1997/09/23 - I. ÚS 291/96: Waiver of Rights

23 September 1997

HEADNOTE

We cannot concur

with the petitioners’ assertion that the right for the objection in law

against the punitive order cannot be waived, for although the Criminal

Procedure Code1) does not directly provide for the right to submit an

objection in law, it is appropriate in this case to make an analogy to §

250 of Criminal Procedure Code on the defendant’s right to submit an

appeal, because also in the case of the right to submit the objection in

law, it is a right which is made available to the defendant to perform a

legal act in a criminal matter, which concerns him.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT
 

IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court ruled in the matter of the constitutional

complaint of N.T.T., residing at P., and N.B.D., residing at P., against

the manner in which the District Court for Prague 4 proceeded in the

criminal case ref. No. 33 T 2/96, as follows:

The

District Court for Prague 4 is prohibited from continuing in the

violation of the complainants’ rights, and therefore it is instructed to

consider on the merits the objection in law against the punitive order,

ref. No. 33 T 2/96, dated 5 January, 1996.


 

REASONING

I.
 

The

constitutional complaint is directed against the manner of

proceeding/actions of a state authority, the District Court for Prague

4, which took place on 27 August, 1996.  

The constitutional

complaint objects that by proceeding in the manner described above, a

violation of Article 36, Paragraph 1 of the Charter of Fundamental

Rights and Basic Freedoms2) (hereinafter "Charter") took place, as well

as the violation of the right to the fair consideration by a court of

one’s matter under Article 6 para. 1 of the Convention for the

Protection of Human Rights and Fundamental Freedoms.3)

In order

to clarify the core of the dispute, the complainants state the

following: The petitioner was charged pursuant to § 150 para.1 of the

Criminal Act.4) Based on this charge a punitive order was issued, by

which the petitioner was found guilty and sentenced to pay a fine, in

eventum to imprisonment and to the confiscation of the thing. Afterwards

the petitioner changed her residential address. However, she duly

announced the change to the authorities of foreigner police. Based on

this announcement, a new identification card with residence permit was

issued for her, containing the new residence address. In spite of the

fact that the Court could have found out this information in police

records, after the failure of the attempt to deliver the punitive order

to the old address, the Court issued an order to arrest the petitioner.

The petitioner travelled abroad, and on her return journey she was

detained by police, and escorted to the cell for detention on suspicion.

The next day, in bad psychological condition, because the reason for

detention was not communicated to her, hungry, after insufficient sleep,

tired and distressed, she was presented to the Court.

According

to the statement of the petitioner, without enabling her to explain the

matter, the judge presented the petitioner the charge and the punitive

order. At the same time the judge said to the petitioner that if she

does not want to be taken to the custody, she should waive the objection

in law against the punitive order. The petitioner, in bad psychological

condition, and distressed, agreed with the proposed procedure, and

therefore she signed the protocol, according to which she waives the

right for the objection in law against the punitive order for herself

and for other authorized persons. Afterwards she was released. Due to

the fact that the petitioner is not acquainted with the provisions of

the Penal Code, she could not understand what does it mean to waive the

objection in law for the authorized persons as well.

Based on

this situation, the petitioner and her brother subsequently submitted

objection in law against the punitive order within the period required

by law and simultaneously they produced the power of attorney. However,

the judge for Prague 4 did not order a main hearing in the case, instead

she contacted the counsel by telephone and informed him that the

petitioner had waived the right for the objection in law for the

authorized persons as well, and that therefore the punitive order had

come into force.

Thereafter the counsel sent a written statement

to the Court alerting it to the fact that the Criminal Procedure Code

does not include any institute of the waiver of the right for objection

in law against the punitive order. However, the Court informed him in

writing that it maintains its position that the case has been resolved

with final force.

The petitioners consider the Prague 4 District

Court’s above-described course of action to be illegal and in violation

of the petitioner’s fundamental human rights, for as a result thereof

the petitioner is deprived of her right, on the basis remedial actions

timely submitted by eligible persons, to have her case considered before

a court.  In this case the petitioners have no other option, because

the objection in law against the law prescribes for punitive orders

specific effects which differ from those of other remedial actions.  A

court makes no decision on the objection in law, rather it merely orders

a hearing in the matter.

In the petitioners’ view, pursuant to §

314 g of the Criminal procedure Code5) it is possible to submit the

objection in law against the punitive order, however it is not possible

waive the objection in law or to withdraw it, because the Penal Code

neither includes nor admits such acts with regard to the fact that the

objection in law as a specific type of remedial action has quite

specific effects.  For the above mentioned reasons, the complainants

consider that the objection in law, timely submitted by the petitioner

and her brother, is valid and that, since the punitive order was thereby

cancelled, the court is obliged to give the matter a full hearing.

According to the petitioners the manner in which the court proceeded

violated their fundamental right to assert their rights before an

independent and impartial court pursuant to Article 36 para. 1 of the

Charter, 2) and their right to a fair hearing of their case by a court

pursuant to Article 6, Paragraph 1 of the Convention for the Protection

of Human Rights and Fundamental Freedoms, published as No. 209/1992

Coll.3) For this reason the petitioners request that the court be

prohibited from continuing in the violation of the petitioners’ above

mentioned rights.

In a supplement to the constitutional

complaint the petitioners mentioned that the procedure of the court,

exercised during the examination of the petitioner, is considered by the

jurisprudence as illegal development of pressure on the charged person,

which may cause a fundamental fault of such examination, and they refer

to the apparent intention of the court to impose the custody upon the

petitioner if she does not waive right for the objection in law. This is

indicated by the imprisonment of the petitioner based on the order to

arrest her. However, based on the law, the imprisonment is conditioned

by the existence of reasons for custody (§ 69, Art. 1 of Penal Code).

According to the petitioners, however, the issuing of the order to

arrest and the imprisonment itself were illegal, because the reasons for

imprisonment are conditioned by the above mentioned provision of Penal

Code by the fact that it is impossible either to summon or to detain the

charged person, which was not the case here.

If the court would

have made an inquiry at the population register of Police of the Czech

Republic, or at the department of foreigner police, it would have found

the new address of the petitioner, and it would be able to summon her,

because the petitioner stayed at the place of her new residence. Due to

this reason the limitation of personal freedom of the petitioner by

imprisonment and subsequent escort present a development of pressure on

the petitioner, and these acts were unconstitutional, for the reasons

based on law, which are required for such procedure against the

petitioner, did not exist.

According to the petitioners, all the

above mentioned facts form a consistent chain of evidence that the

legal act, by which the right for the objection in law against the

punitive order was waived by the petitioner for herself and for other

authorized persons, was not done freely and with understanding, but

under pressure, when the term "for other persons" was neither translated

nor explained for the petitioner at all, and therefore it means that

the legal act is absolutely null and void. The law relates no legal

effects to invalid legal acts, except for legal consequences against the

person, who caused such legal act or who benefited from such legal act.

According to § 89, Art. 3 of the Penal Code it is prohibited to use in

the proceeding such evidence, which was obtained by illegal coercion or

by a threat of such coercion. Out of all aforesaid reasons the

complainants proposed to consider the objection in law, submitted on 2nd

September, 1996, as submitted within the period required by law and

submitted by the persons eligible to do so. According to their opinion,

based on this fact, the punitive order was cancelled and the petitioner

has the right for investigation of the case in main session pursuant to §

314 g, 1,2 of Criminal procedure Code.5)
 


II.
 

It

is possible to draw two conclusions from the evaluation of the

aforementioned facts. Firstly we cannot concur with the petitioners’

assertion that the right for the objection in law against the punitive

order cannot be waived, for although the Criminal Procedure Code1) does

not directly provide for the right to submit an objection in law, it is

appropriate in this case to make an analogy to § 250 of Criminal

Procedure Code on the defendant’s right to submit an appeal, because

also in the case of the right to submit the objection in law, it is a

right which is made available to the defendant to perform a legal act in

a criminal matter, which concerns him.  On the other hand, however, the

waiver of the objection in law is suspect under the above mentioned

circumstances in connection with an arrest, which   as it is mentioned

below   was manifestly not rightful. Therefore, it was not appropriate

for the district court merely to communicate to the defense counsel that

the case can be considered settled due to the fact that the accused

waived her right for the objection in law and that, consequently, a main

hearing will not be ordered in this case.

In addition, it is

impossible to ascertain from the evidence taken, whether this legal act

(the waiver of the right to the objection in law, on behalf of related

persons as well) was truly performed by the petitioner voluntarily, that

as a foreigner she fully understood what this legal act means, and what

consequences it will entail.  On contrary, based on the documentary

evidence taken, it is not possible to rule out convincingly the

complainant’s objection that in fact she performed this legal act under

the pressure of the circumstances, and without properly understanding

it.  It appears from the protocol, written up with the complainant at

the District Court for Prague 4 on 27 August 1996, that she was

instructed on her rights pursuant to § 33 paras.1 and 26) and § 95 para.

27) of the Criminal Procedure Code.  Instruction on the institute of

the objection in law against the punitive order pursuant to § 314 g of

Criminal Procedure Code5) is neither mentioned in the protocol, nor can

it be inferred from it.

Moreover, it can justifiably be presumed

that the court’s decision of 29 February 1996 to issue the warrant for

the petitioner’s arrest, and thus to limit her freedom, was not

rightful, since she had duly registered her new permanent residence, and

an identification card with her new address had been issued to her.  In

particular, in view of the fact that the court did not make an inquiry

at the department of aliens police but acted solely on the basis of the

information communicated to it by the Local Department of the Czech

Republic Police in Prague Jižní Město, in which, on top of that, the

petitioner is designated a male.  On 13 June 1997 the department of

aliens police informed the Constitutional Court, that "... the above

mentioned foreigner had a long term residence permit in the Czech

Republic for business purposes for the period from 15 January 1993 to 23

February 1997.  At that time she resided at the address in Prague 4, H

851, however, on 23 February 1996 she registered as having moved from

that residence to a new residence at the address in Prague 4, S. 216. 

Currently she has a permanent residence permit, which she has held since

24 October 1996.   Her permanent residence permit is valid until 24th

October, 2001.  Her most recent registered address:  Prague 5 Radotín, U

J. 2/190, c/o Mr. I.S."  It follows from the information communicated

by the department of aliens police that no grounds existed for the

issuance of the 29 February 1996 warrant to arrest the petitioner,

seeing as it was not her fault that she was not summoned at the correct

address.

In view of the fact that the statement of the

petitioner concerning the manner in which and the conditions under which

she was examined by the court and under which the protocol on taking

over the documents was written with her, as well as the conditions under

which she waived the right to make an objection, was not disproved by

the documentary evidence which was taken; and in view of the fact that

the ordinary court did not give sufficient consideration to the

complainants’ proposals on taking evidence; as well as in view of the

fact that the court did not consider the change of the complainant’s

residential address when summoning her, the Constitutional Court

concluded that the complainants’ proposal on the taking of evidence has

to be given consideration.  With regard to all the aforesaid

circumstances and uncertainties, the Constitutional Court found that the

District Court for Prague 4, by its refusal to hold proceedings on the

objection in law, submitted by the complainants against the punitive

order dated 5th January, 1996, did not adequately provide legal

protection of the petitioners' right to the fair hearing of her matter

by a court pursuant to Article 6 para. 1 of the Convention for the

Protection of Human Rights and Fundamental Freedoms.3) Therefore the

Constitutional Court prohibited the District Court for Prague 4 from

violating these of the petitioners’ rights and ordered that proceedings

be held on the submitted objection in law.
 


 



I. ÚS 291/96
Overview of the most important legal regulations

1.  

 § 250 of Act no. 141/1961 Coll., on Criminal Court Proceedings (the

Criminal Procedure Code), which regulates waiving and withdrawing an

appeal provides in paragraph 1 that after a verdict is announced an

entitled person may expressly waive an appeal.

2.    Art. 36 par.

1 of the Charter provides that everyone may assert, through the legally

prescribed procedure, his rights before an independent and impartial

court or, in specified cases, before another body.

3.    Art. 6

par. 1 of the Convention for the Protection of Human Rights and

Fundamental freedoms governs the right to a fair trial and provides that

everyone has the right to have his matter adjudicated fairly, publicly

and in a reasonable time by an independent and unbiased court.

4.  

 § 150 of Act no. 140/1961 Coll., the Criminal Code, governs the

definition of the crime of violation of rights to trademarks, business

name and a protected designation of origin.

5.    § 314g of Act

no. 141/1961 Coll., on Criminal Court Proceedings (the Criminal

Procedure Code), provides that an appeal against a criminal order may be

filed by the accused, persons who are entitled to file an appeal in his

favor, and the state prosecutor. If an appeal was filed against a

criminal order by an entitled person by the deadline, the criminal order

is thereby annulled and the judge shall order trial proceedings in the

matter.

6.    § 33 of Act no. 141/1961 Coll., on Criminal Court

Proceedings (the Criminal Procedure Code), regulates the rights of the

accused.

7.    § 95 par. 2 of Act no. 141/1961 Coll., on Criminal

Court Proceedings (the Criminal Procedure Code), provides that, except

for a protocol on the main trial proceedings or a public session, [a

protocol] must be presented for reading or read after the end of

questioning; the accused has the right to request that the protocol be

added to or that corrections be made in it in accordance with his

testimony. The accused must be notified of this right.