The Constitutional Court found No 211 / 2016 Coll.
The Constitutional Court found of 31 May 2016 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
04.07.2016
211
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 13 / 15 on 31 May 2016 in a plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Tomáš Licenčník (Judge Rapporteur), Jan Musil, Vladimir Sládeček, Radovan Suchánek, Kateřina Šimáková, Vojtěch Šimíček, Milady Tomková, David Uhír and Jiří Zemánek on the motion of the Constitutional Court of the Constitutional Court for the annulment of the provisions of Section 114b (in the scope of the title "§ 114b (5) ') of the Government of the Czech Republic, as a party to the proceedings,
as follows:
The application for annulment of the provisions of § 114b (5) and the words "§ 114b (5) 'in § 153a (3) of Act No. 99 / 1963 Coll., Civil Code, as amended, is rejected.
Reasons
Subject matter of proceedings before general courts
1. In the proceedings for a constitutional complaint brought under sp. zn.
2. The subject-matter of the proceedings before the General Courts was an action for payment of an amount of CZK 2 500 000 with accessories, submitted under a loan agreement. From the content of the requested court file it is submitted that on 24 July 2009 an application was submitted by the applicant to issue a payment order for payment of an amount of CZK 2 500 000 with interest for late payment, for the claimed claim from the loan agreement. On 4 September 2009, a payment order was issued by the District Court for Prague 7. Part of the order for payment was an invitation to the defendant (complainant) to submit observations within 30 days of the date of the submission of the opposition. The order for payment was delivered to the defendant on 9 September 2009. The complainant opposed the order on 14 September 2009.
3. On 29 October 2009, the complainant expressed its views on the Court's appeal in writing. It contested the conclusion of the loan agreement with the applicant and contested the relevant facts in relation to the alleged work contract. The complainant, together with a statement on the content of the application, also submitted to the court a request for remission of the time limit which he justified by the significant visual difficulties which occurred since 6.10.2009 and were confirmed by a documented medical report. By order of the District Court for Prague 7 of 27 April 2010, the complainant's request to forgive the delay in submitting observations on the application was rejected. The General Court found that the application for remission of the time limit was lodged within the legal period, but did not state any justification. The Court of First Instance took the view, inter alia, that the complainant could have dictated the statement to a third party. The complainant brought an appeal against the order rejecting the request for remission. The Municipal Court in Prague confirmed the decision of the Court of First Instance by its resolution of 20 January 2011. He concluded that it was not possible, in view of the nature of the time limit for submitting observations on an action which was not legal but judicial.
4. The District Court for Prague 7 decided by a judgment for recognition by imposing an obligation on the complainant to pay an amount of CZK 2 500 000 with interest on late payment and reimbursement of costs. The Court of First Instance found compliance with the conditions of the recognition judgment. The time limit for submission of observations on the action, according to the Court's conclusion, expired in vain. The judgment of the District Court was confirmed by the judgment of the Municipal Court in Prague to appeal the complainant. The Court of Appeal took the view that, between 6 October 2009 and the end of the judicial period for submitting observations, that is to say until 12 October 2009 (and then three more days until 15 October 2009), the complainant suffered from a visual disease for which he was unable to make a qualified statement on the action. However, the Court of Appeal stated that the state of health did not prevent the complainant from at least notifying the court within the time limit laid down that there was a serious reason (i.e. an obstacle to the submission of observations). The Court stated that the complainant was assisted at the time of the illness by a father who also took him to a doctor, and through his father the complainant was able to inform the court of the illness. The complainant's call was refused by the Supreme Court of Inadmissibility.
Arguments of the parties in proceedings concerning a constitutional complaint
5. In the constitutional complaint, an incorrect legal assessment of the issue of compliance with the legal preconditions for issuing a recognition judgment was contested. In addition to the lack of legal basis for the use of the so-called qualified call under Paragraph 114b of the Civil Code (hereinafter referred to as the "o.s. '), the applicant did not properly describe and prove the claimed claim in the content of the application. The complainant argued that the decisions of the General Courts for the lack of justification of the conditions of the qualified call for observations under Article 114b (1) EC, the fiction of the recognition of a claim within the meaning of Article 114b (5) EC and the issuing of a judgment for recognition under Article 153a (3) EC, had not been properly dealt with by the complainant even with the request for the waiver of the deadline for the submission of observations on grounds of proven health problems.
6. In the constitutional complaint, the complainant was also objected to refusing access to justice by the Supreme Court by refusing the complainant's permission. The Court of Appeal did not remove the defects in the proceedings before the Court of First Instance and the Court of Appeal as it did not raise any objections to the legal assessment of the Court of Appeal on the question of a qualified invitation and the creation of a fiction of the recognition of a claim pursuant to Paragraph 114b (5) EC and did not raise any objections to the appeal on the grounds that it was not a "legal dispute '. For the above reasons, the complainant has imported an infringement of the right to a fair trial pursuant to Article 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter).
7. At the end of the constitutional complaint, the complainant proposed a deferral of the enforceability of the contested decisions. The Constitutional Court complied with the application for suspension of the enforcement of decisions of the General Courts by order of 25 September 2014.
8. The District Court for Prague 7 and the Municipal Court in Prague, following the invitation of the Constitutional Court to comment, merely referred to the reasons for their constitutional complaints of the decisions in question.
9. The Supreme Court, in its observations on the constitutional complaint, argued that the complainant's objections to the misassessment of the conditions of the recognition judgment were unfounded (and did not give rise to the admissibility of the appeal), since the decisions of the lower general courts were in line with the settled case-law of the Court of First Instance on the grounds that the judgment for recognition was prevented only if it had been notified to the Court before the expiry of the period of time for the submission of observations, or where it was not possible to give notice of the court's serious plea before the expiry of the period. The decision to appeal to the complainant was not infringed by a constitutional guarantee of the right to a fair trial and therefore the Supreme Court proposed a constitutional complaint for obvious unfounded refusal or for unfounded rejection.
10. The intervener (in the applicant's dispute) expressed his views on the constitutional complaint by agreeing to the legal conclusions set out in the contested decisions of the General Courts and disagreeing with the complainant's objections. In accordance with the principle of minimising the intervention of the Constitutional Court, he did not regard the argument contained in the constitutional complaint as reaching a constitutional legal level. The constitutional complaint was proposed for unfounded reasons to be rejected.
Draft Senate of the Constitutional Court on the Repeal of Legal Standards
11. According to Article 78 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Senate shall, in the context of the decision on a constitutional complaint, conclude that the law or individual provisions of the law, the application of which is the subject of a constitutional complaint, are contrary to the constitutional law, shall suspend the proceedings before the Constitutional Court and submit to the plenary a motion for annulment of the law or its individual provisions pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution).
12. The First Chamber of the Constitutional Court (hereinafter referred to as the "appellant") concluded that the provisions of Paragraph 114b (5) (a) of the Rules of Procedure, which introduced the so-called fiction of the recognition of a claim for failure to submit observations to the defendant on a qualified appeal to the Court within the prescribed time limit, were contrary to the constitutional order. He subsequently found the non-constitutionality also in respect of the provisions of Paragraph 153a (3) (c), which regulates the form of the judgment for the purpose of the recognition of a claim (i.e. the judgment for recognition), within the scope of the designation "§ 114b (5) '. This contradiction with the constitutional order is determined by the First Chamber by the fact that the provisions in question do not guarantee the parties (in disputes) freedom of will pursuant to Article 2 (3) of the Charter and Article 2 (4) of the Constitution, nor the fair trial referred to in Article 36 (1) of the Charter and Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as" the Convention').
13. The two above provisions were applied in decisions which were challenged by a constitutional complaint. The conditions of Section 78 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. First Chamber of the Constitutional Court, by order of 1 June 2015, decided to stay the proceedings in respect of the constitutional complaint and the plenary of the Constitutional Court, proposed to repeal the provisions of Paragraph 114b (5) and (within the scope of the designation "§ 114b (5) ') of the provision of § 153a (3) o. s. s.
Arguments of the appellant
14. The contention of the contested provisions with constitutional order is seen by the appellant in that they do not guarantee the parties (in disputes) freedom of will pursuant to Article 2 (3) of the Charter and Article 2 (4) of the Constitution, nor a fair trial within the meaning of Article 36 (1) of the Charter and Article 6 (1) of the Convention. The appellant's reasons for this conclusion are as follows.
15. The fiction of the recognition of a claim pursuant to Article 114b (5) of the Constitution contradicts, according to the appellant, the principle of the autonomy of the will contained in Article 2 (3) of the Charter and Article 2 (4) of the Constitution ("Everyone may do what is not prohibited by law and no one must be forced to do what the law does not impose."). Recognition of a claim in civil proceedings is a procedural act with a disposition character. It is intended to depend, in principle, on the free will of the party (s) to accept the claim or not. The only normative structure that links the recognition of the claim (even for the purpose of speeding up the procedure) to the explicit disposition is consistent with the rule of law and constitutional principles. In this context, the appellant referred to the finding of the Constitutional Court of 21.4.2009 sp. zn. Pl. ÚS 42 / 08, as amended by the amending order of 27.5.2009 (N 90 / 53 CollNU 159; 163 / 2009 Coll.), according to which the available legal acts cannot be based on legal fiction. The opposite procedure violates the disposition principle pervading the civil process and the principle of autonomy (freedom) of will. "The obligation to respect the autonomy of the will applies not only to bodies that interpret and apply the law, but undoubtedly also to legislators. The attempt to expedite the procedure is therefore desirable on the one hand, but on the other hand it cannot take such a form that, by faking the procedural act of the participant, it actually takes away the possibility of its free conduct." (from the finding of the sp. zn.
16. The fiction of the disposition act is out of the legal order (in both substantive and procedural terms) and contradicts constitutional principles. This is all the more true if it also takes up the opposition to a payment order, which is an explicit statement of opposition to the contested decision and therefore an expression of express non-recognition.
17. The appellant admitted that, in general terms, legal fiction is admissible from the point of view of constitutional requirements if it pursues a legitimate objective and is appropriate, necessary and proportionate. It is therefore necessary to submit the proportionality test to the Institute for the Recognition of Claims under Sections 114b (5) and 153a (3). In the appellant's view, the institute is eligible for the purpose of speeding up proceedings. However, the assessment of the conditions of need will no longer stand. The rules governing the recognition of a claim pursuant to § 114b (5) o. s.) did not meet the requirement of necessity as other means can be used to achieve the stated objective. For the assessment of the need for a rule of law, priority shall be given to the means of minimising constitutional values (fundamental rights and freedoms). The expediting of judicial proceedings, which is the purpose of the Court of Justice's judgment on recognition pursuant to Article 114b (5) and Article 153a (3) of the EC Treaty, could be achieved (even in the event of failure to act by the defendant making observations on the action) by a judgment of default (hereinafter referred to as "the judgment of contention ').
18. The judgment would not infringe the autonomy of the party's will and the court could interpret and apply the rule of law in a constitutionally consistent manner. If the conditions of the contested provisions for the recognition of a claim are fulfilled, "the court shall decide by a judgment for recognition '(that is to say, it has an obligation, not the possibility of giving a recognition judgment). In the case of a judgment by default, it is the right (discrepancy) and not the duty of the court to decide on a proposal from the applicant by a contumation judgment.
19. According to the appellant, the shortcomings of the contested provisions cannot be overcome by constitutionally conformal interpretation. The judgment for recognition issued on the basis of the fiction of the recognition of a claim pursuant to Article 114b (5) in conjunction with Article 153a (3) CS. Acceleration of proceedings is achieved here at the expense of objective truth and constitutional cauties (autonomy of will and fair process). If the recognition of a claim within the meaning of § 114b (5) o. s., the civil court pursuant to § 153a (3) o. s. It shall not be entitled to take into account whether, by failing to submit observations, the defendant has caused, or has not caused, delays in the proceedings, whether or not he has lodged an opposition in good time or has expressed his opposition to the application before the judgment for recognition has been delivered.
Observation of the parties to the standard control proceedings
20. In its observations, the Chamber of Deputies of the Parliament of the Czech Republic stated that the legislature followed the adoption of draft laws amending the Civil Code in accordance with the Constitution and the Code of Law. In conclusion, it was stated that it was up to the Constitutional Court to examine the question of the inconstitutionality of the contested legal provisions.
21. In its observations, the Senate of the Parliament of the Czech Republic stated that a similar construction to the provisions of § 114b (5) o. s. o. s. also contains § 114c (6) o. s. s. o. s. (including the connection to § 153a (3) o. s.). The Senate, referring to paragraph 38 of the explanatory memorandum to Act No. 7 / 2009 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and other related laws, stated that the passivity of the parties to the civil proceedings had significant consequences for the civil process. In conclusion, he added that the decision to abolish the contested legal rules was based on the consideration of the Constitutional Court.
22. The Government of the Czech Republic entered the proceedings at the Constitutional Court. In its view, the contested rules do not restrict the autonomy of the parties to the proceedings, since the restriction of the dispositions principle cannot be regarded without further prejudice to the autonomy of the parties to proceedings. The legal standards in question have introduced into the civil procedure an element of concentration of the proceedings which is linked to a procedure which respects the fundamental rights of the defendant. The elements of the concentration of proceedings support the principle of court decision in a single hearing. The aim is for the participant to be given a decision within a reasonable period of time so as to fulfil the right to a fair trial. It should be noted that the time limit for submitting observations (Paragraph 114b (2) CS), which the court is entitled to determine even longer than under the law, provides sufficient time for the defendant to make a written statement. The defendant shall be informed of the fact that, in the event of failure to take action to submit observations, the application shall be deemed to have been accepted. It is solely up to the defendant to fulfil the obligation imposed by the court (to be expressed in accordance with Paragraph 114b (1) (a)) and to avoid the onset of legal fiction or to be dormant. At the same time, the Government stated that the law does not require the defendant to provide an overview of the facts in the statement in an exhaustive manner. Moreover, a qualified invitation must always be delivered to its own hands and replacement service is excluded. Thus, there will be no legal procedural consequence (§ 153a (3) o. s.) without the defendant having the opportunity to show his will. The Government therefore proposed that the Constitutional Court reject the application for annulment of the contested provisions.
23. The Ombudsman sent on 17. 8. 2015 The Constitutional Court found that it did not exercise its right of access.
Abandonment of oral proceedings
24. When discussing the application for annulment of the rules of law, the plenary of the Constitutional Court concluded that there was no need to order oral proceedings, as it would not bring further clarification of the case. According to the wording of Section 44 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court therefore decided without holding oral proceedings.
Affected legal standards
25. The distinction between the provisions of Sections 114b and 153a (3) (a) and 153a (3) (b) of the text from the time of the contested judgments, i.e. in particular before deleting the conclusion of the first paragraph (the words "and in the cases referred to in Section 120 (2)"), which resulted from the separation of so-called non-contested proceedings by Act No 292 / 2013 Coll., on special legal proceedings, as amended by Act No 87 / 2015 Coll., is as follows:
Paragraph 114b.
(1) Where the nature of the case or the circumstances of the case so require, and where such a challenge has been properly and in good time, the defendant's order, electronic order or European order of payment has been decided, the President of the Chamber may, instead of a call under Paragraph 114a (2) (a), or where such a call has not been properly and correctly complied with, order the defendant to make a written statement in the case and, if the claim made in the application is not fully recognised, to state the decisive facts on which he is defending himself, and to add to the statement the documentary evidence on which he has relied upon, where appropriate, evidence to prove his claim; This does not apply to matters in which reconciliation cannot be concluded and approved (§ 99 (1) and (2)) and to those referred to in § 120 (2).
(2) In order to submit the observations referred to in paragraph 1, the President of the Chamber shall fix a time limit which may not be less than 30 days from the date of service of the order. Where a case has been decided by a payment order, an electronic payment order or a European payment order, that period shall be determined only from the date on which the opposition to a payment order, an electronic payment order or a European order is lodged.
(3) The order referred to in paragraph 1 may not be issued or served after the preparatory procedure referred to in Article 114c or after the first hearing in the matter.
(4) The order referred to in paragraph 1 shall be delivered to the defendant in his own hands, the replacement service being excluded. The order may not be served on the defendant before the action.
(5) If, without serious reason, the defendant fails to express at the request of the court referred to in paragraph 1 in due time and within the prescribed time limit of the court, the serious reason for such action shall be deemed to have recognised the claim brought against it; Article 153a (3) must be informed. This shall not apply where the conditions for termination or refusal of the action are fulfilled.
Paragraph 153a o.
(3) The judgment for recognition shall also be decided by the court if the defendant considers that he has recognised the claim against him (Sections 114b (5) and 114c (6)).
Constitutional conformity of the legislative process
26. The contested provisions were incorporated into the Civil Code by Act No. 30 / 2000 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and some other laws (so-called "Great Amendment to the Civil Code '). The last sentence of Paragraph 114b (5), containing exclusions from the statutory recognition fiction, was added to the provision cited by Act No 7 / 2009 Coll. The two laws have already been examined by the Constitutional Court [finding sp. zn.
The existing case law of the Constitutional Court and the European Court of Human Rights
27. The Constitutional Court has, repeatedly in all its chambers, ruled on constitutional complaints made in connection with the contested provisions almost 100 times. Of this, he met the constitutional complaint in only four cases and annulled the decision of the general courts. In other cases, he dismissed constitutional complaints as manifestly unfounded. As a rule, the Constitutional Court considered the constitutional conformity of the contested judgments only through the optics of proper application of the procedural standards in question. However, he repeatedly expressed his views on the constitutional conformity of the institute itself of the judgment for recognition under the contested provisions. It concluded in 2004: "The Constitutional Court notes that the provisions cited in the Civil Code [i.e. Sections 114b (5) and 153a (3)] cannot be generally contrary to the constitutional order and, if interpreted in a constitutional manner, cannot even be contrary to the constitutional order in individual cases. The requirement of effective legal proceedings without undue delay and the requirement of a reliable identification of the facts relevant to a fair decision shall constitute the essential components of the right to a fair trial within the meaning of Article 36 et seq. of the Charter and Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. It is characteristic of the civil process that the law refers both to the demand for process speed and to the need to respect other important principles and values in one and the same provision (cf. § 6 of the ADR). In principle, the Czech legislation allows the procedure to comply with the principle of hearing both parties as far as possible. However, the legislation must not provide conditions for the unjustifiable extension of the procedure for absolute adherence to achieving the most reliable knowledge of the state of affairs. The expression of these requirements and the measurement of the values and principles relating to the requirement for a reliable assessment of the state of the matter on the one hand and the speed of the proceedings on the other hand are also the complainant's contested provisions of the DSB. It is therefore not a reasonable claim by the complainant that Article 38 of the Charter precludes the legal regulation of the judgment for recognition, i.e. that which was also traditional in the pre-communist Czechoslovakia legal order and which is also, from a comparative point of view, common in the legal systems of Europe and America." [Resolution sp. zn. I. ÚS 661 / 03 of 24.2.2004 (this and all the decisions of the Constitutional Court cited below are available at http: / / nalus.ujud.cz)].
28. In its resolution of 16.11.2006 sp. zn. III. ÚS 91 / 06 The Constitutional Court has come to the following conclusion in respect of the contested provisions: "Where a party has been given a period within which to carry out a specified procedural act and the law links it to certain, clearly worded legal consequences, the right to a fair trial (Article 36 (1) of the Charter) cannot be infringed by the procedure of the court which links the procedural measures which the law prejudices to those consequences. '
29. The very nature of the contested decisions was addressed in very detailed detail by the Constitutional Court in its resolution sp. zn. II. ÚS 2115 / 09 of 24 September 2009. "One of the fundamental pillars of the democratic rule of law is legal certainty. As a general rule, this is affected to a certain extent by the initiation of legal proceedings and therefore human rights instruments insist that judicial proceedings be carried out within a reasonable period of time. It is therefore a positive duty of the State resulting from human rights instruments to set the procedural rules for legal proceedings in such a way as not to delay proceedings in order to establish legal certainty and a peaceful situation as soon as possible. The procedural rule which allows the court to call upon the party to challenge the action within a reasonable period of time, under the penalty of a procedural failure, can therefore be considered as a procedure which pursues a legitimate objective... It can be agreed with the complainant that the legislator did not fully adapt the procedure in accordance with the civil procedure, as Josef Macur pointed out in the article referred to by the complainant. However, Josef Macur in that article did not question the legitimacy of the objective pursued or the possibility of its legislative solution with a procedural failure as a result of an inaction. In view of the fact that the complainant's representative is a lawyer on the list of lawyers of the Slovak Bar Association, it can be noted, for comparison, that the solution by Josef Macur is reflected in Sections 114 (3) - (6) and 153b (2) (b) of the Slovak Civil Code. The debt to add that in Slovakia, the legislator even demands a half-time period for expression from the domestic legislator. On both of these solutions, however, it can be noted that they are in fact dura lex, sed lex (hard law, but in Ulp. D. 40, 9, 12, 1), based on the principle of vigilantibus, non dormientibus iura subveniunt (the law helps the vigilant, not sleeping in C. I. 7, 40, 1 pr. Iust.), and, above all, that at the time of the decision of the Court of First Instance his procedure was predictable."
30. It also recalled in its Resolution sp. zn. IV. ÚS 3355 / 10 of 19 April 2011 "... the generally applicable legal principle of vigilantibus iura scripta sunt (rights belonging to the vigilant), which requires careful consideration of the extent to which and how it will actively seek protection of its right in accordance with substantive and procedural standards... The Procedural Regulation does not exclude a degree of difficulty in the possibility of effectively objecting to the material aspect of the case, but it is always rules (e.g. in concentration of proceedings) of the nature of the matter, balanced by their positive importance for transparent, predictable and concentrated conduct of judicial proceedings at all. A similar purpose is pursued by the provision in question, § 114b (5) o. s., where it provides for a fiction of the recognition of entitlement; in such a situation, it is up to the participant to decide whether to allow or exclude legal fiction by acting. 'The respect of the Constitutional Court for the abovementioned principle of vigilantibus iura scripta sunt in relation to the contested provisions is confirmed repeatedly and constantly, see for example resolution sp. zn. I. ÚS 3280 / 11 of 8.12.2011 or resolution sp. zn. I. ÚS 2299 / 14 of 24.9.2014.
31. The European Court of Human Rights (hereinafter referred to as "the ECHR") decided on a complaint against a judgment for recognition pursuant to Paragraph 114b (5) (c), issued by the Court of Justice of the Czech Republic only once, in the Buryška v Czech Republic judgment of 6 May 2008 No 33137 / 04. The ECHR considered that the complaint was manifestly unfounded, since the complainant was duly informed by the Court of First Instance of the consequences of not expressing his views on the application within the time limit laid down, and it could therefore not be argued to the Court that he had interpreted the defendant's silence as being in agreement with the failure to settle the case.
32. In addition, the case law of the European Court of Human Rights refers to the judgment in Aždajić v Slovenia of 8 October 2015 No 71872 / 12. In this case, the ECHR implicitly respected the competence of national legislation to penalise the participant's procedural passivity (even tactical) in the form of a recognition judgment. However, in order to respect the principle of equality of "weapons', he anticipated the maintenance of the conditions (information, real possibility of procedural defence) under which the judgment for recognition could be regarded as appropriate to the human rights guarantees of the Convention.
Self-assessment of the proposal
33. In particular, the application is justified by the fact that the contested provisions do not guarantee the defendant freedom of will and a fair trial. It is based on the fact that recognition of a claim is a procedural act with a disposition character and depends on the individual's free will to recognise or recognise the claim. Therefore, the recognition of the claim cannot, according to the applicant, be the subject of legal fiction.
34. However, the contested provision is inappropriately worded rather than interfering directly with the autonomy of the defendant's will. "The stone of the accident 'is the wording contained in paragraph 5 of Paragraph 114b:..." the claim against it shall be deemed to be recognised;... "There is a situation which is not or may not be in accordance with the facts because the defendant did not expressly recognise the claim. However, more important than the fiction of recognition itself is the result of the defendant's passivity. This result is the loss of the dispute. What would be the difference for the defendant in the result if paragraph 5 of the last provision cited, for example, were to read:" If, without serious cause, the defendant does not make a statement at the request of the court referred to in paragraph 1 in time and even within the prescribed time limit, the court does not state the serious reason why it is prevented from doing so, the court shall comply with the action; He must be informed of this consequence. "? Really none. The court would rule by judgment in favour of the plaintiff. However, the mere inappropriate designation of a procedural institute and certain" legislative improv "in its construction does not make it unconstitutional. However, for the greater credibility of the recognition judgment, it would certainly be appropriate if the general courts explained clearly in the statement that the main reason for losing the defendant is his passivity.
35. The defendant's free will is not restricted here. The defendant shall receive from the court an action with a notice of appeal and with due instruction. It is up to him to defend himself and comply with the legally required and known demands, or to be passive and not to defend himself at all. The law required the interpretation of the decisive facts on which it bases its defence and the attachment of the documentary evidence to which it relies is not an unduly burdensome requirement. In the event of serious grounds preventing the defendant from making observations, it shall be sufficient to avoid (at least temporarily) the judgment for recognition to be given to the court. The defendant thus has the free will to act or not to act.
36. The limitation of the autonomy of the will on which the proposal was based was not found by the Constitutional Court. In this situation it was not necessary and, moreover, it was not possible to proceed to the proportionality test. Nevertheless, it should be noted that the judgment enforced by the appellant by default is also based on fiction. Although not on the fiction of the recognition of the claim, but on the fiction of the facts of the plaintiff's claims contained in the action (§ 153b (1) o. s. s.). These claims may not be true at all, and the defendant certainly does not consider them undisputed. But as a result of its passivity, they will become undisputed. Nor can it be overlooked that, in order to issue a judgment by default, the fact that the summons are served on the defendant is sufficient. The defendant does not need to know at all about the legal proceedings. On the other hand, in the recognition judgment, the replacement service of a qualified invitation is excluded. The defendant had therefore to be served with both the action and the qualified invitation, with a lesson in his own hands.
37. However, the most important reason for rejecting an application for annulment of the contested provisions is the possibility of a constitutional interpretation. For 15 years, the general courts have been ruling judgments for recognition, and in that time tens or rather hundreds of thousands have been issued. Any excesses in decision-making by the recognition judgment on the basis of recognition fiction can be rectified (and in practice this is the case) in appeal proceedings. Although the grounds of appeal of the recognition judgment are limited to... "the defects referred to in § 205 (2) (a) and the facts or evidence to prove that the conditions for their extradition have not been met," this is sufficient to remedy the excesses already mentioned. The Court of Appeal does not examine the subject-matter of the proceedings itself, but only the fulfilment of the procedural conditions. If they find that they have not been fulfilled, the judgment under appeal shall be annulled or decided not to be delivered. In both cases, the case shall be referred back to the Court of First Instance, which shall then take its decision in accordance with the regular procedure, without any recognition being given. This appeal is even admissible for so-called baggatory disputes (up to 10000 CZK), where the law otherwise does not allow appeal (§ 202 (2) o. s. s.). Nor is the filing of a claim subject to legal conditions excluded.
38. In the 15 years already mentioned, the Constitutional Court had to intervene only in four cases where the general courts violated the constitutionally guaranteed rights of the defendants. In all other cases, the Constitutional Court found nothing unconstitutional in the procedure of the general courts. He repeatedly (albeit in Senate decision making) addressed the very nature of the Institute under appeal and found no reason to doubt its constitutional conformity.
39. The purpose and importance of the contested legislation cannot be left to the party. In the explanatory memorandum of 16 June 1999 to Act No. 30 / 2000 Coll. (House Press 257, Chamber of Deputies, 3rd Election, 1998- 2002), which introduced the contested institute, the following reasoning is given: "The regulation of the preparation of the negotiations so far does not properly guide them and in a number of cases it does not allow him to prepare the negotiations in such a way as to make a decision on a single hearing. The proposed regulation seeks to specify the procedure of the court and establishes an institute by which appropriate negotiation can be prepared, or even without consideration... The applicant shall, inter alia, give a statement of the facts in the application; If they do not do so at the request of the court pursuant to Article 43 (1) and if it is not possible to continue the proceedings because of this deficiency, the court will reject its action (§ 43 (2)). The substantive right shall, as a general rule, lay down time limits for the exercise of the right before the court, the termination of which shall in vain result in limitation or limitation. On the other hand, the defendant's obligation to state whether or not he was ordered by the court is not effectively enforceable under the present rules; a defendant who is not interested in an expedited hearing may, by late lodging of observations on the application, extend the legal proceedings, or, failing that, make it impossible or at least make it difficult to prepare the proceedings properly by the court. In order to remove these disagreements in the capacity of the applicant and defendant, it is proposed, in the new Section 114b, to grant the President of the Chamber the power to impose [instead of a request under Paragraph 114a (1) (a)] or, if the defendant has not properly and in a timely manner complied with such a call, by the defendant's order in order to make a written statement... '. The contested institute therefore pursues a legitimate objective of discussing the case without undue delay (Article 38 (2) of the Charter). The goal is extremely important because..." in view of the expectations given by the needs of everyday life, there is no reason to make the difference between justice delayed and justice rejected... "(Wagner, E.) Siphon, V.; Langášek, T.; Pospíšil, I. et al. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s., 2012, p. 794).
40. Nor does the strengthening of the principle of equality of participants (Article 37 (3) of the Charter, Article 96 (1) of the Constitution), or, in the words of the abovementioned explanatory note, "the removal of disagreements in the capacity of the applicant and the defendant ', be irrelevant. The procedural parties are to be equal not only in rights. While respecting different roles in proceedings, their obligations should also be balanced. The plaintiff, under the threat of refusal of action, must, inter alia, state the decisive facts, indicate the evidence which he relies on, and his application shows what he is seeking (§ 79 (1) o. s. s.). In addition, under the threat of a termination of proceedings, they must often pay a significant legal fee, together with the filing of the action or within three days of the court's request. The principle of a fair trial cannot be answered if the defendant were sufficient to declare that he disagrees with the action and to extend his passivity to proceedings.
Conclusion
41. The Constitutional Court did not find that the contested provisions could not be interpreted in a constitutional manner. Nor did he find interference in the autonomy of the defendant's will or violation of the right to a fair trial. After all, the intervention in the right to a fair trial was based precisely on interference in the autonomy of the will. The Constitutional Court therefore rejected the application for annulment of the contested provisions of the Civil Code pursuant to the provisions of § 70 (2) of Act No 182 / 1993 Coll., on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by Judge Ludvík David, Jaroslav Fenyk, Josef Fiala, Pavel Rychetský and Kateřina Šimáková for a decision.
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Regulation Information
| Citation | The Constitutional Court found no 211 / 2016 Coll., on the application for annulment of § 114b (5) and the words "§ 114b (5) 'in § 153a (3) of Act No. 99 / 1963 Coll., Civil Code, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 04.07.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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