The Constitutional Court found no 77 / 2001 Coll.
The Constitutional Court found of 31 January 2001 on the application for annulment of Article 44 (2) of Act No. 141 / 1961 Coll., on criminal proceedings of the judicial (criminal order), as amended
Valid
The Constitutional Tribunal found
Text versions:
23.02.2001
77
FIND
The Constitutional Court
On behalf of the Czech Republic
On 31 January 2001 the Constitutional Court decided in plenary on the application for annulment of Paragraph 44 (2) of Act No. 141 / 1961 Coll., on criminal proceedings of the Court (Criminal Code), as amended,
as follows:
Paragraph 44 (2) of Act No. 141 / 1961 Coll., on Criminal Procedure of the Court (Criminal Code), as amended, shall be deleted from the date of the declaration of the finding in the Collection of Laws.
Reasons
The Regional Court in Prague did not allow, by its resolution in the criminal case of the defendant L. Š. Under § 44 (2) of Act No. 141 / 1961 Coll., on criminal proceedings of the court (criminal order), participation of the injured - Commercial banks, Banks Bohemia, M. Z., Ing. R. V. and the complainant N. K. - at the main trial.
In the preamble to this order, the Regional Court in Prague stated in particular that the Regional Prosecutor in Prague has filed an indictment against the four crimes of fraud pursuant to § 250 (1) and (4) of the penal law, which he should have committed - inter alia - by borrowing from the complainant on 25 March 1993 an amount of CZK 25 000 against the promise to secure a loan by stopping the land from it in the cadastral territory of Karlovy Vary. However, this loan was not secured and the land was later pawned by Agrodice, a. s.
However, since the order of the Regional Commercial Court in Prague of 8.11.1996 sp. zn. 92 K 39 / 96 in conjunction with the order of the Supreme Court in Prague of 2.4.1997 sp. zn. 4 Ko 396 / 96 declared bankruptcy on the property of the debtor L. Š. and in the bankruptcy proceedings they applied for all claims in the position of bankruptcy creditors, the Regional Court in Prague did not allow their participation in the main trial in respect of § 14 of Act No. 328 / 1991 Coll., on bankruptcy and settlement, as amended. [Note: Paragraph 14 (1) (c) of this Act on the declaration of bankruptcy implies, inter alia, that proceedings concerning claims relating to assets belonging to the bankruptcy proceedings or to be satisfied by such assets of which the insolvency practitioner is a participant are suspended, except in criminal proceedings "in which, however, no decision on compensation can be made '].
In a constitutional complaint against that resolution, the complainant argued in particular that it infringed its constitutional rights under Articles 36 (1), 37 (3) and 38 (2) of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Article 1 of the Constitution of the Czech Republic (" the Constitution'). It was alleged that "as a result of the provisions of Paragraph 44 (2) of the Code of Criminal Procedure ', which contravenes those provisions of the Charter and of the Constitution.
First of all, the complainant referred to the provisions of Paragraph 43 (1) of the Code of Criminal Procedure, according to which those who have been harmed by a criminal offence caused by property, moral or other damage (damaged) have the right to make suggestions to supplement the evidence, to consult the files, to attend the main trial and to take part in the public hearing of the appeal and to comment on the case before the end of the proceedings. According to paragraph 2 of the same provision, the injured party is also entitled to propose that the court in the judgment condemning the defendant impose an obligation to compensate for the damage. According to the (contested) provision of Paragraph 44 (2) of the Code of Criminal Procedure in proceedings concerning criminal offences falling within the jurisdiction of the Regional Court, the court which is injured shall decide on the presence of the injured party according to the nature of the case in question.
No provision in the Code of Criminal Procedure can be ascertained as to why the law "allows the court to decide, in any way and in any way, whether to admit or not to admit, without any pre-established criteria for such a decision, to take any action" (Section 141 (2) of the Code of Criminal Procedure). The complainant also sees a degree of inconsistency in the contested provision, since the possibility of not accepting the presence of the injured party relates only to proceedings before the Regional Court after the prosecution has been brought, while the rights of the injured party cannot be restricted until the prosecution has been brought.
The complainant admits that, pursuant to Article 14 (1) (c) of the bankruptcy and settlement law (note: which the Regional Court has called in the order under appeal) after the declaration of bankruptcy, it is not possible to decide on damages in criminal proceedings, but "that restriction does not in any way affect other rights of the injured party under Article 43 (1) of the Code of Criminal Procedure which remain unaffected by such a decision '. The rights under this provision are for any injured party, whether or not he can claim compensation. Thus, even if the injured party does not make a claim for compensation, the court must be given the full procedural possibility (cf. ECR II / 62, R 8 / 74 ECR).
The contested order of the Regional Court states that there are no compelling reasons for which the damage to the case in question would not be able to exercise the rights set out in Paragraph 43 (1) of the Code of Criminal Procedure, in addition to the situation where the law excludes that decision from the possibility of a review by a court of higher degree on the basis of an ordinary appeal.
Therefore, the complainant proposed that the resolution of the Regional Court in Prague be annulled and at the same time proposed the annulment of Article 44 (2) of Act No. 141 / 1961 Coll., as amended.
In accordance with Article 74 of Act No 182 / 1993 Coll., on the Constitutional Court, a motion for the annulment of a law or other law, or its individual provisions, may be filed together with a constitutional complaint, the application of which is the subject of a constitutional complaint if, according to the complainant's claim, they are contrary to a constitutional law or an international treaty pursuant to Article 10 of the Constitution or, where applicable, to another law.
Since the complainant, together with the constitutional complaint, also lodged a motion for annulment of the provisions of Paragraph 44 (2) of the Code of Criminal Procedure under this legal provision, and that the application of that provision resulted in a fact which is the subject of a constitutional complaint, the Constitutional Court, pursuant to Article 78 (1) of Law No 182 / 1993, suspended the procedure for the annulment of that provision and forwarded the application to the plenary of the Constitutional Court for a decision under Article 87 (1) (a) of the Constitution.
The application for annulment of the legal provision was submitted by a party to the proceedings, which, pursuant to Article 69 (1) of Act No. 182 / 1993 Coll. The Chamber of Deputies of the Parliament of the Czech Republic, which stated that according to Paragraph 44 (2) of the Code of Criminal Procedure, the Regional Court - in practice - should not allow the injured party to be brought to proceedings for an important reason only, for example if it is necessary in order to protect classified information or if it is a matter in which hundreds or thousands of persons may be harmed, and if respect for all procedural rights of the injured persons could unduly complicate or thwart the conduct of the entire criminal proceedings. The Government is also aware of certain problems with the application of that provision in practice, as it proposed, in its draft amendment to the Code of Criminal Procedure, that the restriction relating to the involvement of the injured party in matters discussed at first instance by the Regional Court be lifted. According to that proposal, that restriction could only be decided on in cases with an exceptionally high number of victims where such damage could only be exercised by a limited number of joint agents. Therefore, the Chamber of Deputies admits that the contested provision "requires certain amendments', which should, however, be implemented only after the adoption of the corresponding new legislation on this issue.
Paragraph 44 (2) of the Code of Criminal Procedure has been approved by a necessary majority of the Members of the legislature, the law has been signed by the relevant constitutional authorities and has been duly declared in the Collection of Laws.
Finally, the Chamber of Deputies states that it is up to the Constitutional Court to examine its constitutionality and to give a decision on this in the context of the application for annulment.
Pursuant to Articles 48 (2) and 49 (1) of Act No 182 / 1993 Coll., the Constitutional Court asked the Ministry of Justice to comment on the proposal. The Ministry stated that the complainant did not further justify its proposal to abolish Paragraph 44 (2) of the Criminal Code, so that "this general claim can only be answered by the fact that Article 44 (2) of the Criminal Code does not contradict the articles of the Charter and does not therefore contradict Article 1 of the Constitution." Addendum is part of the criminal proceedings and the defendant's claim against the defendant for compensation for the crime. The nature of the adhesion procedure is that the injured party may claim compensation in criminal proceedings and the court may grant or refer the injured party to civil proceedings, but not to dismiss the claim. Thus, if the court pursuant to Paragraph 44 (2) of the Criminal Code decides to take part in the injured party in a negative way, the injured party may no longer appear as a party in further proceedings, but this does not prevent him from claiming compensation in civil or other proceedings. In doing so, the injured party is still fully protected by the right to claim his right under the procedure laid down by the independent and impartial court under Article 36 of the Charter and the equality of the parties (Article 37 (3) of the Charter) and the principle of the public (Article 38 (2) of the Charter). Therefore, the Ministry of Justice considers that the application for annulment of Paragraph 44 (2) of the Criminal Code is not justified.
Even before the Constitutional Court dealt with the proposal formically, it focused on the question of whether all the assumptions were given in terms of formal terms.
The Constitutional Court found that, in the present case, a reason was given to initiate the procedure for the so-called specific control of standards within the meaning of Article 64 (1) (d), in conjunction with the provision of § 74 of Act No 182 / 1993 Coll., since the contested legal provision was actually applied by the general courts in the present case, thus the application of which resulted in a constitutional complaint. The Constitutional Court also found that in the present case the law had been passed before the Constitution came into force and that it was therefore not for it to examine the constitutionality of the procedure of its formation and observance of the legislature, but only its content compliance with the current constitutional order (cf. Resolution of the Constitutional Court sp. zn. Pl. ÚS 5 / 98 Collection of finds and resolutions of the Constitutional Court of the Czech Republic, Sv. 14, p. 309 or the Constitutional Court of First Instance No. 261 / 2000 Coll.).
The Constitutional Court finds that there is nothing to prevent it from discussing and deciding the substance of the matter.
1. The applicant submits that the contested provision of Paragraph 44 (2) of the Criminal Code is contrary to Article 36 (1), Article 37 (3), Article 38 (2) of the Charter and Article 1 of the Constitution.
Article 36 (1) The Charter provides that each person may seek the law laid down in accordance with the procedure of his or her right before an independent and impartial court and, in specified cases, with another authority. Article 37 (3) of the Charter provides that all parties are equal in the proceedings. Article 38 (2) The Charter states that everyone has the right to have his case dealt with publicly, without undue delay and in his presence, and to be able to comment on all the evidence carried out. The public may be excluded only in cases provided for by law. Article 1 of the Constitution states that the Czech Republic is a sovereign, united and democratic rule of law, based on respect for the rights and freedoms of man and citizen.
The Constitutional Court therefore focused on the question whether the contested provision of Paragraph 44 (2) of the Penal Code is not contrary to the quoted constitutional courts. In the context of this, he considered it necessary to address - at least in fundamental terms - the question of the position of the injured party in criminal proceedings and the purpose of the contested provision of Paragraph 44 (2) of the Code of Criminal Procedure.
2. A) In this regard, the Constitutional Court notes, first of all, that the contested provision allows the court to rule on the participation of the injured party in criminal proceedings within the jurisdiction of the Regional Court according to the nature of the present case. In doing so, criminal offences belonging to the jurisdiction of the Regional Court are defined by the Code of Criminal Procedure (Paragraph 17) as those offences for which the law provides for a custodial sentence of at least five years or for which an exceptional penalty may be imposed. On the offence of terror, corruption, sabotage and crimes under the law of peace protection, the regional court shall, at first instance, even if the lower limit is lower. It is therefore clear that the proceedings for criminal offences belonging to the jurisdiction of the Regional Court concern those offences which can be characterised by a higher degree of social hazard. No complaint is admissible against the decision not to admit the injured party to criminal proceedings (cf. § 141 (2) of the Code of Criminal Procedure and contrario).
B) The Constitutional Court has also addressed - taking into account the contested provisions of the Code of Criminal Procedure - the situation of the injured party in criminal proceedings. In this respect, in particular, the provision of Paragraph 43 of the Penal Code, which defines the victim as being a person who has been harmed by a criminal offence, is determined by property, moral or other damage. The injured party shall have the right to make suggestions to supplement the evidence, to examine the files, to attend the main trial and to attend the public hearing on appeal and to comment on the matter before the end of the proceedings. An injured person who, under the law, has a claim against the accused to compensation for the damage caused to him by the offence is also entitled to propose that the court, in a condemning judgment, impose an obligation on the defendant to compensate for the damage. In addition, the prosecution of certain taxiously mentioned acts may be initiated and prosecuted only with the consent of the injured party, and the consent of the injured person to the prosecution may be withdrawn at any time, until the Court of Appeal has taken up its final deliberations (Section 163a of the Penal Code).
C) Therefore, the concept of criminal proceedings in the Czech Republic - as regards the status of the injured party - is based on the fact that the injured party is a separate party to proceedings with relatively broad procedural rights (§ 12 (6) of the Code of Criminal Procedure). In doing so, it should be borne in mind that the injured person does not lose his / her position in criminal proceedings by being fully compensated (e.g. before or in the course of the prosecution), and the concept of the injured person is therefore wider than that of an adhesion body, since it includes a victim who is not entitled to claim compensation in criminal proceedings. Thus, although the adhesion procedure in which the claim for damages is discussed is part of and blends with the criminal proceedings (cf. Šámal / Král / Baxter / Púry: Penal Rules - commentary, 1st paragraph, C. H. Beck, 1995, p. 171 et seq.), it is possible to conclude that the procedural rights of the injured party, as parties to the criminal proceedings, are not reduced solely to the right to compensation.
The comment on the contested provision of the Code of Criminal Procedure (cited above, p. 185) states that the grounds enabling the Regional Court to decide not to admit the injured - and hence the meaning of the provision of Paragraph 44 (2) of the Code of Criminal Procedure - may consist, for example, of the fact that State Secrets are being dealt with in the proceedings, are serious, complex and extensive criminal cases, where the decision on compensation may go beyond the purpose of the prosecution or where the Regional Court may have difficulty in delivering, in view of the large number of victims who are natural persons of foreign nationals or legal persons, which could be a breach of the principle of speed of procedure, etc.).
2. On the basis of the above considerations, the Constitutional Court reached the following conclusions.
A) The Constitutional Court based its reasoning primarily on the fact that the status of the injured party is different from that of the county court in proceedings concerning criminal offences belonging to the regional court. If, in the first case, the Regional Court has the possibility, under the provisions of Paragraph 44 (2) of the Criminal Code, to decide on the participation of the injured party in criminal proceedings "according to the nature of the case ', the Criminal Code does not confer such jurisdiction on the court in criminal proceedings under the jurisdiction of the District Court. The difference in the position of the injured party in the proceedings before those courts - in this respect - is not considered justified and meaningful by the Constitutional Court, since, as in the proceedings before the Regional Court, the situation may also arise in the proceedings before the District Court, for example, in the case of matters of state secrecy, is a serious, complex and extensive criminal case, where the decision on compensation may go beyond the purpose of the prosecution or where the court may have difficulties in delivering, in view of the large number of victims who are natural or legal persons who are natural persons or persons who are natural persons who are natural persons who are legal persons who might be in breach of the principle of speed of proceedings. In particular, for this reason, the Constitutional Court has concluded that the contested provision is unconstitutional, as it results in an unfounded inequality of the parties in the exercise of their rights in the proceedings before the District and Beauty Courts. This infringes Articles 1 and 3 (1) of the Charter in conjunction with Article 36 (1) of the Charter.
B) The Constitutional Court also assumed that the injured person is, under the law of the criminal proceedings of the Czech Republic, a separate party to proceedings with relatively extensive procedural rights which are not limited to the right to compensation. It follows that it has the right to take part in the criminal proceedings and to exercise within it the procedural rights defined by the Code of Criminal Procedure. Paragraph 44 (2) of the Penal Code gives the Regional Court the right to take a decision "according to the nature of the present case." Although, in a particular case, there may be a situation where the participation of the injured (injured) in criminal proceedings may indeed jeopardise its own meaning and lead to negative consequences, it is not possible - from a constitutional point of view - to fully accept a legal regulation that allows the Regional Court to rule on the inadmissibility of the participation of the injured person in criminal proceedings even in cases where none of the purposes of criminal proceedings can be compromised. It is also impossible to overlook the fact that there is no possibility of lodging a complaint against the order which the Regional Court is entitled to rule against the injured party, and that the order is therefore unverifiable.
That too - in the view of the Constitutional Court - makes the contested provision of the Code of Criminal Procedure unconstitutional.
If, pursuant to Article 1 of the Constitution, the Czech Republic is a democratic rule of law, this means, inter alia, that its legal order is to be consistent with the principle of predictability of the consequences of the law and its certainty and clarity. Only such a law, for which its consequences can be clearly foreseen, corresponds to that concept of a democratic rule of law. However, in the case of the provision of Paragraph 44 (2) of the Criminal Code, compliance with the principle of predictability of the law is not indisputable, since that provision allows the Regional Court to decide not to allow the involvement of the injured party in criminal proceedings to be allowed, in practice, without any specified criteria. The potential risk is also enhanced by the fact that the decision in question is not subject to review by a higher-level court. Therefore, the unconstitutional nature of the contested provision is also seen by the Constitutional Court in that it infringes the right of the injured party (as a party and thus a party to the criminal proceedings) to a fair trial under Article 36 (1) of the Charter. In addition, the constitutional principle of equality of parties under Article 37 (3) of the Charter and, in consequence, Article 38 (2) of the Charter guaranteeing to everyone that his case is discussed in his or her presence and that he or she can express his or her views on all the evidence made.
C) The Constitutional Court was also unable to overlook (and, in its observations on the proposal, the Chamber of Deputies also pointed out) that even the Government of the Czech Republic itself - being aware of the shortcomings of the provisions of Paragraph 44 (2) of the Code of Criminal Procedure - has presented to the Chamber of Deputies (House Press No. 383) a new text of this provision in this dictation: "If the number of victims is exceptionally high and the individual exercise of their rights could be jeopardised by the swift conduct of criminal prosecution, the President of the Senate and in preparation procedure on the application by the Deputy Prosecutor of the Court of Justice that they may exercise their rights only through the common authority they choose. The decision shall be notified by the court and the preparatory procedure of the prosecutors who have already claimed compensation; notify the other injured party of the decision at the first action of the criminal proceedings to which they are called or are informed. The proceedings may not involve more than five joint agents of the victims. The common agent shall exercise the rights of the victims he represents, including the exercise of the right to compensation in criminal proceedings. '; It is therefore clear that the Government, in the cited proposal, intended to remove the aforementioned constitutional shortcomings of the existing text of the provisions of Paragraph 44 (2) of the Criminal Code. The Constitutional Court, when it finds the provision to be unconstitutional and therefore abolishes it, therefore also follows the legislative trend in this area. Nor can it change the fact that the House of Deputies has not approved the government's proposal.
For those reasons, the Constitutional Court annulled the provisions of Paragraph 44 (2) of the Code of Criminal Procedure for its contradiction with Article 1 of the Constitution and Article 36 (1), Article 37 (3) and Article 38 (2) of the Charter on the date of its publication in the Collection of Laws.
President of the Constitutional Court:
JUDr. Kessler v. r.
Pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, the judges JUDr. Vlastimil Ševčík and JUDr. Pavel Varvařovský took different positions on the decision.
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Regulation Information
| Citation | The Constitutional Court found No 77 / 2001 Coll., on the application for annulment of Article 44 (2) 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 | 23.02.2001 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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