The Constitutional Court found no 297 / 2015 Coll.
The Constitutional Court's finding of 15 September 2015, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
10.11.2015
297
FIND
The Constitutional Court
On behalf of the Republic
On 15 September 2015, the Constitutional Court decided, under sp. zn. Pl. ÚS 13 / 14, in plenary composed of the President of the Court of Paul Rychetský and the Judges Louis David, Jaroslav Fenyk, Jan Filip, Vladimir Krórka, Tomáš Lichovník, Jan Musil, Vladimir Sládek, Radovan Suchanek, Kateřina Šimatková, Vojtět Šimíček (Judge of the Rapporteur), Milady Tomková, David Uhír and Jiří Zemánek, on the proposal of the Senate Group of the Parliament of the Czech Republic, represented by JUDr. Pavel Ungre, a lawyer, with the seat al of Purkynova 43, Plzen, on the annulment of the provisions of Section 16 Decree of the Ministry of Justice No. 37 / 1967 Coll.
as follows:
The application for annulment of the provisions of § 16 of Decree of the Ministry of Justice No. 37 / 1967 Coll., for the implementation of the Act on Experts and Interpreters, as amended by Decree No. 432 / 2002 Coll., is rejected.
Reasons
Recital of the proposal
1. A group of 16 senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as the "promoters") requested the annulment of the provisions of Paragraph 16 of the Decree of the Ministry of Justice No. 37 / 1967 Coll., to implement the Act on Experts and Interpreters, as amended, (hereinafter referred to as "the contested provision," or "the Decree").
2. The appellants point out, first, that the Decree in question implements the arrangements for the remuneration and reimbursement of costs associated with the performance of the expert activity, on the basis of the authorisation contained in Act No. 36 / 1967 Coll., on experts and interpreters, as amended, (hereinafter referred to as "the Law on Experts and Interpreters'), which, inter alia, requires the Ministry of Justice (hereinafter referred to as" the Ministry ') to regulate the remuneration and reimbursement of the costs of experts and interpreters and the control of remuneration. The contested provision is then its core provision as it sets the remuneration rates for expert opinions. It therefore contains a definition of the basic margin in which the expert may charge remuneration for the hour of his work, more specifically, the limits within which the public authority which requested the expert's opinion may grant the remuneration. This is the value on which the remuneration may be increased (Section 20 of the Decree), the reduction of remuneration (Section 21 of the Decree) or the calculation of remuneration for expert institutes (Section 15a of the Decree). According to the appellants, the alleged problem of the contested provision is precisely the concrete setting of values (financial amounts), which, when deciding on the remuneration for the assessment made, can be recognised by the public authority carrying out the relevant proceedings by experts, which they detail in their proposal.
3. The appellants consider that the legislation contained in the contested provision can be regarded as "historic ', by far not in line with the legislator's original intention, which, by maintaining the regulation on the implementing regulation, provided for the possibility of a more effective way of determining the specific level of remuneration, at regular intervals, taking into account the current conditions of professional pay. However, the rates in the contested provision remained unchanged for more than 12 years, although according to the Czech Statistical Office, the gross domestic product, the average monthly wage, the minimum hourly remuneration, as well as all the costs that the expert must finance for his remuneration, increased very significantly over the period. In this context, the appellants submit a number of statistics on the basis of which they compare the rates of experts' remuneration in the Czech Republic with similar arrangements in selected countries (e.g. Slovakia, Austria, Germany, France, Portugal, United Kingdom and others) based on the conclusions of the Euroexpert international symposium 2007, on the one hand, the comparison with other professions and the calculated hourly rate, whether legal (judges, lawyers, prosecutors) or other professions. The results of these comparisons are intended to show that in the Czech Republic there is" substantial underfinancing of remuneration for expert reports "compared to selected countries, as" setting rates is considerably undervalued. "The appellants are therefore of the opinion that" if the Czech Republic is a democratic rule of law pursuant to Article 1 (1) of the Constitution of the Czech Republic, based on respect for the rights which it claims in its preamble to the principles and values of European democracies and which is determined to guard material and spiritual wealth, this should also be reflected in the remuneration of its intellectual elite, which cannot remain entirely undignified. "
4. As the appellants themselves state, they are aware of the fact that the derogatory intervention of the Constitutional Court is to be a marginal solution, an ultima ratio that can only be reached after the standard legislative procedure has not been corrected (cf., for example, in the draft resolution sp. zn. Pl. ÚS 9 / 13 of 12.11.2013, all decisions of the Constitutional Court are also available at http: / / nalus.ujud.cz), but according to the appellants, in the present case, all efforts and incentives to the relevant Ministry of Justice ("nothing really happens') would not be excessive activity. In this failure to act by the Ministry, where there has been no increase in the remuneration rates of experts provided for in the contested provision, which thus continue to be set" at an extremely disproportionate level ', the appellants see "a significant denial of the fundamental rights of experts'," namely the right of business guaranteed by Article 26 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') - see I.A., a violation of the prohibition of forced labour or services enshrined in Article 9 (1) of the Charter - see I. B., as well as a violation of the principle of equality of rights (Article 1 of the Charter) - see I.C.
Infringement of the right to do business (Article 26 (1) of the Charter)
5. The appellants draw attention to the fact that the expert activity is an undertaking within the meaning of Article 420 (1) of the Civil Code, whereby the contested provision, according to the appellants, has the character of price regulation [according to the conclusions contained in the finding of the Constitutional Court sp. zn. Pl. ÚS 24 / 99 of 23.5.2000 (N 73 / 18 SbNU 135; 167 / 2000 Sb.)], by determining the rates and, at the same time, the limits of remuneration for the services provided, "substantially affects the overall conditions for the provision of health (sic) services and thus interferes with the right of providers to do business under Article 26 (1) of the Charter. As a result of the regulation, experts are obliged to provide their services in specified cases for remuneration limited by the decree. The decree thus significantly complements the conditions and restrictions on the exercise of the right to business'. According to the appellants, the Constitutional Court also stated in the finding in sp. zn. Pl. ÚS 19 / 13 of 22.10.2013 (N 178 / 71 SbNU 105; 396 / 2013 Coll.), the purpose of the business is to achieve profit, although the right to profit does not result from the constitutional right to do business, but the State is obliged to create conditions that allow individuals to make real efforts to achieve it. In the view of the appellants," in relation to experts, this means setting equal and fair conditions for the payment of their services required by the public authorities'.
6. The appellants further in their proposal, with numerous references to the case law of the Constitutional Court [e.g. the findings of sp. zn. Pl. ÚS 38 / 04 of 20.6.2006 (N 125 / 41 SbNU 551; 409 / 2006 Coll.); sp. zn. Pl. ÚS 11 / 2000 of 12.7.2001 (N 113 / 23 SbNU 105; 322 / 2001 Sb.); sp. zn. ÚS 61 / 04 of 5.10.2006 (N 181 / 43 SbNU 57; 16 / 2007 Sb.); sp. Pl. Pl. ÚS 83 / 06 of 12.3.2008 (N 55 / 48 SbNU 629; 116 / 2008 Sb.) or sp. After its implementation, they are of the opinion that the current regulation of the rates of expert remuneration set out in the contested provision interferes with the meaning and substance of their right to do business, guaranteed by Article 26 (1) of the Charter, even though they are aware that such an assessment "is not sufficient 'to establish that experts have made it difficult to obtain profits. There would have to be a real situation where, on the one hand, the State formally allows business in a particular area, but on the other hand, it lays down conditions for them which effectively exclude its meaning." Such an extreme situation, according to the appellants, has occurred in the present case, or "as a result of further inaction by the Ministry, we are unstoppable'. That claim seeks to demonstrate the results of the above comparison of expert remuneration rates with hourly rates for other professions (both legal and non-legal) which show that setting the rates of their remuneration in the provision of expert activities to public authorities' is significantly undervalued and does not cover their own costs of drawing up an expert opinion. Even if the highest rate is charged and granted."
7. According to the appellants, that finding is clearly contrary to the conclusion of the Constitutional Court as set out in the decision of the sp. zn. The appellants therefore conclude that the existing rates of expert remuneration set out in the contested provision do not fulfil that second step of the so-called "reasonable test ', since in practice there are situations where" the remuneration awarded to experts for the opinions provided in the formal proceedings will not cover the necessary costs of drawing them up. In the case of experts whose sole or essential source of income is the income for the assessments made in those proceedings, this would mean donating or terminating business from other sources. In the case of others, the continuation would mean subsidizing the activity for the public authorities from the revenue obtained by the other expert activities. This is not the case (according to the case law of the Constitutional Court, it is acceptable) in which business decisions are the cause of the loss. The State does not address the method of compensation for the loss of the experts concerned.'
8. For this reason, the appellants, in accordance with the case law of the Constitutional Court, submit in their application the contested provision to the proportionality test, taking the view that the current form of adjustment of expert remuneration rates unduly limits their right to engage in business (Article 26 (1) of the Charter) because it is not at all capable of achieving the legitimate objective pursued. The appellants consider that, on the one hand, "the legal certainty of the parties to proceedings, to which, in many cases, the obligation to pay the remuneration for the expert's opinion is transferred after the end of the procedure," while "ensuring the right to a fair trial, when the costs of the expert's opinion might be too high a barrier to access to the court ', and, on the other hand," an investigation into public funds where the experts' remuneration is paid by the State through their organisational bodies'. On the first point, the appellants stress that "the removal of regulation as such is not proposed, the aim of the proposed deregulation is to activate the Ministry in order to validate the basic rate. Therefore, it is proposed to defer the enforceability of the finding to a period appropriate for the adoption of the corresponding amendment. The legal certainty of those who ultimately bear the costs of the expert assessment will not be affected. At the same time, there is nothing to prevent the Ministry from adjusting the amount of the expert fee so that the parties (potential payer) can be accepted." If the objective of the contested legislation should be to prevent waste of public funds, the appellants consider that there is another "safeguard mechanism ', which is the fact that the level of the expert fee is decided by the authority conducting the proceedings. The expert therefore submits a bill for work on the expert's report and it is up to the public authority to assess whether the claim to the expert's fees is legally claimed. Both in terms of the required hourly rate and the number of hours charged for processing. According to the appellants," it is not possible to save public funds in the way that the interests of the needs of the State or of the company are partly financed by experts from their income'.
Infringement of the prohibition on forced labour (Article 9 (1) of the Charter)
9. The appellants also stress that, under the current legislation of the Law on Experts and Interpreters (§ 12 (1)), an expert established in proceedings before a public authority is obliged (except in the cases foreseen in the provision of § 11) to submit an opinion, refusing to carry out an action without a serious reason, the public authority shall inform the regional court on whose list the expert is registered. In the light of the foregoing, the appellants consider that "except in the case of the existence of a reason for bias, the expert must submit an assessment whether the remuneration subsequently charged for the preparation of the assessment will be accepted or will be awarded only to such an extent that he will not cover the completed costs of processing, let alone ensure a reasonable profit '. Thus, there is a breach of Article 9 (1) of the Charter, according to which no one must be subjected to forced labour or services because" the proportionality between the level of remuneration and the level of processing requirements has not been maintained'.
Infringement of the principle of equality in rights (Article 1 of the Charter)
10. Last but not least, the appellants argue that the contested provision and the rates set by it for experts' remuneration are contrary to the principle of equality in rights within the meaning of Article 1 of the Charter, since, in respect of the remuneration of experts as parties to judicial and other proceedings before public authorities, "unacceptable inequalities' are, in comparison with the remuneration of other bodies involved in these proceedings (judges, lawyers, prosecutors, senior judicial officers, etc.), marked" unfounded differences' and are cases of "unacceptable inequality 'for which there are no justifiable reasons. For the reference group for the comparison of experts' remuneration with other bodies, the appellants mention (and, on the basis of statistical data on the level of remuneration, they elaborate further) lawyers, prosecutors and, in particular, judges. It is in the performance of the duties of judge that the appellants see certain parallels in the performance of the duties of expert, whose activities are also subject to the requirements of expertise, impartiality and indiscretion. Therefore, the appellants also refer to the case law of the Constitutional Court on the question of the so-called judicial salaries [e.g. the finding of sp. zn. Pl. ÚS 33 / 11 of 3.5.2012 (N 95 / 65 SbNU 259; 181 / 2012 Coll.)] in which the Constitutional Court made clear, according to the appellants, that the" material security issue, lastly put, is one of the guarantees of independent and impartial decision '. According to the applicants, the guarantees must also be applied to experts whose impartiality in the assessment of professional issues has a fundamental impact on specific decisions. In order to strengthen their impartiality and accountability in the submission of expert opinions, setting a reasonable level of remuneration, which will be in appropriate relations to the remuneration of other persons involved in the management'. In the light of the foregoing, the appellants conclude that the underestimation of a group of entities in a comparable position, if very intense, justifies the intervention of the Constitutional Court despite a higher degree of restraint in similar cases.
11. They therefore propose that the contested provision be annulled by the Constitutional Court for a conflict with the constitutional order and that it defer the enforceability of the finding to a period appropriate for the adoption of the amended wording of the contested provision, which would comply with the requirements of constitutionality.
Opinion of the Ombudsman and observations of the Ministry of Justice
12. The Constitutional Court pursuant to Article 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent the present application for annulment of the contested provision to the Ministry of Justice. At the same time, pursuant to the provisions of Section 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as "the Law on the Constitutional Court ', it was sent to the Ombudsman with a request for information as to whether he was intervening. However, the Ombudsman responded to that call by a letter dated 10 July 2014, in which she informed the Constitutional Court that" does not exercise her right to intervene'. At the same time, however, it drew attention to the long-standing reservations about the existing rules on professional activity which do not meet and meet current needs. In the light of the experience of its predecessors, it states that it can imagine the practical impact of the level of remuneration on the timeliness of drawing up expert opinions affecting the overall length of the proceedings.
13. The Ministry of Justice, in its observations on the proposal received by the Constitutional Court on 1. 8. 2014 and supplemented by the submission of 21. 11. 2014, stresses in particular (and rejects the opinion of the appellants that "nothing is happening") that, in the Plan of Legislative Works of the Government for 2014 (according to the Ministry, the planned deadline had to be moved to 2015), the adoption of an entirely new law on experts, interpreters and translators is also envisaged, on whose proposal it is already "in cooperation with a group of experts associated with the Commission of the Ministry of Justice for Employers." After all, the promoters will participate directly in the legislative process in the Senate. This new legislation will also affect the issue of experts' remuneration, the specific form of which will be regulated in the newly adopted implementing provisions. For this reason, the Ministry of Justice does not consider it "useful that further legislative changes should take place in the meantime on the basis of the ruling of the Constitutional Court. On the contrary, it is appropriate that the Constitutional Court, in accordance with its case-law and the principle of procedural economics, should leave the legislature the possibility to deal with the objections raised by the appellants in this proceedings" (see the order cited by the Constitutional Court, sp. pl. ÚS 9 / 13).
14. The Ministry of Justice disputes the specific objections of the appellants, stressing the need to distinguish the discussion "on the suitability of the amount of the expert's remuneration" and "on the unconstitutional nature of the law which sets a certain amount of remuneration." In relation to the appellant of the unconstitutionality of the contested provision as a result of the intervention into the "substance and meaning of the right to do business," guaranteed by Article 26 (1) of the Charter, the Ministry considers that such intervention does not take place in the present case, since "the remuneration provided, together with the claim for reimbursement of expenditure incurred, certainly exceeds the threshold of mere coverage of costs and brings an expert (albeit in some cases small) profit '. In addition, it points out that" certain regulatory restrictions (in this case the establishment of a fixed remuneration by the State) are compensated by the privileged position of experts and the exclusivity of their reserved activities (the submission of expert opinions for private persons)', which, according to the Ministry, corresponds, inter alia, to the conclusions of the European Court of Human Rights ("ECHR ') judgment in the Van der Mussel case against Belgium of 23.11.1983 (complaint No 8919 / 80). The ESLP here addressed the issue of the necessary defence without entitlement to the remuneration and reimbursement of the expenses of lawyers, stating that" non-payment of the salary and expenses is a phenomenon to be assessed from the point of view of normality and proportionality', which it defined as "the complainant did not impose a disproportionate burden on the applicant, i.e. during the period in question the contested situation for Mr Van der Mussel certainly constituted a certain disadvantage resulting from the non-payment of the remuneration and expenses, but accompanied by benefits', among which the ECHR included" professional monopoly on the defence, the possibility of professional improvement, safeguarding the right of defence 'under Article 6 (3) (c) of the Convention on the protection of human rights and fundamental freedoms. In the light of the foregoing, the Ministry notes, therefore, that the contested provision is in accordance with the constitutional rules and does not infringe the right of experts to carry out the guaranteed Article 26 (1) of the Charter, even less the prohibition of forced labour within the meaning of Article 9 of the Charter, as the appellants also contend. In relation to the objection that the contested provision and the level of the experts' remuneration set by it is contrary to the principle of equality (Article 1 of the Charter), the Ministry states that "it is not appropriate to compare experts' remuneration with other professions in the context of the established remuneration. The creation of an authority to perform the duties of an expert, the requirements of his or her person and the expertise are not comparable to those of other professions. Its role and position in the proceedings before public authorities are different from that of other professions and its activities cannot be assimilated to other activities'.
15. The Constitutional Court sent the statement of the Ministry of Justice to the appellants on 30 March 2015 for a possible reply, stating that they had been given a period of 20 days. However, the appellants did not respond to that invitation by the Constitutional Court within the prescribed time limit.
Oral proceedings
16. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Legal conditions for the adoption of the contested provision
17. In the procedure for the control of standards pursuant to Article 87 (1) (b) of the Constitution of the Czech Republic, the Constitutional Court, within the meaning of the provisions of § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., must first examine whether the "other legislation 'has been adopted and issued in a constitutional manner.
18. In relation to Decree No 37 / 1967 Coll., of which the contested provision is included, the Constitutional Court did not establish whether it had been adopted and issued within the limits of the Constitution's established competence and the constitutionally prescribed manner, since for legislation issued before the Constitution of the Czech Republic came into force, the Constitutional Court was entitled to examine only their content compliance with the current constitutional order or laws, but not the constitutionality of the procedure of their formation and observance of the standard powers [see Resolution sp. zl. ÚS 5 / 98 of 22.4.1999 (U 32 / 14 SbNU 309)].
19. However, there have been two amendments to the contested provision in the period from 1.1.1993, the date of entry into force of the Constitution of the Czech Republic. The first amendment took place with effect from 10.3.1993, on the basis of the Decree of the Ministry of Justice No. 77 / 1993 Coll., amending and supplementing Decree of the Ministry of Justice No. 37 / 1967 Coll., to implement the Act on Experts and Interpreters, as amended. Thereafter, the contested provision was fully amended with effect from 1 January 2003, on the basis of Decree No. 432 / 2002 Coll., amending Decree No. 37 / 1967 Coll., to implement the Law on Experts and Interpreters, as amended, and Decree No. 312 / 1995 Coll., which provides for a flat-rate amount of the costs of criminal proceedings. The Constitutional Court therefore limited the review within the meaning of Article 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., i.e. whether the contested provision was adopted and issued in a constitutionally prescribed manner, only in relation to the latter Decree No 432 / 2002 Coll., as a result of which, with effect from 1 January 2003, the content of the contested provision became valid and effective until now, i.e. at the time the Constitutional Court decided on the present proposal.
20. As has already been recap, Decree No. 432 / 2002 Coll. was issued by the Ministry of Justice. Article 79 (3) of the Constitution of the Czech Republic is formally established. However, it is materially conditional on the existence of an explicit legal authorisation and its limitations, and according to the case law of the Constitutional Court, the provision must be interpreted strictly in the sense that that authorisation must be specific, unambiguous and clear [cf. the finding of 21.6.2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 SbNU 287; 231 / 2000 Coll.)]. If that is the case, the Constitutional Court examines whether the statutory law was passed by a state body authorised to do so and within the limits of its competence, that is, whether it was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem) in the exercise of that competence. "Simply put, the point is, if it is to be under Law X, this rule does not make it Y, but it should be X1, X2, X3. The legislator's will to regulate above the legal standard must be evident from the authorisation provision. In that case, however, the substatutory legislation may not interfere with matters reserved for regulation only by law (so-called" reservation of the law ').
21. In the present case, Article 26 of the Law on experts and interpreters, which provides, inter alia, that "in order to implement that law, the Ministry of Justice (...) shall determine the remuneration and compensation of costs, the method of monitoring remuneration (...) '. The Constitutional Court considers them sufficiently specific, unambiguous and clear. If, by issuing Decree No. 432 / 2002 Coll., signed by the competent Minister of Justice and duly published in the Collection of Laws, the Ministry of Justice has therefore, with effect from 1 January 2003, decided to amend the original legislation contained in the contested provision setting out the rates of remuneration for expert opinions, the Constitutional Court considers that it has done so within the limits of the Constitution of the Czech Republic in the prescribed jurisdiction and in a constitutional manner.
Derogation of the contested provision
22. The contested provision of § 16 of Decree No. 37 / 1967 Coll., as amended by Decree No. 432 / 2002 Coll., reads:
Rates of remuneration for expert opinions
The remuneration for the expert's assessment is 100 to 350 CZK for one hour of work, depending on the degree of expertise that was necessary for its submission.
The Constitutional Court's own review
23. The appellants, with their proposal, call for the annulment of the contested provision for its contradiction with the constitutional order and specifically contend that the regulation by the appellants of the level of remuneration for expert assessments infringes, in particular, the right of experts to conduct the guaranteed Article 26 (1) of the Charter and is also contrary to the prohibition of forced labour (Article 9 (1) of the Charter) or the principle of equality in the rights foreseen in Article 1 of the Charter.
Dispute infringement (Article 26 (1) of the Charter) and prohibition of forced labour (Article 9 (1) of the Charter)
24. The appellants point out in their proposal that the expert activity is an entrepreneurial activity within the meaning of the provisions of Section 420 (1) of the Civil Code [but not a business activity within the meaning of Section 3 (2) (d) of Act No. 455 / 1991 Coll., on business activities (Trade Act), as amended, which can be carried out by experts on the list of experts and interpreters kept by the Ministry of Justice. However, this applies only to one segment of expert activity where experts provide their activities in purely private areas (e.g. valuation of real estate in order to determine their value on sale or to negotiate a mortgage credit, etc.), the manner in which they are remunerated is governed solely by the contractual terms between the entities of the relationship, i.e. between the expert and the person who ordered the expert's assessment. In addition, however, emphasis should also be placed on the second segment of the expert activity, i.e. the processing of expert opinions requested by public authorities in order to carry out them as evidence in judicial or other proceedings before a public authority. On the other hand, this segment of the expert activity cannot be regarded as a purely business activity in the above sense, which is exclusively governed by private law law and is carried out for profit, since the expert - unlike the entrepreneur - does not carry the risk of business and does not pass on the costs incurred (which he receives separately). It is therefore an activity of "public interest 'for the purposes of proceedings before public authorities. This is also the case with the manner and nature of its legal regulation (including remuneration) contained, in particular, in the Law on Experts and Interpreters and implementing legislation. In the past, even the legislation on expert (and interpretation) activities, contained, for example, in Act No. 167 / 1949 Coll., on permanent sworn experts and interpreters, the performance of the expert activity was marked by the term" expert office', which clearly refers to the close connection of the expert activity with the exercise of public authority and its consistent distinction from business activity.
25. However, in their proposal for a division, the appellants are mixed up in their argument, on the one hand, by focusing on precisely the segment of the expert activity for which they are remunerated by the public authorities, in the manner foreseen in the Law on Experts and Interpreters and the Decree in question and in its contested provision, on the other hand, they object to the "total denial of the right of experts to business' within the meaning of Article 26 (1) of the Charter, or to the significant" making it more difficult for the experts to make a profit on their business activity ', precisely as a result of the contested legislation, which, however, regulates exclusively their remuneration in the exercise of the professional activity by the public authorities, i.e. only one of the above segments of their activity, not the expert activity as a whole. Therefore, the Constitutional Court cannot in any way attest to such a claim, since the appellants in it completely overlook the second, above-mentioned segment of the expert activity as a business activity (as defined in Section 420 (1) of the Civil Code), even though they point out, paradoxically, that the contested legislation is not regulated. Moreover, it cannot be ignored from the well-known fact that in practice it is quite unique (except for selected expert institutes) that the expert would carry out his expert activities as his main and only business activity. Rather, it is a common phenomenon that the activity is only ancillary (complementary), where the person is included in the list of experts mainly for his practical experience, knowledge and results achieved so far in the course of his main activity in the field, industry and specialisation (e.g. medical experts).
26. As mentioned above, the appellants dispute, in particular (with the exception referred to above), the rules on the remuneration of experts in the exercise of their professional activity in the "public interest ', i.e. for the purposes of the proceedings before the public authorities, contained in the Law on experts and interpreters and in the decree in question and in the contested provision.
27. The Law on experts and interpreters in the provisions of § 17 confers on experts the right to "pay" for the submission of an expert opinion, which shall be laid down "according to the amount of work effectively spent," and "may be reduced accordingly if the action has not been carried out properly or within the prescribed period." The specific way of determining the amount of such remuneration is then left to the implementing regulation, i.e. the Decree in question and therefore the contested provision, only in cases where the expert opinion is given by a "public authority '(in other cases" governed by a contract between the expert and the person who ordered the expert opinion'). It follows from the content of the contested provision that the remuneration itself is at different rates (ranging from 100 to 350 CZK per hour of work) and the key criterion of its determination is the "complexity and degree of expertise 'needed to produce the expert opinion. In addition, the decree in question also contains other special rules for the moderation of the amount of this remuneration in specific cases, whereby, as is apparent from the expression of the Ministry of Justice, the combination of which can therefore, hypothetically, range between 80 CZK per hour (according to § 16 in conjunction with § 21) and 630 CZK (according to § 16 in conjunction with § 20 (4)). The determination of the remuneration rate at its discretion (within the limits of this adjustment) and taking into account the particular circumstances, the competent authority of the public authority against whose decision and therefore the specific amount of remuneration may be prevented by the expert by the submission of the relevant procedural means, including a constitutional complaint (as an ultima ratio) to the Constitutional Court [cf., for example, the finding of 10.1.2013 sp. zn. II. ÚS 3367 / 12 as amended by the amending Resolution sp. zn. II. ÚS 3367 / 12 of 31.1.2013 (N 11 / 68 SbNU 169)]. In addition, it should be pointed out that according to the Law on Experts and Interpreters, in the case of the processing of the expert's report, the expert is also entitled, in addition to the remuneration, to reimbursement of costs which he has effectively incurred in the context of the expert's assessment (in particular, the completed expenses within the meaning of the provisions of Paragraph 18 (1) of the Act, travel expenses, compensation for lost earnings on summons to the public authority, costs which the expert has paid under the provisions of Section 14 (2) of the Act, costs in kind and costs associated with the recruitment of auxiliary workers pursuant to the provisions of Section 18 of the Act). Thus, the remuneration awarded to the public authority does not constitute a single amount to be paid by the expert in connection with the drawing up of the expert opinion.
28. In this regard, the appellants' assertion that the remuneration awarded "is not covered or the costs of drawing up the expert opinion, even if the highest-level rate is charged and awarded," appears to be (at least) very inaccurate and to some extent not entirely reflecting reality. On the contrary, the Constitutional Court agrees with the view of the Ministry of Justice that the "fixed remuneration, together with the claim for reimbursement of expenditure incurred, certainly goes beyond mere cost coverage and brings an expert (...) profit ', which, although it is (in the sense of the conclusions of the cited finding of the sp. zn. Pl. ÚS 19 / 13)," the purpose of doing business', is far from being "right to profit ', the State is" only' obliged to create conditions that allow individuals to make real efforts to achieve it. It is, however, not for the Constitutional Court to assess whether the profit is sufficient or "undervalued 'and, therefore, cannot be reconciled with the appellants if, in the very fact that that profit of experts is allegedly" undervalued', they see an infringement of the right of experts to engage in the business guaranteed by Article 26 (1) of the Charter and, consequently, seek the annulment of the contested provision, which, by setting the rate of remuneration for the expert activity, determines to a large extent the amount of that profit.
29. For those reasons, it is irrelevant to describe the part of the appellants' argument on the basis of which (with the support of a number of statistics taking into account a number of economic considerations and also in the conclusions from the comparative analysis of experts' remuneration as expert opinions in the legislation of the selected States) it seeks to demonstrate its claim regarding the "underestimation 'of expert remuneration rates in the contested provision. The Constitutional Court, in the procedure for checking the standards of the review of the constitutionality (compliance with the constitutional order) of the contested rules on the grounds of an alleged infringement (restriction) of a fundamental right of a social or economic nature, under Article 41 (1) of the Charter, as is the case with the present proposal, makes amendments to the present regulation on the sole basis of the constitutional criteria and considerations quite different from those set out by the appellants in their proposal, which appear to be more relevant for the preparation (or consideration of the proposal already put forward) of the amendment of the present regulation and which could serve rather as a supporting argument for any increase in the rate of remuneration for expert opinions.
30. In this context, the Constitutional Court points out that the Ministry of Justice itself, as is apparent from the above-mentioned observations, is currently "working intensively in cooperation with a group of experts associated with the Commission of the Ministry of Justice for the Arts" on the proposal for a new regulation concerning the activities of experts, interpreters and translators (i.e. their remuneration), the preparation of which was also included in the Government Legislative Work Plan for 2014, approved by the Government Resolution of 12 March 2014, although subsequently moved to 2015, and the final form of which (including the modification of the method and level of the remuneration of experts) of which the appellants will therefore be able to participate actively, if it is actually submitted for approval by Parliament of the Czech Republic in the foreseeable time.
31. The role of the Constitutional Court in the procedure for the control of standards is merely to assess whether the contested legislation, in the present case, provides for the method of determining and the level of remuneration rates for expert opinions awarded by public authorities, is consistent with the constitutional order, on the basis of the following aspects and criteria which reflect the specific nature of the fundamental law or the constitutional principle with which the contested legislation is to be contrary.
32. Where the appellants object to the right to engage in business pursuant to Article 26 (1) of the Charter, it must first be noted that an individual within the meaning of Article 41 (1) of the Charter may only seek the right to exercise the right to do so within the limits of the laws implementing it. As the Constitutional Court has tried many times in the past, as a result, the legislator has relatively wide availability for a specific definition of the content and manner of implementation of this article, but it is not absolute either. In its view, the legislature is primarily bound by Article 4 (4) of the Charter, which prevents the restriction of the fundamental right to engage in business to affect its very nature and meaning [cf. the finding of sp. zn. Pl. Pl. ÚS 24 / 99 of 23.5.2000 (N 73 / 18 SbNU 135; 167 / 2000 Coll.); the finding of sp. zn. Pl. ÚS 11 / 2000 of 12.7.2001 (N 113 / 23 SbNU 105; 322 / 2001 Coll.), part VIII of point H; or the quoted finding of sp. Zn. Pl. ÚS 19 / 13]. However, it is also obliged to respect the principle of equality in rights within the meaning of Article 1 of the Charter and Article 3 (1) of the Charter [finding sp. zn.
33. When assessing the compliance of the contested legislation with the right to business, which is the nature of economic law, the Constitutional Court is acting in a similar manner to those of social rights which have been examined in the previous case-law by the so-called test of reason [cf. If the Constitutional Court concludes here that the contested legislation concerns the very existence of one of those rights or the actual realisation of its essential content, it shall assess the admissibility of the intervention in that law in the context of the proportionality test, failing which any of its conditions are met, the Constitutional Court finds that there is a lack of consistency with the constitutional order.
34. The appellants take the view that the contested provisions and the regulation by which they lay down the level of remuneration rates for expert assessments not only do they not fulfil the latter step of the so-called "proportionality test 'but also do not stand up to the proportionality test, as they are not at all capable of achieving the legitimate objective pursued. However, the Constitutional Court does not agree with this view. As the Ministry of Justice also pointed out in its observations, on the question of the constitutionality of the contested provision in view of the possible infringement of the fundamental rights guaranteed by Article 26 (1) and Article 28 of the Charter, the Constitutional Court already stated, in its decision sp. zn. II. ÚS 3367 / 12 of 10.1.2013 (N 11 / 68 SbNU 169), however, only marginally in the context of the lodged constitutional complaint, when the complainant" left the Constitutional Court to consider the possibility of annulment of § 16 of the Decree, "and therefore the Constitutional Court did not, in the present case, in connection with § 74 of Law 182 / 1993 Coll., of the Constitutional Court, as amended by Law No 48 / 2002 Coll. The Constitutional Court stated, inter alia, that" it could not reasonably conclude on the unconstitutionality of Section 16 of Decree No 37 / 1967 Coll., as the complainant encouraged him to do, since the constitutional conformity of that provision could not be assessed only in the terms of the period during which the amount of remuneration remains unadjusted (not increased), as the complainant believes. It cannot be omitted that the rights referred to in Articles 26 (3) and 28 The Charter can only be invoked within the limits of the laws (and, on the basis of them, the statutory legislative acts) implementing this provision (Article 41 (1) of the Charter). This means, as a result, that their infringement could only occur on the part of the lawyer as a result of such legislation which would completely negate them, or would significantly deny their meaning, for example by setting rewards at an extremely disproportionate level. However, this is not the case with Article 16 of Decree No 37 / 1967 Coll.'.
35. As noted above, the appellants in their proposal have put forward an argument whose constitutional dimension has been sought to achieve, in particular, a comprehensive citation from the case-law of the Constitutional Court, which is relevant in the light of the general conclusions on the way in which the intervention is examined in the (limitation) of fundamental rights of a social or economic nature listed in Article 41 (1) of the Charter, but the partial conclusions of the cited findings of the legislation under review are far from transferable to the present case. Therefore, despite this argument, the Constitutional Court does not intend to derogate from its previously stated conclusion because, in view of the above, the legislation contained in the contested provision does not consider it to be such as to completely negate, or at least significantly deny the meaning of the right to do business guaranteed in Article 26 (1) of the Charter, or even infringe the prohibition on forced labour enshrined in Article 9 (1) of the Charter. The less the contested provision and the regulation of the level of remuneration for expert opinions may be contrary to Article 1 (1) of the Constitution of the Czech Republic, since the guarantee of the principle of a democratic rule of law (both formal and material), based on respect for the rights and freedoms of man and citizen, cannot in any case be the way (or even a specific amount) of a "dignified remuneration of his intellectual elite," which cannot be considered as an aspect on which the constitutional foundations of the functioning of a democratic rule of law are built, as the appellants believe.
36. Moreover, as the Constitutional Court has already pointed out above, the very nature of the expert activity carried out for public authorities constitutes an essential activity in the public interest and it is therefore wrong to interpret it only as any other business activity the primary purpose of which is to achieve profit. In other words, in the context of Article 26 (3) of the first Charter (the right to acquire funds for the purposes of their living needs), the unconstitutionality of unduly low remuneration for the expert's assessment could be considered far more possibly in the context of Article 26 (3) (a) of the first Charter (the right to acquire funds for their work) and not in relation to the right to do business under paragraph 1 of that Article. However, such an unconstitutionality would only be established if the activity did not generate any profit at all, or if a minimum profit was also made, but at the same time the obligation to process expert opinions by persons with a particular specialisation would be laid down, but this does not apply in any of these examples. As is apparent from the above, there is a certain profit (above and above the costs incurred) which is also guaranteed by existing legislation and no one must be forced to be classified as experts. On the contrary, the appointment of an expert must also be seen as a kind of certificate of expertise and appreciation of the person's ability, a circumstance which, of course, can also be positively reflected in his or her other professional activities.
37. In addition to this, the Constitutional Court states that it is aware of the delays in the legal proceedings on the part of experts who may be deficient or not of sufficient quality or speed in certain specializations (e.g. the Ombudsman's position of 3 September 2015, available at http: / / www.protection.cz / up-to-date / press-right-of-law / complaint-of-court-of-fact), while these delays may even cause interference with the constitutional right to judicial decisions issued within a reasonable period. The State, including financial liability, is responsible for delays in court proceedings for waiting for a judicial expert's opinion and should therefore be the primary interest of the executive, in particular of the relevant ministries, in order to properly address any problems in this area. However, this fundamental issue of delays in court proceedings, which could possibly have a constitutional dimension, is completely ignored by the appellants and the proposal is directed exclusively at the financial interests of the individual judicial experts, not at correcting a system that may harm the rights of the parties to legal proceedings.
Dispute infringement of the principle of equality in rights (Article 1 of the Charter)
38. The Constitutional Court also considers it impossible to argue with the appellants, in which they object to the contested provision with the principle of equality in rights within the meaning of Article 1 of the Charter, by comparing the methods and level of remuneration of experts as expert opinions with certain other bodies involved in judicial or other proceedings before public authorities, namely judges, lawyers and prosecutors. In its case-law, the Constitutional Court, when assessing the constitutionality of the contested legislation in view of a possible breach of the principle of equality and also of non-discrimination (Article 3 (1) of the Charter), stressed that "in the equality category, only a relationship between at least two entities in the same or comparable position can be considered (cf. While it is generally not difficult to determine whether the legislation treats two situations differently or equally, the key step for applying the general principle of equality is to determine whether the two situations with which the law treats them differently are indeed comparable, i.e. whether they are relevant. This requires an analysis based on the criterion of relevance" [cf., for example, the finding of sp. zn. Pl. ÚS 42 / 03 of 28.3.2006 (N 72 / 40 of SbNU 703; 280 / 2006 Coll.) or the finding of sp. zn. Whereas, in complex cases of application of the right to define or identify a group of persons that can be compared in terms of maintaining the principle of equality, the most difficult tasks in applying that principle are, since the assessment of comparability and thus the finding of the criterion of relevance necessarily involves a value judgment which presupposes an understanding of the meaning and purpose of the legislation under review, in simple cases where comparability (or, on the contrary, non-comparability) is manifestly evident, the Constitutional Court does not deal more closely with these issues.
39. In the opinion of the Constitutional Court, the appellants are also fully affected by the comparison in the way in which experts and other bodies involved in judicial or other proceedings before public authorities are remunerated, since the judges, lawyers or prosecutors referred to by them have (not only) clearly different positions and functions in these proceedings, which also generally correspond to the nature and content of the legal or even constitutional arrangements governing their position and activities, including the way in which they are remunerated. In fact, from a purely procedural point of view, experts (like writers or interpreters) are not interested (or parties) or interveners or their representatives, but "only 'persons involved in the proceedings. These are clearly incomparable entities, and even the appellants mentioned" parallels' between the activities of a judge and an expert whose activities are also "requirements of expertise, impartiality and unbiased 'cannot reverse that conclusion. All the more so because these requirements for the activities of judges and experts are of a completely different nature and content, which is already reflected, for example, in the assumptions set out in the laws for the creation of these functions and also in the fact that the judges - unlike experts - are not allowed to pursue any other gainful activity with certain narrowly defined exceptions [Paragraph 85 of Act No. 6 / 2002 Coll., on the courts, judges, sitting and state administration of the courts and on the amendment of certain other laws (Law on Courts and Courts), as amended by Act No. 192 / 2003 Coll.]. On the contrary, the appellants completely disregard other bodies involved in these proceedings before the public authorities, namely the persons of witnesses, and the manner in which their costs (so-called" testimonial'), whose status in the proceedings are, with a certain amount of simplification, much more comparable to that of experts than those of judges, lawyers or prosecutors.
40. For these reasons, the Constitutional Court does not consider it appropriate to continue to address the appellants' arguments in more detail if they see the unconstitutionality of the contested provision in breach of the principle of equality in rights within the meaning of Article 1 of the Charter, since such a conclusion cannot be relied upon from a comparison of the remuneration of experts and judges, lawyers or prosecutors.
Conclusion
41. In the light of the foregoing, the Constitutional Court concluded that there were no grounds for the annulment of the contested provision and therefore rejected the proposal under Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 297 / 2015 Coll., on the application for annulment of § 16 of Decree No. 37 / 1967 Coll., to implement the Law on Experts and Interpreters, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 10.11.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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