred to as "the adhesion claim '). In fact, although adhesion is controlled by the principle of disposition by its nature, it is only done if the injured person is joined with an adhesion claim to prosecute (Section 43 (3) of the Criminal Code), once initiated in this manner, the law enforcement authorities proceed in principle (cf. Púry, F. In: ŠÁMAL, P. and kol. The Code of Criminal Procedure. Comment. 7th edition. Prague: C. H. Beck, 2013, p. 1333) also concerning the determination of the facts to the extent applicable to the decision on the adjustment claim in accordance with the principle of search, thus becoming an integral part of criminal proceedings.
53. It is not possible to argue with the complainants that the substantive regulation of the claim for damages, non-property damage or the issue of unjustified enrichment is relevant to the interpretation of the adhesion procedure in criminal proceedings and that the adhesion procedure is a private legal dispute between two equal parties. The design of the adhesion procedure is governed by the principle that the possibility of not admitting in full the claim claimed does not adversely affect the possibility for the injured party to exercise, to the extent that he has not been satisfied in criminal proceedings, his rights under civil law. Thus, criminal courts are not entitled to dismiss the injured party and adhesion proceedings do not constitute an obstacle to rei iudicatae, the limitation period is established from the time of the claim, the reimbursement of costs of the injured party is granted to the same extent as in civil proceedings, etc.
54. The comparative view therefore has to be drawn that the procedural status of the injured party's claim in the adhesion proceedings is more favourable in a number of respects than that of the injured party who applies the identical claim in civil proceedings. On the other hand, on the other hand, it is possible to require the injured person to suffer any partial disadvantage in criminal proceedings against the position he would have had in civil proceedings. In fact, the current concept of his position in criminal proceedings is sufficiently effective to protect his interests and it would not be legitimate to undermine the concept of criminal proceedings by applying always the rules which would be more favourable to him regarding the victims of specific institutes.
55. At present, it must be recognised that the status of the injured party cannot be reduced only to satisfy his adhesion claims (see below), but nevertheless, when comparing the rights of the injured person and the accused in criminal proceedings, as well as the procedural rights enabling those interests to be effectively enforced, it cannot be concluded that the status of the injured party would be entirely comparable to that of the accused who, in criminal proceedings, generally seeks to avert or mitigate the threat of recognition of the offence and to take up the legal consequences for him, which is one of the most prominent manifestations of public authority and of the most sensitive interference in the constitutionally guaranteed fundamental rights and freedoms of the individual.
56. It can therefore be concluded that the accused and the injured are not, in criminal proceedings, entities having a comparable procedural status within the meaning of Article 3 (1) of the Charter and Article 37 (3) of the Charter, and thus the difference in their procedural status to the extent that it expresses the difference between the legitimate interests of those two categories of procedural entities in relation to the achievement of the purpose (or purposes) of the criminal proceedings, does not infringe the principle of equality.
B) Identification of other possible constitutional discrepancies
57. Since the present case is not a constitutionally dubious inequality, the Constitutional Court also had to assess whether, by allowing the institution to recover the time limit from the injured party, any of its other fundamental rights or freedoms were infringed. In particular, the right of access to a court guaranteed by Article 36 (1) of the Charter and Article 6 (1) of the Convention and the right to an effective remedy guaranteed by Article 13 of the Convention shall be taken into account. This assessment cannot be done without analysing the nature of the category of the injured party as a procedural body of criminal proceedings, or without finding out what the legal order of that procedural body's participation in criminal proceedings is, and how, in fulfilling that purpose, it may interfere with the fact that the injured party is not allowed to request repayment of the deadline.
58. In view of the fundamental rights and freedoms of the victims in criminal proceedings, there have been considerable developments in recent years in particular, namely legislative, case-law and doctrine. While the initial position of the injured party in the post-1989 criminal proceedings was also consistent with a government-like notion that the involvement of the injured party in the adhesion proceedings was nothing more than a benefit legi, and thus that there could be virtually no violation of the fundamental rights and freedoms of the injured party in criminal proceedings, the concept of the injured party in the adhesion proceedings has become dramatic.
59. The development of legislation governing the position of the injured party in criminal proceedings after 1989 can be characterised as aimed at strengthening and deepening his rights. No amendment to the Code of Criminal Procedure has virtually led to a narrowing of the rights of the injured party (subject to certain reservation to the amendment made by Act No. 265 / 2001 Coll., paragraph 43, which has introduced also the current and effective Paragraph 43 (2) of the Code of Criminal Procedure, which was not intended to narrow down the rights of the injured party but to define his concept more precisely). For example, the amendments to the Code of Criminal Procedure implemented by Act No. 283 / 2004 Coll. and Act No. 41 / 2009 Coll. extended the possibilities of protecting the injured party as a witness; the amendment of the Code of Criminal Procedure by Act No. 181 / 2011 Coll. extended the catalogue of eligible adhesion claims to claim compensation for non-property damage and to issue unjustified enrichment and also introduced the right of the injured party to represent or represent for reduced remuneration free of charge (§ 51a of the Code of Criminal Procedure); the amendment to the Code of Criminal Procedure by Act No. 86 / 2015 Coll., amending Act No. 279 / 2003 Coll., on the Enforcement of Assets and Matters in Criminal Procedure and amending certain laws, as amended, and other related laws, made it easier to secure the claim of the injured party; the still ineffective amendment of the criminal rules implemented by Act No. 59 / 2017 Coll., on the use of funds from property criminal sanctions imposed in criminal proceedings and on the amendment of certain laws, then extending the catalogue of eligible adhesion claims and the maintenance due.
60. The Act No. 45 / 2013 Coll., on the Victims of Crimes and on the Amendment of Certain Laws (Act on Victims of Crimes), as amended, amended by the Penal Code by expressly introducing the court's obligation to provide advice on the specification of the adhesion claim to the injured, also introduced the right of participation of an agent of the injured and interested party at the pre-trial proceedings, including the possibility of asking questions in interviews (§ 51 of the Penal Code). Thus, the injured party has already been given the opportunity to participate, at least through mediation, in criminal proceedings at the stage of preparatory proceedings, including the possibility of influencing the progress of the evidence carried out within it by law enforcement authorities. Thus, his ability to effectively influence the conduct of the proceedings was a further step closer to those of the defendant.
61. Act No. 45 / 2013 Coll., on the Victims of Crime and on the amendment of certain laws (Act on Victims of Crime), as amended, significantly strengthened the rights of the Victims of Crime by admitting to him the entire catalogue of new laws. In a large number of cases, the victim will also be damaged in accordance with the provisions of Paragraph 43 (1) of the Criminal Code, which explicitly provides for this rule in certain places. A person who is also a victim of a crime has the right to make a declaration of the consequences of a crime (Paragraph 43 (4) of the Criminal Code), and if he is a particularly vulnerable victim or under 18 years of age, he has a right to free legal representation, even if the condition that he cannot afford it for his cargo (Paragraph 51a (2) of the Criminal Code) is not met. The expression of a legislative change in the view of the status of the injured party as a category of criminal proceedings may also be demonstrated by the explicit establishment of the principle of the protection of the rights of the injured party in Paragraph 2 (15) of the Criminal Code, also introduced in the introduction to this paragraph, as specified by Act No 45 / 2013 Coll.
62. In line with legislative developments, the doctrine also notes a shift in the perception of the position of the injured party as a category of criminal proceedings, both in the legally accentuated development of the position of the injured party in the adhesion proceedings (from recent times compared to, for example, BERANO, A. Considerations on the regulation of the adhesion proceedings of de equenda. In: Criminal Revue, 2016, No 10, p. 221-225; RESOURCES, J., VRBA, M. Damaged and right of resistance. In: Criminal Revue, 2012, No 9, p. 195- 204; BEHAVIOUR, J. Entitlement damaged from the perspective of criminal, civil and insolvency proceedings. In: Legal outlooks, 2014, No 4, pp. 121-127; VISINGER, R. Compensation for non-property damage in adhesion proceedings. In: Criminal Revue, 2011, No 3, p. 74- 78 etc.), as well as the granting of further rights to the injured party, in particular the right to an effective investigation (cf. ŠČERBA, F. Right to an effective investigation in the light of the case law of the Constitutional Court. In: Criminal Revue, 2016, No 7-8, p. 157- 166; The right to an effective investigation. Is there a significant change in the concept of the protection of fundamental rights in the third Constitutional Court? In: Jurisprudence, 2016, No 5, 3-14; CONSIDERATION, P. Right damaged by effective and independent examination of certain offences as a fundamental human right. In: Public Prosecutor, 2010, No 9, p. 7-17 etc.). In summary, it can be noted that there is a generally positive assessment of the outlined development of legislation strengthening the rights of the injured party, as well as the overall idea of the right to an effective investigation, although critical comments are made on individual aspects of the issue concerned, in particular the practical imperfections of the legislation and the tendency to extend the right to an effective investigation too much.
63. The move can also be demonstrated by the Constitutional Court's approach. Thus, for example, in its earlier case-law, he refused to grant the injured right to equal treatment in proceedings [cf., for example, Resolution sp. zn. III. ÚS 587 / 04 of 9.11.2004 (U 53 / 35 CollU 621)] and, in view of their ability to claim a claim in civil proceedings, was not satisfied in the adhesion proceedings, even the Constitutional Court did not find that a constitutional complaint was subsequently lodged against the principle of subsidiarity of the constitutional complaint (cf. I. ÚS 413 / 01 of 28.4.2004). The Government-referred decision of the Constitutional Court, sp. zn. II. ÚS 509 / 05 of 5.4.2006, also falls to this time.
64. In recent years, however, there has been a gradual turn in the view of the Constitutional Court as a victim. 17 / 16, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 17, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 17, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p. 20, p.
65. Sporadically, the case law of the ECHR also suggests that the right to an effective investigation could, under certain circumstances, be extended to cases in which a criminal offence was intended to affect another law guaranteed by the Convention or its Protocols, such as the right to peaceful use of property (cf. ECHR judgment in the Blumberg case of 14 October 2008, No 70930 / 01, paragraph 67). Although both the Constitutional Court and the ESLP interpret the right to an effective investigation as a guarantee of a proper process, rather than a guarantee of a result, the ESLP has already concluded in several decisions that, in order to achieve a sufficiently deterrent effect [see, for example, the ECHR judgment in case Gäfgen v Germany (Grand Chamber) of 1.6.2010, No 229785 / 05, paragraph 123; or the judgment of the ECHR in the Jeronovičs case against Latvia (Grand Chamber) of 5.7.2016, No 44898 / 10, paragraph 106. This moves the content of the right to an effective investigation even very close to the right to a certain way of punishing the perpetrator.
66. However, there was a change in the view of the victim's position in relation to the adhesion procedure, even in the respect in which the injured party only exercises its adhesion claim. Thus, the Constitutional Court has already begun to grant to the injured persons the protection not only of the rights of judicial protection under Article 36 (1) of the Charter [for example, the finding of sp. zn. I. ÚS 3456 / 15 of 9.8.2016, part IV.b)], but has even admitted a possible infringement of the right to equality in the proceedings under Article 37 (3) of the Charter, if the criminal proceedings are concentrated only on the accused, while the injured person is ignored [cf. sp. sp. zn. II. ÚS 289 / 12 of 9.10.2012 (N 170 / 67 SbNU 83), paragraph 36].
67. It can therefore be concluded that the procedural status of the injured party in criminal proceedings is no longer reducible only to a generally significant source of evidence and to the body to which the criminal proceedings are to facilitate the settlement of his property rights arising directly from the offence against the offender. Damaged in criminal proceedings, he or she can also implement some of her fundamental rights and freedoms representing the so-called "hard core" of human rights (in particular Article 2 to 4 of the Convention). The developments outlined in the preceding paragraphs have therefore clearly reached a point where the position of the injured person in criminal proceedings can no longer be seen as complementary, without which the injured person would have been able to obtain the same protection of all his rights of recognised interests (typically through the exercise of an adhesion claim in civil proceedings), and for which it could therefore always be concluded that no protection of fundamental rights or freedoms is for him to be premature in criminal proceedings.
(C) To comply with Article 36 (1) of the Charter and Article 13 of the Convention
68. It is therefore now necessary to examine how the exclusion of the possibility of requesting repayment of the time limit interferes with the exercise of procedural rights to the injured and whether such intervention may constitute an infringement of the right to judicial protection or other fundamental right or freedom. The recovery of the period is only linked to the lodging of appeals, except for the appeal (cf. § 265e (4) of the Code of Criminal Procedure), but the injured party is not an eligible entity (cf. § 265d (1) of the Code of Criminal Procedure and contrario). The injured party is a body entitled to appeal against a whole series of decisions which may concern both purely procedural questions (e.g. § 49 or § 51a (6) of the Code of Criminal Procedure) and its adhesion claims (e.g. § 246 (1) (d) of the Code of Criminal Procedure), or the processing of the substance of the case itself, if it is not a decision on guilt and punishment (e.g. § 159a (6), § 171 (2), § 172 (3), § 2223 (2) or § 308 (4) of the Code of Criminal Procedure).
69. The purpose of the institution's recovery is to allow the person entitled (in the current state only to the defendant and his lawyer) to obtain a substantive hearing of his appeal even if the legal period for bringing it forward has already expired, if for important reasons on the part of that person. An important reason is an obstacle which completely prevents the person entitled from bringing, albeit blunt, an appeal, it cannot be imposed on him and either cannot be overcome at all, or it would not be fair to ask the person entitled to do so. This may be a natural disaster, a sudden deterioration of health, sudden death in the family, etc. (e.g. ŠAMAL, P., GRIVNA, T. and Col. Code of Criminal Procedure. Comment. 7th edition. Praha: C. H. Beck, 2013, k § 61, paragraph 3)
70. From this point of view, it is also possible to deduce the purpose of this institute, which is to prevent situations where the exercise of the right to appeal is prevented by a fact which the beneficiary is not guilty of and cannot influence either at all or at a price which it would not be fair to ask. In other words, the purpose of the institution's recovery is to relativize the nature of the time limits for appeal by an authorised person and thus to eliminate any hardness that may arise from it.
71. In view of the relatively short timelimits for bringing appeals in criminal proceedings against other legal proceedings where the period for bringing appeals is generally 15 days (cf. § 172 (1), § 175 (1), § 204 (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended, or § 83 (1) of Act No. 500 / 2004 Coll., the Administrative Order), the Institute must therefore be regarded as one of the guarantees of the right of access to justice, since it prevents a legitimate person from, at least potentially affecting, the conduct of the proceedings in favour of that person by means of its arguments (or by new evidence) in the legal proceedings only for formal reasons which the beneficiary could not have been affected, or was not justified by, in combination with a short period of application of that argument.
72. In this procedure on the specific control of standards, it cannot be disregarded that the complaint which the Regional Court dismissed in the original criminal proceedings for delay was against the order imposing an obligation to pay the costs of the victims in accordance with § 154 of the Code of Criminal Procedure. As the complainants rightly pointed out in their constitutional complaint, they could only be granted compensation for the costs of criminal proceedings in accordance with the procedure laid down in this provision, and thus, contrary to other claims which they may have made in the adhesion proceedings, could not have been used in civil proceedings. In fact, the civil court cannot grant compensation for the costs of the victims of criminal proceedings under the criminal rules. Thus, by rejecting the complainant's complaint by the Regional Court without having to deal with it materially, the complainant's ability to claim compensation for these costs has definitively ceased.
73. In this context, the Constitutional Court considers it necessary to emphasise that the reimbursement of the costs of the injured party in criminal proceedings should be treated differently than the reimbursement of the costs of legal proceedings in civil matters. The compensation of the costs of the injured person in criminal proceedings does not have its equivalent in the form of reimbursement of the costs of the accused, nor can it exceptionally be reduced or admitted if the injured person has been successful only partially or has not been successful at all, on the contrary, if the injured person has been successful only partially, he shall always have full reimbursement under Paragraph 154 (1) of the Penal Code. In addition, Paragraph 154 (2) of the Code of Criminal Procedure extends the reimbursement of the costs of the injured party in addition to the costs effectively incurred to claim the claim, including the reimbursement of the costs incurred at all in connection with his participation in criminal proceedings, even if he did not exercise any right in the adhesion proceedings (cf. ŠÁMAL, P., SCVAIN, P. Comment on § 154 (2) In: ŠÁMAL, P. and Col. Code of Criminal Procedure. Comment. 7th edition. Praha: C. H. Beck, 2013, paragraph 4). The involvement of the injured party in criminal proceedings, even if he did not exercise any right in the adhesion proceedings, by itself a satisfaction function (cf. Král, V. Comment on § 154 (2). In: DRAWER, A., FENYK, J. In: Penal Code. Comment. Praha: Wolters Kluwer, 2017, paragraph 8). Therefore, compensation for the costs of the injured party in criminal proceedings is not only an accessory to the claim which the injured party claims in adhesion proceedings, but a completely separate claim of the injured party, which serves to ensure his public subjective right to participate in criminal proceedings. For this reason, as regards compensation for costs of the injured party, the limitation of the constitutional review of the so-called baggatory cases, which requires a certain intensity of intervention in respect of claims for cash performance, cannot be applied by itself [cf. Sf. III. ÚS 2018 / 15 of 19.1.2016, paragraph 19; Sp. III. ÚS 3725 / 13 of 10.4.2014 (N 55 / 73 SbNU 89), paragraph 31; Sp. 4489 / 12 of 4.6.2014 (N 114 / 73 SbNU 785); point 13; or the finding sp. zn. II.
74. Notwithstanding the specifics of compensation for the costs suffered in criminal proceedings, a similar situation to that of the complainants could also arise if they sought an appeal in criminal proceedings for the right to an effective investigation, as this requires a prior exhaustion of remedies against a decision by which the law enforcement authorities further express their willingness not to deal with the case (typically a complaint against the postponement of a case under the provisions of Section 159a (7) of the Code of Criminal Procedure or a complaint against the cessation of criminal proceedings under the provisions of Section 172 (3) of the Code), for example, the finding in section I. ÚS 1565 / 14 of 2. 3. 2015 (N 51 / 76 SbNU 691), paragraphs 27 and 32. Therefore, without the prior exhaustion of these remedies, the injured party may no longer claim his right to an effective investigation [cf. e.g. resolution sp. zn. II. ÚS 2166 / 14 of 28.8.2014 (U 14 / 74 CollNU 623), paragraph 7], although this right constitutes a means of protecting against interference with the right to life or right not to be tortured, i.e. from interventions of a type very sensitive.
75. It is therefore clear that, in these cases, it is possible to request, for justifiable reasons, a refund of a period of time as part of the right of access to a injured party within the meaning of Article 36 (1) of the Charter and of an effective remedy within the meaning of Article 13 of the Convention, since the use of such remedies is a condicio sine qua non for the protection of those rights of the injured party, since he cannot seek them in any way other than by lodging an appeal in criminal proceedings.
76. The Constitutional Court therefore does not agree with the view of the Government that the mere possibility of returning the deadline to the institute's preferred defensionis precludes the possibility of granting it to other categories of criminal proceedings. First of all, it should be noted that the purpose of the Favoris defensionis is not to give the defendant an unjustified advantage, since that advantage is intended to compensate the accused for the actual inequality between the possibilities to effectively influence the conduct or outcome of criminal proceedings by law enforcement authorities and their own. While a part of these institutes is inseparably linked to the status of accused persons as a category of criminal proceedings, it is intended to compensate for inequalities which do not arise between anyone other than him and the law enforcement authorities (e.g. the right not to actively contribute to its conviction or the right to the necessary defence), a part is not. The recovery of the deadline is undoubtedly part of the second part.
77. The defendant does not differ in any way from the injured party in that, as an individual, the possibility of bringing an appeal on one of the grounds set out above cannot be excluded, and the fact that, if he were not allowed to recover the time limit, it could not be excluded that such a delay, which cannot be imposed on him, would entail irreparable interference in his fundamental rights and freedoms [cf., the finding, by analogy, of sp. v. IV ÚS 276 / 04 of 3.8.2005 (N 149 / 38 SbNU 189), Part IV]. Even in view of the non-comparability of the status of the accused and other parties to the criminal proceedings in general (see sub 43 et seq.) in this partial aspect, there is therefore no reason to make a difference between the accused and the injured.
78. To this end, it should be recalled that the Institute of a similar Institute of Recovery pursuant to Paragraph 61 of the Penal Code also contains all other main procedural codes in relation to a body which is not a public authority. Act No. 99 / 1963 Coll., the Civil Code, as amended, thus provides for the waiver of the time limit in § 58 of the Institute; Act No. 500 / 2004 Coll., the Administrative Code, as amended, in the provision of § 41 of the Institute of Recovery in the Previous State; Act No. 150 / 2002 Coll., the Administrative Rules, as amended, in the provision of § 40 (5) of the Institute to waive the delay; Act No. 280 / 2009 Coll., Tax Code, as amended, in the provision of § 37 Institut of the repayment period in the previous state. The purpose of all these institutes is to enable the parties to the proceedings to obtain that the competent public authority, in an appeal procedure, will examine their remedies which, for reasons which cannot be imposed on them, have not been lodged in due time. The Institute for the Recovery of the Time-limit under the first sentence of Paragraph 61 (1) of the First Code cannot therefore be considered exceptional. It is, on the contrary, a rarity that the criminal order limits this possibility to only two categories of criminal proceedings, since, on the contrary, this possibility constitutes in principle a normal part of all Czech legal proceedings.
79. The inapplicability of the direct discrimination test, or the so-called equality test of participants in the present case for the non-comparability of the general rules governing the position of the subjects of criminal proceedings, in particular the injured and accused, requires the Constitutional Court to pay greater attention to the possibility of granting the right to request the repayment of the period damaged by the different status of categories of criminal proceedings and the overall concept of criminal proceedings, as these issues, if they respect the constitutional requirements (e.g. Articles 90 and 96 of the Constitution, Articles 36 to 40 of the Charter), are a matter for the legislator. Therefore, even if the Constitutional Court concludes that the recovery institute is not necessarily linked to a category of criminal proceedings alone, it must consider whether the extension of the application of this institute will undermine the legislator's domain.
80. It is decisive for this question that, by allowing the time limit to be returned to the injured person and his agent, there is no deterioration in the procedural status of the accused. It does not extend the scope of the decisions against which the injured party may appeal and does not in any way diminish the possibility of the accused having an effect on the outcome of the appeal proceedings. It is entirely outside the sphere of influence on the accused whether or not the injured person submits his appeal properly and in time.
81. It would not even interfere more significantly with the concept of criminal proceedings, since its development clearly tends to strengthen the protection of the rights of the injured party in recent years (see sub 59 et seq.), and as described above, a similar reason can be found for the advantage of the injured party by granting the possibility of requesting a repayment of the time limit as for the same existing advantage of the accused, moreover it is in line with the status of procedural bodies in other legal proceedings (see sub 78). Even from a practical point of view, massive changes cannot be foreseen, since the use of this institute is only considered in exceptional circumstances (see sub-sub-69), with criminal proceedings being subject to only minor delays in the decision on the request for recovery and the possible execution of a late remedy, as opposed to being given on time. Therefore, a systemic change in criminal proceedings as a result of the granting of the right to seek repayment of the time limit and the injured party is excluded.
82. The Constitutional Court therefore notes that the contested provision of Paragraph 61 (1) of the first sentence of the First Code does not allow the injured party to exercise effectively his right of access to the court guaranteed by Article 36 (1) of the Charter and Article 6 (1) of the Convention and the right to an effective remedy guaranteed by Article 13 of the Convention. This, however, is only provided that the injured party, by means of an appeal lodged for an justifiable reason, only after the expiry of the period, upholds his right which he cannot exercise other than in criminal proceedings.
D) The possibility of constitutionally conformal interpretation
83. The Constitutional Court consistently, in its case-law in the procedure for the control of standards, notes the priority of constitutionally consistent interpretation before the annulment of the contested provision [cf., for example, the finding of sp. zn. Pl. Pl. ÚS 22 / 16 of 27.6.2017 (268 / 2017 Coll.), the finding of sp. zn. Resolution sp. zn. Pl. ÚS 24 / 2000 of 12.10.2001 (U 37 / 24 SbNU 535); Findings sp. zn. Pl. ÚS 4 / 99 of 16.6.1999 (N 93 / 14 SbNU 263; 192 / 1999 Sb.); Findings sp. zn. Pl. Pl. ÚS 33 / 10 of 23.4.2013 (N 62 / 69 SbNU 177; 154 / 2013 Sb.); Findings sp. zn. Pl. Pl. ÚS 16 / 08 of 29.9.2010 (N 203 / 58 SbNU 801; 310 / 2010 Sb.), point 13; Findings sp. zn. Pl. Pl. ÚS. 69 / 06 of 29.1.2008 (N 22 / 48 SbNU 243; 269 / 2008 Coll. Therefore, even in the present case, the Constitutional Court must consider whether the contested provision can be interpreted in such a way as to comply with the fundamental rights damaged by those sub-agreements. 82
84. In the past, the Constitutional Court has already admitted that a breach of the rights of the injured party to judicial protection can only be based on a disproportionate interpretation of the explicit provision of the Code of Criminal Procedure (cf. sp. zn. III. ÚS 2916 / 15 of 28.2.2017, paragraph 27). It is therefore appropriate to consider whether an interpretation method can be found that would make the request for a repayment of the deadline also applicable to the injured party in this case. Since the wording of the contested provision of Paragraph 61 (1) of the first Code of Criminal Procedure clearly lists the defendant and his lawyer as the only person entitled, it is clear that the relationship of that provision to the injured party and his agent is already outside the scope of any extensive interpretation. The only interpretation method that could be considered here is analogy.
85. The precondition for the use of analogy is that it is not prevented by a constitutional ban. The criminal procedural document unanimously agrees that the analogy in procedural law is in principle admissible, both for the benefit and for the detriment of the defendant, if it does not exceed certain limits (cf. KUCHTA, J., KRATOCHVÍL, V. IN: ŠAMAL, P., MUSIL, J., KUCHTA, J. et al. Criminal law of procedure. 4th edition. Praha: C. H. Beck, 2013, p. 53 et seq.; JELNEK, J. In: JELNEK, J. et al. Criminal law of procedure. Issue 2. Praha: Leges, 2011, p. 67; FENYK, J. In: FENYK, J., OBSIGAR, D., GIVNA, T. et al. Criminal law of procedure. 6th edition. Praha: Wolters Kluwer, 2015, p. 43). The conditions for the use of an analogy relating to criminal law lead to the conclusion that those limits are established by the fact that, by using an analogy, there must be no extension of the possibility of intervening in fundamental rights or freedoms beyond the legally expressly established conditions or where the nature of the provision clearly does not allow it, for example, where the legally defined methods of decision-making of the court would be extended (cf. ŠÁMAL, P. In: ŠÁMAL, P. and Kol. The Code of Criminal Procedure. Comment. 7th edition. Praha: C. H. Beck, 2013, k § 1, paragraph 7). Similar limits for use of analogy exist for example in German doctrine (cf. KUDLICH, H. In: KNAUER, Ch., KUDLICH, H., SCHNEIDER, H. Münchener Kommentar zur StPO. Munich: C. H. Beck, 2014, introduction, Part IV, paragraph 602). The Constitutional Court must therefore consider whether, in the present case, these limits are met.
86. In the present case, it is therefore necessary to assess whether the analogous interpretation of the contested provision of Paragraph 61 (1) of the First Code of Criminal Procedure would not break the limits of the permissible use of the analogy, if it would lead to the use of that institute also for the injured party. The first limit is undoubtedly respected, as the proposed analogous interpretation does not extend any possibility of intervening in fundamental human rights or freedoms. Although an impact on the rights of the accused may be considered, even if it is brokered, the Constitutional Court has already ruled in the past that, in cases where the rights of the injured person are opposed to those rights, the prohibition of analogy in criminal law does not apply [cf.
87. The second limit has to be assessed taking into account sub 79 et seq. above, the overall impact on the mutual balance of the rights and obligations of each category of criminal proceedings and its current concept. Although the proposed interpretation would introduce a new right to entities not specifically recognised by the Code of Criminal Procedure, this is a necessary consequence of the use of the analogy. Therefore, it cannot be concluded that the use of the pen analogy is clearly excluded by the classification containing the exhaustive list of authorised persons or by the classification allowing a certain procedure only in relation to a specific institute. Thus, the Constitutional Court has in the past already admitted or ordered an analogous extension, for example, of the provision of Paragraph 131 (1) of the Penal Code, which allows for an amending order only against the judgment, to the undeclared decisions [cf. Article 37 (1) of the Code of Criminal Procedure, which authorises a taxiously defined person to elect an accused lawyer, as well as a person who was not absent from that list [cf. or the provision of Article 250 (1) of the Penal Code, which allows for the waiver of the right of appeal and the opposition to a penal order, the amendment of which by 31 December 2001 did not expressly permit surrender [cf. The fact that the first sentence of Paragraph 61 (1) of the First Code contains only two legitimate categories of criminal proceedings, i.e. the defendant and his lawyer, does not in itself exclude the use of the analogy.
88. In addition to all the above reasons, the significant discrepancy of the minimum interference in the current concept of criminal proceedings with an exceptional importance for the protection of the rights of the injured party, which the random situation which cannot be imposed on him, prevents the possibility of a review of a decision which at least hypothetically may affect his fundamental rights and which he disagrees with, has led the Constitutional Court to conclude that the analogous interpretation of the contested provision of Paragraph 61 (1) of the First Criminal Code, leading to its similar application and to the claims of the injured party or his agent, does not exceed the limits of the use of the analogy in criminal law by procedural law. On the contrary, it is a constitutionally conformal interpretation of that provision in accordance with Article 4 (4) of the Charter, in conjunction with Article 36 (1) and (4) of the Charter, and Article 6 (1) and Article 13 of the Convention, allowing those categories of criminal proceedings to effectively exercise their right of access to court and the right to an effective remedy.
89. The Constitutional Court therefore did not consider it necessary to abolish the contested provision of Paragraph 61 (1) of the first sentence of the First Code of Criminal Procedure, since, however amended it in the sense of the above conclusions would be appropriate, the constitutionally unconformal application of that provision could be prevented by its constitutional interpretation.
Constitutional conformity of the provisions of Section 143 (1) to the scope of the term "three" of the Code of Criminal Procedure
90. The Constitutional Court, in its previous caselaw, which can be referred to briefly, concluded that the time limits in the rule of law are generally a legitimate institution to prevent entropy and strengthen legal certainty [cf., for example, the finding of sp. zn. 2. Arbitrary setting of the deadline; 3. the constitutionally unacceptable inequality of comparable groups of entities as a result of the deadline.
91. The Constitutional Court notes that, on a general basis, the three-day period is relatively short and, as the complainants point out, in the event of objections to the exchange order, it has been cancelled (cf. However, the Constitutional Court considers that the deadline for lodging a complaint under the provisions of Paragraph 143 (1) of the Criminal Code is set in a completely different procedural context. In this respect, the fact that a complaint in criminal proceedings is an appeal based on the so-called revision principle (cf. Resolution sp. zn. IV. ÚS 3694 / 16 of 17.1.2017; Resolution sp. zn. I. ÚS 277 / 15 of 24.5.2016, paragraph 17; Resolution sp. zn. II. ÚS 987 / 15 of 9.6.2015). Although it is a limited revision principle [cf.
92. In addition to the limited revision principle, the situation of the three-day period for lodging a complaint under the contested provision is distinguished by the fact that there is no principle of concentration in criminal proceedings. In the past, the Constitutional Court has repeatedly sought to address the filing of a so-called "blank complaint ', i.e. a complaint which does not contain any substantive argument and which is only submitted for the purpose of a period of time for the authorised entity to submit it and thus gives it time to supplement it with material arguments. In the same context, the authorities involved in the criminal proceedings undertook to take account of the objections in the grounds of the blender complaint, part III; the finding of sp. zn. II. The complainants argue that, in this way, the person entitled to lodge a complaint is subject to legal uncertainty, since he can never know when the court will decide on the complaint and, if it itself sets out in its blank complaint a time limit within which it will send the competent authority in criminal proceedings its justification, he can never be sure that that authority will respect the proposed deadline.
93. The Constitutional Court states that this problem does not consist in the length of the time limit for lodging a complaint, but in how the law enforcement authorities act to carry out their duties to investigate the substance and purpose of fundamental human rights and freedoms and, at a legal level, to enable the exercise of the right of defence or to ensure the protection of the interests of the injured party. Therefore, if the beneficiary submits a blank complaint in which he undertakes to justify it within a specified period of time appropriate to the circumstances, and the competent law enforcement authority decides without prior notice on the complaint before that period expires without being forced to do so by current procedural developments, the right to seek redress and protection of its legitimate expectations by the prescribed legal procedures and, if necessary, by lodging a constitutional complaint upon its exhaustion.
94. Ad 2) It must be noted that the establishment of a time limit for bringing an appeal is not a manifestation of a legislative desire, but of the essential need to protect all other procedural bodies from legal uncertainty, as well as of the very course of proceedings against unjustified delays.
95. Finally, ad 3) must be concluded that the three-day period for lodging a complaint under the contested provision applies equally to all beneficiaries. Although considerations might be offered on the de facto inequality of different categories (typically de facto inequality of a public prosecutor who has resources that are not comparable to the overwhelming majority of other entities in the criminal proceedings), in the light of the conclusion expressed above in Part VII. (A) this finding is not an inequality which is constitutionally resisted, since the interests of each category of criminal proceedings are different and require a different treatment. Moreover, those categories of criminal proceedings which monitor the enforcement of their individual interests in this proceeding (i.e. the accused, the interested party and the injured party) are compensated in various ways by their de facto inequality [revision principle, the possibility of requesting recovery - see Part VII (D) of this finding, etc.].
96. It can therefore be concluded that the three-day period for lodging a complaint under the contested provision of Paragraph 143 (1) of the Criminal Code fully complies with the constitutional conformity criteria outlined in sub-section 90. The Constitutional Court therefore had to reject the application in so far as "three 'of Paragraph 143 (1) of the Code of Criminal Procedure is concerned.
Conclusion
97. For all the reasons set out above, the Constitutional Court, in accordance with Paragraph 70 (2) of the Law on the Constitutional Court, decided to reject the application by giving the following legal opinion, in so far as the application was directed against the contested provision of Paragraph 143 (1) of the Code of Criminal Procedure within the meaning of the term "three ', without further and to the extent that the application was made against the provisions of Paragraph 61 (1) of the Law on the Constitutional Court, that is to say, in accordance with the previous case-law of the Constitutional Court of First Instance, to the extent that the defendant or his agent has, for important reasons, a time limit for bringing an appeal which cannot be relied upon other than in criminal proceedings, he has the right to recover the time limit under Article 61 (1) of the criminal order, by way of the applicant and his defence.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 345 / 2017 Coll., on the application for annulment of part of the provisions § 61 (1) and § 143 (1) of the Code of Criminal Procedure |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.10.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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