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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
Note of translator: SSČK = Administration of Nortbohemian Region, SKPV = Criminal Police and Investigation Service.
Instruction: This decision can not be appealed.