The Constitutional Court found no 90 / 2008 Coll.
The Constitutional Court's finding of 29 January 2008 on the application for annulment of Sections 400 (1) and 398 (6) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended
Valid
The Constitutional Tribunal found
Text versions:
12.03.2008
90
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 29 January 2008 in plenary, composed of the President of the Court of Paul Rychett and Judges Stanislav Balík, František Duchona, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Jana, Vladimir Krorka, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodma, Miloslav Excellent and Eliška Wagner on the motion of the Second Chamber of the Constitutional Court to abolish § 400 (1) and § 398 (6) of the Penal Order with the participation of the Parliament of the Czech Republic and the Senate of Parliament of the Czech Republic as parties to the proceedings
as follows:
1. Paragraph 398 (6) of the first sentence and Article 400 (1) of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, is hereby repealed on 31 December 2008.
2. The application for annulment of Paragraph 398 (6) of the Second Law No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended, is rejected.
Reasons
Definition and recap of the proposal
1. The Constitutional Complaints lodged on 29 December 2005 with Ms H. ("the complainant ') sought the annulment of the order of the Municipal Court in Prague sp. zn. NT 449 / 2004 of 9 September 2005, which did not accept his offer of a cash guarantee of CZK 100 000, the offer of his written promise was not accepted and his request for release from custody in Prague sp. zn. 1 To 43 / 2005 of 4 November 2005, which rejected his complaint. They claim that they infringed his fundamental rights under Articles 8 (2) and 38 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
2. From the attached file of the Municipal Court in Prague sp. zn. NT 449 / 2004 The Constitutional Court found that the Official Court of Hofu (Federal Republic of Germany) issued an arrest warrant against the complainant on 8 November 2004 under sp. zn. 1 Gs 1914 / 04. The reason was the allegation that in nine cases he had to provide financial assistance to other foreigners to travel to the Federal Republic of Germany in the period from August 2003 to August 2004, contrary to the law, for the benefit of more foreigners and as a member of an organised group, and in two cases he should have tried to do the same. This should have committed the offence pursuant to § 92 (1), § 6, § 92a (1) number 1, § 2, § 92a (3) and § 92b (1) of the Foreign Law of the Federal Republic of Germany and § 22, § 23, § 53 of the Criminal Law of the Federal Republic of Germany. He was found to have an escape warrant.
3. On the basis of this arrest order, the complainant has since 27 December 2004 been restricted to freedom and, by order of the President of the Chamber of the Municipal Court in Prague No. NT 449 / 2004-23 of 29 December 2004, he was taken into preliminary custody. By order of the Supreme Court in Prague No 1 To 3 / 2005-97 of 3 February 2005, his complaint was rejected as unfounded. By letter dated 14 March 2005, the complainant agreed to his extradition to the Federal Republic of Germany and repeated the same consent in his interview at the Municipal Court in Prague on 22 April 2005, when resolution Nt 449 / 2004-217 decided to convert the link prior to the binding. On 29 April 2005, the Prosecutor of the Municipal Prosecutor's Office in Prague proposed that the Minister of Justice allow the complainant to be extradited to the Federal Republic of Germany for prosecution.
4. By decision of the Minister of Justice No 2352 / 2004-MOM / 13 of 12 May 2005, the issue of a complainant for criminal prosecution to the Federal Republic of Germany was, on the one hand, suspended until the end of the criminal proceedings brought against him by the District Court of Decin under sp. footnote 6 T 93 / 2003 and, on the other, after the possible execution of the prison sentence. The City Court was informed of this decision by the letter of the Ministry of Justice registered on 17 May 2005. By letter received on 11 August 2005, the Municipal Court in Prague was informed that the decision of the Minister of Justice of 12 May 2005 was replaced by the decision of the Minister of Justice No 2352 / 2004MO-M / 25 of 5 August 2005, the amendment consisting of the modification of the file of proceedings before the District Court of Decin on page 6 T 93 / 2002. Finally, by telefax registered on 19 September 2005, the Municipal Court in Prague was informed that the decision of the Minister of Justice of 5 August 2005 was replaced by Decision No 3352 / 2004-MO-M / 31 of 12 September 2005 extending the postponement of the extradition by the period until the end of the proceedings conducted by the Czech Police, the Service of Criminal Police and Investigation, the Department for the Detection of Organised Crime under the ČTS: ÚOOZ-148 / V7-2003-E2, or until the end of the possible execution of a prison sentence.
5. By application of 15 June 2005, the complainant requested release from extradition and offered a financial guarantee of CZK 100,000 and a written promise. By order of the Municipal Court in Prague No. NT 449 / 2004-264 of 9 September 2005, the offer of a cash guarantee was not accepted and the offer of a written promise was rejected and the application for release from extradition. By order of the Supreme Court in Prague No 1 To 43 / 2005-282 of 4 November 2005, the complainant's complaint was rejected as unfounded.
6. In a constitutional complaint, the complainant points out that 13 co-defendants are involved in the proceedings conducted by the District Court in Děčín under sp. zn. In respect of the new criminal prosecution, he contends that, in respect of eight of the nine actions complained of, he is prosecuted in the Federal Republic of Germany in proceedings for which he is in extradition custody. He is therefore concerned that he may be convicted of identical crime in parallel in the territory of both states. In doing so, this criminal prosecution should have been initiated "just to be sure 'if the criminal prosecution in the Federal Republic of Germany had been thwarted. At the same time, it is of the opinion that, since the start of the last criminal prosecution, the reasons for the extradition are no longer valid, and paradoxically, the authorities of the Federal Republic of Germany are waiting for it to be issued and the law enforcement authorities are waiting for the end of the criminal prosecution in the Federal Republic of Germany. Thus, the complainant has been in custody for over a year without any progress in its proceedings. He is prevented from continuing in extradition proceedings against him in the Federal Republic of Germany, even though he has agreed to his extradition in order to carry out it effectively. To the very fear of escape, he states that he married a Czech citizen a few years ago, with whom he now has a four-year-old daughter, whom he takes good care of, and does not intend to leave the Czech Republic. There have been proceedings before the District Court of Decin for several years without trying to escape because of it.
7. The Constitutional Court called on the parties to comment on a constitutional complaint. The Municipal Court in Prague, which was the only one who expressed its views, referred to the justification for its decision. It considers that, in view of the gravity of the criminal case for which the Federal Republic of Germany is seeking extradition, there is no doubt that there is a fear of escape and thus of obstruction of extradition. It points out that the complainant has agreed to the issue and the right to lodge a complaint against the decision to convert the binding prior to the extradition has expressly surrendered. If the complainant has not received the decision of the Minister of Justice authorising extradition, he shall contact the Ministry of Justice directly.
8. In his reply, the complainant stressed that he is now being prosecuted by the police authority for the identical activity for which he is in extradition custody. In that context, he repeatedly asked for the police authority to bring criminal proceedings against him for other acts for which he is also prosecuted in the Federal Republic of Germany. It considers that the binding of extradition actually replaces the binding of inquiry, but for which there is no legal reason, since the binding has been for more than 16 months.
9. At the request of the Constitutional Court, the Minister of Justice stated that, in view of the fact that the extradition was postponed due to a criminal prosecution which had not yet been terminated, no specific time limit on such postponement was considered. It does not consider that the legal regulation would be prejudicial to the fundamental rights of the person whose extradition is concerned, particularly in view of the fact that it has the right to apply for extradition. The postponement of extradition took place with regard to information on criminal proceedings against the complainant in the country.
10. At the request of the Constitutional Court, the District Court in Děčín stated that, under sp. zn. 6 T 93 / 2002, criminal proceedings are against the complainant and other persons in respect of criminal offences of a criminal organisation pursuant to § 163a (1) of the Criminal Law and illegal crossing of the state border pursuant to § 171a (1) and (2) (b) and (c) of the Criminal Act, consisting of the organisation of illegal transfer of persons to the Federal Republic of Germany. The complainant was wrongfully condemned by the judgment of the Děčín District Court of 15 November 2002 in respect of a single offence for imprisonment of eight months, suspended for a probationary period of 18 months. The complainant was in custody in this case from 26 June 2001 to 12 November 2002. The appeal against the judgment has not yet been decided in substance, and the forecast of the course of further proceedings has been given by that court within a period of months, in view of the fact that it is a criminal offence committed in 40 parts of the cases at hand by a total of 15 persons. The Constitutional Court recalls that these are not acts of substance and time identical to those for which it is prosecuted in the Federal Republic of Germany.
11. The police of the Czech Republic have informed the Constitutional Court that, in the case of further prosecution of the complainant, criminal proceedings have already been initiated by the complainant on 7 July 2003 as regards the suspicion of the offence of illegal crossing the state border pursuant to § 171a (1) and (2) (c) of the criminal law. Following the opening of the criminal proceedings in August 2005, the complainant was heard and five people had been questioned since February 2006 (of which two are based on the arrest warrant for which the complainant is in extradition custody), which had to be repeated. No further action has been taken.
12. II. The Chamber of the Constitutional Court concluded that there was no reason to reject a constitutional complaint pursuant to Article 43 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '). The substance of the constitutional complaint is the opposition of the complainant to the postponement of his extradition for criminal prosecution, which was decided by the Minister of Justice under Paragraph 400 (1) of the Code of Criminal Procedure. The Minister of Justice is formally part of the executive power, i.e. completely outside the judicial power, without having the necessary material conditions of the judicial authority in his capacity. According to these and subsequent provisions of the Code of Criminal Procedure, general courts shall not examine the validity of the duration of restrictions on personal freedom by means of a binding agreement for reasons other than the existence of a reason for extradition. Last but not least, the sub-constitutional law generally does not provide for a maximum possible duration of the binding, as is the case with Article 67 et seq. The Second Chamber of the Constitutional Court therefore concludes that the provisions of Paragraph 400 (1) of the Code of Criminal Procedure clearly contravene Articles 8 (1) and (5) of the Charter and Article 5 (1) (c) and (3) of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention').
13. Subsequently, the Second Chamber concluded that the legal limits of judicial review in the abbreviated extradition procedure for a request for release from custody, which exclude, inter alia, a review of all decisions following a decision to take custody pursuant to Article 398 (5) of the Criminal Code, including a decision to postpone extradition pursuant to Article 400 (1) of the Criminal Code, are expressly enshrined in Article 398 (6) of the Criminal Code. He therefore extended the proposal and the proposal to abolish Paragraph 398 (6) of the Criminal Code.
Recital of the essential parts of the observations of the parties
14. The President of the Chamber of Deputies stated, after recap of the legislative process, that the fundamental source of the extradition procedure is the European Convention on extradition negotiated on 13 December 1957 (No 549 / 1992 Coll.). Article 19 (1) provides for the possibility for the requested party to postpone the transfer of the requested person in order to prosecute him or her for an offence other than that for which extradition is sought. The promoter of the Bill No. 539 / 2004 Coll. implementing this provision justified the proposal for a new provision by the need for practice, and the postponement should not prevent the foreign authorities from terminating their criminal proceedings within a reasonable period of time. The purpose of this provision is to strike a balance between the fulfilment of international obligations, on the one hand, and the requirement to clarify crime and to punish the perpetrators of such acts committed in the Czech Republic on the other. The legislature acted in the belief that the adopted law was in accordance with the constitutional order and legal order of the Czech Republic. Finally, he left the Constitutional Court to assess the constitutionality of the law.
15. The President of the Senate stated that the new arrangements for the extradition procedure were designed as a nearly complete reception of the Czech Republic's obligations under international treaties and legal acts of the European Union in the field. The previous legislation did not differ in principle, but it did not do so without an explicit description of the postponement of extradition and the possibility of temporary surrender, which was contained only in Article 19 of the European extradition Convention. These contractual rules were directly implemented, even if the powers of the State authorities to decide by law were not explicitly established. The Municipal Court in Prague at that time ruled that the permission to postpone the transfer of the requested person was the responsibility of the Minister of Justice (sp. zn. 1 NT 120 / 92 in Sb.NS 96, 2: 85). Therefore, when discussing the amendment, the issue of completely new "European" legal instruments was accentuated, and the universal regulation was seen as a mere legislative editorial of the existing regulation, which, by its long-term use, is also proven in terms of functionality and constitutional conformity.
16. He stated that although the law does not require it, it can be assumed that the postponement of extradition takes place after an assessment and on the proposal of the competent law enforcement authorities which, unlike the Minister of Justice, are able to propose and assess the effectiveness of postponement. With reference to the case law of the Supreme Court and of the European Court of Human Rights, the decision of the Minister of Justice to postpone extradition does not consider that a decision to waive liberty constitutes a withdrawal of the case of the Court without its knowledge.
17. He stated that the reason for the extradition is undoubtedly to secure the extradition itself, and therefore the court is not bound by legal pleas in law when it takes custody under Paragraph 397 (3). The issue is to take place as quickly as possible and therefore there is no limit on the maximum duration of this link. However, if the postponement of extradition is not supported by the argument that the termination of domestic criminal proceedings is a finalisation of the case in principle, such postponement appears to be clearly contrary to the purpose of the international commitment to extradition. Therefore, the explanatory memorandum to Paragraph 400 (1) of the Code of Criminal Procedure stated that it should be cases where the time to end domestic criminal proceedings can be estimated very accurately, rather than within weeks rather than months. Here, too, such prosecution must be given priority over the prosecution of persons who are at large, as the European Court of Human Rights in the Wemhoff case against Germany (judgment No 2122 / 64 of 27 June 1968). The question is therefore whether, in problematic cases of postponement of extradition, it is not a matter of the lawfulness of the procedure rather than a conflict of law with constitutional order. Hypothetically, it can be considered that the decision of the Minister of Justice is revisable under the administrative justice regime.
18. He added that the extradition link was not absolute but subject to standard procedural guarantees and, in accordance with the Convention, it was required to check the continued legality of the waiver of liberty (Weeks judgment of 2 March 1987). It is therefore possible, according to Paragraph 396 (6) of the Criminal Code, to apply periodic requests for release after postponement of extradition and to propose the replacement of a link under Section 73 or Section 73a of the Criminal Code. The scheme of Hugo Grotia cars derere auto punire cannot be satisfactorily attributed to the absolute freedom of the person for whom it is issued, without an alternative to any other means of securing or alternative to the expectation of extradition (probably in cases of postponement of extradition due to completion of domestic criminal prosecution), although the alternative of residence of the required persons for freedom will not be very common.
19. Finally, he stated that the Senate of Parliament had discussed the amendment in the majority belief that it was consistent with constitutional order and international commitments. He left the Constitutional Court to examine the constitutionality of the contested provision.
20. Following the extension of the proposal, the President of the Chamber of Deputies again referred to the legislative process which resulted in the adoption of Act No. 539 / 2004 Coll., with the fact that the Institute of Short Editing Proceedings had already been introduced by Act No. 150 / 1997 Coll., and the subsequent amendment to Paragraph 398 (6) of the Criminal Code was treated as an exoneration, taking into account the existing problems associated with determining the jurisdiction of the court determining the requests and complaints of the person in custody. In doing so, he referred to Decisions sp. zn. III. ÚS 534 / 06 of 3 January 2007 (http: / / nalus.ujud.cz) and sp. zn. III. ÚS 383 / 04 (U 52 / 35 SbNU 615), with the fact that the obligation of extradition is a sign of the State's will to comply with international obligations. It also pointed out the legal conditions of the Institute of Short Issue and concluded that the legislature had acted in the belief that the adopted law was compatible with the constitutional order.
21. The President of the Senate, after the extension of the proposal, pointed out his observations on the original part of the proposal, stating that his observations were reasonably applicable. In relation to the statements at this remark level, he has newly admitted that the security of judicial review of the duration of the extradition link through more or less the competent provision of Section 73b (3) of the Criminal Code (see the normative reference in Section 398 (6) of the Penal Code) raises doubts as to the possibility of compliance with the applicant's constitutional requirements. He concluded that the Senate had discussed a bill containing a criticised provision within the limits and in the manner laid down by the Constitution in the majority belief that it was consistent with constitutional order and international commitments.
Conditions for the applicant's active legitimacy
22. The application was made in the context of the examination of a constitutional complaint by the Second Chamber of the Constitutional Court, which concluded that Article 400 (1) of the Criminal Code, in conjunction with Article 398 (6) of the Criminal Code, the application of which resulted in a fact which is the subject of a constitutional complaint, is contrary to Article 8 (1) and (5) of the Charter and Article 5 (1) (c) and (3) of the Convention. It is therefore an application made in accordance with Paragraph 64 (1) (c) of the Constitutional Court Act. The conditions of active legitimacy are therefore met.
Constitutional conformity of the legislative process
23. The Constitutional Court, in accordance with Article 68 (2) of the Law on the Constitutional Court, is required first to assess whether the contested legal provision has been adopted and issued within the limits of the constitutional competence and in a constitutional manner. However, the legislative process of the adoption of Act No. 539 / 2004 Coll., which added Section 400 (1) to the Code of Criminal Procedure and Section 398 (6) was found by the Constitutional Court to be constitutional in conformity with the provisions of Act No. 4 / 2004 Coll. In this conclusion, the Constitutional Court has no reason to change anything in the case at hand.
Dedication of the contested provision of the criminal order
24. Paragraph 398 (6) of the Criminal Code reads:
"Paragraphs 72 (2) and 73b (3) shall apply mutatis mutandis to proceedings for a person's request for release from custody. In order to decide on applications for release from custody, the court which has decided on the custody referred to in paragraph 5 shall be responsible. '.
Paragraph 400 (1) of the Criminal Code reads:
"If the presence of the person for whom extradition is sought is necessary in the Czech Republic for the purposes of the end of criminal prosecution or the execution of a custodial sentence in connection with a criminal offence other than that which is the subject of a request for extradition to a foreign State, the Minister of Justice may, after the decision to authorise extradition, postpone the extradition of that person to the requesting State. ';
Content compliance of the contested provisions with the constitutional order
25. The right to personal freedom is the leading place in the catalogue of fundamental rights and freedoms. This is due, inter alia, to the fact that, in the event of a breach, the reparation and satisfaction functions of legal liability can always have limited effect. For this reason, at constitutional order level, there is already an explicit restriction on the possibility of intervening in this right, which is further developed by the principles found by the jurisdiction in connection with theory. Limitation or even deprivation of liberty is only possible for the reasons and in the manner laid down by law (Article 8 of the Charter), and the application of the relevant legal provisions must in particular be restrained and only enter if their legitimate purpose cannot be otherwise achieved (see for example Klíma, K. et al.: Comments to the Constitution and the Charter. Pilsen: Publishing and publishing house Aleš Čenek, 2005. str. 652). This does not change the fact that the regulation of sub-constitutional law has a relatively broad scope for specifying the reasons and ways in which this constitutional right can be intervened (see for example Pavlíček. V. et al.: Constitution and constitutional order of the Czech Republic. Episode 2: Rights and Liberty. Praha: Linde Praha, 1995. str. 83). The fundamental principles of the restriction of personal freedom by binding (which must be reflected by the sub-constitutional right) include the necessity of imposing and holding a link only for a legitimate purpose, the proportionality between individual's personal freedom and the interest of society in limiting that freedom, the necessity of limiting personal freedom for the absence of another means to achieve the same objective, balancing the benefits of limiting personal freedom in view of the resulting losses, and finally the exclusive jurisdiction of the court to decide. It can therefore be concluded that the possibility of intervening in the right to personal freedom granted at the level of constitutional order is the nature of exceptions to the rule under which it is not permissible to intervene in such freedom. Exceptions must then always be interpreted in a strictly restrictive way.
26. The substance of the extradition is an act of judicial cooperation aimed at the surrender of a person by the State in whose territory he is located, namely the State of extradition, of the State of extradition, that is to say the State responsible for criminal prosecution, or in whose territory that person has been charged for the offence (cf. Rožíčka, M. Zezul, J.: Detention and detention in the Czech criminal process. Issue 1. Praha: C. H. Beck, 2004. str. 598). Judicial cooperation is based on the European Convention on Extradition, which the Czech Republic is bound by (Article 1 (2) of the Constitution). In accordance with the domestic legal tradition, the exercise of state sovereignty in extradition proceedings at the level of sub-constitutional law is divided between the court and the Minister of Justice, thus the principle of shared competence. The court decides whether there is any legal obstacle to extradition (cf. Jelinek, J. et al.: Criminal law of procedure. 4th updated edition. Praha: Eurolex Bohemia, 2005. str. 712; resolution of the Supreme Court sp. zn. Tcnu 17 / 95 in Sb.NS 1996, 5: 151). The subsequent decision of the Minister of Justice to permit or refuse to issue (§ 399 of the Code of Criminal Procedure) represents the political dimension of the expression of state sovereignty in the extraditional proceedings (cf. Madar, Z. et al.: Dictionary of Czech law. 3. Extended and substantially revised edition. II. part. Linde Praha, 2002. str. 1510). The decision of the Minister of Justice may result in "only 'the immediate extradition of the requested person to the requesting State or its release from custody (Section 399 (5) of the Criminal Code). In this context, it can be noted that the special rule of the extradition procedure on the basis of the European arrest warrant (§ 411 et seq. of the Code of Criminal Procedure) has abandoned the principle of shared jurisdiction of the court and the Minister of Justice, in favour of the Court's exclusive competence.
27. In the context of the extradition procedure following a decision on the admissibility of extradition (Section 397 of the Penal Code) or the qualified consent of the person concerned (Section 398 of the Penal Code), that person must be taken into extradition custody. Its purpose is to ensure the presence of this person for the next procedure in the extradition procedure or for the implementation of the issue (cf. in Šámal, P. et al.: Penal Code. Comment. Episode II, edition 5. Prague: C. H. Beck 2005. p. 2564-5), as other forms of demonstration before the competent judicial authority of the requesting State for a reasonable suspicion of the commission of a criminal offence [Article 5 (1) (c) of the Convention]. From the point of view of the wording of the sub-constitutional law as well as under the theory relating to it, it is therefore a binding link which is implemented by the international obligations of the State, given in particular in accordance with Article 1 of the European Convention on Extradition (cf. Jelinek, J. et al.: Criminal law and the Code of Criminal Procedure with remarks and case law and regulations related to the full text. 24th updated issue as of 1.10.2006. Linde Praha: 2006. str. 848). In this context, the decision-making activities of the general courts do not provide for the possibility of replacing the extradition link with another measure (resolution of the Supreme Court in Prague sp. zn. 1 To 41 / 95, in Sb.NS 1996, 5: 158). It is also clear from the explanatory memorandum to the draft law No. 539 / 2004 Coll. that, contrary to the extradition link, (only) the preliminary link (according to § 396 of the Code of Criminal Procedure) can be replaced by a guarantee within the meaning of § 73 and 73a of the Code of Criminal Procedure (p. 59).
28. The regulation of the sub-constitutional right in the case of restrictions on personal freedom by binding in the context of extradition proceedings is not perfect. No provision is made for a solution to the competition of provisional extradition, i.e. ties before the court's decision on the admissibility of extradition, i.e. ties after the court's decision on the admissibility of extradition on the one hand, and, on the other hand, other restrictions on the personal freedom of the persons concerned, i.e. ties in the framework of criminal proceedings conducted within the territory of the country, the execution of a custodial sentence or expulsion sentence, as well as extradition links to other extradition requests or transfer links based on a European arrest warrant (cf. Šámal, P. et al and Col.: Penal Code. Comment. Episode II, edition 5. Praha: C. H. Beck, 2005. str. 2564, paragraph 6). The other fate of the restriction of personal freedom by binding is linked to the procedure in which the binding was imposed (cf. Jelinek, J., Sovák, Z.: Criminal law and the Code of Criminal Procedure with notes and case law, the law on the judiciary in youth matters, with notes and regulations in connection. 20. Updated issue as of 1 January 2004. Linde Praha, str. 53; virtually Šámal, P., Púry, F., Rizman, S.: Criminal Act. Comment. Part I. 6th, completed and revised edition. Praha: C. H. Beck, 2004. str. 336 point 2; and the caselaw of the general courts mentioned there). Thus, the calculation of the postponement period for domestic prosecution is not solved, which has a practical consequence, in particular, in a situation where extradition (and conviction abroad) does not ultimately take place for example for the withdrawal of the extradition request justified by subsequent domestic criminal prosecution for the same act. Finally, at the level of sub-constitutional law, the uninsurable time limit of extradition is not even addressed, as is the case with the "investigative" link under Paragraph 71 (8) of the Criminal Code.
29. Similar imperfections can be seen in defining (not) what is the legal and political aspect of extraditional management, or in reconciling the legal solution of competent borders with constitutional order. It is precisely this division that is relevant to the scope of the jurisdiction of the court and the Minister of Justice, on the one hand, and the constitutionally justified restriction of personal freedom by binding the other. The case under examination concerns the definition of the powers to defer extradition. It is, in other words, whether the fact that the person in question is being prosecuted within the territory of the country (other) is an obstacle to extradition which is purely legal or political.
30. As regards the competence of the Minister of Justice in the extradition proceedings, it should be stressed in this context that the Minister of Justice is an executive body which does not meet the criteria of the Court of Justice in the material sense (cf. European Court of Human Rights judgments in Bouamar v Belgium, No 9106 / 80 of 29 February 1988, in the case Lauko v Slovak Republic, No 26138 / 95 of 2 September 1998, etc.). In the context of the regulation of sub-constitutional law, there is no possibility of reviewing any decision of the Minister of Justice in criminal proceedings by the courts (judgment of the Supreme Court sp. zn. 11 Tz 117 / 2005 of 22 August 2005). It is also excluded from the nature of the case supported by Article 4 of the Administrative Code that the decision of the Minister of Justice in criminal proceedings may be subject to review by the Administrative Court. This deficit is not problematic at all if the Minister of Justice makes decisions of a political nature which are not capable of interfering with the rights of others. Thus, in the extradition proceedings, there is no problematic decision to authorise extradition, which results in extradition in accordance with the judgment of the court, as well as the decision to refuse extradition, which results in release from extradition. However, that deficit is constitutionally inadmissible in a situation where the Minister of Justice (together) is to decide on rights and, more importantly, on fundamental rights and freedoms (cf. Albert and Le Compte, judgment of the European Court of Human Rights, No 7299 / 75 and No 7496 / 76 of 10 February 1983, etc.), even if it were to decide on a de facto extension of extradition so as not to prevent foreign authorities from bringing an end to their criminal proceedings within a reasonable time, i.e. in accordance with the explanatory report (p. 60).
31. Article 8 (5) of the Charter (Article 5 (4) of the Convention) implies not only the exclusive jurisdiction of the Court of First Instance to rule on restrictions on personal freedom but also on its duration. The court is therefore entitled to decide not only on the necessity of imposing a binding on a legitimate purpose but also on the justification for its duration. The issue link is subject to exactly the same criteria as any other restriction on personal freedom, as mentioned above. Thus, even the binding must always be effectively controlled by an independent court (cf. sp. zn. Pl. ÚS 29 / 98, N 83 / 14 SbNU 195; 138 / 1999 Coll.). This control is generally questionable in the case of extradition at the level of sub-constitutional law.
32. Paragraph 398 (6) of the first sentence of the Code of Criminal Procedure, governing a request for release from custody, cannot be regarded as a means of effective judicial control, since it expressly limits the review to the fact that the cause of the arrest has not been lost, or whether it is clear that, in view of the person accused and the circumstances of the criminal prosecution, it will not lead to the imposition of an unconditional custodial sentence, and that the defendant did not obstruct the prosecution (Paragraph 72 (2) of the Code of Criminal Procedure) or the possibility of replacing the detention by a guarantee, a promise, supervision by a probation officer or a cash guarantee (§ 73b (3). It should be added that the latter goes against the principle of the obligation of extradition as described above. Similarly, considering whether a person in extradition custody is facing a conditional or unconditional prison sentence is virtually impossible because it depends on the performance of justice abroad and not in the country. Therefore, the only criterion expressly resulting from the law which the court is entitled to expressly examine the request for release from custody is the existence of a ground for extradition. The doctrine (Šámal, P. et al.: Code of Penal Procedure) also reached a similar conclusion. Comment. Episode II, edition 5. Praha: C. H. Beck, 2005. str. 2561 - point 12), which is alarming in the absence of a legal definition of the maximum duration as mentioned above. This legislation falls entirely within the concept that the role of the court is limited to reviewing the formal requirements of the request for extradition, or its continued duration, and the review of the existence of legal obstacles to extradition, as defined in Section 393 of the Penal Code, with the Minister of Justice deciding on all other issues in fact. Such a limitation of judicial power at the expense of executive power cannot be considered necessary, nor is it appropriate, in the light of the principle of division of power and the resulting exclusive jurisdiction of the court, to decide on the limitation of the individual's personal freedom. In other words, it is not possible to impose high claims on decisions on the admissibility of extradition (cf. sp. zn. III. ÚS 534 / 06) and not on decisions that follow them.
33. It is clear from the text of Paragraph 400 (1) of the Code of Criminal Procedure that, in competition with the criminal prosecution for which the extradition is to be carried out, it is within the jurisdiction of the Minister of Justice (and not of the court) to decide which of the above-mentioned processes is the priority in the case of a criminal offence other than an extradition request or the execution of a custodial sentence. This legislation follows from the European extradition Convention and has a rational core in that the requested State cannot be complicated or even prevented from exercising its own criminal justice as a result of the extradition request.
34. At the level of sub-constitutional law, it is not regulated whether and who should initiate such a decision by the Minister of Justice, and it is therefore formally permissible for the Minister to take a decision without any initiative, as seems to have happened in the case which was the basis for the proposal on this matter. Similarly, there is no regulation at the level of the sub-constitutional law on which criteria the Minister of Justice should be governed, nor does it result from the explanatory memorandum to Act No 539 / 2004 Coll. The Minister of Justice is therefore given a libel at the level of sub-constitutional law as to whether it is essential for other criminal proceedings against a requested person in the country, despite a request for extradition in person in the country. In other words, the Minister of Justice is entitled to decide on this issue, despite all the law enforcement authorities in charge of such criminal proceedings, including the court and prosecutors, who, unlike the Minister of Justice, are constitutionally called upon to defend the interests of the State in criminal proceedings. It should also be seen that both the Minister of Justice deciding on the postponement of extradition and the court deciding on the admissibility of extradition before that may for the first time find out about the specific context of the issue after the matter has been referred to him. Even the Minister of Justice does not have or can not have detailed information on who is being prosecuted in the country, how many there are and what stage they are at. This is due, inter alia, to the fact that the police authorities carrying out criminal proceedings do not fall within his department. It is therefore a similar situation as when the law enforcement authorities, in accordance with established practice, in particular for the purpose of joint proceedings within the meaning of Section 20 of the Criminal Code and for the possible imposition of total or aggregate penalties under Section 35 of the Criminal Act, determine whether other criminal proceedings are being prosecuted against the defendant, first of all by asking the defendant himself. In this context, it is possible to refer again to the rules of the European Arrest Warrant, where, pursuant to Paragraph 411 (9) of the Criminal Code, this is exclusively a court which also decides to postpone the transfer to the requesting State "if this is necessary to fulfil the purpose of prosecution or the execution of a custodial sentence imposed on the person to be transferred for an offence other than that referred to in the European Arrest Warrant '.
35. The decision of the Minister of Justice to postpone the extradition is in fact derogated or the purpose of the extradition in favour of the postponement. As a result, the exposition procedure is effectively suspended until the end of any other or other criminal proceedings or certain execution of a custodial sentence.
36. Since extradition cannot take place during the period of postponement, there cannot be a legitimate reason for restricting personal liberty by binding pursuant to Paragraph 397 (3) of the Penal Code, which has been decided by the Court. The issue and duration cannot be justified by anything other than the execution of the issue (see, for example, the judgment of the European Court of Human Rights in the Chahal case against the United Kingdom, Case No 22414 / 93 of 15 November 1996, Case No 48321 / 99 Slivenko v Latvia of 9 October 2003 and Case No 60538 / 00 Singh v Czech Republic of 25 January 2005). Therefore, although the postponement of extradition is a legitimate step under Article 19 (1) of the European Convention on Extradition, as a result, the reason for the restriction of personal freedom by means of extradition, which is undoubtedly the implementation of an extradition, even though, in a certain (suspended) form, the reason for extradition is still given. Finally, at the level of sub-constitutional law, the termination or interruption of extradition custody is not even dealt with by reason of the regulation on the execution of a custodial sentence within the territory of the country as mentioned above.
37. In assessing the postponement of extradition, it should also be considered that, while the need for the presence of a prosecuted person may be given in the context of another criminal prosecution in the country, which may not necessarily be a link in the form of a restriction on that person, or that the restriction of personal freedom may be replaced by another institution in the criminal prosecution in the country. If there is a reason for the prosecution to be brought in custody for the proper conduct of this other criminal prosecution, it is therefore constitutionally necessary for the court to decide in the relevant proceedings in accordance with Paragraph 67 et seq. of the Code of Criminal Procedure. From a constitutional point of view, it is not possible for the court's decision, albeit not prima facie, to be replaced by the Minister of Justice, as a representative of the executive, who has limited powers in criminal proceedings, to be nota bene, unless such a decision is subject to judicial control. In so doing, whoever is concerned by this decision, namely the person given, will not even know about the decision, and therefore cannot, in fact, oppose it even in a request for release from custody under Paragraph 398 (6) of the Code of Criminal Procedure as the only means of procedure it has. This is due to the fact that the Minister of Justice, pursuant to Paragraph 12 (1) of the Code of Criminal Procedure, is not an authority acting in criminal proceedings and is therefore not subject to the obligation to deliver its decisions, generally defined in § 62 et seq of the Code of Criminal Procedure. Article 2 (3) The Constitution of the Czech Republic cannot therefore be blamed to the Minister of Justice for only informing the court of its decision in the case under consideration. It is therefore not a situation comparable to the State's Attorney's ruling on the continued duration of the detention pursuant to § 71 (2) and (3) of the Penal Code, which is possible from a constitutional point of view (cf. Article 5 (4) of the Convention) in the light of the immediate possibility of judicial review (cf. In the current situation, however, the court is not entitled to review the minister's decision ex officio nor is it obliged to service the decision to the person in custody and, finally, it is not entitled to review the decision even in the context of a request for release from custody by the latter.
38. The Constitutional Court takes the view that the issues raised above in relation to competition from extraditional proceedings with other criminal proceedings are extremely legal issues, however they play their part in protecting the interests of a state of a purely political nature. However, their legal nature is due to the fact that political representation within the framework of legislative action has clearly defined the general conditions for the functioning of criminal proceedings and related issues, and has fully entrusted decision-making in accordance with the constitutional order of jurisdiction. Indeed, this is the case with the European Arrest Warrant, as mentioned above.
39. It is also necessary to consider whether, despite the deficits mentioned above, it is not possible to overcome the situation through a constitutional interpretation of the issue. In this context, it should also be noted that Article 19 (1) of the European Convention on Extradition does not explicitly address who is to decide on the postponement of extradition and with what national consequences and does not even know the principle of shared competence in the extradition procedure. In particular, in this context, the Constitutional Court did not fail to see that, after the entry into force of the European extradition Convention, there was no national regulation to implement it and therefore the Convention was applied directly by the general courts. In the absence of specific implementing legislation, it was therefore within the competence of the general courts to interpret the European Convention on Extradition in accordance with all constitutional principles, since they were not as closely bound by the law as now (Article 2 (3) of the Constitution of the Czech Republic). No later than the resolution of the Municipal Court in Prague sp. zn. 1 NT 120 / 92 (in Sb.NS 1996, 2: 85; Rt 12 / 96), a practice has been introduced to decide on the postponement of extradition without any review by the Court of Justice. This practice of general courts can be seen as an inadmissible self-restraint of general courts and as a de facto resignation of own powers with consequences not only in the area of division of power, but also in the area of fundamental rights and freedoms (see Article 4 of the Constitution of the Czech Republic). Nor can this change the fact that this practice may have been procedural economic in certain cases. The current legislation of the sub-constitutional law, which, in the procedure for the application for release from extradition to freedom, reserves only the control of the existence of an extraditional ground, as mentioned above, that is to say, only petrified the constitutionally unconformal interpretation of the European Convention on Extradition, as previously reached by the general courts.
40. It might be possible to deduce the implicit obligation of the Minister of Justice to serve the decision on the postponement of extradition to the person concerned, as well as the duty of the court to review that decision in the context of a request for release from custody. In this context, however, it is important that the only procedural means of initiating the judicial review of the custody is precisely the request for release. The subject matter of this application is only the question of whether the person concerned should continue to be held in extradition custody or be released from such detention. The Court of First Instance is not at all allowed to decide anything else in this application. Therefore, this framework does not at all include the possibility that the Court of First Instance, in its proceedings on this request, would deal with the legality of the decision of the Minister of Justice to defer extradition and, where appropriate, to revoke that decision. The consequence that, in the event of illegality, the decision of the Minister of Justice to postpone extradition would be released from freedom would not be consistent with constitutional order. As a result, it would be a denial of Article 1 (2) of the Constitution of the Czech Republic in conjunction with the European Convention on Extradition. Such a consequence, however, is not even entitled to be inferred from the Constitutional Court as one of the state bodies which is also obliged to maintain that constitutional context. Indeed, such a review of the legality of the postponement decision should not logically result in such a consequence, since, as a result of the possible illegality of the postponement decision, the extradition is to be carried out without delay, with which the binding extradition is not in conflict.
41. In this situation, the subconstitutional law in accordance with Article 2 (3) The Constitution of the Czech Republic does not expressly allow the General Courts to examine whether the reason for the postponement has been given and continues to exist, even in the light of the principle of proportionality between the interest of the person concerned in personal freedom, the interest of the requesting State in carrying out criminal proceedings and the domestic interest in carrying out criminal proceedings and the execution of sentences. These questions are solely entrusted to the Minister of Justice as the executive body, as has also been mentioned above. At the same time, the General Courts themselves did not initiate a review of the constitutionality of the current legislation, and this explicit regulation is therefore clearly satisfactory to them. It can therefore be concluded that the general courts have wasted the possibility of a constitutional interpretation of the European Convention on Extradition and the legislator, by adopting Law No 539 / 2004 Coll. has prevented the Constitutional Court from correcting anything about this situation using interpretative methods.
42. The Constitutional Court therefore notes that, pursuant to Article 8 (5) of the Charter, it is not possible for the Minister of Justice, as the executive body, to decide on the limitation of the individual's personal freedom and on the continuation of the decision without subsequently being subject to review by the court or to the proposal of the person concerned. In view of its consequences, the decision to postpone extradition is nothing but a decision on the continued duration of extradition (that is to say, a decision by the Prosecutor on the continued duration of the detention pursuant to § 71 (3) and (4) of the Penal Code), a note bene for reasons other than extradition. It must therefore be a decision falling under the effective control of the court.
43. For the reasons thus set out, the Constitutional Court, pursuant to Paragraph 70 (1) of the Law on the Constitutional Court, annulled the provisions of Section 398 (6) of the First Code of Criminal Procedure and of Section 400 (1) of the Criminal Code, with effect from 31 December 2008, in order to enable the legislator to better adjust this issue in the meantime. In accordance with the principle of minimisation of the interventions, pursuant to Paragraph 70 (2) of the Constitutional Court Act, the application for annulment of Paragraph 398 (6) of the Second Code of Criminal Procedure was rejected since the above grounds for annulment were not found in that part of the provision in question.
44. Finally, the Constitutional Court points out once again that the regulation of the sub-constitutional law relating to extradition is otherwise imperfect and requires significantly more attentive care by the legislator. This imperfection is that everything essential (maximum duration limit, initiative on the activity of the Minister of Justice etc.) is not dealt with by legislation, nor is the systemic context (relationship of extradition to custody in the context of criminal prosecution and enforcement, etc.) discussed above (in particular paragraphs 28 and 36). That is why the Constitutional Court calls on the legislator to implement a more comprehensive regulation of this issue as soon as possible, which substantially affects the individual's personal freedom and its fundamental procedural rights.
45. According to Article 44 (2) of the Constitutional Court Act, oral proceedings were abandoned as they could not be expected to further clarify the case and both parties explicitly agreed to this procedure.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 90 / 2008 Coll., on the application for annulment of Sections 400 (1) and 398 (6) of Act No 141 / 1961 Coll., on criminal proceedings of the judicial (criminal order), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.03.2008 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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