2006/12/07 - III. ÚS 693/06: Criminal Proceedings Opening

07 December 2006

HEADNOTES


It

is not a violation of the right to a fair trial if a state prosecutor

uses his authority under § 174 par. 2 let. e) of the Criminal Procedure

Code and, based on a defendant’s complaint, annuls a previous decision

by a police body to open criminal prosecution and replaces it with his

own decision to open criminal proceedings, against which decision a

complaint is not permissible.
 

The

principles of fair process expressed in the Charter and the Convention

do not generally include a right to two-level proceedings. The principle

of two-level review proceedings, enshrined in Article 2 par. 1 of

Protocol no. 7 to the Convention for the Protection of Human Rights and

Fundamental Freedoms, and in Article 14 par. 5 of the International

Covenant on Civil and Political Rights, applies only to the verdict

concerning guilt and punishment contained in a decision to convict, but

not to a decision to open criminal proceedings.

The Constitutional Court applies the principle of restraint and

minimizing interference in the decision-making activities of other

public bodies, especially where a decision on the merits has not yet

been made. A decision to open criminal proceedings under § 160 par. 1 of

the Criminal Procedure Code is an act with serious consequences for the

defendant, and it may be issued only within the bounds of the law (Art.

2 par. 3 of the Constitution, Art. 2 par. 2 of the Charter). However,

such a decision is basically only of a preliminary nature, and its

purpose, in relation to the defendant, is to give notice that he is

being prosecuted for a particular act, which is a condition for further

procedural acts in criminal proceedings. The justification for, and

legality of, criminal proceedings will be reviewed by the relevant

bodies as part of their official duties during the entire course of the

proceedings.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


A

Panel of the Constitutional Court, composed of its chairman Jan Musil

and judges Vladimír Kůrka and Jiří Mucha, decided, on 7 December 2006,

in the matter of a constitutional complaint from R. H., represented by

JUDr. L. P., attorney, against a decision of the District State

Prosecutor’s Office in Louny, dated 17 August 2006 file no. ZT

560/2006-148, as follows:
 

The constitutional complaint is denied.

 


REASONING


I.
 

The

petitioner, in a constitutional complaint that was properly and timely

filed, seeks the annulment of the decision referenced in the

introduction, as it is alleged to violate his right to a fair trial

under Art. 36 par. 1 of the Charter of Fundamental Rights and Freedoms

(the “Charter”), under which everyone may assert his rights before an

independent and impartial court.
 

Criminal

proceedings were opened against the petitioner (the “defendant” in the

criminal matter) by decision of the commissioner of the Police of the

Czech Republic, SSČK, SKPV note Ústí nad Labem, workplace Louny, ČTS:

PSV – 183/HK – An – 2006, dated 1 August 2006, under § 160 par. 1, for

the crimes of violating regulations on the circulation of goods in

relations with foreign countries under § 124 par. 1, par. 2 let. b) of

the Criminal Code and handling dangerous waste under § 181e par. 1, par.

2 of the Criminal Code. The crimes are supposed to be (briefly stated)

the illegal import of about 4,000 tons of dangerous waste from the

Federal Republic of Germany to the Czech Republic (to the municipalities

of Libčeves and Prague 5 – Lahovičky).
 

The

petitioner filed a complaint against that decision, based on which the

state prosecutor of the District State Prosecutor’s Office in Louny

annulled the contested decision by the police body, and, under § 149

par. 1 let. a) of the Criminal Procedure Code, himself began prosecution

of the petitioner for the cited crimes. In the reasoning of his

decision, contested by the present constitutional complaint, the state

prosecutor stated that the facts determined by investigation under § 158

par. 3 of the Criminal Procedure Code justify opening criminal

prosecution of the petitioner on the basis of the same legal definition,

but that the decision by the police body must be annulled because it

does not meet the requirements of § 160 par. 1 of the Criminal Procedure

Code (the verdict of the contested decision was too general, and did

not contain a detailed description of the defendant’s conduct related to

the manner in which the crimes were committed and to causation; the

verdict did not even contain the motive for the defendant’s conduct, or

the consequences which ensued, etc.). The state prosecutor cured these

defects in his own decision to open criminal prosecution of the

petitioner. The petitioner was taken into custody by decision of the

District Court in Louny of 3 August 2006 file no. 0 Nt 139/2006, on the

grounds cited in § 67 let. b), c) of the Criminal Procedure Code.
 


II.
 

In

the reasoning of his constitutional complaint, the petitioner stated

that, in his opinion, the state prosecutor did not want to allow the

petitioner to be released from custody after the defective decision by

the police body was annulled. For that reason, in the petitioner’s

opinion, the state prosecutor did not apply the cassation principle,

but, with reference to § 149 par. 1 let. a) of the Criminal Procedure

Code, again decided to open criminal prosecution of the petitioner, and

yet he quite fundamentally changed the description of the crime,

references to blanket norms, etc. In the petitioner’s opinion, the state

prosecutor thus decided fully like a body of the first instance, but,

in view of the reference to § 141 par. 2 second sentence of the Criminal

Procedure Code, the petitioner does not have an opportunity to file an

appeal against that decision. The petitioner believes that this

procedure by the State Prosecutor’s Office violates his “right to access

to a higher level court and his right to fair process.”
 

The

petitioner raises extensive objections against the actions taken by the

state prosecutor, whose decision-making on the complaint against the

police body’s decision, in the petitioner’s opinion, should have had a

cassation effect. The petitioner believes that an appeal in the matter

of a complaint is permissible only in less serious decisions; in other

cases one must follow cassation principles. The petitioner states that

current Czech proceedings on criminal complaints and appeals proceedings

are based on the principle of cassation with elements of an appeal.

However, if a higher body, in the course of its review, concludes that

the manner in which the first level body, in its decision, evaluated

substantial facts, is fundamentally flawed, it can not rule otherwise

than to annul the decision of the first level and return the matter for

new proceedings and a new decision. In the petitioner’s opinion the body

deciding on an appeal in such a case is generally not authorized to

substantially change the fact situation determined by the first level

body, even in the event of considerable supplementary presentation of

evidence, because it would thereby impermissibly replace the activity of

the first level body.

 

The

petitioner also provides an extensive analysis of the nature and

permissibility of appeals in Czech criminal proceedings and the

application of the cassation, or appellate, principle.
 


III.
 

The

Constitutional Court reviewed the contested decision and determined

that the constitutional complaint is clearly unjustified.
 

In

its case law, the Constitutional Court has repeatedly emphasized that

its decision-making is based on the principle that proceedings on

constitutional complaints are subsidiary, that they must be seen as

extraordinary proceedings. The Constitutional Court applies the

principle of restraint and minimizing interference in the

decision-making activities of other public bodies, especially where a

decision on the merits has not yet been made. A decision to open

criminal proceedings under § 160 par. 1 of the Criminal Procedure Code

is an act with serious consequences for the defendant, and it may be

issued only within the bounds of the law (Art. 2 par. 3 of the

Constitution, Art. 2 par. 2 of the Charter). However, such a decision is

basically only of a preliminary nature, and its purpose, in relation to

the defendant, is to give notice that he is being prosecuted for a

particular act, which is a condition for further procedural acts in

criminal proceedings. The justification for, and legality of, criminal

proceedings will be reviewed by the relevant bodies as part of their

official duties during the entire course of the proceedings.
 

As

regards the petitioner’s arguments, the Constitutional Court states

that they are based primarily on an incorrect understanding of the role

of the state prosecutor and his decision-making on complaints against

decision by police bodies in preparatory criminal proceedings. In the

pre-trial stage of the Czech criminal process the state prosecutor acts

as dominus litis, and the fate of the criminal prosecution is fully in

his discretion in that phase of the proceedings. This principle is also

applied through the state prosecutor’s oversight of the decision-making

activity of police bodies. The relationship between the state

prosecutor’s office and police bodies is, within the bounds of the laws

and other related regulations, a relationship of the superiority and

subordination of bodies of the executive branch (note the inclusion of

Art. 80 in Chapter Three of the Constitution), qualitatively different

from, for example, the relationships of courts of the various levels.

The nature of this relationship also gives a state prosecutor breadth

and a certain freedom in exercising his authority vis-à-vis decisions

made by police bodies under § 160 par. 1 of the Criminal Procedure Code.
 

Under

§ 174 par. 1 of the Criminal Procedure Code the state prosecutor

performs oversight of legality in preparatory proceedings; the concept

of violation of legality includes all shortcomings due to which the

actions of bodies active in criminal proceedings can come into conflict

with its fundamental principles under § 2 of the Criminal Procedure

Code. Decision-making on appeals against decisions by a police body in

preparatory proceedings, including the possibility of replacing police

decisions by one’s own decisions, is one of the ways the state

prosecutor performs oversight of legality in preparatory proceedings.

This authority to replace an illegal or unjustified decision by a police

body with one’s own decision, based on an entitled person’ complaint

against a decision by a police body, arises expressly from the relevant

provision of the Criminal Procedure Code [§ 174 par. 2 let. e) third

sentence after the semicolon]. The new decision by the state prosecutor

will, by the nature of the matter, necessarily differ from the original

decision by the police body, whether in the verdict or in part of the

reasoning. The cited statutory provision a contrario also gives rise to

the impermissibility of a complaint against such a decision [§ 174 par. 2

let. e) in fine]; for completeness the Constitutional Court points out

that the principles of fair process expressed in the Charter and the

Convention do not generally include a right to two-level proceedings.

The principle of two-level review proceedings, enshrined in Article 2

par. 1 of Protocol no. 7 to the Convention for the Protection of Human

Rights and Fundamental Freedoms, and in Article 14 par. 5 of the

International Covenant on Civil and Political Rights, applies only to

the verdict concerning guilt and punishment contained in a decision to

convict, but not to a decision to open criminal proceedings.
 

It

is not a violation of the right to a fair trial if a state prosecutor

uses his authority under § 174 par. 2 let. e) of the Criminal Procedure

Code and, based on a defendant’s complaint, annuls a previous decision

by a police body to open criminal prosecution and replaces it with his

own decision to open criminal proceedings, against which decision a

complaint is not permissible.
 

Moreover,

in the present case the Constitutional Court found the actions taken by

the state prosecutor to be fully consistent with the principle of

legality (§ 2 par. 3 of the Criminal Procedure Code), and also, in

particular, with the principle of speedy and efficient proceedings under

§ 2 par. 4 of the Criminal Procedure Code.
 

Based

on the foregoing facts, the Constitutional Court was forced to deny the

constitutional complaint, without a hearing, without the presence of

the parties, under § 43 par. 2 let. a) of Act no. 182/1993 Coll., on the

Constitutional Court, as clearly unjustified.
Note of translator: SSČK = Administration of Nortbohemian Region, SKPV = Criminal Police and Investigation Service.

Instruction: This decision can not be appealed.

Brno, 7 December 2006