Up-12/93

Reference no.:
Up-12/93
Objavljeno:
OdlUS V, 181 | 04.07.1996
ECLI:
ECLI:SI:USRS:1996:Up.12.93
Act:
Constitutional Complaints against the Resolution of the Supreme Court No. II Kr 4/93-4 from February 26, 1993 and against the Resolution of the same court No. II Kr 6/93-3 from March 25, 1993
Operative provisions:
The constitutional complaints against the resolution of the Supreme Court and the resolution of the same court are dismissed.
Abstract:
1. Ordering of detention due to hazard of reiteration is not contrary to the presumption of innocence from Article 27 of the Constitution. Presumption of innocence is a procedural means, which does not mean that detention of a defendant is not possible.

2. Since a mere fact, that the challenged resolutions on extending of detention were issued during the investigation, shows that the committal of criminal offenses and guilt thereof have not yet been yet proven to the complainant, the presumption of innocence from Article 27 of the Constitution was thus not violated by the court not expressly stating that there existed only probable cause of criminal offenses' committal.

3. An appeal against a resolution by which the Supreme Court extends detention during the investigation was already excluded by the legislator. The Constitution confers upon the Supreme Court, as the highest court of general jurisdiction in the country, the authority to decide on detention after three months expired, before the indictment is issued. Prior to the Supreme Court decision extending detention, a competent court at least twice evaluated the reasons for detention. The detainee had a possibility to appeal against both decisions. The detainee had also the right to make a motion cancelling his detention anytime. Therefore, the Supreme Court resolution on extending detention did not violate the complainant's right to legal remedies (Article 25 of the Constitution).

4. Considering the complainant's unemployment as one of the circumstances in deciding upon detention due to hazard of reiteration, the court did not violate the provisions on equality before the law (Article 14 of the Constitution) and equality in the protection of rights (Article 22 of the Constitution).
Password:
Detention due to hazard of reiteration.
Constitutional Court's restraints in deciding a constitutional complaint.
Presumption of innocence.
Principle of equality.
Equality in the protection of rights.
Concurring opinion of a Constitutional Court judge.
Legal basis:
Constitution, Articles 14, 20, 22, 25, 26, 27
Criminal Procedure Act (ZKP), Articles 171, 191, 192, 197, 194 Constitutional Court Act (ZUstS), Para. 1 of Article 59
Note:
In the reasoning of the decision, the Constitutional Court refers to its case No. U-I-18/93 from April 11, 1996.

Attached to the case at hand, pursuant to the Court resolution from June 15, 1995, was case U-I-17/93 from the reason of joint discussion and consideration.
Document in PDF:
The full text:
Up-12/93
July 4, 1996
 
D E C I S I O N
 
At the session held on July 4, 1996 in the proceedings deciding upon constitutional complaints brought by H.G. from L., the Constitutional Court
 
d e c i d e d :
 
The constitutional complaints against the resolution of the Supreme Court No. II Kr 4/93-4 from February 26, 1993 and the resolution of the same court No. II Kr 6/93-3 are dismissed.
 
R e a s o n i n g :
 
A.
 
1. The complainant in his constitutional complaint, brought on March 4, 1993, challenges the resolution of the Supreme Court No. II Kr 4/93-4 from February 26, 1993, and in the constitutional complaint, brought on April 7, 1993, the resolution of the same court No. II Kr 6/93-3 from March 25, 1993. He alleged that his detention was extended with the challenged resolutions due to the reason from Item 3 of Para. 2 of Article 191 of the Criminal Procedure Act (Official Gazette of the SFRY, No. 4/77, 14/85, 26/86, 57/89 and 3/90; hereinafter: ZKP-77). In his first constitutional complaint he proposes to the Court to abrogate the challenged resolution, to "take its position as to the implementation and use of Item 3 of Subpara. 2 of Article 191 of the ZKP, SFRY - and to proceed in accordance with its constitutional powers". Concerning the other constitutional complaint, he proposes the review of constitutionality and legality of the challenged resolution.
 
2. The complainant believes detention to be an extraordinary measure and the provisions of the ZKP-77 to be even more restricted by the provision of Article 20 of the Constitution.
 
Considering unemployment as an aggravating circumstance in ordering detention is allegedly inconsistent with Articles 14 and 22 of the Constitution. Contrary to the presumption of innocence from Article 27 of the Constitution is the use of word context "rather extensive criminal activity" and statement that "due to a great number of criminal offenses, intensive co- ordination in committing criminal offenses, and their weight (. . .), detention is, pursuant to the opinion of the Supreme Court of the RS, inevitably necessary for undisturbed course of criminal proceedings. It is to be feared that defendants while at liberty would continue their criminal activity and thus come to further money in an easy manner." The complainant also said in his second complaint that there is allegedly no trace of a criminal offense, for which five or more years in prison could be pronounced, what is prescribed as a condition for extending detention according to Para. 3 of Article 20 of the Constitution. The court allegedly did not ground its resolution in any substantial reasons, what was prescribed as a condition for extending detention in Para. 2 of Article 197 of the ZKP-77. The resolution, challenged by the defendant in his second constitutional complaint, is allegedly inconsistent also with the right to legal remedies from Article 25 of the Constitution.
 
3. The Supreme Court in both challenged decisions took a position that an extensive number of criminal offenses, intensive co-ordination in committing them, their weight and the fact that the complainant is without a regular job and does not have money to make living, substantiate a threat that the defendant while at liberty is prone to continue with his criminal activity.
 
4. In its reply, the Supreme Court stated that the detention due to hazard of reiteration is surely not ordered for protecting the course of criminal proceedings, but from the reason to protect the safety of people (Article 20 of the Constitution).
 
Safety of people is allegedly not endangered only when their lives are threatened, but when their health and property are threatened, too. The judicial practice has so far established the criteria for the existence of hazard of reiteration, including: previous conviction, especially in the case of a special recidivist; if a criminal offense was committed while a defendant was engaged in a professional activity; with the property delicta if a defendant is unemployed or resourceless, unable to make his living; with illegal trade of drugs if some larger quantities of drugs are seized, what could indicate that the drugs were meant to be sold on market.
 
5. According to the opinion of the Supreme Court, a reason for detention exists not only in cases of prior conviction set by a final judgement, but also in cases where a defendant is for the first time criminally prosecuted because of a series of criminal offenses committed in a short period of time. The Supreme Court believes it is life-depriving and contrary to the provision of Item 3 of Para. 2 of Article 201 of the Criminal Procedure Act (Official Gazette of the RS, No. 63/94 - hereinafter: ZKP) to maintain that in the case of such a defendant the reason for detention due to hazard of reiteration does not exist. The reason for detention due to hazard of reiteration does not allegedly mean a violation of presumption of innocence, since it is supposedly not grounded in reproaching the defendant as a perpetrator of a criminal offense. The basis for ordering detention is allegedly the commencement of investigation grounded in probable cause concerning the criminal offense committed.
 
B.
 
6. During the Constitutional Court's deciding the complainant was no longer detained. At the trial held on June 23, 1993, the court cancelled his detention. The complainant stated that in the case of granting his constitutional complaint, he would assert the rights from Article 26 of the Constitution (right to compensation). Thereby, he proved his standing necessary for a decision on a constitutional complaint - irrespectively of whether he is likely to succeed with his tort action or not.
 
7. The Constitutional Court in deciding upon a constitutional complaint establishes possible violations of human rights or fundamental freedoms of a complainant with a challenged individual act (argument from Para. 1 of Article 160 of the Constitution). Correctness of application and implementation of a certain statutory provision is evaluated in deciding upon a constitutional complaint only insofar as incorrect application of the statute could also mean a violation of a human right or fundamental freedom. The question of constitutionality of Item 3 of Para. 2 of Article 191 of the ZKP-77 is subjected to a decision upon a complainant's initiative for review of the constitutionality of this provision. This initiative was decided by the Constitutional Court with its decision No. U-I-18/93 on April 11, 1996 (Official Gazette of the RS, No. 16/96).
 
8. Already in its decision No. U-I-18/93, the Constitutional Court rejected the reproach that ordering of detention due to hazard of reiteration would be inconsistent with Article 27 of the Constitution. Among other things, the Court believed that presumption of innocence is a procedural institute, which does not mean that a defendant could not be detained.
 
If this be true, then it would be impossible to commence criminal proceedings against anyone, since it would not be possible to take probable cause that a person committed a criminal offense into account.
 
9. This probable cause would logically contradict the presumption of innocence, if the latter is interpreted as belonged to static-substantive state instead of being a dynamic- procedural transfer of the burden of proof. The Court referred to three views of the presumption of innocence: that the burden of proof is upon a plaintiff (government) and not upon a defendant; that the government as a plaintiff takes the burden of persuasion upon itself; that the court is to release the defendant when in doubt. From the same reasons the Constitutional Court rejects the complainant's reproach that considering upon the future hazard of reiteration of criminal offenses is allegedly inconsistent with the presumption of innocence.
 
10. The provision of Article 27 of the Constitution was also not violated with the court's failing to write down explicitly that there was only probable cause of committing criminal offenses. A mere fact that the challenged resolutions on extending detention were passed during the investigation means that the committal of criminal offenses and guilt thereof have not yet been proved to the complainant.
 
11. Unfounded is also the complainant's assertion that the conditions necessary for extending detention beyond a three months period were not fulfilled. Paragraph 2 of Article 197 of the ZKP-77 prescribed two conditions to be fulfilled in order to extend detention after the three months period: 1) that the proceedings took place due to the criminal offense for which it could have been pronounced a sentence exceeding five years in prison, and 2) that there were substantial reasons for such extension. Yet for the criminal offense of fraud pursuant to Para. 3 of Article 171 the then valid Penal Code (Official Gazette of the SRS, No. 12/77, 19/84, 47/87, 33/89 and 5/90) prescribed a sentence of one to ten years in prison. The first condition was therefore fulfilled. The Supreme Court also persuasively enough found the existence of necessary reasons for extending detention.
 
12. The complainant's assertion of violating his right to legal remedies from Article 25 of the Constitution is as well unfounded. An appeal against a Supreme Court resolution was already excluded by the legislator (Para. 4 of Article 394 of the ZKP-77). The Constitution provides that the Supreme Court, as the highest court of general jurisdiction in the country, has the powers to decide upon detention after the expiration of its three months period, before an indictment is issued (Para. 2 and 3 of Article 20). Prior to the decision of the Supreme Court on extending detention, the competent court at least twice evaluated the existence of conditions for detention (Article 197 of the ZKP-77). The detainee had a possibility to appeal against both decisions (Para. 4 of Article 192 and Para. 2 of Article 197 of the ZKP-77). The detainee had also the right to bring a motion for cancelling detention anytime.
 
13. It is also not possible to agree with the complainant that considering of unemployment in deciding upon detention is contrary to Articles 14 and 22 of the Constitution. The Constitution itself, under certain conditions prescribed in Article 20, permits detention as an interference with personal freedom. It imposes upon the statute to define the reasons for ordering of detention. One of the reasons for detention, prescribed by the ZKP-77, was also hazard of reiteration. The Constitutional Court in its decision No. U-I-18/93 held that the danger of repeating of criminal offenses could be inferred from the circumstances of criminal offense's committal just like from the circumstances within the sphere of the defendant: his personal traits, environment where he is coming from, conditions in which he lives, etc. One of these circumstances can also be a circumstance that he is without necessary resources to make a living or unemployed. Thus, the court could have considered the fact, that the complainant was immediately before the commencement of criminal proceedings and throughout these proceedings without necessary resources to make a living, as one of the circumstances decisive for extending of detention.
 
However, from this circumstance alone the court could not have inferred the danger of repeating of criminal offenses.
 
C.
 
14. The Constitutional Court made this decision on the basis of Paragraph 1 of Article 59 of the Constitutional Court Act (Official Gazette of the RS, No. 15/94), composed of: dr. Tone Jerovšek, President, and dr. Peter Jambrek, mag. Matevž Krivic, mag. Janez Snoj, dr. Janez Šinkovec, dr. Lovro Šturm, Franc Testen, dr. Lojze Ude and dr. Boštjan M. Zupančič, the Judges. The decision was come to unanimously. Judge Krivic wrote a concurring opinion.
 
 
President of the Constitutional Court:
dr. Tone Jerovšek
Type of procedure:
constitutional complaint
Type of act:
other acts
Date of application:
04.04.1993
Date of decision:
04.07.1996
Type of decision adopted:
decision
Outcome of proceedings:
dismissal
Document:
AN01188