2001/10/31 - Pl. ÚS 15/01: Principle of Equal Weapons

31 October 2001

HEADNOTES

1)

The constitutional principles forming one of the components of the

fundamental right to a fair trial, include the principle of “equal

weapons”, or the principle of equal opportunity (or the principle of

equality of parties to proceedings) under Art. 37 para. 3 of the

Charter, Art. 96 para. 1 of the Constitution a Art. 6 para. 1 of the

Convention. This principle becomes especially important in criminal

proceedings, where, in relation to the defendant, it is closely tied to

the right to defend one’s self, with the right to present factual and

legal arguments, and with the right to respond to all evidence admitted.

The principle of equality of the parties to criminal proceedings, apart

from the function of protecting the position of the defendant, who is

entitled to a presumption of innocence, is also part of the overall

concept of a democratic criminal trial, characterized by the principle

of adversarial proceedings.

The principle of “equal weapons” in

criminal proceedings is reflected in all stages of criminal proceedings,

as well as in all their aspects. Thus, it is applied both in trial

proceedings and in review proceedings, in the full scope of both, but

particularly in evidentiary proceedings (in proposing evidence, the

right to respond to admitted evidence, and so on). The principle of

“equal weapons” in criminal proceedings is not absolute; generally the

maxim applies that the state, in any context, is not entitled to more

rights or a more advantageous procedural position than the defendant

[cf. e.g. the time limitation on the state attorney’s authorization to

file a petition to re-open proceedings to the detriment of the defendant

under § 279 let. a) of the Criminal Procedure Code].

Unlike all

other remedial measures provided by the Criminal Procedure Code, only

the complaint for violation of the law can be used by only one party –

the state. If the state, as a party in criminal proceedings (it can not

be considered decisive, which state body is entitled to act in the name

of the state at which stage of criminal proceedings), has at its

disposal, compared to the defendant, an additional procedural means,

which establishes the possibility of obtaining annulment of a decision

in a criminal matter which has gone into effect, one can not but

conclude from this that there is infringement of the defendant’s right

to “equal weapons” in a criminal trial, arising from Art. 37 para. 3 of

the Charter, Art. 96 para. 1 of the Constitution and Art. 6 para. 1 of

the Convention.

The relevance of the charge of failure to accept

the principle of “equal weapons” appears even more pressing in cases of

possible application of a complaint for violation of the law to the

detriment of the defendant against decisions of bodies active in

preliminary proceedings (e.g., against decisions by the investigator or

state attorney to stop criminal prosecution). The leading principles of

criminal proceedings in a state governed by the rule of law, ever since

the age of enlightenment, include the accusation principle (§ 2 para. 8

of the Criminal Procedure Code), which overcame and replaced the

inquisition principle in criminal trials. Under the accusation

principle, institutional division among different procedural entities of

the procedural functions of preparing and filing an accusation, and

deciding on guilt and punishment is an essential part of the democratic

criminal trial, respecting the value of independent judicial decision

making. From a constitutional viewpoint this principle arises from Art.

80 para. 1, Art. 90 of the Constitution and Art. 40 para. 1 of the

Charter.

2) In the settled opinion of the Constitutional Court,

the Court is bound in its decision making by the scope of the filed

petition, and may not step outside its limits (ultra petitum) in its

decision (see e.g., the judgment in the matter under file no. Pl. US

8/95).

In a situation where, as a result of the annulment of a

particular statutory provision by a derogative judgment of the

Constitutional Court another provision, different in content from the

first one, loses reasonable meaning, i.e. loses the justification of its

normative existence, this is grounds for annulling this statutory

provision as well, even without this being a step ultra petitum. That

provision ceases to be valid on the basis of the principle of cessante

ratione legis cessat lex ipsa; the derogation made by the Constitutional

Court is thus only of an evidentiary, technical nature.

3) If,

on the basis of a legal regulation which was annulled, a court issued a

verdict in criminal proceedings which went into effect but has not yet

been executed, annulment of that legal regulation is, under the cited

statutory provision, grounds for re-opening proceedings under the Act on

Criminal Court Proceedings. However, the adjudicated matter does not

involve such grounds. Violation of the principle of “equal weapons” in

the legal regulation of active standing to file an extraordinary

remedial measure does not concern the constitutionality, or lawfulness

of actual proceedings before the Supreme Court, or proceedings connected

to them. Thus, annulment of § 272 of the Criminal Procedure Code does

not establish grounds for re-opening proceedings under § 71 para. 1 of

Act No. 182/1993 Coll., as amended by later regulations.

4) In

the area of intertemporality in civil and criminal trials, the principle

applies that, unless the law provides otherwise, the court proceeds

according to the procedural regulations valid and effective at the time

of decision making. In the adjudicated matter, annulling § 272 of the

Criminal Procedure Code annuls only the cassation and appellate

authority of the Supreme Court in proceedings on a complaint for

violation of the law filed to the detriment of the defendant, but does

not annul the proceedings as such, i.e. it does not annul the

possibility of issuing an academic verdict in a given matter for the

purpose of unifying case law pro futuro (§ 268 para. 2 of the Criminal

Procedure Code). This indicates that, in cases where the Minister of

Justice filed a complaint for violation of the law to the detriment of

the defendant, but as of the day the annulling judgment went into

effect, the Supreme Court had not decided on it, after the derogative

judgment of the Constitutional Court goes into effect, only a decision

by an academic verdict can be made.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, after a hearing on 31 October 2001,

with the participation of a secondary party, the Supreme Court, decided

in the matter of a petition from Panel III of the Constitutional Court,

filed under § 78 para. 2 of Act No. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, to annul § 272 of

Act No. 141/1961 Coll., the Criminal Procedure Code, as amended by

later regulations, as follows:

The provisions of § 272

and § 276 fourth sentence of Act No. 141/1961 Coll., on Criminal Court

Proceedings (the Criminal Procedure Code), as amended by later

regulations, are annulled as of 31 December 2001.
 


REASONING


I.
 

By

constitutional complaint filed for delivery to the Constitutional Court

on 2 August 2000, the complainant E. Č., seeks annulment of the Plzeň

Regional Court decision of 16 June 2000, file no. 8 To 237/2000, and the

Rokycany District Court decision of 22 April 1999, file no. 1 T 69/97,

which found her guilty of the crime of false accusation under § 174

para. 1 of the Criminal Code and was sentenced to a fine. She feels that

these decisions have affected her fundamental right to inviolability of

a dwelling and her fundamental right to a fair trial, arising under

Art. 12 and Art. 36 of the Charter of Fundamental Rights and Freedoms

(the “Charter”).

The following facts were determined from

Rokycany District Court file no. 1 T 69/97, which the Constitutional

Court requisitioned:

By Rokycany District Court decision of 22

April 1999, file no. 1 T 69/97-17, the complainant was found guilty of

the crime of false accusation under § 174 para. 1 of the Criminal Code,

and under the same provision she was sentenced to a fine of CZK 11,000

with an alternative sentence of 3 months in prison and was also

sentenced to forfeiture of a thing – the amount of CZK 1,500. She was

alleged to have committed the crime by falsely accusing a police officer

of taking a bribe, in a letter sent to the Police of the Czech

Republic.

In response to the complainant’s appeal, the Plzeň

Regional Court, by decision of 18 August 1999, file no. 8 To 217/99,

annulled the decision of the first-level court under § 258 para. 1 let.

a), b) and c) of the Criminal Procedure Code, and under § 260 of the

Criminal Procedure Code returned the matter to the prosecutor to

complete investigation. The Regional Court justified its decision by

defects in the home search conducted in the complainant’s home, during

which evidentiary material was obtained, and which suffered from several

defects. These, in the court’s opinion, consisted of not questioning

the person whose home was to be searched (§ 84 of the Criminal Procedure

Code) and of not stated specific reasons which led to the procedure;

the appeals court also found that the protocol on conduct of the home

search was insufficiently specific about which things were handed over

voluntarily and which things were taken (§ 85 para. 3 of the Criminal

Procedure Code). For all the cited reasons, the Plzeň Regional Court did

not consider the evidentiary material to have been obtained lawfully.

If, after the home search, the complainant and her defense counsel

confirmed the voluntary handing over of the evidentiary material under §

78 para. 1 of the Criminal Procedure Code (the material which had been

previously obtained during the home search), in the court’s opinion,

this led to handing over of a thing which the complainant (thus accused

in the criminal proceedings), at the time of handing over, did not have

in her control, due to which, even if these things were returned to the

complainant in a procedurally non-defective manner, this procedure could

not cure the previous unlawful obtaining of a thing which was important

for the criminal proceedings. Thus, this would be circumvention of the

law, taking advantage of a situation which was created by illegal

conduct, i.e. the illegal home search.

The Minister of Justice

filed a complaint for violation of the law against the Plzeň Regional

Court decision, to the detriment of the defendant (the complainant in

proceedings before the Constitutional Court). He claimed that the

contested decision violated the law in § 254 para. 1, § 258 para. 1 let.

a), b) and c) and § 260 of the Criminal Procedure Code, to the benefit

of the defendant. In his complaint, the Minister of Justice concludes

that the defects in the protocol keeping and the conduct of the home

search, as stated by the Regional Court, were not of such a nature as

could lead to a conclusion that the home search was being conducted

illegally and, as a result, the evidence obtained during that home

search was obtained illegally.

On the basis of the complaint for

violation of the law, the Supreme Court, in its decision of 29 March

2000, file no. 5 Tz 35/2000, decided, under § 268 para. 2, § 269 para. 2

and § 270 para. 1 of the Criminal Procedure Code, and with fulfillment

of conditions under § 272 of the Criminal Procedure Code, that the

decision of the Plzeň Regional Court of 18 August 1999, file no. 8 To

217/99, now in effect, violated the law in § 254 para. 1, § 258 para. 1

let. a), b) and c) and § 260 of the Criminal Procedure Code, to the

benefit of the defendant E. Č. (the complainant in proceedings before

the Constitutional Court), annulled the decision, and ordered the Plzeň

Regional Court, as the appeals court to review the matter again in the

necessary scope and decide again. In the reasoning of its decision, the

Supreme Court basically endorsed the opinion of the Minister of Justice

when it said that certain shortcomings did occur in the procedure during

protocol keeping of the conduct and results of the home search, but

that these are only of a formal nature and can be overcome taking into

account the rest of the content of the criminal file, and so these

defects, in his opinion, are not of such a nature as to justifiably lead

to a conclusion that the home search was conducted illegally and, as a

result, the evidence obtained during that home search was obtained

illegally.

Subsequently, the Plzeň Regional Court, by its

decision of 16 June 2000, file no. 8 To 237/2000, denied the

complainant’s appeal against the Rokycany District Court decision of 22

April 1999, file no. 1 T 69/97.

The constitutional complaint

points, in particular, to violation of the conditions prescribed for

conducting a home search in § 84 of the Criminal Procedure Code, and in

that regard it argues with the Supreme Court’s opinion concerning its

interpretation. The complainant believes that the illegal conduct of the

home search impinges on her fundamental right to inviolability of a

dwelling under Art. 12 of the Charter, and believes that the fact that

the guilty verdict in the criminal matter was, as the complainant

believes, based on acceptance of illegally obtained evidence impinges on

her fundamental right to a fair trial under Art. 36 of the Charter.
 


II.
 

On

26 April 2001, Panel III of the Constitutional Court, without a hearing

and without the parties being present, by its decision interrupted the

proceedings on the constitutional complaint in the matter under file no.

III. US 464/2000 and submitted to the Plenum of the Constitutional

Court, for its decision, a petition to annul § 272 of Act No. 141/1961

Coll., the Criminal Procedure Code, as amended by later regulations.
 


III.
 

Under

§ 42 para. 3 and § 69 of Act No. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, the Constitutional Court sent

the petition to the Chamber of Deputies. In his position statement of 4

July 2001 the chairman of the Chamber of Deputies of the Parliament of

the Czech Republic, prof. Ing. Václav Klaus, CSc., in the introduction

clarifies the circumstances surrounding the passing of the legal

regulation in question. He states that the institution of a complaint

for violation of the law was introduced in our legal system in 1950, and

was later also transferred to other criminal procedure codes, include

the one currently in effect, Act No. 141/1961 Coll. The chairman of the

Chamber of Deputies also points out that, since 1990, objections have

been raised to this institution, primarily in the expert literature;

these objections were practically identical with the arguments in the

petition of Panel III of the Constitutional Court. Taking into account

the content of this institution, he basically acknowledges in the

position statement, that it is not completely consistent with the

principle of equality of parties in criminal proceedings under Art. 37

para. 3 of the Charter, as a complaint for violation of the law can be

filed only by the Minister of Justice and not by the other party in the

criminal proceedings, i.e. the defendant. It is further pointed out that

this problem was repeatedly evaluated in the previous amendments to the

Criminal Procedure Code, and at present, for reasons including this

one, another amendment has introduced a new extraordinary corrective

measure – appeal on a point of law, which is to guarantee equality of

the parties to criminal proceedings, and which, with effect as of 1

January 2002, is to virtually completely replace the complaint for

violation of the law, including § 272. However, the amendment does not

propose annulling the actual institution of a complaint for violation of

the law because, in the opinion of the chairman of the Chamber of

Deputies, until recodification of the Criminal Procedure Code, it should

address certain exceptional cases where a potential defect will not be

corrected by an appeal on a point of law or in another manner. On the

basis of the foregoing, the position statement says that it can

basically agree with annulling § 272 of the Criminal Procedure Code, but

the legal effect of the Constitutional Court’s judgment should be

postponed at least until 1 January 2002, when the amendment to the

Criminal Procedure Code will go into effect, or perhaps even longer,

because in connection with the judgment a corresponding amendment to the

Criminal Procedure Code will probably be passed, particularly

concerning the possibility of correcting defects concerning persons

other than the defendant. ...

The Constitutional Court, under §

42 para. 3 and § 69 of Act No. 182/1993 Coll., as amended by later

regulations, also sent the petition to the Senate of the Parliament of

the Czech Republic. In his position statement of 11 July 2000, its

chairman, doc. JUDr. Petr Pithart, in the introduction recapitulates the

history of § 272 in the Criminal Procedure Code. He states that this

provision has been part of the Criminal Procedure Code since the day

this law was passed by the National Assembly, i.e. since 29 November

1961; up to the present time it has, in terms of the present issues,

gone through rather insignificant changes: the provision has reflected

changes in the entities entitled to file complaints – at first these

were the general prosecutor and chairman of the Supreme Court, later the

chairman of the court was replaced by the Minister of Justice (under

the amendment of the Criminal Procedure Code, implemented by Act No.

149/1969 Coll.) and after an amendment made several years ago (by Act

No. 292/1993 Coll.), the only remaining party entitled to file a

complaint was the Minister of Justice. Act No. 30/2000 Coll. then added a

new paragraph 2, which adopted the present content of the provision.

The position statement also points out that the Senate of the

Parliament of the Czech Republic was established and began its

constitutional function in December 1996, as a result of which the

Senate can not give the Constitutional Court a position statement on a

matter based on the actual discussion and passing of § 272 the Criminal

Procedure Code, or the entire institution of a complaint for violation

of the law and most of its amendments. .. .

Taking as a starting

point the ability given by § 49 para. 1 of Act No. 182/1993 Coll., as

amended by later regulations, and because the application of § 272 of

the Criminal Procedure Code directly affects the Supreme Court and the

Ministry of Justice, the Constitutional Court asked these state bodies

for position statements on the petition to annul the cited statutory

provision.

In the introduction of her position statement of 29

June 2001, the chairwoman of the Supreme Court, JUDr. Eliška Wagnerová,

Ph.D., agreed with the petition of Panel III of the Constitutional

Court, which interrupted proceedings in the matter file no. III. US

464/2000 and which submitted to the Plenum of the Constitutional Court

for review and decision a petition to annul § 272 of the Criminal

Procedure Code. Beyond the framework of the reasons given in the

decision, the position statement also points to other reasons why § 272

of the Criminal Procedure Code is inconsistent with the constitutional

order. it states that the purpose of a complaint for violation of the

law can be found at two levels – first, in the presumption that the law,

i.e. objective law, deserves protection, and second, in inspection of

the procedures of state bodies involved in criminal proceedings (the

investigator, prosecutor, judge, or court - § 266 para. 1 of the

Criminal Procedure Code).

The chairwoman of the Supreme Court,

in connection with the cited starting point, states that a complaint for

violation of the law filed to the detriment of the defendant is an

institution which interferes in the defendant’s right to a fair trial in

the wider sense, and therefore it is essential to also examine such

intervention into a fundamental principle (which can be derived from

Art. 1 of the Constitution, in a breadth beyond the specific fundamental

procedural rights and guarantees contained in part five of the Charter)

in terms of the principle of reasonableness (also derivable from Art. 1

of the Constitution). In this regard, she considers it important to

answer the question of whether this institution is an essential measure

in a democratic society. The position statement formulates an answer

according to which the purpose pursued by a complaint for violation of

the law filed to the detriment of the defendant - i.e. protection of

observance of objective law and procedural methods – is evidently itself

problematic, because both of the elements which are to be protected are

protected in isolation, but not in relation to the subjective rights of

the defendant or the injured party or in relation to protection of the

public good. In the end, only the product of the state is protected,

i.e. objective law in the form of a statute; alternately correction of

the conduct of state or official persons or bodies is sought. Thus, in

the opinion of the chairwoman of the Supreme Court, a complaint for

violation of the law filed to the detriment of the defendant is, in

terms of its purpose, a problematic institution in a democratic state

governed by the rule of law, whose immanent element is respect for the

rights and freedoms of the individual, as the state may legitimately

intervene in these only by law, but only for reasons of protection of

the rights and freedoms of others, or protection of the public good. In

this regard, the position statement emphasizes that intervention can

scarcely be justified merely as correction of error by the state itself,

which the individual affected by the error did not participate in. The

chairwoman of the Supreme Court believes that, due to this, the

institution of a complaint for violation of the law filed to the

detriment of the defendant can also violate the principle contained in

Art. 1 of the Constitution.

The

second reason, which the chairwoman of the Supreme Court, in her

position statement, places outside the framework of justification of the

unconstitutionality of § 272 of the Criminal Procedure Code, contained

in the petition of Panel III of the Constitutional Court, is a reference

to the fact that in some cases the institution of complaint for

violation of the law filed to the detriment of the defendant can also

represent intervention in the right not to be prosecuted twice for the

same crime, as intended by Art. 4 of Protocol no. 7 to the Convention

for the Protection of Human Rights and Fundamental Freedoms (the

“Convention”). Unlike Art. 40 para. 5 of the Charter, which speaks in

the plural about the possibility of applying extraordinary remedial

measures (evidently responding to the legal regime in effect), which

could break through this principle, Art. 4 of Protocol no. 7 to the

Convention recognizes only re-opening of proceedings, the scope of whose

admissibility it defines itself. It ties the scope of admissibility

only to newly discovered facts or to a substantive defect in the

foregoing proceedings, both to be applied only if they could influence

the decision in the matter. From this, the position statement concludes

that, unlike a complaint for violation of the law, whose purpose is

protection of objective law or correction of a defective procedure in

proceedings, so to speak, “about themselves”, re-opening under of

Protocol no. 7 to the Convention is strictly tied to influencing a

specific individual decision in the matter. Because para. 3 of Art. 4 of

Protocol no. 7 to the Convention provides that no derogation from the

article shall be made under Art. 15 of the Convention, i.e. even in

exceptional (e.g. wartime) situations, it is considered evident that

scope for breaking through the fundamental principle of not being

prosecuted twice for the same crime can not be expanded, as is evidently

done by a complaint for violation of the law filed to the detriment of

the defendant. Because of this, the position statement considers that

the institution of a complaint for violation of the law to the detriment

of the defendant in some cases interferes with the fundamental right

contained in Art. 4 of Protocol no. 7 to the Convention.

For all

the stated reasons the chairwoman of the Supreme Court endorses the

petition of Panel III of the Constitutional Court to annul § 272 of the

Criminal Procedure Code due to inconsistency with Art. 1 of the

Constitution and Art. 4 of Protocol no. 7 of the Convention.

At

the request of the Constitutional Court, the chairwoman of the Supreme

Court, submitted, in filings of 31 August 2001 and 5 September 2001, for

purposes of these proceedings, statistical data concerning complaints

for violation of the law filed from 1996 to 2001.

The data

submitted indicate that during that period there was a change in the

ratio of complaints for violation of the law filed to the benefit and to

the detriment of the defendant and in the total growth of complaints

for violation of the law filed. While in 1996 the Minister of Justice

filed 174 complaints to the benefit of the defendant and only 49 to the

detriment of the defendant (12 were filed to the defendant’s benefit and

detriment simultaneously), in 1997 this ratio was 88 to 58 (with 3

filed to the defendant’s benefit and detriment ), in 1998 it was 74 to

98 (with 6 filed to the defendant’s benefit and detriment), i.e. for the

first time the number of complaints filed to the defendant’s detriment

exceeded the number of complaints filed to the defendant’s benefit, in

1999 the ratio was 88 to 117 (with 13 filed to the defendant’s benefit

and detriment), in 2000 it was 113 to 166 (with 22 filed to the

defendant’s benefit and detriment ) and finally in the first seven

months of 2001 it was 75 to 102 (with 10 filed to the defendant’s

benefit and detriment). The submitted statistics also indicate that,

while in 1996 the proportion of complaints filed to decisions in

preliminary proceedings was  14 %, in 1997 it was 18 %, in 1998 22 %, in

1999 21 %, in 2000 26 % and in the first seven months of 2001 it

climbed to 29 %.

The Minister of Justice, JUDr. Jaroslav Bureš,

in the introduction of his position statement to the petition of Panel

III of the Constitutional Court to annul § 272 of the Criminal Procedure

Code, emphasizes that the legal institution of a complaint for

violation of the law was introduced in the Czech legal order by Act No.

87/1950 Coll., on Criminal Court Proceedings (the Criminal Procedure

Code), and later also transferred to other Acts on Criminal Court

Proceedings (no. 64/1956 Coll. and no. 141/1961 Coll.) and, despite

partial amendments, remained in the legal order of the Czech Republic

after 1993 [§ 266 et seq. of Act No. 141/1961 Coll., on Criminal Court

Proceedings (the Criminal Procedure Code), as amended by later

regulations]. He also believes that this extraordinary remedial measure

was considerably connected to the complaint for a breach of law aimed at

preserving justice, which, on the basis of Act No. 119/1873 Imperial

Laws, which introduces the Criminal Procedure Code, as amended by later

regulations (cf. § 33, § 292 and § 479), was already used in our

territory in the former Czechoslovakia (in the Czech and

Moravian-Silesian land), but was enriched and supplemented by several

elements which were typical for the socialist legal order. The position

statement also points to the fact that after 1990 objections were raised

against the complaint for violation of the law as an extraordinary

remedial measure, particularly in the literature; these objections

contained arguments similar to those in the cited decision of the

Constitutional Court, particularly in terms of the equality of the

parties, as the amendment implemented by Act No. 292/1993 Coll.,

although it did, with effect as of 1 January 1994 leave the power to

file a complaint for violation of the law only with the Minister of

Justice (until then a complaint for violation of the law could also be

filed by a prosecutor), in terms of the equality of the parties in

criminal proceedings (the state versus the defendant) he is still a

state body, and it is not decisive who represents the state in a

particular phase of the proceedings. The Minister of Justice points out

that in this regard it was repeatedly emphasized that the complaint for

violation of the law is deeply inconsistent with the concept of a state

based on the rule of law, because the right to file a complaint for

violation of the law, as an “official remedial measure,” to the benefit

of the convicted party, is entrusted only to a high state official, who

can then file this remedial measure even to the detriment of the

defendant.

Relying on these viewpoints, the Minister of Justice

agrees that if a state, represented by a state body as a party in

criminal proceedings (it is not decisive whether, depending on the phase

of the proceedings, this is the state attorney or the Minister of

Justice), compared to the defendant, has at its disposal another, even

if extraordinary, remedial measure, establishing the opportunity to

obtain annulment of a decision which has gone into effect in a criminal

matter, this is inconsistent with the principle of equality of the

parties under Art. 37 para. 3 of the Charter, if equality of the parties

is derived from this provision both in civil and in criminal

proceedings, and this principle applies not only to natural persons and

legal entities, but also to the state, or a state body, if it appears in

proceedings as a party (not as the holder of state power -potentior

persona). Criminal proceedings, as stated further in the position

statement, are adversarial proceedings, i.e. proceedings in which the

sides stand opposite each other as procedural opponents, where in

criminal proceedings the issue is primarily equality of the plaintiff

and the defendant, that is the state attorney and the defendant, but the

requirement for equality of the parties (“equal weapons”) can also be

applied, though with a certain reservation, to the relationship between

the Minister of Justice and the defendant, particularly if the Minister

of Justice files a complaint for violation of the law to the detriment

of the defendant.

When filing a complaint for violation of the

law to the benefit of the defendant, it is necessary, according to the

Minister of Justice, to see this as a certain means of favor

defensionis, which can be accepted from a constitutional viewpoint,

because it can not worsen his position either in substantive law or

procedural terms, even though it also evokes certain doubts in terms of

the equal weapons under Art. 6 of the Convention, particularly in a case

where the defendant seeks a complaint for violation of the law to his

benefit, but the Minister of Justice does not file it, for in these case

one could conclude that there is conflict with the principles of a

state based on the rule of law, which should guarantee equal means for

protection of rights to trial parties, or parties to proceedings, as

part of the right to a fair trial under Art. 36 para. 1 of the Charter.

According to the Minister of Justice, these considerations are all the

more valid in the case of a complaint for violation of the law to the

detriment of the defendant against a decision on the merits by bodies

active in preliminary proceedings, e.g. against the decision of an

investigator or state attorney to stop criminal prosecution under § 172

of the Criminal Procedure Code or assignment of a matter to another body

under § 171 of the Criminal Procedure Code, which, in the case of a

decision of the Supreme Court in which it finds violation of the law

under § 268 para. 2 of the Criminal Procedure Code and simultaneously

annuls the contested decision under § 269 para. 2 and § 272 of the

Criminal Procedure Code and, under § 270 para. 1 of the Criminal

Procedure Code, orders the state attorney (generally) to review the

matter again in the necessary scope and decide again, undoubtedly

involves inadmissible intervention to the accusation principle (§ 2

para. 8 of the Criminal Procedure Code), even though the Supreme Court

can not, in such a decision, order the state attorney to file an

indictment against the defendant in that matter. Under § 270 para. 4 of

the Criminal Procedure Code, the body to which a matter was assigned is

bound by the legal opinion stated in the matter by the Supreme Court,

and is required to take procedural steps whose implementation the

Supreme Court ordered, whereby the Supreme Court significantly

influences the basis for filing an indictment, and thus also the

accusation principle, which has its constitutional foundations in Art.

80 para. 1 of the Constitution, but also in the related provisions of

Art. 90 of the Constitution and Art. 40 para. 1 of the Charter.

The

position statement also states that the Ministry of Justice repeatedly

considered all these issues during individual amendments of the Criminal

Procedure Code and in connection with the planned recodification of

criminal procedure law, which then found expression in the “large”

amendment of the Criminal Procedure Code, which establishes the regime

of the new extraordinary remedial measure – the appeal on a point of

law, which will apply to precisely enumerated court decisions, will

preserve the equality of the parties (cf. § 265a to 265s of the Criminal

Procedure Code) and which, during the legislative process was, in

accordance with the above mentioned opinions, at the initiative of

parties including the Ministry of Justice and the Supreme Court,

supplemented with the authority of the Supreme State Attorney to annul,

in a very short period, unlawful decisions from lower state attorneys on

stopping criminal prosecution or on assigning a matter (cf. § 173a and §

174a of the Criminal Procedure Code) which have gone into effect. In

the opinion of the Minister of Justice, these institutions are supposed

to basically replace the complaint for violation of the law, with effect

as of 1 January 2002, although, until passage of the recodification of

the Criminal Procedure Code, it will be preserved (including § 272 of

the Criminal Procedure Code) for certain exceptional cases, where error

would not be corrected by a appeal on a point of law or other remedial

measures (e.g. for annulment of a decision to stop criminal prosecution

in criminal matters concerning persons accused of crimes committed

during the totalitarian regime, in connection with Act No. 119/1990

Coll., on Judicial rehabilitation, as amended by later regulations, and

Act No. 198/1993 Coll., on the Illegality of the Communist Regime and

Opposition Against It). In this regard, reference is made to certain

cases from recent years, where certain persons responsible for crimes

committed to the benefit of the communist regime were finally

prosecuted, but their prosecution was stopped in preliminary proceedings

or in proceedings before the court, which lead the Ministry of Justice

and the government to leave the institution of a complaint for violation

of the law (including § 272 of the Criminal Procedure Code) in the

Criminal Procedure Code, because other wise these errors could no longer

be corrected. In this regard, illustrating the issue with a specific

case, the Minister of Justice also points to § 71 para. 1 of Act No.

182/1993 Coll., as amended by later regulations, and problems related

with its impact on cited cases. .. .
 


IV.
 

On

11 July 2001 the Constitutional Court received a petition from the

Supreme Court to annul § 272 of the Criminal Procedure Code, filed under

Art. 95 para. 2 of the Constitution, § 224 para. 5 of the Criminal

Procedure Code per analogiam and § 64 para. 4 of Act No. 182/1993 Coll.,

as amended by later regulations. The petition is based on the Supreme

Court decision of 26 June 2001, file no. 11 Tz 106/2001, which

interrupted proceedings on the complaint for violation of the law, filed

by the Minister of Justice to the detriment of the defendant D. B.,

against a decision of the state attorney of the Děčín District State

Attorney’s Office of 19 December 2000, file no. 2 Zt 897/2000-5, on

assignment of a criminal matter, and under the above mentioned

constitutional and statutory provisions the matter was submitted to the

Constitutional Court.

In the opinion of the Panel of the Supreme

Court, the institution of a complaint for violation of the law is

inconsistent with the concept of a democratic state based on the rule of

law, because the right to use this extraordinary remedial measure is

entrusted only to the representative of the executive branch – the

Minister of Justice. The defendant can not obtain filing of this

extraordinary remedial measure to his benefit even in the event of

flagrantly serious violation of the law, and must rely on the decision

of the Minister of Justice. The Minister, except for isolated exceptions

arising from the Rehabilitation Act, does not have an obligation to use

this extraordinary remedial measure. It is up to his consideration

whether the law was violated, and whether the violation is so serious

that it requires intervention in the principle of stability of judicial

decision making. For these reasons, the panel of the Supreme Court

states that this is an institution which should not have a place in a

modern criminal procedure code. In its opinion, all the cited

shortcomings come to the forefront even more with complaints for

violation of the law filed to the detriment of defendants, particularly

in cases where this extraordinary remedial measure contests decisions on

the merits made by bodies in preliminary proceedings. Therefore, the

panel of the Supreme Court concluded that the existence of this

institution is a denial of the equality of all parties to proceedings

expressed in Art. 37 para. 3 of the Charter and does not respect the

right to a fair trial guaranteed by Art. 6 of the Convention. Moreover,

the Supreme Court’s statutory ability, in proceedings on a complaint for

violation of the law filed by the Minister of Justice to the detriment

of the defendant, to annul a decision by an investigator or state

attorney on stopping prosecution or assigning a matter to another body

which has gone into legal effect, and to order bodies active in

preliminary proceedings to continue in criminal proceedings, breaks, in a

fundamental way, the accusation principle, which is a leading principle

of criminal proceedings in a state governed by the rule of law. For

these reasons, in the opinion of the panel of the Supreme Court, it is

not possible to tolerate the institution of a complaint for violation of

the law to the detriment of the defendant.

By decision of 10

October 2001, file no. Pl. US 19/01-6, the Constitutional Court denied

the petition of the panel of the Supreme Court on grounds of a pending

suit under § 35 para. 2 of Act No. 182/1993 Coll., as amended by later

regulations, with the provision that the Supreme Court, as an entitled

petitioner, has, under § 35 para. 2 in fine of the Act on the

Constitutional Court, the right to participate as a secondary party in

discussions on the previously filed petition, i.e. the petition under

file no. Pl. US 15/01.

For the same reasons, the Constitutional

Court, by decisions of 20 September 2001, file no. Pl. US 23/01-10, of

28 August 2001, file no. Pl. US 26/01-11, of 18 September 2001, file no.

Pl. US 30/01-11, and of 10 October 2001, file no. Pl. US 32/01-10, also

denied the analogous petitions of the Supreme Court to annul § 272 of

the Criminal Procedure Code, with the provision that, in these matters

as well, the Supreme Court, as an entitled petitioner, has, under § 35

para. 2 in fine of the Act on the Constitutional Court, the right to

participate as a secondary party in discussions on the previously filed

petition, i.e. the petition under file no. Pl. US 15/01.
 


V.
 

The

text of § 272 of Act No. 141/1961 Coll., on Criminal Court Proceedings

(the Criminal Procedure Code), as amended by later regulations, whose

constitutionality is evaluated by the Constitutional Court in

proceedings on review of norms, is the following:

Ҥ 272

(1)

If the law was not violated to the detriment of the defendant, the

Supreme Court may proceed under § 269 para. 2 to § 271 only if the

Minister of Justice so proposed in a complaint for violation of the law

filed within six months of the contested decision and if the Supreme

Court decided on this complaint within three months after it was filed.

(2)

If the complaint for violation of the law cited in paragraph 1 was

submitted to the large senate of the collegium within three months after

it was filed, the Supreme Court may proceed under § 269 para. 2 to §

271 only if it decided on the complaint within three months after it was

transferred to the large senate of the collegium.”
 


VI.
 

Under

§ 68 para. 2 of Act No. 182/1993 Coll., as amended by later

regulations, the Constitutional Court, when deciding in proceedings to

annul statutes and other legal regulations, evaluates only the content

of these regulations in terms of their consistency with constitutional

acts, international agreements under Art. 10 of the Constitution, or

statutes, in the case of another legal regulation, and determines

whether they were passed and issued within the bounds of

constitutionally prescribed jurisdiction and in a constitutionally

prescribed manner. If, as part of review of norms, the Constitutional

Court evaluates the jurisdiction of a norm-creating body and the

constitutionality of the norm-creating process, it relies on § 66 para. 2

of the Act on the Constitutional Court, under which a petition in

proceedings to annul statutes and other legal regulations is

inadmissible if a constitutional act or an international agreement, with

which the reviewed regulations are inconsistent according to the

petition, ceased to have legal effect before the petition was delivered

to the Constitutional Court. This indicates that in the case of legal

regulations issued before the Constitution of the Czech Republic no.

1/1993 Coll. went into effect, the Constitutional Court is entitled to

review only whether their content is consistent with the existing

constitutional order, but not the constitutionality of the procedures n

which they were created and observance of norm-creating jurisdiction.

(See judgment file no. Pl. US 9/99, published in the Collection of

Judgments and Resolutions, vol. 16, pp. 13-14).

On the basis of

the cited interpretation of § 68 para. 2 of Act No. 182/1993 Coll., as

amended by later regulations, in the case of § 272 of the Criminal

Procedure Code the Constitutional Court reviewed whether the contested

statutory provision was passed and issued within the bounds of

constitutionally prescribed jurisdiction and in a constitutionally

prescribed manner only in terms of the amendments implemented after 1

January 1993. The Constitutional Court stated that the statute was

passed and issued within the bounds of constitutionally prescribed

jurisdiction and in a constitutionally prescribed manner.
.. .
 


VII.
VII/a
 

Under

§ 266 et seq. of the Criminal Procedure Code, a complaint for violation

of the law is an extraordinary remedial measure, which can only be

applied by the state and which can be used to obtain the annulment of a

decision by a court, state attorney or investigator which has gone into

effect. The Supreme Court, which has jurisdiction to decide about a

complaint for violation of the law (§ 266 para. 1 of the Criminal

Procedure Code) and, in addition to the authorization to issue an

academic verdict in the matter (§ 268 para. 2 of the Criminal Procedure

Code), is also empowered with “cassation” or appellate jurisdiction (§

269 para. 2, § 271 of the Criminal Procedure Code), in the event of a

complaint filed to the detriment of the defendant (§ 272 of the Criminal

Procedure Code).

The legal institution of a complaint for

violation of the law was introduced into the Czechoslovak legal order by

Act No. 87/1950 Coll., the Criminal Procedure Code, and then

transferred to other codifications of criminal procedure (Act No.

64/1956 Coll. and Act No. 141/1961 Coll.) and was also preserved in the

legal order of the Czech Republic after 1993 [§ 266 et seq. of Act No.

141/1961 Coll., on Criminal Court Proceedings (the Criminal Procedure

Code), as amended by later regulations].

Act No. 87/1950 Coll.

abandoned the previous concept of a democratic criminal trial and

assumed the Soviet totalitarian concept of Stalinist coinage. In

discussions of the outline of the Act by the National Assembly on 11

July 1950 in this regard, then Minister of Justice Rais declared: “If it

has been granted us to contribute to the socialist building of our

homeland by developing important new laws, including criminal

regulations, then above all we owe warm thanks to Soviet socialist legal

scholarship and the outstanding Soviet workers in the field of criminal

law. (Applause.) As in other fields, in criminal law as well Soviet

scholarship has undisputed primacy in the world. The Soviet Union’s

lawyers have lifted the problems of socialist criminal law to unseen

heights and worked through them in an unsurpassable manner, and, on the

basis of Marxist-Leninist teachings have enriched knowledge of criminal

law with new, important experiences, which bourgeois knowledge never

achieved and can not achieved, and with solutions which bourgeois

knowledge no longer even attempts. Knowledge of Soviet laws and Soviet

theory was a necessary and basic prerequisite for the formulation of our

new criminal laws, without which we could not, in such a short time,

complete the outline which the National Assembly is now discussing.

Obviously, during this process it was necessary to make connections to

our previous developments and to the historical experiences of our

working people. However, it must be emphasized that the substance of the

issues with which the new criminal law concerns itself was revealed and

exemplarily developed amid the experiences of the Soviet Union. The

results of legislative work on the new criminal laws are therefore a new

success, not only of our working class, but of Marxist-Leninist thought

in general, and especially of the socialist knowledge of the great

Soviet Union.” (see www.psp.cz)

Introduction of the institution

of a complaint for violation of the law to the detriment of the

defendant in the Criminal Procedure Code of 1950 was an expression of

strengthening the executive branch over the judicial branch

(particularly the prosecutor’s office as the “guard of socialist

legality”). It also came from lack of faith in the reliability of the

judicial branch as a repressive apparatus of the totalitarian state and

installed the possibility of using a central decision to achieve

revocation of any criminal law decision in effect, including to the

detriment of the defendant.

We can agree with the statements of

the Chairman of the Chamber of Deputies and the Minister of Justice that

the problem of the constitutionality of the institution of a complaint

for violation of the law was repeatedly addressed in the post-November

[1989] amendments to the Criminal Procedure Code, and was also viewed

critically in the theory of criminal procedural law (see e.g. P. Šámal,

Remedial Measures in Criminal Proceedings: the Complain for Violation of

the Law. Re-opening of Proceedings. Prague 1999, pp. 160-161).
 


VII/b
 

The

constitutional principles forming one of the components of the

fundamental right to a fair trial, include the principle of “equal

weapons”, or the principle of equal opportunity (or the principle of

equality of parties to proceedings) under Art. 37 para. 3 of the

Charter, Art. 96 para. 1 of the Constitution a Art. 6 para. 1 of the

Convention. This principle becomes especially important in criminal

proceedings, where, in relation to the defendant, it is closely tied to

the right to defense counsel, with the right to present factual and

legal arguments, and with the right to respond to all evidence admitted.

The principle of equality of the parties to criminal proceedings, apart

from the function of protecting the position of the defendant, who is

entitled to a presumption of innocence, is also part of the overall

concept of a democratic criminal trial, characterized by the principle

of adversarial proceedings.

The principle of “equal weapons” in

criminal proceedings is reflected in all stages of criminal proceedings,

as well as in all their aspects. Thus, it is applied both in trial

proceedings and in review proceedings, in the full scope of both, but

particularly in evidentiary proceedings (in proposing evidence, the

right to respond to admitted evidence, and so on). The principle of

“equal weapons” in criminal proceedings is not absolute; generally the

maxim applies that the state, in any context, is not entitled to more

rights or a more advantageous procedural position than the defendant

[cf. e.g. the time limitation on the state attorney’s authorization to

file a petition to re-open proceedings to the detriment of the defendant

under § 279 let. a) of the Criminal Procedure Code].

The

principle of “equal weapons” (Art. 6 para. 1 of the Convention) has been

markedly reflected in the case law of the European Court of Human

Rights. In this connection it can be characterized particularly by the

fact that in the Court’s opinion its foundation is the idea of equality,

wherefore it is comparable with the principle of the ban on

discrimination under Art. 14 of the Convention. In addition, in a

criminal trial it serves to protect the defendant, who is entitled to a

presumption of innocence until he is convicted, and is closely tied to

the adversarial nature of criminal proceedings. (See, in particular, the

cases Bönisch vs. Austria and Brandstetter vs. Austria – doctrinal

analysis is presented by, e.g., J. A. Frowein, W. Peukert, Europäische

Menschenrechtskonvention. EMRK-Kommentar. Kehl-Straßburg-Arlington 1996,

p. 219 et seq., M. de Salvia, Compendium de la CEDH.

Kehl-Straßburg-Arlington 1998, p. 147 et seq.)

Unlike all other

remedial measures provided by the Criminal Procedure Code, only the

complaint for violation of the law can be used by only one party – the

state. If the state, as a party in criminal proceedings (it can not be

considered decisive, which state body is entitled to act in the name of

the state at which stage of criminal proceedings), has at its disposal,

compared to the defendant, an additional procedural means, which

establishes the possibility of obtaining annulment of a final decision

in a criminal matter, one can not but conclude from this that there is

infringement of the defendant’s right to “equal weapons” in a criminal

trial, arising from Art. 37 para. 3 of the Charter, Art. 96 para. 1 of

the Constitution and Art. 6 para. 1 of the Convention.

If the

right to file a complaint for violation of the law to the benefit of the

defendant is removed from this statement, on the grounds of it being

seen as a procedural expression of a kind of “charity,” which is not

capable of interfering with the defendant’s rights in the area of

substantive law, the charge of unconstitutionality narrows to the

institution of a complaint for violation of the law to the detriment of

the defendant.

In the period before the Criminal Procedure Code

no. 87/1950 Coll. was passed, the Criminal Procedure Code in effect (Act

No. 119/1873 Imperial Laws, as amended by later regulations) contained,

in the group of extraordinary remedial measures, the complaint for a

breach of law aimed at preserving justice, which “in the interests of

uniformity of law” permitted “the general prosecutor the right, by his

official powers or by order of the Minister of Justice to appeal for a

decision of the Supreme Court on the question of whether the law was

violated by a particular 1. verdict, 2. decision or 3. procedure of a

criminal court (or state attorney’s office)” (J. Kallab, Criminal

Proceedings Textbook. Brno 1930, p. 207). However, as a rule the Supreme

Court’s decision had no effect on the defendant, it was only a matter

of “an authoritative resolution of a disputed, perhaps legal question,

without the courts being bound to take the opinion of the Supreme Court

as their own” (ibid., p. 208). The legal regime of the complaint for a

breach of law aimed at preserving justice  (§ 292 of Act No. 119/1873

Imperial Laws, as amended by later regulations) foresaw the consequences

for the defendant, reformation or cassation, only exceptionally, only

to the benefit of the defendant in the event of his being sentenced.

This recapitulation indicates that the legal regime contained in the

pre-February [1948] criminal procedure code in proceedings on the

complaint for a breach of law aimed at preserving justice filed to the

detriment of the defendant, enabled the acceptance of only an academic

verdict for purposes of unifying case law in resolving a given legal

issue, but did not permit detrimental or reformative effects for the

defendant. This concept of the complaint for a breach of law is still in

effect in Austria at the present time.

In a basic international

comparison, no parallel can be found for the institute of a complaint

for violation of the law, which is available to only one of the parties,

the state, and can be directed to the detriment of the defendant

against decisions by courts and bodies active in preliminary proceedings

which have gone into effect.

Merely as illustration, in this

connection we can mention, for example, the German legal regime. The

remedial measures established in the current criminal procedure code

(Act No. 253/1877 RGBl., as amended by later regulations) include the

institutions of complaints, appeals, revisions and re-opening of

proceedings, which fully meet the requirements arising under Art. 6 of

the Convention, i.e., including the principle of “equal weapons”.

The relevance of the charge of failure to accept the principle of

“equal weapons” appears even more pressing in cases of possible

application of a complaint for violation of the law to the detriment of

the defendant against decisions of bodies active in preliminary

proceedings (e.g., against decisions by the investigator or state

attorney to stop criminal prosecution). The leading principles of

criminal proceedings in a state governed by the rule of law, ever since

the age of enlightenment, include the accusation principle (§ 2 para. 8

of the Criminal Procedure Code), which overcame and replaced the

inquisition principle in criminal trials. Under the accusation

principle, institutional division among different procedural entities of

the procedural functions of preparing and filing an accusation, and

deciding on guilt and punishment is an essential part of the democratic

criminal trial, respecting the value of independent judicial decision

making. From a constitutional viewpoint this principle arises from Art.

80 para. 1, Art. 90 of the Constitution and Art. 40 para. 1 of the

Charter. If, in proceedings on a complaint for violation of the law

filed by the Minister of Justice to the detriment of the defendant

against a decision, which has gone into effect, by an investigator or

state attorney on stopping criminal procedure, the Supreme Court, under §

272 of the Criminal Procedure Code is authorized to annul the decision

and order the bodies active in preliminary proceedings to continue the

criminal prosecution, this authorization can not be characterized

otherwise than as unconstitutional interference with the precepts

related to the accusation principles in criminal proceedings. Under §

270 para. 4 of the Criminal Procedure Code, the body to which the matter

was assigned is bound by the legal opinion stated in the matter by the

Supreme Court, and is required to take the procedural steps which the

Supreme Court ordered. Thus, the Supreme Court significantly influences

the facts on which the filing of an indictment is based, and thus also

the accusation principle. In this regard we must also point to the

consistent growth in the number of complaints filed and their ratio to

decisions in preliminary proceedings.

If the position statement

of the Minister of Justice points to the positive effects of the

institution of a complaint for violation of the law to the detriment of

the defendant in the context of balancing with the period of

totalitarian despotism, the following must be stated:

The

amendment of the Criminal Procedure Code, no. 265/2001 Coll. introduces

the institution of appeal on a point of law to the detriment of the

defendant, which can be used to contest a court decision in the matter

which has gone into effect, and which is entrusted to the supreme state

attorney [§ 265a para. 1, § 265d para. 1 let. a) of the Criminal

Procedure Code, as amended by Act No. 265/2001 Coll.]. In relation to

decisions by lower state attorneys on stopping criminal prosecution or

assigning a matter which have gone into effect, the amendment introduces

the authority of the Supreme State Attorney to annul these decisions

due to their inconsistency with the law (§ 173a, § 174a of the Criminal

Procedure Code, as amended by Act No. 265/2001 Coll.). As of the day the

amendment to the Criminal Procedure Code implemented by Act No.

265/2001 Coll. went into effect, i.e. as of 1 January 2002, this creates

a legal mechanism which permits the state to effectively apply the

public interest in achieving the purpose of criminal proceedings, but at

the same time meet the requirements arising for a fair trial from Art.

37 para. 3 of the Charter and Art. 6 para. 1 of the Convention, i.e. in

particular the requirement of equality of the parties to the proceedings

(the requirement of “equal weapons”). Postponing the derogative effect

of the judgment of the Constitutional Court in the present matter to 31

December 2001 thus does not leave any gaps in the legal regime in terms

of the analyzed purpose of the extraordinary remedial measure.

In this context it must be pointed out that the Constitutional Court

extensively considered the question of equality of parties to criminal

proceedings and grounds for its possible restriction to the detriment of

the defendant in the matter file no. Pl. US 4/94. In connection with

the constitutionality of the institution of anonymous witnesses in

criminal proceedings, it stated: “The purpose of the right to a public

hearing, in connection with the right to respond to all evidence

presented, is to provide the defendant in a criminal trial the

opportunity to examine evidence against him, in full view of the public.

With witness testimony, this examination has two components: the first

is verifying the witness’s reliability; the second is verifying a

witness’s reliability. The institution of anonymous witnesses limits the

defendant’s opportunity to verify the truthfulness of witness testimony

directed against him, because it rules out the opportunity to speak

concerning the person of the witness and his reliability. Thus, it

limits his right to defend himself, and is inconsistent with the

principle of adversarial proceedings and the principle of equality of

participants. Restriction of fundamental rights and freedoms, even if

their constitutional regulation does not foresee it, can occur in the

even of conflict between them. In this regard, the maxim that a

fundamental right or freedom can be restricted only in the interest of

another fundamental right or freedom is fundamental. Mutual balancing of

fundamental rights and freedoms standing in conflict is based on the

following criteria: The first is the criterion of suitability, i.e. an

answer to the question of whether the institution restricting a certain

fundamental right makes it possible to achieve the pursued aim

(protection of another fundamental right). The second criterion for

balancing fundamental rights and freedoms is the criterion of necessity,

which consists of comparing the legislative means which restricts a

fundamental right or freedom with other measures which permit achieving

the same aim, but not affecting the fundamental rights and freedoms.

The third criterion is comparing the gravity of the two conflicting fundamental rights.”

In terms of the indicated precepts of the principle of reasonableness,

the institution of complaint for violation of the law to the detriment

of the defendant, breaking through the fundamental rights, arising from

the constitutional principle of equality, will not stand. Although its

aim may be protecting the public interest in just punishment of the

perpetrator of a crime, and thus the principle of the supremacy of the

law, it does not meet the condition of necessity, i.e. a condition which

consists of comparing the legislative means which restricts a

fundamental right or freedom with other measures which permit achieving

the same aim, but not affecting the fundamental rights and freedoms.

This fact comes to the foreground especially in connection with the

introduction of an extraordinary remedial measure – appeal on a point of

law – in criminal proceedings by the amendment to the Criminal

Procedure Code, no. 265/2001 Coll.

In connection with the

declared purpose of the exceptional use of the institution of a

complaint for violation of the law to the detriment of the defendant, we

must also point to the statistically proven rise in the ratio of

complaints filed to the detriment of the defendants.

If

annulment of § 272 of the Criminal Procedure Code impacts not only on

cases of violation of the law to the benefit of the defendant, but also

on all other cases where the law was not violated to the detriment of

the defendant, but was violated concerning other persons to whose

benefit or detriment the complaint was filed, and the court finds that

the law was violated to the detriment or benefit of such person other

than the defendant (e.g., a participating person, an expert witness in

connection with an expert’s fee, defense counsel in connection with his

fee and expenses, and so on), then, in the opinion of the Minister of

Justice, these cases would no longer be resolvable by a complaint for

violation of the law, nor could they be resolved by an imprecise appeal

on a point of law. However, this circumstance can not change anything on

the justifiability of annulling the institution of a complaint for

violation of the law to the detriment of the defendant. No legal order

is, or can be built ad infinitum, from the point of view of a set of

procedural means for protection of rights, or from the point of view of a

set of organizing levels of review. Every legal order generates, and

necessarily must generate, a certain number of errors. The purpose of

review proceedings can realistically be to approximately minimize these

errors, and not to completely eliminate them. Therefore, the system of

review levels is the result of balancing, on the one hand, the effort to

achieve the supremacy of the law, and on the other hand the

effectiveness of decision making and legal certainty. In terms of this

criterion, introducing extraordinary remedial measures, in other words

extending proceedings and breaking through the principle of

inalterability of decisions which have gone into effect is appropriate

only in the case of exceptional reasons. The reasons which the Minister

of Justice states in his position statement in this regard can not be

considered as such.

Based on all the cited reasons, the

Constitutional Court concluded that § 272 of Act No. 141/1961 Coll., the

Criminal Procedure Code, as amended by later regulations, is

inconsistent with Art. 37 para. 3 of the Charter and Art. 6 para. 1 of

the Convention, with regard to the possibility it establishes of

annulling, to the detriment of the defendant, decisions in preliminary

proceedings which have gone into effect, and also with Art. 80 para. 1

and Art. 90 of the Constitution and with Art. 40 para. 1 of the Charter,

wherefore the Plenum of the Constitutional Court decided to annul it.

In this context, the Constitutional Court points out that annulling §

272 of the Criminal Procedure Code annuls only the cassation and

appellate authority of the Supreme Court in proceedings on a complaint

for violation of the law filed to the detriment of the defendant, but

does not annul the proceedings as such, i.e. it does not annul the

possibility of issuing an academic verdict in a given matter for the

purpose of unifying case law pro futuro (§ 268 para. 2 of the Criminal

Procedure Code).
 


VII/c
 

During

the course of these proceedings before the Constitutional Court, § 272

of the Criminal Procedure Code was partly amended by Act No. 265/2001

Coll., which amends Act No. 141/1961 Coll., on Criminal Court

Proceedings (the Criminal Procedure Code), as amended by later

regulations, Act No. 140/1961 Coll., the Criminal Code, as amended by

later regulations, and certain other acts. Under no. I of point 199 "In §

272 para. 1 and 2 the words ‘within three months after filing’ are

replaced by the words ‘within six months after filing’.” This legal

regime is valid as of 31 July 2001, i.e. the day of distribution of part

102/2001 of the Collection of Laws, in which the Act was published;

under Art. XIV it goes into effect on 1 January 2002.

Under § 67

para. 1 of the Act on the Constitutional Court, grounds to stop

proceedings exist if a statute, another legal regulation, or their

individual provisions, which are proposed to be annulled, cease to be

valid before the termination of proceedings before the Constitutional

Court. The Constitutional Court has addressed the interpretation of

these statutory grounds for stopping proceedings in decision file no.

Pl. US 20/99, of 18 April 2001. It stated that if an amendment to a

statute annuls a particular provision, and simultaneously passes it, in

the same wording, but in a different place in the scheme of the statute,

this is a case of a new expression of will by the legislature, so the

provision originally contested by the petitioner ceased to be valid

before termination of proceedings before the Constitutional Court. In

this situation, the Constitutional Court concluded that grounds for

permitting a change to the petition under § 63 of the Act on the

Constitutional Court in connection with § 95 para. 1 and 2 of the Civil

Procedure Code do not exist.

However, the present matter involves

a different case, to which § 67 para. 1 of Act No. 182/1993 Coll., as

amended by later regulations, does not apply. The amendment to the

Criminal Procedure Code implemented by Act No. 265/2001 Coll. amended

only part of § 272 of the Criminal Procedure Code (by extending the

deadline for the Supreme Court’s decision making on a complaint for

violation of the law to the detriment of the defendant). This part is

not decisive from the viewpoint of grounds for evaluating the

constitutionality of the entire § 272 of the Criminal Procedure Code,

concerning the institution of complaint for violation of the law as

such.
 


VII/d
 

Under

§ 276 fourth sentence of the Criminal Procedure Code “securing a

defendant by issuing an arrest warrant and taking him into custody is

possible only if the Minister of Justice so proposes in a complaint for

violation of the law filed to the detriment of the defendant and if the

Supreme Court considers it necessary due to the seriousness of the crime

and the urgency of grounds for custody”.

This statutory

provision was not applied by the Supreme Court in the present matter,

and so conditions did not exist for proceeding under § 78 para. 2 of the

Act on the Constitutional Court.

In the settled opinion of the

Constitutional Court, the Court is bound in its decision making by the

scope of the filed petition, and may not step outside its limits (ultra

petitum) in its decision (see e.g. the judgment in the matter under file

no. Pl. US 8/95).

As a result of the annulment of § 272 of the

Criminal Procedure Code (that is, as a result of annulment of the

cassation, or appellate, authority of the Supreme Court in proceedings

on a complaint for violation of the law to the detriment of the

defendant), § 276 fourth sentence of the Criminal Procedure Code becomes

obsolete. By derogation from the elements contained in § 272 of the

Criminal Procedure Code the provision of § 276 fourth sentence of the

Criminal Procedure Code loses reasonable meaning: If the cassation, or

appellate, authority of the Supreme Court in proceedings on a complaint

for violation of the law to the detriment of the defendant is annulled,

and if the possibility of issuing only an academic verdict without a

specific impact on the defendant remains, then leaving the Supreme

Court’s authority to decide in such proceedings on the arrest or taking

into custody of the defendant can not be considered otherwise than as

contradictio in adiecto. In other words: In a situation where, as a

result of the annulment of a particular statutory provision by a

derogative judgment of the Constitutional Court another provision,

different in content from the first one, loses reasonable meaning, i.e.

loses the justification of its normative existence, this is grounds for

annulling this statutory provision as well, even without this being a

step ultra petitum. That provision ceases to be valid on the basis of

the principle of cessante ratione legis cessat lex ipsa; the derogation

made by the Constitutional Court is thus only of an evidentiary,

technical nature.

Due to the foregoing, the Plenum of the

Constitutional Court, in connection with the annulment of § 272 of the

Criminal Procedure Code, also annulled § 276 fourth sentence of the

Criminal Procedure Code.
 

For

the reasons set forth above, the Constitutional Court postponed the

effect of the derogative judgment, also in relation to § 276 fourth

sentence of the Criminal Procedure Code, to 31 December 2001.
 


VII/e
 

Beyond

the framework of rationis decidendi, only as obiter dictum, the

Constitutional Court considers it necessary to speak to the legal

consequences of this derogative judgment.

The first consequence is the impact of § 71 para. 1 of the Act on the Constitutional Court on the present matter.

If, on the basis of a legal regulation which was annulled, a court

issued a verdict in criminal proceedings which went into effect but has

not yet been executed, annulment of that legal regulation is, under the

cited statutory provision, grounds for re-opening proceedings under the

Act on Criminal Court Proceedings. However, the adjudicated matter does

not involve such grounds. Violation of the principle of “equal weapons”

in the legal regulation of active standing to file an extraordinary

remedial measure does not concern the constitutionality, or lawfulness

of actual proceedings before the Supreme Court, or proceedings connected

to them. Thus, annulment of § 272 of the Criminal Procedure Code does

not establish grounds for re-opening proceedings under § 71 para. 1 of

Act No. 182/1993 Coll., as amended by later regulations.

The

second consequence is the question of intertemporality of a derogative

judgment, i.e. the question of whether possible derogation from § 272 of

the Criminal Procedure Code also applies to cases in which the Minister

of Justice filed a complaint for violation of the law to the detriment

of the defendant, but, as of the day the annulling judgment went into

effect, the Supreme Court had not decided on it. As the Constitutional

Court is not authorized, in connection with its jurisdiction to annul

statutes and other legal regulations, or their individual provisions, or

in a positive manner regulate the arising intertemporal consequences,

in this regard we must refer to general legal principles. In the area of

intertemporality in civil and criminal trials, the principle applies

that, unless the law provides otherwise, the court proceeds according to

the procedural regulations valid and effective at the time of decision

making. In the adjudicated matter, annulling § 272 of the Criminal

Procedure Code annuls only the cassation and appellate authority of the

Supreme Court in proceedings on a complaint for violation of the law

filed to the detriment of the defendant, but does not annul the

proceedings as such, i.e. it does not annul the possibility of issuing

an academic verdict in a given matter for the purpose of unifying case

law pro futuro (§ 268 para. 2 of the Criminal Procedure Code). This

indicates that, in cases where the Minister of Justice filed a complaint

for violation of the law to the detriment of the defendant, but as of

the day the annulling judgment went into effect, the Supreme Court had

not decided on it, after the derogative decision of the Constitutional

Court goes into effect, only a decision by an academic verdict can be

made.

Instruction: Decisions of the Constitutional Court can not be appealed.

Brno, 31 October 2001

 

 


Pl. US 15/01
Dissenting Opinion
of

judge JUDr. V. Š. in the plenary matter of the petition of Panel III of

the Constitutional Court to annul § 272 the Criminal Procedure Code of

Act No. 141/1961 Coll.

In this dissenting opinion I express my

disagreement in this matter with the reasoning of the judgment of 31

October 2001, insofar as

a) the Plenum of the Constitutional

Court supports its conclusions with a “statistically proven rise in the

ratio of complaints filed to the detriment of the defendants (more

precisely, the sentenced party) in absolute and relative terms”,

b)

it derives the unconstitutionality of the provisions annulled by the

judgment, § 272 and § 276 third sentence of Act No. 141/1961 Coll., on

Criminal Court Proceedings (the Criminal Procedure Code), as amended by

later regulations (by reference to Art. 37 para. 1 of the Charter of

Fundamental Rights and Freedoms, and Art. 96 para. 1 of the Constitution

of the CR and Art. 6 para. 1 of the Convention for Protection of Human

Rights and Fundamental Freedoms) also from the principle of “equal

weapons”.

re a) One could speak of a statistically proven rise

(increase in the number of complaints filed to the detriment of

defendants) only if evidence of it were admitted in a hearing held by

the Plenum of the Constitutional Court, and if the claimed fact followed

from that evidence.

Under long settled procedural principles,

for one thing, evidence is admitted (by the court) in hearings (§ 48

para. 1 al. 1 of Act No. 182/1993 Coll., as amended by later

regulations, the “Act”), for another, although various means by which

the state of the matter can be determined (proven) can be considered

evidence (§ 49 para. 1 of the Act), but nevertheless admission of

evidence must always be conducted so that the parties to the proceedings

can exercise their procedural rights toward the evidence presented in

proceedings (§ 32 of the Act, § 123 of the Civil Procedure Code).

However, the Plenum of the Constitutional Court did not admit evidence

in the adjudicated matter; if the chairwoman of the Supreme Court of the

CR, in response to the request of the Constitutional Court (the

reporting judge), submitted the requested statistical data in two

filings (of 31 August 2001 and 5 September 2001), “for purposes of the

present proceedings”, this was – in terms of a hearing held by the

Plenum of the Constitutional Court – only a foregoing procedural act by

the reporting judge, whereby he secured documentary evidence (for the

hearing) (§ 42 para. 3 of the Act), but was not evidence presented by a

document in a hearing held by the Plenum of the Constitutional Court (§

48 para. 1 al. 1, 2 of the Act, § 129 of the Civil Procedure Code),

because the report of the reporting judge, even if it indicated the

evidentiary source, can not be considered evidence, let alone admitted

evidence.

Moreover, in the reasoning of the judgment of the

Constitutional Court the cited statistical data, in and of themselves,

do not demonstrate anything either in “absolute or relative terms”; they

can – without closer analysis (evaluation) – be interpreted both for

the arbitrariness of the decision making public bodies and for the

increasing shortcomings in the decision making of lower bodies active in

criminal matters, and for the arising need either for unification of

the decision making practice, especially of general courts (§ 28, § 29

of Act No. 335/1991 Coll., as amended by later regulations) or redress

of unlawfulness.

re b) The reasons for the judgment are based, among other things, on the so-called principle of equal weapons.

However, neither the Charter of Fundamental Rights and Freedoms (Art.

37 para. 3, or Art. 96 para. 1 of the Constitution of the CR) nor the

Convention for the Protection of Human Rights and Fundamental Freedoms

(Art. 6 para. 1) recognize such a principle, no matter how it may be

used in the foreign professional literature, and no matter how much it

has been domesticated in the Czech professional literature.

If

this principle means a fundamental idea or principle (for this, cf.,

e.g., Sborník jazyka českého), then in the intended meaning and in this

connection, the issue is equality of parties to the proceedings and not a

choice of procedural means which they use to apply (implement) their

rights through “weapons” in proceedings, usually before a court. The

so-called “equal weapons” are thus subordinate to the equality of the

parties to proceedings (it is included in it) and for this alone can not

be, as a derivative of it, considered a basic idea or a principle

which, moreover, in this case, is to be “reflected in all stages of

criminal proceedings”.

If a body active in criminal proceedings

unjustifiably denies the defendant (the accused) the right to respond to

admitted evidence, or if it restricts him in submitting evidence and

similarly (see paragraph two of VII/b in the reasoning of the judgment),

it does not thereby violate “the principle of equal weapons”, but quite

clearly violates either the principle of impartial proceedings, or,

generally and primarily, in the event of such error to the benefit of

another party to the proceedings (in this case to the benefit of the

state attorney’s office), the principle of equality of the parties to

proceedings (Art. 96 para. 1 of constitutional Act No. 1/1993 Coll.,

Art. 37 para. 3 of the Charter of Fundamental Rights and Freedoms).

The term “equal weapons” has its origins in various historical and

cultural conditions of Anglo-Saxon (American) law and its development,

and, as such, in our context, in determination of law (protection of

constitutionality), is unsuitable as a quasi-doctrinal tough concept and

moreover, elevating it to a principle and substituting it for the

principle of equality of parties to proceedings is unsuitable;

therefore, I am convinced that reference to it is not appropriate in the

decision making grounds of court decisions, including judgments (their

reasoning) of the of the Constitutional Court.

Brno, 13 November 2001