Communication from the Constitutional Court No. 124 / 2013 Coll.

The Constitutional Complaint against the Order of the Court of First Instance which, pursuant to § 9 (1) of the Act of the Czech National Council No. 549 / 1991 Coll., on judicial fees, as amended, was called upon to pay the procedural fee, payable by the application for the initiation of proceedings, appeal, appeal or appeal, is inadmissible pursuant to § 75 (1) of the Act No. 182 / 1993 Coll., on the Constitutional Court, as amended.

1. Before the Constitutional Court, proceedings were initiated for a constitutional complaint by Ing. Pavel Radona against the resolutions of the Municipal Court in Prague of 31 October 2012 No 31 C 105 / 2012-6 and No 31 C 105 / 2012-7; the case is conducted under sp. zn. I. ÚS 42 / 13. The complainant was subsequently asked by the aforementioned order (hereinafter referred to as "the contested order ') pursuant to § 9 (1) of Act No. 549 / 1991 Coll., on judicial fees, as amended, (hereinafter referred to as" the Law on judicial fees') to pay a supplement to the legal fee for a claim for the protection of personality of CZK 2 000. This was due to the fact that his action was against two defendants, as a result of which the management fee is CZK 4,000, twice the rate set by the fixed amount under item No 3 (a) and No 4 (1) (c) of the schedule of charges, the annexes to the Law on Judicial Charges. On the contrary, the complainant considered that the number of defendants was irrelevant if each of them had committed the same undue interference with personality rights. In setting this supplement, he saw a breach of his fundamental rights.

2. Before the Constitutional Court could proceed to a substantive assessment of the constitutional complaint, it had to deal with the question of its admissibility. As is apparent from Article 75 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, constitutional complaints can only be sought against decisions of "final ', i.e. decisions on the last procedural instrument provided by the Law on the Protection of the Law. It will normally be those decisions that end the judicial or other proceedings. However, compliance with these conditions may also be allowed in the case of non-routine decisions which are capable of intervening immediately and sensitively in the complainant's fundamental rights and which form a separate closed part of the procedure, even though the proceedings in the matter itself have not yet ended [cf. the finding of 12 January 2005, sp. zn. III. ÚS 441 / 04 (N 6 / 36 SbNU 53)]. However, according to the First Chamber of the Constitutional Court, this is not the case with the contested order.

3. In accordance with Article 9 (1) of the Law on Judicial Charges, where a procedural fee has not been paid by the filing of an application for the initiation of proceedings, appeal, appeal or appeal, the court shall invite the taxpayer to pay it within a time limit specified by it; after the expiry of that period, the court shall terminate the proceedings. A notice within the meaning of that provision shall be decided by the court by a decision indicating, inter alia, the amount of the fee or the additional fee to be paid by the taxpayer, and shall also specify the time limit by which he is to do so and shall inform him that, in the event of failure to pay, the court shall terminate the proceedings. In the part in which it determines the amount of the fee, the order shall have the character of a declaratory decision. It does not create a charge obligation, but only individual. As a whole, the resolution merely regulates the conduct of proceedings, which makes no appeal [Paragraph 202 (1) (a) of the Civil Code] admissible.

4. The assessment of the admissibility of a constitutional complaint against this resolution requires answering questions as to whether it interferes with the rights of the taxpayer and, if so, whether the law provides the taxpayer with legal means to protect his right. The fact that the challenge in question individualises the charge obligation in substance certainly allows the taxpayer to act in confidence in its correctness. However, it should be pointed out that the incorrect determination of the amount of the fee does not in any event entail a change in the statutory fee obligation. Therefore, if it is so determined at a level below that laid down by the law, and the taxpayer pays it, that fact cannot go to its burden in the sense that the court will stop the proceedings for his application without calling on him to pay the fee in full in a lawful and therefore correct manner. On the other hand, if the Court of First Instance incorrectly determines the amount of the charge to be higher, it shall not be obliged to pay it in this "excess' part. If the court had failed to pay that difference, such a decision would have been unlawful.

5. It can be assumed that, in the course of the proceedings, if there is no annulment or replacement of the order in question, the court's view on the amount of the charge is also prejudiced by the result of its possible non-payment. Thus, in principle, the taxpayer has two options for obtaining a review of the legality by calling for a fee obligation. The first is the non-payment of the court fee in the contested part. The Court of First Instance will then decide to terminate the procedure, which will eventually affect the basic rights of the taxpayer, but it will be able to defend itself against such a decision by order of law, whether in the form of ordinary or, where appropriate, exceptional remedies, and, if no legal remedies are admissible, by means of a constitutional complaint [cf., for example, the finding of 20 December 1995 sp. zn. I. ÚS 231 / 95 (N 86 / 4 SbNU 307)]. In addition, there is nothing to prevent the payer from objecting to the incorrect determination of the amount of the court fee in the notice before the decision to terminate the proceedings and, in that regard, to the court to change his view of the amount of his fee obligation. The Court of First Instance is not bound by the (procedural) order which it has called for to pay the court fee and, having found that the amount of the charge is incorrect, it may itself rectify its error by rescinding the order or issuing a new notice or, at least in fact, acknowledge that the charge has been paid in the correct amount and not stop the proceedings. However, there is another approach, the undoubted advantage of which is that it allows the taxpayer to prevent the termination of proceedings with certainty. The payer may pay a fee of the amount specified in the call in question, despite having doubts as to the accuracy of that amount. In so doing, if they actually pay a higher amount, they have the right to seek reimbursement of the "extra 'amount in accordance with Paragraph 10 (2) of the Law on the Judicial Charges. The court shall decide on its application by order against which, depending on the type of procedure and the rules in force, an appeal will either be admissible or may be challenged directly by a constitutional complaint. Any refusal to refund a fee to which the taxpayer is entitled may constitute a ground for violating his fundamental rights and freedoms (cf. Mutatis mutandis finding of 18 December 2012 sp. zn. I. ÚS 3296 / 12; available at http: / / nalus.ujud.cz).

6. Those conclusions imply that any misdetermination of the amount of the fee in the call under Paragraph 9 (1) of the Law on judicial fees is not in itself directly capable of causing interference with the fundamental rights and freedoms of the taxpayer, but could only be attributed to a resolution terminating proceedings on grounds of non-payment of the court fee or to a resolution which did not comply with the fee application which was paid on the basis of an incorrect appeal by the court. Similarly, it is possible to consider setting a deadline for payment of the fee, as the violation of the taxpayer's fundamental rights does not occur by its futile expiry, but only by a decision to terminate proceedings which may be given later. The resolution calling on the taxpayer to pay the court fee cannot therefore be regarded as a decision on the last procedural instrument within the meaning of Article 75 (1) of Act 182 / 1993 Coll., on the Constitutional Court, as amended.

7. However, the First Chamber of the Constitutional Court in the present case could not reject the complainant's constitutional complaint in the part against the contested order only on the basis of that argument, since such a conclusion would be contrary to the binding legal opinion expressed in the findings of 16 March 2006 sp. zn. I. ÚS 664 / 03 (N 56 / 40 SbNU 547) of 17 May 2007 sp. zn. II. ÚS 745 / 06 (N 83 / 45 SbNU 239), of 26 September 2007 sp. zn. I. ÚS 43 / 46 SbNU 481), of 1 November 2007 sp. zn. II. ÚS 359 / 07 (N 178 / 47 SbNU 357) and of 3 April 2008 sp.

8. The first finding, sp. zn. I. ÚS 664 / 03, against which this opinion is set out, concerned a constitutional complaint against 75 and 75 resolutions of the Municipal Court in Prague, by which the complainant was asked to pay a fee for the action against the administrative decision in the various proceedings. The first group was delivered to her via an attorney, the second directly. The Constitutional Court acknowledged in this finding that the complainant was not able to pay the court fee determined by the call in question and subsequently to lodge appeals pursuant to Article 103 (1) (e) of the Administrative Code against the decision of the court which terminated the proceedings; However, it did not consider it reasonable to require it to make a conscious non-payment only in order to retain the possibility of defending itself against a decision on a fee obligation. In addition, in the present case, the fee for lodging 75 complaints would amount to CZK 150 000 in total, which would in effect prevent the complainant from accessing the Constitutional Court and devalue the importance of the constitutional complaint. The Constitutional Court therefore opted to the conclusion that a constitutional complaint may also be directed against a declaratory "charge order ', that is, against the order which the complainant was called upon to pay the court fee. It did so, despite the fact that it was only a resolution which led to the proceedings, since it was by this decision that the charge obligation was individualised, or that the importance of the general standard (the Law on judicial fees) in relation to the complainant was specified. However, the admissibility of a constitutional complaint was conditional on the submission of an complaint within the meaning of Article 12 of Act No. 549 / 1991 Coll., on judicial fees, as amended by 31 December 2010 (i.e. prior to the application of Act No. 281 / 2009 Coll.), to which the participant could possibly have obtained an amendment or revocation of the decision on the charge obligation. However, it was no longer necessary for the complainant to challenge the decision on this complaint, or at least the court procedure for dealing with it. The complainant therefore merely lodged the complaint, which was sufficient for the substantive examination of the constitutional complaint.

9. The legal conclusions contained in this finding were also reflected in other decisions in similar cases but were not applied in a completely consistent manner. In particular, the following findings were:

- the decision requiring the complainant to pay the court fee has been annulled by the decision sp. zn. II. ÚS 745 / 06; the complainant paid it in a preventive manner, but it is not clear from the finding whether it initiated the procedure under Section 12 of Act No. 549 / 1991 Coll., on judicial fees, as amended by 31 December 2010;

- the finding of sp. zn. I. ÚS 43 / 07 has been annulled by the order by which the complainant was requested to pay the legal fee; the complainant paid it in a preventive manner and initiated the procedure under Article 12 of Act No. 549 / 1991 Coll., on Judicial Charges, as effective until 31 December 2010; the finding does not indicate how the complaint was handled;

- the finding of sp. zn. II. ÚS 359 / 07 has been annulled by the order by which the complainant was requested to pay the legal fee; originally called for payment of the amount of CZK 14,000, after which he initiated the procedure under Section 12 of Act No. 549 / 1991 Coll., on judicial fees, as amended until 31 December 2010; then a new resolution was issued calling on the complainant to pay the amount of CZK 12,000, with a constitutional complaint against him; it is not clear from the finding whether the complainant lodged the complaint afterwards;

- the decision ordering the complainant to pay a supplement to the judicial fee in the administrative court cases was annulled by the decision sp. zn. II. The complainant paid it in a preventive manner and initiated the procedure under Article 12 of Act No. 549 / 1991 Coll., on judicial fees, as effective until 31 December 2010, to which the Municipal Court in Prague did not comply and remained in its original view.

10. The referring Chamber of the Constitutional Court does not agree with the conclusions set out in those decisions. While it agrees that the legislation should not force taxpayers to put themselves at risk in order to obtain judicial protection by deliberately failing to pay the court fee, such a procedure is not necessary in any of the proceedings which are initiated by the submission of one of the proposals referred to in Article 9 (1) of the Law on judicial fees. This is also the case in the case of proceedings before the Regional Court in the administrative justice system, which were carried out in those findings. After paying a court fee of the amount determined by the call, the taxpayer could propose his, even in part, reimbursement on the ground that he paid more than he was obliged to, following an incorrect appeal by the court. This would, as mentioned above, open up to him the possibility of asserting his argument in court proceedings against the amount of the fee specified in the invitation.

11. On the contrary, the First Chamber of the Constitutional Court considers the complaint within the meaning of Article 12 of the Law on Judicial Charges irrelevant in the assessment of the admissibility of the constitutional complaint against the contested order. First of all, it should be noted that the effective date of Act No. 281 / 2009 Coll. has been amended by this provision, which does not allow the new annulment or amendment of the "incorrect decision on the charge obligation ', but by the" incorrect decision imposing the charge obligation'. Thus, the new term no longer includes (declaratory) the call for payment of the court fee, which clearly results from the distinction between the two terms in § 10 (2) of the Law on the judicial fees (cf. Waltr, R. Law on the judicial fees. Comment. Issue 2. Praha: C. H. Beck, 2012, p. 62). However, it is clear that the condition of admissibility thus defined in the past was very problematic in the light of Article 75 (1) of the Constitutional Court Act, for several reasons. In particular, the complaint did not have the character of a legal instrument which the law provides to the complainant for the protection of the law. It did not initiate any procedure under which the order under appeal could be examined and the court had no obligation to decide on it, even if only in that case it could be required to be exhausted, which by default means not only the lodging of an appeal but also the termination of proceedings. In this context, it was not clear when this means was to be applied or whether the court should have received a period of time following the complaint to examine the amount of the fee, which was reflected in the above-mentioned different practice of the Constitutional Court as regards the application of this condition, or only led to a formal, not effective, application of this device (cf. Assessment of compliance with this condition in the resolution of 19 May 2011 sp. zn. II. ÚS 937 / 11, even after a change of legislation with effect from 1 January 2011). Despite this ambiguity, however, its failure to apply could lead to the rejection of a constitutional complaint (cf. Resolution of 28 November 2008 sp. zn. II. ÚS 2104 / 08, 10 March 2011 sp. zn. III. ÚS 581 / 11; available at http: / / nalus.ujud.cz).

12. These grounds justify the conclusion that the application of the complaint within the meaning of Article 12 of Act No. 549 / 1991 Coll., on judicial fees, as amended by 31 December 2010, should not, in the opinion of the First Chamber of the Constitutional Court, be considered as a condition for the admissibility of a constitutional complaint. In any event, however, it is not appropriate to conclude that, following this amendment, the relevant legal conclusions contained in the finding sp. zn. I. ÚS 664 / 03 are no longer relevant. In particular, the core of them, namely the acceptance of a constitutional complaint against the order by which the court calls on the taxpayer to pay the court fee, continue to apply. Its fundamental shortcoming is that it does not lead to a solution to a situation where the taxpayer paid more for the court fee than he was obliged to. Any overpayment may be individualised only by a court's decision to repay it, the issue of which, in the event that the charge is incurred directly as a result of the submission of the application, does not in any way preclude the call in question. The Court of First Instance may, when deciding on the refund of a court fee, assess the accuracy of its amount, whether it is bound by this notice or not, and the taxpayer may at any time propose a refund of the court fee without seeking to amend that call. Finally, it cannot be omitted that the Constitutional Court, by allowing the possibility of reviewing this call, places itself in a situation where it will essentially be forced to take a position on the constitutionality (and also on legality) of the amount of the court fee before the authorities within the system of general courts are able to do so.

13. Since, after the entry into force of Law No 281 / 2009 Coll. § 12 of the Law on Judicial Charges ceased to apply to the order by which the court invites the taxpayer to pay the court fee, the binding legal opinion contained in the judgment in the judgment in Case 664 / 03 [2009] ECR I, must be interpreted as meaning that the constitutional complaint against that order is admissible without further delay. However, such an interpretation is considered by the First Chamber of the Constitutional Court to be factually incorrect, believing that it has given sufficient grounds to change the Constitutional Court's legal opinion. A certain shift in favour of this change is already evident in decision-making practice when individual Chambers in some of their decisions reject constitutional complaints against such a resolution for inadmissibility (cf. Resolution of 10 May 2007 sp. zn. IV. ÚS 887 / 07, of 5 May 2008 sp. zn. III. ÚS 809 / 08, of 16 July 2008 sp. zn. II. ÚS 1259 / 08, of 27 October 2011 sp. zn. IV. ÚS 1929 / 10, of 17 April 2012 sp. The possibility of accepting a constitutional complaint also in these cases for reasons under Paragraph 75 (2) (a) of the Constitutional Court Act remains, of course, unaffected.

14. For the sake of completeness, although the Constitutional Court's legal conclusions contained in the above findings relate to the order of the Regional Court in the administrative judiciary and not to civil proceedings, as is the case in the present case, this distinction does not allow for a derogation from those conclusions only with reference to this distinction. Finally, this follows from a number of resolutions in which the Constitutional Court applied the findings of these findings in both types of proceedings (cf., resolution sp. zn. II. ÚS 2104 / 08). In both cases, the possibility of objecting to the parties shall be given to the amount of the fee by application for a refund of the court fee. The fact that no appeal is admissible in the administrative judiciary against the decision on this proposal does not affect the assessment of the admissibility of the constitutional complaint against the order which the complainant was asked to pay the court fee.

15. For all these reasons, the First Chamber of the Constitutional Court, pursuant to Article 23 of the Law on the Constitutional Court, referred to the question of the admissibility of a constitutional complaint against the resolutions which, pursuant to Article 9 (1) of the Law on Judicial Charges, called upon the taxpayer to pay the legal fee, to examine the full plenary, which was in agreement with his arguments and adopted the legal opinion set out in the operative part of that Opinion.