Right to an Effective Investigation: Is the Approach to Constitutional Rights by the Third Constitutional Court Changing Significantly?
Abstract
The article is concerned with the approach of the Czech Constitutional Court to the protective function of constitutional rights as compared to the traditional, defensive function. Whereas the defensive function of constitutional rights requires that the state does not interfere with and respects the constitutional rights of the individual, the protective function requires the state to act to promote and protect constitutional rights.
The problematic is examined primarily through the case-law of three foreign supreme courts that is the Federal Constitutional Court of the Federal Republic of Germany, the Supreme Court of the United States of America and the European Court of Human Rights. The protective function of constitutional right does not form a coherent doctrine but is based on implementation of the German concept of Schutzpflicht and the doctrine of positive obligations of the ECHR.
Above all, the inspiration by the case-law of the ECHR is very important which is demonstrated by the acceptance of the constitutional right of victims to effective investigation. This has caused a great change in the approach taken by the Constitutional Court to its ability to interfere with the work of the police and state prosecutors during the pre-trial phase of criminal investigations.