2010/04/20 - Pl. ÚS 6/10: Obligation to Release Defendant from Custody

20 April 2010

HEADNOTES

In order to

ensure respect to and protection of the fundamental right to personal

liberty, the European Court of Human Rights developed a “doctrine of

accentuated reasons”. According to this doctrine, the ordinary courts

must respect the requirement of the indispensability of the existence of

accentuated reasons for continuing to restrict personal liberty,

otherwise it is not possible to approve the continuing restriction of

personal liberty, even when custody might have been imposed on the basis

of a justified suspicion. When assessing the proportionality of

restriction of personal liberty, the ordinary court must deal in

particular with the issue whether the suspicion of committing a criminal

act for which the defendant is criminally prosecuted is being

strengthened or weakened.

From

the viewpoint of constitutionality, it is hardly acceptable that the

continuity of restriction of personal liberty through custody is not

impaired by a judgment of exoneration in any way. According to the

opinion of the Constitutional Court, this statutory arrangement of the

Criminal Procedure Code, empowering the public prosecutor to file a

complaint with effects of deferral, contravenes the narrow

interpretation of Art. 5 para. 1, clause c), in connection with Art. 5

para. 3 of the Convention.

Continuing

restriction of personal liberty after the delivery of a judgment of

exoneration ceases to be justifiable from the viewpoint of public

interest in the effective prosecution of criminal activities, since the

requirement of the presence of accentuated reasons for further

continuance of custody is not fulfilled.
 



CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE REPUBLIC


On

20 April 2010, the Constitutional Court Plenum, composed of Stanislav

Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Ivana Janů,

Vladimír Kůrka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný, Eliška Wagnerová (Justice Rapporteur) and

Michaela Židlická, adjudicated on a petition by the Second Panel of the

Constitutional Court for annulment of the provisions of § 74 para. 2,

second sentence, the section following the semicolon, of Act No.

141/1961 Coll. on Criminal Proceedings (the Criminal Procedure Code), as

amended by later regulations; with participation by the Chamber of

Deputies of the Parliament of the Czech Republic and the Senate of the

Parliament of the Czech Republic as parties to the proceedings; as

follows:

I.

The provisions of § 74 para. 2, second sentence, the section following

the semicolon, including the semicolon, of Act No. 141/1961 Coll. on

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

regulations, which read as follows: “; if release from custody following

pronouncement of a judgment of exoneration is concerned, then a

complaint by a public prosecutor shall have an effect of deferral only

when the public prosecutor also files an appeal against the judgment”,

shall be annulled as of the date this Judgment is published in the

Collection of Laws.

II.

Always following the delivery of a judgment of exoneration, the

defendant shall be released immediately. A complaint by a public

prosecutor against the decision on release of the defendant from custody

following delivery of a judgment of exoneration shall not have an

effect of deferral.



REASONING

 



I.
I. A) Definition of the case and recapitulation of the petition



1.

In proceedings on a constitutional complaint administered under file

No. II. ÚS 331/10, M. Z., the complainant, demanded the annulment of a

resolution of the High Court in Prague, dated 22 December 2009, file No.

10 To 125/2009, as he deemed that through such a resolution the High

Court violated a constitutionally guaranteed right stipulated in Art. 8

paragraphs 1, 2 and 5 of the Charter of Fundamental Rights and Basic

Freedoms (hereinafter referred to only as the “Charter”), as well as

rights established in Art. 5 para. 1, clause c); Art. 5 paragraphs 3 and

4; and Art. 6 para. 1 of the Convention on the Protection of Human

Rights and Fundamental Freedoms (hereinafter referred to also as the

“Convention”). The resolution by the High Court in Prague annulled the

resolution of the Regional Court in Pilsen, dated 7 December 2009, ref.

No. 34 T 3/2008-9891, whereby the complainant was released from custody.

On the basis of a complaint by a public prosecutor of the Regional

Public Prosecutor’s Office in Pilsen, the High Court annulled the

Regional Court’s resolution on release, kept the complainant in custody,

and rejected his application for release.

2. The essence of the

constitutional complaint consists of the complainant’s doubt concerning

the fact that the court of complaint decided on a complaint by a public

prosecutor, who at the same time also filed an appeal against the

judgment of exoneration, in terms of keeping the complainant in custody,

this after the judgment of exoneration was passed concerning the

complainant and his release from custody was ordered by the court of

first instance. This course of action is, according to the complainant,

in contradiction with Art. 5 para. 3 of the Convention in an

interpretation adopted by the European Court of Human Rights in 1968

(the decision in the case of Wemhoff v. FRG, dated 27 June 1968). The

complainant further saw violation of the fundamental rights in the fact

that the High Court did not make it possible for him to be personally

heard within the scope of decision making on the continuance of custody.

Also, according to the complainant, the decision by the High Court was

practically non-reviewable due to its broad reasoning.

3. The

Second Panel of the Constitutional Court did not consider the section

following the semicolon of the second sentence of § 74 para. 2 of Act

No. 141/1961 Coll. on Criminal Proceedings (the Criminal Procedure

Code), as amended by later regulations, to be constitutionally

conforming, since the same contravenes the requirement for

proportionality of restriction of personal liberty through custody, when

it does not respect the requirement for proving the presence of

accentuated reasons for further restriction of personal liberty through

custody, which requirement results both from the case law of the

Constitutional Court [Judgment of the Constitutional Court file No. IV.

ÚS 689/05, dated 12 December 2005 (N 225/39 SbNU 379)] and from the case

law of the European Court of Human Rights (Wemhoff v. FRG, dated 27

June 1968; Labita v. Italy, dated 6 April 2000; Rokhlina v. Russia,

dated 7 April 2005, available at www.echr.coe.int), or indeed

literally negates this requirement. Therefore, the Second Panel of the

Constitutional Court submitted to the Plenum of the Constitutional Court

a petition for annulment of the above-quoted provisions.


I. B) Statements by the parties to the proceedings

4.

The Constitutional Court, pursuant to the provisions of § 42 para. 4

and § 69 of Act No. 182/1993 Coll. on the Constitutional Court, as

amended by later regulations (hereinafter referred to only as the “Act

on the Constitutional Court”), sent said petition for annulment of the

contested provisions to the Chamber of Deputies and the Senate of the

Parliament of the Czech Republic.

5. The Chamber of Deputies of

the Parliament of the Czech Republic, represented by its Chairperson,

Ing. Miloslav Vlček, in its statement dated 12 March 2010, only

recapitulated the course of the legislative process resulting in

adoption of the valid wording of the contested provisions of § 74 para.

2, second sentence, the section following the semicolon of the Criminal

Procedure Code. In addition, the Chamber of Deputies expressed its

approval of dispensation of an oral hearing.

6. The Senate of the

Parliament of the Czech Republic, represented by its President, MUDr.

Přemysl Sobotka, in its statement dated 12 March 2010, also described

the legislative procedure of adopting the valid wording of the contested

provisions of § 74 para. 2, second sentence, the section following the

semicolon of the Criminal Procedure Code (an amendment to the Criminal

Procedure Code made by Act No. 265/2001 Coll.) by the Senate. They

further stated that the entire amendment under discussion had

represented alterations to criminal proceedings with the intention of

reform, and as a whole pursued – both factually and legally – a

progressive trend as regards the feasibility and enforceability of the

law. Discussion of the amendment in the Senate did not directly concern

said section of the legal arrangement; however, debate was held

concerning another, partially comparable matter from the given

amendment, that is concerning the new entitlement of the public

prosecutor to prolongation of custody during preparatory proceedings. In

the end, the Senate, after a critical debate in committees as well as

the plenum, did not revise such a proposal for a stronger competence of

the public prosecutor. From the context of holding the debate, it may be

presumed that the Senate tended towards the opinion of the sponsor, in

that it was necessary to properly reflect the altered position of the

public prosecutor in criminal proceedings additionally in the instrument

of custody. The Senate also expressed its approval of dispensation of

an oral hearing.

 


II.
Conditions for the active standing of the petitioner


7.

The petition for annulment of the second sentence, the section

following the semicolon of § 74 para. 2 of the Criminal Procedure Code,

for its contradiction with the constitutional order of the Czech

Republic was filed by the Second Panel of the Constitutional Court

within the scope of the proceedings on a constitutional complaint of the

complainant M. Z., administered under file No. II. ÚS 331/10, when the

essence of the constitutional complaint consisted of an opinion that any

continuance of custody following pronouncement of a judgment of

exoneration by a court of first instance is in contradiction with the

Convention, and the possibility of continuing custody is supported by

said section of the provisions of the Criminal Procedure Code being

contested. Therefore, it is a petition filed under § 64 para. 1, clause

c) of the Act on the Constitutional Court, and the conditions for active

standing for filing the same have consequently been fulfilled.
 


III.
Wording of the contested provisions


8.

The contested provisions of the second sentence, the section following

the semicolon of the provisions of § 74 para. 2 of Act No. 141/1961

Coll. on Criminal Proceedings (the Criminal Procedure Code), as amended

by later regulations, read as follows:

“if release from custody

following pronouncement of a judgment of exoneration is concerned, then a

complaint by a public prosecutor shall have an effect of deferral only

when the public prosecutor also files an appeal against the judgment”



IV.
Description of legislative procedure of adopting the contested provisions of the act


9.

In accordance with the provisions of § 68 para. 2 of the Act on the

Constitutional Court, the Constitutional Court is further obliged, in

proceedings on annulment of acts and other legal regulations, to assess

whether the contested act or part of the same was adopted and issued

within the confines of the powers set down in the Constitution and in a

constitutionally prescribed manner. The provision in question was

adopted as early as prior to 1993, that is prior to the validity and

effectiveness of the Constitution of the Czech Republic (hereinafter

referred to only as the “Constitution”) which represents a reference

criterion for evaluating the constitutionality of the legislative

procedure of adopting legal regulations [see Resolution of the

Constitutional Court Plenum, file No. Pl. ÚS 5/98, dated 22 April 1999

(U 32/14 SbNU 309)]. Since alterations adopted later were merely formal

or considered merely aspects of language, as they related in particular

to replacement of the institution of the state attorney with the

institution of public prosecution, the Constitutional Court did not

review the legislative procedure of adopting such provisions of the act.
 


V.
Reference criteria for assessment of the petition


V. A) Relevant provisions of the Constitution and the Convention


10.

Under Art. 1 para. 1 of the Constitution, the Czech Republic is a state

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

freedoms of man and of citizens. At the very core of a state governed by

the rule of law there is a “principle according to which freedom of an

individual is presupposed and its restriction by the state is an

exemption” (cf. C. Schmitt. Constitutional Theory. Durham and London:

Duke University Press, 2008, p. 204). The idea of a state governed by

the rule of law is thus a logical basis for the entire concept of

criminal proceedings. These must, to a maximum degree, preserve the

rights and freedoms of an individual, since belittling the purpose and

methods of administration of criminal proceedings may result in

unjustified and inadequate infringement of private liberty of an

individual (cf. Judgment of the Constitutional Court file No. II. ÚS

1975/08, available at nalus.usoud.cz). From the viewpoint of

constitutional law it is always significant to assess to what extent

public interest, as defined in the Criminal Code by the purpose of

punishment, may (still) legitimately restrict the fundamental rights of a

specific defendant in the course of criminal proceedings (cf. Judgment

of the Constitutional Court file No. I. ÚS 1305/09, available at

nalus.usoud.cz); the very right to personal liberty being an

example and a core one of these.

11. By the provisions of Art. 8

para. 1 of the Charter, everybody is guaranteed personal liberty which

holds a key place in the catalogue of fundamental rights and basic

freedoms [cf. clause 25 of Judgment file No. Pl. ÚS 63/06, dated 29

January 2008 (N 21/48 SbNU 223; 90/2008 Coll.)]. The latitude and

confines for constitutionally approved restriction of the right to

personal liberty are then established in particular by the provisions of

Art. 8 para. 2, and Art. 8 para. 5 of the Charter [cf. Judgment of the

Constitutional Court file No. IV. ÚS 689/05, dated 12 December 2005 (N

225/39 SbNU 379)]. A similar, indeed even more detailed, arrangement is

contained in the Convention on the Protection of Human Rights and

Fundamental Freedoms. According to Art. 5 para. 1 of this document, no

one shall be deprived of their liberty save in exhaustively specified

cases. A person may be deprived of personal liberty only in accordance

with a procedure prescribed by law. According to Art. 5 para. 1, clause

c) of the Convention, an individual may be deprived of liberty for the

reason of lawful arrest or detention of a person effected for the

purpose of bringing them before the competent legal authority on

reasonable suspicion of having committed an offence or when it is

reasonably considered necessary to prevent their committing an offence

or fleeing after having done so. Art. 5 para. 3 of the Convention then

says that everyone arrested or detained in accordance with the

provisions of paragraph 1.c of this article shall be brought promptly

before a judge or other officer authorised by law to exercise judicial

power and shall be entitled to trial within a reasonable time or to

release pending trial.
 


V. B) Restriction of personal liberty through custody


12.

The Constitutional Court has several times commented on the nature of

custody which, together with detention and arrest, is one of the most

serious procedural infringements of rights of a defendant. The contents

of the legal instrument of custody represent a definition of

constitutionally acceptable reasons for restricting the personal liberty

of a defendant, with the objective of precluding obstruction or

hindrance of achieving the purpose of criminal proceedings [cf. Judgment

of the Constitutional Court file No. Pl. ÚS 4/94, dated 12 October 1994

(N 46/2 SbNU 57; 214/1994 Coll.), Judgment file No. I. ÚS 40/04, dated

24 February 2004 (N 28/32 SbNU 261), file No. IV. ÚS 689/05, dated 12

December 2005 (N 225/39 SbNU 379)]. Temporary restriction of personal

liberty through custody must, according to the opinion of the

Constitutional Court, comply with several conditions [cf. clause 25 of

Judgment of the Constitutional Court file No. Pl. ÚS 63/06 (see above)]:

“The basic principles of restriction of personal liberty through

custody (which sub-constitutional law must reflect) include the

indispensability of committing a person to custody and keeping the same

in custody merely for a certain legitimate purpose, the proportionality

between the personal liberty of an individual and interests of society

in restricting such liberty, the indispensability of the restriction of

personal liberty due to the absence of another means of achieving the

same objective, balancing the benefits of restricting personal liberty

with respect to detriments resulting from the same, and, finally, the

exclusive powers of a court to make decisions.”

13. Due to the

fact that custody may represent an enormous infringement of the personal

domain of an individual, the case law of the Constitutional Court has

paid peculiar attention to it. In the opinion of the Constitutional

Court, custody “represents an extraordinary measure relating to

restriction of personal liberty and should be imposed only when there is

no other eventuality for allaying a particular misgiving for which

custody may be ordered” (cf. Judgment of the Constitutional Court file

No. II. ÚS 897/08, available at nalus.usoud.cz). The exceptional

nature of this securing instrument is given by the fact that custody has

serious negative consequences: that is it confines “a person presumably

innocent, prior to definite determination of guilt, it isolates the

defendant from their family and social environment, has serious social

and psychological consequences, may serve as a means of duress to a

defendant in order to obtain their confession” (Repík, B. Evropská

úmluva o lidských právech a trestní právo / European Convention on Human

Rights and Criminal Law. Prague: Orac, 2002, p. 228). Since custody may

significantly encroach upon the personal liberty of an individual, it,

as a legitimate statutory exception to the general rule of

inadmissibility of infringement of personal liberty of an individual,

must always be interpreted solely in a restrictive way, as is

additionally confirmed by the case law of the European Court of Human

Rights. According to such case law, the list of exceptions to the right

to liberty is of an exhausting nature, and, therefore, only a narrow

interpretation is compatible with the objective of provisions of Art. 5

of the Convention (Giulia Manzoni v. Italy, 1997, Quinn v. France,

1995). Application of this procedural instrument must be always measured

from the viewpoint of proportionality of the infringement of the

fundamental rights of a defendant.

14. Infringement of personal

liberty must always be evaluated from the viewpoint of time; as custody

is an extraordinary instrument, it may last only for an absolutely

necessary period of time. If it lasts for a period longer than is

absolutely necessary, it becomes a measure which is inadequate and which

inadmissibly infringes the fundamental right to personal liberty of an

individual, guaranteed by Art. 8 para. 1 of the Charter, which must be,

under the given situation, granted priority. According to the European

Court of Human Rights, “continuance of restriction of personal liberty”

is then “justified only in the case that there are specific indications

of a true need in terms of public interest, which, irrespective of the

presumption of innocence, outbalance the principle of respecting

personal liberty” [cf. for example a decision in the case of Letellier

v. France, dated 26 June 1991, Muller v. France, dated 17 March 1997,

Punzelt v. Czech Republic, dated 25 April 2000, or Jecius v. Lithuania,

dated 31 July 2000; cf. also Judgment of the Constitutional Court file

No. IV. ÚS 689/05, dated 12 December 2005 (N 225/39 SbNU 379)].

Continuing restriction of personal liberty through custody must be in

proportional relation to the constitutionally conforming public interest

in effective prosecution of criminal activity. With the passage of

time, to the contrary, the legitimacy of restricting fundamental rights

for the benefit of public interest in fulfilling the purpose of criminal

proceedings decreases, and the need for renewing respect for the

fundamental rights of an individual increases.

15. In order to

ensure respect to and protection of the fundamental right to personal

liberty, the European Court of Human Rights developed a “doctrine of

accentuated reasons”. According to this doctrine, the ordinary courts

must respect the requirement of the indispensability of the existence of

accentuated reasons for continuing to restrict personal liberty,

otherwise it is not possible to approve the continuing restriction of

personal liberty, even when custody might have been imposed on the basis

of a justified suspicion. When assessing the proportionality of

restriction of personal liberty, the ordinary court must deal in

particular with the issue whether the suspicion of committing a criminal

act for which the defendant is criminally prosecuted is being

strengthened or weakened. Specifically speaking, ongoing existence of

the suspicion is “a condition sine qua non for the lawfulness of

continuance of custody, but after a certain period of time, such ongoing

existence is in itself no longer sufficient. In such cases, the court

must determine whether there exist also other (relevant and sufficient)

reasons submitted by the bodies involved in criminal proceedings that

would justify such continuing confinement” (a decision dated 7 April

2005 in the case of Rokhlina v. Russia). The domestic court must thus

determine whether other reasons submitted by the bodies involved in

criminal proceedings may justify the continuing confinement of the

person involved (cf. Hubálková, E. Evropská úmluva o lidských právech a

Česká republika / European Convention on Human Rights and the Czech

Republic. Prague: Linde, 2003, p. 131).

16. Since the European

Court of Human Rights always evaluates the proportionality of the length

of restriction of personal liberty through custody, they in many

decisions have commented specifically on when, from the viewpoint of

time, custody may still be considered proportional, and when custody

begins to represent an infringement of the right to personal liberty

guaranteed by the Convention. According to the European Court of Human

Rights there actually is a certain time limit which confinement through

custody must not exceed. The European Court of Human Rights says, and

the Constitutional Court emphasises the same opinion (clauses 13 and

14), that custody is an extraordinary instrument, limited in duration to

an absolutely necessary period of time. While it is usually not a

problem to determine the commencement of such a period, a vital issue is

then to determine the end point of custody, such as would still be in

accordance with the Convention. The case law of the European Court of

Human Rights shows that such a period starts at the moment when a person

is actually deprived of liberty, and ends upon pronouncement of a

judgment by a court of first instance, even though such a judgment has

not become legally binding (cf. Repík, B. Evropská úmluva o lidských

právech a trestní právo / European Convention on Human Rights and

Criminal Law. Prague: Orac, 2002, p. 228).

17. This rule was

pronounced by the European Court of Human Rights in the decision in the

case of Wemhoff v. Germany, dated 27 June 1968. According to this,

custody ends, with respect to Art. 5 para. 3 of the Convention, on the

day when the indictment is decided upon, be it only by a court of first

instance. The European Court of Human Rights confirmed this legal

opinion in its decision in the case of Labita v. Italy, dated 6 April

2000, in which they declared that the end of custody, with respect to

Art. 5 para. 3 of the Convention, is the date when a decision is made on

the justification of the indictment, even when only at the first

instance. These decisions clearly show that detaining a person after the

same has been exonerated can no longer be covered by the exemption

permitted by Art. 5 para. 1, clause c) of the Convention. The European

Court of Human Rights admitted that a certain period of time to effect

the decision on release is often inescapable, but such a period must be

reduced to a minimum (Guilia Manzoni, dated 1 July 1997). An important

consequence of such a legal opinion is that the term of continuance of

custody may not be prolonged by the effects of deferral pertaining to

executing the judgment of exoneration. The point is that in similar

cases the reason for confining a person pursuant to Art. 5 para. 1,

clause c) of the Convention has ceased to exist. The case law of the

European Court of Human Rights makes it possible to infer a conclusion

according to which it is true that if a court of first instance

pronounced a judgment of exoneration, the defendant must be immediately

released, even though the public prosecutor appeals immediately

afterwards (cf. Repík, B. Evropská úmluva o lidských právech a trestní

právo / European Convention on Human Rights and Criminal Law. Prague:

Orac, 2002, p. 229). Should the defendant not be released, it must be

declared that the right to personal liberty guaranteed by Art. 5 para. 1

of the Convention is thus being violated. Another case of restriction

of personal liberty may occur when conditions presupposed by Art. 5

para. 1, clause a) of the Convention are fulfilled, when the same makes

possible lawful detention after conviction by a competent court. A

person who objects, after the conviction, that their custody had lasted

for an unnecessarily long time due to delays in the proceedings on their

appeal, may not resort to Art. 5 para. 3 of the Convention, but may

only claim and prove violation of rights guaranteed by Art. 6 para. 1 of

the Convention.



V. C) Inspiration from elsewhere: the practice in the Slovak Republic


18.

The Constitutional Court notices that the above-described practice of

the European Court of Human Rights has created a response in the Slovak

Republic. Slovakia has adopted an extensive amendment to the Criminal

Procedure Code, which was to ensure respect for the fundamental rights

of individuals in accordance with their interpretation by the Slovak

Constitutional Court and in particular the European Court of Human

Rights. Case law of the European Court of Human Rights concerning Art. 5

paragraphs 1, 3 and 4 of the Convention has been comprehensively

implemented in the Criminal Procedure Code of the Slovak Republic. Thus

Slovakia fulfilled the commitments imposed on them by the Convention.

The explanatory report of the Slovak Ministry of Justice from 2007 names

specific alterations towards which such an amendment was directed. One

of these alterations consists of the unconditional release of a

defendant from custody following their acquittal by a court of first

instance. At that point, the Ministry of Justice referred to the main

principles of the decision of the European Court of Human Rights in the

case of Wemhoff v. Germany from 1968 (cf. p. 4). The explanatory report

has also referred to a decision in the case of Labita v. Italy, which

says that further continuance of custody following a judgment of

exoneration can no longer be justified by an exception admissible under

Art. 5 para. 1, clause c) of the Convention. In other words, custody

following pronouncement of a judgment of exoneration loses support in

terms of the provisions of clause c) of Art. 5 para. 1 of the

Convention, as far as the procedural safeguards of Art. 5 para. 3 of the

Convention, which guarantees the right to a trial within a reasonable

time, linked to these provisions of the Convention, have been

accomplished. That it why it is not further possible to hold a person in

custody when the righteousness of such a person’s charges has already

been decided upon. The explanatory report explicitly points out that, in

accordance with the decision in the case of Wemhoff, the day of

termination of custody is the day when the charges are being decided

upon, even though only by a court of first instance (cf. p. 23).
 


VI.
The actual review


19.

In light of the above-specified aspects of constitutional law, the

Constitutional Court thus had to evaluate whether said sections of the

contested provisions meet requirements resulting from the

above-specified principles, and concluded that it is not so.

20.

The provisions of § 74 para. 2, second sentence, the section following

the semicolon of the Criminal Procedure Code regulate the effects of

deferral of a complaint by a public prosecutor following the

pronouncement of a judgment of exoneration, if an appeal is filed at the

same time. The judgment of exoneration is delivered under the condition

that, on the basis of evidence submitted, the guilt of a defendant is

not proven, be it (a) due to the fact that it has not been proven that

the act for which the defendant is prosecuted has actually happened; or

(b) due to the fact that the act designated in the proposed judgment is

not a criminal act; or (c) due to the fact that it has not been proven

that such an act was committed by the defendant (see § 226 of the

Criminal Procedure Code, wherein some other reasons are established). In

connection with the delivery of the judgment of exoneration, the court

of first instance must examine whether reasons for custody continue or

whether they have changed (cf. § 72 para. 1 of the Criminal Procedure

Code). Since the defendant was, by the decision of the court, completely

acquitted of the indictment, it is at the given moment evident that

reasons for custody are no longer given and that further continuance of

custody is no longer justified. This is the very reason for which the

ordinary court, immediately after delivering a judgment of exoneration,

delivers also a resolution on release from custody. The present wording

of the provisions of § 74 para. 2, second sentence, the section

following the semicolon of the Criminal Procedure Code then, in

principle, represents the entitlement of a public prosecutor to reverse a

decision of a court on release from custody, be it for a limited period

of time, until the time of the decision of the court of complaint.

21.

From the viewpoint of constitutionality, it is hardly acceptable that

the continuity of restriction of personal liberty through custody is not

impaired by a judgment of exoneration in any way. According to the

opinion of the Constitutional Court, this statutory arrangement of the

Criminal Procedure Code, empowering the public prosecutor to file a

complaint with effects of deferral, contravenes the narrow

interpretation of Art. 5 para. 1, clause c), in connection with Art. 5

para. 3 of the Convention. The point is that the wording of the

contested section of said provisions of the Criminal Procedure Code is

completely unambiguous, and its deficits cannot be overcome by a

constitutionally conforming interpretation.

22. The

Constitutional Court has, therefore, concluded that the contested

section of the provisions of § 74 para. 2 of the Criminal Procedure Code

is in direct contradiction with the requirements resulting from the

principles contained in the case law of the European Court of Human

Rights (clauses 14 to 17), which are thus not respected by the Czech

legal arrangement. Continuing restriction of personal liberty after the

delivery of a judgment of exoneration ceases to be justifiable from the

viewpoint of public interest in the effective prosecution of criminal

activities, since the requirement of the presence of accentuated reasons

for further continuance of custody (clause 15) is not fulfilled. When

the case law of the European Court of Human Rights requires that reasons

that could legitimate the ongoing continuance of custody become

stronger with the passage of time, it is apparent that the contested

section of the provisions of the Criminal Procedure Code cannot honour

such a requirement. The delivery of a judgment of exoneration in fact

causes that such reasons vanish. In other words, the acquittal of an

indictment represents that moment in the scope of criminal proceedings

when reasons for keeping a person in custody have disappeared or are

diminished to a minimum level, since the charges have proven to be

unjustified by a verdict of a court, and, therefore, there is no public

interest in continuing custody which could outweigh the requirement for

respecting personal liberty. When an obligation is imposed on the court

to deal with whether the suspicion of committing a criminal act is

strengthened or diminished (clause 15), then in connection to the

delivery of a judgment of exoneration, the legitimacy of the suspicion

is disproved by the very decision of the court on the unjustified nature

of the charges. Release of the defendant cannot be considered to be

premature, even though there is a possibility that the appeal by the

public prosecutor to the detriment of the defendant will be granted by

the court of appeal. As the Constitutional Court declared in Judgment

file No. IV. ÚS 689/05, dated 12 December 2005 (N 225/39 SbNU 379), a

reason for prolonging custody consisting of a totally unjustified

hypothetical conclusion on the possibility of an appeal being granted by

the court of appeal “is completely arbitrary, conflicting with Art. 8

para. 2, para. 5 of the Charter not only by its extending the reasons

for restricting personal liberty beyond the statutory framework, but

also by placing to the detriment of the complainants the implicitly

assumed inability of the court of first instance to disprove their

defence.”

23. The effects of deferral of the complaint by a

public prosecutor establish a condition when a greater sacrifice is

required from an individual than may be reasonably required from a

person who benefits from the presumption of innocence, in this case

confirmed by a court of justice. The Constitutional Court, therefore,

cannot accept the concept of the Czech legal arrangement, according to

which further continuance of custody is, in the given moment, allowed.

When the powers granted by the contested provisions of the Criminal

Procedure Code to public prosecutors are put into practice, it leads to

an inadmissible and unconstitutional infringement of the fundamental

right to personal liberty, which, however, must be respected by the

state even when formulating norms of criminal law. Therefore, there is

nothing left but to conclude that continuance of custody cannot be

prolonged through the effects of deferral of a decision on release from

custody activated by a complaint by a public prosecutor, since such a

concept leads to an inadmissible infringement of the constitutionally

guaranteed right to personal liberty of the defendant.

24. In a

number of its decisions, the Constitutional Court has commented on the

interpretation of Art. 89 para. 2 of the Constitution [cf. Judgment of

the Constitutional Court file No. Pl. ÚS 2/03, dated 19 March 2003 (N

41/29 SbNU 371; 84/2003 Coll.); Judgment file No. Pl. ÚS 41/02, dated 28

January 2004 (N 10/32 SbNU 61; 98/2004 Coll.); Judgment file No. Pl. ÚS

45/04, dated 22 March 2005 (N 60/36 SbNU 647; 239/2005 Coll.)],

according to which “not only a verdict of a judgment is binding, but

also its reasoning, specifically those parts of the same as contain

‘main’ reasons”. After derogation of the contested section, the

provisions of § 74 para. 2 of the Criminal Procedure Code shall read as

follows: “Effects of deferral shall pertain solely to a complaint by a

public prosecutor against a decision on release of a defendant from

custody and a complaint by the parties against a decision on allocation

of bail to the state. However, when the public prosecutor is present at

the pronouncement of such a decision, then their complaint shall have

effects of deferral only provided that the same is filed immediately

following pronouncement of the decision.” Such provisions will have to

be interpreted in a constitutionally conforming manner in such a way

that this norm cannot be applied in the instance that a judgment of

exoneration is delivered in the given case. A result of the annulment of

the given section of the Criminal Procedure Code must consist of the

defendant always being released immediately following the delivery of a

judgment of exoneration. A complaint by a public prosecutor against a

decision on release of a defendant from custody following delivery of a

judgment of exoneration shall have no effects of deferral. The

Constitutional Court is aware of the fact that a certain time for the

execution of the decision on release is necessary, however, the Court

wishes to remark that in the case of Labita v. Italy (clause 17) it was

found by the European Court of Human Rights that a delay in the process

of release from custody, due to the indispensability of undertaking

administrative technicalities, of approximately 10 hours was

disproportionately long.

Notice: Decisions of the Constitutional Court cannot be appealed.