2010/06/08 - Pl. ÚS 3/09: Searches of other Premises and Land

08 June 2010

HEADNOTES

The

interpretation of the right to privacy in spatial form, i.e. the right

to respect for, and protection of, a dwelling from external

interference, does not limit themselves to protection of premises used

for residing in, but consider the right to respect for, and protection

of, a dwelling together with the right to inviolability of the person

and privacy and with the right to protection of personal freedom and

dignity, as an inseparable part of the private sphere of every

individual, defined spatially in the case of a dwelling.

 

The

abovementioned maxims, arising from the constitutional order of the

Czech Republic, require that an independent and impartial body rule in

issuing a warrant for a search of other premises and lands. The state

prosecutor cannot be considered as such a body, not can a police body.

 

The

Constitutional Court is of the opinion that, especially at the present

time, when autonomous fulfillment of private life and work or hobby

activities are closely related to each other, it is not possible to make

a sharp spatial division of privacy in places used for living in from

privacy created in places and environments used for work or

entrepreneurial activity, or for satisfying one’s own needs or hobby

activities, even if activities conducted in premises that are accessible

to the public, or are not closed, e.g., entrepreneurial activities, may

be subject to certain limitations that could represent a certain

interference in the right to a private life. However, these are narrowly

defined in advance, as regards the purpose of such restrictions, and

are also known to a person, e.g. an entrepreneur, in advance, and such a

person enters into various kinds of activities, e.g. conducting

business, with that knowledge. Nevertheless, this does not, of course,

affect that person’s right to seek judicial protection from particular

interference, which may be foreseen by statute, but which, in terms of

the warrant or the conduct thereof, does not meet the principle of

proportional restriction of the right to a private life. As regards

unfenced lands (e.g. forests or fields), we must fundamentally

distinguish between entering them and “searching” them, the latter being

connected with interference in the integrity of the real estate (land).

Therefore, the conduct of the search must be subject to the same regime

as a search of enclosed premises. It is a generally known and shared

experience (especially from the times before 1989), that it is often

precisely in such premises that private life was often exercised through

hiding things that were meant to remain hidden from the eyes of the

public, and especially the public authorities.

 

This

requirement is all the more pressing in a situation where our Criminal

Procedure Code does not permit subsequent review of a court-ordered

search warrant for other premises and lands. Thus, these acts, which are

obvious interference in the fundamental right to a private life, are

outside any immediately judicial review.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE CZECH REPUBLIC


On

8 June 2010, the Plenum of the Constitutional Court, consisting of

Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler,

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

Nykodým, Pavel Rychetský, Eliška Wagnerová (judge rapporteur) and

Michaela Židlická, ruled on a petition from panel II. of the

Constitutional Court seeking the annulment of § 83a of Act no. 141/1961

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

amended by later regulations, with the Chamber of Deputies of the

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

Czech Republic participating as parties to the proceeding, as follows:
The

provisions of § 83a par. 1, part of the first sentence and the second

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

Criminal Procedure Code), as amended by later regulations, which read:

“‘in a preliminary proceeding the state prosecutor or police body. A

police body needs the prior consent of the state prosecutor thereto,”

are annulled as of the day this judgment is promulgated in the

Collection of Laws.
 


REASONING

 


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

 

1.

In a proceeding on a constitutional complaint, file no. II. ÚS 1414/07,

the complainant, Ing. M. B. van S., sought annulment of Supreme Court

resolution of 28 February 2007, file no. 3 Tdo 161/2007, decision of the

Regional Court in Pilsen of 22 June 2006, file no. 9 To 255/2006, and

decision of the District Court Pilsen-south of 8 February 2006, ref. no.

2 T 127/2005-1028, because she believed that these general court

decisions violated her fundamental rights guaranteed by Art. 36 par. 1

and 2 of the Charter of Fundamental Rights and Freedoms (the “Charter”),

and also violated Art. 4 par. 1, 2 and 4 of the Charter. In the

abovementioned general court decisions the complainant was found guilty

of the crime of unlicensed production and possession of narcotic and

psychotropic substances and poisons under § 187 par. 1 a par. 2 let. a)

of the Criminal Code, and sentenced to 2 years in prison, conditionally

suspended for 2 years.

2. In the constitutional complaint, the

complainant expressed doubts about the legality of a house search and

search of other premises, because she believed that the statutory

conditions for them had not been met, and therefore the general courts

should not have taken that evidence into account at all.

3. The

second panel of the Constitutional Court did not consider it

constitutional for the Criminal Procedure Code, as the statutory

regulation governing a particular procedure in criminal matters (§ 82 et

seq.), to specify different (stricter) conditions under which an

individual’s right to privacy can be violated by a house search (§ 83)

than in the case of a search of other premises and land (§ 83a),

although an inspection of other premises is undoubtedly also

interference in an individual’s right to privacy, in an extent

comparable to that of a house search.

4. Thus, the second panel

of the Constitutional Court concluded that § 83a par. 1 of the Criminal

Procedure Code (the “CPC”) is inconsistent with the constitutional order

of the Czech Republic. Therefore, by resolution of 26 February 2009,

file no. II. ÚS 1414/07, it suspended the proceeding on the

constitutional complaint under § 78 par. 2 of Act no. 182/1993 Coll., on

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

the Constitutional Court”) and submitted to the Plenum of the

Constitutional Court a petition seeking the annulment of § 83a par. 1 of

the CPC under § 64 par. 1 let. c) of the Act on the Constitutional

Court.



I. B) Briefs from the parties to the proceeding
 

5.

In accordance with § 42 par. 4 a § 69 of the Act on the Constitutional

Court, the Constitutional Court sent the petition for the annulment of

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

the Parliament of the Czech Republic.

6. The Chamber of Deputies

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

Ing. Miloslav Vlček, in its brief of 21 April 2009, merely recapitulated

the course of the legislative process leading to the adoption of the

current wording of the contested provision, § 83a of the CPC. It also

consented to waive a hearing.

7. The Senate of the Parliament of

the Czech Republic, represented by its chairman, MUDr. Přemysl Sobotka,

in its brief of 22 April 2009, also described the legislative process of

adoption of the current wording of the contested provision, § 83a of

the CPC (an amendment of the CPC implemented by Act no. 265/2001 Coll.)

by the Senate. It also stated that, in view of the discussion during the

adoption of the amendment, relating to the authorization of the state

prosecutor when extending detention during preliminary proceedings, one

can conclude, that it inclines toward the opinion of the amendment’s

proponent, that under the amendment the state prosecutor becomes the

real master of the preliminary proceeding, and thus judicial aspects of

his role are significantly strengthened. The majority of the Senate

agreed that the legal framework presented as a whole pursues a

substantively and legally progressive trend toward making law more

streamlined and enforceable. The Senate also consented to waive a

hearing.



II.
Requirements for the petitioner’s active standing

 

8.

The petition for the annulment of § 83a par. 1 of the Criminal

Procedure Code due to inconsistency with the constitutional order of the

Czech Republic was filed by panel II. of the Constitutional Court in a

proceeding on a constitutional complaint by Ing. M. B. van S., file no.

II. ÚS 1414/07, where the substance of the constitutional complaint was,

among other things, the complainant’s disagreement with the actions of

the general courts in evaluating the legality of a search of other

premises and land, the requirements for which are contained in the

contested Criminal Procedure Code provision. This is a petition filed in

accordance with § 64 par. 1 let. c) of the Act on the Constitutional

Court, and therefore the requirements for active standing to file it

were met.



III.
Constitutionality of the legislative process

 

9.

In proceedings on review of a norm under Art. 87 par. 1 let. a) of the

Constitution of the Czech Republic (the “Constitution”), the

Constitutional Court, under § 68 par. 2 of the Act on the Constitutional

Court, must first review whether the statute in question was adopted

and issued in a constitutionally prescribed manner [regarding the

algorithm of review in a proceeding on review of a norm see point 61 of

Constitutional Court judgment file no. Pl. ÚS 77/06 of 15 February 2007

(N 30/44 SbNU 349; 37/2007 Coll.)].

10. In relation to Act no.

558/1991 Coll., which amends and supplements the Criminal Procedure Code

and the Act on Protection of State Secrets, based on which the

statutory provision in question, § 83a, was inserted into the Criminal

Procedure Code with effect as of 1 January 1992, the Constitutional

Court did not determine whether it was adopted and issued within the

bounds of constitutionally provided jurisdiction and in a

constitutionally prescribed manner, because, in the case of legal

regulations that were issued before the Constitution went into effect,

the Constitutional Court is authorized to review only whether their

content is consistent with the contemporary constitutional order, but

not the constitutionality of the process by which they were created or

observance of norm-creating authority [see Constitutional Court

resolution, file no. Pl. ÚS 5/98, of 22 April 1999 (U 32/14 SbNU 309)].

11.

In the period from 1 January 1993, i.e. from the date when the

Constitution of the Czech Republic entered into force, the following

amendments were made to the statutory provision in question. The first

amendment, effective as of 1 January 1994, was made by Act no. 292/1993

Coll., which amends and supplements Act no. 141/1961 Coll., on Criminal

Court Proceedings (the Criminal Procedure Code), Act no. 21/1992 Coll.,

on Banks, and Act no. 335/1991 Coll., on Courts and Judges. The

contested provision was subsequently amended in connection with the

adoption of Act no. 283/1993 Coll., on the State Prosecutor’s Office,

and by Act no. 265/2001 Coll., which amends Act no. 141/1961 Coll., on

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

later regulations, Act no. 140/1961 Coll., the Criminal Code, as amended

by later regulations, and certain other acts.

12. As the

amendments to the contested provision introduced by the abovementioned

statutes were primarily technical legislative changes, with no

fundamental effect on the actual content of the contested provision, in

this case the Constitutional Court, in view of the principles of

procedural efficiency, dispensed with a closer review of whether the

cited statutes were adopted and issued within the bounds of

constitutionally provided jurisdiction and in a constitutionally

specified manner, and limited itself, taking into account the briefs

from the Chamber of Deputies and the Senate, to formally verifying the

course of the legislative process of their adoption from publicly

available sources of information (resolutions and parliamentary

publications available in the digital library on the webpages of the

Chamber of Deputies and the Senate, at www.psp.cz and www.senat.cz). The

Constitutional Court concluded that the cited statutes were adopted and

issued within the bounds of constitutionally provided jurisdiction and

in a constitutionally prescribed manner. Therefore, it turned to

reviewing the content of the contested provision,§ 83a par. 1 of the

CPC, for consistency with the constitutional order [Art. 87 par. 1 let.

a) of the Constitution].
 


IV.
The text of the contested provision

 

13.

The contested provision, § 83a par. 1 of Act no. 141/1961 Coll., on

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

later regulations, reads:

§ 83a
Search warrant for other premises and lands

(1)

A search of other premises or lands may be ordered by the panel

chairman, in a preliminary proceeding a state prosecutor or police body.

A police body needs the prior consent of the state prosecutor thereto.

The warrant must be issued in writing, and must contain a justification.

It must be delivered to the user of the premises or land in question,

and if he is not available during the search, immediately after removal

of any obstacle that prevents delivery.



V.
Aspects for reviewing the petition

V. A) Inviolability of private life and dwelling, as fundamental rights, and definition of the term “dwelling”

 

14.

Prosecution of crimes and the just punishment of perpetrators is a

constitutionally approved public interest, the essence of which is to

transfer the responsibility for prosecution of the most serious

violations of fundamental rights and freedoms by individuals and legal

entities to the state. Insofar as the criminal law permits

implementation of the public interest in prosecution of criminal

activity through robust instruments that restrict an individual’s

personal integrity, use of these instruments must observe constitutional

law limits, because such use carries with it a serious limitation of an

individual’s fundamental rights and freedoms. Thus, the state authority

can restrict personal integrity and privacy (i.e. breach respect for

them) only in quite exceptional cases, and only if it is necessary in a

democratic society and the aim pursued in the public interest cannot be

achieved in a different manner [cf. Constitutional Court judgment, file

no. I. ÚS 3038/07, of 29 February 2008 (N 46/48 SbNU 549), also

available in the electronic database of decisions:

nalus.usoud.cz].

15. The case of a house search or search

of other premises involves restriction of a person’s fundamental right

to the inviolability of his dwelling, guaranteed by Art. 12 par. 1 of

the Charter, according to which “A person’s dwelling is inviolable. It

may not be entered without the permission of the person living there.”

Likewise, Art. 8 par. 1 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (the “Convention”) guarantees this

fundamental right, stating that: “Everyone has the right to respect for

his private and family life, his home and his correspondence;” and

likewise Art. 17 of the International Covenant on Civil and Political

Rights (the “Covenant”) guarantees the individual this fundamental

right, protecting him from “arbitrary or unlawful interference with his

privacy, family, home or correspondence.”

16. While Art. 8 par. 1

of the Convention guarantees respect (by the public authorities) for,

among other things, private and family life and one’s dwelling, i.e. it

formulates the fundamental right or freedom in its classic, i.e.

negative, function, Art. 12 par. 1 of the Charter proclaims one’s

dwelling to be inviolable, and this formulation is quite evidently open

to interpretation of both the negative and the positive right to

protection of the inviolability of one’s dwelling from interference by

third parties. The textual difference between the two provisions,

however, must be considered marginal, because in Europe interpretation

of classic fundamental rights and political rights, however formulated,

has become settled in two functional levels. The first function requires

that the state authority respect the fundamental rights, i.e. the

rights function as negative rights; they function to protect individuals

from excessive or completely improper interference by the state

authority in the individual’s sphere of freedom, which he autonomously

completes with his actions as expressions of his free will. The second

function of fundamental rights recognized in Europe is the protective

function. That, in contrast, binds the public authorities, the state,

and especially the legislative and executive branches, to positive

actions (legislative or administrative), with the aim of protecting the

fundamental rights from possible interference by third (private)

parties, or the protective function of the fundamental right requires

that the state authority engage in activity that is intended to create

conditions for the exercise of fundamental rights. These two functions

of the fundamental rights are considered equal. Because virtually every

statute contains certain limitations on the fundamental rights, and

because its purpose is equally often protection of other fundamental

rights, or protection of constitutionally approved public goods, it is

the task of the legislature to bring the two competing interests into

balance, as far as possible, so that both will be preserved in the

greatest extent possible. Given the acknowledged lack of a hierarchy in

the fundamental rights, there is no other path than balancing the

competing fundamental rights, and the legislature may not do either “too

much” or “too little.” (On the functions of the fundamental rights,

see, e.g., Grimm, D.: The Protective Function of the State in European

and US Constitutionalism, Council of Europe Publishing, Strasbourg, p.

119 et seq., or German Constitutional Court decision BVerfGE 39, 1

(42)).

17. In its case law, the Constitutional Court has defined

the significance that must be accorded to the constitutionally

guaranteed right to the inviolability of one’s dwelling under Art. 12 of

the Charter. In judgment file no. III. ÚS 287/96, of 22 May 1997 (N

62/8 SbNU 119), it stated that, “Freedom of one’s dwelling, as a

constitutionally guaranteed right under Art. 12 of the Charter, by its

nature and significance, falls among the fundamental human rights and

freedoms, because together with personal freedom and other

constitutionally guaranteed fundamental rights it completes the personal

sphere of an individual, whose individual integrity, as a completely

essential condition for dignified existence and development of a human

life generally, must be respected and thoroughly protected; therefore,

this protection quite right comes under constitutional protection,

because – seen from an only somewhat different viewpoint – this is an

expression of respect to the rights and freedoms of man and of citizens

(Art. 1 of the Constitution).” [similarly, cf. judgment file no. I. ÚS

201/01, of 10 October 2001 (N 147/24 SbNU 59), or judgment file no. II.

ÚS 362/06, of 1 November 2006 (N 200/43 SbNU 239)]. Thus, the right

guaranteed by Art. 12 of the Charter is closely connected to the rights

guaranteed by Art. 7, 8 and 10 of the Charter, which, together, form the

personal (private) sphere of every individual, which the right

guaranteed by Art. 12 of the Charter defines spatially as the dwelling.

18.

Of course, neither the Charter nor the Convention specify the content

of the institution of a “dwelling” in more detail. It is defined by § 82

par. 1 of the CPC, the case law of the general courts, and Czech

criminal law doctrine, as a space used for living in (apartments, family

homes, recreational cottages, replacement apartments, rooms in

facilities intended for permanent housing as dormitories and residence

halls, but also rented hotel rooms, etc.) and premises belonging to it,

which must be considered to include all premises which one is entitled

to use on the grounds of the ownership title or other legal title that

authorizes use of the space in question for residence or habitation.

Usually this will be a lease or sublease agreement, although the

entitlement may also come from an easement. According to prevailing

opinions, the right to inviolability of a dwelling cannot be claimed by

someone who lives in premises without an entitlement. In contrast, the

concept of a dwelling does not include premises not used for living in

(other premises) under § 82 par. 2 of the CPC, which include, in

particular, non-residential premises such as offices, workshops, factory

halls, warehouses, premises for conduct of a trade, but also

free-standing garages that are not part of a dwelling (cf. Šámal, P. a

kol.: Trestní řád, komentář, I. díl, 5. vydání, [The Criminal Procedure

Code, part I., 5th ed.] C. H. Beck, Prague 2005, p. 629n., or, somewhat

differently, Klíma, K. a kol.: Komentář k Ústavě a Listině [Commentary

on the Constitution and the Charter], Nakl. A. Čeněk, Pilsen 2005, p.

693).

19. In contrast to the indicated sub-constitutional

definition of the institution of a “dwelling,” the case law of the

European Court of Human Rights (the “ECHR”) is built on a wider concept

of the term for purposes of setting the scope of the fundamental right

guaranteed by Art. 8 par. 1 of the Convention, and is based on a close

connection between it and the right to a private life. The ECHR

identified the wider concept of “dwelling” when interpreting the

Convention in the light of current conditions, in accordance with the

aim pursued by Art. 8 of the Convention, i.e. protection of individual’s

privacy from unjustified interference by the public authorities,

because in modern times it is not possible to maintain a sharp spatial

division of privacy in premises used for housing and privacy exercised

in a person’s working environment. Therefore, under the right to respect

for one’s dwelling under Art. 8 par. 1 of the Convention, the ECHR also

includes a requirement for respect for the privacy of a company’s

headquarters, branches, or the operating premises of legal entities (cf.

judgment of 16 April 2002 in the case Colas Est. v. France), office

premises (cf. judgment of 25 February 1993 in the case Crémieux v.

France, or judgment of 25 February 1993 in the case Miailhe v. France)

or attorneys’ offices (cf. judgment of 12 December 1992 in the case

Niemietz v. Germany). It added that restricting the concept of a

dwelling in a manner that would exclude places where one conducts one’s

profession is not always possible, as it is enough to point to the

interconnectedness and impossibility of separating an individual’s

personal activities from his work activities (Niemietz v. Germany, § 29

and 31). To this case law the Constitutional Court adds that although

the first three cited judgments are based in domestic administrative

proceedings, the case law can also be applied in the present case, which

concerns review of criminal law regulations, applying the argument a

fortiori, because it is obvious that criminal law instruments have even

more intensive effects on the sphere of fundamental rights, let alone

the fact that the ECHR defines the concept of a crime autonomously and

without regard to national classification. Likewise, the last cited

judgment is relevant to the review of the present case, because it

addresses the extension of the right to privacy.

20. The case law

of foreign constitutional courts and their constitutional scholarship

takes a similar approach. For example, the case law of the German

Constitutional Court also defines more widely the institution of a

“dwelling” (Wohnung) under Art. 13 of the German Grundgesetz, which

guarantees the right to inviolability of a dwelling and defines the

conditions for limiting it more closely. Privacy enjoys respect and

protection not only premises used for residential purposes (a dwelling

in the narrower sense of the word), but also, e.g., commercial premises,

office spaces, premises for conduct of trades, craftsmen’s premises,

warehouses, or agricultural buildings, etc, i.e. places where work or

entrepreneurial activity is conducted. The German doctrine is based on

the opinion that autonomous fulfillment of private life and work

activities are closely connected. Even opening commercial premises to

the public does not remove their protection under the right to privacy,

or the inviolability of a dwelling. The intensity of this right,

however, decreases, and justification for restricting it in such a case

is subject to different prerequisites. Nevertheless, one must start with

the premise that even such commercial premises are not accessible to

the public without limitation. Entry to them depends solely on the will

of their user (cf. Mangoldt, H., Klein, F., Starck, Ch.: Kommentar zum

GG, Band I., 5. vyd. [Commentary on the Grundgesetz, Vol. I, 5th ed.],

Verlag Franz Vahlen, Munich 2005, p. 1235n. and the case law of the

German Constitutional Court cited therein).

21. When

interpreting the right to privacy in spatial form, i.e. the right to

respect for, and protection of, a dwelling from external interference,

the ECHR and the German Constitutional Court do not limit themselves to

protection of premises used for residing in, but consider the right to

respect for, and protection of, a dwelling together with the right to

inviolability of the person and privacy and with the right to protection

of personal freedom and dignity, as an inseparable part of the private

sphere of every individual, defined spatially in the case of a dwelling.

 


V. B) The role of the court in permitting interference in the right to inviolability of one’s dwelling


22.

As the Constitutional Court already stated above, if robust instruments

that restrict an individual’s personal integrity are to be used in

promoting the public interest in prosecuting criminal activity, it is

necessary that they remain within constitutional law limits. “The

criminal law determines the border between the state’s punitive power

and the individual’s freedom with the intent that the exercise of the

state’s punitive power not become an instrument of arbitrariness against

the individual used by the temporary holders of state power.” (cf.

Kallab, J.: Zločin a trest, Úvahy o základech trestního práva [Crime and

Punishment: Deliberations on the Foundations of Criminal Law], J. R.

Vilímek, Prague 1916, p. 8). In terms of the imperative of

constitutional law limits in applying the instruments of the criminal

trial, we must state that interference in an individual’s fundamental

right or freedom by the state authority is permissible only if it is

interference that is necessary in a democratic society, and if it is

acceptable in terms of the statutory existence and observance of

effective, concrete guarantees against arbitrariness. The essential

prerequisites of a fair trial require that an individual have sufficient

guarantees against the possible abuse of power by the public

authorities [e.g., judgment file no. II. ÚS 502/2000, of 22 January 2001

(N 11/21 SbNU 83) or judgment file no. II. ÚS 789/06, of 27 September

2007 (N 150/46 SbNU 489), also available in the electronic database of

decisions: nalus.usoud.cz, and others].

23. These

guarantees are provided primarily by court review of the most intensive

interference in individuals’ fundamental rights and freedoms, because

even in a criminal proceeding the courts have an obligation to provide

individuals with protection of their fundamental rights and freedoms

(Art. 4 of the Constitution). Art. 13 of the Convention also explicitly

requires that a person who believe that his fundamental rights were

violated shall have an effective remedy before a national “authority,”

which must be interpreted in connection with Art. 4 of the Constitution.

It is also not permissible for a court, or judge, to be in the position

of a mere “helper” for a public complaint, because the very basis of

the institution of a court (judge) requires that it (he) be absolutely

impartial and independent [in judgment file no. Pl. ÚS 11/04, of 26

April 2005 (N 89/37 SbNU 207; 220/2005 Coll.), the Constitutional Court

stated: “At an objective level, impartiality and independence are

generally evaluated in terms of the relationship to other components of

power (the principle of separation of powers), in terms of the ability

of persons (with a potential interest in a particular outcome or course

of a dispute) to influence the creation, duration and termination of the

office of a member of judicial body (tribunal). Therefore, judges and

members of judicial-type bodies must have a sufficiently independent

status to rule out the possibility that their decision-making activity

can be directly or indirectly influenced. The existence of protection

against external pressures is evaluated, e.g., in terms of the existence

of a potential opportunity to influence a judge’s career, or the

opportunity to bring about the termination of his office. A guarantee of

financial independence is also undoubtedly part of an independent

status. Only then does the formal order to not be guided by the orders

of others receive material content, and only thus are neutrality and

distance from the parties ensured.”].

24. When evaluating

impartiality and independence, we cannot completely overlook the “image”

aspect of the matter, where the “appearance of independence and

impartiality for third parties” is also considered a valid criterion,

because it is precisely this aspect that is important for ensuring

confidence in judicial decision making. This criterion reflects the

social nature of judicial decision making, which means that even if

grounds for doubts concerning impartiality and independence do not exist

(subjectively or objectively), one cannot overlook the possible

existence of a collective belief that such grounds exist (cf. the

abovementioned judgment file no. Pl. ÚS 11/04 or ECHR judgment of 23

June 1981 in the case of Le Compte, Van Leuven and de Meyere v.

Belgium).

25. In the case of application of criminal law

instruments that restrict an individuals’ fundamental rights and

freedoms (in particular, a house search, a search of other premises and

lands, a personal search, detention, holding and opening mail,

wiretapping telecommunications) the requirement for judicial protection

of fundamental rights must be evident in the issuance of a court warrant

and in the adequate justification for it. It must meet both the

requirements of the law and, especially, the constitutional principles

on which the statutory provision is based, or which retroactively limit

interpretation thereof, because application of such a provision is

especially serious interference in each individual’s fundamental rights

and freedoms (similarly, see the cited judgment file no. II. ÚS 789/06).



26. The abovementioned maxims, arising from the constitutional

order of the Czech Republic, require that an independent and impartial

body rule in issuing a warrant for a search of other premises and lands.

The state prosecutor cannot be considered as such a body, not can a

police body. One cannot overlook the fact that, in an adversarial

proceeding, state prosecutors play the role of a body submitting a

public complaint, and are bound by law, as well as their oath of office,

personally bound to protect the public interest (§ 18 par. 3 of the Act

on the State Prosecutor’s Office). In preliminary proceedings, whether

they have a dominant position, they, together with the police body, are

required to organize their activities so as to effectively contribute to

the timeliness and justification of criminal prosecution (§ 157 par. 1

of the CPC). All this can lead to legitimate doubts regarding their

independence (or the appearance thereof) when reviewing the conflict of

individuals’ fundamental rights and freedoms with the public interest in

prosecuting criminal activity. In the already cited judgment file no.

Pl. ÚS 11/04 the Constitutional Court clearly defined the requirements

for a body that, materially speaking, demonstrates a quality that can be

identified with a court, “the constitutional order of the Czech

Republic (Art. 81 and 82 of the Constitution) provides that the judicial

power is exercised only by independent and impartial courts, or

independent and impartial judges, who are guided by the fundamental

rules of a fair trial (Art. 1 par. 1 of the Constitution, Chapter Five

of the Charter). These provisions can be interpreted as institutional

guarantees of a materially understood exercise of the judicial power,

and therefore, in terms of the right to a fair trial, it is not

necessary that the court, under Art. 36 par. 2 of the Charter, be

exclusively a body in the structure of the general courts, but it must

be an independent body whose members are independent and impartial in

their decision making. It must also have unconditional access to review

all relevant aspects of the case (factual and legal), respecting the

principles of a fair trial (e.g. the principle that no one can be a

judge in his own matter or the principle that both sides must be heard),

and an effective decision cannot be overturned by another act by a

state authority (definition of the judiciary in the material sense).”



VI. Substantive Review

 

27.

The contested provision, § 83a par. 1 of the CPC, sets the conditions

under which a search of other premises and lands can be ordered and

conducted, i.e. the conditions for using an instrument of the criminal

trial that restricts an individual’s fundamental rights and freedoms, in

this case the right to privacy in a spatial form, i.e. the right to

respect for, and protection of, one’s dwelling from external

interference.

28. Thus, the Constitutional Court had to review,

in light of the abovementioned constitutional law aspects, whether parts

of the contested provision meet the requirements arising from the

abovementioned principles; it concluded that they did not.

29.

It is quite evident from the overall concept of the contested provision,

§ 83a par. 1 of the CPC, which sets the conditions under which a search

of other premises and lands can be ordered and conducted, and

especially from comparing it with § 83 of the CPC, which sets conditions

for ordering and conducting a house search, that it reflects a narrower

concept of the term “dwelling.” In this provision, as stated above (see

point 18), a dwelling is limited to space actually used for living in,

which must be distinguished from premises not used for living in. This

approach, which results in a blanket, restrictive interpretation of the

right to a private life, is then reflected in the setting of different

(stricter) conditions for ordering and conducting a house search,

compared to the conditions for ordering and conducting a search of other

premises and lands.

30. The Constitutional Court considers this

concept, based on a strict distinction between an individual’s private

life, exercised in premises used for living in, which is given a higher

degree of protection from potentially excessive interference by the

public authorities, and an individual’s private life exercised, e.g., in

his work environment or in places that he uses to conduct hobby

activities, or even inactivity, in the form of simple relaxation or

entertainment, to be impermissible in terms of the principles stated in

part V. A) of the judgment, because it bypasses the purpose of the

fundamental right to a private life [see, e.g., judgment file no. II. ÚS

2048/09, of 2 November 2009, point 19 (available in the electronic

database of decisions: nalus.usoud.cz)]. The Constitutional Court

is of the opinion that, especially at the present time, when autonomous

fulfillment of private life and work or hobby activities are closely

related to each other, it is not possible to make a sharp spatial

division of privacy in places used for living in from privacy created in

places and environments used for work or entrepreneurial activity, or

for satisfying one’s own needs or hobby activities, even if activities

conducted in premises that are accessible to the public, or are not

closed, e.g., entrepreneurial activities, may be subject to certain

limitations that could represent a certain interference in the right to a

private life. However, these are narrowly defined in advance, as

regards the purpose of such restrictions, and are also known to a

person, e.g. an entrepreneur, in advance, and such a person enters into

various kinds of activities, e.g. conducting business, with that

knowledge. Nevertheless, this does not, of course, affect that person’s

right to seek judicial protection from particular interference, which

may be foreseen by statute, but which, in terms of the warrant or the

conduct thereof, does not meet the principle of proportional restriction

of the right to a private life. As regards unfenced lands (e.g. forests

or fields), we must fundamentally distinguish between entering them and

“searching” them, the latter being connected with interference in the

integrity of the real estate (land). Therefore, the conduct of the

search must be subject to the same regime as a search of enclosed

premises. It is a generally known and shared experience (especially from

the times before 1989), that it is often precisely in such premises

that private life was often exercised through hiding things that were

meant to remain hidden from the eyes of the public, and especially the

public authorities.

31. Therefore, just as in the conduct of a

house search, so in the case of a search of other premises, including

agricultural buildings, including lands, there is necessarily

interference in an individual’s private sphere, spatially defined, and

such interference requires the prior permission of a court.

32.

This requirement is all the more pressing in a situation where our

Criminal Procedure Code does not permit subsequent review of a

court-ordered search warrant for other premises and lands. Thus, these

acts, which are obvious interference in the fundamental right to a

private life, are outside any immediately judicial review. The ECHR

addressed the need of such review in the case Camenzind v. Switzerland

(judgment of 16 December 1997). In that case the ECHR found violation of

Art. 13 of the Convention in relation to Art. 8 of the Convention, even

though the complainant had a procedural remedy, which he exercised

before the appropriate chamber of the Swiss Federal Court. However, the

court rejected the appeal, due to the doctrine of “continuing

interference.” In this situation, the ECHR found the existing procedural

remedy to be ineffective. Similarly, in the Czech Republic one could

consider a constitutional complaint directly against a search warrant

for other premises, but the case law of the Czech Constitutional Court

also partly shares the doctrine of “continuing interference,” and,

moreover, the Constitutional Court has consistently ruled that in the

event of interference by public authorities that does not represent an

irreparable violation of fundamental rights, priority must be given to

the principle of subsidiarity. This means that, in a proceeding on a

constitutional complaint, it can review only the final decision in a

case, which should also address the objection of interference in the

right to private life in the form of a house search [regarding

application of the principle of subsidiarity, cf., e.g. resolution file

no. IV. ÚS 122/99, of 8 September 1999 (U 56/15 SbNU 315) and the

unpublished resolutions file no. I. ÚS 690/2000, file no. I. ÚS 313/06,

file no. II. ÚS 434/06, file no. III. ÚS 887/09 or file no. III. ÚS

1986/09 (available at nalus.usoud.cz)]. Within the framework of

the foregoing, our constitutional complaint also appears to be an

ineffective remedy. Moreover, it is certainly not desirable for the

Constitutional Court, in similar matters, to be the first to evaluate

the proportionality and conduct of searches of all premises. it could

disproportionately and prematurely interfere in the competence of the

general courts to gather and evaluate evidence, and as a consequence

also predetermine the outcome of a criminal proceeding.

33. In

view of the foregoing, the Constitutional Court states that the

contested parts of § 83a par. 1 of the CPC cannot be considered

constitutional, because they clearly violate the constitutional law

limits indicated above (Art. 12 par. 1 of the Charter, Art. 8 par. 1 of

the Convention and Art. 17 of the Covenant), which absolutely must be

respected in statutory construction (as well as in the application) of

instruments of the criminal trial that limit the fundamental rights and

freedoms of individuals.

34. For these reasons, the

Constitutional Court ruled, under § 70 par. 1 of the Act on the

Constitutional Court to annul parts of the contested provision, § 83a

par. 1 of Act no. 141/1961 Coll., on Criminal Court Proceedings (the

Criminal Procedure Code), as amended by later regulations, as is stated

in the verdict of this judgment, which will become enforceable on the

day it is promulgated in the Collection of Laws (§ 58 par. 1 of the Act

on the Constitutional Court).

Chairman of the Constitutional Court:
JUDr. Rychetský /signed/




Dissenting

opinions to the decision of the Plenum, under § 14 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations,

were filed by judges Vladimír Kůrka, Jan Musil and Michaela Židlická.

1. Dissenting opinion of judges Jan Musil and Michaela Židlická

We

disagree with the verdict and reasoning of the judgment of the plenum

of the Constitutional Court of 8 June 2010, file no. Pl. ÚS 3/09, which

annulled part of § 83a par. 1 of Act no. 141/1961 Coll., on Criminal

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

regulations.

Under § 14 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, we are submitting

a dissenting opinion to the judgment, reasoning as follows:

I.

There is no constitutional regulation that would require that a prior

court warrant be issued for a search of other premises and lands in a

preliminary criminal proceeding.

1. The provision of § 83a of the

CPC, which permits a state prosecutor (or police body, with the consent

of the state prosecutor) to order a search of other premises and lands

in a preliminary criminal proceeding is not inconsistent with

constitutional regulations.

2. Neither the Constitution, nor the

Charter of Fundamental Rights and Freedoms (the “Charter,” nor

international treaties on protection of fundamental rights and freedoms

recognize any institution of the “inviolability of other premises and

lands.” It is obvious that such premises are protected by legal

regulation from unjustified interference (e.g. protection of property

rights), and that the entry by bodies active in criminal proceedings to

these premises and search thereof must be governed by law, which the

legal framework contained in § 83a of the CPC does quite satisfactorily.



3. Nor can the Constitutional Court, if it is not to find

itself in the impermissible position of a positive legislature, find a

“sub-constitutional” statute to be inconsistent with a non-existent

positive constitutional positive regulation.
 


II.

In terms of the intensity of interference in fundamental rights and

freedoms a search of other premises and lands is not comparable to a

house search

4. The judgment is based on the premise that a

search of other premises and lands is among “the most intensive

interference in the fundamental rights and freedoms” (point 32 of the

reasoning), and it bases the requirement of judicial review (in the form

of a prior court warrant for the search) on that argument. In several

places the reasoning of the judgment compares a search of other premises

and lands to a house search. Point 3 of the reasoning states that

second panel of the Constitutional Court, which submitted the petition

to annul § 83a of the CPC to the Plenum, believes that “a search of

other premises is undoubtedly also interference in an individual’s right

to privacy, in an extent comparable to that of a house search.” Point

15 of the reasoning even claims that “a house search or search of other

premises involves restriction of a person’s fundamental right to the

inviolability of his dwelling.”

5. We believe these

deliberations are incorrect. We consider it undeniable that the

constitutionally protected values are very different in terms of their

significance, and that their different degrees of gravity must be

matched by different degrees of legal protection.

6. A sensitive

differentiation of the constitutional rights and freedoms is necessary,

both for the legislature, and for the bodies applying the law. It is

generally known that constitutional rights are often in conflict with

each other, and one must weigh, using the proportionality test, which

fundamental right or public good must be given priority. Such evaluation

of values in conflict is typical of criminal proceedings, because it is

necessary to balance, on the one hand, the public interest (and the

interest of crime victims) in the effective suppression of criminality,

with, on the other hand, protection of the rights and freedoms of the

defendant.

7. Leveling all fundamental rights and freedoms on

the same level makes it impossible to successfully apply the

proportionality test, and thus leads to curious conclusions, such as the

one that a former cow shed – now an illegal hemp farm (precisely such a

place was subject to a search in the criminal matter that gave the

second panel of the Constitutional Court grounds to submit the petition

for annulment of the contested statutory provision) – deserves the same

constitutional law protection as a private apartment or human dwelling.

8.

To justify the alleged unconstitutionality of the contested provision,

the judgment relies on Art. 12 par. 1 of the Charter and Art. 17 of the

International Covenant on Civil and Political Rights (the “Covenant”).

We maintain that the cited (nor any other) constitutional norms do not

provide any such protection to “other premises and lands.”

9.

Art. 12 par. 1 of the Charter expressly speaks only of protection of a

“dwelling” (a “dwelling is inviolable.”). The Convention for the

Protection of Human Rights and Fundamental Freedoms contains the same

term, in Art. 8 par. 1 (“Everyone has the right to respect for his

private and family life, his home and his correspondence.“). Art. 17

par. 1 of the Covenant uses the term “home” (“No one shall be subjected

to arbitrary or unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and reputation“).

We consider interpretation of the terms “dwelling” and “home” to include

a cow shed – a hemp farm – to be completely inappropriate – if only

because common language usage, which cannot be ignored when interpreting

legal norms, does not allow any such interpretation.

10. One can

add that the term “dwelling” is also used in other sub-constitutional

legal norms, e.g. the Criminal Code, in the elements of the crime of

“violation of domestic freedom” under § 178. As point 18 of the judgment

correctly states, settled case law and criminal law doctrine interpret

the term expansively, and include not only apartments and residential

houses, but also, e.g., recreational cottages, replacement apartments,

rooms in facilities intended for permanent residence such as dormitories

and residence halls, but also a rented hotel room, etc. We can, of

course, agree with all that. However, Czech criminal law teaching and

case law has never included under the term “dwelling” spaces such as cow

sheds, factory halls, warehouses, offices, etc.; on the contrary, it

distinguishes these spaces from dwellings, and uses for them the

separate term “non-residential premises,” giving them protection in §

208 of the Criminal Code (“unjustified interference in the rights to a

house, apartment, or non-residential premises”).

11. We consider

it extremely undesirable, and inconsistent with the principle of legal

certainty and the principle of the definiteness of law, for an

autonomous or parallel definition or interpretation to be introduced in

the area of constitutional law that is different from other legal

branches in the same legal system. If bodies active in criminal

proceedings allowed themselves to be inspired by such procedures and,

began to include the spaces mentioned in the judgment under the term

“dwelling” in the elements of a crime, that would lead to a

criminalization unintended by the legislature of a different kind of

conduct and to violation of the constitutional principle of nullum

crimen sine lege certa (Art. 39 of the Charter).
 


III.

A search of other premises and lands in preliminary criminal

proceedings is usually not interference in privacy, and is not

sufficiently intensive interference to require the prior consent of a

judge

12. Apart from the fact that the judgment improperly

compares “other premises” and “land” to the constitutional law concepts

“dwelling” and “home,” it is also based on the premise that the criminal

law procedure “search of other premises and lands” also means

interference in “private life,” protected by Art. 8 par. 1 of the

Convention and Art. 17 par. 1 of the Covenant.

13. We disagree

with this generalized claim. If the concept “private life” is not to

become completely vague, boundless, and legally ungraspable, a more

precise definition of it must exist – other wise, almost anything could

be included under this concept. We have searched in vain for attributes

that could be used to describe a private life led in a cow shed / hemp

farm. With such a wide concept of private life, the special

constitutional protection of values such as domestic freedom (the right

to respect for one’s dwelling or house), protection of

telecommunications secrets, protection of family life, protection of

personal information, etc. would be practically redundant, because all

of that would be covered by this widely understood protection of

“private life.”

14. No doubt it is very difficult to define the

term “private life” so that one could draw relevant legal conclusions

from it; nevertheless, when interpreting it in law it is necessary to

come to a more definite definition. We believe that the term “private

life” must always be applied to a particular person and his activities –

it is conduct that is characterized by a certain intimacy, not intended

for the eyes of the public, takes place in a relatively delimited

private space, to which the person in question has a particular

relationship. In our opinion, the essential thing is that the defining

element of “private life” is personally conducted activity that is tied

to specific emotional experience. We consider defining the term “private

life” only using an unbounded spatial definition and conduct of any

sort of activity – even an activity that is criminal (e.g. illegal

cultivation of drugs) to be completely vague and inadequate for the

requirement of certainty of legal terms.

15. We agree that under

certain circumstances “private life” can also take place elsewhere than

in a dwelling, e.g., in places otherwise used for work or

entrepreneurial activity, or even in other premises (as the reasoning

states in point 30). However, we consider it important that conducting

private life in such other premises is exceptional and episodic. It is

part of the typical features of any legal framework that it generalizes

collective, typical events, and these certainly do not include the

conduct of private life in non-residential premises or on plots of land.

We can imagine protection of the elements of private life in such

exceptional cases within individual cases of application of the law, but

not as a general legal regulation.

16. We can perhaps agree with

the claim in point 30 of the reasoning that, “especially at the present

time, when autonomous fulfillment of private life and work or hobby

activities are closely related to each other, it is not possible to make

a sharp spatial division of privacy in places used for living in from

privacy created in places and environments used for work or

entrepreneurial activity, or for satisfying one’s own needs or hobby

activities.” However, we must add that even in these new conditions,

each person has freedom to choose the place where he intends to conduct

his private life, and everyone is certainly aware of the differences in

the degree of protection provided to privacy in different spaces –

protection of privacy in a dwelling is certainly higher than protection

of privacy in a work or other environment.

17. It is perhaps

also worth noting that there is a modern trend not only of transferring

privacy into work premises, but also a conscious conduct of private life

and intimacies directly in public space (see, e.g. television programs

such as “Big brother” or “The Chosen”). It is to be considered, whether

the entire gamut of such expressions of pseudo-private life are to be

provided equally intensive constitutional law protection as in the case

of domestic freedom, and it is a question whether the persons involved

even care to receive such protection.

18. No constitutional law

regulation provides that protection of private life conducted in other

premises and lands must be so intensive as to require a preliminary

court warrant for a search of other premises and lands.

19. On

the contrary, systematic interpretation of Art. 12 of the Charter (by

argument a contrario) one can conclude that the requirement of a prior

court warrant applies only to a house search for purposes of a criminal

proceeding (Art. 12 par. 2 of the Charter), but not to a search of other

premises and lands.
 


IV.

The state prosecutor provides sufficient guarantees of lawfulness and

constitutionally in the decision to order a search of other premises and

lands in a preliminary criminal proceeding

20. We believe that §

83a par. 1 of the CPC, permitting a state prosecutor or police body

(with the prior consent of the state prosecutor) to issue a search

warrant for other premises and lands in a preliminary criminal

proceeding, fully meets the need to protect fundamental rights

(including protection of private life) and is not inconsistent with any

constitutional regulation.

21. The judgment’s arguments (points

22 to 26) are based on the requirement “that an independent and

impartial body rule in issuing a warrant for a search of other premises

and lands. The state prosecutor cannot be considered as such a body, not

can a police body.” We maintain that such a requirement for a prior

court warrant cannot be derived from any constitutional law regulation.

22.

We find an explicit constitutional law provision on the exclusive

competences of a court or judge in a criminal proceeding only for cases

of deciding on guilt and punishment for crimes (Art. 40 par. 1 of the

Charter), deciding on detention and issuing an arrest warrant for a

defendant (Art. 8 par. 3 and 4 of the Charter) and on issuing a search

warrant for a house (Art. 12 par. 2 of the Charter).

23. In

accordance with the generally recognized principle that the legislature

may, through an “ordinary” statute, provide stronger protection to the

fundamental rights and freedoms than is required by constitutional

regulations or an international treaty, the Czech Criminal Procedure

Code contains several other instances where it entrusted decision making

on interference in fundamental rights in a preliminary proceeding to a

court. Such instances are limiting restrictions on the defendant in

serving a prison sentence under § 74a, consent with opening mail under §

87 par. 1, ordering a wiretap and recording telecommunications under §

88 par. 2, a warrant to secure data on telecommunications under § 88a

par. 1, ordering monitoring of a defendant in a medical facility under §

116 par. 2, permission to follow someone, if it is to involve

interference in the inviolability of one’s dwelling, confidentiality of

mail, or determining the content of other written matter and records

that are kept private, using technical means under § 158d par. 3, and

permission to use an agent under § 158e par. 4 of the CPC. As is

evident, the legislature did so (beyond the framework of constitutional

regulations) only in a few cases of exceptionally intensive interference

in the fundamental rights and freedoms.

24. Of course, nothing

would prevent the legislature from establishing, beyond the framework of

constitutional requirements, the exclusive competence of the court to

issue a search warrant for other premises and lands under § 83a par. 1

of the CPC. If the legislature did not do so, that was evidently because

in this case it considered the interference in fundamental rights not

to be too intensive, and after weighing other conflicting constitutional

interests (e.g. the interest in the effectiveness of criminal

prosecution, in the speed and efficiency of the criminal proceeding,

etc.) it concluded that the state prosecutor would provide sufficiently

reliable protection of fundamental rights. We believe that this legal

framework is not inconsistent with any constitutional regulations, and

the Constitutional Court had no grounds to annul the contested

provision.

25. There is no doubt that the guarantors of

protection of the fundamental rights and freedoms in criminal

proceedings are not only the courts, but all bodies active in criminal

proceedings, i.e. including the state prosecutors and police bodies.

26.

The legal status of the state prosecutor is sufficiently strong to

provide effective guarantees of lawfulness and constitutionality in

cases of less intensive interference in the fundamental rights and

freedoms, i.e. such acts as, for example, a search of other premises and

lands. The requirements of independence and impartiality, typical of

judges, are not essential with this less intensive interference, and

lack of them is not grounds, on a constitutional law level, to annul the

contested statutory provision.

27. One cannot conclude that

legal protection provided by a state prosecutor is inadequate merely

from the fact that Article 80 of the Constitution includes the state

prosecutor’s office among the bodies of the executive branch. These

bodies are also required to follow the Constitution and the law.

Moreover, we must keep in mind that the position of the state

prosecutor’s office among the other bodies of the executive branch is

unique and different.

28. This unique position of the state

prosecutor is established by the independent, special legal framework in

Act no. 283/1993 Coll., on the State Prosecutor’s Office. This Act sets

very demanding qualification requirements for the office of state

prosecutor (§ 17 of the Act). A state prosecutor is required to act

professionally, conscientiously, responsibly, impartially, fairly, and

without unnecessary delay (§ 24 par. 1 of the Act). Legal norms also

establish requirements for a state prosecutor’s increased legal

responsibility, including disciplinary responsibility (§ 27 et seq. of

the Act) and criminal liability (the crime of abuse of power by a public

official under § 329 of the Criminal Code).

29. In a criminal

proceeding, the state prosecutor acts according to the Criminal

Procedure Code, not according to administrative norms. A criminal

proceeding generally contains much stricter control mechanisms and

creates more effective guarantees against abuse than other kinds of

legal proceedings.

30. Domestic and foreign legal doctrine

generally accepts the opinion that the state prosecutor’s office is not

an ordinary administrative body, but displays, apart from elements

typical of administrative bodies, also elements typical of court bodies.

The state prosecutor’s office is described as an institution sui

generis (see, e.g., Fenyk, J.: Veřejná žaloba, díl I. [The Indictment,

part I.] Prague: Institut Ministerstva spravedlnosti pro další

vzdělávání soudců a státních zástupců [Ministry of Justice Institute for

Continuing Education of Judges and State Prosecutors], 2001, p. 208;

Koetz, A. G., Feltes, T.: Organisation der Staatsanwaltschaften.

[Organisation of State Prosecutor’s Offices] Köln : Bundesanzeiger

Verlagsges., 1996, p. 31).

31. The European Court of Human Rights

stated the thesis that the degree of objectivity and impartiality of a

state prosecutor is sufficient for him to also fulfill certain judicial

functions in the judgment in the case Schliesser v. Switzerland

(Application no. 7710/76, 4 December 1979). Of course, there are

exceptions for deciding on guilt and punishment, and on detention and

issuing warrants fro house searches – in these cases the ECHR insists on

the jurisdiction of the court.

32. From our many years of

experience as constitutional judges, we can state the justified

conviction that in practice there are no significant excesses in the

actions of state prosecutors in ordering searches of other premises or

lands in preliminary proceedings (or giving prior consent to police

bodies) that would indicate a need to change the existing legal

framework. Neither criminal procedure doctrine nor the case law of the

general courts indicates any systemic flaws regarding these acts in the

legal framework or in its application in particular cases. Individual

cases of failure or defects in the actions of state prosecutors can, of

course, occur, but we consider that they are no more frequent or serious

than in other cases, perhaps even with judges.
 


V.

Judicial review of a search warrant for other premises and lands issued

by a state prosecutor in a preliminary proceeding is ensured within the

criminal proceeding

33. It is characteristic of the entire

criminal proceeding that there are many control and correction

mechanisms that are intended to correct possible errors by the bodies

active in criminal proceedings. This is also the case with a search

warrant for other premises and lands. Such means include, e.g., the

defendant’s right to request that defects in the actions of the state

prosecutor be removed; that request is handled by the state prosecutor

of the immediately superior state prosecutor’s office (see § 157a par. 2

of the CPC).

34. Defects in the state prosecutor’s actions can

also be corrected within a review conducted by a higher state

prosecutor’s office under § 12d of Act no. 283/1993 Coll., on the State

Prosecutor’s Office.

35. A very effective method of control is

that a court will regularly review the lawfulness of issuing a search

warrant as part of the presentation of evidence before the court, where

the defendant can, in each individual case, raise objections against a

search. If the court determines that a search was conducted unlawfully,

it will declare the evidence obtained through the search to be

inadmissible. This court action will prevent an unlawfully conducted

search from having negative consequences for the defendant. At the same

time, this has a general disciplinary effect; the knowledge that

unlawfully obtained evidence will be unusable preventively deters from

repeating flawed procedures in the future.

36. We believe that

these control mechanisms are quite adequate in the case of a search

warrant for other premises and lands, and are proportionate to the

importance of the action.
 


VI.

Expanding the number of actions in a preliminary criminal proceeding

for which a prior warrant from a judge is required strengthens the

inquisitional nature of a criminal proceeding

37. A criminal

proceeding can never take place without interference in the fundamental

rights and freedoms, and this interference is relatively very frequent.

Virtually every action taken against a defendant affects his fundamental

rights – beginning with the opening of criminal prosecution, summons,

escort, questioning, recognition, confrontation, review of his mental

condition, etc. In terms of intensity, some of these actions are fully

comparable to issuing a search warrant for other premises and lands, or

are even more serious – as examples we can cite a personal search (§ 83b

of the CPC), confiscation of a thing (§ 79 of the CPC), freezing funds

in a bank account, securing book-registered securities, securing real

estate, securing other property values, securing replacement values (§

79a to § 79f of the CPC), a body search, and other similar actions (§

114 of the CPC). Nevertheless, in all these instances the Criminal

Procedure Code permits them to be ordered in a preliminary proceeding by

the state prosecutor (sometimes even by a police body).

38. By

the nature of the matter, it is unthinkable for a judge to give prior

consent to all these actions in a preliminary proceeding – that is not

the case in any country. If it were so, a criminal trial would be

completely paralyzed – if only because handling the massive incidence of

criminal activity (roughly 350,000 crimes take place in the Czech

Republic each year) greatly exceeds the capacity of a limited number of

judges. Therefore, it is quite obvious that there must be a certain

“division of labor” in a preliminary proceeding, and that the main

weight of the work in the preparatory phase of a criminal proceeding

lies on the police bodies and state prosecutors. The intervention of

courts in preliminary proceedings is required only for some of the most

serious actions – a search of other premises and lands is certainly not

one of them.

39. We consider it appropriate to point out the

danger that disproportionately increasing the number of actions for

which a judge’s consent will be required in a preliminary proceeding

could paradoxically turn against the principles of a fair trial, and as a

result, to the disadvantage of the defendant. Hundreds of years of

experience from the unfortunate history of the “inquisitional” type of

criminal proceeding shows that strong interference by a judge in the

preliminary proceeding de facto strengthens the role of the preliminary

proceeding and weakens the importance of the main trial and the court

phases in general. The results of presentation of evidence in a

preliminary proceedings conducted with the presence of a judge are seen

uncritically, they are a priori assumed to be more reliable, and these

results are transferred with far-reaching consequences to the court

phase and they influence the court decision. This de facto weakens the

review function of the main trial, which should be the center of

presentation of evidence. Strengthening the preliminary proceeding leads

to a degradation of the main trial, which changes into “mere theater”

or an “attachment” to the preliminary proceeding, as correctly

criticized by the Austrian proceduralist Reinhard Moos (Moos, R.: Der

Strafprozess im Spiegel ausländischer Verfahrensordnungen. Berlin : H.

Jung, 1990, p. 53.). That too is one of the reasons why the institution

of an investigating judge in systems of continental criminal trials has

been on the wane in recent decades and has been completely eliminated in

a number of European countries (e.g. in Germany in 1974, in Italy in

1988). For more on these trends, see Repík, B.: Mezinárodní konference o

ochraně lidských práv při výkonu trestní spravedlnosti v

postkomunistických zemích. [The International Conference on the

Protection of Human Rights in the Exercise of Criminal Justice in the

Post-Communist Countries] Právo a zákonnost [Law and Lawfulness], no.

4/1992, p. 249.
 


VII. A

judge’s actual opportunity to review the grounds for issuing a search

warrant for other premises and lands is very limited

40. The

reality is that a judge’s involvement in a preliminary proceeding is

even now (in the situations foreseen by the law) often very formal and

superficial. It is undisputed that at the point when a prior court

warrant is to be issued, which is most often in the earliest stages of a

preliminary proceeding, there are, as a rule, very few procedurally

fixed sources of information, and the judge is left to rely on brief and

fragmentary information provided by police bodies and the state

prosecutor; at that stage in the proceeding, the judge does not have

sufficient time or resources to thoroughly verify this information. In

fact, the state prosecutor, who maintains consistent supervision over

the preliminary proceedings (§ 174 of the CPC), and is in immediate

contact with the police bodies, has better actual opportunities to

verify the grounds for issuing a search warrant.

41. Certainly,

one could require that this difficulty, described in the previous

paragraph, be overcome by increased effort by judges in situations that

involve really serious interference in the fundamental rights and

freedoms, such as in cases of taking someone into custody or house

searches, interference in telecommunications privacy, etc. As we state

above, in point 23, the number of such actions in a preliminary

proceeding, in which a judge’s participation is required, has already

exceeded the count of ten, and continues to grow through additional

amendments (see, e.g., as introduced by an amendment in 2001, the

institution of questioning a witness and recognition in the presence of a

judge, if it is a non-postponable or non-repeatable step in the stage

before criminal prosecution is begun under § 158a of the CPC).

42.

Although no statistical data are available on the nationwide number of

searches of other premises and lands conducted under § 83a of the CPC,

one can estimate that it is hundreds, if not thousands, of cases each

year; in terms of the burden on judges this number is not negligible.

43.

The constant increase in cases where judges intervene in preliminary

proceedings has a natural limit, because performing these actions, if it

is not to degenerate into a mere formality, necessarily imposes

considerable demands on court time and personnel, and increases the

administrative burden and thus also the costs of a criminal proceedings.

If, on the one hand, one hears justified cries about the judicial

system being overburdened and the resulting delays in trials, on the

other hand one cannot constantly expand the judicial agenda with more

and more tasks that can be performed just as well (if not better) by

other bodies, e.g. state prosecutors.

44. Nor can we overlook

purely practical problems that are caused by the trend of expanding

judges’ involvement in preliminary proceedings. A judge’s participation

in a preliminary proceeding leads to his being excluded from the later

proceeding. Especially with small, first-level courts, this cause not

inconsiderable organizational difficulties, which, in practice, leads to

the tasks in preliminary proceedings being assigned to judges that

normally handle not a criminal, but a civil agenda, who have no criminal

law experience; thus, the true meaning of judicial review is de facto

lost. As the scope of the judicial agenda in preliminary proceedings

increases (as this Constitutional Court judgment requires), these

problems will continue to grow.

45. It is appropriate to point

out that we cannot expect this situation to be solved by increasing the

number of judges. It is generally known that the number of judges in the

Czech Republic today, compared with other European countries, is

exceptionally high. The Czech Republic has 29 judges per 10,000

residents; Germany has 18 judges, Sweden has 11 judges, France has 9

judges (see the publication Aroma, K., Heiskanen, M. (eds.): Crime and

Criminal Justice Systems in Europe and North America 1995–2004.

Helsinki: European Institute for Crime Prevention and Control HEUNI,

2008, Czech translation Prague: IKSP, 2009, p. 39). As the Ministry of

Justice of the Czech Republic has made it clear that it does not intend

to increase the number of judges in the future, managing the increasing

court agenda can be achieved only by increasing the workload of judges.

46.

The requirement established by the Constitutional Court of a mandatory

preliminary warrant by a judge leads, of course, not only to an

increased burden on the courts, but also on police bodies and state

prosecutors, who will now have to prepare additional written

applications to the courts. The growth of these administrative

formalities and intermediate steps leads to delays, and leads

preliminary proceeding bodies away from purposeful investigative work in

the field and toward typewriters and computer keyboards.
 


VIII. Inappropriateness of arguments based on European Court of Human Rights cases

47.

The reasoning of the judgment, in points 19 and 32, bases the

unconstitutionality of the contested statutory provision on several ECHR

cases. We do not consider these arguments appropriate; the cited ECHR

cases are based on different facts, which do not at all affect the Czech

regulation in § 83a par. 1 of the CPC.

48. Only one of the cited

cases (Niemitz v. Germany, Application no. 13710/88) involved an actual

criminal proceeding (involving the search of an attorney’s office), and

the search was ordered by a court in Freiburg. The ECHR found that a

number of errors by the German court violated the Convention: the

intensity of the action was disproportionate in relation to the less

serious crime being investigated; the court did not sufficiently justify

the search; a disinterested person was not present at the search;

during the search, documents belonging to the attorney’s clients were

also read. It is obvious that these facts do not in any way relate to

our problem – whether a search warrant may be issued by a state

prosecutor.

49. All the other cited cases involve actions by

administrative bodies, usually in proceedings on misdemeanors. For

example, Société Colas Est. v. France (Application no. 37971/97)

involved a search conducted by antimonopoly office inspectors in a

company’s headquarters on suspicion of a cartel agreement. In Crémieux

v. France (Application no.1147/85) the search of a company’s offices was

conducted by customs officials on suspicion of financial infractions.

In Miailhe v. France (Application no. 12661/87) customs officials

searched business premises on suspicion of illegal foreign financial

operations. In Camenzind v. Switzerland (Application no.

136/1996/755/954) a telecommunications office official searched the

complainant’s apartment (not non-residential premises) on suspicion of

the infraction of possession of an unauthorized telephone. Obviously, in

none of these cases did the ECHR have an opportunity to address the

question of whether it would violate the Convention for a state

prosecutor to issue a search warrant fro non-residential premises –

there was no state prosecutor involved in these cases at all, because he

has no jurisdiction in proceedings on misdemeanors. In other respects

as well the facts of the Strasbourg cases were quite individual and had

nothing to do with the question of the competence of a court or state

prosecutor; the ECHR’s criticism, which found violation of the

Convention, concern the cumulative effect of a number of errors, e.g. an

action being disproportionate to the aim pursued (Société Colas Est. v.

France), insufficient justification for the search warrant (Crémieux v.

France) etc.

50. We believe that the cited ECHR cases do not

provide a clear guideline for answering the question of whether the ECHR

would find the procedure in the existing Czech legal regulation to

violate the Convention. The ECHR always weights the facts in the context

of a particular case, evaluates the overall fairness of the proceeding,

takes into account all procedural instruments and mechanisms that serve

to protect the rights of the complainant, and tests the proportionality

of interference in relation to other protected legal values. Given that

process, we can justifiably assume that if the ECHR had the opportunity

to evaluate a case based on the existing Czech legal regulation, it

would not find any a priori violation of the Convention.

51.

Drawing general conclusions on the compatibility of national legislation

with the Convention from particular ECHR cases based on the specific

circumstances of individual cases must always be done very carefully,

and the arguments used must be very detailed and complex. In our

opinion, one cannot pull isolated quotations from the text of ECHR

judgments that fit one of many lines of argument.
 


IX. Foreign legal regulations

52.

We can point out that many foreign criminal procedure codes are

completely identical with the existing Czech regulation, i.e. in

preliminary proceedings a warrant from a state prosecutor is sufficient

for a search of other premises and lands. No one there has any doubts

about the constitutionality of these provisions.

53. Such legal

regulations are found in, e.g. § 101 par. 1 of the Slovak Criminal

Procedure Code (Act no. 301/2005 Z. z.) or Article 220 § 1 of the Polish

Criminal Procedure Code (Dz. U. 97.89.555).

54. In some foreign

procedural norms there are various individual nuances in the question of

competence to issue a search warrant for non-residential premises and

lands. In Germany, a court warrant is required to search “an apartment

and other premises” (§ 105 dStPO), in Austria, somewhat more narrowly,

to search “apartments and premises pertaining to a household” (§ 139

öStPO). Thus, the requirement of a court warrant applies to a wider

circle of situations than has been the case so far in the Czech

Republic. Such wider protection of fundamental rights is possible, of

course, but it is not essential, and it depends on the will of the

national legislature.

55. It must be added that all foreign

frameworks (just like the Czech one) allow for the possibility that in

urgent situations a search of other premises and lands can also be

conducted without a prior court warrant (the criminal procedure codes of

Germany and Austria permit this even for a house search).

For

all the foregoing reasons we believe that the contested provision, § 83a

par. 1 of the Criminal Procedure Code, was not inconsistent with any

constitutional regulation, and that the petition from panel II. of the

Constitutional Court should have been denied.



2. Dissenting opinion of judge Vladimír Kůrka

Because

I cannot agree with the arguments used (for the most part), and

especially the result reached, I submit this dissenting opinion:


I.


1. – methodological objection – where the judgment can be criticized in terms of the arguments used

The

majority opinion, without anything futher, connects specific protection

of a dwelling, or privacy, developed on the basis of the case law of

the ECHR and “foreign constitutional court” (points 19 to 21), in

relation to the areas defined therein, with all the imaginable forms of

non-residential premises, including lands (point 25), in the sense of

requiring judicial protection, or conditioning searches of these

premises on a court warrant issued in advance, and properly justified.

Thus,

the construction used only anticipates that what was concluded to be

true for a “dwelling” in the narrower sense (an apartment), as well as

in the wider sense (cf. “attorney’s office”), must necessarily apply to

everything else, which is not normally included in the concept of a

“dwelling” (see point 18); of course, this is methodologically

unacceptable, because such a result should first be proved.

It

is evident from the interpretation of that “foreign case law” presented

under point 20 that it is necessary to distinguish between all the

possible premises that are – even if remotely – tied to the concept of

“dwelling,” or an element of “private life,” if we note here, for

example, that, as regards “commercial premises” open to the public, “the

intensity of this right decreases….”

It is not evident (or not

proved by the majority opinion) that all the premises concerned – not

only those that are a dwelling, but also premises comparable to one –

the requirement of protecting them, or protecting aspects of private

life tied to them must necessarily be identified with preliminary

judicial review (emphasis to be placed on both “judicial” and

“preliminary”). Here too the arguments used impermissibly – a priori –

connects what is protectable as regards a dwelling (including in a wider

sense), directly to all other premises, including “factory halls,

warehouses, premises for conduct of a trade, free-standing garages,”

etc. (point 18), just as, subsequently, to “lands.” As stated above,

even that does not apply without anything further; it should have first

been proved. Point 23 indicates that judicial review represents

protection against the “most intensive interference,” which can

logically be connected not only with the phenomenon of a “search” (as

such), but also with a search of a classified object. That, for example,

need not include a publicly accessible plot of land owned by the

defendant, if the tie to his “private life” is, in concreto, low, or

nil.

2. – re ECHR case law

The arguments using the

selected ECHR case law is not quite correct, because in all cases it

overlooks the wider context of the individual cases. The reason for

“interference” by the ECHR was always a quite concretely arranged series

of individual circumstances, of which the inadequacy of preliminary

judicial review (or other review) was considered to be one. The cited

case law does not stated that judicial review is always unavoidable; the

opinions expressed in the case Camenzind v. Switzerland (judgment of 16

December 1997, Application no. 136/1996/755/954) are even rather

opposite to the conclusions in the present judgment.
 


II.
 

Doubts

about the constitutionality of the critical provision, § 83a of the

CPC, could have been set aside not by derogatory steps, but by

interpretative steps, which the Constitutional Court should have aimed

to do primarily, if it wishes to be true to the proclaimed principle of

“minimizing (its own) interference.”

A constitutionally

conforming  interpretation could be readily achieved, or would not be

unachievable, and the foundations of it have already been stated in the

previous “methodological” opposition. It was said that there are various

“dwellings,” or various “other premises”; on the one hand, they are

able to serve as a basis for using a certain means of evidence in

criminal proceedings, but on the other hand it is precisely through that

use that an objective risk arises that the constitutionally protected

values of “dwelling” or “private life” will be affected.

If, as

the majority concluded, the fundamental issue is “private life,” then

there are obviously no doubts (see above) that the substratum (“space”)

on which it rests, is also potentially quite varied in relation to that

(cf. an “apartment,” on one hand, and open “land” on the other hand);

simply said, private life is “more likely” (cum grano salis) exercised

in a dwelling that is an apartment than in “other premises,” which could

be, for example, a “warehouse,” or an unfenced piece of land. That then

logically and materially corresponds to a different degree of

protection against interference into such diversified “privacy”; in the

first case it will be higher, and in the second, naturally, lower;

however, it follows that if the existence of preliminary judicial review

is required – quite justifiably – for interference in privacy through a

house search, “it is not written anywhere” that the same level (i.e.

the highest level) must be required for interference in other premises,

i.e. those in relation to which the aspect of private life manifests

itself less significantly, even insignificantly (see again the

previously mentioned warehouses, abandoned factory halls, publicly

accessible lands, etc.).

If the potential of a constitutionally

relevant interference in the “private life” implied by these “other”

premises decreases, or is obviously lower than in the case of a

“dwelling” (apartment), because the potential of constitutionally

relevant “privacy” decreases, then it is logically and materially

apposite , for the place opened up by these constitutional aspects to be

taken by a different, “lower” aspect, that of “mere “

(sub-constitutional) lawfulness, and that, in a preliminary criminal

proceeding, is occupied basically, or in the first place, not by a

court, but by the state prosecutor, whose preliminary review – on that

basis – is capable of being adequate (constitutional values are not

significantly affect here).

If the majority opinion succeeded in

shaking the “narrow” concept of “dwelling” (§ 82 par. 1 of the CPC),

then – therefore – it was not in any way unavoidable (even contrary to

the cited principle of “minimizing interference”) for the same regime

established for a house search (§ 83 of the CPC), to be applied– in

general – to a search of other premises and lands (§ 83a of the CPC),

which the majority of the plenum resorted to.

The abovementioned

alternative of a constitutional interpretation could rest in an

interpretation of § 83a of the CPC, within which “other premises or

land” were always evaluated, in a particular case, in terms of the

existence of elements of “private life” that could be affected by the

search; if particular “other premises” were comparable to a “dwelling”

(see point 19 to 21), then, even though not formally a dwelling, it is

necessary to apply the regime under § 83 of the CPC; if such elements

are absent, then procedures under § 83a of the CPC will be implemented,

and a preliminary review by the state prosecutor – even if not

“impartial” as was concluded – concentrated on the criteria of

lawfulness is (given the lack of constitutionally relevant elements) a

sufficient review.

This, incidentally, does not suppress the

element of judicial review; that review is not a priori, but is applied a

posteriori at the level of evaluating the lawfulness of evidence

obtained in the preliminary proceeding. This does focus attention on

circumstances that are by and large specific to the particular case,

which can raise the objection of insufficient legal certainty;

nevertheless, the general courts are forced to evaluate lawfulness (and

thus the applicability) of one or another piece of evidence in other

similar cases as well.

The general courts will less easily deal

with the results of the derogation adopted by the majority of the

plenum. Just as an indication, it will suffice to mention that this

further strengthens elements of procedural formality in the criminal

trial, which is an obstacle to effectiveness and will bring other

organizational burdens to the general courts, because it will widen the

circle of tasks that rule a particular judge out of a criminal

proceeding after an indictment is filed; as is general known from the

regime used to address comparable situations in the general courts in

the past (see the former transfer of the agenda for placing people in

custody from the state prosecutor’s office to the courts), in fact it is

difficult to imagine an actual increase in the convenience of

protecting fundamental rights, which was supposed to be the point.