The Constitutional Court found No. 116 / 2013 Coll.
The Constitutional Court found of 17 April 2013 sp. zn.
Valid
The Constitutional Tribunal found
116
FIND
The Constitutional Court
On behalf of the Republic
On 17 April 2013, the Constitutional Court decided under sp. z. pl. ÚS 25 / 12 on 17 April 2013 in plenary composed of the President of the Court of Pavel Rychetský and the Judges Stanislav Balík, Vlasta Formánková, Military Güttler, Pavel Holländer, Vladimir Krórek, Dagmar Lastovecká, Jan Musil (Judge Rapporteur), Jiří Nykodmi, Miloslav Excellent and Michaela Židlická on the proposal of a group of senators, represented by Pavel Uhl, a lawyer, with the seat of Kořenské 15, 150 00 Praha 5, submitted by the Czech Republic to a decision on the reimbursement of costs in civil proceedings, and amending the Decree of the Ministry of Justice No 177 / 1996 Coll.
as follows:
Decree of the Ministry of Justice of 18 December 2000 No 484 / 2000 Coll., setting flat rates of remuneration for the representation of a participant by a lawyer or notary when deciding on the reimbursement of costs in civil proceedings and amending Decree of the Ministry of Justice No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (legal tariffs), as amended, as amended, as amended, the date of the publication of this finding in the Collection of Acts shall be deleted.
Reasons
Recital of the proposal
1. The Constitutional Court received a proposal from a group of eleven Senators (hereinafter referred to as the "appellant ') pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and under Article 64 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, on the annulment of the Order of the Ministry of Justice of 18 December 2000 No 484 / 2000 Coll., setting out the flat rates of remuneration for the representation of a participant by a lawyer or notary in decisions on the reimbursement of costs in civil proceedings and amending Decree No. 177 / 1996 Coll., or "the Law of the Court of Justice '.
2. An alternative petition is proposed to cancel at least § 3 (1) and § 12 of Decree No. 484 / 2000 Coll.
3. In the case pending by the Constitutional Court under the sp. zn. Pl. ÚS 18 / 13, the order of 17 April 2013 for the litispendence was rejected by the adversarial proposal of the complainant Dory Drdová, linked to her constitutional complaint of 30 January 2013, sp. zn. III. ÚS 420 / 13, seeking, pursuant to the provisions of § 64 (2) (d) in conjunction with the provisions of § 74 of Law No 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court '), the annulment of the provisions of § 3 (1) and § 12 of Decree No 384 / 2000 Coll. Complainant Dora Drdová has, within the meaning of Article 35 (2) of Law No 182 / 1993 Coll. in the proceedings under the sp. zn.
Arguments of the appellant
4. The appellant seeks annulment of the contested order for the following reasons:
(a) The contested decree allows for the reimbursement of the costs of legal representation (judgment) at an amount which imposes an unfair and disproportionate burden on the unsuccessful party of the dispute with regard to the subject matter of the dispute. In this way, the principle of prohibition of sanctions without law is violated.
(b) The contested injunction does not take into account the formal procedural variant of the termination of proceedings by setting flat rates of remuneration for the representation of the party by the lawyer, taking into account that formally simplified procedures constitute a de facto reduced difficulty in the conduct of the dispute; Thus, the rate of flat-rate remuneration exceeds an acceptable level of injustice. The principle of proportionality is violated.
(c) The contested affidavit does not take into account the factual professional and time-consuming nature of the conduct of the dispute, thus exceeding the acceptable level of injustice, taking into account possible alternatives to the necessity of the conduct of the dispute. The principle of proportionality is violated.
(d) The flat rate creates situations where the conduct of a particular dispute (typically the recovery of minor claims) is beneficial for the sole purpose of granting a judgment, thereby causing a greater number of such proceedings in the market environment, without giving rise to a substantive reason in the light of the subsidiary nature of the dispute. This effect is therefore unduly burdensome to the judiciary as a whole and creates disproportionate effects on the addressees of the legal standards. The contested standard fails its own rationality test.
(e) The implementation provided for by the Decree is based on incorrect assumptions (conjectures, fictions), thereby denying the reasonable function of conjecture in law.
(f) The contested affidavit creates an Accesoric Participating Inequality in relation to other types of proceedings and legal aid. The contested standard violates the general preconditions for the exercise of the right to a fair trial by this disproportion.
(g) The contested affidavit in the context of judicial practice is not in a position to create an environment of legal certainty.
(h) The contested standard is grossly out of line with the rule of law and the reasonable setting of rules for the conduct of disputes, as is generally seen in other countries with comparable legal cultures.
5. The appellant submits that the Adjudicature Order creates, in the lower bands of the dispute, situations in which the cost compensation granted is generally manifestly disproportionate to the nature and content of the dispute. In general, the law is governed by the principle of proportionality.
6. The appellant points out that everyone is entitled to have his case heard by a court, even if it is a dispute of little value. On the contrary, there is no reasonable reason to believe that everyone should be entitled if the plaintiff seeks to discuss a dispute with little value, so that, in the event of success, he is entitled to pay all the actual costs of conducting the dispute. The content of the right to a fair trial is not the absolute payment of all that the party had to bear with regard to its management. There is no basis for such consideration in the law in force, which implies, among other things, that there is absolutely no claim in many other proceedings to cover costs in the event of success. The proceedings may serve as an example of criminal, administrative and before the Constitutional Court.
7. According to the appellant, both admission and non-recognition of costs are permissible from the point of view of constitutional order, and where law in the form of a law or decree envisages a normal situation, the judicial authority must deal with such a procedure in an argument when deviating from it. It is therefore theoretically possible to postulate the situation to the contrary, where costs are in principle not accepted, whereas in exceptional situations they are granted after justification. On this level, for example, the award of costs in proceedings for a constitutional complaint brought before the Constitutional Court persists.
8. The legislature therefore has a relatively wide range of considerations for establishing a general rule, provided that it is possible to derogate from it, stating the reasons. However, the possibility of deviation itself does not give the possibility of establishing any general rule entirely. Where the legislator lays down general rules, such general rules cannot be contrary to the general principles of proportionality and the principle of non-imposition of sanctions without law.
9. According to the appellant, the rule of law cannot make the costs of the proceedings more advantageous to the extent that it is in principle advantageous to sue for the subject-matter of which the failure to fulfil is marginal in terms of general fairness. Justice should be subsidiary in nature and should only be considered when other instruments for dealing with infringements fail (agreement, compromise arrangement, attempt to make a payment agreement). If, on the contrary, in a particular area of disputes, justice is targeted to be the first to resolve a dispute, which is the case with the vast majority of debatable disputes, this indicates that an unacceptable incentive mechanism for dispute-management - the disproportionate costs granted - is in place.
10. The applicant considers the specific amount of the costs granted under the Decree to be disproportionate in relation to all the baguatelic disputes and also in relation to disputes in the band of over CZK 10,000, up to approximately CZK 200,000 (hereinafter referred to as "lower claims"), because only from an amount of CZK 200,000 above does the cost calculation reach below 20% of the recovered principal and it can be talked about its reasonable proportionality.
11. According to the appellant, the adjective granted should under no circumstances be disproportionate to the nature and value of the dispute. This means, inter alia, that the costs awarded must not be in gross proportion to the value of the dispute requested. The recognition of excessive costs is a dominant factor, among other things, as a penalty, which is an unacceptable situation in the rule of law. According to the appellant, the prohibition of the penalty nature of the costs awarded is based on two legal, independent grounds.
12. The general principle of law, which is not limited to criminal law, is that there must be no penalty (penalty) without law; in the field of contractual relations, the penalty may be justified by an arrangement which is not contrary to the law. The amount of the costs imposed under the injunction amounts to a de facto penalty, which is inadmissible. A decree which is not a law may not introduce a separate penalty regime that is much more than a legally imposed civil law penalty, which is a penalty interest for late payment. The law - civil court order - does not foresee that the adjudicating decree could create a system of sanctions.
13. According to the appellant, it is also considered problematic that the existing case-law converts to the fact that the applicant is eligible (actio nata) for any claim beyond due, regardless of whether the applicant attempted to negotiate with the debtor or otherwise resolve the dispute. According to Article 2 of Act No. 99 / 1963 Coll., the Civil Code, as amended, (hereinafter referred to as "o. s. '), the courts are essentially competent to resolve disputes, and the dispute is that of a dispute which has substantive and factual content and not the mere existence of delays. However, the courts decide on disputes, whether or not the subsidiarity requirement is met, and they do not often function as a dispute-making body, but as a body serving claims. This role, which has been largely taken over by the courts by formalisation of procedural procedures, should not, from the point of view of constitutional order, give rise to unnecessary, disproportionate and penalty effects in the field of adjudicating.
14. In the light of the above, the appellant therefore considers that a significant part of the normative impact of the Decree is unconstitutional, since it creates a generally disproportionate consequence which bursts operators in a manner which does not correspond to the purpose of civil proceedings and creates a de facto disproportionate penalty. This is in itself contrary to the principle of proportionality, which is a general requirement of the rule of law under Article 1 of the Constitution, a ban on sanctions without a law, and also contrary to the purpose of civil proceedings, as defined in Section 2 of the EC Treaty.
15. Since the adoption, according to the appellant, of the contested affidavit, the structure of the cases in question and the manner in which the judicial agenda was processed has changed. In the event of disputes over cash transactions, a simplified way of submitting proposals (electronic payment order) has developed in the meantime, which allows batch automatic processing of many proposals, which the automatic processing system of actions places as variables in the data sets of individual proposals, which, once they are marked electronically (or signed), is submitted by electronic means to the courts.
16. In the context of the execution of such a proposal of justice, he prefers the issue of a (electronic) payment order. If it fails, the court generally tries to reach a decision without a hearing in a procedural manner, seeking a judgment for recognition. Only if this is not possible will the court normally order a hearing at which, inter alia, a judgment may be given by default. In order to prevent this effectively, the defendant must defend himself in a qualified manner by submitting a resistance, then by expressing his opinion on an action where he does not recognise the claim, then by stating that he does not agree to the abandonment of the hearing. Moreover, they must dispute the plaintiff's assertion and argument. If these procedural steps cannot be carried out, an enforcement title shall be issued against him, the court of which did not decide the case and did not, as a rule, deal with legal issues.
17. In many cases, the defendant shall pay the claim during the proceedings and the court shall then terminate the proceedings, in which case the court shall also admit the costs to the applicant.
18. In the context of the increasing complexity of legal and economic relations, the difficult traceability of all claims and the diminishing co-operation of creditors with debtors, it is common that the formally defined disputes do not meet the parameters of the material dispute and are merely a judicial service operated by a reminder service, which is effectively charged in the form of the costs granted.
19. In the event that the hearing is ordered, the losing party generally faces a decision which, according to the appellant, "suffers from a often somewhat simplified concept of justice," because there is no risk of having to defend its position in an appeal or other review procedure in the court's bagging disputes.
20. At the outset, the judiciary has adapted comprehensively, including through the transformation of procedural law and the introduction of many new procedural instruments, to the recovery of debts, compared to the time when the adjudication decree was adopted in its first version, the vast majority of disputes without negotiation and in a way that does not foresee real evidence or resolution of legal disputes are now resolved. If the adjudicating decree has not adapted to this fact and measures the case-law identically in the event of an electronic payment order, as is the case where the hearing and the taking of evidence are ordered, this situation is contrary to the principle of proportionality and the level of cost-sharing is made inadmissible.
21. According to the appellant, these methods of termination constitute a completely different level of difficulty for legal service and the fact that the adjudicating decree does not take this into account creates such uneven that it also creates de facto obstacles to access to law. The attractiveness of undisputed claims, which is also easy to enforce in bulk, leads to legal services focusing on these claims and ignoring disputes that appear to be in fact questionable in advance. The market is essentially forcing the advocacy to transform itself into a collection service without being positively rated for a service under the law.
22. This level of inadequacy of remuneration in relation to the formal difficulty of the dispute, according to the appellant, creates a level of injustice which is not reasonably justified. In essence, the State prefers consumer rights to allow them to use the State as a collection and enforcement agency. Finally, this also leads to the bankruptcy of the law and its unacceptable reduction to the recovery relationship.
23. In a specific form, the Adjudicature Order also infringes the principle of proportionality, which is a requirement of the rule of law of the democratic and legal state within the meaning of Article 1 of the Constitution.
24. The appellant points out that, although the various proceedings differ in substance and in law in the dispute, the Decree does not differ in substance in the same way as it does not distinguish, for example, the number of acts that a lawyer must perform in the conduct of a dispute, whether it is an action for action or defence. In essence, the finding of a law that seeks justice through legal dialogue and argument is disadvantaged, and, on the contrary, legal activity that is actually and legally undemanding is favoured. In practice, disputes with a minimum number of actions and simpler arguments are preferred by the legal community, which, however, often ignores the need for legal care for disputes of legal complexity, leading to a general underestimation of legal arguments and emphasis on the formality of submissions which are important but not crucial.
25. The appellant considers that the harmonising position of the Supreme Court of 15 October 2008 sp. zn. Cpjn 201 / 2008, according to which "when determining the remuneration for representation by a lawyer or notary, the grounds for action under the provisions of the special law on non-contractual remuneration do not justify the fact that the lawyer acted in proceedings in the form of automated outputs and submissions that the dispute is based on a low amount, that the case in question is not legally complex or difficult, that the proceedings were short, that similar actions or claims could have been brought by one action, or other type of action, but only specific (individual) circumstances of the case '. In this interpretation, the appellant completely rejects this rate of flat-rate compensation, which is wholly owned by the contested Order and goes through its whole normative logic.
26. As a specific and most problematic form of abstraction from the formal challenge of the dispute, the appellant considers the provision of § 12 of the contested order of adjudication, which gives half the judgment (as opposed to the proceedings found) to be enforceable proceedings. This rule is absurd: if, in cases where a dispute is found, it can be doubtful that the difficulty of the dispute is not dependent on the height of the amount at issue, in the case of the enforcement procedure, this conclusion is absolutely certain. In the execution procedure, the variables contained in the title are projected into the unified design, which does not allow a very creative deposit. The legal difficulty of filing the execution proposal is zero; Such proceedings could be reduced to the completion of a pre-printed form. The only question to be addressed by the creditor is the choice of the executor, which does not appear to be a legal question to the appellant, not to mention that the choice of the court executor, who is de facto serving as a court, appears to be one of the parties to the dispute at the border of constitutionality.
27. If a reduction in formal procedural procedures leads to a reduction in disputes over direct debits, the material reduction according to the appellant reduces legal aid to a mere administration of the dispute without emphasis on the material way of managing it. In this respect, the Decree is expressly contrary to the law, namely the Civil Code, according to which the costs necessary for the effective application or defence of the law are to be declared (§ 142 (1) o. s. s.). In the light of this legal rule, the contested affidavit cannot stand. It itself denies, by its design, any consideration of the effectiveness of the legal representation which the law prescribes. This reason for illegality follows on from other reasons which are contrary to constitutional order and law.
28. The appellant considers that the flat-rate adjustment itself is not contrary to the constitutional order (and the law). On the contrary, if it is reasonably set, it results in rationalisation of the processes it regulates. Ideally, it can lead to minimising the costs of conducting simple disputes.
29. According to the appellant, the initial motive for the adoption of the injunction was that many proceedings were unnecessarily extended because of an inefficient chain of operations, the number of which determined the amount of the claim for costs. The introduction of a flat-rate for the whole procedure should remove this pressure to stretch. However, the result of this effort seems questionable to the appellant because the intended objective has not been achieved in principle. Over time, the purpose of the acceleration was achieved through the concentration of the steering and other procedural tools and constant pressure on the justice system and its speed. According to the applicant, the basic legislative motive for accepting the application is therefore no longer valid.
30. In general, the appellant considers that, if the flat-rate adjustment had been set in such a way that there had been an economic advantage for the players, which is effective in terms of the effectiveness of justice (including the material aspect of efficiency - i.e. the maintenance and improvement of the level of justice), the flat-rate adjustment could fulfil its purpose and, in the long term, reduce the general financial complexity of the conduct of disputes. However, this did not happen by the adoption of the contested decree, as the flat-rate adjustment contains elements which create a higher percentage rate of cost for lower claims. Such an element inevitably leads to debt reduction. If the legislator had intended to relieve the judiciary, it would have had to motivate the parties to the judicial proceedings to merge smaller claims by providing that there would be no remuneration in the lower-claims band, or a purely operational (expenditure flat-rate), whereas only the merger and the achievement of a certain amount of the dispute would have offered the possibility of awarding costs.
31. The appellant considers that there is a scope for legislation that would be consistent both in terms of law and constitutional order. It points to foreign adjustments which offer examples of well-adjusted flat-rate adjustments. In general, therefore, the appellant considers that the regulation of similar phenomena by means of flat-rate arrangements is admissible, whereas in the form in which it acts in the contested standard, it is inadmissible from the points of view of the above-mentioned.
32. According to the appellant, the rationalisation, which creates the presumption of the costs of legal representation, irrespective of the complexity of the dispute, leads to the fact that it is the proposals for the award of claims which are small and which involve the minimum cost. If this discrepancy in enforceability has long-term effects, the profit-seeking market environment will adapt to these conditions and create conditions for such claims, particularly if the profit from such recovery is significantly disproportionate to the principal.
33. There are quite a lot of offers on the market for various services that are at the border of legal and illegal (odd) credit activities. Their parameters are now set not in such a way that the party to be damaged is burdened with high interest, but instead in such a way that they are burdened with a high number of smaller sanctions, which, in terms of substantive law, gives the impression of proportionality and will also stand up in a possible assessment by law enforcement authorities. In the enforcement of these partial penalties, each of them shall be subject to the costs separately declared. The usual phenomenon is also the allocation of claims which, after being divided, are referred to different bodies and can therefore be enforced separately with the multiplication of the costs awarded.
34. The appellant considers it particularly alarming to practice the enforcement of the public transport fee increases provided for by law. Their upper level is laid down by law so that the fare premium also covers reasonable recovery costs. In the case of judicial enforcement, it is, however, legally unidentifiable but economically effective duplication of enforcement of the same. It also appears to be questionable if the claims are enforced by public law bodies (municipalities, urban areas, regions) which hire lawyers to do so. The appellant recalls that the dispute of this practice was also referred to by the Constitutional Court, for example, in the decision of page II of the ÚS 2396 / 09 of 13 August 2012 (available at http: / / nalus.ujud.cz, as well as other decisions cited here). Many claims are sold to these creditors first at face value and then at further steps and to private law bodies for higher value in order to obtain, in particular, the expected reimbursement of costs.
35. The above described phenomena are largely unregulated in society and are caused by the currently set conditions and will not pass until these conditions are different. Although the number of small claims appears to be limited in advance, this is not the case and the market environment is able to generate an essentially unlimited number of them.
36. One of the consequences of the rules so set is the overcrowding of the civil justice system by an extremely high number of proposals for the recovery of small claims, with the only economic motive being the expected entitlement to the costs of proceedings. The amount of these disputes, which are not factual disputes in the material sense, but merely a formal statement of the accounting event (often with a disputed substantive legal basis), is so burdened by the judiciary that it does not have the power to examine in detail the substantive assumptions of the decisions (payment orders). While many orders would not have passed the oral test and possible counter-argument if they had been professional, they would nevertheless have stood up at the time of the order procedure. This in itself may not constitute an infringement of the right to a fair trial in individual cases if the defendant concerned does not make use of remedies, but, in view of the function of justice, such a situation is undesirable if it becomes a general phenomenon.
37. The appellant points out that the ordinary defendant must incur far more than the costs of possible defence against the action under the form before the applicant. In view of the routine processing of applications, the likelihood of error is not excluded. The result is a situation where, in the case of a form action, the starting points for achieving success in the dispute are significantly different and, moreover, the inadequacy of compensation for costs which were actually lower for the plaintiff (decision of the Constitutional Court sp. zn. II. ÚS 2396 / 09) is added.
38. The appellant stresses that the growing number of executions is a serious social problem in the Czech Republic. In the case of recovery claims, precise data are not available, but may be based on some of the sub-data held by the Executive Chamber of the Czech Republic: A total of 1 933 650 executions were ordered between 2001 and 2008, i.e. in 8 years; 760 923 executions were ordered in one year 2009, 701 900 executions were ordered in 2010 and 936 219 executions were ordered in 2011. These figures speak of execution, but they had to be preceded by a finding procedure. It is clear from the above figures that, although it is clear that the applicants are almost always legally represented, in the event that the same legal assistance would be necessary for the defendant, there would not be enough lawyers in the Czech Republic to represent them individually (9 526 in the Czech Republic by October 2012). These figures demonstrate in themselves the extent to which the actual provision of legal services in such a quantity is rather a virtual matter, which, however, creates real commitments and obligations in cost statements. As impossible as it is for these figures to actually provide an individualised legal service (but costs are granted), it is equally impossible for all those against whom this procedure is being applied to defend themselves.
39. Although the execution procedure appears to be separate from the party to the proceedings, it should be stressed that it is subject to half of the costs of the proceedings (pursuant to § 12 of the adjudication order under appeal). The execution procedure is also an indication that previously the search procedure was conducted. The figures given by the execution orders should be compared with the number of executions that are terminated (by stopping or recovery). In 2009 it was 178 233 executions, in 2010 it was 202 036 executions and in 2011 it was 287 984 executions. A comparison with the number of executions ordered indicates that ten years after the creation of the judicial execution system, a maximum of 30% of executions are managed. In the debt recovery system, where the main network of reasonable and admissibility should be the finding of proceedings, a systemic error is, in the appellant's view, incorporated, which, due to the high economic attractiveness of a particular type of management, is burdensome not only by the system of the finder's proceedings, but also by the consequent imbalance in the execution procedure, which would, as a result of the increasing number of executions running over time, become difficult to predict for creditors and debtors.
40. In addition to the fact that such a way of setting the rules is burdensome to the judiciary as a whole, both in the level of the finding and the enforcement process, it should also be pointed out that the debt recovery system, which is overmotivated by the cost as such, also leads to far-reaching effects in the population debt structure.
41. A certain segment of the population is disproportionately burdened with essentially cost debt, the legitimacy of which is questionable. As a result, some of the population, which is rather poorer, is burdened by permanent execution. Thus, the low income layers of the population are consistently maintained at a non-entertainable minimum, thereby constantly being demoted to try to get out of their difficult economic situation, because any partial success in obtaining employment or higher pay is followed by a higher execution. The economic term 'debt trap', which is the expression of the point at which debt to an economic operator (family, individual) is no longer sustainable, is given new content in this respect only because of the existence of the contested decree, which, as a result of the excessively set procedural rules, is able to step up the amount of debt in a way that makes it one of the most important factors in overcoming the debt trap point.
42. The appellant therefore considers the contested decree to be a standard which completely passes its original purpose and therefore does not meet the requirement of rationality in the light of the intended purpose of the standard. The original purpose of the decree was to simplify the legal proceedings, to smooth the administration of justice and to set rules that will be more or less fair without complex assessment. This purpose is completely out of line with the contested adjudicatory decree, which now acts as a tool which significantly motivates judicial proceedings without previous attempts at reconciliation, thus denying the subsidiary function of justice, further induces a significant burden on the judiciary, thereby weakening its capacity to individualise individual cases and identifying material shortcomings in the management phase, further burdensome the non-negligible segment of the population and, last but not least, creating a situation where debt recovery is generally less predictable. The functions expected from the Decree were filled with other tools (steering concentration, etc.).
43. All these malfunctions and disfunctions are, according to the applicant, very serious and completely contradicted to the original purpose of the decree. Therefore, the affidavit should be repealed as a whole. The appellant refers not only to excessive rates in the bagging zone, but also to the fact that orders and other undisputed means of handling the case are subject to the same rate as other disputes. In fact, the level of simplification and flat-rate adjustment is passed through the entire decree and it is such that, according to the appellant, it must be abolished if the cause of the unlawful situation is to be removed.
44. While it is true that the law allows for the possibility of deviating from the application of the adjudicatory decree (§ 150 o. s. s.). The possibility of deviating is also given by the fact that the court is not bound by a decree, strictly speaking. The appellant considers the principle of the possibility of deviation to be correct, but this is only true if the need for deviation concerns a truly minority of phenomena.
45. If it is a rule that the recovery of generic form actions is dominated in the bagging proceedings, the flat-rate costs determined are grossly out of line, according to the appellant. The Court of First Instance may make use of the flat-rate adjustment only if it is satisfied that it corresponds in most cases to the facts. If, on the other hand, he had to make a majority justification for deviating from the Decree and should stick to it only in exceptional cases, in such cases, there is no meaningless determination of the supposed state of affairs.
46. The courts in their majority resign and apply a decree which is not specifically justified. A presumption or presumption which is legally set out in contravention of the usual fact cannot, from the logic of the matter, fulfil its function, because such a procedure is, inter alia, technically unacceptable.
47. Therefore, according to the appellant, it cannot be argued that the court may, in an individual case, derogate from the order. This is formally possible, but it is not reasonable to require courts to deviate from the flat rate in the vast majority of cases. In practice, this is not possible, among other things, because the vast majority of cases end in a procedure in which the court has neither the opposing party's observations nor any other basis on which it can rely. The concrete form of a fair cost model can take many forms of de interferenda. It should also take into account the method of execution (payment order, judgment for recognition, missed and ordinary judgment, etc.).
48. According to the appellant, it is illogical that, in the case of proceedings which do not take any significant position in the catalogue of the meanings of the various proceedings, such proceedings are stimulated by the remuneration of the successful party to the dispute, which significantly exceeds the actual costs of the dispute. The appellant is in vain seeking factual or legal reasons to justify the conclusion that the recovery of a minor claim is more important in terms of strengthening the legal awareness, maintaining the functioning of the State and ensuring a fair process than the defence of the accused in criminal proceedings, the defence against the bullying procedure of the administrative authority, or the protection against the violation of the Constitution of guaranteed rights in the proceedings on a constitutional complaint. On the contrary, the appellant considers that this incremental inequality deforms the perception of justice's law and priorities. In addition to inequality from the point of view of the promoters, it should be pointed out that, in terms of impact, it is the poorer people who bear its consequences.
49. The appellant points out that, in some cases, the courts do not grant any costs to certain applicants at all and derogate from the order and give due justification for that procedure, the reasons for which they see the applicant and the nature of the dispute. This procedure was generally passed in the constitutional test, as can be seen from the resolution issued under point IV of ÚS 2777 / 11 of 27 December 2011. However, this procedure certainly does not vote for all courts, even if it concerns cases, before all courts. A finding issued under the sp. zn. I. ÚS 3923 / 11 of 29 March 2012 was also significantly affected by the adjudication agenda, which was significantly modified for the purposes of so-called form disputes in the bagability zone. In essence, the Constitutional Court has created a cost ceiling for a particular type of dispute, limited by the certainty of the dispute. However, this principle is not entirely accepted by judicial practice.
50. At present, some courts do not recognise costs at all in certain procedures and these decisions will stand up to the constitutional test. Other courts (very minority) follow this finding, while others follow the decree in unchanged form. There is still a fourth decision-making model, namely the subsidiary application of the legal tariff within the meaning of § 151 (2) CS. The joint assessment of the decision-making activities of the courts is then inconsistency and fragmentation.
51. The purpose of the Order, which legitimises flat-rate, should be precisely predictability. If the Order is modified in such a diverse manner by judicial practice that there are entirely different decision-making outcomes in cases otherwise comparable, this is indicative of the standard invalidity of the Order. The judicial authority, as a whole, is not in a position to derogate the decree, which would be possible (and perhaps constitutionally conformal), but only succeeds in some parts, inconsistently and severally, which creates, on the other hand, a field of legal uncertainty.
52. The appellant expresses his belief that the contested affidavit is contrary to the law and constitutional order, that it infringes all principles of proportionality, reasonable organisation of relations and fails to fulfil the purpose for which it was adopted. Furthermore, the appellant considers neither technically nor factually possible that the case law of the Court should be reconciled with the way in which costs are determined, which would be uniform, flat-rate, predictable and at the same time fair in order to take into account all the circumstances which it should take into account. By its nature, the judiciary cannot create more complex regulatory systems in a legal vacuum and replace the function of a legislator.
53. The appellant recommends that the contested affidavit be annulled on the date of publication of the finding in the Collection of Laws. While the appellant is aware that, on a general basis, it is rather appropriate to leave the legislator a certain deadline for the development of a new standard, this is not necessary in this case because, after the annulment of the contested affidavit, the legal tariff will automatically apply as a result of the subsidiary application of § 151 (2) o. s., although the latter shows similar shortcomings, it is in many respects less problematic, inter alia because it takes account of the number of acts and hence the complexity of the proceedings and, in fact, the form or, where applicable, bagueable or simple disputes are burdened by a lesser judgment.
Statement by the Ministry of Justice
54. The Ministry of Justice ("the Ministry of Justice"), in its observations to the Constitutional Court registered on 25 February 2013, stated that Decree No. 484 / 2000 Coll. amended the flat rates of remuneration for the representation of a participant by a lawyer or notary in civil proceedings for the purposes of deciding on the reimbursement of costs under § 151 o. s. The adoption of Decree No. 484 / 2000 Coll. has led to the experience that the system of remuneration, depending on the number of legal service operations, was the reason for delays in legal proceedings (the more actions, the higher the remuneration).
55. The Ministry admits that the flat-rate compensation introduced by Decree No. 484 / 2000 Coll. does not really take into account the factual expertise and time-consuming management of the dispute. This is particularly the case in the case of proceedings relating to bagging amounts (particularly if they are applied on the basis of so-called form actions). Similarly, in the case of difficult long-standing disputes where several meetings are held and extensive evidence is being held, this complexity of the case, which places increased claims on the lawyer, is not taken into account at the level of his remuneration determined in accordance with Decree No 484 / 2000 Coll. However, the Civil Code remembers such situations by providing the court, if the circumstances of the case so justify, with the possibility to proceed when determining the costs of legal representation according to the legal tariff in accordance with § 151 (2) of the first sentence after the semicolon o.s. of the Constitutional Court itself found this procedure to be correct in the judgment in paragraph 1 (i) of the ÚS 3923 / 11, in which it also stated that the costs awarded in the proceedings for the amount of the liability should not exceed the amount of the principal recovered. According to the Ministry, the alleged breach of the principle of proportionality cannot therefore be seen by the appellant in the inconstitutionality or illegality of Decree No. 484 / 2000 Coll., but in the fact that the courts often mechanically grant reimbursement of the costs of legal representation under Decree No. 484 / 2000 Coll. and do not take into account the specifics of a particular case.
56. On the other hand, according to the Ministry, it cannot be omitted that if the court is given a choice in the current legal situation whether it will proceed in the decision on the reimbursement of costs in accordance with Decree No. 484 / 2000 Coll., or in accordance with § 151 (2) of the first sentence of the first sentence of Section 151 (2) above, under the legal basis, or whether it will make use of one of the corrections referred to in § 142 (1) or § 150 (2) (2) (b) above, this leads to the courts taking different decisions in similar cases. It is always necessary to insist on the proper justification of the decision according to the factual findings made.
57. The Ministry mentions that it has recently taken several measures designed to eliminate cases where the amount of compensation granted by the court exceeds the amount of the principal requested many times. These measures include the amendment of Section 3 (1) of Decree No. 484 / 2000 Coll., which took place by Decree No. 64 / 2012 Coll., reducing the rates of remuneration, in particular if it is for deductible amounts. According to the Ministry, the level of remuneration rates was revised to take into account both the ratio of the amount of the claim itself and the costs incurred by individual participants.
58. The Ministry recalls other newly established institutes, such as the so-called pre-plaintiff in § 142a o.s., (amendment implemented by Act No 396 / 2012 Coll.), as a condition for the granting of reimbursement of the costs of the proceedings, with the aim of providing the debtor with the last opportunity to pay the amount due and thus to avoid its judicial recovery and hence the payment of the costs. The amendment also envisages automatic merger of executions which are held by the same executor against the same debtor in favour of the same creditor. It will also be possible to combine the execution of multiple executors or the execution of multiple creditors; This will be done at the request of the debtor by the court if the individual amounts due do not exceed CZK 10,000.
59. The Ministry states that the Decree No 484 / 2000 Coll. also allows for consideration of the complexity of the legal proceedings. According to Article 18 (1), the court will reduce the rate of remuneration by 50% if the lawyer or notary has done only one act of legal service in the proceedings. If he has done no act of legal service, he shall not be remunerated. On the contrary, pursuant to the provisions of Paragraph 18 (2), the court may increase the rate of remuneration by up to 100% if the lawyer or notary represented the party in an extremely difficult or factually complex case (not by a rate fixed by a percentage of the subject matter).
60. The Ministry rejects the appellant's claim that the amount of the costs imposed under Decree No 484 / 2000 Coll. achieves a de facto penalty. It is said that it is not a sanction instrument, but that it is about protecting those who have not achieved their right out of court and have had to spend considerable costs to exercise their right of action. Therefore, the non-reimbursement of costs could be used rather as a sanction against creditors.
61. The Ministry states that flat-rate costs are not unusual in the context of European legal culture. On the contrary, a trend towards the use of flat-rate financing can be observed even within the European Union. For example, Directive 2011 / 7 / EU of the European Parliament and of the Council of 16 February 2011 on a procedure against late payments in commercial transactions which seeks to flat-rate recovery costs, as it provides that a creditor is entitled to receive at least a fixed amount of EUR 40 from the debtor, which represents the reimbursement of the creditor's own recovery costs.
62. If Decree No 484 / 2000 Coll. were to be repealed, as requested by the appellant, it would be said that a situation such as the one before 2001 would be restored, again there would be an extension of the legal proceedings as a result of unnecessary legal service of a lawyer, such as repeated observations of the same or very similar content.
63. According to the Ministry, the courts should make use of the general correction enshrined in § 142 (1) (a) and consisting of granting compensation only to those costs which are necessary for the effective application or defence of the law. Another provision of the court giving the possibility not to grant reimbursement of the costs of the legal representation of the amount requested would remain, even after the annulment of Decree No 484 / 2000 Coll. under which the court does not, exceptionally, have to grant the costs in whole or in part if there are grounds for special consideration.
64. The Ministry admits that the argument of the possibilities of applying the corrections expressed in § 142 (1) and § 150 o. s. o. The interpretation of the importance of verbal links "the effectiveness of the application or defence of law 'and" grounds of special consideration' is dependent on the discretion of the court. It is therefore very likely that the practice of individual courts in this area would differ.
65. In particular, during the execution procedure, errors in the granting of refunds can then be feared. Although the court executor is partly granted the status of a Court of First Instance in the execution proceedings, his real position is not independent. The court executor shall be chosen by the creditor or usually his legal representative for the enforcement of the enforcement title. The executor is therefore assigned the procedure by the legal representative of the creditor, to whom his income under Decree No. 484 / 2000 Coll. is provided for in the execution order. This fact, namely the dependency of individual executors on the choice of legal representatives authorised, could therefore lead the court executors to grant compensation for the entire amount of the costs claimed, even for manifestly inefficient actions such as inspection of the file, if there is no relevant reason, for calls and proposals which do not foresee procedural rules, etc.
66. In the context of the decision to pay the costs of the proceedings in respect of enforcement or execution, it should also be pointed out, according to the Ministry, that the provision of Section 12 (1) of Decree No. 484 / 2000 Coll. provides that in these cases the rate of remuneration, if the amount of money is recovered, is at least CZK 500. If the decree is repealed, it is said that a steep increase in the costs of enforcement and execution can be expected.
67. Finally, the Ministry states that, in the existence of a flat-rate compensation for the costs of legal representation pursuant to Decree No 484 / 2000 Coll., any party to the legal proceedings with a high degree of accuracy can estimate in advance how much money would have to be paid to the other party in the event of failure in the legal proceedings. On the other hand, when applying a legal tariff, that is to say, depending on the amount of the costs of legal representation, the party could not have made such an estimate at the beginning of the legal proceedings, since it is never clear in advance how much action will be ordered in a particular case or how many submissions will be made by the counterparty in the matter itself. The decision to pay the costs should also be predictable, which is more in favour of maintaining Decree No. 484 / 2000 Coll.
68. The Ministry notes that the repeal of Decree No. 484 / 2000 Coll. will not achieve the objectives pursued by the appellant. Although there will be an increase in the predictability of judicial decisions in the sense of the legislation under which courts will grant reimbursement of costs, since only decisions under Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, will remain in play at the present time in the decisions of the Constitutional Court, the remuneration itself will no longer be foreseeable, since the abolition of the remuneration ceilings and the uncertainty of the number of proceedings may mean the same legal uncertainty. It can also be said that, in the absence of a positive regulation of the Civil Code at the same time, there will be an increase in remuneration at that stage of the procedure, where the legislator had previously enacted only half the rate.
69. In assessing the design of the need, the Ministry summarises that although decision-making on costs was in the past in certain cases, in particular form actions for bagging amounts, excessive, the Ministry of Justice responded to this and had already taken certain steps in the past to remedy this situation within the limits of existing legal provisions. The amendment of the Civil Code by Law No 396 / 2012 Coll. introduced pre-pleadings and cost limits in the enforcement of the decision, the amendment of the adjudicating decree made by Decree No 64 / 2012 Coll. reduced the absolute amounts of the costs of proceedings in cash disputes, the new legislation brought more detailed breakdown of remuneration rates with an absolute reduction of specific amounts and thus an opportunity for more sensitive decision-making, particularly in baggatory disputes.
70. As regards the assessment of the proposal by the proportionality aspect, that is to say the assessment by the aspect of the injury caused for the purpose, it can be agreed with the appellant that overcompensation of costs should not constitute a penalty mechanism for the defendant. While the defendant must not be caused disproportionate damage by excessive cost increases, this right of the defendant must nevertheless be balanced against a bowl of scales and measured against the right of the applicant to legal protection and the possibility of obtaining qualifying his claims for the defendant. The fact that the defendant is late in paying his debt cannot go to the expense of a prosecutor who wants to exercise his right. The current arrangements are said to be balanced and fulfil the view that the negative consequences must not exceed the positive ones, as they reflect both the creditor's rights to reparation for the costs incurred by them and adequately protect debtors against disproportionate cost increases by the actions of the counterparty's legal representative.
71. The Ministry concludes that the determination of the amount of compensation for costs of legal representation under Decree No. 484 / 2000 Coll. has both its positives and its negatives; It is said that this decree is neither unconstitutional nor illegal.
Duplicate of the applicant
72. In its letter to the Constitutional Court of 11 March 2013, the appellant commented on the observations of the Ministry, stating:
73. The Ministry points out in its observations that the courts should individualise their decisions on a case-by-case basis, pointing out the legal possibilities for doing so. To this end, the appellant adds that this is not the case in the vast majority of cases, because the number of cases discussed and routinely processed does not allow this, despite the fact that it would be necessary to complement, in simple disputes, the evidence of costs, the parties' comments on this issue and the circumstances on both sides of the dispute, which would significantly exceed the meaning of the original banal dispute. The faulty flat-rate adjustment can be removed, according to the applicant, but not overcome by many individual decisions that create a different standard.
74. The appellant appears to be contentious when the Ministry, which is responsible for ensuring meaningful and fair flat-rate adjustment, refers to the fact that these deficiencies are not defective as a defence ground for maintaining it (where its rationality, justice and logic is questioned) as a result of the derogation. Such a position would essentially lead to the general conclusion that there are no unlawful orders because the court can always deviate from them because it is not bound by the decree. The Ministry's argument persists only in the level of non-binding reasoning as to how the courts might alternatively proceed; In the appellant's view, it would be more useful to include in the text of the contested Decree the normative rule on how to proceed if this is not the case in practice.
75. As regards the recent changes to the contested decree, which the Ministry refers to as a step to mitigate the negative effects, the appellant considers them extremely inadequate in view of their minimalist nature. From the graphs that are part of the proposal on the issue itself, it is said to be sufficiently obvious.
76. If the author states something problematic in the current decree, it is precisely that he does not differentiate the typology of disputes. The Ministry basically advocates a model that responds equally to the spectrum of different situations. The courts may individualise their decision-making policy, but they still need different tariff rates for different types of management, actions or cases.
77. As regards other support measures, which should eliminate the consequences of the regulatory impact of the decree referred to by the Ministry, the appellant points out that the pre-challenge is insufficient, in particular in the light of the fact that its introduction has nothing to do with the fundamental constitutional problem of a gross discrepancy between costs granted and incurred. The call for applications may slightly limit the number of persons affected by poor regulation but does not change the nature of the matter. A small reduction in the number of persons affected by unconstitutional legal regulation does not in any way eliminate the unconstitutional nature of such regulation, according to the appellant. In addition, it should be added that the time limit for the call for applications appears short. Presuming that the pre-plaintiff would participate in reducing the negative consequences of the contested order appears to the appellant to be pure speculation.
78. The merger of execution also appears to be insufficient for the appellant, because it can be easily circumvented by the transfer of creditors, causally and debtors of the same claims to various entities which then enforce them separately, which is already common practice which prevents the merger on proposal. In addition, both support mechanisms (pre-legal notice, merger of execution) have the nature of a very imperfect remedy for the consequences of an unfair system. Such solutions can delay the problem, but not remove it.
79. According to the appellant, the possibility of reducing the rate of remuneration under Paragraph 18 of the contested Decree, referred to by the Ministry as a normative correction to take into account the difficulty or simplicity of the dispute, is completely ignored, inter alia because it is designed as an exception to the rule and not the rule itself.
80. The appellant states that it does not abandon the flat-rate adjustment as such, but is opposed to its specific form. The appellant even points to appropriate means of flat-rate taxation abroad.
81. The appellant reiterates that, although his proposal is directed at the present wording of the Decree, they are not conceptually opposed to flat-rate taxation as such. The proposal certainly does not foresee that, following the repeal of the decree, the state of the art would last for a long time, but assumes that the Ministry will adopt a new decree which will reflect the requirements of the Constitutional Court. It is not the subject of the proceedings before the Constitutional Court and there cannot be any debate on the ideal form of legislation from the logic of the matter. It is always the task of the legislator. The procedure only examines whether the current legislation does not go beyond the limits of the superior law. If the Constitutional Court abolishes the norm, the absence of the norm must, as a rule, be supplemented by the legislator, with the reasons for the repeal being an inspiration and guidance, or a memento of the derogandi, which builds it the mandinels of other normative considerations. Whether the Ministry, after the repeal of the Decree, will take the path of complete change, partial change or in cooperation with the legislator, merge the tariff and the decree, or refer to the tariff which the Order will limit for the purposes of legal proceedings, is only his business.
82. The appellant points out that the removal of the decree itself will not and cannot fulfil the objective of removing the unconstitutional state. This also applies to the possible net return to the application of the legal tariff, which would have no impact on the execution procedure, which the current tariff is equally or even more burdensome than the current decree. The application of the legal tariff may only appear as a temporary emergency solution. If the Constitutional Court recognizes the decree as unconstitutional or illegal, it will be necessary to actively create a new system and it will be the task of the Ministry.
83. In a way, the appellant understands the lack of the legislator that the legislation it has created does not fully fulfil its purpose and objective, including the possibilities of exceptions that are ignored by practice. If a standard does not work, even if it has formal preconditions, it is necessary, in the logic of its sociological effect, to seek the functional legality of the effects of this regulation and to respond sensibly to them. The appellant insists on the proposal.
The Ombudsman's observations
84. The Ombudsman stated to the Constitutional Court that he did not use his right to enter the proceedings under Paragraph 69 (3) of the Law on the Constitutional Court but made observations within the meaning of § 48 (2) of Act No 182 / 1993 Coll.
85. The Ombudsman submits that, in the light of the knowledge gained in his activities, he has repeatedly criticised the practice of certain lawyers and court executors consisting of the wrongful claim and the award of the costs of the enforcement proceedings in the form of remuneration under the provisions of § 12 (2) of the supplementary order, although the lawyer did not take any action in the implementation or cessation of execution itself, but merely took over the case and made a proposal for an execution order. The Ombudsman agrees with the appellant's arguments for the annulment of the injunction.
Abandonment of oral proceedings
86. Under Article 44 of the Law on the Constitutional Court, the Constitutional Court will order oral proceedings if they can expect further clarification of the case. Oral proceedings shall be ordered whenever the law so provides or the Constitutional Court carries out the taking of evidence. In the present case, the Constitutional Court considered that further clarification of the case could not be expected from the hearing, so the oral hearing was abandoned.
Active ID of the applicant
87. The Constitutional Court notes that the appellant complies with the requirements of Article 64 (2) (b) of the Law on the Constitutional Court and is entitled to file a motion for the annulment of another law or its individual provisions pursuant to Article 87 (1) (b) of the Constitution.
Constitutional conformity of the legislative process
88. Pursuant to Article 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., the Constitutional Court assesses the content of the law or other legislation in the light of its compliance with the constitutional laws and, in the case of other legislation, the laws, as well as whether they have been adopted and issued within the limits of the constitutional competence and the constitutionally prescribed manner. The Constitutional Court notes that the contested legislation was adopted in a constitutionally prescribed manner and issued in accordance with the Constitution and declared in accordance with Act No. 309 / 1999 Coll., on the Collection of Laws and on the Collection of International Contracts.
89. Article 79 (3) The Constitution provides that ministries may legislate on the basis and within the limits of the law if they are empowered by law to do so. The contested Decree No. 484 / 2000 Coll. was issued by the Ministry of Justice on the basis of the legal authorisation contained in Section 374a (c) of Act No. 99 / 1963 Coll., Civil Code, as amended.
90. The contested Decree was published on 29 December 2000 in No 140 / 2000 of the Collection of Laws and became effective on 1 January 2001. This decree was amended by Decree No. 49 / 2001 Coll., Decree No. 110 / 2004 Coll., Decree No. 617 / 2004 Coll., Decree No. 277 / 2006 Coll. and Decree No. 64 / 2012 Coll.
Evaluation of the Constitutional Court
91. The Constitutional Court concluded that the contested Decree No. 484 / 2000 Coll. is contrary to the constitutional order and the law.
92. According to the explanatory memorandum to Act No. 30 / 2000 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and some other laws, the purpose of Decree No. 484 / 2000 Coll. was to simplify the calculation of remuneration for representation in civil proceedings and the removal of delays caused by the parties led by the intention to obtain a higher remuneration for legal representation as a result of several acts of legal service. In fact, however, this affidavit has caused serious negative consequences, violating fundamental rights and causing a disfunction of the justice system.
93. The contested Decree No. 484 / 2000 Coll., contrary to the legal tariff (Decree No. 177 / 1996 Coll., as amended), which refers to the amount of the remuneration and the amount of the costs of the legal representation, introduced the determination of the costs of the legal representation on the basis of the principle of flat-rate fixing of the fees for representation in the proceedings. The Supplementary Decree sets flat rates for the amount of remuneration, thereby making it impossible to distinguish between the complexity of the case, the time-scale, the number of legal service operations carried out, as well as the manner in which the court proceedings have ended (electronic order for payment, judgment for recognition, judgment for missing). Therefore, it completely ignores the substantive and time-consuming nature of the dispute or the effectiveness of law enforcement or defence.
94. The contested decree motivates participants in civil relations - creditors to conduct litigation, even in cases where the matter is of negligible value. This is the case with the prospect of a profit, since the claimant expects the amount of the costs to be paid by the court under Decree No. 484 / 2000 Coll., the amount of the costs awarded will be higher than the costs actually incurred and this difference will bring commercial gain to the winning party. The costs awarded are so high that it is, in principle, advantageous to sue for objects of negligible value.
95. The number of disputes thus conducted, motivated by a view of easy profit, has been extremely high in recent years, representing a significant share of the civil law agenda of the courts. This leads to overcapacity of the judicial system and to an increase in expenditure spent on the state budget for the administration of justice. The handling of this kind of agenda can easily lead to delays in proceedings in other matters which are the subject of significantly more important matters. According to Article 90 of the Constitution of the Czech Republic, "the courts are called upon primarily to provide protection of rights in the legal manner '. The conduct of litigation of this type, primarily not as a claim for protection of rights, but as a profit-producing business and business activity, is at the very edge of the abuse institute. The prohibition of abuse is recognised as one of the fundamental principles of the functioning of the law and results from a constitutionally anchored concept of the rule of law (cf.
96. Moreover, it can be concluded that such a functioning, relatively autonomous recovery system results in socially undesirable consequences - leading to the emoluments of a large proportion of the population. A statistically significant proportion of the low-income population is unable to pay the court-imposed costs of the dispute, and the subsequent execution of other costs is found in serious existential difficulties.
97. The costs of legal representation calculated on the basis of the adjudicating order unduly burden the unsuccessful party in particular in situations where the value of the object of the dispute lies in lower bands, in particular in the baguability zone. The costs awarded are clearly disproportionate to the nature and content of the dispute. The enforcement of civil obligations in such cases is a marginal matter from the point of view of general justice, with the creditor's interest in achieving the proceeds of the dispute itself.
98. This is particularly the case in the following types of civil disputes:
• proceedings in which no appeal is admissible against the judgment of the court seised (proceedings in so-called baggatory disputes),
• disputes initiated by the so-called form action (individual actions differ in principle only in terms of the defendant and the defendant),
• claims on contracts where one of the parties was the consumer,
• contractual relations in which the consumer is effectively excluded from the possibility to negotiate a civil contract with a different content (typically in particular contracts on transport, supply of heat or energy, consumer credit, current account, provision of information services, provision of electronic communications services, insurance contracts, regulatory fee under Act No. 48 / 1997 Coll., public health insurance, and amendment and addition of certain related laws, as amended; See, for this, the finding of the Constitutional Court sp. zn. I. ÚS 3923 / 11).
99. In the real social environment, a new kind of business activity was created, consisting mainly of trading in bagging receivables. Claims are transferred and purchased by specialised firms dealing with debt recovery are traded. The right of payment shall be enforced by a creditor other than the original creditor; The claimant expects the amount of the costs to be paid by the court under Decree No. 484 / 2000 Coll.
100. Thus, the profit of such an entrepreneur is not only due to differences in prices in the own-account business of claims, but is multiplied by flat-rate compensation for the costs of the legal proceedings, consisting primarily of the unfair remuneration of a lawyer for representing a successful applicant. The costs awarded in these cases significantly exceed the costs actually incurred, needed for the effective application or defence of the law. An arbitrary debt recovery system has been created, deliberately producing disproportionately high costs of legal proceedings. This system harms or eliminates unsuccessful debtors in the dispute and, on the contrary, ensures significant benefits for persons involved in the application and recovery of, in particular, bagging debts and the recovery of related costs.
101. In particular, the unfavourable situation arises in the area of public services, financed by public budgets (health, public transport, education, etc.). The claims are enforced by public law bodies (state, municipalities, urban areas, regions), which often also hire lawyers to do so. The consequences of failure are then far more burdensome for debtors than when the claim is enforced directly by the State or the municipality through its employees, as the costs of the proceedings increase by the lawyer's palmare.
102. The establishment of the remuneration of lawyers completely ignores the substantive complexity of the dispute, the number of actions carried out in the matter, the time-scale and the effectiveness of law enforcement or the prevention of claims. The contested decree takes no account of the way the case ends. One can also mention an undesirable option where the flat-rate remuneration granted on a flat-rate basis is disproportionately low, because the nature of a particular dispute required an excessively high number of challenging actions.
103. The costs declared are regularly taken into gross disproportion to the defendant's value of the dispute. In this way, the unsuccessful party is penalised, with the level of costs imposed contrary to the principle of proportionality of sanctions. This makes it de facto the imposition of sanctions without the law. Thus, the Supplementary Order is in conflict with Article 4 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter '), which provides that obligations may only be imposed on the basis of law and within its limits and only with respect to fundamental rights and freedoms. The costs awarded should not be disproportionate to the nature and value of the dispute.
104. The Constitutional Court is aware that the current legal situation allows the courts to deviate from the adjudicating order. The judge has the possibility of not admitting to pay the costs or to award only the costs effectively incurred (§ 142 (1) o. p. o.). In addition, the judge may take into account in a particular case the reasons for the special consideration provided for in Section 150 CS. However, experience has shown that the application of these legal possibilities by the courts is inconsistent and unpredictable. This also weakens the principle of predictability of judicial decisions and weakens the principle of legal certainty.
105. The affidavit is contrary to the law - the Civil Code, according to which the costs necessary for the effective application or defence of the law are granted (§ 142 (1) o. s. s.).
106. Since the departure from the Order must be justified in the decision of the Court, the efficiency and formal complexity of the judicial decision is increased, thereby overloading the courts and extending the duration of the proceedings. At the same time, the need to carefully justify a derogation from the Order is being demoted by judges to use these alternative procedures.
107. The present case-law of the Constitutional Court shows that the contested order does not provide sufficient legislation in that field and confirms the need for new legislation to take account of the decision of the Constitutional Court.
Obiter dictum
108. Without prejudice to future legislation, the Constitutional Court expects this to reflect better the particularities of individual cases. The criteria for determining the amount of the refund should be contained directly in the Order itself. The setting of the level of remuneration should reflect the principle of proportionality and should also be proportionate to the amount recovered. This is all the more important as regards disputes in the baguability zone in which no appeal is admissible against the judgment of the court seised, the decision is therefore not subject to an instant review.
109. The Constitutional Court wishes to reiterate some of the principles it has set out in previous case-law, which should also be taken into account in future legislation.
110. In the decision sp. zn. I. ÚS 3923 / 11, the Constitutional Court dealt with the question of the reimbursement of the costs of the proceedings and the remuneration of the lawyer in so-called form actions in the baguability zone. The Constitutional Court stated that the courts and in the proceedings concerning cash transactions up to CZK 10 000 must respect the principle of success in the proceedings when deciding to pay the costs (§ 142 (1) o. s.). Where the applicant has been fully successful in the dispute, he shall, as a rule, have the right to pay the costs. However, this does not mean that the court will decide "mechanically" to replace them. On the contrary, it must consider whether there are other decisive circumstances which have a significant impact on the allocation or not of compensation effectively incurred and which of the possible methods of determining it (see Section 151 (2), part of the sentence before and out of the semicolon). In that finding, the Constitutional Court further stated that if the General Courts choose an exceptional procedure when deciding on reimbursement of costs, for which they have a legal basis, in which they are still based on the principle of success in the matter, and the application of the statutory exemption also provides sufficient justification, they cannot be relied upon to protect the constitutional order of guaranteed rights and freedoms.
111. In that finding, the Constitutional Court pointed out that it had to bring the case-law of the General Courts together in the form of a finding, since there is no other body in the so-called "bagatel cases' of the parties' statements on the reimbursement of costs which could do so in a binding manner. In such a procedure, which is initiated by a" form "action, the claim is claimed against the consumer, which arose from a contract or any other legal reason, but the consumer is effectively excluded from the possibility to negotiate conditions of performance with a different content, then, in view of the need to respect the principle of proportionality between the amount recovered and the amount of the reimbursement of costs, it is fair that the amount of the remuneration for representing the applicant by the lawyer is determined in such a way that, as a rule, it does not exceed one-fold the principal recovered.
112. Similarly in the finding of sp. zn. I. ÚS 988 / 12 of 25.7.2012 The Constitutional Court has stated that the rule that the successful procedural party can be granted compensation only for the costs effectively incurred applies to any costs of the proceedings, including those relating to the representation of a lawyer (remuneration for representation, flat-rate compensation for final expenses and compensation for value added tax). Furthermore, the Constitutional Court found that the costs effectively incurred within the meaning of Article 142 (1) CS can only be regarded as costs which the procedural party had to incur in order to properly defend its infringed or threatened subjective right in court. As a rule, the costs associated with the lawyer's representation will correspond to this definition. However, this rule cannot be attributed to an absolute, non-exceptional nature; there may also be situations in which the costs associated with the representation of a lawyer cannot be considered necessary for the proper application or defence of the law in court. This will be the case in particular in the event of abuse of the right of representation by a lawyer.
113. I. ÚS 2929 / 07 of 9.10.2008 (N 167 / 51 SbNU 65) The Constitutional Court has stated that if the State is equipped with the relevant organisational elements, both financially and staffing, provided by the State budget to defend its legal interests, there is no reason for it to transfer the exercise of its rights and obligations in this area to a private body to which the lawyer was a lawyer in the present case. As is apparent from the statement of reasons for the constitutional complaints of the judgment under appeal, the Court of First Instance based its statement on the reimbursement of costs by reference only to Sections 224 (1) and 142 (1) CS. Thus, it burdened its decision with a defect having a constitutional dimension consisting of a breach of Article 36 (1) of the Charter.
114. IV. ÚS 2513 / 09 of 2.2.2010 (N 17 / 56 SbNU 169) The Constitutional Court pointed out the finding of the Constitutional Court sp. zn. I. ÚS 2929 / 07 and noted that it is common knowledge that the central authorities of the state administration have in place relevant legal (legislative) trade unions to execute the legal agendas, employing a sufficient number of experts who are able to safeguard the interests of the Czech Republic before the courts. Thus, according to the view of the Constitutional Court, expressed in the cited finding, there was no reason for the defendant to represent the defendant in the circumstances, even in appeal proceedings. If this is the case, the complainant cannot be fairly asked to pay the costs thus incurred by the defendant, since those costs cannot be considered as "the costs needed for the effective application or defence of the law 'within the meaning of § 142 (1) ° N According to the Constitutional Court's finding, the General Court did not take into account the above questions in its decision and justified its statement on the reimbursement of costs only by reference to Sections 224 (1) and 142 (1) (c) of the General Court's decision. In this respect, the Constitutional Court saw a defect having a constitutional legal dimension consisting of a breach of Article 36 (1) of the Charter.
115. In finds sp. zn. IV. ÚS 3243 / 09 of 2.3.2010 (N 38 / 56 SbNU 449) and sp. zn. III. ÚS 1180 / 10 of 14.9.2010 (N 194 / 58 SbNU 715) The Constitutional Court has held that where the State is equipped with the relevant organisational components financially and staffed by the State budget to defend its interests, there is no reason for it to transfer the exercise of its rights and obligations in this field to a private body by which it was a lawyer and, if it does so, there is no reason to recognise the costs incurred in this way as effectively incurred. If the Court of Appeal has ruled on the reimbursement of costs only with reference to the principle of success, and the question of whether the costs incurred by the party - the State - to be represented by a lawyer were effectively incurred has not been addressed, it has committed a breach of the right to a fair trial.
116. II. ÚS 2396 / 09 The Constitutional Court concluded that the existence of sufficient material and personnel equipment and security for statutory cities and their urban areas could be envisaged to be able to defend their decisions, rights and interests in a qualified manner without having to benefit from the legal assistance of lawyers. If there is no evidence to the contrary in the relevant proceedings, the costs of representation by the lawyer are not effectively incurred.
117. This is not intended to make it categorically clear that the representation of the State by the lawyer is always inefficient and that the reimbursement of the costs of the legal representation cannot be granted to the State. In exceptional circumstances, the representation of a State by a lawyer shall have the nature of effective application or defence of the law. In resolution sp. zn. III. ÚS 2428 / 10 of 31.3.2011 The Constitutional Court recalled that, in each particular case where the State acts as a competent organisational component and as one of the central offices, it is necessary to consider, according to the specific circumstances of the case, whether the relevant organisational component of the State is capable of effectively defending itself in the dispute (in particular if it acts as a party to the proceedings) with the assistance of its lawyers, or whether the dispute is specific in which to defend itself effectively and to the successful outcome of the dispute for the organisational component of the State - and, consequently, the Czech Republic - the Czech Republic must be represented by lawyers. In the generally promoted trend to overall efficiency and efficiency in the activities of the government, the personnel capacity of internal staff cannot be oversized to cover all the conceivable legal areas in which the State acts as a party to legal disputes. The State may not be denied the right to be represented in proceedings before a court by a lawyer in view of the specificity of the subject matter of the proceedings; costs incurred in this way cannot be regarded as inefficient without further consideration, but in each case, it is necessary to consider whether or not they are necessary, necessary for the effective application or defence of the law.
118. The decision of the Constitutional Court, sp. zn. I. ÚS 988 / 12, contains two legal sentences:
"I. The rule according to which a successful procedural party may be awarded compensation only for the costs incurred effectively applies to any costs of the proceedings, including those relating to the representation of a lawyer (remuneration for representation, flat-rate reimbursement of final expenses and compensation for value added tax).
II. The costs effectively incurred within the meaning of Article 142 (1) of the EC Treaty may be considered only those costs which the procedural party must have incurred in order to properly defend its infringed or threatened subjective right in court. As a rule, the costs associated with the lawyer's representation will correspond to this definition. However, this rule cannot be attributed to an absolute, non-exceptional nature; there may also be situations in which the costs associated with the representation of a lawyer cannot be considered necessary for the proper application or defence of the law in court. Such a case shall be the case in particular in the event of abuse of the right of representation by a lawyer. '
119. It follows from the above that, in the current situation, he was forced to take on the role of harmonising the caselaw of the general courts of the Constitutional Court, which, with its decisions, tried to fill the gaps in situations to which Decree No 484 / 2000 Coll. does not remember. However, this role does not necessarily belong to the Constitutional Court. The new legislation replacing the present adjudicating decree should be regarded as an adequate solution.
Facite
120. In the light of the foregoing, the Constitutional Court has concluded that the contested order is not only contrary to Paragraph 142 (1) (a), which provides as a criterion for the reimbursement of costs of proceedings the effectiveness of the costs incurred but also to Article 4 (1) of the Charter, which provides that obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms.
121. Although the above claims of illegality and illegality relate mainly to the provisions of § 3 (1) and the provisions of § 12 of the contested order, the Constitutional Court concludes that it is appropriate to repeal the entire decree because the individual provisions of the entire order are interconnected.
122. When summarising the above, the Constitutional Court found the contradiction of the contested decree not only with the law, but also with the constitutional order of the Czech Republic, and therefore the contested decree pursuant to § 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., was annulled on the date of the publication of this decision in the Collection of Laws.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Section 14 of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Vladimir Krok took a different position on the decision of the plenary.
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Regulation Information
| Citation | The Constitutional Court found No 116 / 2013 Coll., on the application for annulment of Decree No. 484 / 2000 Coll., setting flat rates of remuneration for the representation of a participant by a lawyer or notary when deciding on the reimbursement of costs in civil proceedings and amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (lawyer tariff), as amended, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.05.2013 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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