2004/11/30 - Pl. ÚS 15/04: Disciplinary Fines

30 November 2004

HEADNOTES

Disciplinary

fines are a penalty for an offense. They are set by law, and intended

as a preventive and also repressive measure by the state authority. They

can be imposed discretionarily, so that a possible discriminatory

effect in their being imposed on various subjects is not ruled out.

Thus, they are generally decisions on a criminal charge under Art. 6

par. 1 of the Convention.
In terms of the existence of effective

procedural guarantees or remedy, the existing wording of § 146 par. 2 of

the Criminal Procedure Code suffers from a constitutional defect, which

consists of the lack of a legal framework which meets the requirements

of Art. 6 par. 1 of the Convention in relation to persons who received a

disciplinary fine under § 66 of the Criminal Procedure Code in

preliminary proceedings by a police body or Public Prosecutor.

The

unconstitutionality of the existing §146 par. 2 of the Criminal

Procedure Code appears especially marked in cases (analogous to the on

which preceded the petition from panel IV of the Constitutional Court)

in which a disciplinary fine is imposed after the preliminary

proceedings have begun, but before criminal prosecution begins. The

Constitutional Court states that given the possibility of beginning

preliminary proceedings not by beginning criminal prosecution but by a

police body writing a record in which it states the facts because of

which it is starting criminal proceedings and how it learned of them (§

158 par. 3 of the Criminal Procedure Code), from a constitutional

viewpoint, the right of a police body to impose disciplinary fines –

N.B., without the possibility of judicial review – in this segment of

criminal proceedings can not stand under any circumstances.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, composed of its Chairman JUDr.

Pavel Rychetský and justice JUDr. Stanislav Balík, JUDr. František

Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivana Janů,

JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jan Musil, JUDr. Jiří

Nykodým, JUDr. Miloslav Výborný, JUDr. Eliška Wagnerová a JUDr. Michaela

Židlická, decided, on 30 November 2004, in the matter of a petition

from panel IV of the Constitutional Court seeking the annulment of § 146

par. 2 of the Criminal Procedure Code, with the consent of the parties

without ordering oral proceedings, as follows:

The

provision of § 146 par. 2 of Act no. 141/1961 Coll., on Criminal Court

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

regulations, is annulled as of 30 September 2005.

 


REASONING    
 

By

decision of 10 March 2004, file no. IV. ÚS 403/03, panel IV of the

Constitutional Court (the “panel”) suspended proceedings in the matter

of a constitutional complaint from Ing. J. N., represented by JUDr. J.

H., attorney. The complaint is aimed against a decision by the Public

Prosecutor of the District Public Prosecutor’s Office in Zlín of 25 June

2003, file no. Zn 2415/2003-5, and a decision of a body of the Police

of the Czech Republic, Criminal Police and Investigation Service in

Zlín, of 27 May 2003, ČTS: ORZL-1212/KPV-233-2003. The reason for the

suspension was the fact that panel IV of the Constitutional Court, after

reviewing all circumstances repeatedly and in detail, and in particular

taking into account a number of decisions by the European Court of

Human Rights, concluded that § 146 par. 2 of the Criminal Procedure Code

is in its essence unconstitutional, and that this unconstitutionality

can not be eliminated merely by interpretation or relying on a

constitutionally consistent interpretation of it.
 


I.
Circumstances of the Case
 

The plaintiff was one of two registered executives of M., spol. s r.o., with its registered office in Z.
 

A

body of the Police of the CR, District Headquarters Zlín, Criminal

Police and Investigation Service, department of business crimes, (the

“police body”) by record 19 March 2003, ČTS: ORZL-1212/KPV-233-2003, on

beginning actions in criminal proceedings under § 158 par. 3 of the

Criminal Procedure Code, began investigating facts indicating that a

crime defined in § 126 par. 2 of the Criminal Code had been committed.

In the description of the event, the police body stated that as of 28

January 2003 the plaintiff, Ing. J. N., and Ing. H. N., although they

were required to file a petition for bankruptcy as the statutory

representatives of the company M., spol. s r.o., but did not do so, even

though the company is over-indebted, has numerous creditors whom it has

not been able to for a long time, and is insolvent under § 1 par. 2 of

Act no. 328/1991 Coll., and by this conduct they caused damages in

unpaid health insurance in the amount of CZK - 1,549,185 to the

notifying party, Všeobecná zdravotní pojišťovna ČR, OP Zlín [the General

Health Insurance Company of the CR, Zlín office].
 

By a

notice to surrender a thing under § 78 par. 1 of the Criminal Procedure

Code, dated 9 April 2003, the police body called on the plaintiff to

surrender the company’s complete accounting from 1 January 1999, no

later than 11 April 2003 at 1 p.m.. At the same time, it instructed the

plaintiff that if he did not comply with the notice, he could be given a

disciplinary fine under § 66 of the Criminal Procedure Code of up to

CZK 50,000.
 

By decision of 27 May 2003, the police body

imposed a fine on the plaintiff under 66 par. 1 of the Criminal

Procedure Code, in the amount of CZK 20,000, on the grounds that,

despite its notice under  § 78 par. 1 of the Criminal Procedure Code, he

did not turn over the requested accounting documents, and did not

explain his conduct in any way, although he had promised to turn over

the accounting documents in an explanation of 19 March 2003. By official

letter of the same date, the plaintiff was again called on to surrender

a thing under § 78 par. 1 of the Criminal Procedure Code, with the

appropriate instructions.
 

On 17 June 2003 the plaintiff

filed a complaint under 141 of the Criminal Procedure Code against the

police body decision of 27 May 2003 imposing the disciplinary fine. In

it he objected that he can not be required, like a suspect, to hand over

to the police body materials which might lead to his conviction of a

crime. He stated that he did not yet have the complete accounting at his

disposal, and proposed that the decision be annulled.
 

By

decision of the Public Prosecutor of the District Public Prosecutor’s

Office in Zlín of 25 June 2003, file no. Zn 2415/2003-5, the complaint

was denied as groundless under § 148 par. 1 let. c) of the Criminal

Procedure Code. In the reasoning of his decision, the Public Prosecutor

said that the plaintiff did not respond to the previous notice in any

way. The plaintiff’s reference to the fundamental right against

self-incrimination was considered groundless, because under § 78 par. 1

of the Criminal Procedure Code everyone, i.e. including a suspect, who

has a thing which is important for criminal proceedings is required to

surrender it. There is also no doubt that a company’s accounting is

important for evaluating whether or not the crime of violation of

obligation in bankruptcy proceedings under § 126 par. 2 of the Criminal

Code has been committed. Regarding the plaintiff’s objection that the

complete accounting was not yet available, the Public Prosecutor said

that the plaintiff did not inform the police body of any problems with

turning over the complete accounting. He pointed to Act no. 563/1991

Coll., on Accounting, as amended by later regulations, under which an

accounting unit is required to record individual transactions on an

on-going basis.
 

In response to the Constitutional Court’s

question, the police body stated that the plaintiff, on the basis of a

repeated notice of 27 May 2003, delivered on 14 June 2003, voluntarily

turned over the accounting of the company M., spol. s r.o., (according

to the protocol on surrendering a thing of 21 July 2003) and it was

returned to him on 12 September 2003.

The text of § 66 of the Criminal Procedure Code reads:
“Disciplinary fine
§ 66
(1)

Anyone who, despite a previous reminder, cancels proceedings or behaves

insultingly to a court, Public Prosecutor, or police body, or who

without a sufficient excuse does not obey an order or does not comply

with a notice which was given to him under this Act may be given a fine

of up to CZK 50,000 by the chairman of the court panel, or, in

preliminary proceedings, by the Public Prosecutor or police body.
(2)

If the conduct described in paragraph 1 is committed by a member of the

armed forces or an armed unit on active duty, he may be handed over to

the appropriate commander or leader for disciplinary punishment. If such

conduct is committed by a person who is in custody or serving a prison

sentence, he may be handed over to the prison director for disciplinary

measures or punishment. The commander, leader, or director is required

to inform the body active in the criminal proceedings about the outcome.
(3)

If the conduct described in paragraph 1 is committed by a defense

attorney or, in proceedings before a court, a Public Prosecutor, he

shall be handed over to the appropriate body for disciplinary

prosecution. That body is required to inform the body active in criminal

proceedings about the outcome.
(4) A complaint may be filed against a decision under paragraphs 1 to 3, and it shall have suspensory effect.”
 


II.
Arguments of Panel IV in the Decision to Suspend Proceedings
 

As

regards the subject matter of the complaint, the panel concluded that

the legally effective decision to impose a disciplinary fine in the

amount of CZK 20,000 was, in view of its nature (financial penalty) and

the seriousness of the impending consequence (a fine to a maximum of CZK

50,000), a decision on a criminal charge under Art. 6 par. 1 of the

Convention for the Protection of Fundamental Rights and Freedoms (the

“Convention”), even though the definition of the offense does not fall

in the area of substantive criminal law, or the area of misdemeanors.

The panel then concluded that in Art. 36 par. 1 and 2 of the Charter and

Art. 6 par. 1 and Art. 13 of the Convention the plaintiff had, and has,

a constitutionally guaranteed right to a fair and public hearing within

a reasonable time by an independent and impartial tribunal established

by law, regarding the grounds for a disciplinary penalty imposed on him.
 

As

the European Court of Human Rights (the “ECHR”) has said many times,

article 6 par. 1 of the Convention guarantees everyone the right to have

any complaint related to criminal charges against him reviewed by an

independent and impartial tribunal. This provision thereby enshrines the

“right to a court,” where the right to access to a court, i.e. the

right to initiate court proceedings, is only one of its aspects; of

course, it is an aspect which de facto makes possible the enjoyment of

other guarantees provided in Art. 6 par. 1 of the Convention. (Kreuz v.

Poland, 2001, ECHR 3/2002).
 

Under Art. 13 of the

Convention, “Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity.” This article guarantees the

existence of a remedy in domestic law, through which the rights and

freedoms granted by the Convention can be exercised, however they are

enshrined in the domestic law. Thus, a consequence of this provision is

that it requires a domestic remedy which authorizes the evaluation of a

“defensible claim” (“grief defendable”) based on the Convention and

permitting adequate compensation to be made. The scope of the obligation

imposed on states parties by Art. 13 of the Convention changes

depending on the nature of the complaint. Nevertheless, the remedy

required by Art. 13 of the Convention must be “effective” both in legal

terms and in practice. However, the “effectiveness” of the “remedy”

under Art. 13 does not depend on certainty of a positive outcome for the

plaintiff (Čonka v. Belgium, 2002, ECHR 3/2002).
 

The

panel believes that Art. 6 par. 1 of the Convention includes fundamental

rights contained in the remaining cited articles of the Charter and the

Convention; for that reason it subsequently cited only Art. 6 par. 1 of

the Convention (see, e.g. ECHR decision in the matter Lauko v.

Slovakia, 1998, paragraph 61.).

Procedural Remedies Provided by the Criminal Procedure Code
Ҥ 146
Proceedings Before a Body against Whose Decision a Complaint is Aimed
(1)

The body against whose decision a complaint is aimed may grant the

complaint itself, if the change of the original decision does not affect

the rights of another party in the criminal proceedings. In the case of

a decision by a police body which was issued with the prior consent of a

Public Prosecutor or at his instruction, the police body may grant the

complaint itself only with the prior consent of the Public Prosecutor.
(2)

If the deadline for filing a complaint has already expired for all

authorized persons and the complaint was not granted under paragraph 1,

the matter shall be submitted for a decision:
a) by the police body

to the Public Prosecutor who supervises the preliminary proceedings, and

in the event of a complaint against a decision to which that Public

Prosecutor consented or gave an instruction, through him to his superior

Public Prosecutor,
b) by a Public Prosecutor to his superior Public Prosecutor or a court,
c)

by the Chairman of a District Court panel to the Regional Court, the

Chairman of a Regional Court panel to the superior High Court, and the

Chairman of a High Court panel to the Supreme Court; if necessary, he

shall give a copy of the complaint to the Public Prosecutor and to any

person who could be directly affected by a decision on the complaint,
d) a Public Prosecutor in the Supreme Public Prosecutor’s Office to the supreme Public Prosecutor.”

In the panel’s opinion, we can conclude the following from the foregoing legal regulation:
-  

 A person who was given a disciplinary fine under § 66 of the Criminal

Procedure Code by a panel chairman has at his disposal a remedy (a

complaint) which is decided by a superior complaint court (a Regional

Court, High Court, or the Supreme Court), always in a panel composed of

three judges [§19 par. 2, §27, §31 par. 2 let. b) of Act no. 6/2002

Coll., as amended], that is, bodies which meet the criteria of an

independent and impartial tribunal under Art. 6 par. 1 of the

Convention. Thus, § 146 par. 2 of the Criminal Procedure Code ensures

for these persons the ability to exercise their procedural right to

judicial protection.

-    A person who was given a disciplinary

fine under § 66 of the Criminal Procedure Code in preliminary

proceedings by a police body or a Public Prosecutor also has a remedy (a

complaint) at his disposal. However, in these case the complaint

deciding body is not a court, but a Public Prosecutor who supervises the

preliminary proceedings (if the fine was imposed by a police body), or a

superior Public Prosecutor. However, in this case these complaint

deciding bodies can not be considered to meet the criteria of an

independent and impartial tribunal under Art. 6 par. 1 of the

Convention. Thus, § 146 of the Criminal Procedure Code does not

guarantee persons thus penalized an opportunity to exercise the

constitutional procedural right to judicial protection enshrined in Art.

6 par. 1 of the Convention. Moreover, these persons are in a

constitutionally unacceptable unequal procedural position in terms of

exercising the fundamental right enshrined in Art. 6 par. 1 of the

Convention, compared to persons who were given a disciplinary fine under

§ 66 of the Criminal Procedure Code by a panel chairman, which can be

considered a violation of the equal rights enshrined in Art. 1 of the

Charter.

The panel considers the cited § 146 par. 2 of the

Criminal Procedure Code to be unconstitutional to that extent, for the

reasons given above.
 

In the panel’s opinion, in terms of a

narrow view of the text of this constitutional act, there can be no

objection to the existing legal framework in § 146 par. 2 of the

Criminal Procedure Code, insofar as it provides that a complaint

regarding a disciplinary fine shall be submitted by a police body to the

Public Prosecutor supervising preliminary proceedings, or by a Public

Prosecutor to his superior Public Prosecutor. It is up to the

legislature how to regulate the procedural guarantees of the lawfulness

of a decision to impose a disciplinary fine, or how many remedies it

permits. However, from a wider viewpoint, in terms of the existence of

effective procedural guarantees or remedies, the panel is forced to say

that this provision suffers from a constitutional defect in the scope

explained above, the essence of which lies in the absence of a legal

framework which meets the requirements of Art. 6 par. 1 of the

Convention.
 

As regards the unconstitutional gaps in the

Act, the Senate pointed to an article by Vojtěch Šimíček, “Opomenutí

zákonodárce jako porušení základních práv” [Legislative Omission as a

Violation of Fundamental Rights] in the gazette “Deset let listiny

základních práv a svobod v právním řádu České republiky a Slovenské

republiky,” [Ten Years of the Charter of Fundamental Rights and Freedoms

in the Legal Order of the Czech Republic and the Slovak Republic] Brno

2001, and the case law of the German Constitutional Court cited therein,

as well as to the Constitutional Court judgment in the matter file no.

Pl. ÚS 36/01. In such cases, the German Constitutional Court, in the

verdict of its decision, may only state that the existing legal

framework violates Art. 6 par. 1 of the Convention by not permitting a

particular group of persons to exercise their constitutional procedural

rights.
 

However, in view of the need to correct the

existing unconstitutional situation, the Senate is of the opinion that a

mere statement that the relevant provisions of the Criminal Procedure

Code are unconstitutional, in the sense that they contain

unconstitutional gaps, will not suffice. In its opinion, § 146 par. 2 of

the Criminal Procedure Code should be annulled, either entirely or only

in part, and the legislature should be given an appropriate time to

make such amendments to Part One, Chapter Seven – The Complaint and

Proceedings Thereon (§§ 141 - 150), of the Criminal Procedure Code, as

would meet the requirements of Art. 6 par. 1 of the Convention.

 

If

§ 146 par. 2 of the Criminal Procedure Code were partly annulled, this

would annul in let. a) the words “to the Public Prosecutor who

supervises the preliminary proceedings, …in the event of a complaint

against a decision to which that Public Prosecutor consented or gave an

instruction, through him to his superior Public Prosecutor …,” and in

let. b) the words: “b)” and “...to his superior Public Prosecutor or …,”

and the entire letter d), so that § 146 par. 2 of the Criminal

Procedure Code would then read:
“(2) If the deadline for filing a

complaint has already expired for all authorized persons and the

complaint was not granted under paragraph 1, the matter shall be

submitted for a decision:
a) by a police body or Public Prosecutor to a court,
c)

by the Chairman of a District Court panel to the superior Regional

Court, the Chairman of a Regional Court panel to the superior High

Court, and a Chairman of a High Court panel to the Supreme court; if

necessary, he shall give a copy of the complaint to the Public

Prosecutor and to any person who could be directly affected by a

decision on the complaint.”
 

The Senate also stated that

in its opinion the gap in the law can not be overcome by any supporting

application of civil or administrative procedural regulations, in

particular in view of their different purpose, the court jurisdiction

provided in them, and the related principle contained in Art. 2 par. 2

of the Charter, under which the state authority may be asserted only in

cases and within the bounds provided for by law and only in the manner

prescribed by law. It is evident that civil and administrative

procedural regulations do not presume any judicial review of the

lawfulness of disciplinary fines imposed in criminal proceedings, and

thus do not presume any real influence by the civil or administrative

courts on criminal proceedings.
 

Similarly, the

possibility of review of a decision on a disciplinary fine by the

Constitutional Court within proceedings on a constitutional complaint

must be rejected. Otherwise, the Constitutional Court would find itself

in the position of an appeals court, although it is not, and can not be,

an appeals court in the general court system.
 

For all

the foregoing reasons, the panel decided, under § 78 par. 2 of Act no.

182/1993 Coll., on the Constitutional Court, as amended, to suspend the

proceedings and submit a petition to the Plenum of the Constitutional

Court seeking full, or partial, annulment of § 146 par. 2 of the

Criminal Procedure Code.

 


III.
Statements of the Parties and the Ministry of Justice
 

The

statement submitted regarding the petition by the Chamber of Deputies

of the Parliament of the Czech Republic on 27 April 2004, signed by its

Chairman, PhDr. Lubomír Zaorálek, states that to evaluate this matter

one must first consider the question whether Art. 6 par. 1 of the

Convention applies to decision making on complaints against decisions.

It describes how the concept of a “criminal charge” is understood in the

case law of the European Court of Human Rights, e.g. in the matter

Engel and others v. the Netherlands. It also points to the

Constitutional Court judgment in the matter Pl. ÚS 28/98 (Collection of

Decisions of the Constitutional Court, volume 16, p. 185 et seq.), in

which the Constitutional Court concluded that in the legal order of the

Czech Republic, fines are a penalty for an offense under Art. 6 par. 1

of the Convention. It also points to the fact that the Constitutional

Court has already in the past considered a factually analogous case, and

in its decision of 28 January 2003 in the matter II. ÚS 118/01 it

stated that it found no grounds to evaluate the constitutionality of

applied substantive and procedural law. In view of the case law of the

ECHR and of the Constitutional Court, we must agree with the opinion

that the Public Prosecutor is not a body which meets the criteria of an

independent and impartial tribunal under Art. 6 par. 1 of the

Convention. In conclusion, the statement said that the legislature acted

in the belief that the statute was consistent with the Constitution,

the constitutional order, and the legal order of the Czech Republic. It

is up to the Constitutional Court to evaluate the constitutionality of

this statute in connection with the petition and issue an appropriate

decision.
 

The statement submitted regarding the petition

by the Senate of the Parliament of the Czech Republic on 26 April 2004,

signed by the Chairman of the Senate, Doc. JUDr. P. P., states that §

146 par. 2 has been part of the Criminal Procedure Code from the day the

Code was passed by the National Assembly, i.e. 29 November1961. It has

had no changes until the present day as regards the constitutional

problem at issue. Several amendments of the provision have made only

formal changes in the wording in relation to changes in the structure

and names of individual bodies active in criminal proceedings. The

Senate of the Parliament of the Czech Republic was created and began its

constitutional functioning in December 1996. The Senate can not give

the Constitutional Court a statement on the matter based on direct

discussion and passing of the relevant Criminal Procedure Code

provision, or the entire institution of proceedings on a complaint,

because these legislative events took place before it was created.
 

In

the time of the Senate’s existence, this subject matter was affected

only by the “large amendment” to the Criminal Procedure Code" (Act no.

265/2001 Coll.), which added to § 146 par. 2 the rule that a complaint

against a decision by a Public Prosecutor in the Supreme Public

Prosecutor’s Office shall be decided by the Supreme Public Prosecutor,

which means a certain confirmation of the criticized model, and

expansion of § 146a, which provides a list of complaints against

decisions by a Public Prosecutor or a police body in matters of securing

persons and property which must be decided exclusively by a court. In

the Senate’s discussion of the draft “large amendment” to the Criminal

Procedure Code the issue of deciding on complaints was not discussed by

name.
 

The statement filed at the request of the

Constitutional Court by the Ministry of Justice on 22 April 2004, signed

by the justice minister, JUDr. K. Č., states that in terms of the

guarantees which should be provided in proceedings on imposing a

disciplinary fine to the person being fined, the key concept is

“criminal charge” under article 6 of the Convention. The ministry

pointed to an article by JUDr. J. K. "K některým aspektům zásady ne bis

in idem ve světle judikatury Evropského soudu pro lidská práva" [“On

Certain Aspects of the ne bis in idem Principle in Light of the Case Law

of the European Court of Human Rights”], Trestní právo [Criminal Law]

1/2004, p. 24, which cites the ECHR judgment in the matter Engel and

others v. the Netherlands, and states that ECHR case law in this area is

very casuist, and therefore it is not easy to determine to which

proceedings on which offenses under domestic law the guarantees of

article 6 of the Convention apply.
 

The ministry also

pointed to the ECHR’s recent decision on the admissibility of a

complaint, T. J. v. The Slovak Republic, concerning imposing a

disciplinary fine in criminal proceedings, the reasoning of which

indicates that article 6 of the Convention does not apply to proceedings

on imposing a disciplinary fine within criminal proceedings and that

the guarantees provided in proceedings which decide on a criminal charge

do not extend to proceedings on imposing a disciplinary fine. The

ministry concluded from that decision that the regulation of proceedings

on imposing a disciplinary fine and the regulation of proceedings on a

complaint in the Criminal Procedure Code do not suffer from a

constitutional deficit, and guarantee the parties sufficient rights. It

proposed that § 146 par. 2 of the Criminal Procedure Code be left in its

present form.
 

 


IV.

Constitutional Court Case Law Concerning Disciplinary Fines
 

The Constitutional Court has considered disciplinary fines in civil, administrative and criminal proceedings several times.
 

In

its judgment file no. Pl. ÚS 28/98 (Collection of Decisions of the

Constitutional Court, volume 16, judgment no. 161, p. 185, 2/2000 Coll.)

the Court concluded that disciplinary fines imposed in administrative

law and as part of inspection activities are, by there nature, generally

capable of interfering in an individual’s fundamental rights and

freedoms depending on the amount of the fine and the possibility of

being imposed repeatedly. They may be issued on a discretionary basis,

so that a discriminatory effect in their imposition on various persons

can not be ruled out. They are a penalty for an offense under Art. 6

par. 1 of the European Convention. They are provided by law, and

intended as a preventive and repressive measure by the state power.

Therefore, the amount of the fines must be balanced with the nature of

crimes for which a monetary punishment can also be imposed. There are

tens of such crimes in our Criminal Code, and they are related to the

issues of conducting certain legal processes and inspections (those

similar in nature are, e.g., § 124a to 124c, § 125, § 129, § 145a, §

148a, § 169b, § 171, § 175, 176, § 255, and § 257a of the Criminal

Code). Under § 53 of the Criminal Code, a monetary punishment consists

of the obligation to pay the state from CZK 2 thousand to CZK 5 million.

In these cases, the right to a fair trial is guaranteed. Thus, if the

punishment for these crimes takes the form of a monetary punishment

(often lower than a disciplinary fine) under Art. 6 par. 1 of the

European Convention, there are no reasonable grounds why this could not

be the case with disciplinary fines, where causation is often not even

required.
 

Similarly, in its judgment file no. I. ÚS

211/99 (Collection of Decisions of the Constitutional Court, volume 20,

no. 152) the Constitutional Court stated that disciplinary fines imposed

in civil court proceedings are also capable of interfering in

fundamental rights and freedoms, and the Constitutional Court therefore

sees no rational and constitutionally acceptable reason for a different

evaluation of disciplinary fines imposed within individual types of

proceedings, all the more so because the purpose of civil court

proceedings is to ensure just protection of the rights and authorized

interests of the parties.
 

The Constitutional Court

considered disciplinary fines imposed under § 66 of the Criminal

Procedure Code in its judgment in the matter file no. IV. ÚS 13/99

(Collection of Decisions of the Constitutional Court, volume 15, no.

120). The Constitutional Court annulled a decision by an investigator of

the Investigation Office of the CR and a decision by the District

Public Prosecutor’s Office which imposed a disciplinary fine of CZK

20,000 Kč on the plaintiff, a natural person, for not responding to a

notice. The reason for cassation of these decisions was a finding that

the plaintiff was not authorized to handle the required data, and that

it was thus appropriate to impose a disciplinary fine on the company,

and not its employee. The Constitutional Court panel did not consider

the question of lack of judicial review.
 

Similarly, in

its judgment in the matter file no. II. ÚS 118/01 (Collection of

Decisions of the Constitutional Court, volume 29, no. 13) the

Constitutional Court annulled a decision by the District Public

Prosecutor and a decision by a police body imposing a disciplinary fine

of CZK 15,000. The constitutional complaint was granted primarily

because, for one thing, the criminal proceedings in that case did not

progress to the point of preliminary proceedings, so that (under the

then valid regulation of criminal proceedings) notice to surrender a

cash book could not be given, and thus a disciplinary fine could not be

imposed either, and for another because in that case the imposition of a

disciplinary fine forced the plaintiff to cooperate in presenting

evidence which could incriminate him. In this case as well, the

Constitutional Court panel did not consider the issue of lack of

judicial review.
 

In its decision in the matter file no.

III. ÚS 315/03 the Constitutional Court rejected a constitutional

complaint against a decision by the Police of the CR and a decision by a

District Public Prosecutor’s Office on a disciplinary fine of CZK 5,000

Kč imposed under § 66 of the Criminal Procedure Code, on the grounds

that the steps taken by the public authorities were in accordance with

the Criminal Procedure Code. The Constitutional Court panel did not

consider the issue of lack of judicial review.
 

In all

three of these cases the subject matter of the constitutional complaint

was a legally effective decision imposing a disciplinary fine under § 66

of the Criminal Procedure Code. At the first level the decisions were

made by a police body. Subsequent complaints were denied by a Public

Prosecutor. All the cited constitutional complaints were addressed

substantively by the Constitutional Court panels. Of course, none of the

deciding panels of the Constitutional Court considered the issue where

the existing law sufficiently provides the constitutional guarantees

enshrined in Art. 6 of the Convention.
 


V.
ECHR Case Law Relating to Disciplinary Fines
 

The

ECHR case law in evaluating this issue is considerably casuistic and

non-uniform, as can be seen, e.g. in the ECHR decisions Engel and others

v. the Netherlands, 1976, Ötztürk v. Germany, 1984, Weber v.

Switzerland, 1990, Ravnsborg v. Sweden, 1994, Putz v. Austria, 1996,

Lauko v. Slovakia, 1998, Jurík v. Slovakia, 2003.
 

The

test which the ECHR applies when evaluating whether a particular penalty

is “criminal” was formulated in the ECHR decision in the matter Engel

and others v. the Netherlands, 1976. First of all, it is necessary to

determine whether under the legal system of the state, the provision

which defines an offense belongs in the area of criminal law,

disciplinary law, or both simultaneously. Of course, this is only a

starting point, and the facts thus acquired are of only formal and

relative value. Of greater importance is the substance of the offense,

but primarily the strictness of the penalty which can be imposed on the

affected person. The ECHR takes these criteria into consideration when

evaluating whether the plaintiff was subject to a “criminal charge”

under Art. 6 par. 1 of the Convention.
 

However, one can

conclude from these ECHR decisions that the test applied by the ECHR is

not completely satisfactory, in particular when evaluating whether a

particular disciplinary punishment provided in domestic law is a

“criminal charge” under Art. 6 par. 1 of the Convention.
 

For

example, in the matter Weber v. Switzerland, 1990, a court imposed a

disciplinary fine on the plaintiff in the amount of 300 Swiss francs for

violating the confidentiality of a criminal investigation. The ECHR

concluded that the disciplinary fine imposed by a court was a criminal

charge under Art. 6 par. 1 and 3 of the Convention.
 

In

contrast, in the matter Ravnsborg v. Sweden, 1994, courts of various

levels gave the plaintiff 3 disciplinary fines for inappropriate

expressions in written submissions. The ECHR concluded that Art. 6 par. 1

of the Convention does not apply to these violations. It stated that

the rules permitting a court to penalize improper conduct in proceedings

before it are a common element of legal systems in the states parties.

These rules and penalties are derived from the essential power of a

court to ensure the proper and orderly conduct of court proceedings.

Measures ordered by a court under such rules are more similar to the

exercise of disciplinary authority than the imposition of punishment for

causing a crime.

 

The reasoning of the ECHR

decisions in the matters Jurík v. Slovakia, 2003 and the decision in the

matter Putz v. Austria, 1996 (see below) are based on the same

foundation as the Ravnsborg matter.
 

In 1985 the Austrian

courts conducted criminal proceedings against Mr. Putz (in connection

with bankruptcies). During proceedings at the Regional Court in Wels he

was given two fines for disrupting court proceedings. He was given the

third fine by the Appeals court in Linz. The plaintiff claimed, among

other things, violation of Art. 6 and Art. 13 of the Convention, saying

that he was not given a fair trial before an impartial tribunal or any

effective remedy in terms of the decisions on disciplinary fines. The

ECHR concluded that there was no violation of the Convention, which it

justified primarily on the grounds that the provisions concerning

disruption of court proceedings are not part of Austrian criminal law.

As regards the nature of the offense, the rules permitting a court to

punish improper conduct in proceedings before it are a common feature of

the legal systems of the states parties. Such rules and penalties are

derived from the court’s own power to ensure the appropriate and

disciplined conduct of its proceedings. The measures ordered by the

courts under such rules are more similar to the exercise of disciplinary

authority than imposing punishments for committing a crime. The ECHR

concluded from this that the kind of unlawful conduct for which the

plaintiff was fined falls outside the reach of article 6 of the

Convention. As regards the nature and degree of severity of the penalty,

the ECHR was of the opinion that what was at stake in that case was not

sufficiently important to merit classification of the offense as a

“crime.”
 

Judge de Meyer filed a dissenting opinion in the

last cited ECHR decision in the matter of Mr. Putz, particularly as

regards the overly narrow interpretation of the term “criminal charge”

contained in Art. 6 par. 1 of the Convention.
 

In his

opinion, experience has shown that the test in the decision Engel and

others v. the Netherlands, and the criteria applied in it, are not very

satisfactory. The decision itself expressly states that the elements

provided by the first criterion, i.e. classification of the offense in

domestic law, “have only a formal and relative value.” From that point

of view, it should have been of no importance that “the fines imposed on

Mr. Putz were based” not on the criminal code, but on the criminal

procedure code, the law on courts, and the law on civil proceedings.

None of that can justify an exception from the obligation to meet the

principles of a fair trial.
 

The ECHR clarified the

importance of the second criterion – the nature of the offense – in

terms of distinguishing criminal law from procedural provisions, in the

decision Weber v. Switzerland, 1990, where it stated that disciplinary

fines are generally imposed to ensure that members of special groups

observe special rules which govern their conduct (par. 33). As regards

proceedings before courts, the ECHR said in the same decision that “the

parties … only take part in the proceedings as people subject to the

jurisdiction of the courts, and they therefore do not come within the

disciplinary sphere of the judicial system.” Therefore, in judge de

Meyer’s opinion, it is hard to understand, in what way the Ravnsborg and

Putz cases (to which, in the opinion of the ECHR, article 6 of the

Convention did not apply, because the measures applied against these two

plaintiffs were “more akin to the exercise of disciplinary powers than

to the imposition of a punishment for commission of a criminal offence”)

(Ravnsborg, par. 33 and 34), can differ from the decision in Mr.

Weber’s case. Just like Mr. Weber, so Mr. Putz and Mr. Ravnsborg also

did nothing more than “take part in the proceedings as people subject to

the jurisdiction of the courts,” and the provisions which were applied

to them, just like those applied to Mr. Weber, “potentially affects the

whole population.”
 

Likewise, application of the third

criterion, the degree of severity of the punishment which the affected

person faces, led to different conclusions in these cases, which clearly

shows that it is inadequate. The severity of a penalty may be taken

into consideration in order to ascertain that it was fair, in particular

in light of the proportionality principle, or to examine more closely

the way in which it was imposed, or to determine if it requires there to

be a remedy.
 

In conclusion judge de Meyer stated that

any sanction imposed on someone on account of conduct for particular

behavior which can be considered to be a deterrent is a “penalty” and

accordingly, by its very “nature” comes within the criminal sphere. This

must certainly be true of any pecuniary or custodial sanction. Such

sanctions can only be imposed on someone by, or under the supervision

of, a judicial authority that afford the person concerned the safeguards

laid down more or less perfectly in Article 6 of the Convention. It is

for the states to ensure this, under the supervision of the ECHR.
 

Nevertheless,

in matters concerning, for example, discipline within the armed forces,

or a code of conduct within a professional association, the judicial

nature, independence and impartiality of the authority imposing the

sanction do not necessarily have to be assessed in the same way as where

a case is being tried under the ordinary criminal law. When exercising

disciplinary powers, a hierarchical superior or a professional

disciplinary council does not have to be regarded a priori as being a

tribunal less independent or less impartial than an “ordinary” court or

jury in relation to an offense under the ordinary law. However, at all

events, in the fields covered by special sanction systems, as well as

under the general criminal law, the trial must be a fair one. In order

for it to be so, it is necessary, among other things, that the sanction

should be reasonably proportionate to the offense, and that an adequate

appeal against it should lie, if it exceeds a certainly threshold of

severity.
 

The case of Mr. Putz came not so much within

the field of maintaining order in proceedings as within that of

challenging a judge, bringing an action against a judge for misuse of

his authority, or disqualification on the ground of reasonable suspicion

of bias. This aspect of the case, taken together with the fact that the

applicant had no remedy against the decisions, led the judge to

conclude that Mr. Putz did not have a fair trial. Because there were no

remedies, in the judge’s opinion there was also violation of Art. 13 of

the Convention.
 


VI.
Evaluation by the Plenum of the Constitutional Court
 

After

evaluating all the foregoing opinions and statements, the Plenum of the

Constitutional Court concluded that the petition of panel IV to annul

the entire § 146 par. 2 of the Criminal Procedure Code is justified.
 

The

fact that the Plenum of the Constitutional Court considers disciplinary

fines to be by their nature capable of interfering in fundamental

rights and freedoms, depending on their amount and the possibility of

being imposed repeatedly is clear from its judgment in the matter Pl. ÚS

28/98. The Constitutional Court found no grounds to diverge from the

opinion stated in that case. Disciplinary fines are a penalty for an

offense. They are set by law, and intended as a preventive and also

repressive measure by the state authority. They can be imposed

discretionarily, so that a possible discriminatory effect in their being

imposed on various subjects is not ruled out. Thus, they are generally

decisions on a criminal charge under Art. 6 par. 1 of the Convention.
 

We

must also conclude from that statement that a person affected by a

disciplinary fine must have at his disposal the constitutional

procedural guarantees required in Art. 6 par. 1 of the Convention, under

which “In the determination of … any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law.”
 

Therefore,

the Plenum of the Constitutional Court accepted the foregoing opinion

of panel IV, that, in terms of the existence of effective procedural

guarantees or remedy, the existing wording of § 146 par. 2 of the

Criminal Procedure Code suffers from a constitutional defect, which

consists of the lack of a legal framework which meets the requirements

of Art. 6 par. 1 of the Convention in relation to persons who received a

disciplinary fine under § 66 of the Criminal Procedure Code in

preliminary proceedings by a police body or Public Prosecutor. Thus, §

146 par. 2 of the Criminal Procedure Code does not guarantee persons

thus affected the ability to exercise the constitutional procedural

right to judicial protection enshrined in Art. 6 par. 1 of the

Convention. Moreover, these persons are in a constitutionally

unacceptable, unequal procedural position in terms of the practical

exercise of the fundamental right enshrined in Art. 6 par. 1 of the

Convention, in comparison with persons who were given a disciplinary

fine under § 66 of the Criminal Procedure Code by the chairman of a

court panel, which can be considered violation of the equal rights

enshrined in Art. 1 of the Charter.
 

The

unconstitutionality of the existing §146 par. 2 of the Criminal

Procedure Code appears especially marked in cases (analogous to the on

which preceded the petition from panel IV of the Constitutional Court)

in which a disciplinary fine is imposed after the preliminary

proceedings have begun, but before criminal prosecution begins. The

Constitutional Court states that given the possibility of beginning

preliminary proceedings not by beginning criminal prosecution but by a

police body writing a record in which it states the facts because of

which it is starting criminal proceedings and how it learned of them (§

158 par. 3 of the Criminal Procedure Code), from a constitutional

viewpoint, the right of a police body to impose disciplinary fines –

N.B., without the possibility of judicial review – in this segment of

criminal proceedings can not stand under any circumstances. The question

whether the possibility of beginning preliminary proceedings by a

record by a police body is constitutionally parallel, but could not be

addressed by the Constitutional Court in these proceedings, in view of

the contents of the petition from panel IV of the Constitutional Court.
 

The

majority opinion of the Plenum of the Constitutional Court did not

incline to the possibility of annulling the contested § 146 par. 2 of

the Criminal Procedure Code only in part, because by doing so it would -

de facto in the role of a positive legislature – change the statutorily

provided system of remedies against a decision to impose a disciplinary

fine (or not only a fine) (not to mention the fact that these parts of §

146 par. 2 are not unconstitutional in and of themselves; what is

unconstitutional is the gap in the law), although naturally an advantage

of that approach would be the immediate correction of an

unconstitutional statutory provision.
 

The

unconstitutionality of § 146 par. 2 of the Criminal Procedure Code does

not arise from analysis of that provision itself, but from the

constitutional gap contained in it, which the Constitutional Court finds

to exist. In view of the need to correct the existing unconstitutional

situation, the Constitutional Court is of the opinion that a positive

act by the legislature is necessary to remove the unconstitutional gaps

in the law, which may be set in motion only by annulling an individual

provision of the statute which contains the unconstitutional gap, in

this case § 146 par. 2 of the Criminal Procedure Code, with the

provision that the legislature will be given an appropriate time to make

such amendments to Part One, Chapter Seven – Complaints and Proceedings

on Them (§ 141 - 150) of the Criminal Procedure Code, as will meet the

requirements of Art. 6 par. 1 of the Convention.
 

Thus, it

will be up to the legislature, within the requirements of this

judgment, to pass, in a timely manner, a constitutionally regulation for

deciding on a remedy (remedies) against a decision by a police body or

Public Prosecutor imposing a disciplinary fine under § 66 of the

Criminal Procedure Code. This does not rule out passing a regulation

which will leave the decision on such issues in the hands of the Public

Prosecutor, whose decision may be followed by a court decision (which

will establish three levels of decision-making) or whether – similarly

as in the regulation of deciding on a complaint against a decision to

secure persons and property (§ 146a of the Criminal Procedure Code) – it

will regulate the power of a court to directly review decisions on

fines.

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

Brno, 30 November 2004
 





Dissenting Opinion
of JUDr. Dagmar Lastovecká and JUDr. Jiří Nykodým

In

terms of meeting Art. 6 par. 1 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (the “Convention”), the

requirements for proceedings on imposing disciplinary fines, must be

drawn from their nature and purpose. Disciplinary fines imposed for a

violation of obligations arising from substantive law, whose aim is to

penalize the party who committed the violation of law, and disciplinary

fines imposed within on-going proceedings, whose aim is to ensure that

the aims of the proceedings are achieved, are of a different nature.

Imposing a disciplinary fine under § 66 of the Criminal Procedure Code

is a procedural measure, whose purpose is to establish order in the

proceedings and thus ensure that the matter which is the subject of the

proceedings will be publicly and fairly handled in an appropriate time

by an independent and impartial court. Thus, a disciplinary fine under

this provision can not be considered a criminal charge, as its main aim

is to ensure that the aim of the proceedings is achieved, to primarily

to punish a person who is impeding that aim. Taken ad absurdum, given

the opposite interpretation it would be possible to consider any

imposition of obligations by an authority which objectively led to

interference in the sphere of interests of the addressee of a legal norm

as a criminal charge. Likewise in the Constitutional Court judgment in

the matter Pl. ÚS 28/98, which found that disciplinary fines are

generally capable of interfering in constitutionally guaranteed rights,

the subject for consideration was not fines imposed in the course of

proceedings in progress, but disciplinary fines for violation of an

obligation established in substantive administrative law.

Art.

6 par. 1 of the Convention requires that an independent and impartial

court hear the subject matter of the proceedings (in the Convention’s

words, a “matter”), not every measure whose aim is to achieve that goal.

The case law of the European Court of Human Rights does not provide

clear, exact criteria for evaluating what can be considered a “criminal

charge.” Nevertheless, we can apply to the case reviewed by the

Constitutional Court in these proceedings the conclusions from Ravnsbrog

v. Sweden. There the European Court of Human Rights stated that imposed

a measure on the basis of rules which ensure the proper and orderly

conduct of trial proceedings is more akin to the exercise of

disciplinary powers than to the imposition of a punishment.
 

If,

based on the foregoing conclusions, disciplinary fines under § 66 of

the Criminal Procedure Code can not be treated as criminal charges, it

is also not necessary to fully apply the guarantees required from

proceedings on criminal charges, as established in the Convention, to

proceedings imposing disciplinary fines. In this situation, review under

§ 146 par. 2 of the Criminal Procedure Code can not be considered,

insofar as it does not guarantee judicial review, can not be considered a

constitutionally defective regulation.

Brno, 30 November 2004



 
Dissenting Opinion

of Judge JUDr. Eliška Wagnerová, Ph. D.

I

disagree with the majority opinion in this judgment for several

reasons, which must be treated in a certain logical sequence, which I

will attempt below.

I. The Panel’s Authorization for the Petition

1.The

petition to annul § 146 par. 2 of the Criminal Procedure Code was

submitted to the Plenum by panel IV of the Constitutional Court, in its

former, no longer existing composition, in connection with addressing

the constitutional complaint of ing. J. N. The matter then involved the

initiation (strictly speaking such cases do not involve a petition,

because it is not possible to dispose with a petition submitted to the

Plenum – see decision Pl. ÚS 12/94 of 20 February 1995) of proceedings

on specific review of norms, i.e. proceedings which are initiated by the

court which submits the matter in relation to resolving a specific

case, and in this case that court was a panel of the Constitutional

Court.
 

In one of its previous decisions (Pl. ÚS 33/04)

the Constitutional Court said: “that, unlike an abstract review of

constitutionality, specific review of constitutionality of a statute is

conducted within a narrow framework of judicial decision-making. The

Constitutional Court may enter into it only under strictly defined

conditions, and only in one way – by a decision on the constitutionality

of the law which is to be applied in resolving the matter.”
 

In

another decision (Pl. ÚS 39/2000) the Constitutional Court said: “under

Art. 95 par. 2 of the Constitution, on which the petition is based, if a

court concludes that the statute which is to be applied in resolving

the matter is inconsistent with a constitutional act, it shall submit

the matter to the Constitutional Court. Thus, the key question is how to

view the requirement that this must be a law ‘which is to be applied in

addressing the matter.’ There is no doubt that this requirement is

always met in the case of a statute or an individual provision which is

to be applied directly, and is thus to be applied when deciding the

matter itself, thus, in criminal proceedings, in particular when

deciding on guilt and punishment. This intention of the framers of the

constitution and the legislature can also be drawn from § 224 par. 5 of

the Criminal Procedure Code, which regulates the suspension of

proceedings in clear connection to a statute which is decisive for

deciding on guilt and punishment. In other words, in order for the court

to cast doubt on the constitutionality of a procedural regulation, it

is necessary that its application be unavoidable, not merely

hypothetical, or in some other wider context.”
 

It is true

that the initiators of proceedings in both the cited cases were general

courts, not a panel of the Constitutional Court. However, I believe

that the conclusions given in these decisions are also fully applicable

for the initiation of proceedings by a panel of the Constitutional

Court. I am led to this conclusion by the same statement of the relevant

condition for submitting a petition to annul a statute or individual

provisions thereof to the Plenum of the Constitutional Court both by a

panel of the Constitutional Court [§ 64 par. 1 let. c) of the Act on the

Constitutional Court], an by a general court (§ 64 par. 3 of the Act on

the Constitutional Court). That condition is “connection with the

decision-making.” A difference in these two provisions can be found only

in the description of the procedural means about which proceedings are

being conducted, i.e. a constitutional complaint before the

Constitutional Court or various types of proceedings before the general

courts, in which the submitted matter is being handled.
 

The

second reason which leads me to my conclusion is, of course, even more

important and specific to a petition to open proceedings to review a

norm by the Constitutional Court itself. This construction is tied to a

problem of concentration of power. While there is a general rule that

the Constitutional Court may conduct proceedings to review a norm only

upon instigation coming from outside (in the case of specific review of

norms, coming from general courts), in the case of a petition from a

panel of the Constitutional Court this is an exception which must be

interpreted very narrowly, in view of the danger arising from

concentration of power in the hands of the Constitutional Court.
 

It

also can not be overlooked that this construction places the judges of

the Constitutional Court whose petition initiates the proceedings in the

position of someone who then also decides on his own petition in the

Plenum; moreover, that decision is then important for a decision on the

constitutional complaint by the panel.
 

From a comparative

viewpoint, the inspiration for this unusual solution was apparently

Austrian; other traditionally democratic countries do not have a similar

arrangement. However, the Austrian regulation (Art. 140 par. 3 of the

Austrian Constitution) also strictly limits the scope of annulled

provisions, either to a petition from a general court, or to actual

application of a particular legal norm by the Constitutional Court

itself.

2. The matter addressed by the judgment was based in a

constitutional complaint in which the plaintiff sought annulment of a

decision by a District Public Prosecutor and a decision by a police

body. They both drew their substantive and official authority to decide

from a framework defined only by § 146 par. 2 let. a) of the Criminal

Procedure Code, of course from provisions of the Criminal Procedure Code

other than those submitted to the Plenum by the panel. Thus, it is

quire evident that if the judgment annuls the entire provision of § 146

par. 2, the decision can not stand, if only because the provision was

proposed to be annulled by an entity (the panel of the Constitutional

Court), which was not authorized to do so, because, simply speaking, the

entire annulled provision simply can not be applied at once, and, of

course, it was not applied; the part in let. a), as mentioned above, can

be separated from the rest.

3. However, in my opinion, the

previous panel IV of the Constitutional Court also was not authorized to

file a petition to annul § 146 of the Criminal Procedure Code, even

though it was submitted by the panel only in the scope actually applied

[par. 2 let. a)]. This is because the judgment states in point V, among

other things, that “given the possibility of beginning preliminary

proceedings not by beginning criminal prosecution but by a police body

writing a record in which it states the facts because of which it is

starting criminal proceedings and how it learned of them (§ 158 par. 3

of the Criminal Procedure Code), from a constitutional viewpoint,  the

right of a police body to impose disciplinary fines – nota bene, without

the possibility of judicial review – in this segment of criminal

proceedings can not stand under any circumstances.” The phrase “N.B.,

without the possibility of judicial review” certainly can not be

interpreted to the effect that the police body would have this

possibility if there were judicial review. Thus, if I understand this

sentence correctly, then I can not, of course, even in the

abovementioned limited scope, agree with the authorization of panel IV

to submit the matter to the Plenum. Such review is inconsistent with the

principle, heretofore fairly thoroughly applied by the Constitutional

Court, of minimizing interference in the activities of other

constitutional bodies, which was always grounds for giving priority to a

constitutional interpretation of a disputed norm over annulling it.

4.

More as obiter dictum and without applicability in the present case for

the reasons given above, I add, that even if a limited review of the

contested provision’s constitutionality came into consideration, it

would be appropriate to think not of annulling part of the provision,

but of an “additional” verdict, in which the Constitutional Court would

state that § 146 par. 2 let. a) of the Criminal Procedure Code was

unconstitutional in so far as it does not foresee judicial review of a

decision by Public Prosecutor. Such a decision, although the Act on the

Constitutional Court does not expressly foresee that form, would

certainly be a much lesser violation of the constitutional principle

arising from the requirement of a material law based state (Art. 1 par. 1

of the Constitution of the CR) consisting in minimization of

interference by the Constitutional Court in the activities of other

constitutional authorities. It would thus be a thorough application of

the principle of self-limitation by the Constitutional Court, which

would, by such a verdict, give Parliament an opportunity to pass a

constitutional regulation without having part of the statute annulled by

decision of the Constitutional Court. That approach, also not foreseen

by the relevant laws, but motivated by the foregoing principles and

considerations, is taken by, for example, the Italian constitutional

court.
 


II. Fruit from a Poisoned Tree

1. I

primarily believe, however, that the petition from panel IVof the

Constitutional Court to annul § 146 par. 2 for lack of judicial review

of decisions by Public Prosecutors is flawed because it tries to achieve

constitutional conformity of “fruit from a poisoned tree.” The primary

problem defined by the constitutional complaint is that the police body

gave the plaintiff a fine because he refused to surrender a thing

(accounting) which could lead, or at least contribute, to his being

subsequently criminally charged. In other words, the threat of a

financial penalty was used to require self-incrimination, or cooperation

with the state, represented by the police body, so that the police body

could more easily investigate a suspicion that a crime was committed.
 

The

problem described arose because the amendment to the Criminal Procedure

Code implemented by Act no. 265/2001 Coll. quietly and without naming

it, returned to the code the institution of “opening criminal

prosecution in a matter” (§ 158 par. 3 and § 12 par. 10 of the Criminal

Procedure Code). This old-new institution, which was quite correctly

removed from the Criminal Procedure Code as of 1 January 1994, is

connected to, among other things, the possibility of imposing fines for

not obeying a demand from a police body, for example, to surrender a

thing (§ 66 par. 1 and § 78 par. 1 of the Criminal Procedure Code). Now

evidence obtained before opening criminal prosecution (of a particular

person) by making a record entry need not be repeated after opening

criminal proceedings, and the cooperation of the next possible defendant

can be forced by high fines. The unconstitutionality of this

construction is quite evident (I will give the reasons below) and in my

eyes no judicial review can mend this fundamental shortcoming. This

construction is the poisoned tree which it would be appropriate to

consider removing.

2. The case of the possibility for a

police body to demand surrender of a thing under threat of a fine,

involves chaining interference in fundamental rights, and therefore we

must consider whether the law (the Criminal Procedure Code) which

foresees this possibility is pursuing a legitimate aim.
 

A

demand by a police body to surrender a thing is always interference in

the plaintiff’s fundamental right to privacy; if the thing requested has

material value, there is also potentially interference in his property

rights. The reason for such interference is the public interest in

clarifying facts which suggest that a crime has been committed by

someone who has not yet been accused of it. The demand to surrender a

thing, if it were not accompanied by the threat of a fine, would

certainly not be unconstitutional.
 

However, the situation

is different if the current construction of a demand to surrender a

thing is accompanied by the threat of a high fine. Such a construction

can not be acknowledged as constitutional, because the fine itself

interferes in the fundamental right of the person in question to own

property without interference. In doing so, it can cause this

interference into property rights, forcing entry into the private sphere

of the summoned person, e.g., as in this case, regardless of the

consequences which the summoned person can bring on himself by acceding

to the demand. In my opinion, the aim of this statutory construction can

not simply be identified with the public interest cited above. I see

the real aim in easing the work of the police when clarifying crimes

before charging a specific person, by the use of inadequate means which

excessively interfere in the fundamental rights of the summoned persons.

In my opinion such an aim lacks legitimacy.
 

In any

case, it is no accident that traditional democratic states do not have a

regulation similar to the Czech one – i.e. one under which a police

body could, under the threat of a fine, force entry into the privacy of

persons before charging a specific person with the commission of a

specific crime. In my opinion, through the passing of the contested

construction the Criminal Procedure Code inadmissibly expanded the phase

of criminal proceedings where a certain degree of state compulsion is

typical and certainly legitimate by the segment which runs from the

writing up of a record of starting actions in criminal proceedings to

the beginning of criminal prosecution of a specific person. However, by

its nature and contents this segment belongs in the Act on the Police,

with its limitations on opportunities for repression. Of course, a mere

formal shift of material characterized by its content into the Criminal

Procedure code can not approve interference which is fundamental

possible only in connection with criminal prosecution.

Brno, 30 November 2004




Dissenting Opinion
of Judge JUDr.PhDr. Stanislav Balík

Panel

IV of the Constitutional Court finds § 146 par. 2 of the Criminal

Procedure Code to be unconstitutional in that a Public Prosecutor

decides on a complaint against a decision by a police body imposing a

disciplinary fine under § 66 of the Criminal Procedure Code. However, in

my opinion it is not appropriate to annul the entire § 146 par. 2 of

the Criminal Procedure Code on those grounds, because in cases of

complaints against decisions by other bodies active in criminal

proceedings under § 146 par. 2 let. b), c) a complaint is submitted to a

court for a decision. Thus, annulling the entire § 146 par. 2 of the

Criminal Procedure Code also annuls a part of the provision which is

constitutional.
 

Although the grounds were given in the

petition to annul § 146 par. 2 of the Criminal Procedure Code in

relation to a disciplinary fine under § 66 of the Criminal Procedure

Code, the annulment will also affect complaints against decisions other

than those only about disciplinary fines. Moreover, annulling the entire

§ 146 par. 2 of the Criminal Procedure Code is interference not in the

fact-finding phase of imposing a fine, but in the phase of deciding on

an appeal, i.e. a complaint. Thus, granting the petition to annul the

entire § 146 par. 2 of the Criminal Procedure Code does not fully

respect the principle of minimizing interference.
 

There

was also – as stated on p. 7 of the judgment – the alternative of

annulling part of § 146 par. 2 of the Criminal Procedure Code, as a

consequence of which all complaints against decision by a police body or

Public Prosecutor would be decided by a court. If criminal charges

under Art. 6 par. 1 and Art. 13 of the Convention for the Protection of

Human Rights and Fundamental Freedoms are to be decided by an

independent and impartial tribunal established by law, then in the Czech

legal order, after the annulment of the authority of Public

Prosecutor’s offices, de lege lata that can not be a body other than a

court. In that situation, the existing legal framework provided by § 146

par. 2 of the Criminal Procedure Code is not a gap in the law, but a

special, unconstitutional regulation, under which authority was

entrusted to a body which does not fully meet the abovementioned

attributes of being an independent and impartial tribunal established by

law. I would not consider annulment of this unconstitutional regulation

to be activism, because by annulling only part of § 146 par. 2 of the

Criminal Procedure Code the remaining, non-annulled part, and

non-annulled text would remain consistent with the Convention for the

Protection of Human Rights and Fundamental Freedoms, which is part of

the legal order of the Czech Republic.
 

Therefore, I voted against the petition to annul the entire § 146 par. 2 of the Criminal Procedure Code, in particular because:
-  

 it did not take into account the wider context of the issue of

authority to impose disciplinary fines in the fact-finding and complaint

phase, in particular in relation to § 66 of the Criminal Procedure

Code,
-    it led to annulment of that part of § 146 par. 2 of the

Criminal Procedure Code which, in view of the decision-making authority

of the court, is constitutional,
-    it is interference not only in

the area of disciplinary fines imposed under § 66 of the Criminal

Procedure Code, but – without justification being provided in this

regard – also in the authority of proceedings on complaints against

decisions in matters other than the imposition of a disciplinary fine,
-  

 it was based on the conception of a gap in the legal order which, in

my opinion, in view of Art. 6 par. 1 and Art. 13 of the Convention for

the Protection of human Rights and Fundamental Freedoms, does not exist.

Brno, 30 November 2004