The Constitutional Court found No. 265 / 2005 Coll.
The Constitutional Court found of 4 May 2005 on the application for annulment of the provisions of § 442 paragraph 1 and § 449 paragraph 2 of Act No. 40 / 1964 Coll., Civil Code
Valid
The Constitutional Tribunal found
Text versions:
30.06.2005
265
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 4 May 2005 in plenary composed of JUDr. Stanislav Balík, JUDr. František Duchoň, JUDr. Vojen Güttler, JUDr. Pavel Holländer, JUDr. Ivan Janů, JUDr. Dagmar Lastovecká, JUDr. Jiří Mucha, JUDr. Jiří Nykodým, JUDr. Pavel Rychetský, JUDr. Miloslav Excellent, JUDr.
as follows:
The application for annulment of the provisions of § 442 (1) and § 449 (2) of Act No. 40 / 1964 Coll., Civil Code, is rejected.
Reasons
Definition and recap of the proposal
On 15 July 2003, the Constitutional Court received a constitutional complaint from the complainant J. M., which was directed against the judgment of the Regional Court in Brno No 13 Co 338 / 99-91 of 5 October 2000, and, following the clarification received on 29 September 2003, against the judgment of the Supreme Court No 25 Cdo 1409 / 2001-120 of 24 April 2003, which also contained a proposal for annulment of the provisions of Sections 442 (1) and 449 (2) of Act No 40 / 1964 Coll., Civil Code. The Fourth Chamber of the Constitutional Court, by order of 22 March 2004, sp. zn. IV. ÚS 402 / 03, suspended the proceedings for a constitutional complaint pursuant to § 78 (1) of Act 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Constitutional Court Act '), after having stated that the proposal fulfils the conditions laid down in § 74 of that Act, i.e. that the provisions of the law which were the subject of the constitutional complaint were contested and that the proposal was not manifestly unfounded. The application for annulment of the provisions of Articles 442 (1) and 449 (2) of the Civil Code has been referred to the full court of the Constitutional Court.
In the proceedings conducted at the Municipal Court in Brno under sp. zn. 35 C 381 / 95, the appellant sought payment of CZK 2 000 000 000 against P. M., a. s., on the grounds that on 17 December 1993 his son F. M., born 22 June 1979, was killed by drowning after he slipped into an unprotected area under the ride on the river Svratka in K. e. Pisářka, to 48,17 km of river flow in the area of the recreational area of the Riviera in Brno. The blame on the P. M., a. s. page was seen in the absence of security of the place where the accident occurred, although there was a series of drowning in the past. He demanded payment of an amount of CZK 13 510.60 for funeral expenses and the acquisition of an epitaph plate, and in the rest he claimed compensation for the non-property damage caused by suffering from sudden death of his son, and also property damage on the grounds that the deceased son could help him in the future in business, possibly treat him or his mother and provide them with support in the event of illness or helplessness.
By judgment No 35 C 381 / 95-68 of 28 January 1999, the Municipal Court in Brno granted the application only in respect of the costs of the funeral and the acquisition of an epitaph plate and dismissed the action in the remainder. The decision therefore justified that the provisions of § 442 (1), § 448 (1) and § 449 (2) of the Civil Code do not make it possible to grant compensation for damage caused for reasons other than those mentioned here. These provisions of the claims applied only complied with the claim for reimbursement of the funeral costs.
On the initiative of an appeal lodged by both parties to the dispute, the Regional Court in Brno decided on the subject matter of the dispute. As regards the non-property damage suffered, the latter fully identified itself with the view of the City Court in Brno. However, in this part, it accepted, in accordance with the rights in force at the time, that it justified its conviction that the appellant should be given the possibility to use all legal means to assess the legality of claims of a non-material nature which are not covered by the legislation in force, namely psychological damage as a result of the death of a loved one and the future maintenance obligation on the survivors.
By judgment of 24 April 2003 No 25 Cdo 1409 / 2001-120, the Supreme Court dismissed the notice. In addition to the claims set out in paragraphs 448 and 449 (2) and (3) of the Civil Code, the law does not grant further claims to survivors of the death of a person and stated that such entitlement could not be derived from the provisions of the Charter of Fundamental Rights and Freedoms ("the Charter '). According to its conclusion, the provision of Section 448 of the Civil Code is not contrary to constitutional rules. In addition, it stated that the right to compensation for aid of the deceased, which could in the future provide the survivor with nutrition (or assist him in the employment, household or care of his or her person), cannot be established by comparing the adjustments resulting from the provisions of Sections 448 and 449 (2) and (3) of the Civil Code with the provisions of Section 11 of the Civil Code (a natural person has the right to the protection of his or her personality, particularly life and health, civil dignity, as well as the right of privacy, the name and expression of a person's personal nature) and, in particular, the right to seek to refrain from undue interference under paragraph 1, in particular because it has been significantly reduced in the dignity of a natural person, to remove the consequences of those principles and to obtain reasonable satisfaction (paragraph 1). These provisions establish a right to the protection of a person, the purpose of which is to protect respect for the personality of a natural person and its individual integrity as a condition for the dignified existence and overall free development of an individual. Therefore, it is not excluded that the cause of the death of a loved one may, given the close and firm social, moral, emotional and cultural ties, constitute such a serious non-material damage to the development and fulfillment of the survivor's personality that it may be qualified as a loss of dignity or seriousness in society. It is, however, a claim different from the claim for compensation within the meaning of the provisions of Sections 448 and 449 of the Civil Code, which was the subject of the procedure in the present case.
In the proposal, the appellant stated that, while it was clear to him that the current legislation in force on compensation in the event of death, implemented by the provisions of Sections 448 and 449 (2) of the Civil Code, does not allow for compensation other than a cash maintenance pension to be granted to survivors to whom the deceased has provided or was obliged to provide, and at the reasonable cost of the funeral, but considers that this provision is in a fundamental contradiction with the Charter, in particular with the first sentence of Article 6, which reads: "Everyone has the right to life 'and Article 30 (1), which reads:" Citizens have the right to adequate material security in their age and incapacity for work, as well as well as well as in the loss of life'. In the final consequences, contempt is the value of human life. It considers this adjustment to be a remnant of the socialist rule of law that preferred the fiscal interests of the state. This principle completely ignores that further maintenance obligations could have occurred in the future if the deceased had remained alive; the appellant points out its particular situation.
In the proceedings of the Regional Court in Brno, it further sees an infringement of Article 36 (1) of the Charter as, in its view, the interpretation of the "non-compliant" provision of the Civil Code could be extended. This, however, follows his proposal that these provisions should be repealed. It considers that this is also in the interest of adapting the Czech Republic to the European Community standards.
The appellant was called upon by the Constitutional Court on 9 September 2003 to remedy the procedural defects, namely the petit of the application, and whether it did not intend to make any changes to the decision of the Supreme Court. He responded to this call only by extending the petition to the application for annulment of the Supreme Court judgment of 24 April 2003 No 25 Cdo 1409 / 2001-120. The application for annulment of the provisions of § 442 (1) and § 449 (2) of the Civil Code was left unchanged. Thus, it did not remove the contradiction between the content of the proposal, in which it imputes the provisions of § 448 (1) and § 449 (2) of the Civil Code for a contradiction with the constitutional order, while the petition seeks the annulment of § 442 (1) and § 449 (2) of the Civil Code.
Recital of the essential parts of the observations of the parties
The Constitutional Court sent a motion to initiate proceedings and a resolution on the suspension of proceedings on a constitutional complaint in accordance with the provisions of Section 69 of the Law on the Constitutional Court to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.
The Chamber of Deputies, after a brief recap of the content of the constitutional complaint by the appellant, stated that the constitutional right of every human being to life, as enshrined in the first sentence of Article 6 (1) of the Charter, is formulated in general, whereas paragraph 4 of the same article states which acts are not an infringement of that right and lays down its constitutional limits. The State must, by its action, ensure that the right to life is protected against interference or attacks by anyone, which is further specified in Article 6 (2) of the Charter. Penalties for violating such a prohibition, whether intentionally or negligently, include criminal law. Nevertheless, the appellant believes that the protection of human life by criminal law is not sufficient. In the opinion of the Chamber of Deputies, however, it is based on the fact that, in the investigation into the drowning of his son, the investigating authority did not reach the conclusion that there was a foreign fault.
As regards the objected contradiction with Article 30 (1) of the Charter, the Chamber of Deputies points out that in paragraph 3 of Article 30 The Charter provides that such arrangements may be applied within the meaning of Article 41 (1) of the Charter only within the limits of the laws implementing them. It concludes from this that the wording cannot be circumvented by a more favourable interpretation to the appellant, as it stated in its proposal, referring to the procedure of the Regional Court in Brno.
The Chamber of Deputies then states that it is not possible to agree with the appellant's view that the provisions set out therein in paragraphs 442 (1) and 449 (2) of the Civil Code are unconstitutional.
In its observations, the Senate stated that Paragraph 442 (1) was in its current form included in the Civil Code so-called "Great Amendment to the Civil Code 'as from 1 January 1992 [Article I (109) (sic - note); rightly point 83) of Act No. 509 / 1991 Coll., amending, supplementing and adapting the Civil Code]. Paragraph 449 (2) of the Act was entered into the existing code by an amendment effective on 1 October 1995 (Article XXIV of Act No. 118 / 1995 Coll., amending and supplementing certain laws in connection with the adoption of the Act on State Social Aid). The two provisions are subdivided into" common provisions on compensation' and, even more closely, into the group of paragraphs (§ 442 - 449), collectively bearing the heading "Method and extent of compensation '. It stated that, while the provisions of Paragraph 442 (1) in this new amended version were a systemic change in determining what damage, or what kind of damage, was incurred, which related to the transition to the market economy in 1989, § 449 (2) remained meritologically constant from the time of the ordinary Civil Code and the amendment of 1995 was only technically affected, from the point of view of the proposal for annulment insubstantially.
The Senate pointed out that, in view of the date of the legislature containing the provisions proposed for annulment, these are provisions that were approved at a time when the Senate had not yet been established. It recalls, however, that the Senate dealt with the issue of compensation for death when discussing the draft law amending Act No. 168 / 1999 Coll., on insurance of liability for damage caused by the operation of a vehicle and amending certain related laws (Act on Insurance of Liability from the Operation of a Vehicle), as amended, Act No. 586 / 92 Coll., on Income Taxes, as amended, Act No. 200 / 1990 Coll., on Infringements, as amended, and Act No. 40 / 1964 Coll., Civil Code, as amended.
That draft law contained two thematic amendments to the Civil Code in its fourth part of Article VIII, which took effect on 1 May 2004 (Act No 47 / 2004 Coll.). In particular, it was to supplement Section 444 of the Civil Code with a new paragraph 3, which provided for a one-off compensation for survivors at the time of the death of a loved one, as well as the insertion of a new provision of Section 449a, which allows future claims under Section 445 of the Civil Code to be compensated on a one-off basis on the basis of a written agreement on the full and final settlement between the creditor and the debtor. This provision also applies to future claims arising from the provisions of § 446 - 449 of the Civil Code.
With regard to the proposal to abolish the provisions of Paragraph 442 (1) of the Civil Code, the Senate stated that, in the event of its annulment, a positive legal basis for reparation of damage would be lacking in the law in force, as well as for the traditional basic formal classification of damage to real and lost profits. In his view, this would disintegrate the concept of the method and extent of compensation.
As regards the provision of Section 449 (2) of the Civil Code, that provision follows on from the obligation to cover the costs of the treatment (Section 449 (1) of the Civil Code), as it determines that in the event of death, the pest is also obliged to compensate for the reasonable costs associated with the burial. In the view of the Senate, the legislator never had any reason to change this provision, as it is a matter of traditional and content-friendly to the current social climate both in the Czech Republic and in the European framework. In the case of this provision, but also in the case of Article 442 (1) of the Civil Code, the appellant's objection to the socialist origin of the two provisions cannot stand. It is a traditional, historically documented, functional and interpretive adjustment from the point of view of constitutionally guaranteed fundamental rights and freedoms.
The Senate also deals in its observations with Article 448 (1) of the Civil Code, which is mentioned in the proposal, even if the petition does not propose its annulment. The provision in question provides for an obligation to cover the maintenance costs of survivors to whom the deceased provided or was obliged to provide. The interpretation of this normative order has been consistent in Czech law for decades. The Senate refers to Comments on the Czechoslovak General Civil Code, by the authors of Rouček, F., Sedláček, J., Volume V., Prague 1937, and, on page 926, quotes: "The right to compensation is for persons who are actually nourished at the time of death,... by contrast, there is no compensation for those who may not yet be entitled to nutrition, for example the parents of the child killed."
Furthermore, the Senate pointed out that, if it is argued by a breach of constitutional law guaranteed by Article 6 (1) of the Charter, it is evident without a comprehensive analysis that this provision passes with the provisions on compensation for the survivors. The first sentence of Article 6 (1) The Charter is a general provision for subsequent paragraphs 2 - 4 which distribute it in a constitutional manner. The whole of Article 6 is the inherent protection of the very nature of life. In this way, interpretation can be no different than that the purpose of this constitutional law is to protect an individual from any arbitrary deprivation of life. As regards Article 30 (1) of the Charter, it defines the obligation of the State to maintain an adequate, dignified and socially sustainable level of citizens through its social systems. It guarantees citizens adequate material security. This article of the Charter is therefore not related to the provisions of the Civil Code on Compensation.
Derogation of the contested provisions
Paragraph 442 (1) of the Civil Code reads:
"(1) The real damage and what the victim has missed (lost profit) is covered."
Paragraph 449 (2) of the Civil Code reads:
"(2) At the time of the killing, the appropriate costs associated with the funeral shall also be met if they have not been reimbursed for the funeral grants provided under the State Social Support Act. ';
Conditions for the applicant's active legitimacy
The application for annulment of the provisions of § 442 (1) and § 449 (2) of the Civil Code was submitted by the appellant J. M. in connection with a constitutional complaint against the judgments of the Regional Court in Brno of 5.10.2000 sp. zn. 13 Co. 338 / 99 and the Supreme Court of 24 April 2003 sp. zn. 25 Cdo 1409 / 2001. The constitutional complaint was lodged within the deadline laid down in Article 72 (2) of the Constitutional Court Act. Under Section 74 of this Act, together with a constitutional complaint, an application for annulment of the law or individual provisions may be made if, according to the complainant's claim, they are contrary to the constitutional law. In accordance with Article 78 (1) of the Law on the Constitutional Court, where, together with a constitutional complaint, an application for annulment has been lodged pursuant to Article 74, the Chamber of the Constitutional Court shall suspend the proceedings and the application for annulment of the law shall refer the full to the decision referred to in Article 87 (1) (a) or (b) of the Constitution. Fourth Chamber of the Constitutional Court by order of 22 March 2004, sp. zn. IV. ÚS 402 / 03 suspended the proceedings for a constitutional complaint and referred the application for annulment of the provisions of Sections 442 (1) and 449 (2) of the Civil Code of the plenary of the Constitutional Court. In the present case, the appellant can therefore be found to fulfil the conditions of active legitimacy.
Constitutional conformity of the legislative process
The Constitutional Court is required, in accordance with Paragraph 68 (1) of the Law on the Constitutional Court in proceedings for the control of laws or other legislation, to assess whether the contested law was adopted and issued in a constitutional manner.
The original wording of the provisions of § 442 (1) and § 449 (2) of the Civil Code was the subject of negotiations as the third paragraph of the 24th meeting of the National Assembly of the Czechoslovak Republic, which took place on 26 February 1964. The contested provisions were not the subject of debate, and the law as a whole was adopted unanimously by the votes of 271 Members. If the Constitutional Court assesses the constitutionality of the competence of the legislator and the constitutionality of the legislature process, it is based on the provisions of Paragraph 66 (2) of the Law on the Constitutional Court, according to which the application for annulment of laws and other legislation is inadmissible if the constitutional law or the international treaty with which the regulations under review are in conflict has ceased to be valid before the application of the Constitutional Court is served. It follows that in the case of legislation issued before the entry into force of the Constitution of the Czech Republic No. 1 / 1993 Coll., the Constitutional Court is entitled to examine only their content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and compliance with the standard competence. This also applies to the amendment of Paragraph 442 (1) of Act No. 509 / 1991 Coll.
A minor amendment to the provisions of Section 449 (2) of the Civil Code was implemented by Act No. 118 / 1995 Coll., amending and supplementing certain laws in the context of the adoption of the Act on State Social Support, when the words "Regulations on sickness insurance 'were replaced by the words" Act on State Social Support'. This regulation, discussed at the 31st meeting of the first term of office of the Chamber of Deputies of the Parliament of the Czech Republic, was adopted on 26 May 1995. The proposal was voted out of 173 Members present, 67 against, and 6 abstentions.
Law 118 / 1995 Coll. was signed by the relevant constitutional authorities and was duly declared.
The Constitutional Court notes that Law 118 / 1995 Coll. was adopted in a constitutional manner.
Content compliance of the contested provision with the constitutional order
The appellant proposes to abolish the provisions of § 442 (1) and § 449 (2) of the Civil Code. In both cases, because they are contrary to the first sentence of Article 6 (1) of the Charter, which reads: "Everyone has the right to live." and to Article 30 (1) of the Charter, which reads: "Citizens have the right to adequate physical security in their old age and incapacity to work and to lose their livelihood." They claim that this is an adjustment from the time of the creation of a socialist rule of law that preferred the fiscal interests of the state.
Paragraph 442 (1) of the Civil Code provides for a provision on the marginal heading "method and extent of compensation '. It states that real damage and lost earnings are paid. This is a provision which has been enshrined practically unchanged in the Czech legal environment for 200 years. In § 1323, the General Civil Code amended the method of compensation as follows:" In order to compensate for the damage caused, everything must be put into the previous state or, if this is not possible, the estimated price must be replaced. If the compensation is only the damage suffered, it is actually called compensation. However, if it also applies to lost profits and to the elimination of the caused insults, it is called full satisfaction. "The Civil Code of 1950 in Paragraph 354 amended this issue as follows:" The damage is replaced by the previous state and, if not well possible, in money. Not only is real damage replaced, but what has gone wrong with the victim. "Paragraph 442 (1) of the Civil Code, as amended by Act No 509 / 91 Coll. It was like," Only real damage is borne by the previous state; If this is not possible or expedient, it shall be paid in cash.';
Therefore, it cannot be accepted that the current wording of Paragraph 442 (1) is a remnant of the "socialist legal order '.
The fact that this regulation has a long tradition in the Czech legal environment does not necessarily mean that it does not conflict with the constitutional order. It is therefore appropriate to assess the appellant's objections, which, at first, claim to be contrary to Article 6 (1) of the Charter by the first sentence. It must be said here that this provision of the Charter must be seen in the context of the whole article, in particular with paragraph 2, which reads "No one may be deprived of life." and with paragraph 4, which reads "There is no violation of the law under this Article if someone has been deprived of life in relation to acts which are not punishable by law." The purpose of this provision is to protect life. It guarantees the constitutional right of every human being that it cannot be arbitrarily killed. No constitutional guarantees can be derived from it in relation to the legal regulation of the scope of compensation. The protection of life against arbitrary death is not legally left to the regulation of liability for damage, but solely to the criminal responsibility for killing. This corresponds to the quoted Article 6 of the Charter which does not provide any other protection of human life. Therefore, while it can be accepted in general that liability for damage plays an important role in preventing acts leading to death, it cannot be concluded from this that the first sentence of Article 6 of the Charter, cited by the appellant, is also aimed at the legal regulation of liability for damage. Such an interpretation of the article in question cannot be made on the basis of any of the interpretative methods used in the application of the law. It can therefore be concluded that Paragraph 442 (1) is not contrary to Article 6 (1), first sentence, of the Charter, since the right to life guaranteed by it has no link to the legal arrangements for liability for damage.
Second, the appellant claims that this provision of the Civil Code is contrary to the constitutional law enshrined in Article 30 (1) of the Charter. However, this Constitution guarantees the right of a citizen to the state. It has no impact on the legal arrangements for liability for damage relating to the relations of private-law entities in which the State's sovereign status is not applied. The Constitution thus guarantees adequate material security to every citizen in relation to the State and not to another citizen, or to other private bodies, regardless of what caused the state of material emergency. It can also be concluded here that the provision of Paragraph 442 (1) of the Civil Code does not conflict with the constitutional law guaranteed in Article 30 (1) of the Charter.
The nature of the regulation, which is the content of the provision of § 449 (2) of the Civil Code, also has a long tradition in the legal order in the Czech Republic as well as the principles of the regulation resulting from the provision of § 442 (1) of the Civil Code. In § 1327, the General Civil Code stated that: "If death is caused by physical damage, not only all losses must be compensated, but also those survivors whose nourishment should have been taken care of by the law, whatever they missed." The Civil Code in force from 1950 to 1964 stated in the provision of Paragraph 356: "If death has come from damage, the pest is obliged to compensate for the costs of healing and burial for the person who has spent them and for those who are dependent on their sustenance for the deceased who have missed them."
It is therefore not true for this provision either that it is a relinquish of the socialist era of law-making.
As regards the relationship between Article 6 (1) first sentence and Article 30 (1) of the Charter, everything that has been said in connection with the provision of Article 442 (1) of the Civil Code is fully valid here.
The content of the text part of the applicant's proposal is his reservations regarding the provisions of Paragraph 448 (1) of the Civil Code. It considers this legal provision to be unconstitutional, although in the petition it proposes to abolish the provision of Section 442 (1) of the Civil Code and not the provision of Section 448 (1) of the Civil Code. This obvious discrepancy between the content of the application and the petition is not explained by the appellant and has not eliminated this error of submission despite the call by the Constitutional Court. Since this is a question that has a significant human-legal dimension, the Constitutional Court takes a position on it, although the petition does not sound like it.
Once again, it must be stated that the regulation which is contained in the provision of Section 448 (1) of the Civil Code has a long tradition in our legal order. This follows from the above mentioned provision of § 1327 of the General Civil Code and § 356 of the Civil Code of 1950. In the event of death, the legislation in force, as well as the previous arrangements, grants a right to compensation in the form of a rent only to persons who are actually dependent or to persons for whom the deceased had this obligation, and not to persons who might have incurred such a right in the future. In fact, the appellant objects primarily to this provision by submitting it. Disputes of its non-compliance with the first sentence of Article 6 (1) and Article 30 (1) The Charter can be referred to a previous interpretation, which showed that both of these provisions of the Charter are completely absent from the issue of compensation and therefore it cannot be concluded in any way that this provision is contrary to them.
Proposals for the annulment of the provisions of Sections 442 (1) and 449 (2) of the Civil Code do not address the nature of the reservations of the appellant, in which it sees the unconstitutional nature. They would not be dealt with by a possible proposal to repeal the provisions of Paragraph 448 (1) of the Civil Code. From the point of view of what is claimed, it is not a problem what is the content of these provisions but what is not in them. The appellant feels the imperfections of the current adjustment to the manner and extent of compensation for damages that it does not admit entitlement to compensation for non-property damage. This is the only way to see the logic of his proposal to abolish the provisions of Paragraph 442 (1) of the Civil Code, which defines the extent of the compensation by paying off actual damage and loss of profit. Our civil code does not contain a legal definition of damage. Paragraph 442 (1) of the Civil Code defines damage only indirectly by regulating what is replaced. This is an indication of the provisions followed by other provisions which significantly modify the scope of the refund. It follows that, for example, in the event of damage to health, a painful and difficult social application is compensated, which is certainly not a real damage in either case. Therefore, by deleting the provisions of Paragraph 442 (1) of the Civil Code, nothing would be resolved, only from the coherent mosaic of the legal provisions defining what is being compensated, and thus indirectly from what the law considers to be damage, a provision which would necessarily lead to the absence of which would lead to the non-functioning of further provisions and thus to the cessation of the functioning of the whole legal regulation of the scope and method of compensation.
The repeal of Paragraph 449 (2) of the Civil Code would achieve nothing other than the extent of the compensation granted to cover the costs of the funeral. The same applies mutatis mutandis in the event of an application for annulment of Paragraph 448 (1) of the Civil Code.
It can therefore be concluded that the problem raised by the complainant by its proposal to abolish the provisions of Sections 442 (1) and 449 (2) of the Civil Code is not that these provisions are contrary to the Constitution but rather what is not explicitly stated in the provisions governing compensation. In essence, the complainant's objection is that, in these provisions, there is no provision for compensation for damage caused by non-material damage, except in cases that are taxiously calculated in the law (painful, difficult social application and newly, with effect from 1 May 2004, a one-off compensation for the death of a loved one). The right to compensation for the aid of the deceased, which could provide nutrition to the survivor in the future, cannot be established by comparing the arrangements resulting from the provisions of Sections 448 and 449 (2) and (3) of the Civil Code with the provisions of Sections 11 and 13 of the Civil Code, which establish the right to the protection of the individual's personality and its individual integrity as conditions for the dignified existence and overall free development of the individual.
The Constitutional Court, in its finding of 1.3.2000 sp. zn. II. ÚS 517 / 99 (Collection of finds and orders of the Constitutional Court, Volume 17, Found No 32), took the view that a family life involving relations between close relatives was undoubtedly part of private life; respect for private, i.e. family, life must include, to some extent, the right to create and develop relationships with other human beings, so that, among other things, it is possible to develop and fulfil its own personality. Thus, due to close and firm social, moral, emotional and cultural ties, the cultured death of a loved one may constitute such a serious non-material damage to the development and fulfillment of the survivor's personality that it can be qualified as a loss of dignity or seriousness in society. From this point of view, the Civil Code gives the conditions for the application of financial satisfaction for damage resulting from interference with personality rights as a result of the death of a loved one. However, from the point of view of the current legislation, this is a claim other than compensation.
The Constitutional Court assessed whether, using interpretation rules, the provision of the Civil Code defining compensation could be interpreted in such a way that the right to compensation for the material damage arising from the loss of a loved one could be underestimated under that provision. It could not be ignored here that, in the period since the constitutional complaint was lodged, the compensation arrangements for the survivors of the amended provisions of § 444 of the Civil Code, in which a new paragraph 3 was inserted, which addresses this issue by one-off implementation. With this provision, the legislator amended the method and extent of compensation for this kind of material damage. This adjustment does not, by its unequivocal nature, allow any scope for a different interpretation. However, it is so flat-rate that it cannot be considered as an exhaustive solution to the problem. Therefore, it does not exclude, where one-off compensation is not sufficient to satisfy the damage caused to personal rights, that the persons concerned seek further satisfaction under the provisions for the protection of their personality.
In this context, the Constitutional Court feels the need to emphasise that, from a legislative point of view, it would be more appropriate to abandon the existing concept of damage as property damage and to consider both damage and damage caused by the effect on the physical and spiritual integrity of the victim. Moreover, the principles of European criminal law, which define damage as property damage or non-property damage of a legally protected interest, are also claimed to be such a concept. These principles, even if they are based on a private initiative, have a significant impact on the legislation of European states, which is gradually adapting to this concept, which is an example of the proposed amendment to the Civil Code in Austria.
In view of all the above reasons, the Constitutional Court therefore rejected the application for annulment of the provisions of Paragraph 442 (1) of the Civil Code and of Paragraph 449 (2) of the Civil Code under Paragraph 70 (2) of the Law 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 the judges JUDr. Stanislav Balík, JUDr. Miloslav Excellent and JUDr. Eliška Wagner.
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Regulation Information
| Citation | The Constitutional Court found no 265 / 2005 Coll., on the application for annulment of the provisions of § 442 paragraph 1 and § 449 paragraph 2 of Act No. 40 / 1964 Coll., Civil Code |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.06.2005 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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