Communication from the Constitutional Court No 297 / 2014 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 25 November 2014 sp. zn. Pl. ÚS- st. 39 / 14 on the right to compensation for non-material damage pursuant to Article 5 (5) of the Convention on the Protection of Human Rights and Fundamental Freedoms
Valid
Communication from the Constitutional Court
Text versions:
16.12.2014
297
COMMUNICATION
The Constitutional Court
On 25 November 2014, the Plenum of the Constitutional Court was adopted by Louis David, Jaroslav Fenyk, Jan Filip, Vlasta Formánková, Vladimir Kronka, Tomáš Lichovník, Jan Musil, Pavel Rychetský, Vladimir Sládeček, Radovan Sučánek, Kateřina Šimáková, Vojtěch Šiměk, Milada Tomková and Jiří Zemánek, on a proposal of the III. Senate of the Constitutional Court pursuant to Article 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, in the case before this Senate under sp. III. ÚS 1856 / 13,
the following opinion:
I. The right to compensation for non-material damage pursuant to Article 5 (5) of the Convention on the Protection of Human Rights and Fundamental Freedoms shall arise provided that the State's intervention in the personal freedom of the person concerned has taken place, or that the action has been terminated only after the international convention has become binding on the Czech Republic (i.e. since 18.3.1992); the time of participation of that person in rehabilitation is not relevant in this respect.
II. This legal opinion shall not apply in cases where an action for payment of compensation for non-property damage has been brought before the adoption of that opinion.
Reasons
The Constitutional Court's ruling
1. The Constitutional Court, in its decision of 23 May 2012, sp. zn. I. ÚS 3438 / 11 (N 111 / 65 SbNU 497) held that the claim for compensation for non-material damage based on Article 5 (5) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention") derives from the participation of the person concerned in rehabilitation, or from the 2003 decision which annulled the condemning decision of the 1950s. A similar conclusion is that, in the event of the claim to be satisfied for the non-property damage suffered by the complainant as a result of the arrest, detention and enforcement of the detention or sentence, the IV Chamber of the Constitutional Court (e.g. the findings of 30 April 2013 sp. zn. IV. ÚS 662 / 12 and of 24 April 2014 sp. zn. IV. ÚS 644 / 13, available at http: / / nalus.ujud.cz) has also been found in several findings. Since the Third Chamber of the Constitutional Court came to a derogatory legal opinion, it had no choice but to submit, in accordance with the procedure laid down in Article 23 of Act No 182 / 1993 Coll., on the Constitutional Court, the case to the full court of the Constitutional Court for the application to adopt the above opinion.
Recap the contents of the constitutional complaint
2. The Constitutional Complaints of 12.6.2013, registered as sp. zn. III. ÚS 1856 / 13, complainant A. M. ("the complainant"), contested the judgment of the District Court of Prague 2 ("the District Court") of 17 April 2012, No. 10 C 90 / 2010-77, judgment of the Municipal Court of Prague ("the Municipal Court") of 27 July 2012, No. 13 Co. 228 / 2012-91 and Order of the Supreme Court of 28 May 2013, No.
3. The contested judgment of the Circular Court dismissed the complainant's action against the Czech Republic - Ministry of Justice for payment of the sum of CZK 300 000, representing the compensation for non-property damage which was due to the complainant by the judgment of the Lower Military Court of Brno of 20.11.1950 (b) under the criminal law of 20.11.1950 (v t. 205 / 50-III), was recognised by the guilty act of evading the duty of § 270 (1) (b) and by the judgment of the Military District Court of Brno of 28.11.1991 (b) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (2) (1) (2) (2) (2) (2) (2) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5) (5 The Circuit Court concluded that the complainant could not be compensated either under Act No. 119 / 1990 Coll., on Judicial Rehabilitation, and under Act No. 82 / 1998 Coll., on Liability for Damage Caused in the Exercise of Public Power by a Decision or by an incorrect official procedure and amending Act No. 358 / 1992 Coll., on Notaries and their Activities (Notary Order), and that neither (direct) application of Article 5 (5) of the Convention is possible, since the complainant was imprisoned when the Czech Republic was not yet a party to it.
4. The judgment of the Court of First Instance, which was challenged by the judgment of the Municipal Court, was confirmed as being of substance for the appeal of the complainant. The contested resolution of the Supreme Court rejected the complainant's claim that it was not admissible even within the meaning of Article 237 (1) (c) and (3) of the Civil Code.
5. In a constitutional complaint, the complainant states that the question at issue is whether an innocent person who was imprisoned before 18 March 1992 is entitled to satisfaction or compensation for non-material damage. It calls for the support of precisely the legal opinion expressed in the already mentioned finding sp. zn. I. ÚS 3438 / 11 (followed by several other findings), according to which it is not decisive when the injured person was imprisoned, i.e. when the State broke its obligations under international law, but when it achieved an acquittal or a decision on full rehabilitation, since no one can claim satisfaction before such an exoneration decision.
6. The issue is therefore whether the provisions of Article 5 (5) of the Convention can be applied if the State in breach of Article 5 (1) (a) of the Convention has acted before the Convention became binding on the Czech Republic, i.e. before 18.3.1992 (in the present case between 1950 and 1952), but the infringement was declared (in rehabilitation proceedings) only after that date.
Basic starting point
7. The Constitutional Court first of all takes the view that the Convention is an international treaty and as such must be interpreted by the Contracting States, i.e. according to the rules of international law which it found in the Vienna Convention on Contract Law, published under No 15 / 1988 Coll. (hereinafter referred to as the Vienna Convention). At the same time, it should be taken into account that the Parties have established a special body under whose jurisdiction the interpretation of the Convention (binding) is to be carried out (see Article 19 of the Convention) by the European Court of Human Rights (hereinafter referred to as "the ECHR ').
8. There is no dispute that it is the responsibility of the Contracting States or their institutions, including judicial bodies, to interpret the Convention as interpreted by the ECHR. The incorrect practice of the national court in interpreting the rights and freedoms protected by the Convention then creates international legal liability. In this context, however, it is not without meaning that the Convention lays down only a minimum standard of protection for fundamental rights and freedoms, so that the Parties to the Convention can provide protection at a higher level. Therefore, if the Contracting Parties, for example, establish other fundamental rights and freedoms beyond those referred to in the Convention or provide protection for fundamental rights and freedoms beyond the ratione temperis of the Convention, it is a matter of assessing their situation, the values on which they are based, etc. In this field, "beyond and beyond the Convention '(not within the framework of the Convention, where, however, the doctrine of" margin of appreciation' or "marge d'acceptance ') is subsequently applied, the Parties may, from the point of view of the Convention," go back and forth', i.e. increase and reduce the protection of rights protected beyond the scope of protection required by the Convention, unless this is contrary to their other international obligations or constitutional rules (so-called "eternal clause '). It follows that, if national courts accept an interpretation by which they grant a certain right to a person seeking (direct) application of the Convention without actually testifying to it from the Convention, international liability does not arise if the legal opinion is changed. The same must apply, however, in a situation where national law does not provide the basis for such a favourable procedure.
9. A further conclusion relevant to the present case is therefore that the international liability of the State does not arise in such a situation (here under Article 5 (5) of the Convention), if the interpretation relied on by the Convention will be rectified by the national courts for its contradiction with the constitutional order (here under Articles 42 and 49 of the Constitution), thereby de facto, but not de constitutione lata, it will reduce the existing level of protection of fundamental rights. In this context, the Constitutional Court adds that the shift in the case-law of the national courts or the so-called judicial departure, if properly justified, is normally not in itself contrary to the Convention [see, for example, Case No 36815 / 03, paragraph 38, Case No 13279 / 05 Atanasovski v Macedonia [2010] ECR 2010.2011, Case No 68-96 of the Grand Chamber of 20 October 2011 in the case of the Nedet'ahin and Perihan'ahin v Council of Turkey; Decision of 30.8.2011 in Boumaraf v France, Case No 32820 / 08; judgment of 10.5.2012 in Albu and Others v Romania, Case No 34796 / 09, paragraph 34; for an exception to this general rule, see judgment of the Grand Chamber of 21.10.2013 in Del Río Prada v Spain, Case No 42750 / 09, paragraph 93 in fine, paragraphs 111-118 and paragraphs 130- 131 (change of caselaw against the defendant)).
10. However, the fact that in such a case there is no international liability of the Contracting State for the breach of the Convention does not mean that the defective interpretation of national courts, supported by the Convention, would be without meaning, in terms of constitutional order and the parliamentary forms of government and the principles of the rule of law, since, by establishing a legal claim beyond the Convention, the institutions of jurisdiction interfere with the jurisdiction (acting ultra vires) entrusted to the people of the legitimate legislature within the meaning of Articles 2 (1), 15 (1), 42 (2) and 49 of the Constitution and the judicial authority under Article 95 (1) of the Constitution. In so doing, the Court of Justice (whose component is not traditionally the government over a "purse" state or diplomatic power) is called upon to provide protection for rights and to decide on the claims arising from the law and international obligations of the State (in this context also Article 9 (5) of the International Covenant on Civil and Political Rights), but, in view of its legitimacy, it cannot itself create them beyond the will of a democratically legitimate legislator both in terms of constitutionally foreseeable content and form, and in terms of the costs associated with their satisfaction. In this respect, the doctrine of the division of tasks of state authorities is also bound by the judiciary.
11. It should also be added, for the sake of completeness, that this is not a case envisaged by the provisions of Article 17 of the Convention, since the State, through the legislature, has not recognised any right to the parties concerned which would be restricted by the interpretation of the Convention.
Application of Article 5 (5) of the Convention from the point of view of ratione temporis
12. The fundamental right to personal freedom within the meaning of Article 5 of the Convention shall give each individual, first and foremost, the right to refrain from any interference in such a protected legal position; where such unlawful interference (nevertheless) occurs, it is entitled to remove its consequences and to establish a legal situation in order to comply with that fundamental law. Only if the removal of the defective condition is not imaginable or possible, as a third in the order is eligible for compensation. This (secondary) claim may be derived directly from the basic law in question, its content being the compensation of all material and material injury caused to the person concerned by the intervention. This subjective substantive right, expressly enshrined in Article 5 (5) of the Convention, can be reached separately by the ESLP, its main importance being that, in those States where the Convention is not "directly applicable ', it obliges them to adopt national legislation which corresponds to that law.
13. As regards the question of the temporal scope of the Convention, the settled case-law of the ECHR is based on the need to distinguish between the ongoing situation and the one-off act, the consequences of which may also be reflected at present. The ESLP also distinguishes the intervention itself on the one hand and the failure of the means subsequently made to remedy such intervention on the other hand, with the fact that the infringement of the rights guaranteed by the Convention must be derived not from the refusal of the State to remedy the intervention but from the intervention itself; Therefore, the time or period at which the intervention took place is decisive in terms of its temporal scope, otherwise the general legal principle of the prohibition of retroactivity within the meaning of the Vienna Convention would be infringed; there is no general obligation on the State to remedy the injustices or injustices caused prior to ratification [see Grand Chamber judgment of 8.3.2006 in Blečić v Croatia, Case No 59532 / 00; the unlawful conduct of the State at a very distant time (forced labour of Italian prisoners of war - deportation took place before 3.9.1953 when the Convention entered into force for Germany) see Decision of 4.9.2007 in Case No 45563 / 04 Associazione Nazionale Reduci dalla Prigionia dall'Interna- mento e dalla Guerra di Liberazione and 275 others v Germany (available at http: / / hudoc.echr.coe.int / sites / eng / pages / search.aspx? i = 001-82292)].
14. A certain exception to this rule - must be emphasised in specific cases of infringement of Articles 2 and 3 of the Convention - is a separate procedural obligation to conduct an effective investigation where the moment of initial intervention in the fundamental law in question may not be decisive in that regard. See also the judgment of the Grand Chamber of 9 April 2009 in the case of Shilih v Slovenia, Case No 71463 / 01; in addition to the assumptions of the State's liability in respect of the time for the infringement in question, see also the judgment of the Grand Chamber of 21 October 2013 in the case of Janowiec and Others in the case of Russia (case of Katyn), complaint No 55508 / 07 and No 29520 / 09 (available at http: / / hudoc.echr.coe.int / sites / eng / pages / pages / pages / pages / search.aspx? i = 001-127684), and the case-law cited by the ECHR on the issue of ratione temporis, including a similar interpretation of Article 9 (5) of the International Covenant on Civil and Political Rights of Human Rights in Geneva. In addition, the Constitutional Court merely points out that the subject matter of this opinion is not an assessment of the specificities of the application of Article 9 (5) of this Pact (in addition to this, Nowak, M.: U. N. Convention on Civil and Political Rights. CCPR Commentary. 2nd edition, N. P. Engel, Kehl 2005, p. 237-240). Otherwise, this exception (conduct of an effective investigation) did not lead to a challenge to the principle of ratione temporis, as set out above, but it was confirmed. Finally, it is not without meaning that the same position has been taken in the past by the Constitutional Court and on the possibility of applying the Charter to events which were pending its effectiveness [cf. Article 11 (4) of the Charter in 1966, when it was not part of the Czech (Czechoslovak) legal order at all.
15. The issue at issue in the case under consideration is not whether it is the aforementioned "continuing situation," since it was clearly a one-off state intervention in personal freedom, which was terminated in the 1950s by the release of the complainant from the execution of the sentence. In view of the individual nature of the right to compensation within the meaning of Article 5 (5) of the Convention, it may be considered that, even if the infringement of Article 5 (1) to (4) of the Convention occurred before the relevant date, the Convention is still applicable since the national court decided on the compensation only after that date. This option could (hypothetically) be relied on to consider that the Czech Republic, after becoming a Contracting State, was obliged to take adequate measures to remedy the intervention in question, possibly not having such an obligation, but if it had done so in the form of a judicial rehabilitation law, this legislation must reflect the provisions of Article 5 (5) of the Convention.
16. However, this cannot be the case, despite the relatively autonomous nature of the basic law in question (see above). In general terms, the obligation of the State to correct the injustice or the damage before ratification must be in line with the Convention for the Contracting States to make it possible to correct the injustices or the damage caused by them before they ratified the Convention, since any other approach would undermine both the principle of exclusion of the State's obligations, which enshrined the contract law, as well as the fundamental difference between the breach and the reparation on which the State's liability is based [while it is true from the ratification date onwards all of State's actions and omissions must conform to the Convention (see Yaglankosgån v Turkey, 8 June 1995, § 40, Series A. Any other approach would undermine both the principle of non-retroactive in the law of treats and the fundamental distillation between vision and reparation that underlies the law of State responsibility; available at http: / / hudoc.echr.coe.int / sites / eng / pages / search.aspx? i = 001-72688]. Similarly, this opinion was generally (not only for the restitution of property) emphasised by the ECHR in its judgment of 8.6.2006 (Case No 22860 / 02 Woyou v Poland - compensation for forced labour), when it stated that such an obligation of the State under the Convention did not arise retrospectively (there is no general obligation under the Convention for States to compensate wrong cases inflated in the past under the general cover of State authority, available at: http: / / hudoc.echr.coe.int / sites / eng / pages / search.aspx? i = 001-75719).
17. If, in particular, the compensation provided for in Article 5 (5) of the Convention, the provision cited specifically links the existence of that entitlement to a breach of the preceding paragraphs or to a breach of the (primary) obligation of the State. If such a breach could not have occurred on the ground that the relevant international legal obligation of the Czech Republic had not yet been committed, then the infringement (secondary) obligation cannot be imported either. If (nevertheless) the Czech Republic has adopted a law on judicial rehabilitation on the basis of which it annulled the condemning decision and compensated the complainant, it has acted on the basis of national law outside the scope of its obligations within the meaning of Article 5 (5) of the Convention and it cannot be accused that the compensation in question does not correspond to the later set "parameters' resulting from the provision cited. Otherwise, there would be a state where a positive step by the contracting state would eventually turn - in the field of international responsibility - against it itself in the form of a burden it could not have anticipated at the time of ratification.
18. In this context, it should be noted that otherwise it would have to be the case that, for example, by issuing restitution laws, the Czech Republic was responsible for the violation of property rights (which led to them) before the Convention is in force, or the obligation to remedy this breach in the form of a return of property or financial compensation, regardless of when it occurred (i.e. even before 25 February 1948 or even further in the past). However, no such thing can be inferred from the ECHR case-law, as it stands on the opinion (see, for example, the judgment of the Grand Chamber of 28 September 2004 in Kopecký v Slovenska, complaint No 44912 / 98) that Article 1 The Additional Protocol to the Convention cannot be interpreted as imposing a general obligation on the Contracting States to take up the restitution of property transferred to them prior to the ratification of the Convention (see, furthermore, the summary of the case-law and the conclusions drawn from it in the work of Kmec, J., Košák, D., Kratočíl, J., Bobek, M. European Convention on Human Rights. Comment. Issue 1. Praha: C. H. Beck, 2012, p. 52-57, 1283- 1285).
19. The legal opinion contained in the finding in sp. zn. I. ÚS 3438 / 11 (and its related decisions) is based on the argument that only from the legal power of the "rehabilitation" judgment could the complainant claim compensation (non-property damage). However, taking into account the above reasons, this cannot be considered relevant in the light of the aspect of ratione temporis of the Convention. For him, the moment at which the State intervened is relevant, namely when the State broke its obligations under Article 5 (1) to (4) of the Convention (see Subb 8 above), and not when the decision of its authority which caused the intervention was annulled. Another conclusion would, moreover, be that the applicability of Article 5 (5) of the Convention would depend on a positive decision by a national court and, on the contrary, other cases where a negative decision has been given or no decision has been given would remain out of its reach, even if the potential for both groups to infringe Article 5 (1) to (4) of the Convention is the same. Therefore, the annulment of the judgment should (only) be regarded as a legal condition for possible compensation by the national court under national law. Another conclusion without explicit support in the decision by the democratic elections of a legitimate legislator could have - reflected in other areas and periods of time of our history - the obvious consequences, despite the fact that this would violate equality compared to the number of other persons who have been the victim of the infringement of past regimes in our territory.
20. It can therefore be concluded that the complainant could claim compensation pursuant to Article 5 (5) of the Convention only if he was (at all) entitled; if the condition of entitlement to the infringement (infringement of Article 5 (1) of the Convention) is that the judgment of the national court be annulled, that condition could not be fulfilled, not materially (ratione materiae) but in terms of time (ratione temporis).
Application of Article 3 of Protocol No 7 to the Convention from the point of view of ratione temporis and materiae
21. This provision is of major importance for solving the problem. Between him and Article 5 (5) The Convention is one substantial difference - it embodies a completely separate claim of material character to compensation in the event of a misconduct of justice. The applicability of the provision in question does not depend on the infringement of the law enshrined in the Convention. The consequence is that, here (on the contrary), ratione temporis is relevant when the final (condemning) judgment was annulled and not when the condemnation judgment was issued (it could therefore have been before the Convention was in force). If the final (condemning) judgment has been annulled in the validity of the Convention, the State is obliged to comply with that provision. It can therefore be applied to the case.
22. On the other hand, there is no obligation on the Czech Republic to pay compensation under this provision in the cases under consideration. In the spirit of the case-law of the ECHR (judgment of 2 November 2010 in Bachowski v Poland, complaint No 32463 / 06, and of 3 July 2008 in Matveyev v Russia, complaint No 26601 / 02), the condition of application of that provision is, inter alia, that the final (condemning) judgment was annulled on the basis of a new or new fact which led to the conclusion that a judicial error had occurred. However, such a fact cannot be regarded as a reassessment of the evidence in the original criminal proceedings or any other legal assessment of the case (in the first case it was a similar situation, as the complainant distributed leaflets against the Soviet Union in 1959).
23. It is also possible to exclude the procedure based on a combination of both provisions, namely that the temporal applicability of the Convention would be derived from Article 3 of Protocol No 7 to the Convention, which is relevant to Article 5 (5) of the Convention.
24. In the light of the foregoing, it was therefore not possible to address the possible interpretation of the claim for compensation for non-material damage, taking into account the complainant's claims of which the non-material injury consisted of whether there could be a causal link between the unconventional restriction of personal freedom and the alleged injury (cf. Case 26772 / 95 Labita v Italy, Complaint No 26772 / 95; available in ASPI under ID: JUD25517CZ), if sufficient evidence of infringement of such right or freedom (for example, the judgment of Hood v United Kingdom and Cable and Others against the United Kingdom; available in ASPI under ID: JUD25418CZ).
The temporal effects of this opinion
25. As is apparent above, the Constitutional Court has reached a legal conclusion which deviates from the legal opinion previously expressed in relation to the application of Article 5 (5) of the Convention in several of the above mentioned findings. The right to compensation for non-material damage cannot therefore be relied on by Article 5 (5) of the Convention. The other question, however, is whether this different legal conclusion must necessarily also be reflected in the legal departure from the point of view of the decision in question. In seeking an answer to this question, the Constitutional Court based itself on a number of fundamental considerations.
26. In the application practice of the courts, it is certainly possible for there to be so-called judicial divergences (changes). This phenomenon is largely natural as it reflects the fact that the interpretation and application of the law is not static, but dynamic, and the courts, looking honestly for the most fair and fair solution to the cases decided, can later come to the conclusion that the solutions they had previously chosen are not optimal for many reasons. For example, they were unable to fully think about all possible points of argument, made logical errors, perceived the need to take account of the development of the legal doctrine, felt the need to respond to the decision-making activities of foreign or international courts, or the overall context of legislation changed. As stated by the Constitutional Court in its judgment of 12 December 2013 in sp. zn. III. ÚS 3221 / 11, "a change in the caselaw, in particular when it is a settled case-law, necessarily creates conflict between the need for legal certainty and the requirement for the substantive correctness of the judgment. In this respect, however, the post office of the internal openness of judicial decision-making plays an important role as an essential structural element of independent law and an order for a fair process. It must also certainly be accepted that the case law, particularly established, strengthens the legal expectations of the persons concerned, but at the same time there is no constitutionally protected expectation in its' immutable ', since, formally, it constitutes a (at most) subsidiary source of law and, as such, can give rise to substantially, weaker expectations of the persons concerned, in fact, that expectation is in contrast to the usually present element of uncertainty regarding the outcome of the dispute.'
27. In any event, however, it should be the case that the divergences of caselaw should take place rather exceptionally and should therefore not be a rule. In fact, any judicial departure from a higher court, which acts to unify the case-law, causes a certain "divergence" of the decision-making activities of the courts below, causes legal uncertainty and may lead to a more difficult predictability of the law. Therefore, any court which approaches a judicial departure must be well aware of these risks and 'negative externalities' and should therefore respect the principle of restraint and self-restraint. Simply put, even stable (albeit not optimal) caselaw is the value per se. As the Constitutional Court has repeatedly stated in the past, the change of settled caselaw can undoubtedly be considered negative in terms of the principles of legal certainty and citizens' trust in law, but it cannot be considered negative in general, on the contrary, the process of "improving 'the law is beneficial and therefore desirable, and therefore cannot be avoided even in the light of the principles of legal certainty and citizens' trust in law [cf. ÚS 3168 / 09 (N 158 / 58 SbNU 345).] However, it is not always possible to consider such a change as really necessary, and therefore the Constitutional Court has, in this context, accentuated the principle of restraint in the past; The rule should therefore be that, if it is not clear which of the interpretations deserves priority, the existing case-law (non-liqued) should be maintained.
28. In the case of the Constitutional Court, it should be recalled and stressed that its task is to protect constitutionality, which must be seen as an objective category, but in particular as an imperative of the protection of constitutionally guaranteed fundamental rights and freedoms in the case of proceedings on a constitutional complaint. This task, although of course entrusted to all courts (Article 4 of the Constitution of the Czech Republic), is most accentuated in the Constitutional Court.
29. If, therefore, the Constitutional Court considers in a particular case whether it is appropriate to proceed to a judicial departure, it cannot abstract from legal relations whose interpretation would change as a result of that departure. With a considerable amount of simplification, these relationships can be divided into vertical and horizontal relationships, whereby the vertical relationship is meant to be a relationship between a purely individual and the State (or public power, see e.g. tax proceedings), whereas the horizontal relationship takes place primarily between private legal entities (typically civil law disputes). In other words, whereas, in typically vertical relations, the consequences of a case-law departure may be negative only for the State (public authority) or, on the contrary, only for the individual concerned, the horizontal relationship is such that it is always reflected in the legal sphere of a private entity. The Constitutional Court should therefore carefully consider the effects of a possible judicial departure when its negative effects are reflected in the sphere of a private person whose fundamental rights are required to protect.
30. Therefore, although the judicial departure is undoubtedly capable of distorting that legal certainty and the stability of the case-law at all times, the Constitutional Court should, with the greatest caution, treat precisely those cases where it is a purely vertical relationship and the consequences of the case-law departure are manifested negatively only for the individual. Indeed, as the Constitutional Court continues to discriminate, it is based on the principle of the primacy of an individual before the State and thus on the protection of his constitutionally guaranteed fundamental rights against public power. It is therefore not and cannot be the task of the Constitutional Court to protect the sovereign state from individuals, but on the contrary: the protection of the fundamental rights of individuals against the state, namely public power.
31. In the present legal question, it is clear that a judicial departure, which would consist merely of stating the impossibility of a procedure under Article 5 (5) of the Convention in the case of claims for non-material damage claimed for interference with personal freedom which occurred before the Convention was committed to the Czech Republic, would necessarily lead to the rejection of those claims which have not yet been decided on in the event of a purely retrospective solution. This would be the case when the Constitutional Court recognised for several years their legitimacy and, as a result of the case-law of the Constitutional Court, the general courts [see the findings of 23.5.2012 sp. zn. I. ÚS 3438 / 11 (N 111 / 65 SbNU 497), of 4.3.2013 sp. zn. IV. ÚS 3439 / 11 (N 37 / 68 SbNU 379), of 30.4.2013 sp. zn. IV. ÚS 662 / 12, of 30.5.2013 sp. zn. II. ÚS 4877 / 12, of 5.11.2013 sp. zn. IV. ÚS 500 / 13, of 24.4.2014 sp. Some of the appellants therefore seem to have claimed their claims only on the basis of the knowledge of this case-law as they expected it to be met. In addition, it is clear from the nature of the case that there are only a limited number of cases which may be directly concerned by these caselaw conclusions.
32. On the basis of these more general considerations, the Constitutional Court has therefore examined whether the mere impossibility of action under Article 5 (5) of the Convention necessarily implies that these - currently already applied - claims cannot be met. He concluded that this was not the case.
33. As is apparent from the above, the judicial departure carried out by this opinion can have either prospective or retrospective effects. There can be no reasonable doubt as to its prospective effects, namely in relation to potential proceedings which have not yet been initiated, and therefore there is no need to argue in this respect.
34. However, in relation to the retrospective effects, the Constitutional Court considers that this is a purely vertical relationship between the State and the applicant for compensation for non-property damage, so that the use of (even incorrect) legal opinion cannot be affected by the legal sphere of other persons. It should also be assumed that the Constitutional Court should act in a situation where, in several other and legally comparable cases, the appellants have already been complied with. In this context, the Constitutional Court would therefore consider it manifestly unfair to make a move to the detriment of several plaintiffs (pure transparency), in which case the Constitutional Court would therefore consider it manifestly unfair, thereby creating further inequality and injustice, including within this group of persons who were in a fundamentally comparable legal situation, who were seeking their rights properly, but only some of them were "lucky 'that their cases had been decided before that judicial departure.
35. It is notoriety to recall that the issue of judicial rehabilitation is (only) one of the components of efforts to deal with the pre-November totalitarian communist regime that violated the fundamental rights and freedoms of individuals. It is therefore necessary to choose not a restrictive but an extensive approach in its interpretation. Otherwise, even in our circumstances, the sad sigh of a well-known East German dissident and human rights fighter Bärbela Bohley, who said on the Margo settlement with the past: "The GDR wanted justice, and instead they got the rule of law."
36. The Constitutional Court therefore concludes that the judicial departure made in this Opinion cannot be interpreted as covering retrospectively the proceedings initiated prior to its publication but should be applied only to futuro (prospectively).
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 Krórek, Vladimir Sládeček and Radovan Sukánek on the opinion of the plenary.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Communication from the Constitutional Court No 297 / 2014 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 25 November 2014 sp. zn. |
|---|---|
| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.12.2014 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0