The Constitutional Court found No. 424 / 2001 Coll.
The Constitutional Court found of 31 October 2001 on the application for annulment of Article 272 of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended
Valid
The Constitutional Tribunal found
Text versions:
06.12.2001
424
FIND
The Constitutional Court
On behalf of the Czech Republic
On 31 October 2001, the Constitutional Court decided in plenary on the proposal of the III Chamber of the Constitutional Court to repeal Article 272 of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended,
as follows:
The provisions of Sections 272 and 276 of the fourth sentence of Act No. 141 / 1961 Coll., on Criminal Procedure (Criminal Code), as amended, are hereby repealed on 31 December 2001.
Reasons
The Constitutional Complaints submitted to the Constitutional Court on 2 August 2000, the Complainant E. č. seeks the annulment of the order of the Regional Court in Pilsen of 16 June 2000 sp. zn. 8 To 237 / 2000 and the judgment of the District Court in Rokycan of 22 April 1999 sp. zn. 1 T 69 / 97, which was recognised as a criminal offence under Paragraph 174 (1) of the Criminal Act (hereinafter referred to as "the Law ') and was punishable in cash. Those decisions feel affected by the fundamental right to the integrity of dwellings and the fundamental right to a fair trial arising from Articles 12 and 36 of the Charter of Fundamental Rights and Freedoms (" the Charter').
From the file of the District Court in Rokycan sp. zn. 1 T 69 / 97 requested by the Constitutional Court, the following facts were found:
By judgment of the District Court of Rokycan of 22 April 1999 No 1 T 69 / 97-17, the complainant was recognised as guilty of perjury pursuant to § 174 (1) (3) of the Act and under the same legal provision she was sentenced to a cash penalty of CZK 11 000 with a reserve sentence of 3 months and to a forfeiture penalty of CZK 1 500. That crime should have been committed by accusing a police officer of accepting a bribe in a letter sent to the police of the Czech Republic under a false name.
In order to appeal to the complainant, the Regional Court of Pilsen, by order of 18 August 1999, sp. zn. 8 To 217 / 99, judgment of the Court of First Instance under § 258 (1) (a), (b) and (c) of the Code of Criminal Procedure ("the Rules of Procedure '), annulled and, pursuant to § 260 (3) of the Rules, returned the case to the public prosecutor for further investigation. In particular, the regional court justified its decision by defects in the house inspection carried out at the complainant's house, which provided evidence and which suffered from several defects. In the view of the Court of First Instance, these consisted in the failure to conduct an examination of the person to be examined (Section 84 of the Rules of Procedure) and in the failure to state the specific reasons which led to this procedure, and in the report on the conduct of the search, the Court of Appeal found that the cases were not sufficiently detailed, which were issued voluntarily at the time of the search and which were withdrawn (Section 85 (3) of the Rules of Procedure). For all these reasons, the Regional Court in Pilsen did not consider the provision of the evidence in question to be lawful. If, following a search of the house, the complainant and her lawyer have confirmed the voluntary issue of evidence pursuant to Article 78 (1) of the Rules of Procedure (the one which was previously secured at the time of the search), the court considers that a case which the complainant (accused in criminal proceedings) did not have in its possession at the time of issue, and even if those cases had been returned to the complainant in a procedural manner, this procedure could not have healed the previous unlawful acquisition of the material for criminal proceedings. It would therefore be a circumvention of the law, the use of the situation which was caused by the infringement, i.e. the illegal conduct of a house search.
The Minister of Justice against the defendant (the complainant in the proceedings before the Constitutional Court) filed a complaint against that order by the Regional Court in Pilsen. The contested order accused the infringement of the law of § 254 (1), § 258 (1) (a), (b) and (c) and § 260 (3) of the Code in favour of the defendant. In the complaint, the Minister of Justice concludes that the regional court's misconduct in the declaration and conduct of the house search was not such as to lead to a conclusion on the unlawful conduct of the house search and the resulting illegality of the evidence obtained during the search.
On the basis of the complaint for infringement By judgment of 29 March 2000 in Case 35 / 2000 Tz 35 / 2000, the Supreme Court, pursuant to Article 268 (2), Article 269 (1) and Article 270 (1) of the Rules of Procedure and subject to the conditions laid down in Article 272 (1) (a), (b) and (c), and Article 260 (3) of the Rules of Procedure, in favour of the accused E. No (the complainants in the proceedings before the Constitutional Court), annulled the Law and ordered the Regional Court of Plzen, as the appellant, to re-examine the case in the necessary extent. In the preamble to that decision, the Supreme Court essentially took the view of the Minister of Justice when it stated that although there had been some shortcomings in the procedural procedure in the procedure for the conduct and results of the home inspection, but these deficiencies were only of a formal nature, they could be bridged in the light of the further content of the criminal file and, therefore, those errors were not of such a nature as to lead to a reasonable conclusion on the unlawful conduct of the home inspection and the resulting illegality of the evidence obtained in the search carried out.
By order of 16 June 2000, the Regional Court in Pilsen rejected the complainant's appeal against the judgment of the District Court in Rokycan of 22 April 1999 in Case 1 T 69 / 97.
In particular, the constitutional complaint refers to a breach of the conditions laid down for carrying out a search in § 84 (3) of the Code and, in this context, to the view of the Supreme Court concerning its interpretation. In the unlawful conduct of the house search, the complainant then sees in the basic right that the dwelling is inviolable in accordance with Article 12 of the Charter, in the fact that the condemning judgment in the criminal case was, in her view, based on the acceptance of the evidence obtained in an unlawful manner, then on the fundamental right to a fair trial under Article 36 of the Charter.
The III. Chamber of the Constitutional Court, outside oral proceedings without the parties' presence on 26 April 2001, suspended the proceedings for a constitutional complaint in the case under point III. ÚS 464 / 2000 and submitted an application for annulment of Paragraph 272 of the Rules of Procedure to the full court of the Constitutional Court.
According to Articles 42 (3) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the motion to the Chamber of Deputies. In his observations, the President of the Chamber of Deputies of the Parliament of the Czech Republic, Prof. Ing. Václav Klaus, CSc., first explains the circumstances of the adoption of the legislation in question. It states that the institute of infringement complaints was introduced into our legal order in 1950 and was later taken over into other criminal laws, including the applicable Act No. 141 / 1961 Coll. The President of the Chamber of Deputies also draws attention to the fact that, since 1990, objections have been raised against the Institute in particular in the specialised literature, the content of which was virtually identical to the arguments contained in the draft III Chamber of the Constitutional Court. Taking into account the contents of this institute, it is, in principle, recognised that it does not fully comply with the principle of equality between the parties to the criminal proceedings referred to in Article 37 (3) of the Charter, since only the Minister of Justice and not the other party to the criminal proceedings, i.e. the defendant, may lodge a complaint for infringement. It is further pointed out that this issue has been re-examined in the current amendments to the Rules of Procedure, and it is stated that, for this reason, another amendment is currently adopted to introduce a new exceptional remedy - an appeal which would guarantee equality between the parties to criminal proceedings, and that the appeal should, with effect from 1 January 2002, replace practically entirely the infringement complaint, including Article 272. However, the actual institute of infringement complaints is not proposed for annulment by the aforementioned amendment, because, in the opinion of the President of the Chamber of Deputies, pending the adoption of a recdification of the Code of Criminal Procedure, it should address some exceptional cases where any misconduct will not be corrected by appeal or otherwise. On the basis of the foregoing, it is noted that it is in principle possible to agree to the repeal of Article 272 (3) of the Rules of Procedure, whereas the effectiveness of the relevant finding of the Constitutional Court should, however, be postponed until at least 1 January 2002, when the amendment to the Code of Criminal Procedure, or even for a longer period of time, may take effect, since, following that finding, the corresponding amendment to the Code of Criminal Procedure, in particular as regards the possibility of rectification of misconduct involving persons other than the accused.
The President of the Chamber of Deputies further confirmed, in accordance with the requirements contained in § 68 (2) of Act No. 182 / 1993 Coll., that § 272 of the Rules of Procedure, as amended, was approved by the necessary majority of the Members of the legislature, the law itself (the Code of Criminal Procedure), which is part of that provision, was signed by the relevant constitutional authorities and duly declared.
Pursuant to § 42 (3) and § 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court also sent a motion to the Senate of the Parliament of the Czech Republic. In his observations, his chairman, JUDr. Petr Pithart recap the development of § 272 of the order. It states that that provision has been part of the penal order since the date of adoption of this Act by the National Assembly, i.e. since 29 November 1961, and has until now been subject to rather minor changes in the context of the problems pursued: the provision reflected the rotation of the bodies authorised to file a complaint - at the beginning it belonged to the Attorney General and the President of the Supreme Court, later replaced the President of the Court by the Minister of Justice (according to the amendment of the Rules No. 149 / 1969 Coll.), and after the change made several years ago (Act No. 292 / 1993 Coll.), the Minister of Justice remained the sole authorised complainant. By Act No. 30 / 2000 Coll. the provision was then supplemented by a new paragraph 2 which intimate the existing content of the provision.
It also draws attention to the fact that the Senate of the Parliament of the Czech Republic was established and started its constitutional function in December 1996, as a result of which the Senate cannot provide the Constitutional Court with an opinion on a matter which would be based on the direct negotiation and adoption of Article 272 (3) of the Rules of Procedure, or the entire institute of complaints for infringement of the law and most of its amendments. At the time of the existence of the Senate, only an amendment to Paragraph 272 of the Order was adopted by its second paragraph (Act No. 30 / 2000 Coll.) and the so-called great amendment to the Code of Criminal Procedure approved by the Senate on 29 June 2001, which touched more extensively on the modification of the infringement complaint. In the framework of Act No. 30 / 2000 Coll. the minor addition of Article 272 of the Rules of Procedure was a completely marginal matter (the main topic of the Act was the extensive amendment of the Civil Code), and in the debate of the Chamber on the draft Act the issue of the complaint for infringement was not specifically mentioned. The President of the Senate further confirmed, in accordance with the requirements contained in § 68 (2) of Act No 182 / 1993 Coll., that the amendment in question was approved by the Senate, as referred to him by the Chamber of Deputies at its 15th session (2.) by Resolution No 249 of 12 January 2000, when 68 Senators voted in favour of its adoption in the vote of 72 Senators present in May 37 and no one voted against it.
In the context of the adoption of the so-called "great amendment to the Rules of Procedure ', it is stated that the amendments made by the amendment in the regulation of the infringement complaint do not specifically concern problems which have been the subject of a complaint from the Third Chamber of the Constitutional Court. In Article 272 of the Rules of Procedure, only the extension of the time limits for the decision of the Supreme Court on the complaint takes place. The amendment of the institute of infringement complaint did not become a special subject for the Senate, the Chamber accepted the amendments. The President of the Senate, like in the case of the amendment of the Rules No. 30 / 2000 Coll., also in the case of the adoption of Act No. 265 / 2001 Coll., stated that the Senate approved this Act in the version referred to it by the Chamber of Deputies, and further confirmed, in accordance with the requirements contained in § 68 (2) of Act No. 182 / 1993 Coll., that the Senate did so at its 8th meeting (3rd term) by Resolution No. 141 of 29 June 2001, when in a vote of 60 Senators present, in quor 31, 58 Senators voted against it and no one voted against.
For the purpose of assessing the objections of unconstitutionality and the proposal to abolish Article 272 of the Rules of Procedure, the President of the Senate draws attention to some facts that could still be taken into account. First of all, it is a reference to the fact that the regulation in force is based rather on the exceptional application of Article 272 (3) of the Code in full, when the Minister of Justice is to always be guided by the consideration of whether the interest in compliance with the law outweighs the interest in the stability of the final decision of the law enforcement authorities. On the fringe of the legal regulation in question, the President of the Senate points out that, although the removal of the illegal situation at the cost of the deterioration of the defendant's status in the current regulation is limited by special conditions, the fulfillment of these conditions is not limited by the Supreme Court in the possibility of making a complaint in the form of an academic statement of infringement. The expression also analyses the impact of the so-called major amendment of the order on the issue. It is pointed out that this amendment significantly strengthens the guarantees of the principle of the indictment, which it does, inter alia, by authorising the Attorney General to review and repeal any illegal orders by the lower prosecutors to stop prosecution or refer the case within two months of their legal power. In addition, a new extraordinary remedy for the criminal process - a request - allows all parties access to the highest institution of the structure of general courts. Both of these new instruments, brought by the so-called great amendment of the order, in the opinion of the President of the Senate, relativize the possible impact of the alleged lack of "equality of arms" and violate the principle of the indictment within the framework of the institute of infringement complaints. Finally, it is of the opinion that the reduction of the correction of the infringement in favour of the defendant only to an academic statement can be seen as a deficiency in the extreme specific cases of judicial failure, which is why the regulation of the infringement complaint as an exceptional remedy may not, in all cases, fall into one with the means of closing the standard prosecution framework, thus bound rigorously to the fundamental requirements of a fair trial.
Based on the possibility given by Section 49 (1) of Act No. 182 / 1993 Coll., and since the application of Section 272 (3) of the Order directly affects the Supreme Court and the Ministry of Justice, the Constitutional Court referred to these authorities with a request to comment on the application for annulment of that legal provision.
In the opening of its observations, the President of the Supreme Court, Dr. Eliška Wagner, Ph.D., agreed with the content of the resolution of the Third Chamber of the Constitutional Court, which suspended the proceedings in the case sp. v. III. In addition to the reasons set out in the resolution, it also points out other reasons for the breach of Article 272 (3) of the Regulation with the constitutional order. It states that the purpose of the infringement complaint can be sought in two levels - on the one hand, in the idea that the law, i.e. objective law, deserves protection, and, on the other hand, in the control of the procedures of the state authorities involved in criminal proceedings (investigators, prosecutors, judges, or courts - § 266 (1) of the Rules of Procedure).
The President of the Supreme Court, following the starting point, notes that the infringement complaint lodged against the defendant is an institution which interferes with the rights of the accused to a fair trial in a broader sense, and it is therefore necessary to examine such interference in that fundamental principle [which goes beyond the specific fundamental procedural rights and guarantees contained in the title of the fifth Charter, which can be identified both from Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution)] and from the point of view of proportionality (also identifiable from Article 1 of the Constitution). In this context, it considers it important to answer the question whether the Institute under examination is a necessary measure in a democratic society. The answer to this question is that the purpose of the infringement complaint against the defendant - i.e. the protection of compliance with objective law and procedural procedures - is likely to be problematic, since the two elements to be protected are protected in isolation, but not in relation to the subjective rights of the accused or the injured, or in connection with the protection of the public good. In the end, only the state's product is protected, i.e. objective law in the form of a law, or the remedy of state or official persons or authorities is monitored. Thus, a complaint for a violation of the law against the accused is, in the view of the President of the Supreme Court, an institution which is problematic in a democratic rule of law, with respect for the rights and freedoms of the individual, since the State can legitimately intervene only by law, but only for the protection of the rights and freedoms of others, or the protection of public goods. In this context, it is pointed out in particular that, however, the intervention can hardly be justified solely by the correction of the State's fault, in which the individual concerned did not participate. The institute of infringement of the law against the defendant may, for the reasons set out above, also violate the principle contained in Article 1 of the Constitution.
The second reason which, in its observations, is that the President of the Supreme Court, in addition to the justification for the unconstitutionality of Article 272 (3) of the Code contained in the motion of the Third Chamber of the Constitutional Court, is a reference to the fact that, in some cases, the Institute of Infringement of Infringement of the Law filed against the accused may also constitute an intervention in the right not to be prosecuted twice for the same offence, in the terms of Article 4 of Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '). Contrary to Article 40 (5) of the Charter, which refers in a plural to the possibility of the application of extraordinary remedies (which apparently thus responds to the legal regulation in force), which may break that principle, Article 4 of Protocol No 7 to the Convention knows only the renewal of proceedings, the admissibility of which it itself defines in its entirety. The extent of admissibility depends solely on the newly discovered facts or on the material defect in the previous proceedings, both being applied only if they could have influenced the decision in the case. It is then noted in the statement that, contrary to the infringement complaint, the purpose of which is to protect the objective law or remedy the malpractice in the proceedings, so called" self', is strictly bound, within the meaning of Protocol 7 to the Convention, to influence a particular individual decision on the matter. Since Article 3 (4) of Protocol No 7 to the Convention provides that this Article cannot be waived under Article 15 of the Convention, i.e. even in exceptional (e.g. war) situations, it is considered obvious that it is not possible to extend the scope for breaking the fundamental principle of not being prosecuted twice for the same offence, as it clearly makes, in particular, a complaint for infringement of the law against the accused. Therefore, the institute of infringement is considered to be interfering in some cases with the fundamental law contained in Article 4 of Protocol 7 to the Convention.
For all these reasons, the President of the Supreme Court is attached to the motion of the III Chamber of the Constitutional Court to abolish Article 272 of the Rules of Procedure for its contradiction with Article 1 of the Constitution and Article 4 of Protocol No 7 to the Convention. At the request of the Constitutional Court, the President of the Supreme Court submitted, for the purposes of the present proceedings, statistical data relating to complaints lodged for infringements between 1996 and 2001.
In particular, it follows from the data submitted that during that period there was a change in the proportion of the infringement complaints lodged in favour of and to the detriment of the defendant and the overall increase of the infringement complaints lodged. Whereas in 1996, the Minister of Justice was lodged with 174 complaints in favour and only 49 against the defendant (12 at the same time for his benefit and against), in 1997 the proportion of 88 to 58 (3 at both the benefit and the adversity of the defendant), in 1998 74 to 98 (6 at both the benefit and the adversity of the defendant), i.e. for the first time the number of complaints lodged against the defendant exceeded the number of complaints lodged in favour of the defendant, in 1999 the ratio of 88 to 117 (13 at both the disadvantage of the defendant), in 2000, 113 to 166 (22 at the benefit of the defendant) and finally in the first seven months of 2001 75 to 102 (10 at the benefit of the defendant). Furthermore, it follows from the statistics submitted that, while in 1996 the proportion of complaints lodged against decisions in the preparatory procedure was 14%, in 1997 it was already 18%, in 1998 it was 22%, in 1999 it was 21%, in 2000 it was already 26% and in the first seven months it increased to 29%.
Minister of Justice JUDr. Jaroslav Bureš, at the beginning of his observations on the motion of the III Chamber of the Constitutional Court for the annulment of Section 272 of the Rules of Procedure, stresses that the legal institute for the infringement of the law was introduced into the Czechoslovak legal order by the adoption of Act No. 87 / 1950 Coll., on the Criminal Procedure (Criminal Code), and later adopted by other laws on criminal proceedings [No. 64 / 1956 Coll., on criminal proceedings (Criminal Code), and No. 141 / 1961 Coll.) and remained in the legal order of the Czech Republic after 1993 (§ 266 et seq.). It considers that this extraordinary appeal was largely linked to a mistrial complaint for the conservation of the law, which was already used in the former Czechoslovakia (in the Czech and Moravian-Silesian countries) on the basis of Act No. 119 / 1873, which lists the criminal rules, as amended, but was enriched and supplemented by some elements typical of the so-called socialist legal order. It also points out that, after 1990, objections to the infringement complaint were raised as an exceptional remedy, in particular in the literature, containing arguments similar to those of the Constitutional Court resolution, in particular from the point of view of the equality of parties, since the amendment made by Law No 292 / 1993 Coll. with effect from 1 January 1994 left the authority to file a infringement complaint only to the Minister of Justice (until then, the Attorney General could file a complaint for infringement), but from the point of view of the equality of fundamental parties in criminal proceedings (state versus accused), it is still a State authority, and it is not decisive who acts for the State at a particular stage of proceedings. The Minister of Justice recalls that, in this context, it has repeatedly been pointed out that the infringement complaint is deeply contrary to the concept of the rule of law, because the right to file a infringement complaint, as a so-called official remedy, for the benefit of the defendant is only entrusted to a state-owned official who can then even appeal to the defendant.
On the basis of these considerations, the Minister of Justice agrees that if a State for which a State authority acts as a procedural party in criminal proceedings (it is not decisive whether it is, depending on the state of the prosecutors or of the Minister of Justice), it has, as compared to the accused, another, albeit exceptional, remedy establishing the possibility of the annulment of a final decision in criminal proceedings, this is contrary to the principle of equal treatment of the parties within the meaning of Article 37 (3) of the Charter, when the equality of procedural parties is derived from that provision both in civil and criminal proceedings, and that principle does not apply only to natural and legal persons, but also to the State, or to the State body, if it acts as a procedural party in that procedure (not as a carrier of State power - potential person). In fact, criminal proceedings, as stated in the statement below, are contradictory proceedings, i.e. those in which the parties oppose each other as procedural opponents, in which criminal proceedings involve, in particular, equality between the applicant and the defendant, that is, the prosecutor and the defendant, but the requirement of equality between the parties ("equality of arms") may be extended, albeit with some reservation, to the relationship between the Minister of Justice and the defendant, in particular if the Minister of Justice makes a complaint for infringement of the law against the defendant.
When filing a complaint for a violation of the law in favour of the accused, the Minister of Justice believes that this must be understood as a means of favor to be accepted from the constitutional point of view, since he cannot make his position worse both from material and procedural points of view, although he also raises some doubts in terms of equality of arms within the meaning of Article 6 of the Convention, in particular where the defendant seeks a complaint for infringement in his favour, but the Minister of Justice does not submit it, since in such cases it would be possible to bring a contradiction with the principles of the rule of law, which should guarantee equality of means of protection of the rights of procedural parties, or parties, respectively, as part of the right to a fair trial within the meaning of Article 36 (1) of the Charter.
According to the Minister of Justice, those considerations apply all the more in the case of a complaint against an infringement of the law against a court ruling of the authorities active in the preparatory proceedings, for example against a decision by an investigator or a prosecutor to stop a criminal prosecution pursuant to § 172 of the Rules of Procedure or the referral of a case to another body under § 171 of the Rules of Procedure, where, without doubt, in the case of a judgment of the Supreme Court, by which he will give judgment under § 268 (2) of the Rules of Procedure and at the same time pursuant to § 269 (2) of the Rules of Procedure, the Supreme Court may not, in such a decision, order order order order order the State to order to refer the case before the defendant. According to Article 270 (4) of the Rules of Procedure, the institution to which the case has been ordered is bound by the legal opinion expressed in the case of the Supreme Court and is obliged to carry out the procedural acts ordered by the Supreme Court, thereby significantly affecting the pleas in law and thus the principle of the indictment, which has its constitutional basis in particular in Article 80 (1) of the Constitution, but also in the subsequent provisions of Article 90 of the Constitution and Article 40 (1) of the Charter.
It is further noted that all these issues were repeatedly addressed by the Ministry of Justice in the various amendments to the Code of Criminal Procedure, as well as in the context of the pending rectification of the Criminal Procedure Law, which then reached their expression in the so-called "great amendment to the Code of Criminal Procedure ', where the regulation of a new extraordinary remedy is enshrined - an appeal which will cover precisely listed judicial decisions and which is maintained by the equality of parties (cf. § 265a to 265s tr.) and which, in line with the above-mentioned views during the legislative process, was also supplemented by the authority of the Ministry of Justice and the Supreme Court of Justice, in a very short period of time, by the unlawful judicial orders of the lower civil servants on the cessation of criminal proceedings or on the matter (cf. § 173a and 174a tr.). In the opinion of the Minister of Justice, these institutes should, with effect from 1 January 2002, essentially replace the infringement complaint, although pending the adoption of the recdification of the Code of Criminal Procedure (including Section 272 of the Rules of Procedure), be maintained for certain exceptional cases where the misconduct will not be corrected by appeal or other remedy (e.g. for the annulment of a resolution on the cessation of criminal prosecution in criminal matters of persons accused of criminal offences committed during the period of totalitarian regime following Act 119 / 1990 Coll., on judicial rehabilitation, as amended, and Act 198 / 1993 Coll.). In this context, it is pointed out in particular to certain cases of recent years when some persons responsible for crimes committed for the benefit of the Communist regime have finally been prosecuted, but their prosecution has already been suspended in preparatory or judicial proceedings, which led the Ministry of Justice and the Government to leave the institute of infringement complaints (including Article 272 (3) of the Code) to continue in the criminal order, because otherwise such errors could no longer be rectified. In this context, it illustrates the issue as well as the specific case, the Minister of Justice also draws attention to Article 71 (1) of Law No 182 / 1993 Coll. and to the problems associated with its impact on those cases.
The Minister of Justice further points out that if the Constitutional Court removes Article 272 (3) of the Rules of Procedure, a very unfavourable situation will be created in the light of further complaints lodged for infringement of the law, since Article 272 (3) of the Rules of Procedure does not only address cases where the Supreme Court abolishes pursuant to Article 269 (2) of the Rules of Procedure and within the time limits set out in Article 272 (3) of the Rules of Procedure, the contested decision will be based on a complaint for infringement of the law for the benefit of the law, but also on cases where the law has not been infringed for the benefit of the accused, but also on other persons in respect of whom he has been charged or has been charged, and the court finds that the law has been infringed for the benefit or for the benefit of such a person other than the accused (e.g. interested party, the appellant, the appellant, the appellant, the appellant, the appellant, the appellant in connection with his claim in respect of his claim, in respect of his payment of his payment, etc.). These cases would then no longer be possible to deal with infringement complaints, nor could they be dealt with by the claims which, in view of the construction of the notice and the assumption that the infringement complaint will, even in limited form, continue to apply even after the effectiveness of the so-called major amendment, cannot be lodged. The Minister also draws attention to the fact that Article 272 (2) of the Rules deals with cases of three months' running (in the sense of the amendment enshrined in the so-called "great amendment '), also applicable to those other persons other than the accused in the case of the submission of a complaint for infringement to the Grand Chamber following the amendment to Act No. 335 / 1991 Coll., on Courts and Judges, effective from 1 January 2001 (Act No. 30 / 2000 Coll.).
In the event that the Constitutional Court accedes to the annulment of Article 272 of the Rules of Procedure, the observations state two circumstances. The first is the connection of § 276 of the fourth order with § 272 of the third order, for which, in the view of the Minister of Justice, it would be necessary, together with the derogation of § 272 of the third order, to perform the derogation referred to in § 276 of the fourth order. The second is the recommendation to defer the effectiveness of a possible derogatory finding until at least 1 January 2002 (i.e. the date of the entry into force of the so-called "major amendment to the order of order '), or even for a longer period, as another amendment to the penal order will probably have to respond to such a finding, in particular as regards the possibility of" rectification of errors involving persons other than the accused'.
On 11 July 2001, the Constitutional Court received the application of the Supreme Court to abolish Article 272 of the Rules of Procedure, pursuant to Article 95 (2) of the Constitution, Article 224 (5) of the Rules of Procedure, and Article 64 (4) of Act No 182 / 1993 Coll. The proposal is based on the resolution of the Supreme Court of 26 June 2001, sp. zn. 11 Tz 106 / 2001, which suspended the infringement proceedings brought by the Minister of Justice to the detriment of the defendant D. B. against the order of the Prosecutor of the District Attorney's Office in Děčín of 19 December 2000 No 2 Zt 897 / 2000-5 on the referral of the criminal case, and according to the above constitutional and legal provisions, the case was brought before the Constitutional Court.
In the opinion of the Chamber, The Supreme Court is an infringement complaint institute contrary to the concept of a democratic rule of law, because the right to apply this extraordinary appeal is only entrusted to a representative of the executive - Minister of Justice. The defendant cannot obtain this extraordinary appeal for his benefit even in cases of flagrant serious infringement of the law and is referred to the decision of the Minister of Justice. He, apart from the rare exceptions resulting from the rehabilitation law, has no obligation to apply this extraordinary remedy. It is up to him to consider whether the law has been infringed and whether it is such a serious breach that it requires intervention in the principle of stability of judicial decision-making. The Senate of the Supreme Court notes that it is an institute that should not have a seat in the modern criminal order. All of these shortcomings, according to his conviction, are even more prominent in complaints about infringements of the law against the accused, particularly in cases where the substantive decisions of the preparatory bodies are challenged by this appeal. The Senate of the Supreme Court therefore considered that the existence of this institute is a denial of the equality of all parties to the proceedings, expressed in Article 37 (3) of the Charter, and does not respect the right to a fair trial guaranteed by Article 6 of the Convention. In addition, the defendant's principle, which is the guiding principle of criminal proceedings in the rule of law in the rule of law, is fundamentally broken by the law of the Supreme Court in the infringement proceedings brought by the Minister of Justice against the accused final decision of the investigator or the prosecutor to stop the prosecution or refer the case to another institution and order the authorities involved in the preparatory proceedings to continue criminal proceedings. For the reasons set out above, the Supreme Court Chamber does not consider it possible to tolerate a complaint against the defendant.
By order of 10 October 2001 No Pl. ÚS 19 / 01-6 The Constitutional Court rejected the motion of the Senate of the Supreme Court on the grounds of litispendence pursuant to § 35 (2) of Law No 182 / 1993 Coll. and stated that the Supreme Court, as a legitimate appellant, has the right to participate in the hearing of the earlier application under sp. zn.
For the same reasons, the Constitutional Court by resolutions of 20 September 2001 No. Pl. ÚS 23 / 01-10, 28 August 2001 No. Pl. ÚS 26 / 01-11, 18 September 2001 No. Pl. ÚS 30 / 01-11 and 10 October 2001 No. Pl. ÚS 32 / 01-10 also refused to take part in the case of the analogous proposals of the Supreme Court for the annulment of § 272 tr. of the Order, in which the Supreme Court, acting as a legitimate appellant under § 35 (2) of Law No 182 / 1993 Coll.
Article 272 (3) of the Rules of Procedure, as amended, whose constitutionality is assessed by the Constitutional Court in the procedure for the control of standards is as follows:
(1) If the law has not been infringed against the defendant, the Supreme Court may, in accordance with Articles 269 (2) to (271), proceed only if the Minister of Justice has proposed this in a infringement complaint lodged within six months of the legal power of the contested decision and if the Supreme Court has decided on that complaint within three months of its submission.
(2) If a complaint for infringement referred to in paragraph 1 has been submitted within three months of its submission to the Grand Chamber of the College's decision, the Supreme Court may, in accordance with § 269 (2) to (271), proceed only if it has decided on that complaint within three months of its transmission to the Grand Chamber of the College. "
Pursuant to § 68 (2) of Act No. 182 / 1993 Coll. The Constitutional Court, when deciding on the annulment of laws and other legislation, shall examine the content of those provisions in terms of their compliance with constitutional laws, international treaties pursuant to Article 10 of the Constitution or, where applicable, other laws, and shall determine whether they have been adopted and issued within the limits of the Constitution laid down by competence and in a constitutional manner. If the Constitutional Court assesses the constitutionality of the competence of the legislature and the constitutionality of the legislature process in the context of the control of the standards, Article 66 (2) of Act No. 182 / 1993 Coll., according to which the application for annulment of laws and other legislation is inadmissible, if the constitutional law or international treaty with which the draft regulations under review are in conflict has ceased to be valid before the application of the Constitutional Court is served. It follows that, in the case of legislation issued before the entry into force of the Constitution of the Czech Republic No. 1 / 1993 Coll., the Constitutional Court is entitled to review only their content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and compliance with the normative competence. (See sp. zn. Pl. ÚS 9 / 99, published in Sv. 16, p. 13 - 14, published under No 289 / 1999 Coll.).
It is based on the interpretation given in Section 68 (2) of Act No 182 / 1993 Coll., in the case of Section 272 of the Rules of Procedure, the Constitutional Court has examined, if the contested legal provision has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutionally prescribed procedure only in respect of its amendments made after 1 January 1993.
These are the following laws:
• Article I 177 of Act No. 292 / 1993 Coll., amending and supplementing Act No. 141 / 1961 Coll., on Criminal Procedure, Act No. 21 / 1992 Coll., on Banks, and Act No. 335 / 1991 Coll., on Courts and Judges: "In § 272 the words" Prosecutor General or "shall be deleted."
• Article XI of Act No. 30 / 2000 Coll., amending Act No. 99 / 1963 Coll., Civil Code, as amended, and certain other laws: "In § 272, the current text becomes paragraph 1 and the following paragraph 2 is added:
"(2) Where a complaint for infringement referred to in paragraph 1 has been submitted within three months of its submission to the Grand Chamber of the College's decision, the Supreme Court may, in accordance with Articles 269 (2) to (271), proceed only if it has decided on that complaint within three months of its transmission to the Grand Chamber of the College. ';
It was found from the House's press releases and shorthand reports that
• Law No 292 / 1993 Coll. was adopted at the 14th session of the Chamber of Deputies of the Parliament of the Czech Republic (1st term) on 10 November 1993, when 155 Members were present to vote in favour of its adoption 104, 10 voted against and 41 abstained; the Act was signed by the relevant constitutional authorities and was duly declared in the amount of 74 / 1993 by the Collection of Laws, which was circulated on 10 December 1993 and became effective on 1 January 1994;
• Act No. 30 / 2000 Coll. was passed at the 19th session (3rd term) of the Chamber of Deputies on 9 December 1999 by Resolution No. 670, when of the 187 Members present, 164 voted in favour of its adoption and one Member voted against; the law was passed by the Senate, in the version referred to it by the Chamber of Deputies at the 15th session (2nd term) by Resolution No 249 of 12 January 2000, when 68 senators voted in favour of its adoption in the vote of 72 senators present in May 37 and no one voted against it; the law was signed by the relevant constitutional authorities and was duly declared in the amount of 11 / 2000 of the Collection of Laws which was circulated on 23 February 2000 and became effective on 1 January 2001.
According to Section 266 et seq. of the Rules of Procedure, a complaint for infringement is an exceptional remedy, which only applies to the State and which can result in the annulment of a final decision by a court, prosecutor or investigator. The Supreme Court, which is competent to rule on a complaint for infringement (Article 266 (1) of the Rules of Procedure) and, in addition to the right to adopt an academic opinion (§ 268 (2) of the Rules of Procedure), is also entitled to the powers of appeal or appeal (§ 269 (2), § 271 of the Rules of Procedure), even in the case of a complaint against the defendant (§ 272 of the Rules of Procedure).
The legal institute of the infringement complaint was introduced into the Czechoslovak legal order by the adoption of Act No. 87 / 1950 Coll., was then taken over by further codification of the criminal process (Act No. 64 / 1956 Coll. and Act No. 141 / 1961 Coll.) and was maintained in the legal order of the Czech Republic after 1993 (Section 266 et seq. of the applicable order).
The Act No. 87 / 1950 Coll. brought an abandonment of the previous concept of democratic criminal process and represented the takeover of the Soviet totalitarian concept of Stalinist stamina. When discussing the curriculum of the Act by the National Assembly on 11 July 1950, the then Minister of Justice, Štefan Rais, stated: "If we were allowed to contribute to the socialist building of our country by drawing up important new laws and among them criminal regulations, our warm thanks to Soviet socialist law science and excellent Soviet workers in the field of criminal law are above all. (Applause) As in other disciplines, Soviet science also includes undisputed world primacy in criminal law. The Soviet Union's lawyers have raised unprecedented levels and worked out the problems of socialist criminal law in an insurmountable way, and enriched the science of criminal law on the basis of Marxism-Leninism's learning about new important knowledge that urban science has never achieved and cannot come to an end, and which it is not even trying to solve today. Knowledge of Soviet laws and Soviet theory was a necessary and fundamental precondition for the formulation of our new criminal laws, and without it, we would not be able to complete the curriculum currently being discussed by the National Assembly in such a short time. It goes without saying that it was necessary to build on our current development and the historical experience of our working people. However, it should be pointed out that the substance of the issues covered by the new criminal law has been revealed and well developed in the Soviet Union's experience. The results of legislative work on the new criminal law are therefore a new achievement not only of our working class, but also of the Marxleninist thinking at all and of the socialist science of the great Soviet Union in particular." (see www. psp. cz).
The introduction of a law infringement complaint against the accused in 1950 was a manifestation of the strengthening of the judicial power (in particular the prosecution as the so-called "guardian of socialist lawfulness"). It was also based on a lack of confidence in the reliability of justice in the position of the repressive apparatus of a totalitarian state and represented the installation of the possibility of a central decision to achieve the recovery of any final criminal decision, even to the detriment of the accused.
It can be attested both by the President of the Chamber of Deputies and by the Minister of Justice that the problem of the constitutionality of the institute of infringement complaint has been repeatedly assessed in the post-election amendments to the Rules of Procedure, and has also been significantly criticised in the theory of procedural criminal law (see, for example, P. Šámal, Appeals in criminal proceedings. Complaints for breaking the law. Restore control. Praha 1999, pp. 160-161).
The constitutional principles constituting one of the components of the fundamental right to a fair trial include the principle of 'equality of arms', or the principle of equality of opportunity (i.e. the principle of equality of all parties to proceedings), in accordance with Article 37 (3) of the Charter, Article 96 (1) of the Constitution and Article 6 of the Convention. That principle takes on particular importance in criminal proceedings, in which it is closely linked to the defendant's right of defence, to the right of factual and legal argument and to the right to comment on all the evidence carried out. The principle of equality between the participants in criminal proceedings, in addition to the function of protecting the defendant's position, which is evidenced by the presumption of innocence, is also part of the overall concept of a democratic criminal process, the expression of which is the principle of complementarity of management.
The principle of "equality of arms" in criminal proceedings is reflected in all stages of criminal proceedings as well as in all aspects thereof. It is applied both in the findings and in the review procedure, both in their entirety, but in particular in the evidence procedure (when designing evidence, the right to comment on the evidence carried out, etc.). The principle of "equality of arms" in criminal proceedings is not absolute, but generally applies to the maximum, according to which the State, compared with the accused in no context, is not subject to more rights or a more favourable procedural position [cf.
The principle of 'equality of arms' (Article 6 of the Convention) has been strongly reflected in the existing case law of the European Court of Human Rights. In this context, it can be characterised in particular by the fact that, in the view of the Court, the idea of equality is essential, which makes it comparable to the principle of non-discrimination under Article 14 of the Convention. In addition, in the criminal proceedings, it serves the protection of the accused, to whom it testifies until the time of his conviction of presumption of innocence, and is closely linked to the contradictory nature of criminal proceedings. (See in particular the cases of Bönisch vs. Austria and Brandstetter vs. Austria - the doctrine analysis is given by e.g. J. A. Frowein, W. Peukert, Europäische Menschenrechtkonvention. EMRK-Kommentar. Kehl- Straßburg-Arlington 1996, p. 219 et seq., M. de Salvia, Compendium de la CEDH. Kehl- Strassburg-Arlington 1998, p. 147 et seq.).
Contrary to all the other remedies provided for in the Code of Criminal Procedure, only the infringement complaint is for one procedural party - the State. If the State as a procedural party in criminal proceedings (where it cannot be considered decisive at which stage of criminal proceedings it is entitled to act on its behalf) has as compared to the accused another procedural instrument establishing the possibility of the annulment of a final decision in criminal matters, the right of the accused to "equality of arms' in the criminal proceedings, as set out in Article 37 (3) of the Charter, Article 96 (1) of the Constitution and Article 6 (1) of the Convention, cannot be relied upon only on.
Should that claim exclude the right to lodge a complaint for a violation of the law in favour of the defendant, because of his understanding of it as a procedural term of a "favor 'which, in the field of substantive law, is not capable of intervening on the rights of the accused, the complaint of illegality is narrowed against the institute of infringement of the law against the defendant.
In the period prior to the adoption of the Code of Criminal Procedure No 87 / 1950 Coll. the applicable Code of Criminal Procedure (Law No 119 / 1873), as amended, knew within the framework of the system of extraordinary remedies the Institut from a confusing complaint for the maintenance of the law, which "in the interests of unity of law" allowed the Attorney General to exercise his right of authority or by order of the Minister of Justice to refer to the decision of the Supreme Court on the question of whether a certain 1 judgment, 2 resolution or 3 procedure of the Criminal Court (or of the Public Prosecutor) was infringed by law '(J. Kallab, Advisor of Criminal Procedure. Brno 1930, p. 207). However, the decision of the Supreme Court generally had no effect on the defendant, "it was only an authoritative solution to the disputed legal issue, without the courts being bound to take the view of the Supreme Court for their own' (there, p. 208). The consequences for the accused in the form of a reformation or an appeal were provided for exceptionally, only in favour of the accused in the event of his conviction, by the law of the omission complaint for the maintenance of the law (Section 292 of Law No 119 / 1873). The recap suggested that the legislation contained in the pre-February Code of Criminal Procedure on a mistrial complaint for the maintenance of a law against the defendant allowed the adoption of only an academic opinion in order to unify the case-law in order to resolve the legal issue, but did not allow adverse appeals or reformation for the defendant. Such a complaint for maintaining the law is valid in the Republic of Austria until now.
In a fundamental international comparison to the institute of infringement complaint, which is available only to one procedural party, to the State, and which may be directed against the defendant against final decisions of the courts, as well as to the preparatory bodies, there is no parallel.
Only illustratively can the German legislation be mentioned in this context. The system of appeals enshrined in the applicable Code of Criminal Procedure (Law No 253 / 1877 of the RGBl., as amended) includes complaints, appeals, revisions and resumption of proceedings which fully comply with the requirements of Article 6 of the Convention, i.e. the principle of "equality of arms'.
The relevance of the complaint of not accepting the principle of "equality of arms" is even more urgent in cases of possible infringement complaint against the defendant against decisions of the authorities involved in the preparatory procedure (e.g. the decision of the investigator or the prosecutor to stop the prosecution). The principles of criminal proceedings in the rule of law, since the Enlightenment, include the principle of indictment and acoustics (Section 2 (8) of the Rules of Procedure), which has been overcome and replaced by the principle of inquisition in the criminal proceedings. According to the principle of the prosecution, the institutional separation of procedural functions of the preparation and filing of the prosecution and the decision on guilt and punishment between different procedural bodies is an essential part of the democratic criminal process, which respects the values of the independence of judicial decision-making. From a constitutional point of view, this principle arises from Articles 80 (1), 90 of the Constitution and 40 (1) of the Charter. If the Supreme Court, in proceedings for infringement of the law brought by the Minister of Justice to the detriment of the defendant against the final decision of the investigator or the prosecutor to stop the prosecution under Section 272 of the Rules of Procedure, is entitled to annul such a decision and order the authorities involved in the preparatory proceedings to proceed with the prosecution, then that authorisation cannot be qualified as a constitutionally contradictory breach of the bail-out procedure. According to Article 270 (4) of the Rules of Procedure, the institution to which the case has been ordered is bound by the legal opinion expressed in the case of the Supreme Court and is obliged to carry out the procedural acts ordered by the Supreme Court. The Supreme Court thus significantly influences the facts on which the prosecution is based and thus the principle of the indictment. In this context, it must also be pointed out that the number and proportion of complaints lodged against decisions in the preparatory procedure has increased steadily.
If, in the opinion of the Minister of Justice, reference is made to the positive effects of the institute of infringement complaint against the defendant in the context of a settlement with a period of totalitarian will, the following must be made:
Amendment 3 of Order No 265 / 2001 Coll. introduces an institute of appeal against the defendant, which can be challenged by a final judgment of the Court in the matter itself and which is entrusted to the highest public prosecutor [§ 265a (1), § 265d (1) (a) (3), as amended by Act No. 265 / 2001 Coll.]. In relation to the final resolutions of the lower prosecutors on the cessation of criminal prosecution or the referral of the case, the amendment introduces the authority of the Attorney General to annul those decisions for their conflict with the law (§ 173a, 174a tr. of the Order, as amended by Act No. 265 / 2001 Coll.). At the effective date of the amendment to the Rules of Procedure of Act No. 265 / 2001 Coll., i.e. 1 January 2002, this creates a legal mechanism which enables the State to effectively apply the public interest in achieving the purpose of criminal proceedings, but also to comply with the requirements of Article 37 (3) of the Charter and Article 6 (1) of the Convention, namely the requirement of equality between parties to proceedings (the requirement of "equality of arms'). The postponement of the derogatory effect of the Constitutional Court's finding on 31 December 2001 does not create a loophole in the legislation with regard to the analysed purpose of the extraordinary appeal.
In that context, it must be pointed out that the question of equality between the parties to the criminal proceedings and the aspects of its possible restriction against the defendant was dealt with extensively by the Constitutional Court in the case sp. zn. In connection with the constitutionality of the Institute of Anonymous Witnesses in criminal proceedings, he stated: "The purpose of the right to open the case, in conjunction with the right to comment on all the evidence carried out, is to provide the defendant in the criminal proceedings with the possibility of verifying the evidence against him in the face of the public. This verification in the case of testimony contains two components: the first is the examination of the truthfulness of the facts, the second is the possibility to verify the credibility of the witness. Thus, the institution of anonymous witnesses limits the possibility of the defendant to verify the truthfulness of his testimony, because it excludes the possibility of expressing himself to the witness and his credibility. Thus, it limits its rights of defence, contrary to the principle of the contradictory process, the principle of the equality of participants.... The restriction of fundamental rights or freedoms, even if their constitutional regulation does not foresee a restriction, may occur in the event of a collision. In this context, the maximum is that fundamental right or freedom can be restricted only in the interests of another fundamental right or freedom.... The first is the criterion of suitability, i.e. the answer to the question of whether the Institute, limiting a certain fundamental right, allows the objective pursued (protection of another fundamental right) to be achieved.... The second criterion of measuring fundamental rights and freedoms is the necessity criterion of comparing a legislative instrument which limits fundamental rights and / or freedom with other measures to achieve the same objective but which does not affect fundamental rights and freedoms.... The third criterion is a comparison of the severity of both in the conflict of standing fundamental rights. '
From the point of view of the implied caurer of the principle of proportionality, the institute's complaint for infringement of the law will not stand against the accused breaking fundamental rights resulting from the constitutional principle of equality. Although it pursues as its objective the protection of the public interest in the fair punishment of a criminal offence and thus the principle of the rule of law does not fulfil the requirement of necessity, that is to say, the condition of comparing a legislative instrument restricting fundamental rights or freedom with other measures enabling the same objective to be achieved but not affecting fundamental rights and freedoms. This fact is particularly important in the context of the introduction of an extraordinary appeal - an appeal - in criminal proceedings by Amendment No 265 / 2001 Coll.
In the context of the declared purpose of the exceptional nature of the institute of infringement complaint against the defendant, it is also necessary to point out the statistical data shown by the increasing tendency to increase the proportion of complaints lodged against the accused.
If the annulment of Article 272 (3) of the Code were not only for cases of infringement of the law in favour of the defendant, but also for all other cases where the law was not infringed against the defendant, but was infringed by other persons for whom the complaint had been lodged, and the court finds that the law had been infringed against the defendant, or for the benefit of such a person other than the defendant (e.g. interested parties, experts in connection with the expert, lawyers in connection with his remuneration and final expenses, etc.), then, in the view of the Minister of Justice, these cases would no longer be negotiable, and could not be dealt with by appeal. However, this circumstance on the grounds of the annulment of the institute of infringement cannot change anything. No rule of law is and cannot be established ad infinitum from the point of view of the system of procedural remedies for the protection of rights, as well as from the point of view of the system of arrangements of review instances. Every rule of law brings, and must necessarily bring, a certain number of errors. In reality, the purpose of the review or review procedures may be to minimise such errors in an approximation rather than to eliminate them in full. The system of review instances is therefore the result of a measure, on the one hand, of an effort to achieve the estate of law, on the other hand, the effectiveness of decision-making and legal certainty. From the point of view of this criterion, the introduction of extraordinary remedies, namely the extension of proceedings and the breaking of the principle of the irrevocability of decisions that have already become legal, is only adequate for exceptional reasons. It is not possible to describe as such those mentioned in the statement by the Minister of Justice in this context.
On the basis of all the grounds set out above, the Constitutional Court concluded that Article 272 of the Rules of Procedure, as amended, is contrary to Article 37 (3) of the Charter and Article 6 (1) of the Convention in relation to the possibility of abolishing the defendant and the final judgment in the preparatory proceedings, also to Article 80 (1) and to Article 90 of the Constitution and to Article 40 (1) of the Charter, as a result of which the plenary of the Constitutional Court decided to repeal it. In this context, the Constitutional Court recalls that, by abolishing Paragraph 272 of the Rules of Procedure, only the appeal and appeal of the Supreme Court in proceedings for infringement of the law brought to the detriment of the defendant is annulled, but the procedure as such is not cancelled, i.e. the possibility of adopting an academic opinion on the matter in order to unify the case-law for futuro (§ 268 (2) of the Rules of Procedure).
Paragraph 272 of the Rules of Procedure was partially amended in the course of proceedings before the Constitutional Court by 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. Under Article I (199) "V § 272 (1) and (2)," "within three months of its submission" is replaced by "within six months of its submission." 'This legal arrangement is valid on 31 July 2001, i.e. on the date of the distribution of the amount of 102 / 2001 of the Collection of Acts in which the Law in question was published, in accordance with Article XIV, then takes effect on 1 January 2002.
Article 67 (1) of Law No 182 / 1993 Coll. gives the reason for the termination of the proceedings if the law, other legislation, or their individual provisions, which are proposed to be annulled, expire before the end of the proceedings before the Constitutional Court. On the interpretation of that legal reason for the termination of proceedings, the Constitutional Court stated, in particular, in the resolution in point Pl. ÚS 20 / 99 of 18 April 2001. It stated that, in the event that a provision is repealed by the amendment to the law and at the same time adopted in the same dictation, but included differently in the scheme of the law, this was a new manifestation of the legislature's will, thus the original appellant of the contested provision expired before the end of the proceedings before the Constitutional Court. In this context, the Constitutional Court concluded that the conditions for accepting the amendment of the proposal under § 63 of Act No. 182 / 1993 Coll. in conjunction with § 95 (1) and (2) of the Civil Code were not granted.
In the present case, however, this is a different case to which Paragraph 67 (1) of Law No 182 / 1993 Coll. does not apply. In fact, only part of Section 272 of the Order was amended by the amendment of the Rules No. 265 / 2001 Coll. (by extending the time limit for the Supreme Court to decide on a complaint against the defendant for infringement). This part, for reasons of assessment of the constitutionality of the whole of Section 272 of the Rules of Procedure concerning the institute of infringement complaint, is not decisive.
However, according to the fourth sentence of Section 276 of the Code, "The person accused by issuing an arrest warrant and taking into custody may be secured only if the Minister of Justice proposes this in a complaint for infringement of the law against the defendant and considers it necessary by the Supreme Court in view of the gravity of the offence and the urgency of the detention grounds."
That legal provision in the case in question was not applied by the Supreme Court and therefore the conditions of the procedure laid down in § 78 (2) of Act No 182 / 1993 Coll.
According to the settled view of the Constitutional Court, this court is bound by the scope of the application in its decision and cannot step forward from its limits (see, for example, the finding in sp. zn.
Paragraph 276 of the fourth sentence of the Code, as a result of the annulment of Section 272 of the Rules of Procedure (i.e. as a result of the annulment of the appeal or appeal of the Supreme Court in proceedings for infringement of the law against the defendant), becomes an obsolent provision. By deleting the facts contained in Article 272 (3) of the Code, the fourth sentence of Section 276 of the Order loses reasonable meaning: if the appeal or appeal of the Supreme Court in proceedings for infringement of the law to the detriment of the defendant is cancelled, and the possibility of accepting only an academic statement without a specific impact on the defendant is left to the Supreme Court in such proceedings cannot be regarded as a contradictio in adiecto. In other words, in a situation where, as a result of the annulment of a legal provision by the Constitutional Court of a provision other than that contained in the previous sentence, it loses reasonable meaning, i.e. it loses the validity of its normative existence, there is a reason for the annulment of that provision, without being an ultra petitum procedure. In fact, the validity of such a provision is terminated on the basis of the principle of cessante ratione legis, cessat lex ipsa, and the devocation carried out by the Constitutional Court is therefore merely of a registered, technical nature.
Therefore, the plenary of the Constitutional Court, following the annulment of the 272 Rules of Procedure, also annulled the provisions of Paragraph 276 of the fourth order.
For the reasons set out above, the Constitutional Court postponed the effectiveness of the measure in relation to the provisions of Section 276 of the fourth order on 31 December 2001.
In addition to the rationis decidendi, only as an obiter dictum, the Constitutional Court considers it necessary to comment on the legal consequences of this finding.
The first result is the impact of Paragraph 71 (1) of Act No. 182 / 1993 Coll. on the present case.
If, on the basis of a law which has been repealed, a judgment has been given by a court in criminal proceedings which has acquired legal authority but has not yet been enforced, the annulment of such a law under that legal provision is grounds for reopening proceedings under the provisions of the Criminal Procedure Act. However, this is not the case in the present case. The violation of the principle of "equality of arms" in the legal regulation of the active legitimacy to file an extraordinary appeal does not affect the constitutionality or, where appropriate, the lawfulness of the proceedings itself before the Supreme Court, or the subsequent proceedings. The annulment of 272 tr. order therefore does not constitute a recovery of proceedings under § 71 (1) of Act No. 182 / 1993 Coll..
As a result of the second, the question of the intertemporal nature of the derogatory finding, i.e. whether the possible derogation of the 272 Rules of Procedure also applies to cases where the Minister of Justice has lodged a complaint against the defendant for infringement of the law, but has not been decided by the Supreme Court on the effective date of the annulment. Since the Constitutional Court is not entitled, in the context of its competence, to abolish laws and other legislation, or its individual provisions, in a positive way to adjust the resulting intertemporal consequences, it cannot be referred to other general principles of law than in this context. The principle that, unless otherwise provided for by the law, the court shall act in accordance with the procedural arrangements applicable and effective at the time of the decision is applicable to the intertemporal process. In the case at hand, the annulment of the 272 Rules of Procedure abolishes only the appeal and appeal powers of the Supreme Court in proceedings for infringement of the law brought to the detriment of the defendant, but the procedure as such is not cancelled, i.e. the possibility of adopting an academic opinion on the matter in order to harmonise the Futuro case-law (§ 268 (2) of the Rules of Procedure). It follows that, in cases where the Minister of Justice has lodged a complaint against the defendant for infringement of the law, but no decision has been made on them by the Supreme Court on the date of the annulment of the decision, only an academic statement may be decided after the entry into force of the decision of the Constitutional Court.
President of the Constitutional Court:
JUDr. Kessler v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Judge JUDr. Vlastimil Ševčík took a different position to justify the decision.
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Regulation Information
| Citation | The Constitutional Court found No. 424 / 2001 Coll., on the application for annulment of § 272 of Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.12.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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