Communication from the Constitutional Court No 61 / 2019 Coll.
Communication from the Constitutional Court on the Opinion of the plenary of the Constitutional Court of 29 January 2019 sp. zn.
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26.02.2019
61
COMMUNICATION
The Constitutional Court
No. 15 / 2015 (No. 15 / 2015)
the following opinion:
I. The law enforcement authorities shall act (in the form of so-called other intervention) in breach of Article 36 (1), in conjunction with Articles 38 (2) and 8 (2) of the Charter of Fundamental Rights and Freedoms, if they combine the legal effects with the criminal order required under the terms of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (criminal), as amended, to be translated into a foreign language without the official translation of that criminal order to the accused.
II. Similarly, it is an unconstitutional intervention by law enforcement authorities to combine the legal effects of the service of such a criminal order with the right to object to the person against whom it was issued when it previously declared that it did not control the Czech language in the course of criminal proceedings and was not adequately informed about the importance of giving up that right due to its specifically vulnerable position, or that the instruction or content of the criminal order had not been properly interpreted.
Reasons
Reasons for submitting an opinion
1. The Constitutional Court has received a constitutional complaint, which is under sp. zn. III. ÚS 3464 / 17. By this constitutional complaint, the complainant requests that the Constitutional Court prohibit the District Court of Liberec from continuing the intervention of the Court of Justice of the European Union of the main proceedings in respect of the case brought to it under Article 5 T 128 / 2017, in which the complainant sees a breach of his constitutionally guaranteed fundamental rights and freedoms under Article 36 (1) of the Charter of Fundamental Rights ("the Charter '), Article 37 (3) and (4) of the Charter and Article 38 of the Charter. The procedural situation of the case lies, to put it simply, in the fact that a complainant who is a foreign national has been detained by the Czech Police. Subsequently, a criminal order from the District Court of Liberec of 12 October 2017 sp. zn. 5 T 128 / 2017 was issued against her after the application for punishment, which was handed over to her by a" short way, "while the complainant waived the right to file the opposition. It then submitted within eight days of delivery after having chosen an attorney.
2. An interpreter was present at the binding session and there was no dispute between the parties to the proceedings on the constitutional complaint that the conduct of the detention session had in some way been translated by the present judicial interpreter and that the complainant had also been given some guidance on the procedural consequences of the waiver of the right of opposition. However, the complainant takes the view that its constitutionally guaranteed fundamental rights were infringed by the lack of scope and quality of interpretation and instruction, which meant that its waiver of the right to oppose a criminal order had to be regarded as ineffective and, on the contrary, its subsequent resistance as causing legal effects pursuant to § 314g (2) of the first sentence before the semicolon of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended. It is also questionable whether or not the complainant has declared that it does not insist on the translation of the criminal order.
3. The third Chamber of the Constitutional Court, when deciding on the case described in the previous paragraph, concluded that the previous case-law of the Constitutional Court differed as to the nature of the breach of the constitutionally guaranteed fundamental rights and freedoms of complainants and complainants in similar situations, i.e. when, as a result of the malpractice of the General Courts, they waived the right to object, but subsequently filed it and the competent General Court refused to order the main case-law because it considered that the waiver of the right of opposition had resulted in a criminal order having acquired legal power and enforceability.
4. Part of the Constitutional Court's judgment ("the first approach") in this case sees a breach of the constitutionally guaranteed fundamental rights and freedoms in another intervention of the public authority in the absence of a main trial [the findings of sp. zn. III. ÚS 3816 / 16 of 21.3.2017 (N 49 / 84 SbNU 579), sp. zn. IV. ÚS 2443 / 14 of 23.3.2015 (N 59 / 76 SbNU 795), sp. zn. I. ÚS 892 / 14 of 20.8.2014 (N 157 / 74 SbNU 349), sp. sp. IV. ÚS 1320 / 07 of 5.11.2007 (N 183 / 47 SbNU 411) or sp.
5. This is also the case with a different procedural approach in the findings of the Constitutional Court, since for the first approach of the Constitutional Court in the findings, the Constitutional Court prohibited the ordinary courts from continuing any other intervention under § 82 (3) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, in the second approach of the Constitutional Court, by its findings the criminal orders under § 82 (3) (a) of the Law on the Constitutional Court.
6. There is a clear contradiction between these two approaches, as each of them leads to a different way of correcting the breach of the fundamental rights of the complainants. Both apply to the findings of the Constitutional Court and thus to Article 89 (2) of Constitutional Act No. 1 / 1993 Coll., the Constitution of the Czech Republic, are essentially binding on all the institutions and persons with the Constitutional Court itself at the head [e.g. the finding sp. zn. Pl. ÚS 4 / 06 of 20.3.2007 (N 54 / 44 of SbNU 665); Findings sp. zn. II. ÚS 459 / 14 of 14.4.2015 (N 79 / 77 SbNU 159); Found sp. zn. III. ÚS 949 / 09 of 26.8.2010 (N 171 / 58 SbNU 495).
7. The third Chamber therefore concludes that whatever approach it takes, it will always necessarily deviate from the binding legal opinion of the Constitutional Court expressed in the findings of the opposite approach. The third Chamber therefore referred a question to the plenary on the basis of Article 23 of the Constitutional Court Act.
The Constitutional Court's current decision-making practice
8. In situations where the complainant or the complainant waived the right to oppose because, as foreigners, they had not been properly informed at all or properly or there was no proper interpretation of the instruction of the possibility of resisting, and subsequently submitted the opposition, the Constitutional Court considered the procedure of the General Courts to be another intervention of the public authority in the absence of action, if these were subsequently ordered by the main court. This was also the case with the opinion of the Constitutional Court which, in these cases, under § 82 (3) (b) of the Law on the Constitutional Court, prohibited the courts from continuing this other intervention. The first approach was applied.
9. This was the case, for example, in the sp. zn. III. ÚS 3816 / 16 of 21.3.2017 (N 49 / 84 SbNU 579). In addition, the Constitutional Court stated in its operative part that the relevant criminal order was annulled by opposition. The Constitutional Court followed the same procedure if, according to the General Courts, the opposition was not delivered on time, although the [finding sp. zn. I. ÚS 892 / 14 of 20.8.2014 (N 157 / 74 of SbNU 349)] was in fact not sufficient time and space for the complainant or the complainant to defend and be exposed to the dilemma between the lodging of the resistance and the arrest [finding sp. zn. IV of 1320 / 07 of 5.11.2007 (N 183 / 47 of SbNU 411); Similarly, only without stating that the criminal order was annulled by the submission of opposition directly in the operative part of the finding, also the finding of page I. ÚS 291 / 96 of 23.9.1997 (N 105 / 9 of SbNU 15).
10. On the other hand, in the case of a failure to demonstrate that the power of attorney was not being demonstrated by a lawyer who, according to the General Court, had the effect of filing it by a person not authorised, the Constitutional Court considered the contested criminal order to be an unconstitutional decision of the public authority and annulled it pursuant to Paragraph 82 (3) (a) of the Law on the Constitutional Court [page I of the ÚS 2822 / 13 of 12 November 2014 (N 208 / 75 of the SbNU 333)]. The second approach was applied. The same approach was followed when the complainant was restricted to freedom and was not given sufficient scope for defence at all, nor was access to the lawyer [Findings III. ÚS 200 / 2000 of 14.10.2000 (N 151 / 20 SbNU 71)].
11. It is clear from the cases described in this part of the opinion that the Constitutional Court did not distinguish in its previous case-law the nature of the various complaints. He also applied the first approach in a situation where he concluded that the criminal order had not been translated at all (the finding under sp. zn. III.
12. It follows that the Constitutional Court does not treat the classification of a breach of the constitutionally guaranteed fundamental rights or freedoms of an individual in such cases in a uniform manner, even in similar cases choosing different procedural solutions.
Own justification of the opinion
13. The Constitutional Court concluded that in situations similar to those which occurred in the Senate case dealt with under sp. zn. III. The ÚS 3464 / 17 is the right solution for the first approach.
14. According to § 314g (1) of the sentence of the first Code of Criminal Procedure, the accused, the persons entitled to appeal for his benefit and the prosecutor may oppose the criminal order. Resistance shall be brought before the court which issued the criminal order within eight days of its delivery. In accordance with Paragraph 314g (2) of the Criminal Code, where a criminal order has been filed against an authorised person within the period of opposition, the criminal order shall be revoked and the Judge-in-Office shall order the main trial; when dealing with a case in the main trial, a single judge shall not be bound by the legal qualifications or the type and scope of the sentence contained in a criminal order. Otherwise, the criminal order becomes final and enforceable.
15. The specificity of resisting a criminal order is that its effect, unlike other criminal remedies, is in no way dependent on its content. This applies only as an alternative - either it has been properly and in a timely manner submitted by an authorised person, and then the criminal order is cancelled without further delay, or it has not been properly and in a timely manner submitted by any authorised person, and then the criminal order has automatically acquired legal authority and enforceability. Therefore, there is no private or public sitting and the court does not decide on it, its effect takes place ex-post.
16. Therefore, from the point of view of its legal structure, the essence of the first approach is that the opposition, even though the general courts assessed as late or the person who is not entitled, has brought about the intended legal effects and has resulted in the lifting of the criminal order, although the general courts did not apply it. The anti-constitutional is the following inaction of the general courts which incorrectly consider a criminal order to be final and enforceable, and therefore do not order the main proceedings as first sentence before the semicolon of the criminal order commands § 314g (2).
17. In the second (minority) infringement of the constitutionally guaranteed fundamental human rights or freedoms is seen in a final and enforceable criminal order. It is therefore clear that, in this approach, the Constitutional Court of Appeal does not acknowledge the effects of the first sentence of Paragraph 314g (2) before the semicolon of the Code of Criminal Procedure, while it considers that an enforceable and enforceable criminal order is unconstitutional because of the fact that the process of having acquired legal power has been affected by a defect which constitutes a breach of one of the constitutionally guaranteed fundamental rights or freedoms of the complainant or the complainant.
18. The non-interpretation or non-translation of a criminal order, as stated by the Constitutional Court in the case under page III, cannot be regarded as duly served, i.e. such a criminal order cannot have any legal authority at all. According to Paragraph 28 (3) of the Criminal Code, a decision which must be translated to the defendant shall be deemed to have been received after the service of the written translation, if the service is linked to the beginning of the period. The penal order is set out in Paragraph 28 (2) of the Penal Code as a document to be translated in writing to the defendant if the interpreter has been recruited pursuant to Paragraph 28 (1) of the Penal Code, unless the defendant, having been informed, declares that he does not require his translation. This situation can therefore be assimilated to the fact that the condemning judgment in criminal proceedings would not have been served at all by an accused person who did not waive the right of appeal, for which he would not have been given a period of time, and thus the judgment could never have obtained legal power under Paragraph 139 (1) (b) (aa) of the Criminal Code.
19. In such cases, however, the complainant or the complainant cannot be required to oppose a criminal order, since it has never been properly delivered to them, although only when it is delivered is the beginning of the period for filing the opposition. If the public authorities then proceed as if the criminal order were final and enforceable, this is another intervention by the public authority. In such situations, the Constitutional Court may, if it conforms to a constitutional complaint, only prohibit the continuation of such other intervention under § 82 (3) (b) of the Constitutional Court Act or order the restoration of the original state (e.g. if a forfeiture penalty has been imposed). If the criminal order has not been served at all, the punishments imposed by it cannot be enforced and therefore the criminal code, as amended, cannot be committed by failing to respect those punishments.
20. A similar conclusion applies to other procedural misconduct alleging infringements of constitutionally guaranteed fundamental rights or freedoms, which led to the failure to fulfil the legal conditions for concluding that a criminal order had been served (e.g. had never been issued by a competent court for service) or that it had acquired legal power (e.g. resistance had been filed properly and on time, although the general court considered that it had been filed late).
21. The Constitutional Court also concluded that it is not justified to treat otherwise the criminal order which has been or has been or has been transferred with the complainant or the complainant to give up the right to translate it, but that this waiver of opposition to it has not been preceded by sufficient instruction or interpretation to a sufficient extent due to the specific vulnerability of the complainant or the complainant, or by any other intervention in his or her ability to defend itself effectively (for example, a stranger, a person restricted to freedom, a person denied access to the lawyer, etc. - cf. Part II of this Opinion), as a result of which the right to oppose the defendant or the defendant. In these circumstances, the waiver of the right of resistance must be seen as an inefficient procedural act.
22. In view of the particular nature of the criminal case, it is necessary to distinguish this situation from cases where, for example, the unconstitutionality of the condemning judgment is based on a previous defective procedural procedure (e.g. the fact that the defendant's lawyer was absent from the main trial, although he had to be present, etc.). In fact, while such a defect does not prevent a judgment from acquiring legal authority, but justifies its annulment in the context of appeals or, in the end, by the Constitutional Court in proceedings concerning a constitutional complaint, the criminal situation requires another. In fact, its publication does not precede a main case in which, under normal circumstances, defendants and defendants have wide procedural opportunities and opportunities to exercise their rights of defence, not even an oral statement, in which the court recognises at least the basic grounds of its decision, on the basis of which they can at least make a decision as to whether the justification is so convincing that it makes no sense to appeal so unconvincing that it is desirable to appeal on the spot, or whether they should at least retain a period of time and make a final decision after getting to the detailed reasoning.
23. By contrast, in the case of a criminal order, all defendants at the trial stage concentrate only on the possibility of resisting. In proportion to this, there must be increased requirements for procedural details of the possibility of resistance and its importance, which increase the more vulnerable he is because of his specific status (mainly because of the fact that he does not control the Czech language). Therefore, the lack of interpretation of a criminal order or the possibility to oppose it cannot be regarded as a defect of the same intensity, for example, with the absence of a lawyer in the main trial, where its presence was compulsory, that is to say, a defect which could only be regarded as a direct violation of the overall fairness of the proceedings, given the above concentration of the defence before the court, as well as the possibility of resisting the criminal order, as a rule, the above-mentioned defects will always infringe the overall fairness of proceedings.
24. This conclusion is not contrary to the fact that the Constitutional Court, in its decision-making activities, has long been applying the so-called presumption of the correctness of decisions of a public authority, which means that, if such a decision is not void, even if it has been issued as a result of a procedural error of the intensity of infringement of one of the constitutionally guaranteed fundamental rights of the individual, that decision must be regarded as existing and, where appropriate, having legal effects, if the facts giving rise to it are all the same until such a decision is annulled. In addition, for example, the finding of sp. zn. IV ÚS 1085 / 14 of 9.12.2014 (N 220 / 75 SbNU 475), the finding of sp. zn. I. ÚS 529 / 09 of 13.3.2012 (N 51 / 64 SbNU 625), the finding of sp. zn. I. ÚS 2216 / 09 of 31.5.2011 (N 103 / 61 SbNU 551), the finding of sp. zn. IV ÚS 150 / 01 of 9.10.2003 (N 117 / 31 SbNU 57), etc.
25. The presumption that a decision by a public authority is correct applies only to decisions of the final authorities. If the complainant or complainant ineffectively waives the right to object to a criminal order and subsequently correctly and in a timely manner submit such opposition, the previous waiver of that remedy could not, because of its ineffectiveness, have caused the consequences which the criminal order otherwise attaches to it, the subsequent submission of the opposition must therefore necessarily have led to the annulment of the contested criminal order, i.e. it could never have obtained legal power, let alone enforceability, and thus could never have been a presumption of the veracity of a decision by a public authority. In essence, the opposite conclusion would be a similar situation in which the presumption of the accuracy of the decisions of a public authority would be linked, for example, to a judgment which had never been served on the parties or even declared.
26. In this context, it is necessary to recall the specific design of the resistance to a criminal order and its legal effects (see sub-section 15 above), which take place ex ante. This attribute is an absolute exception in the criminal justice system, since all other remedies must be decided by the competent law enforcement authority. Since there is therefore no decision to oppose a criminal order, there is no appeal against the manner in which it is dealt with, since the binary nature of its application essentially excludes it from being dealt with incorrectly. However, in situations in which the effectiveness of the opposition lodged after the previous waiver of the right to file it is questionable, this particular nature of the design of the resistance institute deprives the accused of the possibility of rectification by means of any other remedy. The presumption of the veracity of a decision by a public authority is a presumption of irrefutable (praesumptio iuris tantum), that is to say it must, by its very nature, enable the person to whom the consequences of such a presumption fall to be refuted by the order of the right to do so. Therefore, the Constitutional Court cannot accept that the presumption of the correctness of a criminal order is based on a situation in which, by its nature, the withdrawal of the possibility of effectively bringing a single appeal against the accused, by which they can reverse that presumption.
27. The Constitutional Court therefore summarises that the other intervention provided for in Article 87 (1) (d) of the Constitution of the Czech Republic is the issuing of a criminal order against a person who has declared that he does not control the Czech language and who has not given up the right to an interpreter, nor has it claimed that he does not require a translation of a decision under Article 28 (2) of the Penal Code, if his official translation has not been delivered to him, and nevertheless with him the authorities active in criminal proceedings in breach of Article 36 (1) in conjunction with Article 38 (2) and Article 8 (2) of the Charter of Fundamental Rights and Freedoms are treated as having a final and enforceable decision. In such a case, this criminal order cannot be regarded as duly served and therefore cannot give rise to legal effects otherwise linked to proper service.
28. In the event that this other intervention takes place and is opposed to a constitutional complaint, the Constitutional Court shall, pursuant to Article 82 (3) of the Constitutional Court Act, prohibit the competent authority in the criminal proceedings from continuing the action, which shall mean an obligation for the competent court which issued the criminal order to deliver a properly official translation of the criminal order.
29. A similar conclusion applies in situations where the criminal authorities consider the waiver of the right of opposition to a criminal order to be effective in a situation where the defendant, who had previously exercised his right under Paragraph 2 (14) of the Criminal Code and is in a particularly vulnerable position (e.g. because he does not have a lawyer or was restricted to freedom), declares that he does not require that the translation of the criminal order be carried out, or if the translation is delivered to him, although the defendant has not previously been adequately informed of the right to oppose, of his importance and consequences so that he understands them. The same applies if a criminal order is handed over to the defendant in the context of a detention or other session, if the conduct of that meeting has not been sufficiently interpreted.
30. The Constitutional Court shall, in accordance with Article 82 (3) (b) of the Law on the Constitutional Court, prohibit the competent authority acting in criminal proceedings from continuing this intervention, which means the obligation for the competent court which issued the penal order to remove an interpretation, translation or instruction defect and to allow the defendant to exercise the right of resistance once that defect has been remedied.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | Communication from the Constitutional Court No 61 / 2019 Coll., on the Opinion of the plenary of the Constitutional Court of 29 January 2019 sp. zn. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.02.2019 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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