1996/06/05 - II. ÚS 98/95: Right to Assistance of Counsel

05 June 1996

HEADNOTE:

The right to

the assistance of counsel when making a statement under Art. 12 of Act

No. 283/1991 Coll. relies on Art. 37 par. 2 of the Charter, and does not

entail a duty on the part of the police to procure the presence of

counsel in every case, but merely the duty to permit such legal

representation.
 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC

 


Panel II of the Constitutional Court in the matter of the

constitutional complaint of R. R., against the action of the County

Directorate of the Czech Police in Teplice, with the County Directorate

of the Czech Police in Teplice present as a party to the proceeding,

decided:

The constitutional complaint is granted in view

of the fact that the means of proceeding employed by the County

Directorate of the Czech Police in Teplice, by which the petitioner was

prevented from exercising his right to the assistance of counsel when,

in matter no. ORTP - 199/KS-HK-95, he made a statement under § 12 of Act

No. 283/1991 Coll.,1) as amended, constituted a violation of the

petitioner’s constitutionally guaranteed right to assistance of counsel

as declared in Article 37 para. 2 of the Charter of Fundamental Rights

and Basic Freedoms.2) The County Directorate of the Czech Police in

Teplice is prohibited from continuing in its violation of the right

under Article 37 para. 2 of the Charter of Fundamental Rights and Basic

Freedoms2) in connection with the making of statements under § 12 of Act

No. 283/1991 Coll.1)

 


REASONING

 


In his petition, the complainant sought a decision whereby the

Constitutional Court would declare that the means of proceeding employed

by the police body of the County Directorate of the Czech Police in

Teplice constituted a violation of his constitutionally guaranteed right

to assistance of counsel as declared in Article 37 para. 2 of the

Charter of Fundamental Rights and Basic Freedoms2) (hereinafter

„Charter“), in that the petitioner was prevented from exercising his

right to the assistance of counsel when making a statement as meant by §

12 of Act No. 283/1991 Coll.,1) as amended (hereinafter „Act No.

283/1991 Coll.“).  In explanation of his petition, he stated that on 6

March 1995 he was called in to make a statement pursuant to § 12 of Act

No. 283/1991 Coll.,1) and on 3 May 1995 he was brought in for that

purpose, despite his request that his attorney, with whom he had entered

into a contract for legal representation, be present as well.  The

attorney was not, however, permitted to be present when the statement

was given with the explanation that Act No. 283/1991 Coll. contains no

provisions which would place upon the police the duty to make it

possible for a person to have legal representation when making a

statement and further that no attorney is needed until the commencement

of a criminal proceeding, as meant by the relevant provisions of the

Criminal Procedure Code.  The petitioner emphasized, in addition, that

he had cited Article 2 para. 23) and Article 37 para. 2 of the Charter2)

and had pointed out the difference between assistance of counsel by a

defense attorney in a criminal proceeding and by an attorney on the

basis of a contract for legal representation. In addition to a violation

of Article 37 para. 22) and Article 2 para. 2 of the Charter3) he

concluded that Article 4 para. 24) and Article 2 para. 3 of the

Charter3) had been violated as well.

The County Directorate of

the Czech Police in Teplice did not submit a written statement

responding to the petition, despite the fact that it had been duly

delivered to the directorate on 23 June 1995; however, its director

subsequently proposed at the hearing that the petition be denied on the

merits.  He explained its position with reference to the fact that § 12

of Act No. 283/1991 Coll.1) does not impose any duty to secure the

presence of an attorney because it is not concerned with a criminal

proceeding, which also corresponds to the extent of the police’s duty to

instruct persons on their rights when summoned to make a statement, and

finally in reference also to the fact that the statement is binding

precisely on the person who is to make it.

The Constitutional

Court reviewed the complainant’s petition, as well as the attached file

from the County Directorate of the Czech Police in Teplice, together

with the summons of 6 March 1995 submitted by the complainant, and

supplementary evidence from the examination of witnesses, whose

testimony agreed in the respect that the police had repeatedly denied

the complainant’s request to be represented by his attorney for the

statement which he was called in to give.  On the basis of the

foregoing, the Court came to the conclusion that, by proceeding in this

manner, which consisted in preventing the complainant from exercising

his right to assistance of counsel in connection with making a

statement, the County Directorate of the Czech Police in Teplice had

violated Article 37 para. 2 of the Charter.2) That clause explicitly

states that everyone shall have the right in proceedings before courts,

other state bodies, or public administrative authorities, to the

assistance of counsel from the very beginning of such proceedings. The

finding that Article 37 para. 22) was violated was due in particular to

the fact that, in the matter of making a statement, the requirement of a

proceeding is met by the characteristic of the county directorate of

the police that, as a state body which took part in the process, it has a

directing status.  As a consequence of its proceeding in this manner,

the County Directorate of the Czech Police in Teplice also violated

Article 15) as well as Article 2 paras. 2 & 3 of the Charter,3) just

as Article 1,6) Article 2 paras. 1, 3, & 4 of the Constitution,7)

in which is enshrined the principle of the primacy of the citizen before

the state.  This conclusion is in no way affected by the fact that Act

No. 283/1991 Coll. is deficient in not providing express legal rules

relating to the legal representation of a person making a statement for

the simple reason that quite clear rules are found in norms of the

highest legal force, that is, the Charter and the Constitution. 

Moreover, to cite a deficiency of express legal provisions as the reason

for denying a person his right to the assistance of counsel corresponds

to a purely positivistic approach to the law does not match the

requirements of a law-based state, which are characteristic of the

natural law bent (compare, for example, the Preamble of the Charter or

Article 85 para. 2 of the Constitution).  For completeness, the

Constitutional Court explicitly states as the final point that the right

to the assistance of counsel when making a statement does not entail a

duty on the part of the police to procure the presence of counsel in

every case, but merely the duty to permit such legal representation.

So far as concerns the petitioner’s assertion that Article 4 para. 2 of

the Charter4) has been violated in that it declares that limitations

may be placed upon the fundamental rights and basic freedoms only by a

statute under the conditions prescribed in this Charter, then

conceptually this clause cannot be invoked in a situation where no more

detailed statutory provisions exist relating to the fundamental right to

the assistance of counsel when making a statement (compare Act No. 283/

1991 Coll.).

For the reasons given above and pursuant to § 82

para. 1, 2, & 3 lit. a) of Act No. 182/1993 Coll., on the

Constitutional Court, the Constitutional Court decided in the manner set

down in the statement of judgment and, additionally that it did not

require a return to the status quo ante due to the fact that it became

apparent in the course of the proceeding before the Constitutional Court

that the petitioner has already made the statement and that the

principle of investigation, searching, and officiality are applicable

for state authorities active in criminal proceedings, including the

County Directorate of the Czech Police in Teplice, which means that the

Court reached the conclusion that it is no longer possible to return the

status quo ante the violation in the instant case.


 


II. US 81/95
Overview of the most important legal regulations

1.  

 § 12 of Czech National Council Act no. 283/1991 Coll., on the Police

of the CR, as amended by later regulations, provides that a police

officer is entitled to request necessary explanations from a person who

may contribute to clarifying facts which are important for uncovering a

crime or offence and their perpetrators, as well as for finding searched

for or missing persona and things, and in case of need, call on the

person to come to a specified place within a set time for purposes of

preparing a protocol and providing an explanation. The person is

required to comply immediately in the uncovering of serious criminal

activity.

2.    Art. 37 par. 2 of Act no. 2/1993 Coll., the

Charter of Fundamental Rights and Freedoms, provides that in proceedings

before courts, other state bodies, or public administrative

authorities, everyone shall have the right to assistance of counsel from

the very beginning of such proceedings.

3.    Art. 2 par. 2 of

Act no. 2/1993 Coll., the Charter of Fundamental Rights and Freedoms,

provides that state authority may be asserted only in cases and within

the bounds provided for by law and only in the manner prescribed by law.

Par. 3 provides that everyone may do that which is not prohibited by

law; and nobody may be compelled to do that which is not imposed upon

him by law.

4.    Art. 4 par. 2 of Act no. 2/1993 Coll., the

Charter of Fundamental Rights and Freedoms, provides that limitations

may be placed upon the fundamental rights and basic freedoms only by law

and under the conditions prescribed in the Charter.

5.    Art. 1

of Act no. 2/1993 Coll., the Charter of Fundamental Rights and

Freedoms, provides that all people are free, have equal dignity, and

enjoy equality of rights; fundamental rights and basic freedoms are

inherent, inalienable, non-prescriptible, and not subject to repeal.

6.  

 Art. 1 of Act no. 1/1993 Coll., the Constitution of the CR, provides

that the Czech Republic is a sovereign, unitary, and democratic state

governed by the rule of law, founded on respect for the rights and

freedoms of man and of citizens.

7.    Art. 2 of Act no. 1/1993

Coll., the Constitution of the CR, provides in par. 1, that all state

authority emanates from the people, in par. 2, that a constitutional act

may designate the conditions under which the people may exercise state

authority directly., par. 3, that state authority is to serve all

citizens and may be asserted only in cases, within the bounds, and in

the manner provided for by law.