The Constitutional Court found No 2 / 2008 Coll.

Motion denied.

1.

The Circular Court for Prague 1 (hereinafter also the Circular Court) submitted to the Constitutional Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter the "Constitution '), in conjunction with Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter the" Law on the Constitutional Court') a proposal for the annulment of the provisions of § 444 (2) of Act No. 40 / 1964 Coll., Civil Code, as amended. The proposal formally also meets other requirements required by the Constitutional Court Act.

2.

In the application for the opening of proceedings, the appellant stated that the Circuit Court was in charge of proceedings for compensation for damage to health, namely the payment of insurance claims against the insurer pursuant to the provisions of § 9 of Act No. 168 / 1999 Coll., on liability insurance for damage caused by the operation of the vehicle and on the amendment of certain related laws (Act on Insurance of Liability from the operation of the vehicle) in which the applicant is a natural person, the defendant is an insurer and the subject of the dispute is the payment of CZK 1 458 000 for the difficulty in social application. The applicant suffered serious injuries in an unguilty car accident and sought compensation for the inconvenience of social application. To this end, she had two expert opinions, according to which the total amount of compensation for making social application difficult was CZK 486 000, which was paid to her by the insurer. In view of the lasting consequences, the permanent restriction in the family, social, cultural, sporting, sexual life of the applicant proposed that the court grant it pursuant to the provisions of § 7 (3) of Decree No. 440 / 2001 in conjunction with the provision of § 444 (2) of the Civil Code on the assessment of the complexity of the social application, since in its case it is a particularly exceptional, extraordinary case, and to require the insurer to pay an amount equivalent to three times, i.e. another CZK 1,458 000.

3.

Furthermore, the appellant stated that it should apply the provision of § 444 of the Civil Code in conjunction with Decree No. 440 / 2001 Coll., on the compensation of pain and the inconvenience of social application. It is aware that pursuant to Article 95 (2) of the Constitution, in conjunction with Article 64 (3) of the Constitutional Court Act, it is justified to propose the repeal of the law or part of it for a conflict with constitutional order; It cannot therefore propose the repeal of the legislation of lower legal force, in this case Decree No 440 / 2001 Coll. However, since the law directly refers to this regulation, it requires the court to proceed under the statutory law in disputes concerning compensation for damage to health, the nature and constitutional conformity of the regulations referred to must be dealt with. In addition, Article 444 (2) of the Civil Code and the Decree constitute a legislative whole, so if the court is to apply a law which refers to the Order in its entirety and without further reference, it has to deal logically with whether it is contrary to the constitutional order as well as the Decree applied.

4.

On the substance of the problem, the appellant stated that the whole system of compensation for the pain and the difficulty of social application, which is based on the construction of multiples calculated according to the number of points laid down by the Ministry, which subsequently obliges the judicial experts and, as a result, the court, is undignified, contrary to the principles that must be respected in a democratic society, having serious regard to the protection of human honor, dignity and, above all, health and life. If the law exposes the construction of compensation for damage to health (constitutionally protected right) on the fact that it mandates the Office (Ministry of Health) to evaluate the amount of compensation for pain and the burden of social application in a completely undignified manner, as is the case with Decree No. 440 / 2001 Coll., this is a fundamental disrespect to human rights and therefore a contradiction with the provisions of Article 1 (1) of the Constitution. The method of compensation is even more undignified if it allows the courts to increase the compensation provided for under the law in conjunction with the Order only in exceptional cases worthy of exceptional consideration (§ 7 (3) of Decree No. 440 / 2001 Coll.).

5.

In the other part, the appellant argued that:

(a) Paragraph 444 (2) of the Civil Code is contrary to Article 4 of the Constitution, since by authorising the Ministry of Health to determine the amount by which compensation may be granted for the pain and the inconvenience of social application and the determination of the amount of compensation, the court is excluded from effectively protecting fundamental rights and freedoms;

(b) Paragraph 444 (2) of the Civil Code, in conjunction with Decree No 440 / 2001 Coll. is contrary to Article 6 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), since the person whose health is damaged is not liable to compensation, the amount of which cannot in any case be considered as such to protect human health prevention and, therefore, life, and since it is not dignified that compensation, not exceptional and exceptional, cannot be granted to citizens who have failed to perform extraordinary tasks before the accident;

(c) Paragraph 444 (2) of the Civil Code, in conjunction with Decree No 440 / 2001 Coll. is contrary to Article 10 (1) of the Charter, since the existing legislation, in its essence and in its philosophy, is grossly reducing human dignity if, for example, the cheapest car can be acquired for an amount comparable to that to be compensated for by an injured citizen who has lost completely sight as a result of the accident;

(d) Paragraph 444 (2) of the Civil Code, in conjunction with Decree No 440 / 2001 Coll., is contrary to Article 31 of the Charter because it does not ensure that the injured person is able to obtain such means that would allow him to eliminate all possible consequences of damage to health, even by way of superstandard and paid procedures;

(e) Paragraph 444 (2) of the Civil Code in conjunction with Decree No. 440 / 2001 Coll. is contrary to Article 3 (1) of the Charter because it distinguishes between citizens of different ages, without regard to the constitutionally guaranteed protection of health, life and human dignity, which cannot be dependent on age.

6.

For all the above reasons, the appellant is convinced that the provision of Paragraph 444 (2) of the Civil Code is unconstitutional, since the legal design of compensation for pain and the burden of social application is based on age discrimination, it is contrary to the right to the protection of life, health and human dignity, the specific provisions of the law are disrespectful to the constitutionally protected rights of man and the protection of those rights is excluded from judicial protection. It considers the whole design and method of compensation so undignified that the contradiction with constitutional rights is so significant that it cannot be bridged by a constitutional interpretation of the law.

7.

The appellant also stated in the text of the proposal that even if the Constitutional Court came to the conclusion that the General Court was not actively legitimate in bringing the application, it should nevertheless consider the constitutionality of Decree No. 440 / 2001 Coll., since under Article 87 (1) (b) of the Constitution, in conjunction with Article 11 (2) (b) of the Law on the Constitutional Court, it also decides to repeal other legislation or its individual provisions.

8.

In its observations, the Chamber of Deputies of the Parliament of the Czech Republic recalled that the draft law (Act No. 367 / 2000 Coll., which added the second paragraph to Section 444 of the Civil Code) was submitted on 16 December 1999 as Chamber Press No. 465. The explanatory memorandum to that provision only briefly stated that it was proposed that a constitutional correct authorisation for the issue of an implementing regulation should also be established for the area of civil relations, which sets out the amount by which compensation for pain and social difficulties can be granted and the amount of such compensation should be determined, thereby complying with the provisions of labour law; It concluded that the draft law was in line with the constitutional order and the international treaties that the Czech Republic was bound by. The Chamber of Deputies agreed to the proposal at its 26th meeting on 10 July 2000, when 118 of the 169 Members were in favour, against 45. The proposal was forwarded to the Chamber which returned it with amendments but did not apply to the contested provision. The bill returned by the Senate was re-voted on 14 September 2000 at the 27th meeting. Since the Chamber of Deputies did not approve the bill as amended by the Senate, it voted pursuant to § 97 (5) of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies; she insisted on the original draft law when 130 of the 186 Members came forward and 53 opposed it. The President signed the Act on 6 October 2000. Law No 367 / 2000 Coll. was signed by the relevant constitutional authorities and was duly declared. On this basis, the Chamber of Deputies expressed the view that the legislature acted in the belief that the law adopted was in line with the Constitution and our rule of law. It is up to the Constitutional Court to examine the constitutionality of this law and to give its decision.

9.

The Senate of the Parliament of the Czech Republic also summarised in its observations the progress of the legislative process and recalled that the contested provision was not affected in any way during it. Unlike the Chamber of Deputies, the Senate also took a position on the substance of the matter in its observations. In this context, he recalled that the provision of Section 444 of the Civil Code establishes the right to compensation for non-property damage, with its second paragraph being a typical instruction by which executive powers are required to implement the law by decree within the limits laid down, which the Ministry of Health fulfilled in its entirety by issuing Decree No. 440 / 2001 Coll., on compensation for pain and inconvenience of social application. It considers it evident that the material covered by this decree is a space for delegated standards when the legislator is not adapted ideally or materially to normalise social reality to the last detail. The legislator fulfilled his role by showing the will to be, i.e. enacted, in order to compensate for the pain and inconvenience of social application in the event of one-off injury. The legal authority then required the legislature to implement the legislator's will to determine the amount of compensation and its determination in an executive manner. From this point of view, the Senate considers the appellant's false assertion that such a design is contrary to Article 1 (1) of the Constitution. Therefore, the Senate refers to the amount of compensation as a key reason for the appellant's argument on the inconstitutionality of Article 444 (2) of the Civil Code, which makes it clear that the Senate is making its own views on the individual appellants' claims of infringement of the relevant articles of the Charter, and finds that these claims are not justified. Finally, it disputes in detail the appellant's view that the Court is excluded from effectively protecting fundamental rights and freedoms by constructing Paragraph 444 (2) of the Civil Code. First of all, it states that the contested provision cannot be interpreted in such an extensive way as to lead to considerations of distortion of the division of power. It recalls that Article 95 (1) The Constitution sets out the principle of the binding principle of a judge by law and by an international treaty which forms part of the rule of law, thereby allowing the judge to assess the compliance of another law with the law or such a treaty. This implies an imperative not to apply a substatutory regulation that would contradict them. From the principle of iura revising curia, the Senate states that if the judge of the general court has been convinced of the illegal (unconstitutional) amount of compensation, possibly of the illegal (unconstitutional) selection of the recipients of compensation, it has the right - rather, the obligation - not to use the substatutory rule on the case which it has decided and to use all available legal possibilities to provide protection to the court, to decide the case and, in the justification, to give convincing reasons as to why it considers the substatutory law to be inconsistent with the law. Following this conclusion, he repeatedly pointed out that, pursuant to Paragraph 7 (3) of Decree No 440 / 2001 Coll. the Court has the possibility to increase the amount of compensation accordingly, while the judge is not obliged to refer dogmatically to established judicial practice on a case-by-case basis, but to, in the light of the Constitutional Court's bail-in, to the law by means of rational, arguments developed, creative interpretation. Finally, it adds that the assessment of the constitutionality of the application for annulment of the contested provision leaves it to the Constitutional Court.

10.

The observations of the Chamber of Deputies and the Senate were sent by the Constitutional Court to the appellant in the light of a possible reply; the applicant has not exercised that option.

11.

After taking evidence, the Constitutional Court found that the application was not justified. Article 95 (2) The Constitution states that if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. The law of the Court is laid down in Paragraph 64 (3) of the Law on the Constitutional Court as the right to file an application for annulment of the law or its individual provisions. This means that the active substantive legitimacy of the court to file a motion for annulment of the law or individual provisions of the law depends on the subject matter of the dispute and its legal qualifications. In other words, the court may apply for the annulment of only such a law, or its individual provisions, to be applied in the dispute pending before the General Court. The Constitutional Court adds that the reasoning for such an application must be justified, must be derived from the fulfilment of the conditions of the procedure, including the substantive legitimacy of the participants and, if it is a substantive provision, from the unambiguous finding that such a regulation is to be applied. In the present case, the Constitutional Court found that the conditions for the annulment of Paragraph 444 (2) of the Civil Code were not met. It follows from the proposal that in the Circuit Court, the applicant, who suffered an injury in a car accident, is seeking the payment of insurance claims against the insurer under Section 9 of Act No. 168 / 1999 Coll., on insurance of liability for damage caused by the operation of the vehicle and on the amendment of certain related laws (Act on Insurance of Liability from the operation of the vehicle). The object of the dispute is the payment of CZK 1 458 000 for the difficulty of social application. The applicant had two expert opinions assessing the complexity of the social application to a total of 3,150 points and the corresponding amount (CZK 486 000) was paid to her. In view of the lasting consequences, the permanent restriction in the family, social, cultural, sporting, sexual life of the applicant proposes that the Court should grant it, pursuant to Article 7 (3) of Decree No 440 / 2001, in conjunction with Article 444 (2) of the Civil Code, further compensation for the burden of social application in the amount of three times the basic assessment of the complexity of the social application, because it is a particularly exceptional, extraordinary case, and that the defendant should order to pay an amount corresponding to that three times, i.e. another CZK 1,458 000.

12.

The text to repeal the proposed provision is as follows:

Article 444 (2) of the Civil Code:

"The Ministry of Health shall, in agreement with the Ministry of Labour and Social Affairs, determine the amount by which compensation may be granted for pain and for the inconvenience of social application and the amount of compensation in each case. '

13.

The Constitutional Court notes that, in the present case, Article 444 (2) of the Civil Code was applied in general. It follows from its caselaw that it is a typical authorisation provision which is not in itself an unconstitutional [see also the finding in the case sp. zn. Pl. ÚS 20 / 05, the Collection of finds and orders of the Constitutional Court (hereinafter referred to as "the Reports of the Judgments'), Volume 40, Found No 47, published under No 252 / 2006 Coll., in which the Constitutional Court stated that" Article 696 (1) of the Civil Code itself, which merely predates the adoption of a new regulation, is not an anti-constitutional, the unconstitutional failure of the legislature which results in a constitutionally unacceptable inequality and in the final violation of constitutional principles'.] Although the two cases are different (since, on the basis of Article 444 (2) of the Civil Code, the implementation arrangements were adopted while the arrangements foreseen by the provisions of Article 696 (1) were not at the moment), the nature of the authorisation provisions remains identical. For this reason, the conclusions of the Constitutional Court adopted in the case sp. zn.

14.

Concerning the case at hand The Constitutional Court considers it desirable to recall that the object of a specific application in the dispute before the Circular Court is the provision of Section 7 of Decree No. 440 / 2001 Coll., whose annulment was not proposed. His definition is as follows:

"The amount of pain compensation and the inconvenience of social application

(1) The amount of pain compensation and the burden of social application shall be determined on the basis of the scores set out in the medical opinion.

(2) The value of 1 point is 120 CZK.

(3) In particularly exceptional cases of special consideration, the court may raise the amount of compensation provided for in this order accordingly. '

The Constitutional Court adds that it fully agrees with the view of the Senate (paragraph 9), refers to its conclusions in the resolution in Case sp. zn. I. ÚS 419 / 06 (not published in the ECR), and adds that the Circular Court lacks the "courage 'to examine the action within the meaning of those principles. This means that within the meaning of Article 95 (1): The Constitution is bound by the law and the international treaty, which forms part of the rule of law. The judge is thus entitled to assess the compliance of other legislation (i.e. also Section 7 of Decree No. 440 / 2001 Coll.) with the law or such an international agreement. If it is concluded that this is a rule of conduct which conflicts with them, the judge is obliged not to apply such a rule (see iura renovit curia). However, it is logical that, in such a case, the dispute must be decided and duly clarified in the statement's statement of reasons for the decision, including the reasons for which it did not apply the rule of law.

15.

In the present case, the applicant is also offered to apply the rule included in Section 7 (3) of Decree No. 440 / 2001 Coll. It is a legal standard which gives the court the discretion to exceed the scores and to take account of exceptional circumstances. While it is true that the caselaw of the General Courts is rather directed towards the restrictive application of this provision (see the references to page 5 of the proposal), its conclusions do not preclude the appellant from finding the existence of conditions for increased compensation also in the present case. This can also be done by the Constitutional Court's considerations expressed in the legal sentence of the decision in the case sp. zn. III. ÚS 350 / 03 (Reports of Decisions, Volume 38, Found No 186):

"The modern constitutional unwritten rule, which according to the Constant case-law of the Constitutional Court also applies, is the principle of proportionality, which is one of the general principles of law which, although not explicitly contained in the law, is fully applicable in European legal culture (see, for example, the finding of plenary of the Constitutional Court in Case No 30 / 1998 Coll.). The Constitutional Court thus applied to European legal culture and its constitutional traditions. In the light of this general principle of law, it also interprets constitutional rules, particularly the Charter of Fundamental Rights and Freedoms. Such interpretation is then reflected in the interpretation of individual legislation, i.e. in this case those governing the amount of compensation granted for the damage caused to health (compensation for the inconvenience of social application). An infringement of the rule of proportionality may interfere with constitutionally guaranteed rights, namely the rights of judicial protection (Article 36 (1) of the Charter of Fundamental Rights and Freedoms).

...

In the present case, the interpretation of Decree No. 32 / 1965 Coll., which was in force at the time, was the subject of a dispute concerning the compensation of pain and the inconvenience of social application, in the relevant wording, which was the implementing regulation issued by virtue of the legal authorisation provided for in § 444 (2) of the Civil Code, in particular Article 7 (3) thereof, according to which, in particularly exceptional cases of exceptional concern, the court may increase the compensation accordingly above the maximum levels of compensation. The District Court of Pilsen found that there were circumstances worthy of special consideration in the present case. The Regional Court in Pilsen and the Supreme Court took the opposite view that, at the same time, the amount of compensation granted to the complainant was not attributable to the court by increasing the compensation for the burden of social application in accordance with the procedure laid down in Article 7 (3) of the Decree to replace the lack of legislation in force at the time, when the amount of compensation set at CZK 30 per point does not correspond to the current wage ratios.

The following should be noted. In the view of the Constitutional Court, it is difficult to imagine a better example of the case of "worthy of extraordinary consideration 'under Paragraph 7 (3) of the relevant Decree than the irreversible and permanent damage to health resulting in a marked reduction in the functionality of one of the most important organs in the human body as a whole (kidney), as has already been said, by the incorrect, irresponsible and unprofessional procedure of the operator. The argument of the General Court of First Instance in this regard is closest to the constitutional interpretation of the provision in question. The conditions for applying the provisions of Paragraph 7 (3) of the Decree were therefore fulfilled in the view of the Constitutional Court.

The Constitutional Court relied on the following criteria which were met or which it considered should have taken into account:

• the severity of the damage caused to health, i.e. whether (damaged) vital organs have been affected;

• the possibility of curing or eliminating the damage caused, i.e. whether it is limited in its way of life as a result of the damage and whether it is forced to check regularly with doctors, other operational interventions or has become at least to some extent dependent on instrumentation as a result of the damage to health;

• the degree of fault (negligence) of the operator, i.e. the extent to which there has been a deviation from the standard (proper) procedure of the operation.

Although it is not for the Constitutional Court, in its capacity as a judicial body for the protection of constitutionality (Article 83 of the Constitution of the Czech Republic), to establish the specific amount to which compensation for the inconvenience of social application should be granted, that is to say what the multiple under Article 7 (3) of the Decree in question should be, but must be based on the principle of proportionality. In other words, when assessing exceptional cases, general courts have some scope to consider the multiple they will use. However, from the point of view of the protection of constitutionality, it must ensure that the amount of compensation granted for making social application more difficult is based on objective and reasonable grounds, and that there is a relationship of proportionality between the amount granted and the damage caused by the destruction of one kidney.

16.

In addition to the proposal, the Constitutional Court points out the possibility of increasing the point assessment of injury to health in accordance with the procedure laid down in Paragraph 6 (1) of Decree No 440 / 2001 Coll.

17.

The Constitutional Court does not agree with the appellant's reasoning on the extent of its powers of review in relation to legislation (see paragraph 3). The appellant's assertion considers it a purposeful attempt to ensure that the Constitutional Court itself assesses the constitutionality of Decree No. 440 / 2001 Coll. In this regard, it is necessary to fully respect the definition of a set of actively legitimate bodies to make such a proposal (see Section 64 of the Constitutional Court Act). The Constitutional Court recalls that from the point of view of the content appellant did not go against the law, but against Decree No. 440 / 2001 Coll., while the appellant (General Court) is not legitimate in the application for its annulment, on the contrary, if he is convinced of the unconstitutional nature of the decree, he does not have to use it and can decide only on the basis and in the spirit of the law which is implemented by the decree. With a possible lack of active legitimacy, the appellant also calculates (p. 4, first paragraph), and for this case he considers that the Constitutional Court should nevertheless consider the constitutionality of the Decree, since pursuant to Article 87 (1) (b) of the Constitution, in conjunction with Article 11 (2) (b) of the Law on the Constitutional Court, it also decides to repeal other legislation or its individual provisions. However, this reasoning does not respect that a proposal for annulment by an authorised body is necessary to assess the constitutionality of the decree - see Section 64 (2) of the Constitutional Court Act. Such a body is not in itself even the Constitutional Court (cf. its authorisation under Paragraph 78 (2) limited only to proceedings on constitutional complaints).

18.

On the basis of the above, The Constitutional Court notes that there are no grounds for the annulment of the provisions of Paragraph 444 (2) of the Civil Code, since that provision is not, by itself, contrary to Article 3 (1) of the Charter of Fundamental Rights and Freedoms and therefore rejected the application of the District Court for Prague 1 without the presence of the parties and with their consent (or with the fiction of consent) outside the oral proceedings under Article 70 (2) of Law 182 / 1993 Coll., of the Constitutional Court.

In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Eliška Wagner and Vlasta Formánek took a different position.