II. ÚS 98/95                              Vol. 5/No. 42


                   JUDGMENT


    Panel  II of the Constitutional Court in the matter of  the
constitutional complaint of R. R., represented by JUDr. J.  S.,
an  attorney,  against the action of the County Directorate  of
the Czech Police in Teplice, with the County Directorate of the
Czech  Police in Teplice present as a party to the  proceeding,
decided,

                        I.  STATEMENT

    The  constitutional complaint is granted  in  view  of  the
fact  that  the  means  of proceeding employed  by  the  County
Directorate  of  the  Czech Police in  Teplice,  by  which  the
petitioner  was  prevented from exercising  his  right  to  the
assistance  of counsel when, in matter no. ORTP - 199/KS-HK-95,
he  made  a  statement under § 12 of Act No. 283/1991  Sb.,  as
amended,   constituted   a  violation   of   the   petitioner’s
constitutionally guaranteed right to assistance of  counsel  as
declared  in  Article 37 para. 2 of the Charter of  Fundamental
Rights and Basic Freedoms.  The County Directorate of the Czech
Police  in  Teplice  is  prohibited  from  continuing  in   its
violation of the right under Article 37 para. 2 of the  Charter
of Fundamental Rights and Basic Freedoms in connection with the
making of statements under § 12 of Act No. 283/1991 Sb.


                        II.  REASONING


     In his petition, the complainant sought a decision whereby
the  Constitutional  Court  would declare  that  the  means  of
proceeding   employed  by  the  police  body  of   the   County
Directorate  of  the  Czech  Police in  Teplice  constituted  a
violation   of   his  constitutionally  guaranteed   right   to
assistance of counsel as declared in Article 37 para. 2 of  the
Charter  of  Fundamental Rights and Basic Freedoms (hereinafter
„Charter“),   in   that  the  petitioner  was  prevented   from
exercising his right to the assistance of counsel when making a
statement as meant by § 12 of Act No. 283/1991 Sb., as  amended
(hereinafter  „Act No. 283/1991 Sb.“).  In explanation  of  his
petition,  he stated that on 6 March 1995 he was called  in  to
make a statement pursuant to § 12 of Act No. 283/1991 Sb.,  and
on  3 May 1995 he was brought in for that purpose, despite  his
request  that  his attorney, with whom he had  entered  into  a
contract  for  legal representation, be present as  well.   The
attorney  was  not, however, permitted to be present  when  the
statement was given with the explanation that Act No.  283/1991
Sb.  contains no provisions which would place upon  the  police
the  duty  to  make  it  possible for a person  to  have  legal
representation  when  making a statement and  further  that  no
attorney  is  needed  until  the  commencement  of  a  criminal
proceeding, as meant by the relevant provisions of the Criminal
Procedure  Code.  The petitioner emphasized, in addition,  that
he  had  cited Article 2 para. 2 and Article 37 para. 2 of  the
Charter  and had pointed out the difference between  assistance
of  counsel by a defense attorney in a criminal proceeding  and
by   an   attorney  on  the  basis  of  a  contract  for  legal
representation.  In addition to a violation of Article 37 para.
2  and  Article  2  para. 2 of the Charter  he  concluded  that
Article 4 para. 2 and Article 2 para. 3 of the Charter had been
violated as well.

     The County Directorate of the Czech Police in Teplice  did
not  submit  a  written statement responding to  the  petition,
despite  the  fact  that  it had been  duly  delivered  to  the
directorate on 23 June 1995; however, its director subsequently
proposed  at  the hearing that the petition be  denied  on  the
merits.   He explained its position with reference to the  fact
that  § 12 of Act No. 283/1991 Sb. does not impose any duty  to
secure  the presence of an attorney because it is not concerned
with  a  criminal  proceeding, which also  corresponds  to  the
extent of the police’s duty to instruct persons on their rights
when  summoned  to make a statement, and finally  in  reference
also to the fact that the statement is binding precisely on the
person who is to make it.

      The   Constitutional  Court  reviewed  the  complainant’s
petition,  as  well  as  the  attached  file  from  the  County
Directorate  of the Czech Police in Teplice, action  no.  ORTP-
199/KS-HK-95,  together  with  the  summons  of  6  March  1995
submitted  by the complainant, and supplementary evidence  from
the  examination of witnesses, JUDr. J. H., the director of the
County  Directorate of the Czech Police in Teplice,  Lieutenant
J.  N., JUDr. J. S., whose testimony agreed in the respect that
the  police had repeatedly denied the complainant’s request  to
be  represented by his attorney for the statement which he  was
called  in  to give.  On the basis of the foregoing, the  Court
came  to  the  conclusion that, by proceeding in  this  manner,
which  consisted in preventing the complainant from  exercising
his right to assistance of counsel in connection with making  a
statement,  the  County  Directorate of  the  Czech  Police  in
Teplice  had violated Article 37 para. 2 of the Charter.   That
clause explicitly states that everyone shall have the right  in
proceedings  before  courts,  other  state  bodies,  or  public
administrative authorities, to the assistance of  counsel  from
the  very  beginning  of such proceedings.   The  finding  that
Article  37 para. 2 was violated was due in particular  to  the
fact that, in the matter of making a statement, the requirement
of  a  proceeding is met by the characteristic  of  the  county
directorate of the police that, as a state body which took part
in the process, it has a directing status.  As a consequence of
its  proceeding in this manner, the County Directorate  of  the
Czech  Police  in Teplice also violated Article 1  as  well  as
Article  2  paras.  2 & 3 of the Charter, just  as  Article  1,
Article  2  paras. 1, 3, & 4 of the Constitution, in  which  is
enshrined  the  principle of the primacy of the citizen  before
the  state.  This conclusion is in no way affected by the  fact
that Act No. 283/1991 Sb. is deficient in not providing express
legal  rules relating to the legal representation of  a  person
making a statement for the simple reason that quite clear rules
are  found  in norms of the highest legal force, that  is,  the
Charter  and the Constitution.  Moreover, to cite a  deficiency
of  express legal provisions as the reason for denying a person
his  right to the assistance of counsel corresponds to a purely
positivistic   approach  to  the  law  does   not   match   the
requirements of a law-based state, which are characteristic  of
the natural law bent (compare, for example, the Preamble of the
Charter  or  Article  85  para. 2 of  the  Constitution).   For
completeness, the Constitutional Court explicitly states as the
final  point  that the right to the assistance of counsel  when
making  a statement does not entail a duty on the part  of  the
police  to  procure the presence of counsel in every case,  but
merely the duty to permit such legal representation.

     So far as concerns the petitioner’s assertion that Article
4  para. 2 of the Charter has been violated in that it declares
that limitations may be placed upon the fundamental rights  and
basic   freedoms  only  by  a  statute  under  the   conditions
prescribed  in  this  Charter, then  conceptually  this  clause
cannot  be  invoked  in  a  situation where  no  more  detailed
statutory provisions exist relating to the fundamental right to
the  assistance of counsel when making a statement (compare Act
No. 283/ 1991 Sb.).

    For the reasons given above and pursuant to § 82 para. 1,
2, & 3 lit. a) of Act No. 182/1993 Sb., on the Constitutional
Court, the Constitutional Court decided in the manner set down
in the statement of judgment and, additionally that it did not
require a return to the status quo ante due to the fact that it
became apparent in the course of the proceeding before the
Constitutional Court that the petitioner has already made the
statement and that the principle of investigation, searching,
and officiality are applicable for state authorities active in
criminal proceedings, including the County Directorate of the
Czech Police in Teplice, which means that the Court reached the
conclusion that it is no longer possible to return the status
quo ante the violation in the instant case.