2010/04/07 - I. ÚS 22/10: Right to Free Defense Counsel

07 April 2010

HEADNOTES

The High

Court acted arbitrarily, when, in a procedure violating Art. 2 par. 2 of

the Charter (point 15), did not recognize the complainant’s

entitlement, on grounds of failure to meet the burden of proof,

consisting of failure to document lack of assets (point 24) and possible

other documents (gifts from relatives), without, however, asking the

complainant to supplement them (points 16 and 23), which led to

violation of the complainant’s fundamental right guaranteed in Art. 6

par. 3 let. c) of the Convention (point 16). In this case we also cannot

overlook the fact that in the criminal proceeding as a whole, i.e. in

the decision making on payment of the costs of the proceeding, the

investigatory principle applies [see, e.g. Supreme Court resolution of 4

January 1991 file no. 1 To 56/90].

The Constitutional Court does

not share this restrictive concept of “justified expenses,” because in

its opinion it is necessary to assess human life and a person’s

personality much more complexly, including, among other things, from the

point of view of the right to privacy (points 17 and 18). However, it

is evident from the very nature of that right, that their content cannot

be defined so as to cover all the possibilities that come into

consideration, because it is each individual person that gives this

right a specific content. Therefore, it is the duty of the courts to

review the unique aspects of each case so that, apart from observing the

guarantees of a fair trial, the individual’s other fundamental rights

are also preserved, in this case the right to a private life.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


On

7 April 2010, a panel of the Constitutional Court, consisting of

chairwoman Ivana Janů and judges František Duchoň and Eliška Wagnerová

(judge rapporteur), decided in the matter of a constitutional complaint

from the complainant H. R., represented by JUDr. Jiří Baudys, attorney,

with his registered address at Smetanova 17, 602 00 Brno, against a

decision by the High Court in Olomouc of 21 October 2009 ref. no. 3 To

105/2009-1861, with the participation of the High Court in Olomouc as a

party to the proceeding, with the consent of the parties without a

hearing, as follows:


I.

By failing to respect the principle contained in Art. 2 par. 2 of the

Charter of Fundamental Rights and Freedoms, resolution of the High Court

in Olomouc of 21 October 2009, ref. no. 3 To 105/2009-1861, violated

the complainant’s fundamental rights guaranteed in Art. 6 par. 3 let. c)

and Art. 8 par. 1 of the Convention for the Protection of Human Rights

and Fundamental Freedoms.

II. Therefore, that decision is annulled.
 



REASONING


I.

 

1.

In her constitutional complaint submitted to the Constitutional Court

on 6 January 2010, i.e. within the deadline of 60 days from delivery of

the contested decision (§ 72 par. 3 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, the “Act on the

Constitutional Court”), the complainant sought the annulment of the

abovementioned decision of the High Court in Olomouc, claiming that it

violated her fundamental rights guaranteed in Art. 90 of the

Constitution of the Czech Republic, in Part Five of the Charter of

Fundamental Rights and Freedoms (the “Charter”) and in Art. 6 of the

European Convention for the Protection of Human Rights (the

“Convention”).

2. In the constitutional complaint, the

complainant stated that her fundamental rights were violated by the

actions of the High Court in Olomouc, which denied her complaint against

a decision by the Regional Court in Brno of 26 June 2009 file no. 11 T

29/2000, which ruled that the complainant is not entitled to defense

counsel for free or for a reduced fee, on the grounds that she is

needlessly making payments for internet access and cable television, and

did not prove that she has no assets in real estate or securities. The

complainant disagrees with this conclusion, because she believes that

the applicable principle is that one need not prove what does not exist.

The complainant added that there is no body in the Czech Republic that

would issue a certificate of poverty. According to the complainant, the

High Court had sufficient information demonstrating her poverty, as it

is quite obvious from the criminal file that she owes over 10 million

crowns due to her criminal activity, she is a complete invalid, and has

difficulty covering her living expenses. In the complainant’s opinion,

the payments for internet access and cable television cited by the High

Court are not a luxury, but a necessity for someone who is a complete

invalid. The complainant concluded that she had properly documented her

financial situation, which justifies her entitlement to free defense

counsel, and if the court believed that her statements and presented

evidence were inadequate, it should have called on her to complete them.

3.

Therefore, in view of the foregoing, the complainant proposed that the

Constitutional Court issue a judgment annulling the cited decision of

the High Court in Olomouc.

4. The Constitutional Court called on

the party to the proceeding to respond to the constitutional complaint.

The High Court in Olomouc, represented by the appropriate panel

chairman, JUDr. Libor Los, referred to the reasoning of the contested

decision. The High Court stated that the key reason for not recognizing

entitlement to free defense counsel was that the complainant did not

credibly prove the entitlement. It was not objectively determined in the

criminal proceeding, including because of the complainant’s attitude,

how the money acquired through her criminal activity was used, or

whether the complainant still has access to it. In the High Court’s

opinion, the complainant, given the amount of her disabled pension,

which is not sufficient even to cover the obligations the complainant

cites, undoubtedly had at her disposal other funds that she did not

indicate or document in her application. The High Court in Olomouc

concluded that the complainant’s fundamental rights were not violated,

and therefore proposed denying the constitutional complaint as being

obviously unjustified.

5. Under § 44 par. 2 of the Act on the

Constitutional Court, the Constitutional Court may, with the consent of

the parties, waive a hearing if it cannot be expected to clarify a

matter further. The parties consented, and a hearing was waived.



II.

 

6.

In this matter, the Constitutional Court did not request the file from

the Regional Court in Brno, file no. 11 T 29/2000, because it concluded

that the statements of the parties and the documentary evidence

presented by the complainant would suffice to reach a decision in the

matter. From these documents, the Constitutional Court determined the

following facts, decisive for the proceeding on the constitutional

complaint.

7. By decision of the Regional Court in Brno of 13

December 2007 file no. 11 T 29/2000 the complainant was convicted, with

legal effect, of the crime of fraud under § 250 par. 1 and 4 of Act no.

140/1961 Coll., the Criminal Code, as in effect until 31 December 2009

(the “CC”), the crime of larceny under § 247 par. 1 let. a), let. b) of

the CC, for which, and simultaneously for the crimes of embezzlement

under § 248 par. 1 of the CC and fraud under § 250 par. 1 and 2 of the

CC, of which she was found guilty, with legal effect, by decision of the

Regional Court in Brno of 16 November 2004 file no. 11 T 29/2000, in

connection with resolution of the High Court in Olomouc of 26 July 2006

file no. 3 To 84/2006, she was given, under § 250 par. 4 of the CC, in

connection with § 35 par. 1 and § 40 par. 1 of the CC, an aggregate

prison sentence of three years, suspended under 60a par. 1 and 2 of the

CC for a probation period of five years. The complainant was given the

milder sentence as compensation for detriment incurred as a result of

the total length of the criminal proceeding.

8. Resolution of

the Regional Court in Brno of 12 June 2009 ref. no. 11 T 29/2000-1791,

in conjunction with resolution of the High Court in Olomouc of 21

October 2009 file no. 3 To 104/2008, granted the complainant’s defense

counsel, appointed by resolution of the Municipal court in Brno of 9

October 1998 file no. Nt 789/98, an entitlement to a fee and cash

expenses incurred in connection with the work performed when defending

the complainant, in an amount of CZK 421,396.70.

9. On 22 June

2009 the complainat applied to the Regional Court in Brno “for free

defense counsel.” In her application, she stated that she received a

full invalid pension in the amount of CZK 8,374, from which CZK 4,878

covers housing expenses, CZK 1,299 for execution [of the judgment], CZK

500 for a health insurance payment, and CZK 500 for the Regional Court

in Brno. The complainant stated that her invalid pension is not even

sufficient to cover these obligations, and she is therefore forced to

rely on the assistance of her relatives. The complainant attached to her

application a SIPO [combined bill payment] document with an itemization

of her payments for housing totaling CZK 4,878, including rent of CZK

3,919, cable television for CZK 209, internet for CZK 490, gas CZK 80,

Czech Television and Czech Radio subscription fee CZK 180. The

complainant also attached postal payment orders document other

abovementioned payments of obligations, and a payment receipt document

the amount of her invalid pension.

10. Resolution of the

Regional Court in Brno of 26 June 2009 file no. 11 T 29/2000 decided,

under § 33 par. 2 a contrario Act no. 141/1961 Coll., on Criminal

Procedure (the “CPC”), that the complainant is not entitled to defense

counsel for free or for a reduced fee. As reasons to not recognize the

complainant’s entitlement to free defense counsel, the Regional Court

stated that the complainant did not submit documents necessary to verify

that she had insufficient funds to pay defense costs.

11. The

complainant filed a complaint against that resolution of the Regional

Court, in which she stated that she does not know what other documents

demonstrating her lack of assets she should have submitted to the court,

when the court took into account only the document of her income and

did not consider documents demonstrating her expenses, and the court did

not call on the complainant to submit additional documentation.

Together with her complaint, the complainant submitted further

documents, a notice of her pension amount, a notice of withholding from

her pension, confirmation of her rent, payment calendars for the health

insurance company and the Regional Court in Brno, and a report from the

Probation and Mediation Service of the Czech Republic on probation

supervision, which states that the complainant has additional expenses

of CZK 1,500 a month for medication, and that she has no source of

income other than her disability pension.

12. In the resolution

contested by the constitutional complaint, resolution of 21 October 2009

file no. 3 To 105/2009, the High Court in Olomouc, pursuant to § 148

par. 1 let. c) of the CPC, denied the complainant’s complaint. The High

Court stated that the purpose of § 33 of the CPC is, above all, to

ensure the right to a defense enshrined in Art. 40 par. 3 of the Charter

so that a possible lack of assets does not prevent a defendant from

exercising the right to defend himself with a defense attorney of his

choice. This situation must be differentiated from a circumstance where

these conditions were properly ensured and only subsequently, after the

end of criminal proceedings, and only for economic or social reasons,

one cannot assume that the defendant is able to pay the state expenses

incurred for his defense in accordance with § 152 par. 1 let. b) of the

CPC. However, in the complainant’s case this right was ensured, as

defense counsel was appointed for her, and the complainant made use of

his services for the entire time of the criminal proceeding. The High

Court stated that the submitted documents do indicate that the

complainant is a disability pensioner with a full disability pension,

but there are items among the expenses she documented that could be

considered discretionary (e.g., high fees for internet and cable

television). In the High court’s opinion it is obvious that the

complainant must have at her disposal regular unspecified funds, which

she draws on for her living expenses. Thus, in the High Court’s opinion

the complainant did not properly explain and did not document all the

information about how, for how long, and particularly in what extent she

receives financial assistance from her relatives, or where she obtains

such funds, or generally her lack of assets in terms of ownership of

real estate or other property (significant personal property,

securities, any uncollected receivables from business activities, etc.).

It is not the duty of the courts to determine or verify the defendant’s

financial status, when that obligation is imposed on the complainant

directly by the law in § 33 par. 2 and 3 of the CPC. Thus, the High

Court concluded that the complainant did not meet the burden of proof,

as she did not properly document her application to be entitled to free

defense counsel.



III.


13.

After the Constitutional Court stated that the constitutional complaint

is admissible (§ 75 par. 1 of the Act on the Constitutional Court a

contrario), was filed on time and meets the other legal requirements [§

30 par. 1, § 72 par. 1 let. a) of the Act on the Constitutional Court],

it turned to a review on the merits, and concluded that it was

justified. Although the complainant, in the constitutional complaint,

alleged violation of the right to a fair trial, the Constitutional Court

concluded that the affected fundamental right, which had been violated

by the ordinary courts, is, in addition to that right, also the right to

respect for family and private life, under Art. 8 of the Convention. It

is clear from the Constitutional Court’s settled case law that it is

bound by the proposed judgment in the petition, not by the reasoning

therein, and that it is authorized to review violation of

constitutionally guaranteed fundamental rights other than those that the

complainant raised in the constitutional complaint [see, e.g., judgment

file no. II. ÚS 259/05 of 21 March 2006 (N 65/40 SbNU 647), all

decisions of the Constitutional Court are available at

nalus.usoud.cz].

14. The role of the Constitutional Court

is only to protect constitutionality, and not to review “ordinary”

legality (Art. 83 of the Constitution). The Constitutional Court is not

authorized to review the correct application of “ordinary” law. It is

authorized to intervene in the decision making activity of the ordinary

courts only if a legally effective decision by these bodies of public

authority violated a complainant’s fundamental rights or freedoms

guaranteed by the constitutional order of the Czech Republic, because

the fundamental rights and freedoms define not only the framework of the

normative content of the applied legal norms, but also the framework

for constitutionally conforming  interpretation and application of them.

15.

Art. 2 par. 3 of the Constitution of the CR, or Art. 2 par. 2 of the

Charter provides that state authority can be exercised only in the

cases, within the bounds, and in the manner set forth by law, naturally

while respecting the principle of proportionality arising from the

requirement of a law-based state (Art. 1 par. 1 of the Constitution of

the CR). If that does not occur, the conduct or action of the state

authority is arbitrary. As the Constitutional Court has repeatedly

emphasized, not every violation of the norms of ordinary law, when

applied or interpreted, also causes violation of an individual’s

fundamental right. However, violation of one of the norms of ordinary

law as a result of arbitrariness (e.g. through failure to respect a

mandatory norm) or as a result of an interpretation that is extremely

inconsistent with the principles of justice, may interfere in an

individual’s fundamental right or freedom [see, e.g. judgment file no.

III. ÚS 346/01 of 14 March 2002 (N 30/25 SbNU 237)]. The Constitutional

Court will always intervene if it finds an element of arbitrariness in

the actions of the ordinary courts. For example, in judgment I. ÚS

534/03 it stated: “Such violation of the complainant’s fundamental

rights and freedoms also takes place if the ordinary court overlooks the

importance of the prohibition of arbitrariness, a viewpoint from which

one must approach the interpretation of all procedural principles and

rules provided by the ordinary law. The Constitutional Court also

reviews the decisions of the ordinary courts if it finds that the

interpretation of regulations by the ordinary courts is so extreme that

it deviates from the bounds of constitutionality. That is also the case

if the ordinary courts interpret a particular statutory provision so

expansively that it establishes an individual’s duty to act beyond the

scope of the law, which constitutes violation of Art. 4 par. 1 of the

Charter. The Constitutional Court has already ruled (e.g., judgment file

no. I. ÚS 546/03) that Art. 4 par. 1 of the Charter has two dimensions;

the first makes more precise the effect of Art. 2 par. 2 of the Charter

on individual persons, and the second is the structural principle of a

democratic, law-based state under which the state authority can be

exercised only in cases and within the bounds provided by law, and in a

manner provided for by law. Likewise, the setting of obligations by a

court is limited by the law, and requires the observance of the

fundamental rights and freedoms.” In the Constitutional Court’s opinion,

there is also arbitrariness in a case where the ordinary courts do not

meet their obligation to duly, i.e. adequately, rationally, and

logically justify their decisions in the relevant aspect [e.g., judgment

file no. I. ÚS 534/03 of 13. 9. 2004 (N 126/34 SbNU 285),]; also, if a

decision shows extreme inconsistency between the legal conclusions and

the evidence presented and factual conclusions drawn from it; also if

the interpretation and application of “ordinary” law is extremely

inconsistent with the principles of justice [e.g. as a result of

exaggerated formalism – see, e.g., judgment file no. III. ÚS 94/97 of 26

June 1997 (N 85/8 SbNU 287)].

16. Art. 36 par. 1 of the Charter

guarantees everyone the opportunity to assert, through the legally

prescribed procedure, his rights before an independent and impartial

court. Likewise, Art. 6 par. 1 of the Convention, which guarantees

everyone the right to a fair and public hearing within a reasonable time

by an independent and impartial tribunal, enshrines the general

principle of a fair trial. The right to legal assistance under Art. 37

par. 2 of the Charter is considered a general provision, on which the

right to a defense under Art. 40 par. 3 of the Charter is also based.

Art. 6 par. 3 of the Convention enshrines the minimal rights of a

defendant concerning his right to a defense, including the right to free

legal assistance, whereby that provision of the Convention makes

specific the general principle of a fair trial arising from Art. 6 par. 1

of the Convention [see judgment file no. I. ÚS 669/03 of 31 March 2004

(N 47/32 SbNU 441), the judgment Delta vs. France of 19 December 1990 or

F. C. B. vs. Italy of 28 December 1991]. The rights arising from this

provision must be interpreted not in a restrictive manner (see judgment

Golder vs. United Kingdom of 21 February 1975), but with the application

of constitutional law interpretation in view of the guarantees of a

fair trial [see file no. I. ÚS 592/2000 (N 15/25 SbNU 115)]. Along with

the presumption of innocence (Art. 40 par. 2 of the Charter), one of the

most important fundamental rights of persons who are being prosecuted

in criminal proceedings is the right to a defense (Art. 37 par. 2 and

Art. 40 par. 3 of the Charter), which also includes the right to a

defense counsel for free or for a reduced fee. Its main purpose is to

reach a fair decision. This is a right that is not only for the benefit

and in the interest of the prosecuted person, but undoubtedly also in

the interest of a democratic law-based state, founded on respect for the

rights and freedoms of man and the citizen (Art. 1 par. 1 of the

Constitution). Therefore, if the state is to ensure provision of these

constitutionally guaranteed rights, it must create in the criminal

procedure law procedural guarantees for the position of the defense

counsel and the defendant.

17. As the Constitutional Court stated

in its judgment file no. II. ÚS 2048/09 of 2 November 2009 (as yet

unpublished): “The fundamental right to an undisturbed private personal

life (Art. 10 par. 2 of the Charter) enjoys quite special respect and

protection in the liberal democratic states. The right to an inviolable

private sphere is the cornerstone of the liberal tradition, on which

stand the foundations of modern politics and modern law, which also

stood at the birth of the modern ideas of fundamental rights and

freedoms.” Ensuring the autonomous sphere of the individual is the most

reliable guarantee of individual independence and human freedom.

Protection of the right to an undisturbed private life also covers

protection of the individual’s mental health, mental integrity, and

mental stability (see Hubálková, E.: Evropská úmluva o lidských právech a

Česká republika. [The European Convention on Human Rights and the Czech

Republic] Prague: Linde, 2003, p. 202). The fundamental right to an

uninterrupted private life as a subjective public right, then, in

accordance with the case law of the European Court of Human Rights, also

protects the individual’s right to identity and personal development,

the right to establish and develop human relationships (see the judgment

Friedl vs. Austria of 31 January 1995, in more detail Buxton, R.:

Private Life and the English Judges, Oxford Journal of Legal Studies,

vol. 29, no. 1, p. 413 et seq.). In the judgment of 16 December 1992 in

the case Niemietz vs. Germany the European Court of Human Rights (the

“ECHR”): “… it would be too restrictive to limit the notion [of private

life] to an ‘inner circle’ in which the individual may live his own

personal life as he choose and to exclude therefrom entirely the outside

world not encompassed within that circle. Respect for private life must

also comprise to a certain degree the right to establish and develop

relationships with other human beings." Thus, the right to privacy must

necessarily include the right to form relationships with other people

and the external world (Kilkelly, U.: The right to respect for private

and family life. Human rights handbooks, No 1. Strasbourg: Council of

Europe, 2003, p. 11).

18. The Constitutional Court also ascribed

to this concept of the right to a private life, when it stated in its

judgment file no. II. ÚS 517/99 that: “[T]he right to protection of

personal privacy is the right of a natural person to decide according to

his own deliberation whether, or to what extent and in what manner, the

facts of his own personal privacy are to be made accessible to other

subjects, and at the same time to defend oneself against (resist)

unjustified interference in that sphere by other persons. Excessive

emphasis on the positive component of the right to protection of one’s

private life leads to inappropriately narrowing of protection to merely

seeing to it that the facts of a person’s private life not be

[disclosed] without his consent or without reasons recognized by the

law, and thus the integrity of the internal sphere, which is essential

for positive personal development, not be violated. The Constitutional

Court does not share this narrowed understanding, because respect for

private life must, to a certain degree, include the right to form and

develop relationships with other human beings. Respect for private life,

thus understood, includes the commitment of the state to act in a

manner that permits the normal development of these relationships” [see

judgment file no. II. ÚS 517/99 of 1 March 2000 (N 32/17 SbNU 229)].


IV.

 

19.

The essence of the constitutional complaint was the complainant’s

objections regarding the actions of the High Court, which, without

calling on the complainant to complete her filing, assessed the

documents she submitted regarding her lack of assets as inadequate for

recognizing an entitlement to a free defense, or reimbursement of the

costs of the state-appointed defense counsel.

20. As stated

above, a component of the right to a defense is the right to free legal

assistance. The content of the right to a defense, as one of the

fundamental guarantees of a fair trial (point 16 or the judgment

Ekbatani vs. Sweden of 26 May 1988), has its positive and negative

elements. The positive is the right of the accused (also the defendant,

convicted, suspected and other persons) to defend himself or be defended

by a chosen defense attorney, or the right to ask to have an attorney

appointed. The negative element is the obligation of the defendant in

cases of so-called “necessary defense” to “tolerate” a defense counsel

(even if he does not wish one) and the obligation of all bodies active

in the criminal proceeding to heed these rights in the context of the

entire criminal proceeding. The content of the right to free legal

assistance is the right of the defendant, if he cannot himself, due to

lack of assets, fully or partly pay the costs of his defense, to a

defense counsel for free or for a reduced fee, or, upon proof of lack of

assets, the obligation of the court to rule that the state will fully

or partly cover the defense costs. A right directly related to the right

to a defense, including the right to free legal assistance, is the

right of legitimate expectation of defense counsel under Art. 1 of the

Protocol to the Convention to compensation and reimbursement of

expenses, including in the event that the defense counsel’s activities

are the exercise of the right to a defense for an iindigent person

[see, e.g., judgment file no. IV. ÚS 167/05 of 26 April 2005 (N 94/37

SbNU 277) or judgment file no. II. ÚS 3201/08 of 6 February 2009].

21.

We can conclude from the settled case law of the ordinary courts that

the court can recognized the abovementioned entitlement to free defense

counsel at any time during the proceeding, or even after the end of the

criminal prosecution (see, e.g., resolution of the Regional Court in

Hradec Králové of 24 October 2006 file no. 13 To 477/2006, published in

the Collection of Court Decisions and Opinions as number 19, volume

2008), and the exercise of this entitlement is not subject to any

preclusive or limitations period (note, however, if the defendant had

chosen defense counsel, then exercise of this entitlement is de facto

limited by the preclusive period provided in § 151 par. 2 of the CPC).

Apart from reflecting the possibility of change in the social and

economic status of the defendant, the time period thus set for

exercising the entitlement to a free defense reflects [the principle of]

the presumption of innocence (Art. 40 par. 2 of the Charter), because

until the defendant is convicted with legal effect, he cannot fairly be

required to “presume” he will be convicted and accordingly be required

to pay the costs of state-appointed defense counsel [see § 152 par. 1

let. b) of the CPC; it is obvious from the nature of the matter that

this consideration is relevant only with a court-appointed defense

counsel, where the payment of defense costs is a matter between the

state and the defense counsel, and then between the convicted person and

the state, whereas with a chosen defense attorney one can assume that

in the course of making arrangements for the defense, the attorney and

the defendant actively address the question of payment of defense costs,

where in the event of an acquittal one can proceed under of Act no.

82/1998 Coll., on Liability for damage Caused in the Exercise of State

Authority through a Decision or Incorrect Official Procedure and

amending Czech National Council Act no. 358/1992 on Notaries and Their

Activities]. This conclusion is also supported by the fact that the

defendant will learn the actual amount of costs of the appointed

attorney only after the attorney exercises the entitlement under § 151

par. 2 of the CPC and only then is able to make an informed assessment

of whether his financial position permits him to pay them to the state.

22.

In interpreting the purpose of the right to free legal assistance, the

High Court concluded that this right de facto serves only to secure the

right to a defense at the stage of choosing or appointing an attorney,

and if this right was secured, one cannot, due only to the subsequent

lack of assets of the defendant, or the inability to pay the defense

costs, grant the defendant an entitlement to free defense counsel (point

12). Thus, the High Court a priori ruled out the possibility of

exercising the entitlement to free legal assistance even in the stage

after the criminal proceeding ends, without that conclusion having any

support in the Criminal Procedure Code (point 20). However, in the

Constitutional Court’s opinion that procedure must be considered

arbitrariness (point 15), because the High Court, without a basis in the

law, limited the complainant’s fundamental right to free legal

assistance [Art. 6 par. 3 let. c) of the Convention] inconsistently with

its essence and purpose (point 16, 20 and 21), when it concluded that

the right is “exhausted” by the mere appointment of a legal

representative (regarding that, see the judgment in the case Artico vs.

Italy of 13 May 1980, where the ECHR stated: "[A]rticle 6 § 3c) speaks

of ‘assistance’ not ‘appointment.’ Mere appointment does not ensure

effective assistance”).

23. The provisions of § 33 par. 2 and 3

of the CPC make specific the defendant’s fundamental right to a free

defense or a defense for a reduced fee (point 16), or sets forth the

manner in which this fundamental right is implemented. In the event of a

so-called “obligatory” decision on the defendant’s entitlement to

defense counsel for free or for a reduced fee, the defendant must

document that he does not have sufficient means to pay the defense

costs. The defendant’s petition , apart from the general requirements

for a petition (§ 59 of the CPC), must contain attachments that are to

support it. It is obvious from the wording of this provision that the

legislature chose a relatively abstract formulation, leaving it to the

discretion of the decision making body (a judge in the preliminary

proceeding, and the chairman of the panel in the proceeding before the

court), whether the petitioner properly justified his entitlement, or

whether he submitted sufficient credible documents.

24. This

case undoubtedly involves reflecting the obligation to make claims

(moreover, in a criminal proceeding, interrupted by the court’s

obligation to decide, optionally, on the defendant’s entitlement even

without a petition from him, if the evidence gathered indicates that it

is justified) and to prove (attach appendices justifying the petition)

the entitlement to defense counsel for free or for a reduced fee.

However, the obligation to make claims and, especially, submit proof,

has its limits, which include the rule that “non-existence does not

require proof,” based on the so-called “negative evidence theory,”

because no one can fairly be asked to prove the actual non-existence of a

particular legal fact (see Winterová, A.: Civilní právo procesní [Civil

Procedure Law], 4th ed. Prague: Linde, 2004, p. 279). The negative

evidence theory, which results in transferring the burden of proof to

the other party (or to the decision making body), is applied only when

the non-existence that is subject to review is of a permanent character

(see Svoboda, K.: Dokazování [Evidence]. Prague: ASPI - Wolters Kluwer,

2009, p. 29). In this regard, we can cite, e.g. the decision of the

Supreme Administrative Court of 26 July 2006, file no. 3 Azs 35/2006,

which addressed a matter of the same kind, and in which the Supreme

Administrative Court concluded: “[T]he actions of the Regional Court,

which denied the petition to appoint an attorney (§ 35 par. 7 of the

Administrative Procedure Code) on the grounds that the complainant did

not prove the claims of his financial situation with documentary

evidence, and that these claims by the complainant was that she had no

assets or income, is defective, and is the grounds for annulling that

decision. The Regional Court’s actions denied the ‘negative evidence

theory,’ under which a non-existent fact cannot be proved by evidence.”

25.

As indicated by the reasoning of the contested decision (point 12) and

from the statement by the High Court (point 4), the key reason for not

recognizing the complainant’s entitlement to a free defense, i.e. not

meeting the burden of proof. The complainant, claiming her lack of

assets, submitted to the court, together with the petition, documents

proving her income and costs, and that she has no other assets or income

(which was also documented by the report from the Probation and

Mediation Service, point 11). The Constitutional Court adds that, if the

High Court concluded that the complainant did not properly document her

entitlement, or that the evidence submitted is insufficient for a

decision on her petition, it had an obligation, under § 59 par. 4 of the

CPC, to ask the complainant to supplement it, of course, with the

limitations arising from the negative evidence theory. In the

Constitutional Court’s opinion, the High Court acted arbitrarily, when,

in a procedure violating Art. 2 par. 2 of the Charter (point 15), did

not recognize the complainant’s entitlement, on grounds of failure to

meet the burden of proof, consisting of failure to document lack of

assets (point 24) and possible other documents (gifts from relatives),

without, however, asking the complainant to supplement them (points 16

and 23), which led to violation of the complainant’s fundamental right

guaranteed in Art. 6 par. 3 let. c) of the Convention (point 16). In

this case we also cannot overlook the fact that in the criminal

proceeding as a whole, i.e. in the decision making on payment of the

costs of the proceeding, the investigatory principle applies [see, e.g.

Supreme Court resolution of 4 January 1991 file no. 1 To 56/90: “If the

first level court is deciding after a convicting decision under § 155

par. 1 of the Criminal Procedure Code has gone into effect on the

obligation of the defendant to pay the fees and incurred costs paid by

the state to the appointed attorney, it is required to determine whether

the defendant has sufficient means to pay these expenses; this means,

in particular, that it is required to determine the financial situation

and earning possibilities of the convicted person. If it finds that the

convicted person does not have sufficient means to pay the costs of the

necessary defense, and is therefore entitled to defense counsel for free

(§ 33 par. 2, § 152 par. 1 let. b) of the Criminal Procedure Code), it

shall issue a decision that, for that reason, he is not required to pay

the fee and incurred costs paid by the state to the appointed defense

attorney.”].

26. We must consider quite unacceptable the opinion

of the appeals court (point 4), which, without any relevant grounds or

facts determined in the criminal proceeding, assumed that the

complainant must still have at her disposal the funds acquired by

criminal activity.

27. The Constitutional Court is familiar with

the decision making practice of the ordinary courts which, for assessing

necessary expenses when deciding on recognizing an entitlement to a

free defense, waiver of court fees etc., consider as “justified

expenses” (in the sense of necessary expenses) only those that serve

directly for payment of basic living needs (housing, clothing, food,

medicines), or those which the applicant is required to pay (execution

[of judgments], support payments, etc.). However, the Constitutional

Court does not share this restrictive concept of “justified expenses,”

because in its opinion it is necessary to assess human life and a

person’s personality much more complexly, including, among other things,

from the point of view of the right to privacy (points 17 and 18).

However, it is evident from the very nature of that right, that their

content cannot be defined so as to cover all the possibilities that come

into consideration, because it is each individual person that gives

this right a specific content [e.g., Lord Rodger stated that “article

8(1) protects those features of a person's life which are integral to

his identity. For those for whom it is a core part of their lives,

hunting, too, can be said to be integral to their identity."

(Countryside Alliance, n26, point 101, available at

www.publications.parliament.uk]. Therefore, it is the duty of the courts

to review the unique aspects of each case so that, apart from observing

the guarantees of a fair trial, the individual’s other fundamental

rights are also preserved, in this case the right to a private life [G.

Dürig (G. D., Der Grundrechtssatz von der Menschenwürde, Archiv des

öffentlichen Rechts 81, 1956, p. 127) formulated the well-known theory

of the object, which was adopted in the case law of the German

Constitutional Court, connected to questions of human dignity. According

to this theory human dignity is violated when state authority places a

particular individual into the role of an object, where he becomes a

mere means, and is reduced to the form of a fungible value. One can

conclude that a person not only the object of social “relationships,”

but also becomes the object of the law, if he is forced to subject to it

completely in its interpretation and application, i.e. without taking

into account his individual interests, or fundamental rights]. In

addition to the subjective factors on the part of the individual, when

evaluating whether expenses are “usual or justified” it is also

necessary to take into account objective factors, which include, among

other things, technological developments (e.g. mobile telephones, the

internet) and related changes in methods of communication, obtaining

information, contacts with government offices, association, etc., or the

development of technologies, through which the individual’s right to

personal development, relationship with other people and the outside

world, i.e. the right to a private life, is realized (point 17).

28.

The High Court concluded that the documents that the complainant

submitted can support a conclusion that among her expenses are items of a

purely discretionary nature, “high payments for internet and cable

television.” In other words, the High Court concluded that, although the

complainant, as a disability pension, has insufficient available funds,

her income, from which, however, she pays higher than standard

discretionary services every month, permits her in future to pay the

costs of a defense on a payment schedule (point 12). The Constitutional

Court adds that this interpretation, within the framework of the maxims

of the right to a private life delineated by the European Court of Human

Rights (point 17) and the Constitutional Court (point 18 and 27) leads

to intervention in the complainant’s personal sphere and thus to

violation of Art. 8 par. 1 of the Convention.

29. Therefore, for

the abovementioned reasons the Constitutional Court granted the

constitutional complaint under § 82 par. 2 let. a) of the Act on the

Constitutional Court and the annulled the decision contested by the

constitutional complaint under § 82 par. 3 let. a) of the Act on the

Constitutional Court.

Instruction: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).




Dissenting opinion of justice Ivana Janů  


Under

§ 22 of Act no. 182/1993 Coll., on the Constitutional Court, as amended

by later regulations, I am filing a dissenting opinion to the verdict,

as well as the reasoning of Constitutional Court judgment file no. I. ÚS

22/10. I am not mentioning all the problematic points in the reasoning,

but only those that I consider to be the key ones.

The judgment

states, in point I. of the verdict, that failure to respect the

principle contained in Art. 2 par. 2 of the Charter (state authority can

be exercised only in the cases, bounds, and manner prescribed by law)

in the High court resolution contested by the constitutional complaint

violated the complainant’s fundamental rights guaranteed in Art. 6 par. 3

let. c) and Art. 8 par. 1 of the Convention, i.e. the right to a

defense and the right to respect for her private and family life. The

High Court is alleged to have violated the right to a defense by

concluding that the right is “exhausted” by the mere appointment of a

legal representative, and by failing to observe the negative evidence

theory (meaning the negative theory of dividing the burden of proof).

The right to a private and family life also includes the right to form

relationships with other people and the outside world; as indicated in

point 28 of the reasoning, that right was violated by the fact that the

complainant could not afford to pay the high fees for internet and cable

television.

I cannot agree with this approach to the right to a

defense or the right to a private and family life. On the contrary, I

consider the legal opinion expressed in the contested decision of the

High Court in Olomouc to be correct and constitutional.

The

purpose of the right to a defense, in the part that concerns the defense

of a defendant by defense counsel, consists of providing qualified

legal assistance to a person who is being criminally prosecuted on

suspicion of committing a crime. It is first of all up to the defendant

whether to defend himself or through defense counsel; however, in cases

of so-called “required defense” the defendant must have a defense

counsel, even if he did not choose him. In both situations there is a

fundamental requirement that the defendant’s insufficient assets not

prevent the conduct of a defense by an attorney (if he wants or must

have one). This is expressed both in the Convention for the Protection

of Human Rights, in Art. 6 par. 3 let. c) (“… if he does not have funds

to pay an attorney, he must be provided at no cost, if the interests of

justice so require”), and in the last sentence of Art. 40 par. 3 of the

Charter of Fundamental Rights and Freedoms (“The law provides in which

cases the defendant has the right to the assistance of counsel at no

cost.”). Thus, the right to a defense for free cannot be artificial

separated from the conduct of a defense in an ongoing proceeding; this

is meant to ensure that a person who does not have funds to pay a

defense attorney may nevertheless be represented by an attorney.

In

this matter a defense attorney was appointed for the complainant, i.e.

the complainant was provided qualified legal assistance during the

criminal proceeding conducted against her. I believe that this also

fulfilled her constitutionally guaranteed right to a defense. If the

complainant finds, only two years after the guilty verdict – evidently

motivated by the fact that the amount of the attorney’s fee and costs

incurred was set, and she will now have to pay it to the state under §

152 par. 1 let. b) of the Criminal Procedure Code – that she does not

have sufficient funds to pay the costs of the defense that was provided

for her, and her request is not granted, this cannot be seen as

violation of her right to a defense; the defense was provided to her,

which even the complainant herself does not in any way question. One

cannot draw a different conclusion from the Charter either, because,

although it maintains the possibility of defending oneself through a

defense attorney, regarding cases of free defense it refers to the law

[i.e., now to § 33 par. 2 and 3, § 152 par. 1 let. b) of the Criminal

Procedure Code]. The Convention also requires as a condition for a free

defense that the interests of justice require it; in my understanding of

justice, there is nothing unjust about it if a person convicted with

legal effect for committing a number of property crimes, through which

she caused damage to others of approximately CZK 10,000,000, is given an

obligation to pay the costs of her court-appointed defense attorney. A

defense was provided to her, and the question now is only whether the

costs will finally be born by the complainant or the state.

I

consider quite unacceptable extending the right to a private and family

life – violation of which the complainant did not even allege – to

decision making on free defense counsel, moreover, understood so as to

guarantee everyone the right to be in contact with others through  cable

television and the internet (in particular points 27 and 28 of the

reasoning). In this way of thinking every decision by a court that

affects a person’s property sphere so much that he will not be able to

afford fees for cable television and internet would be seen as violation

of the right to a private and family life. It is then a question

whether, in the spirit of this logic, the rights of socially weak (and

criminally blameless) persons, who cannot afford internet and cable

television, are not massively violated. That, of course, is an obviously

absurd conclusion; it cannot be otherwise, because the concept of the

right to a private and family life on which the majority opinion is

based is obviously curious and absurd.

In this regard, I consider

it important to also point to the manner of working with the legal

opinions stated in other decisions in the text of the majority opinion. I

have nothing against a conclusion that the right to privacy must also

include the right to form relationships with other people and the

outside world (points 17 and 18 of the reasoning); however, the case law

of the European Court of Human Rights and of the Constitutional Law

made that conclusion in quite different cases (see, e.g., the factual

basis of the cited decisions in the Niemietz case and in II. ÚS 517/99).



Likewise, Lord Rodger’s statement (point 27 of the reasoning)

concerns a completely different issue, literally miles away from the

problem addressed here. The upper house of the British Parliament (the

House of Lords) reviewed a law concerning a particular kind of hunt –

fox hunting – for compatibility with Art. 8 of the Convention for the

Protection of Human Rights and Fundamental Freedoms. The appeals court

consisted of 5 judges, and none of them, not even Lord Rodger of

Earlsferry, cited in point 27, concluded that the abovementioned law

violated the right to respect for a private and family life, as was

objected by the petitioner. However, this decision also stated a number

of other inspiring opinions, which obviously do not fit the concept of

the majority opinion, and therefore it does not mention them. Therefore I

consider it appropriate to pause at Art. 8 of the Convention.

Art. 8 of the Convention reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise

of this right except such as is in accordance with the law and is

necessary in a democratic society in the interests of national security,

public safety or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.”

There

are inspiring thoughts on this article in the opinion of Baroness Hale

of Richmond (p. 40), (footnote no. 1), so I will point out at least some

of these thoughts:

“110. The spirit of liberty is that spirit

which is not too sure that it is right; the spirit of liberty is that

spirit which seeks to understand the minds of other men and women; the

spirit of liberty is the spirit which weights their interests alongside

its own without bias;… [(Learned Hand, “The spirit of liberty,” in The

Spirit of Liberty, Papers and Addresses of Learned Hand,, edited by

Irving Dilliard, 3rd ed., 1960, p. 190).]”

The baroness also poses these questions:

“110.

When does the freedom to do as one pleases become a human right? How

broadly should we construe the scope of the rights and fundamental

freedoms to us all in the European Convention on Human Rights?”

In her opinion, “111. …there is no human right to be left alone to do

as one likes; the Convention has defined some specific rights which can

only be interfered with in specified circumstances; there is a great

deal of flexibility and room for development on both sides of the

scales; but the more broadly one construes the right, the greater the

latitude one must allow the democratically elected legislature to strike

the balance between the interests of those who wish to pursue a

particular activity and the interests of those who wish to prevent

them.”

“114. This is all elementary now. But it is worth

repeating because the purpose of such human rights instrument [the

Convention] is to place some limits upon what a democratically elected

Parliament may do: to protect the rights and freedoms of individuals and

minorities against the will of those who are taken to represent the

majority. Democracy is the will of the people, but the people may not

will to invade those rights and freedoms which are fundamental to

democracy itself. To qualify as such a fundamental right, a freedom must

be something more than the freedom to do as we please, whether alone or

in company with others.”

“115. The right to respect for our

private and family life, our homes and our correspondence, guaranteed by

article 8, is the right most capable of being expanded to cover

everything that anyone might want to do. My noble and learned friend,

Lord Rodger of Earlsferry, has made a powerful case for article 8 to

include almost any activity which is taken sufficiently serious by the

people who engage in it.”

“116. … the Strasbourg jurisprudence

has not gone so far in its interpretation of the rights protected by

article 8; …. Article 8, it seems to me, reflects two separate but

related fundamental values. One is the inviolability of the home and

personal communications from official snooping, entry and interference

without a very good reason. It protects a private space, whether in a

building, or through the post, the telephone lines, the airwaves or the

ether, within which people can both be themselves and communicate

privately with one another. The other is the inviolability of a

different kind of space, the personal and psychological space within

which each individual develops his or her own sense of self and

relationships with other people. This is fundamentally what families are

for and why democracies value family life so highly. Families are

subversive. They nurture individuality and difference. One of the first

things a totalitarian regime tries to do is to distance the young from

the individuality of their own families and indoctrinate them in the

dominant view. Article 8 protects the private space, both physical and

psychological, within which individuals can develop and relate to others

around them. But that falls some way short of protecting everything

they might want to do even in that private space; and it certainly does

not protect things that they can only do by leaving it and engaging in a

very public gathering and activity.”

Note: Which means the shift to protection of Art. 11 Freedom of assembly and association.

“117.

Article 11, on the other hand, is very much concerned to protect such

gatherings. … Why then should it not protect the right of hunting people

not only to get together but also to pursue their sport together?”

“118.

… On this view, the right of the hunt and its followers to gather

together publicly to demonstrate in favour of their sport and against

the ban … is protected by article 11. But the right to chase and kill

the fox or the stag or the mink … is not.”
 
That covers the right to a private and family life and fox hunting.


Point

21 of the reasoning also states, with reference to settled case law,

that a court may recognize the right to a free defense at any time

during the proceedings or even after the end of criminal prosecution; it

cites as an example of this settled case law the decision published as R

19/2008. Of course, that case does not at all address the period when

the right a free defense can be recognized. It addresses only the

question of whether a defendant for whom this right was recognized is a

person authorized to file a complaint against a decision on the amount

of the fee of the appointed defense attorney.

I also have

reservations about the subjectivizing concept of the presumption of

innocence (point 21 of the reasoning), based on the consideration that a

defendant for whom a defense attorney was appointed cannot presuppose

that he will be convicted. On the contrary, I consider the presumption

of innocence to be an objective category that applies not to the inner

belief of the defendant – who, after all, knows whether he committed

something or not – but to third parties and state authorities, whom it

requires to look upon the defendant as innocent until such time as he is

pronounced guilty with legal effect. The reasoning in the majority

opinion applies the subjectivizing concept of the presumption of

innocence only to the appointed defense attorney; if this argument were

taken with all its consequences, it would mean – absurdly – that a

defendant who selected a defense attorney and ‘active addressed” with

that attorney the question of the defense costs thereby actually

indirectly admits that he committed a crime. That is, naturally,

nonsense, but it clearly demonstrates the faultiness of the initial

subjectivizing concept of the presumption of innocence and the incorrect

concept of the relationship between a selected or appointed defense

attorney.

I also do not consider it correct that the

Constitutional Court, without requesting the file (sic!) in point 26 of

the reasoning criticizes the High Court because it “without any relevant

grounds of facts determined in the criminal proceeding, or evidence,

assumed that the complainant must still have at her disposal funds

obtained through criminal activity.” Without being familiar with the

file, such criticism is, at a minimum, very daring.

It is not

quite clear to me why the majority opinion in point 20 mentions the

“right to legitimate expectation,” as regards the fee of an appointed

defense attorney. For one thing, this question was not the subject

matter of the constitutional complaint, and for another, it is clear

from the file in the case file no. 11 T 29/2000 – which I requested –

that the defense attorney’s fee was already assigned to the state with

legal effect and partly paid in advance (see pp. 1852 et seq.).

Finally,

I emphasize with regard to point 24 that the negative theory of

dividing the burden of proof – regardless of the fact that this is a

theory of civil, not criminal, trials – is considered to be overcome in

the procedural literature. Here it is sufficient to cite, for example,

the monograph Macur, J. Dělení důkazního břemene v civilním soudním

sporu. [Division of the burden of proof in a civil trial.] Brno: MU,

1996, pp. 31-35. Nor is there any different conclusion in the cited

civil procedure textbook, because it cites the negative theory of

dividing the burden of proof only in the context of review of individual

theoretical concepts. Likewise, the reference to the Supreme

Administrative Court case of 26 July 2006, file no. 3 Azs 35/2006,

published as no. 951/2006 Coll. of Decisions of the Supreme

Administrative Court, is not persuasive, because there this theory was

used in a situation that involved review of a decision by an

administrative body in a matter of asylum; in terms of verifying his

financial situation, the status of an asylum seeker is different from a

normal situation. The conclusion that the negative theory of dividing

the burden of proof in a civil proceeding has been overcome clearly

arises from valid regulations: e.g., under § 420 par. 3 of the Civil

Code, a person who proves that he did not cause damages is freed from

liability for damages; however, in terms of the negative theory of

dividing the burden of proof, such proof would not be possible, and the

entire provision would cease to make sense.

In this regard we can

pause at the claim in the constitutional complaint that, in order to

prove that she has no real estate assets, the complainant cannot, by the

deadline for the complaint, obtain “statements from ca. 100 Real Estate

Registration Offices existing in the country.” Such a claim is

distorted. Upon the request of an individual or legal entity, any Real

Estate Registration Office will issue a confirmation that the applicant,

who is identified by a valid identity card and birth registration

number, does not own (or co-own) any real estate in the CR listed in the

real estate register. Thus, upon completing the necessary form and

paying a fee of CZK 50, the complainant could have obtained confirmation

that she does not own anything in the CR. Incidentally, this is an

ordinary, routine matter, because the same form is required by, e.g.

some municipalities from persons wishing to buy municipally-owned

apartments.

For these reasons I do not consider the majority

opinion acceptable, and I believe that the constitutional complaint

should not have been granted, certainly not on the basis of the

arguments set forth in the reasoning of the majority judgment.



_____________________
Footnote

1) Points 110-118: quoted by the dissenting judge from Opinions of the

Lords of Appeal for Judgment in the case Countryside Alliance and

others: Session 2007-08 [007] UKHL 52. Available at

www.publications.parliament.uk.