Communication from the Constitutional Court No 426 / 2010 Coll.

If a constitutional complaint is challenged by an examination of other premises or land, it is necessary to consider the intertemporal effects of the finding sp. zn. Pl. ÚS 3 / 09 (219 / 2010 Coll.) by establishing an ex nunc, i.e. only from the date on which the finding was declared in the Collection of Laws, since this finding did not explicitly provide otherwise (§ 58 (1) in fine of the Law on the Constitutional Court). The reasons for this finding can only be applied to futuro (for the future), not to situations where the inspection of other premises and land has been ordered (prior to the publication of the finding sp. zn. Pl. ÚS 3 / 09 in the Collection of Laws) in accordance with the then applicable and effective wording of § 83a (1) of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended, by the Prosecutor or with the consent of the Prosecutor of Police Authority. Therefore, in such cases, the mere lack of the judge's consent to inspect other premises and land does not constitute an infringement of the constitutional order of guaranteed fundamental rights and freedoms.

1. On 21 August 2009, the Constitutional Court received a proposal from the Czech savings cooperative, IČ 27444376, based in Plolepská 1692, 252 63 Solutions, against "the progress of the Police of the Czech Republic, Department of Detection of Corruption and Financial Crimes, Services of Criminal Police and Investigation, Department of Taxation and Money Laundering, 2nd Department." In a constitutional complaint, the complainant opposes the consequences of an inspection of other premises (office rooms), as it seized computer equipment and other items. It contends that the search warrant was not delivered to him because, being a legal person, the order was not delivered to a member of the statutory body of a legal person but only to its employees; when carrying out the inspection, the items were removed without being identified as the person to be examined in the order and finally, according to the complainant, the justification for the order was insufficient. In conclusion, he requested that the Constitutional Court ban the police of the Czech Republic from continuing to violate constitutional rights and order her to restore the state before the violation of rights and freedoms, i.e. ordered her to return the matters withdrawn.

2. The finding of a constitutional complaint by the complainant Bytostav Poruba, a.s., sp. zn. II. ÚS 860 / 10 of 2 September 2010 (available at http: / / nalus.ujud.cz) was annulled in a similar case by a search warrant for other premises on the grounds that the order in question was issued in the light of the legal opinion expressed in the case sp. zl. ÚS 3 / 09 [the finding of 8.6.2010 (219 / 2010 Coll.)] in violation of the constitutional order, since the contested order for the search of the complainant's registered office was issued by the State Prosecutor and not by a judge. The Constitutional Court stated that "he could not ignore this contradiction. Nothing changed the perfectly correct objection of the Regional Prosecutor's Office in Ostrava that the search was carried out on the basis of a valid and effective regulation of subconstitutional law which had no alternative." In view of the assessment of retroactive effects, he concluded that "the genuine retroactivity in the event of the declaration of the unconstitutionality of an already repealed law (the addressee of which is a public authority) and the assessment of previous actions by constitutionally conformal legislation with the effects of ex tunc on the public authority is permissible because it does not constitute a breach of the principle of protection of citizens' trust in law, or interference with legal certainty or acquired law. '

3. Legal opinion: Following the repeal of the legislation of § 83a (1) of the first sentence and the sentence of the second Act No. 141 / 1961 Coll., on the criminal proceedings of the judicial (criminal), as amended, it is necessary to comply with the constitutional complaint against the order for the inspection of other premises and parcels (possibly against the intervention consisting of the examination) issued under the legislation as amended by 8 July 2010 because the search warrant is contrary to the constitutional order as a result of its issue (intervention) with the consent of the public prosecutor and not the judge; It is indecisive that the complainant did not raise such an objection in the proceedings before the Constitutional Court (Opinion sp. zn. II. ÚS 860 / 10 of 2 September 2010).

4. Opinion advocated by the Eighth Chamber: The intertemporal effects of the finding in the sp. zn. Pl. ÚS 3 / 09 must be viewed as being dependent on ex nunc, i.e. only from the date on which the finding was declared in the Collection of Laws and therefore the lack of consent of the judge (if otherwise the formal and material conditions laid down by the law in force on the date on which the order was issued) does not constitute a violation of the constitutional order of guaranteed fundamental rights and freedoms.

5. On a proposal from the Judge-Rapporteur, the IV Chamber of the Constitutional Court, which, according to the schedule of work, is competent to decide on the subject of page IV of ÚS 2228 / 09, reached the following conclusion. The Eighth Chamber would be bound in its decision by the legal opinion resulting from the findings to date (in particular, the Second Chamber of 2 September 2010) and would have to consider the Constitutional Complaints as eligible for a meritorial hearing. On the basis of the inspection of the search warrant, it would have to comply with it without further delay, for the reasons on which the finding of the Sp. zn. II. ÚS 860 / 10 of 2 September 2010, since the inspection of other premises was ordered by the prosecutor and not by the judge (although at that time this procedure was in line with the applicable and effective regulation of the Code of Criminal Procedure), even though the complainant himself does not raise that objection in violation of his constitutionally guaranteed right and sees the violation of his constitutionally guaranteed rights in fact entirely different.

6. In view of the finding of sp. zn. The term "tour ', if not specified in the next text, is therefore used for both" house inspection' and "tour of other premises and land '.

7. It should be pointed out that the complainant for whom the inspection was carried out is not a person who would then be accused or accused and could thus defend his rights in the subsequent criminal proceedings, including the application of objections to the illegal examination and the evidence obtained on the basis of it. If the examination has the character of a one-off intervention in the constitutional order of guaranteed rights and freedoms, the complainant has the only means of legal protection against it, which is a constitutional complaint.

8. On the contrary, the person to whom evidence of a criminal offence is ascertained and provided by the parties may, in the subsequent stages of the criminal proceedings against the inspection carried out,, for example, by applying a request for the removal of defects in the procedure of a police authority or a public prosecutor (see Section 157a of the Code of Criminal Procedure), and by exercising the rights conferred on him by the Code of Criminal Procedure as a person accused or accused.

9. At the beginning of the case-law-making process, the examination was regarded by the Constitutional Court as a one-off measure which had already ended at the time of the initiation of the proceedings on a constitutional complaint and the consequences of which remained only in the procedural area of the follow-up procedure, or the procedure of which it was part, but the renewal of the status quo ante, as well as the prohibition on the continuation of the infringement of the right (freedom) addressed to any public authority had been ruled out and, therefore, the removal of the search warrant (ref.

10. In its further ruling, the Constitutional Court preferred to return to the complainant prior to the annulment of the search order the finding that there had been a breach of the constitutional order of guaranteed fundamental rights and freedoms and ordered the police of the Czech Republic to restore the situation prior to the infringement of the complainant's rights and freedoms, i.e. to return to the complainant the materials withdrawn during the examination [finding sp. zn. I. ÚS 201 / 01 of 10 October 2001 (N 147 / 24 SbNU 59), the finding in the case sp. zn. I. ÚS 424 / 2000 of 13 March 2002 (N 29 / 25 SbNU 227), the finding in the case sp.

11. A further shift in the case-law resulted in a finding in case sp. zn. II. ÚS 362 / 06 of 1 November 2006 (N 200 / 43 SbNU 239), when the search warrant was repealed because it was issued without due cause and in relation to the complainant, Article 12 (1) and (2) of the Charter of Fundamental Rights were infringed (by this order); At the same time, however, the Constitutional Court (inconsistently) noted that "by carrying out the house search itself, there was no interference with the constitutionally protected rights of the complainant, which it relied on in the constitutional complaint, since... it was carried out in accordance with both the order for home inspection... and the relevant provisions of the Code of Criminal Procedure. '. In another finding in sp. zn. II. ÚS 474 / 07 of 27 September 2007 (N 151 / 46 SbNU 505) The Constitutional Court has passed on the finding of sp. zn. II. ÚS 362 / 06 and, in compliance with previous case-law, found that the complainant's fundamental rights and freedoms had been infringed by the police of the Czech Republic, ordered him not to continue in that violation of the complainant's fundamental rights and freedoms and to restore the situation before the infringement. The search warrant was not revoked. The Constitutional Court annulled the search warrant by a finding in Case No IV of 25 August 2008 (N 147 / 50 of the SbNU 297). At the end of the statement of reasons, the Constitutional Court stated:" It is quite evident that, by abolishing the present search warrant, the follow-up action on it has ceased to be a legal basis. It will therefore be up to the law enforcement authorities to take due account of this defect after the Constitutional Court's appeal and then to take due account of its consequences in their own action and decision-making. "

12. In the case sp. zn. II. ÚS 1414 / 07, the Constitutional Court decided on 15 July 2010 that it had found a breach of the complainant's fundamental rights and annulled the decisions of the general courts. The proceedings on this constitutional complaint resulted in a motion from the Second Chamber on the basis of which the plenary of the Constitutional Court came to the decision sp. zn. Pl. ÚS 3 / 09. The Constitutional Court stated in the statement of reasons for the decision on a constitutional complaint that "the evidence obtained in a manner which has lost legal support as a result of the deregulation of the relevant criminal law is evidence of absolutely inefficient and inapplicable in criminal proceedings'.

13. In the case sp. zn. Pl. ÚS 3 / 09 The Constitutional Court justified its finding of 8 June 2010 (published under No 219 / 2010 Coll.), inter alia, by the fact that the previous court's search warrant is all the more urgent in a situation where the criminal rules do not allow for a subsequent judicial review of the regulation by the court of inspection of other premises and parcels. Thus these acts, which constitute an obvious interference with the fundamental right to private life, are found outside any immediate judicial control. Although, in theory, it would be possible to consider a constitutional complaint directly against the regulation of the inspection of other premises, even the case law of the Czech Constitutional Court partly shares the doctrine of "lasting intervention," which is an obstacle to this consideration. Moreover, the Constitutional Court continues to argue that the application of the principle of subsidiarity must be given priority if public intervention is not a non-reparable violation of fundamental rights. This means that a final decision on a matter which should also be dealt with as an objection to the right to private life in the form of a home search can be reviewed in the proceedings on a constitutional complaint. In the intentions set out, the constitutional complaint (against the order to inspect other premises) also appears to be inefficient. Moreover, it is certainly not desirable for the Constitutional Court to assess the proportionality of the regulation and the conduct of inspections of all premises first in similar cases. It could therefore unduly and prematurely intervene in the competence of the general courts to collect and evaluate evidence and thus predetermine the outcome of criminal proceedings.

14. The last substantive decision is the finding in the case sp. zn. II. ÚS 860 / 10 of 2 September 2010, which repealed the search warrant for other premises on the grounds that the order in question was issued in the light of the legal opinion expressed in the case sp. zn. Pl. ÚS 3 / 09 in breach of the constitutional order, since the contested search warrant for the registered office of the complainant was issued by a public prosecutor and not by a judge. The Constitutional Court stated that "the Constitutional Court could not look at this contradiction. Nothing changed the perfectly correct objection of the Regional Prosecutor's Office in Ostrava that the search was carried out on the basis of a valid and effective regulation of subconstitutional law which had no alternative." In view of the assessment of retroactive effects, he concluded that "the genuine retroactivity in the event of the declaration of the unconstitutionality of an already repealed law (the addressee of which is a public authority) and the assessment of previous actions by constitutionally conformal legislation with the effects of ex tunc on the public authority is permissible because it does not constitute a breach of the principle of protection of citizens' trust in law, or interference with legal certainty or acquired law. '

15. The Constitutional Court, at the beginning of a review of the interventions by public authorities in fundamental rights and freedoms involving the conduct of a (home) survey, has concluded that such intervention is justified (allowed within the meaning of Article 12 (1) of the Charter of Fundamental Rights and Freedoms), if it is based on an order from a judge fulfilling the formal and material requirements laid down by law and in the individual acts of the caselaw. He explained that the intrusion into the inviolability of the dwelling may take place only through the actual conduct of the inspection, not simply by the completion of the relevant search warrant; the real protection against such interference (not provided directly, i.e. between issuing the order and carrying out the search) consisted in determining whether the intervention was allowed or not, which could not be established otherwise than by reviewing the order. If its shortcomings (constitutional relevance) were found, the procedural procedure before the Constitutional Court first followed the annulment of the search warrant, then only a finding of a breach of fundamental rights and freedoms was found and imposed on the competent public authority to restore the situation prior to such intervention or to prohibit it from continuing; In turn, the Constitutional Court continues to draw attention to the direct abolition of the search warrant.

16. It can be concluded that the latest developments in the case-law practice have stabilised on the view that the complaint of the person to whom the inspection was carried out, without being subsequently accused or accused, follows, by its proposal, a different intention and objective than that of the person to whom criminal proceedings are brought on the basis of the evidence thus obtained; However, the assessment of the legality of the intervention is based on one and the same legal basis - the search warrant. Thus, although it is generally the case that no one can obtain protection for another (prohibition of actio popularis), in this particular case it is an exception according to which the consequences of the review of the search warrant will also be extended to criminal proceedings in which a person other than the one who lodged a constitutional complaint against the search acts as a participant in criminal relations. The Constitutional Court found defects of the examination carried out, in the most important case, its absolute ineffectiveness or inapplicability of the evidence thus obtained against the defendant, will always be assessed in the context of the judgment in criminal proceedings on the substance (the finding of the Constitutional Court is thus automatically reflected in the legal circumstances of the person against whom the criminal proceedings were brought).

17. Although the facts of the cases in question allow for more interpretations, in order to protect the legal certainty of the parties concerned, the plenary of the Constitutional Court took up this position.

18. From Article 89 (1) of the Constitution of the Czech Republic ("The decision of the Constitutional Court is enforceable once it has been published in the manner laid down by the law, unless the Constitutional Court has decided otherwise") and the context of the regulation of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, [Paragraph 57 (1) (a) and § 70 (1)] cannot be relied upon except that the law is repealed not from the outset (ex tunc), but only from the date which the Constitutional Court determines and does not do so on the date on which it is published in the Collection of Acts (i.e. ex nunc). In sp. zn. Pl. ÚS 13 / 05 of 22.6.2005 (N 127 / 37 SbNU 593; 283 / 2005 Coll.) and sp. zn. ÚS 6 / 05 of 13.12.2005 (N 226 / 39 SbNU 389; 531 / 2005 Coll.) The Constitutional Court has concluded that, if there is an increased interest in the protection of constitutionality, it may be enforceable before the date of publication in the Collection of Laws; However, his will must be explicitly expressed - not only for the requirements of the law, but also for legal certainty. The result of this concept is detailed legislation in relation to individual legal acts which have been issued on the basis of the repealed legislation, or in relation to legal relations that have been created on the basis of it and, where appropriate, have been consumed. The repeal of the Futuro legislation is also reflected as a principle in that, when using the possibility to shift the moment of enforceability of the finding to the future (e.g. in order for the legislator to have sufficient time to replace the anti-constitutional regulation by a constitutional standard), the legal consequences of the annulment proceedings of the Constitutional Court as being constitutional and, in this respect, the public authorities are obliged to apply such a regulation, in other words, "the state authorities do not justify the application of the legal consequences of the annulment of the Constitutional Court's findings in their decisions before they have become enforceable '(Vojtěty Šimělek: Constitutional complaint - 3 updated and supplemented edition, Linde Praha, 2005). The purpose of this legislation is to highlight the fact that the abolition of unconstitutional legislation in itself does not mean a revision of individual legal acts based on the application of an unconstitutional regulation. The possibility and intensity of correction of the impact of application of the non-constitutional standard is" graduated according to how noticeable interference in the legal sphere of the individual the law has created "(Wagner, Dostál, Langášek, Pospíšil: Law on the Constitutional Court with commentary, Prague, ASPI 2007, p. 291).

19. In the field of criminal law, where the examination of another area or land in the case under trial falls within the scope of that provision (relation to individual legal acts which have been issued by virtue of the repealed law), the provisions of paragraphs 1, 2 and (where applicable) of Paragraph 71 of the Law on the Constitutional Court, provided that "if the law which has been annulled has been given by a court in criminal proceedings, a judgment which has acquired legal authority but has not yet been enforced, the annulment of such legislation is a ground for the recovery of proceedings under the provisions of the law on criminal proceedings'. In the absence of such a situation," other final decisions made on the basis of a law repealed shall remain unaffected; However, the rights and obligations under such decisions may not be exercised "and" the rights and obligations arising from legal relations arising before the repeal of the legislation shall remain unaffected '. It follows that, if the search warrant was issued and then the inspection itself carried out before 8 July 2010, the existence of the sp. zn. However, if, at the date of the repeal of the legislation, the search warrant has not yet been executed, the finding of deformation shall be the reason which prevents the inspection from taking place with all the consequences associated with it; The provisions of paragraph 1 shall not apply in the present case, since that provision is primarily directed towards substantive situations rather than situations in which the procedural provisions governing the regime of partial procedural proceedings in criminal proceedings are spectively abolished or declared unconstitutional, in particular where the Constitutional Court has not decided otherwise on the temporal aspects of its enforcement (Paragraph 58 (1) of the Law on the Constitutional Court).

20. An exception to this is made in the procedure on the specific control of standards close to the link between the procedure in which the constitutionality of laws or other legislation is reviewed, with the procedure on the constitutional complaint from which the procedure on the control of standards arose (clause § 78 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.). If, because of its unconstitutionality, the standard is abolished and the underlying reasons for such a decision (abrogation) are applied in the circumstances and in the assessment of the constitutional complaint from which the standard control procedure has arisen, then the Constitutional Court is obliged to take account of the derogation found adopted when deciding on the constitutional complaint; otherwise the constitutional complaint applied could not fulfil its function and would allow the complainant to protect his constitutional order guaranteed by fundamental rights and freedoms. For this reason, and only for this reason, the constitutional complaint sp. zn. II. ÚS 1414 / 07 (found on 15 July 2010, available at http: / / nalus.ujud.cz) was logically upheld, since it was from the proceedings on this constitutional complaint that the Second Chamber's proposal for the annulment of Section 83a (1) of the Code of Criminal Procedure, which was subsequently met by the finding of plenary at the Constitutional Court of First Instance, sp. Pl. ÚS 3 / 09.

21. For the reasons set out above, the plenary of the Constitutional Court complied with the motion of the Fourth Chamber, attested its divergent view and adopted this opinion under the provisions of Paragraph 23 of the Law on the Constitutional Court.