Pl. ÚS 15/01

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1)  The constitutional principles forming one of the components
of the fundamental right to a fair trial, include the principle
of  “equal weapons”, or the principle of equal opportunity  (or
the principle of equality of parties to proceedings) under Art.
37  para. 3 of the Charter, Art. 96 para. 1 of the Constitution
a  Art.  6  para.  1 of the Convention. This principle  becomes
especially  important  in  criminal  proceedings,   where,   in
relation  to the defendant, it is closely tied to the right  to
defend one’s self, with the right to present factual and  legal
arguments,  and  with  the  right to respond  to  all  evidence
admitted. The principle of equality of the parties to  criminal
proceedings, apart from the function of protecting the position
of   the  defendant,  who  is  entitled  to  a  presumption  of
innocence,  is also part of the overall concept of a democratic
criminal  trial, characterized by the principle of  adversarial
proceedings.

     The  principle of “equal weapons” in criminal  proceedings
is  reflected in all stages of criminal proceedings, as well as
in  all  their  aspects.  Thus, it is  applied  both  in  trial
proceedings  and in review proceedings, in the  full  scope  of
both, but particularly in evidentiary proceedings (in proposing
evidence,  the  right to respond to admitted evidence,  and  so
on).  The  principle of “equal weapons” in criminal proceedings
is not absolute; generally the maxim applies that the state, in
any  context,  is  not  entitled  to  more  rights  or  a  more
advantageous procedural position than the defendant  [cf.  e.g.
the  time  limitation on the state attorney’s authorization  to
file a petition to re-open proceedings to the detriment of  the
defendant under § 279 let. a) of the Criminal Procedure Code].

      Unlike  all  other  remedial  measures  provided  by  the
Criminal  Procedure Code, only the complaint for  violation  of
the  law  can  be used by only one party – the  state.  If  the
state,  as  a  party in criminal proceedings  (it  can  not  be
considered decisive, which state body is entitled to act in the
name of the state at which stage of criminal proceedings),  has
at  its  disposal,  compared to the  defendant,  an  additional
procedural   means,  which  establishes  the   possibility   of
obtaining  annulment of a decision in a criminal  matter  which
has  gone into effect, one can not but conclude from this  that
there  is  infringement  of  the defendant’s  right  to  “equal
weapons” in a criminal trial, arising from Art. 37 para.  3  of
the  Charter, Art. 96 para. 1 of the Constitution  and  Art.  6
para. 1 of the Convention.

     The  relevance  of  the charge of failure  to  accept  the
principle  of  “equal weapons” appears even  more  pressing  in
cases  of possible application of a complaint for violation  of
the law to the detriment of the defendant against decisions  of
bodies   active  in  preliminary  proceedings  (e.g.,   against
decisions  by  the  investigator  or  state  attorney  to  stop
criminal  prosecution).  The  leading  principles  of  criminal
proceedings in a state governed by the rule of law, ever  since
the age of enlightenment, include the accusation principle (§ 2
para.  8  of  the Criminal Procedure Code), which overcame  and
replaced  the  inquisition principle in criminal trials.  Under
the   accusation   principle,  institutional   division   among
different  procedural entities of the procedural  functions  of
preparing  and filing an accusation, and deciding on guilt  and
punishment  is  an  essential part of the  democratic  criminal
trial,  respecting  the value of independent judicial  decision
making.  From a constitutional viewpoint this principle  arises
from  Art. 80 para. 1, Art. 90 of the Constitution and Art.  40
para. 1 of the Charter.

2)  In  the  settled opinion of the Constitutional  Court,  the
Court is bound in its decision making by the scope of the filed
petition,  and may not step outside its limits (ultra  petitum)
in  its  decision (see e.g., the judgment in the  matter  under
file no. Pl. ÚS 8/95).

     In  a situation where, as a result of the annulment  of  a
particular statutory provision by a derogative judgment of  the
Constitutional  Court another provision, different  in  content
from  the  first one, loses reasonable meaning, i.e. loses  the
justification of its normative existence, this is  grounds  for
annulling  this statutory provision as well, even without  this
being  a step ultra petitum. That provision ceases to be  valid
on  the basis of the principle of cessante ratione legis cessat
lex  ipsa; the derogation made by the Constitutional  Court  is
thus only of an evidentiary, technical nature.

3) If, on the basis of a legal regulation which was annulled, a
court issued a verdict in criminal proceedings which went  into
effect  but has not yet been executed, annulment of that  legal
regulation is, under the cited statutory provision, grounds for
re-opening   proceedings  under  the  Act  on  Criminal   Court
Proceedings. However, the adjudicated matter does  not  involve
such grounds. Violation of the principle of “equal weapons”  in
the   legal   regulation  of  active  standing   to   file   an
extraordinary   remedial   measure   does   not   concern   the
constitutionality,  or lawfulness of actual proceedings  before
the  Supreme  Court, or proceedings connected  to  them.  Thus,
annulment  of  § 272 of the Criminal Procedure  Code  does  not
establish grounds for re-opening proceedings under § 71 para. 1
of Act No. 182/1993 Coll., as amended by later regulations.

4)  In  the  area  of  intertemporality in civil  and  criminal
trials,  the  principle applies that, unless the  law  provides
otherwise,  the  court  proceeds according  to  the  procedural
regulations valid and effective at the time of decision making.
In  the  adjudicated matter, annulling § 272  of  the  Criminal
Procedure   Code  annuls  only  the  cassation  and   appellate
authority  of the Supreme Court in proceedings on  a  complaint
for  violation  of  the  law filed  to  the  detriment  of  the
defendant, but does not annul the proceedings as such, i.e.  it
does  not annul the possibility of issuing an academic  verdict
in  a  given  matter for the purpose of unifying case  law  pro
futuro  (§  268 para. 2 of the Criminal Procedure  Code).  This
indicates that, in cases where the Minister of Justice filed  a
complaint  for  violation of the law to the  detriment  of  the
defendant, but as of the day the annulling judgment  went  into
effect,  the  Supreme Court had not decided on  it,  after  the
derogative  judgment  of  the Constitutional  Court  goes  into
effect, only a decision by an academic verdict can be made.<


     The plenum of the Constitutional Court, after a hearing on
31  October 2001, with the participation of a secondary  party,
the  Supreme  Court, decided in the matter of a  petition  from
panel III of the Constitutional Court, filed under § 78 para. 2
of  Act  No.  182/1993 Coll., on the Constitutional  Court,  as
amended  by  later  regulations, to annul  §  272  of  Act  No.
141/1961  Coll.,  the Criminal Procedure Code,  as  amended  by
later regulations, as follows:

     The  provisions of § 272 and § 276 fourth sentence of  Act
No. 141/1961 Coll., on Criminal Court Proceedings (the Criminal
Procedure Code), as amended by later regulations, are  annulled
as of 31 December 2001.

                           Reasoning
                               
                              I.

     By  constitutional  complaint filed for  delivery  to  the
Constitutional Court on 2 August 2000, the complainant  E.  È.,
seeks annulment of the Plzeò Regional Court decision of 16 June
2000,  file no. 8 To 237/2000, and the Rokycany District  Court
decision of 22 April 1999, file no. 1 T 69/97, which found  her
guilty of the crime of false accusation under § 174 para. 1  of
the  Criminal Code and was sentenced to a fine. She feels  that
these   decisions  have  affected  her  fundamental  right   to
inviolability of a dwelling and her fundamental right to a fair
trial,  arising  under Art. 12 and Art. 36 of  the  Charter  of
Fundamental Rights and Freedoms (the “Charter”).

     The following facts were determined from Rokycany District
Court  file  no.  1  T  69/97, which the  Constitutional  Court
requisitioned:

     By Rokycany District Court decision of 22 April 1999, file
no. 1 T 69/97-17, the complainant was found guilty of the crime
of  false accusation under § 174 para. 1 of the Criminal  Code,
and under the same provision she was sentenced to a fine of CZK
11,000  with an alternative sentence of 3 months in prison  and
was also sentenced to forfeiture of a thing – the amount of CZK
1,500.  She was alleged to have committed the crime by  falsely
accusing  a police officer of taking a bribe, in a letter  sent
to the Police of the Czech Republic.

      In  response  to  the  complainant’s  appeal,  the  Plzeò
Regional  Court, by decision of 18 August 1999, file no.  8  To
217/99, annulled the decision of the first-level court under  §
258  para. 1 let. a), b) and c) of the Criminal Procedure Code,
and  under  §  260 of the Criminal Procedure Code returned  the
matter  to  the  prosecutor  to  complete  investigation.   The
Regional  Court justified its decision by defects in  the  home
search  conducted  in  the  complainant’s  home,  during  which
evidentiary  material  was obtained, and  which  suffered  from
several  defects. These, in the court’s opinion,  consisted  of
not questioning the person whose home was to be searched (§  84
of  the  Criminal  Procedure Code) and of not  stated  specific
reasons  which  led  to the procedure; the appeals  court  also
found  that  the  protocol on conduct of the  home  search  was
insufficiently  specific about which things  were  handed  over
voluntarily and which things were taken (§ 85 para.  3  of  the
Criminal Procedure Code). For all the cited reasons, the  Plzeò
Regional  Court  did not consider the evidentiary  material  to
have  been  obtained lawfully. If, after the home  search,  the
complainant  and  her defense counsel confirmed  the  voluntary
handing over of the evidentiary material under § 78 para. 1  of
the  Criminal  Procedure  Code (the  material  which  had  been
previously  obtained during the home search),  in  the  court’s
opinion,  this  led  to  handing over  of  a  thing  which  the
complainant (thus accused in the criminal proceedings), at  the
time  of  handing  over, did not have in her  control,  due  to
which, even if these things were returned to the complainant in
a  procedurally non-defective manner, this procedure could  not
cure  the  previous  unlawful obtaining of a  thing  which  was
important  for  the criminal proceedings. Thus, this  would  be
circumvention of the law, taking advantage of a situation which
was created by illegal conduct, i.e. the illegal home search.

     The Minister of Justice filed a complaint for violation of
the  law  against  the Plzeò Regional Court  decision,  to  the
detriment  of  the  defendant (the complainant  in  proceedings
before the Constitutional Court). He claimed that the contested
decision violated the law in § 254 para. 1, § 258 para. 1  let.
a),  b) and c) and § 260 of the Criminal Procedure Code, to the
benefit  of  the defendant. In his complaint, the  Minister  of
Justice concludes that the defects in the protocol keeping  and
the  conduct  of  the home search, as stated  by  the  Regional
Court,  were not of such a nature as could lead to a conclusion
that  the home search was being conducted illegally and,  as  a
result,  the  evidence  obtained during that  home  search  was
obtained illegally.

     On  the  basis of the complaint for violation of the  law,
the Supreme Court, in its decision of 29 March 2000, file no. 5
Tz  35/2000, decided, under § 268 para. 2, § 269 para. 2 and  §
270   para.  1  of  the  Criminal  Procedure  Code,  and   with
fulfillment of conditions under § 272 of the Criminal Procedure
Code,  that  the  decision of the Plzeò Regional  Court  of  18
August 1999, file no. 8 To 217/99, now in effect, violated  the
law  in § 254 para. 1, § 258 para. 1 let. a), b) and c)  and  §
260  of  the  Criminal Procedure Code, to the  benefit  of  the
defendant  E.  È.  (the complainant in proceedings  before  the
Constitutional Court), annulled the decision, and  ordered  the
Plzeò Regional Court, as the appeals court to review the matter
again in the necessary scope and decide again. In the reasoning
of  its  decision,  the  Supreme Court basically  endorsed  the
opinion  of  the Minister of Justice when it said that  certain
shortcomings did occur in the procedure during protocol keeping
of  the conduct and results of the home search, but that  these
are  only  of  a formal nature and can be overcome taking  into
account  the rest of the content of the criminal file,  and  so
these  defects, in his opinion, are not of such a nature as  to
justifiably  lead  to  a conclusion that the  home  search  was
conducted  illegally  and, as a result, the  evidence  obtained
during that home search was obtained illegally.

     Subsequently, the Plzeò Regional Court, by its decision of
16  June 2000, file no. 8 To 237/2000, denied the complainant’s
appeal against the Rokycany District Court decision of 22 April
1999, file no. 1 T 69/97.

     The  constitutional complaint points,  in  particular,  to
violation  of the conditions prescribed for conducting  a  home
search  in  §  84 of the Criminal Procedure Code, and  in  that
regard  it  argues with the Supreme Court’s opinion  concerning
its  interpretation. The complainant believes that the  illegal
conduct of the home search impinges on her fundamental right to
inviolability of a dwelling under Art. 12 of the  Charter,  and
believes  that the fact that the guilty verdict in the criminal
matter was, as the complainant believes, based on acceptance of
illegally  obtained evidence impinges on her fundamental  right
to a fair trial under Art. 36 of the Charter.

II.

     On  26  April 2001, panel III of the Constitutional Court,
without a hearing and without the parties being present, by its
decision  interrupted  the proceedings  on  the  constitutional
complaint  in  the matter under file no. III. ÚS  464/2000  and
submitted  to the plenum of the Constitutional Court,  for  its
decision, a petition to annul § 272 of Act No. 141/1961  Coll.,
the Criminal Procedure Code, as amended by later regulations.

                             III.

     Under § 42 para. 3 and § 69 of Act No. 182/1993 Coll.,  on
the  Constitutional Court, as amended by later regulations, the
Constitutional  Court  sent  the petition  to  the  Chamber  of
Deputies. In his position statement of 4 July 2001 the chairman
of  the  Chamber  of Deputies of the Parliament  of  the  Czech
Republic,  prof.  Ing. Václav Klaus, CSc., in the  introduction
clarifies  the  circumstances surrounding the  passing  of  the
legal regulation in question. He states that the institution of
a  complaint  for  violation of the law was introduced  in  our
legal  system in 1950, and was later also transferred to  other
criminal procedure codes, include the one currently in  effect,
Act  No. 141/1961 Coll. The chairman of the Chamber of Deputies
also  points out that, since 1990, objections have been  raised
to  this institution, primarily in the expert literature; these
objections were practically identical with the arguments in the
petition of panel III of the Constitutional Court. Taking  into
account   the   content  of  this  institution,  he   basically
acknowledges  in  the  position  statement,  that  it  is   not
completely consistent with the principle of equality of parties
in  criminal proceedings under Art. 37 para. 3 of the  Charter,
as  a  complaint for violation of the law can be filed only  by
the  Minister  of  Justice and not by the other  party  in  the
criminal proceedings, i.e. the defendant. It is further pointed
out  that this problem was repeatedly evaluated in the previous
amendments to the Criminal Procedure Code, and at present,  for
reasons including this one, another amendment has introduced  a
new  extraordinary corrective measure – appeal on  a  point  of
law,  which is to guarantee equality of the parties to criminal
proceedings, and which, with effect as of 1 January 2002, is to
virtually completely replace the complaint for violation of the
law,  including § 272. However, the amendment does not  propose
annulling  the actual institution of a complaint for  violation
of  the  law  because, in the opinion of the  chairman  of  the
Chamber  of  Deputies,  until recodification  of  the  Criminal
Procedure  Code,  it should address certain  exceptional  cases
where a potential defect will not be corrected by an appeal  on
a  point  of  law  or in another manner. On the  basis  of  the
foregoing,  the position statement says that it  can  basically
agree with annulling § 272 of the Criminal Procedure Code,  but
the  legal effect of the Constitutional Court’s judgment should
be  postponed at least until 1 January 2002, when the amendment
to  the Criminal Procedure Code will go into effect, or perhaps
even  longer,  because  in  connection  with  the  judgment   a
corresponding  amendment to the Criminal  Procedure  Code  will
probably be passed, particularly concerning the possibility  of
correcting defects concerning persons other than the defendant.
...

     The  Constitutional Court, under § 42 para. 3 and § 69  of
Act  No. 182/1993 Coll., as amended by later regulations,  also
sent  the petition to the Senate of the Parliament of the Czech
Republic.  In  his  position statement of  11  July  2000,  its
chairman,   doc.  JUDr.  Petr  Pithart,  in  the   introduction
recapitulates  the  history of § 272 in the Criminal  Procedure
Code.  He  states  that this provision has  been  part  of  the
Criminal  Procedure Code since the day this law was  passed  by
the  National Assembly, i.e. since 29 November 1961; up to  the
present  time  it  has,  in terms of the present  issues,  gone
through   rather  insignificant  changes:  the  provision   has
reflected changes in the entities entitled to file complaints –
at  first these were the general prosecutor and chairman of the
Supreme Court, later the chairman of the court was replaced  by
the  Minister  of Justice (under the amendment of the  Criminal
Procedure  Code,  implemented by Act No.  149/1969  Coll.)  and
after  an  amendment made several years ago(by Act No. 292/1993
Coll.),  the only remaining party entitled to file a  complaint
was the Minister of Justice. Act No. 30/2000 Coll. then added a
new  paragraph  2,  which adopted the present  content  of  the
provision.

     The position statement also points out that the Senate  of
the  Parliament of the Czech Republic was established and began
its  constitutional function in December 1996, as a  result  of
which  the  Senate  can  not give the  Constitutional  Court  a
position  statement on a matter based on the actual  discussion
and passing of § 272 the Criminal Procedure Code, or the entire
institution of a complaint for violation of the law and most of
its amendments. .. .

     Taking as a starting point the ability given by § 49 para.
1  of  Act No. 182/1993 Coll., as amended by later regulations,
and  because the application of § 272 of the Criminal Procedure
Code  directly  affects the Supreme Court and the  Ministry  of
Justice, the Constitutional Court asked these state bodies  for
position  statements  on  the  petition  to  annul  the   cited
statutory provision.

     In  the introduction of her position statement of 29  June
2001,  the  chairwoman  of  the  Supreme  Court,  JUDr.  Eliška
Wagnerová, Ph.D., agreed with the petition of panel III of  the
Constitutional  Court,  which interrupted  proceedings  in  the
matter  file  no. III. ÚS 464/2000 and which submitted  to  the
plenum  of  the Constitutional Court for review and decision  a
petition to annul § 272 of the Criminal Procedure Code.  Beyond
the  framework  of  the  reasons given  in  the  decision,  the
position  statement also points to other reasons why §  272  of
the   Criminal   Procedure  Code  is  inconsistent   with   the
constitutional order. it states that the purpose of a complaint
for violation of the law can be found at two levels – first, in
the  presumption  that  the law, i.e. objective  law,  deserves
protection,  and  second, in inspection of  the  procedures  of
state   bodies   involved   in   criminal   proceedings    (the
investigator, prosecutor, judge, or court - § 266  para.  1  of
the Criminal Procedure Code).

     The  chairwoman  of the Supreme Court, in connection  with
the cited starting point, states that a complaint for violation
of  the  law  filed  to the detriment of the  defendant  is  an
institution which interferes in the defendant’s right to a fair
trial in the wider sense, and therefore it is essential to also
examine  such intervention into a fundamental principle  (which
can  be  derived from Art. 1 of the Constitution, in a  breadth
beyond   the   specific  fundamental  procedural   rights   and
guarantees contained in part five of the Charter) in  terms  of
the principle of reasonableness (also derivable from Art. 1  of
the  Constitution). In this regard, she considers it  important
to  answer  the  question  of whether this  institution  is  an
essential  measure  in  a  democratic  society.  The   position
statement  formulates an answer according to which the  purpose
pursued  by a complaint for violation of the law filed  to  the
detriment  of the defendant - i.e. protection of observance  of
objective  law  and  procedural methods – is  evidently  itself
problematic,  because  both of the elements  which  are  to  be
protected  are protected in isolation, but not in  relation  to
the subjective rights of the defendant or the injured party  or
in  relation to protection of the public good. In the end, only
the  product of the state is protected, i.e. objective  law  in
the form of a statute; alternately correction of the conduct of
state  or  official persons or bodies is sought. Thus,  in  the
opinion of the chairwoman of the Supreme Court, a complaint for
violation  of  the law filed to the detriment of the  defendant
is,  in  terms of its purpose, a problematic institution  in  a
democratic  state governed by the rule of law,  whose  immanent
element  is  respect  for  the  rights  and  freedoms  of   the
individual,  as the state may legitimately intervene  in  these
only  by law, but only for reasons of protection of the  rights
and  freedoms of others, or protection of the public  good.  In
this   regard,   the   position   statement   emphasizes   that
intervention can scarcely be justified merely as correction  of
error by the state itself, which the individual affected by the
error  did  not participate in. The chairwoman of  the  Supreme
Court  believes  that,  due  to  this,  the  institution  of  a
complaint  for violation of the law filed to the  detriment  of
the  defendant can also violate the principle contained in Art.
1 of the Constitution.

     The  second  reason, which the chairwoman of  the  Supreme
Court,  in her position statement, places outside the framework
of  justification of the unconstitutionality of §  272  of  the
Criminal Procedure Code, contained in the petition of panel III
of the Constitutional Court, is a reference to the fact that in
some  cases the institution of complaint for violation  of  the
law  filed to the detriment of the defendant can also represent
intervention  in the right not to be prosecuted twice  for  the
same  crime,  as intended by Art. 4 of Protocol no.  7  to  the
Convention  for the Protection of Human Rights and  Fundamental
Freedoms  (the  “Convention”). Unlike Art. 40 para.  5  of  the
Charter,  which  speaks in the plural about the possibility  of
applying  extraordinary remedial measures (evidently responding
to  the legal regime in effect), which could break through this
principle,   Art.  4  of  Protocol  no.  7  to  the  Convention
recognizes only re-opening of proceedings, the scope  of  whose
admissibility  it  defines  itself.  It  ties  the   scope   of
admissibility  only  to  newly  discovered  facts   or   to   a
substantive  defect in the foregoing proceedings,  both  to  be
applied  only  if  they could influence  the  decision  in  the
matter.  From  this,  the  position statement  concludes  that,
unlike  a complaint for violation of the law, whose purpose  is
protection  of  objective  law or  correction  of  a  defective
procedure in proceedings, so to speak, “about themselves”,  re-
opening  under of Protocol no. 7 to the Convention is  strictly
tied  to  influencing  a specific individual  decision  in  the
matter.  Because para. 3 of Art. 4 of Protocol  no.  7  to  the
Convention  provides that no derogation from the article  shall
be  made  under  Art.  15  of  the  Convention,  i.e.  even  in
exceptional (e.g. wartime) situations, it is considered evident
that  scope  for breaking through the fundamental principle  of
not  being  prosecuted  twice for the same  crime  can  not  be
expanded, as is evidently done by a complaint for violation  of
the  law  filed to the detriment of the defendant.  Because  of
this, the position statement considers that the institution  of
a  complaint for violation of the law to the detriment  of  the
defendant  in some cases interferes with the fundamental  right
contained in Art. 4 of Protocol no. 7 to the Convention.

     For  all the stated reasons the chairwoman of the  Supreme
Court  endorses the petition of panel III of the Constitutional
Court  to  annul § 272 of the Criminal Procedure  Code  due  to
inconsistency  with Art. 1 of the Constitution and  Art.  4  of
Protocol no. 7 of the Convention.

     At the request of the Constitutional Court, the chairwoman
of  the Supreme Court, submitted, in filings of 31 August  2001
and  5  September  2001,  for purposes  of  these  proceedings,
statistical data concerning complaints for violation of the law
filed from 1996 to 2001.

     The  data submitted indicate that during that period there
was  a  change in the ratio of complaints for violation of  the
law  filed to the benefit and to the detriment of the defendant
and  in the total growth of complaints for violation of the law
filed.  While  in  1996  the  Minister  of  Justice  filed  174
complaints to the benefit of the defendant and only 49  to  the
detriment  of  the defendant (12 were filed to the  defendant’s
benefit  and detriment simultaneously), in 1997 this ratio  was
88 to 58 (with 3 filed to the defendant’s benefit and detriment
),  in  1998  it was 74 to 98 (with 6 filed to the  defendant’s
benefit  and detriment), i.e. for the first time the number  of
complaints  filed  to  the defendant’s detriment  exceeded  the
number of complaints filed to the defendant’s benefit, in  1999
the  ratio  was  88  to 117 (with 13 filed to  the  defendant’s
benefit  and  detriment), in 2000 it was 113 to  166  (with  22
filed to the defendant’s benefit and detriment ) and finally in
the  first seven months of 2001 it was 75 to 102 (with 10 filed
to  the  defendant’s  benefit  and  detriment).  The  submitted
statistics also indicate that, while in 1996 the proportion  of
complaints  filed to decisions in preliminary  proceedings  was
14%, in 1997 it was 18%, in 1998 22%, in 1999 21%, in 2000  26%
and in the first seven months of 2001 it climbed to 29%.

     The  Minister  of Justice, JUDr. Jaroslav  Bureš,  in  the
introduction of his position statement to the petition of panel
III  of the Constitutional Court to annul § 272 of the Criminal
Procedure  Code,  emphasizes that the legal  institution  of  a
complaint for violation of the law was introduced in the  Czech
legal  order  by  Act  No.  87/1950 Coll.,  on  Criminal  Court
Proceedings  (the  Criminal Procedure  Code),  and  later  also
transferred  to  other Acts on Criminal Court Proceedings  (no.
64/1956  Coll.  and  no. 141/1961 Coll.) and,  despite  partial
amendments,  remained in the legal order of the Czech  Republic
after  1993  [§  266  et  seq. of Act No.  141/1961  Coll.,  on
Criminal  Court Proceedings (the Criminal Procedure  Code),  as
amended  by  later  regulations]. He also  believes  that  this
extraordinary  remedial measure was considerably  connected  to
the  complaint for a breach of law aimed at preserving justice,
which,  on  the basis of Act No. 119/1873 Imperial Laws,  which
introduces  the  Criminal Procedure Code, as amended  by  later
regulations  (cf. § 33, § 292 and § 479), was already  used  in
our  territory in the former Czechoslovakia (in the  Czech  and
Moravian-Silesian land), but was enriched and  supplemented  by
several  elements  which were typical for the  socialist  legal
order.  The  position statement also points to  the  fact  that
after  1990  objections were raised against the  complaint  for
violation  of  the  law as an extraordinary  remedial  measure,
particularly  in  the  literature; these  objections  contained
arguments  similar  to  those in  the  cited  decision  of  the
Constitutional Court, particularly in terms of the equality  of
the  parties, as the amendment implemented by Act No.  292/1993
Coll., although it did, with effect as of 1 January 1994  leave
the  power  to file a complaint for violation of the  law  only
with  the  Minister  of  Justice (until then  a  complaint  for
violation  of the law could also be filed by a prosecutor),  in
terms  of  the equality of the parties in criminal  proceedings
(the state versus the defendant) he is still a state body,  and
it  is  not  decisive who represents the state in a  particular
phase  of  the proceedings. The Minister of Justice points  out
that  in  this  regard  it was repeatedly emphasized  that  the
complaint for violation of the law is deeply inconsistent  with
the  concept  of a state based on the rule of law, because  the
right  to  file  a complaint for violation of the  law,  as  an
“official  remedial measure,” to the benefit of  the  convicted
party, is entrusted only to a high state official, who can then
file  this  remedial  measure even  to  the  detriment  of  the
defendant.

     Relying  on  these  viewpoints, the  Minister  of  Justice
agrees that if a state, represented by a state body as a  party
in  criminal proceedings (it is not decisive whether, depending
on  the phase of the proceedings, this is the state attorney or
the Minister of Justice), compared to the defendant, has at its
disposal  another,  even  if extraordinary,  remedial  measure,
establishing the opportunity to obtain annulment of a  decision
which  has  gone  into  effect in a criminal  matter,  this  is
inconsistent  with  the principle of equality  of  the  parties
under  Art.  37  para. 3 of the Charter,  if  equality  of  the
parties  is  derived from this provision both in civil  and  in
criminal  proceedings, and this principle applies not  only  to
natural persons and legal entities, but also to the state, or a
state body, if it appears in proceedings as a party (not as the
holder   of   state   power   -potentior   persona).   Criminal
proceedings,  as stated further in the position statement,  are
adversarial proceedings , i.e. proceedings in which  the  sides
stand  opposite  each other as procedural opponents,  where  in
criminal  proceedings the issue is primarily  equality  of  the
plaintiff and the defendant, that is the state attorney and the
defendant,  but  the requirement for equality  of  the  parties
(“equal  weapons”) can also be applied, though with  a  certain
reservation,  to  the  relationship  between  the  Minister  of
Justice  and  the  defendant, particularly if the  Minister  of
Justice  files  a complaint for violation of  the  law  to  the
detriment of the defendant.

     When  filing a complaint for violation of the law  to  the
benefit  of  the defendant, it is necessary, according  to  the
Minister  of Justice, to see this as a certain means  of  favor
defensionis,  which  can  be  accepted  from  a  constitutional
viewpoint,  because  it can not worsen his position  either  in
substantive law or procedural terms, even though it also evokes
certain  doubts in terms of the equal weapons under Art.  6  of
the  Convention,  particularly in a case  where  the  defendant
seeks a complaint for violation of the law to his benefit,  but
the Minister of Justice does not file it, for in these case one
could conclude that there is conflict with the principles of  a
state  based  on the rule of law, which should guarantee  equal
means for protection of rights to trial parties, or parties  to
proceedings, as part of the right to a fair trial under Art. 36
para. 1 of the Charter.

     According to the Minister of Justice, these considerations
are all the more valid in the case of a complaint for violation
of the law to the detriment of the defendant against a decision
on the merits by bodies active in preliminary proceedings, e.g.
against  the  decision of an investigator or state attorney  to
stop criminal prosecution under § 172 of the Criminal Procedure
Code  or assignment of a matter to another body under § 171  of
the  Criminal Procedure Code, which, in the case of a  decision
of  the  Supreme Court in which it finds violation of  the  law
under  §  268  para.  2  of  the Criminal  Procedure  Code  and
simultaneously annuls the contested decision under § 269  para.
2  and  § 272 of the Criminal Procedure Code and, under  §  270
para.  1  of  the  Criminal Procedure Code,  orders  the  state
attorney  (generally)  to  review  the  matter  again  in   the
necessary   scope   and  decide  again,  undoubtedly   involves
inadmissible  intervention  to the accusation  principle  (§  2
para.  8  of  the  Criminal Procedure Code),  even  though  the
Supreme  Court  can not, in such a decision,  order  the  state
attorney  to file an indictment against the defendant  in  that
matter. Under § 270 para. 4 of the Criminal Procedure Code, the
body  to  which  a matter was assigned is bound  by  the  legal
opinion  stated  in  the matter by the Supreme  Court,  and  is
required  to  take  procedural steps whose  implementation  the
Supreme  Court ordered, whereby the Supreme Court significantly
influences  the basis for filing an indictment, and  thus  also
the   accusation   principle,  which  has  its   constitutional
foundations in Art. 80 para. 1 of the Constitution, but also in
the  related provisions of Art. 90 of the Constitution and Art.
40 para. 1 of the Charter.

     The  position statement also states that the  Ministry  of
Justice   repeatedly   considered  all  these   issues   during
individual  amendments of the Criminal Procedure  Code  and  in
connection   with  the  planned  recodification   of   criminal
procedure  law,  which  then found expression  in  the  “large”
amendment of the Criminal Procedure Code, which establishes the
regime  of the new extraordinary remedial measure – the  appeal
on  a  point  of law, which will apply to precisely  enumerated
court decisions, will preserve the equality of the parties (cf.
§  265a  to  265s  of the Criminal Procedure Code)  and  which,
during  the  legislative process was, in  accordance  with  the
above   mentioned  opinions,  at  the  initiative  of   parties
including  the  Ministry  of Justice  and  the  Supreme  Court,
supplemented  with the authority of the supreme state  attorney
to annul, in a very short period, unlawful decisions from lower
state   attorneys  on  stopping  criminal  prosecution  or   on
assigning  a  matter  (cf. § 173a and § 174a  of  the  Criminal
Procedure Code) which have gone into effect. In the opinion  of
the  Minister  of Justice, these institutions are  supposed  to
basically replace the complaint for violation of the law,  with
effect  as  of 1 January 2002, although, until passage  of  the
recodification  of  the Criminal Procedure  Code,  it  will  be
preserved (including § 272 of the Criminal Procedure Code)  for
certain  exceptional cases, where error would not be  corrected
by  a appeal on a point of law or other remedial measures (e.g.
for  annulment  of a decision to stop criminal  prosecution  in
criminal matters concerning persons accused of crimes committed
during  the  totalitarian regime, in connection  with  Act  No.
119/1990 Coll., on Judicial rehabilitation, as amended by later
regulations,  and Act No. 198/1993 Coll., on the Illegality  of
the  Communist  Regime  and Opposition  Against  It).  In  this
regard,  reference is made to certain cases from recent  years,
where  certain persons responsible for crimes committed to  the
benefit  of  the communist regime were finally prosecuted,  but
their prosecution was stopped in preliminary proceedings or  in
proceedings  before  the  court, which  lead  the  Ministry  of
Justice  and  the  government to leave  the  institution  of  a
complaint  for violation of the law (including  §  272  of  the
Criminal  Procedure  Code)  in  the  Criminal  Procedure  Code,
because  other wise these errors could no longer be  corrected.
In  this  regard, illustrating the issue with a specific  case,
the  Minister of Justice also points to § 71 para. 1 of Act No.
182/1993  Coll., as amended by later regulations, and  problems
related with its impact on cited cases. .. .



IV.

     On  11  July  2001  the Constitutional  Court  received  a
petition  from the Supreme Court to annul § 272 of the Criminal
Procedure   Code,  filed  under  Art.  95  para.   2   of   the
Constitution, § 224 para. 5 of the Criminal Procedure Code  per
analogiam  and  §  64  para. 4 of Act No.  182/1993  Coll.,  as
amended  by  later regulations. The petition is  based  on  the
Supreme  Court  decision  of  26 June  2001,  file  no.  11  Tz
106/2001,  which interrupted proceedings on the  complaint  for
violation of the law, filed by the Minister of Justice  to  the
detriment  of  the defendant D. B., against a decision  of  the
state attorney of the Dìèín District State Attorney’s Office of
19 December 2000, file no. 2 Zt 897/2000-5, on assignment of  a
criminal  matter, and under the above mentioned  constitutional
and  statutory  provisions  the matter  was  submitted  to  the
Constitutional Court.

     In  the  opinion  of the panel of the Supreme  Court,  the
institution  of  a  complaint  for  violation  of  the  law  is
inconsistent  with the concept of a democratic state  based  on
the  rule  of  law, because the right to use this extraordinary
remedial measure is entrusted only to the representative of the
executive  branch – the Minister of Justice. The defendant  can
not obtain filing of this extraordinary remedial measure to his
benefit  even  in the event of flagrantly serious violation  of
the  law,  and  must rely on the decision of  the  Minister  of
Justice.  The Minister, except for isolated exceptions  arising
from the Rehabilitation Act, does not have an obligation to use
this   extraordinary  remedial  measure.  It  is  up   to   his
consideration  whether the law was violated,  and  whether  the
violation  is so serious that it requires intervention  in  the
principle  of stability of judicial decision making. For  these
reasons, the panel of the Supreme Court states that this is  an
institution which should not have a place in a modern  criminal
procedure code. In its opinion, all the cited shortcomings come
to the forefront even more with complaints for violation of the
law filed to the detriment of defendants, particularly in cases
where this extraordinary remedial measure contests decisions on
the   merits   made  by  bodies  in  preliminary   proceedings.
Therefore,  the panel of the Supreme Court concluded  that  the
existence  of this institution is a denial of the  equality  of
all  parties to proceedings expressed in Art. 37 para. 3 of the
Charter  and  does  not  respect the  right  to  a  fair  trial
guaranteed  by Art. 6 of the Convention. Moreover, the  Supreme
Court’s  statutory ability, in proceedings on a  complaint  for
violation  of the law filed by the Minister of Justice  to  the
detriment  of  the  defendant,  to  annul  a  decision  by   an
investigator  or  state  attorney on  stopping  prosecution  or
assigning  a matter to another body which has gone  into  legal
effect,  and  to order bodies active in preliminary proceedings
to  continue  in criminal proceedings, breaks, in a fundamental
way, the accusation principle, which is a leading principle  of
criminal  proceedings in a state governed by the rule  of  law.
For  these reasons, in the opinion of the panel of the  Supreme
Court,  it  is  not possible to tolerate the institution  of  a
complaint  for  violation of the law to the  detriment  of  the
defendant.

     By  decision of 10 October 2001, file no. Pl. ÚS  19/01-6,
the  Constitutional Court denied the petition of the  panel  of
the Supreme Court on grounds of a pending suit under § 35 para.
2  of  Act No. 182/1993 Coll., as amended by later regulations,
with  the  provision  that the Supreme Court,  as  an  entitled
petitioner, has, under § 35 para. 2 in fine of the Act  on  the
Constitutional Court, the right to participate as  a  secondary
party in discussions on the previously filed petition, i.e. the
petition under file no. Pl. ÚS 15/01.

      For  the  same  reasons,  the  Constitutional  Court,  by
decisions of 20 September 2001, file no. Pl. ÚS 23/01-10, of 28
August  2001,  file no. Pl. ÚS 26/01-11, of 18 September  2001,
file no. Pl. ÚS 30/01-11, and of 10 October 2001, file no.  Pl.
ÚS 32/01-10, also denied the analogous petitions of the Supreme
Court  to annul § 272 of the Criminal Procedure Code, with  the
provision that, in these matters as well, the Supreme Court, as
an  entitled petitioner, has, under § 35 para. 2 in fine of the
Act on the Constitutional Court, the right to participate as  a
secondary   party  in  discussions  on  the  previously   filed
petition, i.e. the petition under  file no. Pl. ÚS 15/01.

V.

     The  text of § 272 of Act No. 141/1961 Coll., on  Criminal
Court Proceedings (the Criminal Procedure Code), as amended  by
later regulations, whose constitutionality is evaluated by  the
Constitutional Court in proceedings on review of norms, is  the
following:

Ҥ 272

     (1)  If  the law was not violated to the detriment of  the
     defendant, the Supreme Court may proceed under § 269 para.
     2  to § 271 only if the Minister of Justice so proposed in
     a  complaint  for  violation of the law filed  within  six
     months of the contested decision and if the Supreme  Court
     decided on this complaint within three months after it was
     filed.
     
     (2)  If  the complaint for violation of the law  cited  in
     paragraph  1  was  submitted to the large  senate  of  the
     collegium  within  three months after it  was  filed,  the
     Supreme  Court may proceed under § 269 para. 2  to  §  271
     only  if  it decided on the complaint within three  months
     after  it  was  transferred to the  large  senate  of  the
     collegium.”
     


VI.

     Under  § 68 para. 2 of Act No. 182/1993 Coll., as  amended
by  later  regulations, the Constitutional Court, when deciding
in  proceedings to annul statutes and other legal  regulations,
evaluates  only the content of these regulations  in  terms  of
their   consistency  with  constitutional  acts,  international
agreements  under Art. 10 of the Constitution, or statutes,  in
the  case  of another legal regulation, and determines  whether
they   were   passed   and   issued  within   the   bounds   of
constitutionally    prescribed   jurisdiction    and    in    a
constitutionally prescribed manner. If, as part  of  review  of
norms, the Constitutional Court evaluates the jurisdiction of a
norm-creating  body  and  the constitutionality  of  the  norm-
creating process, it relies on § 66 para. 2 of the Act  on  the
Constitutional Court, under which a petition in proceedings  to
annul statutes and other legal regulations is inadmissible if a
constitutional  act or an international agreement,  with  which
the  reviewed  regulations are inconsistent  according  to  the
petition,  ceased to have legal effect before the petition  was
delivered to the Constitutional Court. This indicates  that  in
the case of legal regulations issued before the Constitution of
the  Czech  Republic  no. 1/1993 Coll. went  into  effect,  the
Constitutional Court is entitled to review only  whether  their
content  is consistent with the existing constitutional  order,
but  not  the constitutionality of the procedures n which  they
were created and observance of norm-creating jurisdiction. (See
judgment  file no. Pl. ÚS 9/99, published in the Collection  of
Judgments and Resolutions, vol. 16, pp. 13-14).

     On  the basis of the cited interpretation of § 68 para.  2
of  Act No. 182/1993 Coll., as amended by later regulations, in
the   case  of  §  272  of  the  Criminal  Procedure  Code  the
Constitutional  Court reviewed whether the contested  statutory
provision   was  passed  and  issued  within  the   bounds   of
constitutionally    prescribed   jurisdiction    and    in    a
constitutionally  prescribed  manner  only  in  terms  of   the
amendments implemented after 1 January 1993. The Constitutional
Court stated that the statute was passed and issued within  the
bounds  of constitutionally prescribed jurisdiction  and  in  a
constitutionally prescribed manner.
.. .



VII.
VII/a

     Under  §  266  et seq. of the Criminal Procedure  Code,  a
complaint for violation of the law is an extraordinary remedial
measure,  which can only be applied by the state and which  can
be used to obtain the annulment of a decision by a court, state
attorney  or  investigator  which has  gone  into  effect.  The
Supreme  Court,  which  has  jurisdiction  to  decide  about  a
complaint  for  violation of the law (§  266  para.  1  of  the
Criminal  Procedure Code) and, in addition to the authorization
to  issue an academic verdict in the matter (§ 268 para.  2  of
the   Criminal   Procedure  Code),  is  also   empowered   with
“cassation” or appellate jurisdiction (§ 269 para. 2, § 271  of
the Criminal Procedure Code), in the event of a complaint filed
to  the  detriment  of  the defendant (§ 272  of  the  Criminal
Procedure Code).

     The legal institution of a complaint for violation of  the
law was introduced into the Czechoslovak legal order by Act No.
87/1950   Coll.,   the  Criminal  Procedure  Code,   and   then
transferred  to other codifications of criminal procedure  (Act
No.  64/1956  Coll. and Act No. 141/1961 Coll.)  and  was  also
preserved  in the legal order of the Czech Republic after  1993
[§  266  et  seq. of Act No. 141/1961 Coll., on Criminal  Court
Proceedings (the Criminal Procedure Code), as amended by  later
regulations].

     Act No. 87/1950 Coll. abandoned the previous concept of  a
democratic  criminal trial and assumed the Soviet  totalitarian
concept of Stalinist coinage. In discussions of the outline  of
the  Act  by  the  National Assembly on 11 July  1950  in  this
regard, then Minister of Justice Rais declared: “If it has been
granted  us  to  contribute to the socialist  building  of  our
homeland  by developing important new laws, including  criminal
regulations,  then  above  all we owe  warm  thanks  to  Soviet
socialist legal scholarship and the outstanding Soviet  workers
in  the  field of criminal law. (Applause.) As in other fields,
in  criminal  law  as  well Soviet scholarship  has  undisputed
primacy  in  the world. The Soviet Union’s lawyers have  lifted
the  problems of socialist criminal law to unseen  heights  and
worked  through them in an unsurpassable manner,  and,  on  the
basis of Marxist-Leninist teachings have enriched knowledge  of
criminal  law with new, important experiences, which  bourgeois
knowledge  never  achieved  and  can  not  achieved,  and  with
solutions  which bourgeois knowledge no longer  even  attempts.
Knowledge of Soviet laws and Soviet theory was a necessary  and
basic  prerequisite  for the formulation of  our  new  criminal
laws,  without  which  we could not,  in  such  a  short  time,
complete  the  outline  which  the  National  Assembly  is  now
discussing. Obviously, during this process it was necessary  to
make  connections  to  our  previous developments  and  to  the
historical experiences of our working people. However, it  must
be  emphasized that the substance of the issues with which  the
new  criminal law concerns itself was revealed and  exemplarily
developed amid the experiences of the Soviet Union.
The  results of legislative work on the new criminal  laws  are
therefore a new success, not only of our working class, but  of
Marxist-Leninist  thought in general,  and  especially  of  the
socialist   knowledge   of  the  great  Soviet   Union.”   (see
www.psp.cz)

      Introduction  of  the  institution  of  a  complaint  for
violation of the law to the detriment of the defendant  in  the
Criminal   Procedure  Code  of  1950  was  an   expression   of
strengthening  the  executive branch over the  judicial  branch
(particularly  the  prosecutor’s  office  as  the   “guard   of
socialist  legality”). It also came from lack of faith  in  the
reliability of the judicial branch as a repressive apparatus of
the totalitarian state and installed the possibility of using a
central  decision  to achieve revocation of  any  criminal  law
decision  in  effect,  including  to  the  detriment   of   the
defendant.

     We  can agree with the statements of the Chairman  of  the
Chamber  of  Deputies  and the Minister  of  Justice  that  the
problem  of  the  constitutionality of  the  institution  of  a
complaint for violation of the law was repeatedly addressed  in
the  post-November [1989] amendments to the Criminal  Procedure
Code,  and was also viewed critically in the theory of criminal
procedural  law  (see  e.g.  P.  Šámal,  Remedial  Measures  in
Criminal Proceedings: the Complain for Violation of the Law. Re-
opening of Proceedings. Prague 1999, pp. 160-161).


VII/b

      The   constitutional  principles  forming  one   of   the
components  of  the fundamental right to a fair trial,  include
the  principle  of “equal weapons”, or the principle  of  equal
opportunity  (or  the  principle  of  equality  of  parties  to
proceedings)  under  Art. 37 para. 3 of the  Charter,  Art.  96
para. 1 of the Constitution a Art. 6 para. 1 of the Convention.
This   principle  becomes  especially  important  in   criminal
proceedings, where, in relation to the defendant, it is closely
tied to the right to defense counsel, with the right to present
factual  and legal arguments, and with the right to respond  to
all evidence admitted. The principle of equality of the parties
to  criminal proceedings, apart from the function of protecting
the position of the defendant, who is entitled to a presumption
of  innocence,  is  also  part of  the  overall  concept  of  a
democratic  criminal trial, characterized by the  principle  of
adversarial proceedings.

     The  principle of “equal weapons” in criminal  proceedings
is  reflected in all stages of criminal proceedings, as well as
in  all  their  aspects.  Thus, it is  applied  both  in  trial
proceedings  and in review proceedings, in the  full  scope  of
both, but particularly in evidentiary proceedings (in proposing
evidence,  the  right to respond to admitted evidence,  and  so
on).  The  principle of “equal weapons” in criminal proceedings
is not absolute; generally the maxim applies that the state, in
any  context,  is  not  entitled  to  more  rights  or  a  more
advantageous procedural position than the defendant  [cf.  e.g.
the  time  limitation on the state attorney’s authorization  to
file a petition to re-open proceedings to the detriment of  the
defendant under § 279 let. a) of the Criminal Procedure Code].

     The  principle of “equal weapons” (Art. 6 para. 1  of  the
Convention) has been markedly reflected in the case law of  the
European  Court of Human Rights. In this connection it  can  be
characterized  particularly by the fact  that  in  the  Court’s
opinion its foundation is the idea of equality, wherefore it is
comparable  with  the  principle of the ban  on  discrimination
under  Art.  14 of the Convention. In addition, in  a  criminal
trial it serves to protect the defendant, who is entitled to  a
presumption of innocence until he is convicted, and is  closely
tied  to the adversarial nature of criminal proceedings.  (See,
in  particular, the cases Bönisch vs. Austria and  Brandstetter
vs.  Austria – doctrinal analysis is presented by, e.g., J.  A.
Frowein, W. Peukert, Europäische Menschenrechtskonvention. EMRK-
Kommentar. Kehl-Straßburg-Arlington 1996, p. 219 et seq., M. de
Salvia,  Compendium de la CEDH. Kehl-Straßburg-Arlington  1998,
p. 147 et seq.)

      Unlike  all  other  remedial  measures  provided  by  the
Criminal  Procedure Code, only the complaint for  violation  of
the  law  can  be used by only one party – the  state.  If  the
state,  as  a  party in criminal proceedings  (it  can  not  be
considered decisive, which state body is entitled to act in the
name of the state at which stage of criminal proceedings),  has
at  its  disposal,  compared to the  defendant,  an  additional
procedural   means,  which  establishes  the   possibility   of
obtaining  annulment of a final decision in a criminal  matter,
one  can  not but conclude from this that there is infringement
of  the  defendant’s  right to “equal weapons”  in  a  criminal
trial,  arising  from Art. 37 para. 3 of the Charter,  Art.  96
para.  1  of  the  Constitution and  Art.  6  para.  1  of  the
Convention.

     If  the right to file a complaint for violation of the law
to the benefit of the defendant is removed from this statement,
on the grounds of it being seen as a procedural expression of a
kind of “charity,” which is not capable of interfering with the
defendant’s rights in the area of substantive law,  the  charge
of   unconstitutionality  narrows  to  the  institution  of   a
complaint  for  violation of the law to the  detriment  of  the
defendant.

     In  the  period  before the Criminal  Procedure  Code  no.
87/1950 Coll. was passed, the Criminal Procedure Code in effect
(Act   No.   119/1873  Imperial  Laws,  as  amended  by   later
regulations) contained, in the group of extraordinary  remedial
measures, the complaint for a breach of law aimed at preserving
justice,  which  “in  the  interests  of  uniformity  of   law”
permitted  “the general prosecutor the right, by  his  official
powers or by order of the Minister of Justice to appeal  for  a
decision  of  the Supreme Court on the question of whether  the
law was violated by a particular 1. verdict, 2. decision or  3.
procedure of a criminal court (or state attorney’s office)” (J.
Kallab,  Criminal  Proceedings Textbook. Brno  1930,  p.  207).
However,  as a rule the Supreme Court’s decision had no  effect
on  the  defendant,  it was only a matter of “an  authoritative
resolution  of a disputed, perhaps legal question, without  the
courts being bound to take the opinion of the Supreme Court  as
their  own” (ibid., p. 208). The legal regime of the  complaint
for  a breach of law aimed at preserving justice  (§ 292 of Act
No.  119/1873  Imperial Laws, as amended by later  regulations)
foresaw  the  consequences  for the defendant,  reformation  or
cassation,  only  exceptionally, only to  the  benefit  of  the
defendant   in   the  event  of  his  being   sentenced.   This
recapitulation indicates that the legal regime contained in the
pre-February  [1948] criminal procedure code in proceedings  on
the  complaint for a breach of law aimed at preserving  justice
filed to the detriment of the defendant, enabled the acceptance
of  only an academic verdict for purposes of unifying case  law
in   resolving  a  given  legal  issue,  but  did  not   permit
detrimental  or  reformative effects for  the  defendant.  This
concept of the complaint for a breach of law is still in effect
in Austria at the present time.

     In  a  basic international comparison, no parallel can  be
found  for  the institute of a complaint for violation  of  the
law,  which is available to only one of the parties, the state,
and  can  be directed to the detriment of the defendant against
decisions   by   courts  and  bodies  active   in   preliminary
proceedings which have gone into effect.

     Merely as illustration, in this connection we can mention,
for  example,  the  German legal regime. The remedial  measures
established  in the current criminal procedure  code  (Act  No.
253/1877  RGBl., as amended by later regulations)  include  the
institutions  of complaints, appeals, revisions and  re-opening
of proceedings, which fully meet the requirements arising under
Art.  6  of  the Convention, i.e., including the  principle  of
“equal weapons”.

     The  relevance  of  the charge of failure  to  accept  the
principle  of  “equal weapons” appears even  more  pressing  in
cases  of possible application of a complaint for violation  of
the law to the detriment of the defendant against decisions  of
bodies   active  in  preliminary  proceedings  (e.g.,   against
decisions  by  the  investigator  or  state  attorney  to  stop
criminal  prosecution).  The  leading  principles  of  criminal
proceedings in a state governed by the rule of law, ever  since
the age of enlightenment, include the accusation principle (§ 2
para.  8  of  the Criminal Procedure Code), which overcame  and
replaced  the  inquisition principle in criminal trials.  Under
the   accusation   principle,  institutional   division   among
different  procedural entities of the procedural  functions  of
preparing  and filing an accusation, and deciding on guilt  and
punishment  is  an  essential part of the  democratic  criminal
trial,  respecting  the value of independent judicial  decision
making.  From a constitutional viewpoint this principle  arises
from  Art. 80 para. 1, Art. 90 of the Constitution and Art.  40
para.  1 of the Charter. If, in proceedings on a complaint  for
violation  of the law filed by the Minister of Justice  to  the
detriment of the defendant against a decision, which  has  gone
into  effect, by an investigator or state attorney on  stopping
criminal  procedure, the Supreme Court,  under  §  272  of  the
Criminal Procedure Code is authorized to annul the decision and
order  the bodies active in preliminary proceedings to continue
the  criminal  prosecution,  this  authorization  can  not   be
characterized  otherwise than as unconstitutional  interference
with  the  precepts  related to the  accusation  principles  in
criminal  proceedings.  Under § 270 para.  4  of  the  Criminal
Procedure  Code, the body to which the matter was  assigned  is
bound  by the legal opinion stated in the matter by the Supreme
Court,  and is required to take the procedural steps which  the
Supreme  Court  ordered. Thus, the Supreme Court  significantly
influences  the facts on which the filing of an  indictment  is
based,  and thus also the accusation principle. In this  regard
we  must  also point to the consistent growth in the number  of
complaints  filed and their ratio to decisions  in  preliminary
proceedings.

     If  the  position  statement of the  Minister  of  Justice
points  to  the  positive  effects  of  the  institution  of  a
complaint  for  violation of the law to the  detriment  of  the
defendant  in  the  context of balancing  with  the  period  of
totalitarian despotism, the following must be stated:

     The amendment of the Criminal Procedure Code, no. 265/2001
Coll. introduces the institution of appeal on a point of law to
the detriment of the defendant, which can be used to contest  a
court  decision in the matter which has gone into  effect,  and
which  is entrusted to the supreme state attorney [§ 265a para.
1,  §  265d para. 1 let. a) of the Criminal Procedure Code,  as
amended by Act No. 265/2001 Coll.]. In relation to decisions by
lower  state  attorneys  on stopping  criminal  prosecution  or
assigning  a matter which have gone into effect, the  amendment
introduces the authority of the supreme state attorney to annul
these  decisions  due to their inconsistency with  the  law  (§
173a, § 174a of the Criminal Procedure Code, as amended by  Act
No.  265/2001  Coll.).  As  of the day  the  amendment  to  the
Criminal  Procedure Code implemented by Act No. 265/2001  Coll.
went  into  effect, i.e. as of 1 January 2002, this  creates  a
legal  mechanism  which permits the state to effectively  apply
the  public  interest  in  achieving the  purpose  of  criminal
proceedings, but at the same time meet the requirements arising
for a fair trial from Art. 37 para. 3 of the Charter and Art. 6
para.  1  of the Convention, i.e. in particular the requirement
of  equality of the parties to the proceedings (the requirement
of  “equal weapons”). Postponing the derogative effect  of  the
judgment  of the Constitutional Court in the present matter  to
31  December  2001 thus does not leave any gaps  in  the  legal
regime  in  terms of the analyzed purpose of the  extraordinary
remedial measure.

      In   this  context  it  must  be  pointed  out  that  the
Constitutional  Court extensively considered  the  question  of
equality of parties to criminal proceedings and grounds for its
possible restriction to the detriment of the defendant  in  the
matter   file  no.  Pl.  ÚS  4/94.  In  connection   with   the
constitutionality of the institution of anonymous witnesses  in
criminal proceedings, it stated: “The purpose of the right to a
public hearing, in connection with the right to respond to  all
evidence  presented, is to provide the defendant in a  criminal
trial the opportunity to examine evidence against him, in  full
view  of  the  public. With witness testimony, this examination
has  two  components:  the  first is  verifying  the  witness’s
reliability;  the second is verifying a witness’s  reliability.
The  institution of anonymous witnesses limits the  defendant’s
opportunity  to  verify the truthfulness of  witness  testimony
directed  against him, because it rules out the opportunity  to
speak concerning the person of the witness and his reliability.
Thus,   it  limits  his  right  to  defend  himself,   and   is
inconsistent with the principle of adversarial proceedings  and
the  principle  of  equality  of participants.  Restriction  of
fundamental  rights and freedoms, even if their  constitutional
regulation  does  not  foresee it, can occur  in  the  even  of
conflict  between  them.  In this  regard,  the  maxim  that  a
fundamental  right  or freedom can be restricted  only  in  the
interest   of   another  fundamental  right   or   freedom   is
fundamental.  Mutual  balancing  of  fundamental   rights   and
freedoms  standing  in  conflict  is  based  on  the  following
criteria:  The first is the criterion of suitability,  i.e.  an
answer to the question of whether the institution restricting a
certain  fundamental  right makes it possible  to  achieve  the
pursued  aim  (protection  of another fundamental  right).  The
second  criterion for balancing fundamental rights and freedoms
is  the criterion of necessity, which consists of comparing the
legislative  means  which  restricts  a  fundamental  right  or
freedom  with  other measures which permit achieving  the  same
aim, but not affecting the fundamental rights and freedoms.

     The  third criterion is comparing the gravity of  the  two
conflicting fundamental rights.”

     In  terms  of  the indicated precepts of the principle  of
reasonableness, the institution of complaint for  violation  of
the law to the detriment of the defendant, breaking through the
fundamental  rights, arising from the constitutional  principle
of equality, will not stand. Although its aim may be protecting
the public interest in just punishment of the perpetrator of  a
crime,  and thus the principle of the supremacy of the law,  it
does  not  meet  the condition of necessity, i.e.  a  condition
which   consists  of  comparing  the  legislative  means  which
restricts  a  fundamental right or freedom with other  measures
which  permit  achieving the same aim, but  not  affecting  the
fundamental  rights  and  freedoms.  This  fact  comes  to  the
foreground especially in connection with the introduction of an
extraordinary remedial measure – appeal on a point of law –  in
criminal proceedings by the amendment to the Criminal Procedure
Code, no. 265/2001 Coll.

     In connection with the declared purpose of the exceptional
use  of the institution of a complaint for violation of the law
to  the  detriment of the defendant, we must also point to  the
statistically proven rise in the ratio of complaints  filed  to
the detriment of the defendants.

     If  annulment  of  §  272 of the Criminal  Procedure  Code
impacts  not  only  on cases of violation of  the  law  to  the
benefit of the defendant, but also on all other cases where the
law was not violated to the detriment of the defendant, but was
violated concerning other persons to whose benefit or detriment
the  complaint was filed, and the court finds that the law  was
violated to the detriment or benefit of such person other  than
the  defendant (e.g., a participating person, an expert witness
in   connection  with  an  expert’s  fee,  defense  counsel  in
connection with his fee and expenses, and so on), then, in  the
opinion of the Minister of Justice, these cases would no longer
be  resolvable  by a complaint for violation of  the  law,  nor
could they be resolved by an ???imprecise appeal on a point  of
law. However, this circumstance can not change anything on  the
justifiability of annulling the institution of a complaint  for
violation  of  the  law to the detriment of the  defendant.  No
legal order is, or can be built ad infinitum, from the point of
view of a set of procedural means for protection of rights,  or
from the point of view of a set of organizing levels of review.
Every  legal order generates, and necessarily must generate,  a
certain number of errors. The purpose of review proceedings can
realistically  be to approximately minimize these  errors,  and
not  to  completely eliminate them. Therefore,  the  system  of
review levels is the result of balancing, on the one hand,  the
effort  to  achieve the supremacy of the law, and on the  other
hand  the effectiveness of decision making and legal certainty.
In  terms of this criterion, introducing extraordinary remedial
measures,  in  other words extending proceedings  and  breaking
through the principle of inalterability of decisions which have
gone into effect is appropriate only in the case of exceptional
reasons.  The reasons which the Minister of Justice  states  in
his position statement in this regard can not be considered  as
such.

     Based  on all the cited reasons, the Constitutional  Court
concluded  that § 272 of Act No. 141/1961 Coll.,  the  Criminal
Procedure   Code,   as   amended  by  later   regulations,   is
inconsistent  with Art. 37 para. 3 of the Charter  and  Art.  6
para.  1  of the Convention, with regard to the possibility  it
establishes  of  annulling, to the detriment of the  defendant,
decisions  in  preliminary proceedings  which  have  gone  into
effect,  and  also  with Art. 80 para. 1 and  Art.  90  of  the
Constitution and with Art. 40 para. 1 of the Charter, wherefore
the plenum of the Constitutional Court decided to annul it.  In
this   context,  the  Constitutional  Court  points  out   that
annulling § 272 of the Criminal Procedure Code annuls only  the
cassation  and  appellate authority of  the  Supreme  Court  in
proceedings  on a complaint for violation of the law  filed  to
the  detriment  of  the  defendant,  but  does  not  annul  the
proceedings as such, i.e. it does not annul the possibility  of
issuing  an academic verdict in a given matter for the  purpose
of  unifying case law pro futuro (§ 268 para. 2 of the Criminal
Procedure Code).

VII/c

      During  the  course  of  these  proceedings  before   the
Constitutional Court, § 272 of the Criminal Procedure Code  was
partly amended 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. Under no. I of  point  199
"In  §  272 para. 1 and 2 the words ‘within three months  after
filing’  are  replaced by the words ‘within  six  months  after
filing’.”  This legal regime is valid as of 31 July 2001,  i.e.
the  day of distribution of part 102/2001 of the Collection  of
Laws,  in which the Act was published; under Art. XIV  it  goes
into effect on 1 January 2002.

     Under § 67 para. 1 of the Act on the Constitutional Court,
grounds  to stop proceedings exist if a statute, another  legal
regulation, or their individual provisions, which are  proposed
to  be  annulled, cease to be valid before the  termination  of
proceedings before the Constitutional Court. The Constitutional
Court  has  addressed  the interpretation  of  these  statutory
grounds  for stopping proceedings in decision file no.  Pl.  ÚS
20/99,  of 18 April 2001. It stated that if an amendment  to  a
statute  annuls  a  particular  provision,  and  simultaneously
passes it, in the same wording, but in a different place in the
scheme  of  the statute, this is a case of a new expression  of
will  by the legislature, so the provision originally contested
by  the  petitioner  ceased to be valid before  termination  of
proceedings before the Constitutional Court. In this situation,
the  Constitutional Court concluded that grounds for permitting
a  change  to  the  petition under §  63  of  the  Act  on  the
Constitutional Court in connection with § 95 para. 1 and  2  of
the Civil Procedure Code do not exist.

     However, the present matter involves a different case,  to
which  §  67  para. 1 of Act No. 182/1993 Coll., as amended  by
later  regulations,  does  not  apply.  The  amendment  to  the
Criminal  Procedure Code implemented by Act No. 265/2001  Coll.
amended  only part of § 272 of the Criminal Procedure Code  (by
extending the deadline for the Supreme Court’s decision  making
on a complaint for violation of the law to the detriment of the
defendant).  This  part is not decisive from the  viewpoint  of
grounds  for evaluating the constitutionality of the  entire  §
272  of the Criminal Procedure Code, concerning the institution
of complaint for violation of the law as such.

VII/d

     Under § 276 fourth sentence of the Criminal Procedure Code
“securing  a defendant by issuing an arrest warrant and  taking
him into custody is possible only if the Minister of Justice so
proposes in a complaint for violation of the law filed  to  the
detriment  of the defendant and if the Supreme Court  considers
it  necessary  due  to the seriousness of  the  crime  and  the
urgency of grounds for custody”..

     This  statutory provision was not applied by  the  Supreme
Court  in  the present matter, and so conditions did not  exist
for   proceeding  under  §  78  para.  2  of  the  Act  on  the
Constitutional Court.

     In  the  settled opinion of the Constitutional Court,  the
Court is bound in its decision making by the scope of the filed
petition,  and may not step outside its limits (ultra  petitum)
in its decision (see e.g. the judgment in the matter under file
no. Pl. ÚS 8/95).

     As  a  result  of the annulment of § 272 of  the  Criminal
Procedure  Code  (that  is, as a result  of  annulment  of  the
cassation,  or  appellate, authority of the  Supreme  Court  in
proceedings  on  a complaint for violation of the  law  to  the
detriment  of  the  defendant), § 276 fourth  sentence  of  the
Criminal  Procedure Code becomes obsolete. By  derogation  from
the  elements contained in § 272 of the Criminal Procedure Code
the  provision  of  §  276  fourth  sentence  of  the  Criminal
Procedure  Code loses reasonable meaning: If the cassation,  or
appellate, authority of the Supreme Court in proceedings  on  a
complaint  for  violation of the law to the  detriment  of  the
defendant  is annulled, and if the possibility of issuing  only
an  academic verdict without a specific impact on the defendant
remains,  then leaving the Supreme Court’s authority to  decide
in such proceedings on the arrest or taking into custody of the
defendant  can not be considered otherwise than as contradictio
in  adiecto. In other words: In a situation where, as a  result
of  the  annulment  of a particular statutory  provision  by  a
derogative   judgment  of  the  Constitutional  Court   another
provision,  different  in content from  the  first  one,  loses
reasonable  meaning,  i.e.  loses  the  justification  of   its
normative  existence,  this  is  grounds  for  annulling   this
statutory  provision as well, even without this  being  a  step
ultra  petitum. That provision ceases to be valid on the  basis
of the principle of cessante ratione legis cessat lex ipsa; the
derogation made by the Constitutional Court is thus only of  an
evidentiary, technical nature.

     Due  to  the  foregoing, the plenum of the  Constitutional
Court,  in  connection  with the annulment  of  §  272  of  the
Criminal Procedure Code, also annulled § 276 fourth sentence of
the Criminal Procedure Code.

     For  the reasons set forth above, the Constitutional Court
postponed  the  effect  of  the derogative  judgment,  also  in
relation  to  §  276 fourth sentence of the Criminal  Procedure
Code, to 31 December 2001.

VII/e

     Beyond the framework of rationis decidendi, only as obiter
dictum,  the  Constitutional Court considers  it  necessary  to
speak to the legal consequences of this derogative judgment.

     The first consequence is the impact of § 71 para. 1 of the
Act on the Constitutional Court on the present matter.

     If, on the basis of a legal regulation which was annulled,
a  court  issued a verdict in criminal proceedings  which  went
into  effect but has not yet been executed, annulment  of  that
legal  regulation  is,  under  the cited  statutory  provision,
grounds  for  re-opening proceedings under the Act on  Criminal
Court  Proceedings. However, the adjudicated  matter  does  not
involve  such  grounds. Violation of the  principle  of  “equal
weapons” in the legal regulation of active standing to file  an
extraordinary   remedial   measure   does   not   concern   the
constitutionality,  or lawfulness of actual proceedings  before
the  Supreme  Court, or proceedings connected  to  them.  Thus,
annulment  of  § 272 of the Criminal Procedure  Code  does  not
establish grounds for re-opening proceedings under § 71 para. 1
of Act No. 182/1993 Coll., as amended by later regulations.

     The second consequence is the question of intertemporality
of a derogative judgment, i.e. the question of whether possible
derogation  from  §  272 of the Criminal  Procedure  Code  also
applies  to  cases  in which the Minister of  Justice  filed  a
complaint  for  violation of the law to the  detriment  of  the
defendant, but, as of the day the annulling judgment went  into
effect,  the  Supreme  Court had not  decided  on  it.  As  the
Constitutional Court is not authorized, in connection with  its
jurisdiction to annul statutes and other legal regulations,  or
their  individual provisions, or in a positive manner  regulate
the  arising intertemporal consequences, in this regard we must
refer   to   general  legal  principles.   In   the   area   of
intertemporality  in civil and criminal trials,  the  principle
applies  that,  unless  the law provides otherwise,  the  court
proceeds  according  to  the procedural regulations  valid  and
effective  at  the time of decision making. In the  adjudicated
matter,  annulling § 272 of the Criminal Procedure Code  annuls
only the cassation and appellate authority of the Supreme Court
in proceedings on a complaint for violation of the law filed to
the  detriment  of  the  defendant,  but  does  not  annul  the
proceedings as such, i.e. it does not annul the possibility  of
issuing  an academic verdict in a given matter for the  purpose
of  unifying case law pro futuro (§ 268 para. 2 of the Criminal
Procedure  Code).  This  indicates that,  in  cases  where  the
Minister of Justice filed a complaint for violation of the  law
to  the  detriment  of the defendant, but as  of  the  day  the
annulling judgment went into effect, the Supreme Court had  not
decided   on   it,  after  the  derogative  decision   of   the
Constitutional  Court goes into effect, only a decision  by  an
academic verdict can be made.

Instruction: Decisions of the Constitutional Court can  not  be
appealed.

Brno, 31 October 2001


Pl. ÚS 15/01

Dissenting Opinion

of  judge JUDr. V. Š. in the plenary matter of the petition  of
panel  III  of  the Constitutional Court to  annul  §  272  the
Criminal Procedure Code of Act No. 141/1961 Coll.


     In  this  dissenting opinion I express my disagreement  in
this  matter with the reasoning of the judgment of  31  October
2001, insofar as

a)   the  plenum  of  the  Constitutional  Court  supports  its
conclusions with a “statistically proven rise in the  ratio  of
complaints  filed  to  the detriment of  the  defendants  (more
precisely,  the  sentenced  party)  in  absolute  and  relative
terms”,

b)   it  derives  the  unconstitutionality  of  the  provisions
annulled by the judgment, § 272 and § 276 third sentence of Act
No. 141/1961 Coll., on Criminal Court Proceedings (the Criminal
Procedure  Code), as amended by later regulations (by reference
to  Art.  37  para. 1 of the Charter of Fundamental Rights  and
Freedoms, and Art. 96 para. 1 of the Constitution of the CR and
Art. 6 para. 1 of the Convention for Protection of Human Rights
and  Fundamental  Freedoms) also from the principle  of  “equal
weapons”.

re  a) One could speak of a statistically proven rise (increase
in   the  number  of  complaints  filed  to  the  detriment  of
defendants) only if evidence of it were admitted in  a  hearing
held  by  the plenum of the Constitutional Court,  and  if  the
claimed fact followed from that evidence.

     Under  long settled procedural principles, for one  thing,
evidence is admitted (by the court) in hearings (§ 48  para.  1
al.   1  of  Act  No.  182/1993  Coll.,  as  amended  by  later
regulations, the “Act”), for another, although various means by
which the state of the matter can be determined (proven) can be
considered evidence (§ 49 para. 1 of the Act), but nevertheless
admission  of  evidence must always be conducted  so  that  the
parties to the proceedings can exercise their procedural rights
toward the evidence presented in proceedings (§ 32 of the  Act,
§ 123 of the Civil Procedure Code).

     However,  the plenum of the Constitutional Court  did  not
admit evidence in the adjudicated matter; if the chairwoman  of
the  Supreme Court of the CR, in response to the request of the
Constitutional  Court  (the  reporting  judge),  submitted  the
requested  statistical data in two filings (of 31  August  2001
and   5   September  2001),  “for  purposes  of   the   present
proceedings”,  this  was – in terms of a hearing  held  by  the
plenum   of   the  Constitutional  Court  –  only  a  foregoing
procedural  act  by  the reporting judge,  whereby  he  secured
documentary  evidence (for the hearing) (§ 42 para.  3  of  the
Act), but was not evidence presented by a document in a hearing
held  by  the plenum of the Constitutional Court (§ 48 para.  1
al.  1,  2  of  the  Act, § 129 of the Civil  Procedure  Code),
because the report of the reporting judge, even if it indicated
the  evidentiary  source, can not be considered  evidence,  let
alone admitted evidence.

      Moreover,  in  the  reasoning  of  the  judgment  of  the
Constitutional  Court the cited statistical  data,  in  and  of
themselves, do not demonstrate anything either in “absolute  or
relative   terms”;   they   can  –  without   closer   analysis
(evaluation) – be interpreted both for the arbitrariness of the
decision   making   public  bodies  and  for   the   increasing
shortcomings in the decision making of lower bodies  active  in
criminal   matters,  and  for  the  arising  need  either   for
unification  of  the  decision making practice,  especially  of
general  courts  (§  28,  § 29 of Act No.  335/1991  Coll.,  as
amended by later regulations) or redress of unlawfulness.

re  b)  The  reasons  for the judgment are based,  among  other
things, on the so-called principle of equal weapons.

     However,  neither  the Charter of Fundamental  Rights  and
Freedoms  (Art.  37  para.  3,  or  Art.  96  para.  1  of  the
Constitution of the CR) or the Convention for the Protection of
Human  Rights  and  Fundamental  Freedoms  (Art.  6  para.   1)
recognize such a principle, no matter how it may be used in the
foreign professional literature, and no matter how much it  has
been domesticated in the Czech professional literature.

     If  this  principle means a fundamental idea or  principle
(for  this,  cf., e.g., Sborník jazyka èeského),  then  in  the
intended  meaning and in this connection, the issue is equality
of  parties  to the proceedings and not a choice of  procedural
means  which they use to apply (implement) their rights through
“weapons” in proceedings, usually before a court. The so-called
“equal  weapons”  are thus subordinate to the equality  of  the
parties  to  proceedings (it is included in it)  and  for  this
alone  can  not be, as a derivative of it, considered  a  basic
idea  or  a principle which, moreover, in this case, is  to  be
“reflected in all stages of criminal proceedings”.

     If  a  body  active in criminal proceedings  unjustifiably
denies  the  defendant (the accused) the right  to  respond  to
admitted  evidence,  or  if  it  restricts  him  in  submitting
evidence  and  similarly (see paragraph two  of  VII/b  in  the
reasoning  of  the judgment), it does not thereby violate  “the
principle of equal weapons”, but quite clearly violates  either
the  principle  of  impartial proceedings,  or,  generally  and
primarily, in the event of such error to the benefit of another
party  to the proceedings (in this case to the benefit  of  the
state  attorney’s  office), the principle of  equality  of  the
parties  to proceedings (Art. 96 para. 1 of constitutional  Act
No. 1/1993 Coll., Art. 37 para. 3 of the Charter of Fundamental
Rights and Freedoms).

     The  term  “equal  weapons” has  its  origins  in  various
historical  and  cultural conditions of Anglo-Saxon  (American)
law  and  its  development, and, as such, in  our  context,  in
determination  of  law  (protection of  constitutionality),  is
unsuitable  as  a quasi-doctrinal tough concept  and  moreover,
elevating  it  to  a  principle and  substituting  it  for  the
principle  of equality of parties to proceedings is unsuitable;
therefore,  I  am  convinced  that  reference  to  it  is   not
appropriate in the decision making grounds of court  decisions,
including   judgments  (their  reasoning)   of   the   of   the
Constitutional Court.

Brno, 13 November 2001