The Constitutional Court found no 45 / 2005 Coll.
The Constitutional Court found of 30 November 2004 on the application for annulment of the provisions of § 146 (2) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended
Valid
45
FIND
The Constitutional Court
On behalf of the Czech Republic
On 30 November 2004, the Constitutional Court decided on 30 November 2004 in plenary, composed of the President of the Court of JUDr. Paul Rychett and the Judges of JUDr. Stanislav Balík, JUDr. František Duchona, JUDr. Már. Güttler, JUDr. Pavel Holländer, JUDr. Ivana Jana, JUDr...........................
as follows:
Paragraph 146 (2) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, is hereby repealed on 30.9.2005.
Reasons
By order of 10 March 2004, sp. zn. IV. ÚS 403 / 03, the IV Chamber of the Constitutional Court (hereinafter referred to as "the Chamber ') suspended proceedings in respect of a constitutional complaint by Ing. J. N., represented by JUDr. J. H., a lawyer. The complaint is directed against the order of the District Attorney's Office in Zlin dated 25.6.2003 No. Zn. 2415 / 2003-5 and the resolution of the police authority of the Czech Police, the services of criminal police and investigations in Zlin, of 27.5.2003 ČTS: ORZL-1212 / KPV-233-2003. The reason for the interruption was that the Fourth Chamber of the Constitutional Court, after reconsidering all the facts in detail, and in particular taking into account a number of decisions of the European Court of Human Rights, concluded that the provisions of Paragraph 146 (2) of the Criminal Code (hereinafter referred to as the" Rules of Procedure') are essentially unconstitutional and that this inconstitutionality cannot be eliminated only by interpretation and appeal to its constitutionally conformal interpretation.
Circumstances of the case
The complainant was one of two managers of M., spol. s r. o.
The police authority of the Police of the Czech Republic, the District Directorate of Zlin, the Criminal Police Service and the Investigation Service, the Economic Crime Department (hereinafter referred to as "the Police Authority '), by an entry dated 19 March 2003, ČTS: ORZL-1212 / CPV-233- 2003 on the opening of criminal proceedings pursuant to § 158 (3) of the Code, initiated an examination of the facts suggesting that a criminal offence qualified under § 126 (2) of the Criminal Law was committed. In the description of the act of the police authority, the complainant Ing. J. N. and Ing. H. N. stated that on 28 January 2003 the complainant did not submit an application for bankruptcy, even if the company was overindebted, with several creditors who were unable to meet their liabilities due in the long term and are in bankruptcy under Section 1 (2) of Act No. 328 / 1991 Coll., on bankruptcy and settlement, as amended, and thus caused the notifier - V. p. CZ, OP Z. - damage to unpaid health insurance of CZK 1 549 185.
By a call of 9 April 2003 for the issue of a case under Section 78 (1) of the Rules of Procedure, the police authority invited the complainant to issue a complete accounts of the company from 1 January 1999 and to forward them in person by 11.4.2003 at the latest until 13.00. At the same time, he advised the complainant that if he did not meet the challenge, he could be fined according to § 66 of the order up to CZK 50,000.
By order of 27 May 2003, the police authority imposed an order fine of CZK 20,000 on the complainant pursuant to Article 66 (1) of the Rules of Procedure on the ground that, despite his appeal under Article 78 (1) of the Rules of Procedure, he had not issued the required accounting documents, he did not justify his action in any way, although he had already promised to deliver the accounting documents in the explained explanation of 19 March 2003. By the letter of the police authority of the same day, the complainant was re-invited to issue the case pursuant to Paragraph 78 (1) of the Rules of Procedure with the relevant instruction.
On 17 June 2003, the complainant lodged a complaint against a resolution of the police authority of 27 May 2003 imposing an order fine pursuant to Article 141 of the Rules of Procedure. In it, he argued that he could not be required as a suspect to submit to the police authority himself materials which could possibly lead to his conviction of the crime. It stated that it has not yet had complete accounts and proposed that the resolution be repealed.
By order of the district attorney in Zlin dated 25.6.2003 No. Zn 2415 / 2003-5, the complaint was rejected as unfounded pursuant to § 148 (1) (c) of the Rules of Procedure. In the statement of reasons for his decision, the prosecutor stated that the complainant had not responded to the previous call. The complainant's reference to the fundamental right not to blame was considered irrelevant, since pursuant to Paragraph 78 (1) of the Rules of Procedure, anyone who has a matter of interest in criminal proceedings is obliged to issue it, i.e. even a suspect. There is also no doubt that the company's accounts are important to assess whether or not a criminal offence has been committed in breach of bankruptcy proceedings under Section 126 (2) of the Act. The complainant stated that the complainant had not informed the police authority of any difficulties in issuing the complete accounting. He referred to Act No. 563 / 1991 Coll., on Accounting, as amended, according to which an entity is required to account for individual accounting cases on an ongoing basis.
In order to ask the Constitutional Court, the police authority informed that the complainant, following a recall of 27.5.2003, received on 14.6.2003, issued the accounts of M., spol. s r. o., voluntarily (according to the extradition protocol of 21.7.2003), and was returned to it on 12.9.2003.
Paragraph 66 of the order states:
"Order fine
(1) Anyone who, despite a prior warning, rescues the proceedings or who acts in an offensive manner to a court, prosecutor or police authority or who, without a sufficient apology, disobeys an order or fails to comply with a challenge given to him under this law, may be punished by a court, prosecutor or police authority in a preparatory procedure by an order fine of up to CZK 50 000.
(2) Where the conduct referred to in paragraph 1 is carried out by a member of the armed forces or an armed corps in active duty, the competent commander or chief may be left to disciplinary punishment. Where such conduct is committed by a person in custody or in the execution of a prison sentence, he may be left to the warden to impose an order or disciplinary penalty. The competent master, chief or director shall inform the law enforcement authority of the outcome.
(3) Where the conduct referred to in paragraph 1 is committed by a lawyer or in proceedings before a court of a prosecutor, he shall be referred to the competent authority for disciplinary action. That authority shall inform the law enforcement authority of the outcome.
(4) A complaint having suspensory effect shall be admissible against the decisions referred to in paragraphs 1 to 3. ';
Arguments of the Fourth Chamber in the order to stay proceedings
With regard to the subject matter of the complaint, the Senate considered that the final decision to impose an order of order of CZK 20 000 was, in view of its nature (financial penalties) and the seriousness of the impending consequences (fine up to a maximum of CZK 50 000), a decision on criminal charges within the meaning of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention '), even if the facts of the offence do not fall within the area of criminal law substantive or criminal law. The Senate then concluded further that the complainant had and has in Article 36 (1) and (2) of the Charter of Fundamental Rights (" the Charter') and Article 6 (1) and Article 13 The Convention, which is a constitutionally guaranteed fundamental right for the legality of the order fine imposed by it, to be dealt with fairly, publicly and within a reasonable period by an independent and impartial tribunal established by the law.
As the European Court of Human Rights ("the ECHR ') has said on many occasions, Article 6 (1) The Convention guarantees everyone the right to have any complaint relating to his criminal charges dealt with by an independent and impartial tribunal. That provision thus provides for a" right to a court', the right of access to a court, that is to say, the right to initiate proceedings, being only one of its aspects; However, this is an aspect that makes it possible in fact to enjoy the additional guarantees referred to in Article 6 (1) of the Convention (Kreuz v Poland, 2001, ESLP 3 / 2002).
Pursuant to Article 13 of the Convention, "Everyone whose rights and freedoms have been violated by this Convention must have effective remedies before a national authority, even if the infringement has been committed by persons in the performance of official duties. 'This Article guarantees the existence of a remedy in national law which can enforce the rights and freedoms conferred by the Convention, whatever the national law provides. The consequence of this provision is therefore that it requires national remedies enabling the assessment of the content of the" defensible claim' (grief défendable) based on the Convention and enabling it to offer adequate remedies. The scope of the obligation imposed by Article 13 of the Convention on the Contracting States shall vary depending on the nature of the complaint. However, the means required by Article 13 of the Convention must be "effective 'both legally and in practice. However, the" effectiveness' of the "remedy device 'within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the complainant (Chonka v Belgium, 2002, ESLP 3 / 2002).
The Senate considers that Article 6 (1) The conventions shall include the fundamental rights contained in the remaining articles of the Charter and the Convention cited; Therefore, it continued to refer only to Article 6 (1) of the Convention (see, for example, the ECHR judgment in the Lauko case against Slovakia, 1998, paragraph 61).
Process remedies provided by the order of the third
Proceedings before the institution against whose resolution the complaint is directed
(1) The institution against whose resolution the complaint is directed may comply with it itself, without prejudice to the amendment of the original resolution of the rights of another party to criminal proceedings. Where a resolution of a police authority has been issued with the prior consent of or at the direction of the prosecutor, the police authority may only comply with the complaint with the prior consent of the prosecutor.
(2) Where the time limit for lodging a complaint has already elapsed for all the beneficiaries and the complaint has not been complied with under paragraph 1, it shall refer the matter to the
(a) the police authority shall exercise supervision over the preparatory management of the prosecutor and, if there is a complaint against a resolution to which the prosecutor has given his consent or instruction, through his senior official,
(b) a prosecutor to a superior prosecutor or court,
(c) the President of the Chamber of the District Court to the superior Regional Court, the President of the Chamber of the Regional Court to the superior Supreme Court and the President of the Chamber of the Supreme Court; deliver, where necessary, a copy of the complaint to the public prosecutor and to the person who could be directly affected by the decision on the complaint;
(d) Prosecutor of the Supreme Prosecutor's Office to the Supreme Prosecutor. "
In the opinion of the Chamber, the following can be inferred from the legislation cited:
- A person who has been fined by the President of the Chamber under Rule 66 (4) of the Rules of Procedure shall have at his disposal a proper appeal (complaint), decided by the superior Complaints Court (Regional Court, Supreme Court or Supreme Court), in each case in a Chamber composed of three Judges (§ 19 (2), § 27, § 31 (2) (b) of Act No. 6 / 2002 Coll., on courts, judges, sitting and administration of the courts, and on the amendment of certain other laws (Law on Courts and Courts), as amended), i.e. bodies meeting the criteria of an independent and impartial tribunal within the meaning of Article 6 (1) of the Convention. Thus, Article 146 (2) of the Rules provides for the possibility of exercising its constitutional procedural right to judicial protection to such persons.
- A person who has been fined under Section 66 of the Rules of Procedure by a police authority or a prosecutor shall also have a proper appeal (complaint). However, in these cases, the complaint authority is not a court, but a prosecutor who exercises supervision over the preparatory management (where a fine has been imposed by a police authority) or a superior prosecutor, as the case may be. However, those complaints authorities cannot be considered as meeting the criteria of an independent and impartial tribunal within the meaning of Article 6 (1) of the Convention. Consequently, Article 146 of the Rules of Procedure does not guarantee the possibility of exercising the constitutional procedural right to judicial protection enshrined in Article 6 (1) of the Convention. Moreover, these persons are in a constitutionally unacceptable unequal procedural position in terms of the practical application of the fundamental right enshrined in Article 6 (1) of the Convention as compared to persons who have been fined in accordance with Paragraph 66 of the Rules of Procedure by the President of the Senate, which can be considered as a breach of equality in the rights enshrined in Article 1 of the Charter.
To this extent, the Senate considers the provision cited in Section 146 (2) of the Rules of Procedure to be unconstitutional for the reasons set out above.
In the opinion of the Chamber against the existing legislation in Article 146 (2) of the Rules of Procedure, where it provides that a complaint against the order on the fine is to be submitted by the police authority to the public prosecutor, who carries out the preparatory procedure of supervision or the public prosecutor to the superior public prosecutor, from the point of view of the very wording of that provision of the law, nothing can be objected. It is up to the legislator to adjust the procedural guarantees of the legality of the order fined resolution, or how much appeal will allow. However, from a broader point of view, from the point of view of the existence of effective procedural guarantees or remedies, the Senate is obliged to state that the provision cited above suffers from a constitutional deficit, the essence of which is the absence of legislation that meets the requirements of Article 6 (1) of the Convention.
The Chamber referred to the article of Vojtěch Šimíček, "Forgiveness of the legislature as a violation of fundamental rights' in the" Ten Years of the Charter of Fundamental Rights and Freedoms in the Legal Regulations of the Czech Republic and the Slovak Republic ', Brno 2001, and the caselaw cited therein by the German Federal Constitutional Court, as well as the finding of the Constitutional Court in Case No 403 / 2002 Coll. In such cases, the Federal Constitutional Court may, in the operative part of its decision, only state that the existing legal arrangements infringe Article 6 (1) of the Convention by not allowing a group of persons to exercise its constitutional procedural right.
However, in view of the need to remedy the current unconstitutional state, the Senate considers that merely stating the inconstitutionality of the relevant provisions of the criminal order in the sense that they contain unconstitutional loopholes is not sufficient. In his view, the provisions of Section 146 (2) of the Rules of Procedure should be repealed either in whole or in part, with the legislator being given adequate time to adapt part of the first Title of the Seventh - Complaints and proceedings concerning it (Sections 141 - 150) to the requirements of Article 6 (1) of the Convention.
When the provisions of Paragraph 146 (2) (a) of the Rules of Procedure are partially repealed, the provision referred to would be derogated in point (a) of the said provision of the word ".... to the public prosecutor who exercises supervision over the preparatory management,... going against a complaint against a resolution to which the public prosecutor has given his consent or direction, through the superior public prosecutor... ', in point (b) of the word:" (b)' and... "to the superior public prosecutor or... 'and the whole point (d), so that the provisions of Section 146 (2) of the Rules of Procedure would then read:
"(2) Where the time limit for lodging a complaint has already elapsed for all the beneficiaries and the complaint has not been complied with under paragraph 1, it shall refer the matter to the
(a) the police authority and the prosecutor of the court;
(c) the President of the Chamber of the District Court to the superior Regional Court, the President of the Chamber of the Regional Court to the superior Supreme Court and the President of the Chamber of the Supreme Court; in so doing, if necessary, a copy of the complaint to the public prosecutor and the person who could be directly affected by the decision on the complaint. ';
The Senate further stated that, in its view, the loophole found in the Act cannot be bridged by any supporting application of civil or administrative procedural rules, in particular in view of their different purpose, the jurisdiction of the courts and the related principle contained in Article 2 (2) of the Charter, according to which State power can only be exercised in cases and within the limits laid down by the law, in the manner laid down by the law. It is clear that neither civil nor administrative procedural rules with a judicial review of the legality of order fines imposed in criminal proceedings nor, therefore, the real influence of civil or administrative courts on criminal proceedings are foreseen.
Similarly, the possibility of reviewing the decision on a measure by the Constitutional Court in the context of proceedings on a constitutional complaint should be rejected. Otherwise, the Constitutional Court would be in a position of appeal, although another instance in the general justice system is not and cannot be.
For all the above reasons, the Chamber decided, within the meaning of Article 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, to stay the proceedings and to submit the application to the plenary of the Constitutional Court for a complete or partial annulment of the provisions of Article 146 (2) of the Rules of Procedure.
Observations of participants and of the Ministry of Justice
The observations made by the Chamber of Deputies of the Parliament of the Czech Republic on 27 April 2004, signed by the President of this House by PhDr. Lubomír Zaorálk, state that the question of whether Article 6 (1) of the Convention affects the decision on complaints against the resolution must first be addressed in order to assess the matter. It is noted how the term "criminal charges (criminal charges)" is understood in the case law of the European Court of Human Rights, for example in Engel and others against the Netherlands. In addition, reference is made to the finding of the Constitutional Court in the case sp. zn. Pl. ÚS 28 / 98 (Collection of finds and orders of the Constitutional Court, Volume 16, Found No 161, p. 185 et seq.; published under No 2 / 2000 Coll.), in which the Constitutional Court concluded that fines in the law of the Czech Republic constitute a penalty for criminal acts within the meaning of Article 6 (1) of the Convention. At the same time, it is pointed out that the Constitutional Court has already dealt with a case of fact similar in the past, and in the decision of 28 January 2003 in the case in point II. ÚS 118 / 01 (Collection of finds and orders of the Constitutional Court, Volume 29, Found No 13) stated that it found no reason to assess the constitutionality of the substantive and procedural law applied. In the light of the case law of the ECHR and of the Constitutional Court, it is to be borne in mind that a public prosecutor is not a body meeting the criteria of an independent and impartial tribunal within the meaning of Article 6 (1) of the Convention. In conclusion, he stated that the legislature acted in the belief that the law adopted was in line with the Constitution, the constitutional order and the legal order of the Czech Republic. It is up to the Constitutional Court to examine the constitutionality of this law in the context of the submitted proposal and to give its decision.
In its observations on the proposal submitted by the Senate of the Parliament of the Czech Republic on 26 April 2004 and signed by the President of the Senate by Dr. Petr Pithart, it is stated that Paragraph 146 (2) of the Code of Criminal Procedure has been part of the Code since the date of adoption of this Act by the National Assembly, i.e. on 29 November 1961. To date, no changes have been made to the constitutional problem under review. A number of amendments to that provision brought only formal changes to the classification in relation to changes in the structure and naming of individual law enforcement authorities. The Senate of the Parliament of the Czech Republic was established and began its constitutional function in December 1996. A statement on a matter which would be based on a direct hearing and the adoption of the provision in question of the Code of Criminal Procedure or the entire Institute of Complaints cannot be provided by the Senate to the Constitutional Court as the legislative events took place before its establishment.
In the time of the Senate's existence, only the so-called "great amendment to the Code of Criminal Procedure" (Act No. 265 / 2001 Coll.) was affected by the subject matter, which brought, on the one hand, the addition of Paragraph 146 (2) to the rule that a complaint against the order of the Prosecutor of the Supreme Prosecutor is decided by the Attorney General, which means a confirmation of a criticised model, and, on the other hand, an extension of the provisions of Section 146a establishing a list of complaints against the decisions of the Prosecutor and the Police Office on the matters of persons and property which must be decided solely by the court. In the debate of the Chamber on the proposal for a "great amendment to the Code of Criminal Procedure", the issue of making decisions on complaints was not specifically affected.
The opinion submitted by the Ministry of Justice at the request of the Constitutional Court on 22 April 2004, signed by the Minister of Justice, by JUDr. Karl Čermák, states that, in view of the guarantees that should be provided to the person to whom the fine is imposed, the term "criminal charges' under Article 6 of the Convention is a key term. The Ministry referred to Article JUDr. J. Kmece" On certain aspects of the principle ne bis in idem in the light of the case law of the European Court of Human Rights, "Criminal Law 1 / 2004, p. 24, in which the ECHR judgment in Engel and Ost v Netherlands is cited and stated that, in that area, the ECHR case-law is very casualistic and it is therefore not easy to determine which delicacies under national law are subject to the safeguards of Article 6 of the Convention.
The Ministry also referred to the recent ECHR decision on the admissibility of the complaint by Tibor Jurík against the Slovak Republic concerning the imposition of an order fine in criminal proceedings, which states that Article 6 The Convention shall not apply to proceedings for the imposition of an order fine in the context of criminal proceedings and to proceedings for the imposition of an order fine shall not be subject to safeguards for proceedings in which criminal charges are decided. The Ministry then concluded from that decision that the regulation of the procedure for imposing a fine and the regulation of the complaint procedure in the criminal law does not suffer from a constitutional deficit and guarantees sufficient rights for participants. It proposed that the provisions of Paragraph 146 (2) of the Criminal Code should be left in its current form.
Judgments of the Constitutional Court in relation to order fines
The Constitutional Court has dealt with civil, administrative and criminal penalties several times.
In its finding sp. zn. They can be issued on a discretionary basis, so that the discriminatory effect of imposing them on different entities is not excluded. They are penalties for criminal acts within the meaning of Article 6 (1) of the Convention. They are laid down by law and intended as preventive and, at the same time, repressive measures by public authorities. Their level should therefore be compared to the nature of the offences for which a financial penalty can also be imposed. Such offences are known by our criminal law to dozens and relate to the issue of the conduct of certain legal processes and controls (such as Sections 124a to 124c, Section 125, Section 129, Section 145a, Section 148a, Section 169b, Section 171, Section 175, Section 176, Section 255, Section 257a of the Criminal Act). According to Section 53 of the Criminal Act, the financial penalty lies in the obligation to pay the State between CZK 2,000 and CZK 5 million. The right to a fair trial is guaranteed in their case. Therefore, if, for such offences, the penalty in the form of a cash penalty (often lower than the order penalty) is under Article 6 (1) of the Convention, there is no reasonable reason why this should not be the case in the case of order fines which are often not even required to be guilty.
Similarly, in its finding sp. zn. I. ÚS 211 / 99 (Collection of finds and orders of the Constitutional Court, Volume 20, Found No 152) The Constitutional Court stated that the order fines imposed under civil proceedings are also eligible to intervene in fundamental rights and freedoms, and the Constitutional Court therefore sees no rational and constitutionally acceptable reason for the different assessment of the order fines imposed under different types of proceedings, all the more so that the purpose of civil proceedings is to ensure fair protection of the rights and legitimate interests of the participants.
The order of fines imposed under Article 66 (3) of the Rules of Procedure was dealt with by the Constitutional Court, inter alia, in the finding in the case sp. v. IV. ÚS 13 / 99 (Collection of finds and orders of the Constitutional Court, Volume 15, Found No. 120). The Constitutional Court annulled the order of the investigator of the Office of the Investigation of the Czech Republic and the order of the District Attorney by which the complainant - the natural person - was ordered an order fine of CZK 20,000 for failure to comply with the call. The reason for the appeals of the contested orders was to establish that the complainant was not entitled to dispose of the information requested and that it was therefore appropriate to impose an order fine on the company and not on its employee. The question of the absence of judicial review was not addressed by the Senate of the Constitutional Court.
Similarly to the finding in the case sp. zn. II. ÚS 118 / 01 (Collection of finds and orders of the Constitutional Court, Volume 29, Found No 13) The Constitutional Court annulled the order of the district attorney and the order of the police authority on the order fine 15 000 CZK. In particular, the constitutional complaint was upheld because the criminal proceedings in the present case did not reach the stage of the preparatory procedure, so that (according to the criminal proceedings at the time) the call for the issue of the money diary could not be made and therefore neither could the order fine be imposed and, on the other hand, the imposition of an order fine forced the complainant to cooperate to produce evidence which could incriminate him. On this point, too, the Senate of the Constitutional Court did not address the issue of the absence of judicial review.
Resolution in case sp. zn. III. ÚS 315 / 03 (not published) The Constitutional Court rejected the constitutional complaint against the decision of the Police of the Czech Republic and the order of the District Attorney on the order fine of CZK 5,000 imposed under Section 66 of the Rules of Procedure on the ground that the procedure of public authorities was in accordance with the Code of Criminal Procedure. The question of the absence of judicial review was not addressed by the Senate of the Constitutional Court.
In all three of the latter cases, a final decision on the order of order imposed pursuant to Section 66 of the Rules of Procedure was the subject of a constitutional complaint. At first instance, decisions were taken by a police authority. Subsequent complaints were rejected by the State's attorney. All these constitutional complaints were dealt with in substance by the chambers of the Constitutional Court. However, the question of whether the law in force sufficiently fulfils the constitutional guarantees enshrined in Article 6 of the Convention was not addressed by any of the decisive chambers of the Constitutional Court.
The ECHR's caselaw in relation to order fines
In assessing this issue, the ECHR's caselaw is largely case-law and inconsistent, as can be inferred from the ECHR's decision, for example in Engel and Others cases against the Netherlands, 1976, Ötztürk v Germany, 1984, Weber v Switzerland, 1990, Ravnsborg v Sweden, 1994, Putz v Austria, 1996, Lauko v Slovakia, 1998, Jurík v Slovakia, 2003.
The test applied by the ECHR in assessing whether a penalty is "criminal 'was formulated in the ECHR judgment in Engel and Others against the Netherlands, 1976. In particular, it is necessary to establish whether the provision defining the offence falls under the legal system of the defendant State in the field of criminal law, disciplinary (disciplinary) law or both at the same time. However, this is only a starting point, and the facts thus obtained have only a formal and relative value. The substance of the offence itself is of greater importance, but in particular the rigour of the sanction that threatens the person concerned. These criteria are taken into account by the Court of First Instance (ESLP) when assessing whether the complainant was subject to" criminal charges' within the meaning of Article 6 (1) of the Convention.
However, it can be concluded from the above ESLP decisions that the test applied by the ESLP is not entirely satisfactory, in particular when assessing whether a disciplinary (disciplinary) penalty provided for in national law is a "criminal charge 'within the meaning of Article 6 (1) of the Convention.
For example, in the Weber case against Switzerland, 1990, the complainant was fined by a court of order of 300 Swiss francs for violating the confidentiality of a criminal investigation. The ESLP concluded that the order fine imposed by the Court was a criminal offence pursuant to Article 6 (1) and (3) of the Convention.
On the contrary, in the Ravnsborg case against Sweden, 1994, 3 order fines were imposed on the complainant by courts of different degrees for inappropriate statements in written submissions. The ECHR concluded that Article 6 (1) of the Convention does not apply to the infringements in question. It stated that the rules allowing the court to penalise misconduct in proceedings before it are a common feature of the legal systems of the Contracting States. Such rules and penalties shall be based on the necessary jurisdiction of the court to ensure the proper and orderly conduct of the proceedings. The measures ordered by the Court under such rules are more similar to the exercise of disciplinary powers than to the imposition of criminal penalties.
On the same basis as in the Ravnsborg case, the reasoning for the ECHR judgment in Jurík v Slovakia, 2003 and Putz v Austria, 1996 (see below).
In 1985, the Austrian courts had criminal proceedings against Mr Putz (in connection with bankruptcy). He was fined during a trial at the Regional Court in Wels for disturbing the trial. The third fine was imposed by the Court of Appeal in Linz. The complainant objected, inter alia, to the infringement of Articles 6 and 13 The Convention does not have a fair trial before an impartial tribunal, nor does it have any effective means of redress in the light of the order fined decision. The ECHR concluded that there was no breach of the Convention, which was justified by the fact that, in particular, the provisions concerning the cancellation of legal proceedings were not part of Austrian criminal law. As regards the nature of the offence, the rules allowing the court to penalise not the proper conduct of proceedings before it are a common feature of the legal systems of the Contracting States. Such rules and penalties shall derive from the Court's own competence to ensure the proper and proper conduct of its proceedings. The measures ordered by the courts under such rules are more similar to the exercise of disciplinary powers than to the imposition of criminal penalties. The ECHR concluded that the type of illegal conduct for which the complainant was fined falls outside the scope of Article 6 of the Convention. As regards the nature and degree of rigour of the penalty, the ECHR considered that what was at stake in the case at issue was not sufficiently significant to deserve to be classified as "criminal '.
The Court of Justice de Meyer added to the latter judgment in Mr Putz's case, particularly as regards the too narrow interpretation of the concept of "criminal charges' contained in Article 6 (1) of the Convention.
In his view, experience shows that the test contained in Engel and others against the Netherlands and the criteria applied therein are not very satisfying. It is already stated in the judgment cited itself that the characteristics provided by the first criterion, i.e. the classification of the offence in national law, "have only formal and relative value '. From this point of view, it should not have been of any importance that" money fines imposed on Mr Putz were based' not on a criminal law, but on a criminal law, a law on courts and a law on civil proceedings. None of this can justify an exemption from the commitment to comply with the principles of the fair process.
The importance of the second criterion - the nature of the offence - from the point of view of distinguishing criminal law from the rules of order of the ECHR was made clear in Weber v Switzerland, 1990, when he stated that order sanctions are generally provided for to ensure that members of the special groups comply with specific rules governing their conduct (paragraph 33). As regards the proceedings before the courts, the ECHR, in the same judgment, said that "the parties.... are only involved in the proceedings as persons under the jurisdiction of the courts' and that" for that reason they do not fall within the order of the judicial system '. In the view of the Judge de Meyer, it is therefore difficult to understand in what way the Ravnsborg and Putz cases (which, in the view of the ECHR, were not covered by Article 6 of the Convention, since the measures taken against these two complainants were "more similar to the exercise of order powers than the imposition of a penalty for committing a crime') (Ravnsborg, paragraphs 33 and 34) may differ from the judgment in Mr Weber's case. Like Mr Weber, Mr Putz and Mr Ravnsborg did nothing more than" have taken part in proceedings under the jurisdiction of the courts, "and the provisions applied to them, as well as those applied to Mr Weber, covered" potentially... the whole population. "
Similarly, the application of the third critic, which is the degree of rigour of the sentence which threatens the person concerned, has led to different conclusions in those cases, which clearly demonstrates his inadequacy. Can it be accepted that a person does not have the right to be treated properly when there is only a small fine or a short period of imprisonment? And if so, where is the threshold of rigour that establishes this right? How high? How many days? The severity of the penalty may be taken into account for the purpose of assessing whether it was fair, in particular in the light of the principle of proportionality or of examining the procedure in which it was imposed, or again to determine whether it requires corrective action.
In conclusion, the judge de Meyer expressed the view that any sanction imposed on someone for a certain conduct that can be considered deterrent is a "punishment," thus falling within its own "nature." This must apply in particular to any financial sanctions or restrictions on freedom. Such penalties may be imposed only on a person by judicial authority or under its supervision, enabling the person concerned to guarantee more or less perfectly in Article 6 of the Convention. It is a matter of the States to ensure this under the supervision of the ESLP.
However, where, for example, the law of the armed forces or the rules of conduct within a professional organisation are concerned, the judicial nature, independence and impartiality of the authority imposing the sanction need not necessarily be assessed in the same way as when the matter is governed by ordinary criminal law. In exercising the order (disciplinary) powers of a hierarchically superior or professional board, apriori may not be regarded as a tribunal less independent or less impartial than a "ordinary" court or jury in relation to an offence under normal law. But in all cases, in areas covered by specific sanctions systems as well as under general criminal law, the proceedings must be fair. In order for it to be such, it is essential, inter alia, that the penalty be reasonably proportional to the offence and that an appropriate appeal against it is available if it exceeds a certain threshold of rigour.
The case of Mr Putz does not fall so much within the area of maintaining order in proceedings, as it relates to accusing a judge, bringing action against a judge for abuse of his authority or on the basis of a reasonable suspicion of bias. This aspect of the case, combined with the fact that the complainant does not have an appeal against the decisions in question, led the judge to conclude that Mr Putz did not have a fair trial. Since he did not have the means of redress, he also considered that there was a breach of Article 13 of the Convention.
Assessment by plenary of the Constitutional Court
After examining all the above opinions and observations, the plenary of the Constitutional Court concluded that the motion of the Fourth Chamber to repeal the entire provision of Paragraph 146 (2) of the Rules of Procedure was justified.
The fact that the plenary of the Constitutional Court considers that, by its nature, it is generally competent to intervene in fundamental rights and freedoms in the light of their size and the possibility of re-imposing, is already clear from its finding in the case in point. The Constitutional Court found no reason to deviate from the opinion expressed there. Order fines are penalties for criminal acts. They are laid down by law and intended as preventive and, at the same time, repressive measures by public authorities. They can be issued on a discretionary basis, so that the discriminatory effect of imposing them on different entities is not excluded. They are therefore, as a general rule, a decision on criminal charges within the meaning of Article 6 (1) of the Convention.
It should be further noted from that statement that the person affected by the order-order fine must have at his disposal the constitutional procedural guarantees provided for in Article 6 (1) of the Convention, under which "Everyone has the right to have his or her case dealt with fairly (...) by a court (...) which shall decide (...) on the legality of any criminal charges against him. (...) '.
The Constitutional Court's Board therefore accepted the above-mentioned opinion of the Fourth Chamber, according to which the current version of Paragraph 146 (2) of the Rules of Procedure, in view of the existence of effective procedural guarantees or remedies, suffers from a constitutional deficit, the essence of which is the absence of legislation which meets the requirements of Article 6 (1) of the Convention in respect of persons who have been fined in accordance with Article 66 (3) of the Rules of Procedure by a police authority or a public prosecutor. Consequently, Article 146 (2) of the Rules of Procedure does not provide for the possibility of exercising the constitutional procedural right to judicial protection enshrined in Article 6 (1) of the Convention. Moreover, these persons are in a constitutionally unacceptable unequal procedural position in terms of the practical application of the fundamental right enshrined in Article 6 (1) of the Convention as compared to persons who have been fined in accordance with Paragraph 66 of the Rules of Procedure by the President of the Senate, which can be considered as a breach of equality in the rights enshrined in Article 1 of the Charter.
In particular, the unconstitutionality of the existing provision of Paragraph 146 (2) of the Rules of Procedure is manifestly manifested in cases (similar to those which preceded the motion of the Fourth Chamber of the Constitutional Court) in which an order fine is imposed already after the initiation of the preparatory procedure, but before criminal proceedings are brought. The Constitutional Court notes that, when it is possible to initiate preparatory proceedings, not to start criminal proceedings, but by writing an alert stating the facts for which it is initiating the criminal proceedings and the way in which it has been informed of them (Section 158 (3) of the Rules of Procedure), there is no way that, from the point of view of the Constitutional Office in this area of criminal proceedings, it is in any event able to obtain the law of the police authority, note bene without the possibility of judicial review, order fines. The question whether the possibility of initiating preparatory proceedings by means of an alert on a police authority is constitutionally consistent could not be dealt with by the Constitutional Court in the light of the content of the draft IV of the Constitutional Court's proposal.
The majority view of the plenary of the Constitutional Court did not go to the possibility of abolishing the contested provision of Paragraph 146 (2) of the Rules of Procedure only in part, since, in fact, in the role of a positive legislator, the legal system of remedies against the order on the fine (but not only on it) would change (despite the fact that the provisions of Section 146 (2) themselves are not unconstitutional); Unconstitutional is a gap in the law), although the natural advantage of applying such a procedure is to immediately correct a constitutionally inconsistent provision of the law.
The inconstitutionality of the provisions of Section 146 (2) of the Rules does not result from the analysis of that provision itself, but in particular from the constitutional loophole which the Constitutional Court notes. In view of the need to remedy the current unconstitutional state, the Constitutional Court considers that a positive action by a legislator, whose impetus may only be to abolish an individual provision of the law, which, by its essence, contains an unconstitutional loophole, in the present case Article 146 (2) of the Rules of Procedure, is necessary, with the legislature being given reasonable time to adapt part of the first Title of the Seventh - Complaints and Proceedings (§ 141 - 150) of the Penal Code which would comply with the requirements of Article 6 (1) of the Convention.
It will therefore be up to the legislature to adopt, in due time in the terms of this finding, a constitutional law on the decision to appeal against a decision by a police authority or a prosecutor to impose an order of order pursuant to Section 66 of the Rules of Procedure. It is not excluded to adopt such an arrangement which leaves decision-making on such matters in the hands of the public prosecutor whose decision is to be followed by a decision of the court (so as to establish a decision of the tripartite court), or whether - as is the case in the regulation of the decision on a complaint against a decision on the detention of persons and property (§ 146a tr. of the order) - the jurisdiction of the court to review the decision on fines immediately.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges JUDr. Stanislav Balík, JUDr. Dagmar Lastovecká, Dr. Jiří Nykodemou and Dr. Eliška Wagner to decide.
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Regulation Information
| Citation | The Constitutional Court found no 45 / 2005 Coll., on the application for annulment of the provisions of § 146 paragraph 2 of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (criminal order), as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 24.01.2005 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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