The Constitutional Court found no 275 / 2014 Coll.
The Constitutional Court's finding of 7 October 2014, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
28.11.2014
275
FIND
The Constitutional Court
On behalf of the Republic
On 7 October 2014, the Constitutional Court decided, under point Pl.
as follows:
I. Motion denied.
II. Principle of equality of parties within the meaning of Article 37 (3) The Charter of Fundamental Rights and Freedoms fulfils the award of a flat-rate refund as compensation for expenditure in accordance with the list of expenses in Article 137 (1) of the Civil Code, as well as for a party not represented by a lawyer, in situations in which a party represented by a lawyer would be granted such compensation under Article 13 (3) of the Law Tariff.
Reasons
Definition and recap of the proposal
1. On 13 August 2013, the Constitutional Court received a request from the Regional Court in Chrudim (hereinafter referred to as "the applicant ') pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') and pursuant to Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') on the annulment of the provisions of § 137 (1) of Act No. 99 / 1963 Coll., the Civil Code, as amended, or at least the abolition of the word" finished' in that provision (notice of the Constitutional Court). Alternatively, the appellant proposes that the Constitutional Court should, by an interpretative statement, lay down the principles and limits for determining the reimbursement of small and overheads which are regularly incurred by participants in civil proceedings who are not represented by a lawyer.
2. According to the appellant, the contested provision is contrary to Articles 36 (1) and 37 (3) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), since some successful parties are obliged to demonstrate the costs they incurred in the proceedings, while others are deprived of that burden, it is sufficient that they apply the costs on a flat-rate basis on the basis of a standard-based assumption that the completed costs of CZK 300 are regularly linked to the process.
3. The appellant recalls that a flat-rate reimbursement of the expenditure incurred regularly in connection with the processing of civil proceedings is one of the few possible solutions if civil proceedings are to be effective and if the State is to comply with its obligations under, inter alia, Articles 1, 4 and 90 of the Constitution and Article 36 et seq. of the Charter. This solution contains the provisions of § 2 (1) and § 13 of Decree of the Ministry of Justice No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, which sets out on a flat-rate basis the minimum amount of the final expenses to be paid to the participants represented by the lawyer by the unsuccessful participant. This is according to the appellant on the edge of constitutionality, since the decree is only formally implementing Section 22 of Act No. 85 / 1996 Coll., on the Lawyer, as amended.
4. The appellant points out that, in practice, this flat-rate compensation is treated as a sort of overcompensation, but it is no longer fully reflected in the legal and technological developments or the actual nature of an act that sometimes leaves no room for expenditure to be covered by such flat-rate compensation. The appellant does not criticise the existence of flat-rate compensation for final expenses, but points out that the breach of the equality of the parties to the proceedings consists in the fact that the provisions of Paragraph 137 (1) of the Civil Code are linked to the creation of compensation for a group of participants to demonstrate the existence of final expenses.
5. As a solution to this inequality, the appellant first refers to the application of Article 11 (1) and (2) and Article 13 (3) of the Law on the basis of the direct application of Article 37 (3) of the Charter, which, however, runs counter to the requirement of a procedure under Article 137 (1) of the Civil Code, resulting in the maintenance of the above-mentioned inequality, which is also documented by the appellant in the procedure from which the application was made. It considers it a typical consequence of the rule of law which calls directly for actions on the part of the plaintiff to be brought at a low cost, but the costs of a legally unrepresented defendant should not be compensated. There is a similar situation with institutional guardians. The appellant recalls that such an arrangement forces legal laymen to be represented by a lawyer, as this is the only way to obtain at least a flat-rate reimbursement of the final expenses. Moreover, the anti-constitutional adjustment of the costs of the parties is also linked to the deficits of the Czech legal aid system, which was also highlighted by the Constitutional Court as the defender of the parties' rights and equality.
Proceedings before the Constitutional Court
6. The Constitutional Court pursuant to the provisions of Sections 42 (4) and 69 of the Law on the Constitutional Court has sent the application in question for the annulment of the contested provisions to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, the Government and the Ombudsman.
7. The Ombudsman stated by letter that she would not exercise her right of entry into the proceedings, and that she was in agreement with the proposal submitted by the District Court in Chrudim.
8. The Government has also indicated that it will not use its right to intervene, but it has pointed out that, in the legislative process at the level of the Government, the Legislative Council of the Government of the Government is currently discussing the legislative proposal for a law amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and Act No. 120 / 2001 Coll., on the Enforcement and Enforcement Activities (Enforcement Regulations), and on the amendment of other laws, as amended, (carried out in the eKLEP electronic library under Act No. 454 / 14), the aim of which, in addition to the fact that the party to the enforcement and enforcement proceedings was not represented by the lawyer, would have the right to receive compensation of the final expenses and the final earnings of the Ministry, without having to prove any expense. Therefore, the government merely expressed concern about the interpretative problems to which possible acceptance of the second part of the potential petition would lead, namely the abolition of the word "finished" in the provision of Section 137 (1) of the Civil Code.
9. The Chamber of Deputies, through its President Jan Hamáček, has recaptured the procedure for adopting the Civil Code and its relevant amendments. It recalled that these laws have always been approved by a necessary majority of Members of the National Assembly of the Czechoslovak Socialist Republic, the Federal Assembly of the Czech and Slovak Federal Republic, as well as the Chamber of Deputies, have been signed by relevant constitutional officials and have been duly declared and that the legislature has always acted in the belief that the laws adopted comply with the Constitution and our legal order.
10. The Senate pointed out, through its President Milan Štách, that, although Article 137 (1) has been amended several times since the adoption of the Civil Code, the normative text "the final expenditure of participants' against which the present proposal is directed has been in it since the outset, that is, since 1963. The last major amendment to the Civil Code (Act No 293 / 2013 Coll.), adopted in connection with the recdification of private law by a substantive law and also approved by the Senate, did not change that. It is precisely on this last major" revision "of private procedural law, carried out by Act No. 293 / 2013 Coll., amending Act No. 99 / 1963 Coll., the Civil Code, as amended, and some other laws, that the legislator dealt with the Civil Code as a whole and would undoubtedly, on such an occasion - if he were convinced of the inconstitutionality of the contested provision - in the manner defined by the Constitution and the relevant Rules of Procedure, react to the situation. The Senate itself did not initiate or at other times initiate the amendment of § 137 (1) of the Civil Code in connection with the examination of the draft law No. 293 / 2013 Coll. nor did it have any constitutional reservations about the costs of the proceedings.
11. The Constitutional Court examined whether the Czech legislation differentiating the demonstration of costs of represented and non-represented participants corresponds to the reporting of costs of proceedings in the surrounding countries. The purpose of this comparison was to find out in which countries whose civil procedural rules are systemically similar to the Czech civil procedure, it is possible that a successful participant, whether represented by a lawyer or a notary, may request a flat-rate reimbursement of the final expenses (or similar type of claim); and in which countries, on the other hand, only a participant represented by a lawyer or notary may claim such flat-rate reimbursement of final expenses (or similar type of claim). This comparative analysis showed that only Germany and Slovakia make a difference between the 24 countries under consideration and the non-represented participants in terms of granting a flat-rate reimbursement of certain costs (telecommunications or photocopying).
Assessment of alleged unconstitutionality
12. The Constitutional Court first dealt with the applicant's active legitimacy to bring an application for annulment of the contested provision and concluded that the applicant was actively legitimate. In fact, in the case before the Constitutional Court, the appellant applied the provisions of the Civil Code on costs and their reimbursement, made their application, in his view, in a constitutional manner, by filling in an unconstitutional loophole, and the appellant concluded in the relevant case that such application was not possible. Thus, if the appellant considered that the application imposed by his court of appeal was contrary to the constitutional right of the party to a fair trial and equal position of all the parties in the court proceedings (Articles 36 (1) and 37 (3) of the Charter), there was nothing left but to refer to the Constitutional Court to resolve the question of the constitutionality of the contested provision and its constitutional interpretation. It cannot be ruled out that it would be more appropriate to challenge before the Constitutional Court, together with § 137 of the Civil Code, and § 142 of the Civil Code governing the award of costs, but the Constitutional Court interpreted the appellant's proposal in such a way as to be able to discuss it with the fact that the appellant requires him to interpret an interpretation of the loophole in the law or to abolish the legislation which favours the provision of proof of the final expenses of a party represented by a lawyer over a participant not represented. The problem of this inequality is caused not only by the contested provisions of the Civil Code of Justice, but also by the implementing provisions of the Law Tariff. Although the judge of the General Court is called upon under Article 95 of the Constitution to assess the compliance of the order with the law itself, in the present situation, the appellant has found a flat-rate reimbursement of the costs provided for by the legal tariff to be constitutional and consistent with the principle of economy and effectiveness of the judicial procedure; a dispute with the right of a party to equal treatment before a court consists only in the failure to grant such flat-rate compensation to a party not represented. The appellant's objective in the case under consideration was not to complicate the procedural obligations of the represented participants, but to facilitate and simplify the process of proving the costs of the proceedings for the non-represented participants. The Constitutional Court therefore understood the proposal and debated the proposal, since the refusal to discuss it would be contrary to its constitutional role and the expression of overstretched formalism.
13. In assessing whether the contested provisions of the Civil Code and its related provisions of the Law are contradictory to the constitutional order or whether they are unconstitutional, it can nevertheless be interpreted as being constitutional in terms of the possibility of granting flat-rate compensation, as the appellant suggests, not only by his proposal, but in particular by his own decision-making practice, the Constitutional Court first considered the purpose of this regulation.
14. First, it is appropriate to state the text of the contested provision of Paragraph 137 (1) of the Civil Code, together with the wording of the closely related paragraph 2:
"(1) The costs of the proceedings shall in particular include the expenses incurred by the participants and their representatives, including the legal fee, the loss of the earnings of the participants and their legal representatives, the costs of the evidence, the interpretative costs, the compensation for value added tax, the remuneration for representation and the remuneration for the mediator under the Mediation Act for the first meeting with the mediator ordered by the court pursuant to Article 100 (2).
(2) The remuneration for representation is one of the costs of the proceedings only if the representative is a lawyer or notary within the scope of his or her authorization provided for by specific legislation or a patent representative within the scope of the authorisation provided for by specific legislation. "
15. It follows from the provision cited that, if the party is not represented by a lawyer, he shall be entitled in particular to reimbursement of the final expenses. Comment literature (see Drápal, L., Bures, J. et al. Civil Code I.: § 1 to 200za. Comment. Prague: C. H. Beck, 2009, p. 945) defines the expenses incurred in addition to other costs explicitly in the provision of Section 137 (1) of the Civil Code mentioned (for the non-represented participants there is a legal fee, loss of earnings, cost of evidence and interpretation) as follows: "The expenses incurred by the participants (by the interveners) and their representatives are, in addition to the expenses associated with the delivery of their submission to the court (postage), in particular the fare, local transport, food and accommodation costs, and, where appropriate, the necessary, the publication of the guide and its lost earnings. 'The final costs of lawyers, notaries and patent agents, paid by a flat-rate amount to cover the costs of national postal, local and transport charges, are then analysed separately.
16. The Constitutional Court has repeatedly expressed its views on the principles governing the granting of compensation for final expenses incurred under Paragraph 142 (1) in connection with § 137 (1) and (2) of the Civil Code. Apparently, it most proudly did so in the decision on the reimbursement of the costs of the civil dispute process. In this principle, the idea is projected that anyone who has reasonably defended his subjective right or his rightly protected interest should be entitled to reimbursement of the costs he has incurred effectively in this process against a participant who has intervened in his legal sphere for no reason. The right of a successful procedural party to a unsuccessful party to reimbursement of costs is based on the basic structural principle applied in the civil dispute procedure, i.e. the system of two parties in a contradictory position, in which the parties act as opposing opponents in the proceedings. At the same time, the success of one procedural party is a failure of its procedural opponent, with each party seeking, within the limits set by the Civil Code, to achieve its own victory and loss by means of admissible means. If a procedural party is successful, its opponents should compensate it for the costs it has incurred effectively, as it would be contrary to the protection function of civil procedural law if the civil process would not allow the reduction of the participant's property sphere to be eliminated only by being forced to defend for a reason its rights in which someone else intervened. '
17. The prevailing case-law of the civil courts then shows that the completed expenditure within the meaning of Section 137 (1) of the Civil Code must be demonstrated by the non-represented party if, pursuant to Section 142 of the Civil Code, it is intended to be compensated. An example can also be given by the order of the Regional Court in Hradec Králové - a branch in Pardubice sp. zn. 18 Co. 229 / 2013 of 27 June 2013, which repealed the original order of the appellant in the proceedings from which the now examined application was made, with which the defendant, who was not represented, wanted to grant a flat-rate reimbursement of the final expenses. The Regional Court specifically stated here: "It is clear, without contrary to the principle of equality between the parties, that the defendant's final expenses in connection with this procedure cannot be identified with the expenses that the defendant would be obliged to pay to his lawyer for the provision of legal services if he were represented. '
18. On the contrary, the representatives of the parties may also claim a remuneration for representation in the costs of the proceedings which they are granted in the event of their success in the proceedings, including, in accordance with Paragraph 13 (1) of the Law Tariff, "compensation for final expenses effectively incurred in connection with the provision of the legal service '. Paragraph 13 (3) of the Law Tariff adds:" If the lawyer and the client have not agreed on another lump sum to compensate for the expenses of national postal, local and transport charges, this amount shall be CZK 300 per legal service. "In addition, it is generally common practice that even if a lawyer and a client would agree a higher lump sum, the general courts only grant an adjusted amount of CZK 300 for each action (cf. commentary on § 137 (1) of the Civil Code in Jirsa, J. et al. Civil trial: a judicial comment. Praha: Havlicek Brain Team, 2013; electronic version available in the legal information system ASPI).
19. The first of the flat-rate expenditure is therefore the national postal charges. This is a cost that can be demonstrated by an unrepresented party, but also by a lawyer, and therefore by means of a representative party, it will not normally arise at all today, since the written communication of lawyers with the courts has been largely replaced by communication via data boxes. For them it is relatively difficult, both financially and professionally, their actual acquisition and, respectively, their commissioning; However, the individual communication act is now practically free of charge, so it would be difficult, albeit on average, to determine roughly the cost of "data postage" in relation to one legal service operation. Similarly, the accounting of "local call" is already an archaism in itself, because in an era when most telephone communications are made using mobile phones, it makes no sense to distinguish between local and inter-city calls and it can be assumed that today's lawyers do not usually charge calls after minutes or individual calls, but covered by a flat-rate payment to a mobile operator, so that a single call made with a court or with a mandant does not normally provide a separate exactly quantifiable expense. Perhaps only the transport sense of the adjustment remains the same as at the time of acceptance of the legal tariff. However, in their entirety, the costs to be compensated for by a flat-rate compensation are incurred to a much lower extent than at the time of the adoption of the bar fare, or they relate in general to the operation of the law firm (internet payments and telephone flat-rate) rather than to individual operations. The flat-rate reimbursement of final expenses is intended to cover the costs incurred by the lawyer in relation to a specific procedure or action, but would be difficult to quantify. Paradoxically, if someone carries the expenses to be covered by this flat-rate, it will be more often than not represented by the parties, usually without a data box, than by lawyers or represented by the parties. In addition, although the non-represented participants in the mobile operator's account are likely to more easily identify the call made by the court in their proceedings from other calls (the "simplification 'is no longer waived for the reporting of additional costs covered by the flat-rate compensation), the very difficulty of finding and reporting these data before the court, which is often quite unusual and difficult for them to handle, is more than compensating for this" simplification'.
20. Thus, as represented and non-represented participants, there is an inequality in proving the costs incurred, since the lawyer represented by the party does not have to register and document part of the expenditure, but the party without legal representation cannot benefit from the possibility of flat-rate reimbursement of costs. This inequality can also be seized by a modified test of direct discrimination, which can also be described as an equal treatment test [finding sp. zn. Pl. ÚS 49 / 10 of 28.1.2014 (44 / 2014 Coll.), paragraph 35]. The equal treatment test consists of the following steps assessing the following four issues: 1. are comparable individuals or groups (i.e. parties)? 2. Are they treated differently? 3. Is the difference in treatment of the party concerned liable (by imposing a burden or by denying good)? 4. Is this different treatment justified, i.e. (a) is pursuing a legitimate interest and (b) is appropriate?
21. In the light of this test, it can be concluded that both the first represented and the non-represented participants are in a comparable situation as they are parties to the same proceedings and both the representatives of the represented participant and, therefore, the represented participant itself and the non-represented participant, in particular, create similar costs resulting from communication with the court; 2. they are treated differently, since in the case of represented participants, their representatives may apply the expenditure they have incurred simply on a flat-rate basis, whereas the non-represented participants must prove them more difficult; 3. This difference in treatment is a burden on the non-represented participants as they are subject to a greater burden in terms of supporting the costs of the proceedings; 4. The provisions in question pursue a legitimate interest, namely to reflect the fact that lawyers, as legal professionals representing in a number of proceedings, can hardly substantiate the costs of a particular act of legal service; However, such different treatment is manifestly disproportionate. The main reason for this inadequacy, contrary to Article 37 (3) of the Charter, is that there is a disproportionate burden of proof on the non-represented participants, as they must individually demonstrate the specific costs if they wish to compensate for them; On the other hand, the participants do not have to prove the costs and, on the contrary, they may be able to obtain amounts which often exceed the actual costs, since they are fixed on a flat-rate basis.
22. The imperative of equality between the represented and non-represented parties and in the area of proof of final expenditure is the fulfilment of the important principle of "equality of arms" of the parties to the proceedings, which is an essential part of the right to a fair trial, as the Constitutional Court noted, for example, in its findings sp. zn. Otherwise, from the point of view of the sub-constitutional law and the granting of compensation for costs, it is not at all decisive whether or not a party has been represented, there is a right to reimbursement of costs directly to the party and not to his lawyer. Therefore, contrary to the right to equal treatment or to "equality of arms', a situation would be the case where the parties to the proceedings would be favored by a lawyer vis-à-vis those not represented.
23. This is an unequal treatment, which also constitutes an infringement of the equality of parties in specific proceedings, namely the right guaranteed by Article 37 (3) of the Charter, as pointed out by the appellant. Article 37 (3) All parties in the proceedings shall be equal to each other. However, as a result of the legal and statutory arrangements which have been discussed here, the parties in the proceedings are not equal, on the one hand, because the non-represented parties have to provide evidence of expenditure which the representatives do not have to show; on the one hand, because the increased amount of flat-rate compensation for final expenses does not correspond to a trend which is a de facto reduction in the amount of those costs which, pursuant to Paragraph 13 (3) of the Law Tariff, should have been covered by a flat-rate amount, so it is rather a bonus for the winner in the proceedings and it is not clear at all why such a bonus should be awarded only to the winner represented by the lawyer.
24. In fact, the legislature got into the opposite extreme of the so-called adjudicating decree, namely Decree No. 484 / 2000 Coll., setting flat rates of remuneration for representation by a lawyer or notary when deciding on reimbursement of costs in civil proceedings and amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers for the provision of legal services (legal tariff), as amended. This was abolished by the Constitutional Court's finding, sp. zn. The costs awarded are clearly disproportionate to the nature and content of the dispute. The enforcement of civil obligations in such cases is a marginal matter from the point of view of general fairness, with the creditor's interest in achieving the proceeds of the dispute itself. 'In other words, the Constitutional Court has criticised here in one component of the costs of the proceedings that the unequal decision is made in the same way, that is to say that even the loss in marginal disputes is subject to an obligation to pay costs similar to the loss in non-marginal disputes (and at the same time to a high level of the amount claimed).
25. In the present case, the Constitutional Court finds the problem to be the opposite, since the equal is actually decided inequally, which is again manifested most clearly in the marginal disputes in which the loss is burdened, among other things, by the obligation to compensate the winner for flat-rate completed expenses, but only if the successful party is represented by a lawyer; on the contrary, if the represented party loses, it does not risk paying flat-rate expenses against the non-represented party.
26. Moreover, this inequality, which constitutes a breach of the equality of the parties within the meaning of Article 37 (3) of the Charter in specific proceedings, has also the nature of the systemic problem of Czech justice in certain types of disputes. The Constitutional Court has repeatedly pointed out that, in the long term, the problem of disputes between "series' legally represented applicants, for which both the number of disputes they have led is a relevant motivation and the total amount of the amount obtained in these disputes on the reimbursement of costs, and the non-legally represented defendants, for whom legal proceedings are usually a whole new event in which they are difficult to navigate, while the dispute may be concentrated by such a small amount that they are not paid to be legally represented. For example, in Resolution sp. zn. I. ÚS 3372 / 11 of 24.7.2013 (available at http: / / nalus.ujud.cz), the Constitutional Court criticised the granting of compensation for the costs of proceedings in a situation where the right to cash performance is enforced in a series other than the original (original) creditor and the plaintiff is trading, the profit being generated by flat-rate reimbursement of the final costs of the proceedings (but still in accordance with Decree No. 484 / 2000 Coll.). The same view was later taken over by the Constitutional Court in the sp. zn. IV. ÚS 3678 / 12 of 18.12.2013 (available at http: / / nalus.ujud.cz). The Constitutional Court then criticised the finding that the ÚS 195 / 11 of 15 December 2011 (N 215 / 63 of the SbNU 473) had been found to be critical of the" parasification (disproportionate increase in costs) of small claims on citizens. Of course, this does not mean that lawyers should be denied the right to generate profits, as is apparent from their freedom of business guaranteed by Article 26 of the Charter. However, this profit is not to be generated by a flat-rate reimbursement of expenditure. Thus, where a practice has been established which sees flat-rate reimbursement of final expenses as a means of generating profits in 100-fold repeated actions, this is also contrary to the purpose of this procedural institute and at the same time contrary to the principle of equality of participants.
27. It is precisely the violation of the equality of the parties in this type of dispute that the appellant rightly points out in paragraph 11 of his proposal: "In the rule of law, legal proceedings cannot be an exclusive arena for those who know magic words such as, limitation, or pretext or tricks on how to avoid delivery, or, on the contrary, formally deliver them in such a way that the other party does not actually know. If a claimant is quite often suing claims that are far beyond the limitation period, it raises, inter alia, questions as to whether the passivity of the defendants with whom it is calculated here is not precisely due to the time distance from the events which the defendant should have incurred..."
28. It should be recalled here that it was the very nature of the dispute from which the proposal in question came. In it, the plaintiff STAY ACTIVE INC. was filed against the defendant Ivana Hápá for an electronic payment order to pay an amount of CZK 6 434 as an underpayment from the leasing price and CZK 1 000 as a contractual fine, and also for payment of the legal fee and remuneration of the lawyer. It was one of the claims previously transferred to the plaintiff under a contract to transfer a larger number of claims. The two amounts complained against and the costs were first awarded to the claimants by electronic order of the District Court of Chrudim sp. zn. 111 EC 599 / 2011 of 17.5.2012. However, the defendant raised the plea of limitation in response to which the applicant withdrew the action. The District Court therefore suspended the proceedings by order of 22.11.2012, by which it also admitted the defendant to pay the costs of CZK 300, since the defendant was not legally represented, on the basis of Articles 36 (1) and 37 (3) However, it was appropriate to apply Article 13 (3) of the Law Tariff by analogy to the situation in question, as was the result of which the district court and the fact that the claimant had applied a clearly established limitation claim. This caused the termination of the procedure and should therefore compensate the defendant for the costs of administrative expenses, communication, research, study of the matter and the time spent, taking into account in particular that it was an old claim for which documentation was difficult to find. The Regional Court in Hradec Králové - the branch in Pardubice, however, annulled the order of the District Court for appeal, since according to him the flat-rate reimbursement of the final expenses of CZK 300 is not applicable to the lawyer of the non-represented party. After the case returned to the District Court for further proceedings, it decided to submit the proposal under Article 95 (2) of the Constitution to the Constitutional Court. It seeks either to be annulled or to define a constitutional interpretation of the above provisions in such a way as to prevent infringements of the equality of parties.
29. The Constitutional Court was informed during the proceedings by the letter of the Office of the Government of the Czech Republic dated 21 July 2014 on the current legislative initiative in the form of a draft amendment to the legal tariff, which is now being prepared by the Ministry of Justice. It is intended to reduce the amount of the lawyer's remuneration as well as the amount of the reimbursement of the final expenses so that the absolute amount of these costs does not motivate the parties to claim the amount of the costs but would at the same time enable the successful party to be reimbursed for the effective cost of legal representation (see the Ministry of Justice's press release of 1 April 2014 entitled the Minister of Justice proposes to reduce significantly the costs of recovery and execution, available at www.justice.cz). Similarly, the Constitutional Court is also aware of the present amendment to the Civil Code, which the Government has pointed out in its observations and which is intended to apply for the future that a participant who has not been represented by a lawyer in the proceedings and has not demonstrated the amount of the final expenses will be admitted by the Court to reimbursement of the final expenses of the amount laid down by the special legislation, without prejudice to his right to reimbursement of other costs. Consequently, the draft legislation leads to the implementation of Article 37 (3) of the Charter and to the settlement of the two parties to the dispute concerning the demonstration of the expenditure incurred in accordance with the conclusions of this decision by the Constitutional Court.
30. Even if it were adopted, however, this legislative change would only have a prospective effect, namely on future disputes. Thus, the Constitutional Court is not deprived of this initiative of its obligation to fulfil the role of protector of constitutionality and to seek protection of the right to equal treatment within the meaning of Article 37 (3) of the Charter of those parties whose disputes are already taking place or begin before the legislative arrangements addressing the problem described are adopted. It is stated below that, in order to protect the law, it is not necessarily necessary to abolish the legislation currently in force, but it is sufficient to attract its constitutionally consistent interpretation, which is already held by some of the general courts, including the appellant.
Assessment of the application for annulment of Paragraph 137 (1) of the Civil Code
31. As regards the examination of the application for annulment of Section 137 (1) of the Civil Code, the Constitutional Court must state that the annulment of Section 137 (1) of the Civil Code would not in fact resolve the described unconstitutional inequality, even in the event of the annulment of the entire provision, even in the case of the abolition of the word "done '.
32. The repeal of the entire provision would merely create a legal gap, since it would not have a provision defining what the costs of the proceedings are. If the Constitutional Court were to proceed with the annulment of this provision with immediate effect on the date of the declaration of the finding, it would be in the courts, starting with the first-instance courts, to determine what may be included in the costs of the proceedings to which the party is to be entitled under Paragraph 142 (1) of the Civil Code; and it would then be in the courts of the appellants and of the appellants that they should gradually unite the interpretation of the lower courts, even in a way that would eliminate the above-mentioned inequality based on existing legislation and its normal application. In the meantime, however, legal certainty as another of the fundamental pillars on which the rule of law is built would be significantly challenged. Such a procedure would impose a burden on both the parties who would argue to the General Courts about the expenditure to be paid to them and on the general courts, which would have to fill the legal gap that has been created by their interpretation gradually, and would also have to deal with the question of intertemporal, that is, the impact of this legal gap and its "filling 'on pending legal proceedings. All this would undoubtedly be detrimental not only to legal certainty, but also to the economy and effectiveness of legal proceedings. The annulment or non-application of Paragraph 13 (3) of the Law Tariff would then also lead to a settlement of the status of the represented and non-represented parties, but this solution would only complicate the procedural obligations of the represented parties and the work of the Judges, on the contrary, the application of that provision to the non-represented parties will facilitate and simplify the process of proving the costs of the non-represented parties. In addition, the complication in the demonstration of costs could be a burden not only on the participants represented but also on their representatives, thereby interfering with their right to business, as enshrined in Article 26 of the Charter. For these reasons, the Constitutional Court considers it more appropriate to provide a solution that does not create a legal gap and does not create an intertemporal problem where it is not necessary to raise it. Moreover, the problem lies not in the text of the contested provision itself, but in its application by certain general courts contradicting the requirements of Article 37 (3) of the Charter. For this reason, the Constitutional Court also considers it more appropriate and consistent with the principle of minimisation of intervention if, instead of removing the contested provision, it defines by an interpretative statement what application it considers to be constitutionally conformal, as discussed below.
33. If, on the contrary, the Constitutional Court were to proceed with the repeal of this clause with deferred efficiency, which is another of the procedures that the proposal under examination might have triggered, it would be a possible instrument of pressure on the legislator to resolve the problem by comprehensive regulation, but it is more than problematic how this would help to resolve the unconstitutional inequality in disputes already taking place or initiated before such future adjustment takes effect, including the procedure from which the proposal now under consideration has arisen.
34. The abolition of the word "finished" alone would not have such a "devastating" effect on legal certainty as the abolition of the whole provision, but it is not clear what would help to establish equality between the participants. It is possible that a reference to "expenditure 'would leave more room for judicial reflection than a reference to" final expenditure', that is to say that it would be easier to make the flat-rate reimbursement of the expenditure of the non-represented participant subject to the word "expenditure 'than to" expenditure'.
35. The Constitutional Court, however, is convinced that the scope for such judicial reasoning as would allow for the granting of flat-rate reimbursement of expenditure to non-represented parties and thus to maintain their equal status in the proceedings vis-à-vis those represented, as required by Article 37 (3) of the Charter, is already provided for in the current text of legislation. It cannot be overlooked that the list of costs contained in Section 137 (1) of the Civil Code is merely a demonstration, as the use of the word 'in particular' shows. It is precisely this word that creates scope for including other costs of proceedings, the recognition of which is consistent with the purpose of this provision. These costs, which can also be reimbursed to the non-represented party, are, in turn, the completed expenses, which are replaced by a flat-rate amount, in accordance with Article 13 (3) of the law.
36. By including these costs, the ground sheet of the demonstrative calculation of the costs of the proceedings contained in Section 137 (1) of the Civil Code fills the gap drawn by the appellant in fact by its proposal, that is to say that the present regulation explicitly remembers the possibility of granting flat-rate reimbursement of the final expenses only to the represented and not to the non-represented parties.
(37) In other words, whereas there is no explicit regulation on lawyers (and therefore also on those represented by them), a clear substatutory regulation defining the amount of the flat-rate reimbursement of the final expenses, no express regulation on the non-represented parties, which must be understood as a legal loophole causing the unconstitutional consequences as explained above. This gap must be bridged by the use of the iuris analogy, that is to say, by the fact that the provision of the law which deals with the situation most similar, in the present case, Article 13 (3) of the law does not explicitly affect the situation, should the non-application of such an analogy have unconstitutional consequences. The use of the analogy is not inadmissible because it is not an area in which its use would be excluded, as is the case in substantive criminal law, and its application is in favour of the non-represented parties affected by this analogous legal tariff relationship. At the same time, it is an analogous application of a law which expressly permits the text of the law, namely the above-mentioned demonstrative nature of the list of costs incurred in the proceedings in Section 137 (1) of the Civil Code. This is mainly an analogous use, which is commanded by the imperative of a constitutionally consistent interpretation of the sub-constitutional law, in the aforementioned situations, in which the application of the possibility of flat-rate reimbursement of final expenses to lawyers alone would create an unconstitutional inequality between represented and non-represented participants. The text of the legal regulation therefore allows this analogous relationship between the statutory regulation and the non-represented participants, and Article 37 (3) of the Charter commands it in certain situations.
38. Paragraph 13 (3) of the Law Tariff is thus to apply mutatis mutandis to the non-represented parties where such a procedure is necessary for the interpretation of Article 137 (1) of the Civil Code in conformity with Article 37 (3) of the Charter. Such an interpretation must be considered to be constitutionally conformal and, in order to minimise judicial action [see, for example, the find sp. zn.
39. Moreover, the fact that such a procedure is practically possible and applicable even without the amendment of the Civil Code also demonstrated by the proposing general court itself, as can be seen not only from its other decisions (e.g. the judgment of the District Court in Chrudim sp. zn. 111 C 54 / 2012 of 19.2.2013), but also from the recap of the proceedings from which the present proposal was made. The possibility of such a procedure is not affected by the fact that the original decision of the proposing court was annulled by the appellant. It is therefore clear that the general courts, in particular the appellant himself, are already using an interpretation which addresses a problem which the appellant considers to be the reason for its proposal, namely the alleged unconstitutional inequality between the parties represented by the lawyer and the parties not represented.
40. In this context, it was appropriate to reject the application for annulment of Paragraph 137 (1) of the Civil Code, as well as the alternative proposal for annulment of the word 'done' in that provision, and to resort to the second alternative that the appellant states in the application, namely to adopt an interpretative statement which would make a binding interpretation of the rules governing the granting of flat-rate reimbursement of final expenses to be regarded as constitutionally conformal, in particular consistent with the requirement of equality of parties within the meaning of Article 37 (3) of the Charter.
The oral interpretation of the contested provision
41. The Constitutional Court has repeatedly interpreted [the finding of sp. zn. Pl. Pl. ÚS 41 / 02 of 28.1.2004 (N 10 / 32 SbNU 61; 98 / 2004 Sb.), the finding of sp. zn. Pl. Pl. ÚS. This procedure, based on the principle of minimisation of the intervention, was adopted by the Constitutional Court this time and, as in the previous cases cited above, decided to supplement the interpretative statement establishing, for the purposes of the case-law of the General Court, the interpretation of the contested provision by a constitutional procedure.
42. The Constitutional Court has already come to the following conclusion in the cited finding, sp. zn. Pl. ÚS 41 / 02:
"Different interpretation of Article 89 (2) The Constitution would make the decisions of the Constitutional Court legal and, if necessary, confusing, and would force the Constitutional Court to take a procedure that appears to be absurd and unsustainable in its consequences: not to rely on the possibility of constitutionally conformal interpretation, abandon the principle of judicial self restraint, and, in the event of the slightest possibility of a constitutionally contradictory interpretation of the contested regulation, abolish it. For those mentioned in the standard control procedure in the event of the adoption of a negative statement with an interpretative argument, the Constitutional Court has, for a set of reasons underlying the basic constitutional principle within the scope of the operative part of the finding. '
43. In the present case, the adoption of an interpretative statement is all the more appropriate in that it is a procedural law decision which should be as clear as possible for both the general courts and the parties. Thus, although the Constitutional Court is aware that binding are already the reasons for his decision [see sp. zn.
44. For these reasons, the Constitutional Court has decided to accept an interpretative opinion which will allow, until a new legal or statutory regulation has been adopted, to interpret now the effective wording of the civil code and the legal tariff in a way which does not infringe the right of participants to have equal status before the courts. As stated above, the Constitutional Court considers that the text of this now effective regulation provides sufficient scope for such a constitutionally conformal interpretation. This is also indicated by the above-mentioned decision-making activities of certain civil courts, including the appellant.
45. Therefore, the Constitutional Court considers that the procedure of civil courts must be considered to be constitutional in which, in situations in which a party represented by a lawyer would grant a flat-rate reimbursement of the final expenses under Paragraph 13 (3) of the Law Tariff, they shall, where necessary for the fulfilment of the equality of the parties, grant such flat-rate compensation as compensation for the final expenses under Section 137 (1) of the Civil Code and a party not represented by the lawyer. The principle of equality between the parties within the meaning of Article 37 (3) of the Charter of Fundamental Rights and Freedoms can be fulfilled in the case at issue by granting a flat-rate refund in order to compensate for the final costs, as set out in Article 137 (1) of the Civil Code, as well as by a party who is not represented by a lawyer, in situations in which a party represented by a lawyer would be granted such compensation under Article 13 (3) of the Law.
46. It is therefore up to the courts to consider, in a specific case in which a successful party without legal representation will be opposed to a successful party legally represented, whether it is appropriate to use the space which, for the constitutionally conformal interpretation of the provisions of Section 137 (1) of the Civil Code, is offered, in particular because of the demonstrative nature of the list of costs. In such consideration, they must assess whether, in the present case, it would be manifestly unfair not to grant a flat-rate refund to the non-represented party and whether, in the present case, the difference in treatment envisaged by the text of the bar tariff results in a discrepancy with Article 37 (3) of the Charter. in particular, whether that difference in treatment does not make the whole of the dispute less favourable to a party not legally represented, for example, because the amount of flat-rate reimbursement of expenditure is not devoid of effect compared to the amount of the dispute or because the party legally represented is clearly bullying. Should these conditions be fulfilled, it is appropriate that the civil courts, in addition to the costs listed in the demonstrative list of provisions of Section 137 (1) of the Civil Code, also indicate a flat-rate reimbursement of the expenses due to lawyers under Section 13 (3) of the Law Tariff.
47. It cannot be overlooked, however, that such a constitutionally conformistic interpretation of the provisions cited will result not only in the fulfilment of the requirements of Article 37 (3) of the Charter, a situation in which the represented and non-represented parties will be equal, including in the light of the ease of granting a flat-rate reimbursement of final expenses; but the result will also be at least a temporary solution to the above-mentioned systemic problem of Czech justice, i.e. the motivation of "big players" to sue "small players." For example, legally represented applicants can now calculate that they are paid to sue for small old claims which have been transferred to them in bulk, regardless of the fact that part of them is already barred and part of them is inconclusive, but it is such a small amount that the defendants usually do not invest in legal representation or, where appropriate, resign entirely from the conduct of the dispute.
48. Such an incentive to conduct civil disputes, deformed by an incorrect approach to the award of costs, was already criticised by the Constitutional Court in its judgment in Case C-988 / 12 ÚS 988 / 12 of 25.7.2012 (N 132 / 66 CollNU 61), in paragraph 22: "If the court considers, when deciding on the reimbursement of costs, whether the costs associated with the representation of a lawyer can be regarded as having been incurred effectively, it should not disregard the very purpose of the civil process as such. Its purpose is to provide protection to violated or threatened genuine subjective substantive rights and protected interests. In accordance with this definition of the purpose of the civil procedure, situations which the Constitutional Court has already pointed out in the past, when civil proceedings are conducted not because of the substance but because of the amount which can be granted for the reimbursement of costs [finding of 14.9.2011 sp. zn. I. ÚS 3698 / 10 (N 160 / 62 CollNU 395)]. A civil trial cannot be allowed to be torn from its real social mission and that, instead of providing protection, it becomes exclusively an instrument for creating an easy and unjustifiable profit at the expense of the counterparty. Therefore, the general idea that the court has already expressed in the decision of 20 June 2011 sp. zn. I. ÚS 329 / 08 (N 118 / 61 CollNU 717) applies to the costs of the proceedings:" The individual civil law institutes and other procedural rules must therefore be adapted and interpreted and applied in such a way that, while maintaining the other basic principles and bases of the civil process, they correspond to the protection function of civil procedural law thus defined. 'If the civil process fails to fulfil its protective function, its existence will lose any social justification. "
49. If the non-represented parties could not be granted a flat-rate reimbursement of the final expenses, it would mean (and in many cases so far) that such a lawyer represented does not risk any cost in the event of a loss in the dispute with the non-represented defendant (for example, only the cost of the amount of the fee established by the lawyer, as in the case of the proposal under examination), however, in the event of a victory (whether for the merits of the legal fees or for the mere liability of the defendant, for example in the case of electronic payment orders for bagueable amounts) he hopes not only for a flat-rate of reimbursement of the final expenses [and in the annulment of Decree No. 484 / 2000 Coll., setting flat-rate of fees for representation by the lawyer or notary in the decision on reimbursement of costs in civil proceedings. If such a prosecutor leads hundreds, even thousands of similar disputes, it may already be very substantial and tempting sums, which motivate him to sue in mass, for example, such claims, which are very likely to be barred or even aware of their statute of limitations, because he has already bought them as a statute of limitations, but he relies on the unrepresented defendant not to object to the statute of limitations because of his ignorance.
50. However, where the general courts proceed in accordance with the constitutional conformance interpretation set out above, this shall also affect the economic consideration of the applicants for the advantages of conducting such bagging disputes, as they are aware that, if their entitlement is justified, they shall, in addition to the claim itself, receive a flat-rate reimbursement of the final expenses; However, if he is not entitled, they risk paying the same flat-rate reimbursement of the final expenses to the successful defendant. Moreover, one part of the equality of parties can be seen in this impact. This does not, of course, deprive the legislator of the obligation to resolve the issue in a comprehensive manner, for which the first steps have already been taken, as stated above.
51. On the other hand, the Constitutional Court points out that, although the constitutional interpretation of the provisions governing the granting of compensation for the costs of the proceedings, as well as the legislation currently under discussion, are steps towards fulfilling the principle of equal status of the parties, this is not, of course, a panacea which would completely resolve the unequal position of particularly poor and legally uneducated individuals in exercising their right of access to the Court under Article 36 of the Charter and Article 6 (1) of the European Convention on the Protection of Human Rights and Fundamental Freedoms. It is the management from which the proposal now under consideration has come that is an appropriate example of the deficit in this area. As a general rule, the defendant is in a much more complicated situation than the party represented, with less knowledge of the substantive legislation being supplemented by ignorance and lack of competence in the procedural rights and scope of the proceedings, and, according to the interpretation of the Court of Appeal in the present case, they should also be required to prove the costs more demanding. The defendants may also have a lawyer established, but this is an administrative procedure for the defendant in the case of bagging claims, and - bearing in mind the possible amount of such claims - expensive for the functioning of justice. In doing so, protecting their rights would certainly help more than repeating the floccle that rights belong to the vigilant, giving them the real opportunity, for example, to turn to a low-threshold legal advice, which would recognise a few minutes' consultation that this is a statute of limitations, and advise them on how to apply the limitation objection in several sentences. The fact that the payment of the final expenses would cover not only the postage, but also the delivery to legal advice, so that they could avert such a bullying claim really free of charge, is just another shred of evidence suggesting the appropriateness of the solution led by the interpretative opinion of this finding.
52. Therefore, for the reasons set out above, the Constitutional Court has generalized the underlying reasons for its finding concerning the constitutionally conformal interpretation of the provisions under consideration and stated them in the interpretative statement of that finding.
Conclusion
53. On the basis of all the above, the Constitutional Court rejected the application of the District Court in Chrudim (§ 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court) and defined the conditions of a constitutional interpretation of the provision of the Law under consideration.
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 Jan Filip, Vladimir Křirka and Radovan Suchanek to decide on the full.
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Regulation Information
| Citation | The Constitutional Court found No. 275 / 2014 Coll., on the application for annulment of § 137 paragraph 1 of Act No. 99 / 1963 Coll., Civil Code, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.11.2014 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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