Communication from the Constitutional Court No 394 / 2016 Coll.
Communication from the Constitutional Court on the adoption of the Opinion of the plenary of the Constitutional Court of 15 November 2016, sp. zn. Pl. ÚS-st. 43 / 16 on the inadmissibility of a constitutional complaint against a resolution which does not allow the amendment of the proposal pursuant to Article 95 (2) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 519 / 1991 Coll.
Valid
Communication from the Constitutional Court
Text versions:
07.12.2016
394
COMMUNICATION
The Constitutional Court
The Plenum of the Constitutional Court was adopted on 15 November 2016 under sp. zn. Pl.
the following opinion:
Unless Law No 99 / 1963 Coll., Civil Code, as amended, excludes an amendment to the proposal or, where appropriate, the challenge of not accepting such an amendment by way of appeal, a constitutional complaint against a resolution which does not allow an amendment to the application under Paragraph 95 (2) of the Civil Code shall be inadmissible pursuant to Article 75 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended.
Reasons
The facts of the case
1. The Constitutional Complaints received by the Constitutional Court on 16 June 2016 with the complainant, the City of Prague, seeks the annulment of the order of the District Court for Prague 4 of 5 May 2016 sp. zn. 15 C 53 / 2013, which did not allow a change of action within the meaning of Article 95 (2) of Act No. 99 / 1963 Coll., Civil Code, as amended by Act No. 519 / 1991 Coll., (hereinafter referred to as "o.s."). The constitutional complaint therefore goes against a decision which is not a final decision on the substance of the case.
Procedure II of the Chamber
2. When examining the above mentioned constitutional complaint, the Second Chamber of the Constitutional Court found that the earlier caselaw of the local court concerning the admissibility of a constitutional complaint lodged against a resolution issued pursuant to the provisions of Paragraph 95 (2) CS.
3. In fact, one of the legal preconditions for the substantive examination of a constitutional complaint is that the complainant should, prior to its submission, use up all the procedural means provided by the Law to protect his right [Paragraph 72 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as the Law on the Constitutional Court]. If the complainant does not use these funds before lodging a constitutional complaint, his proposal is inadmissible (Paragraph 75 (1) of the Constitutional Court Act).
4. In this case, however, the findings by which such a constitutional complaint was found admissible are on the one hand. In addition to the finding of 4.12.2002 sp. zn. IV. ÚS 157 / 02 (N 149 / 28 SbNU 347) referred to in the title, it is for example the finding of 9.10.2008 sp. zn. II. ÚS 801 / 08 (N 169 / 51 SbNU 79), the finding of 26.4.2012 sp. zn. I. ÚS 383 / 12 (N 93 / 65 SbNU 247), the finding of 7.5.2013 sp. zn. I. ÚS 4181 / 12 (N 79 / 69 SbNU 329), the finding of 21.8.2014 sp.
5. These findings were, in fact, examined only in the light of the right to a proper justification for a judgment (as part of the right to a fair trial). The legal opinion that a constitutional complaint against a decision not to accept a change of action is admissible, but that the findings cited result only implicitly, since the Constitutional Court did not specifically address the question of admissibility in any of them.
6. The second group, within the framework of the relevant case-law of the Constitutional Court, consists of resolutions rejecting such constitutional complaints as inadmissible. This is an example of the resolution of 28.6.2016 sp. zn. II. ÚS 2151 / 15, Resolution of 30.6.2016 sp. zn. II. ÚS 2674 / 14, Resolution of 19.1.2016 sp. zn. IV. ÚS 3216 / 15, Resolution of 14.12.2015 sp. zn. I. ÚS 3438 / 15, Resolution of 6.3.2012 sp. zn. II. ÚS 382 / 12, Resolution of 8.9.2011 sp. zn. III. ÚS 1976 / 11, Resolution of 5.8.2011 sp. ÚS 1990 / 11 or Resolution of 27.10.2010 sp. zn. II. ÚS 2865 / 10.
7. Since the decisive Second Chamber held that a constitutional complaint against a resolution within the meaning of Article 95 (2) of the Rules of Procedure was not admissible, it submitted a case pursuant to the provisions of Section 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, the plenary of the Constitutional Court with a proposal for an opinion to be adopted which would overcome the legal opinion expressed in the above mentioned decision, sp. zn. IV. ÚS 157 / 02, or other above mentioned findings.
Own justification of the opinion
8. Setting the admissibility of a constitutional complaint is in general rooted in Article 4 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), according to which fundamental rights and freedoms are protected by judicial authority. The Constitutional Court, as a self-governing component of judicial power, is thus only one of the public authorities that is constitutionally called upon to protect fundamental rights and freedoms, and the protection of fundamental rights and freedoms is therefore a function shared with the general courts. The relationship between the Constitutional Court and the General Court in the performance of this function is then defined not only by the constitutional provisions of its specific powers [see Article 87 (1) (d) of the Constitution] but also by the legal conditions governing the admissibility of the constitutional complaint.
9. The legal arrangements then fully in the logic of Article 4 The Constitution is based on the principle of the so-called subsidiarity of the constitutional complaint, which is specifically reflected in the provisions of Sections 72 (3) and 75 (1) of the Constitutional Court Act. According to these provisions, the complainant is obliged to use up all the procedural means provided by the law to protect his right before filing a constitutional complaint. If he does not, his constitutional complaint is inadmissible. This adjustment of the admissibility of a constitutional complaint indicates that the role of the Constitutional Court in the proceedings on constitutional complaints is to be a kind of last guarantee of fundamental rights and freedoms within the constitutional system and not of the institution entering into ongoing proceedings at a time when (effective) protection of fundamental rights and freedoms can be obtained by other procedural means in proceedings before general courts.
10. This basis also reflects the established case-law of the Constitutional Court, according to which the constitutional complaint should be challenged by final and final decisions of the Court of First Instance, not by partial procedural decisions, even if they are in themselves final (that is to say, even though all available remedies have been exhausted if the rule of law foresees such remedies); of hundreds of decisions, e.g. resolution of 29.9.2005 sp. zn. III.
11. However, from this general rule, the Constitutional Court also makes exceptions, which consist of the possibility of challenging a partial (typically procedural) decision in a situation in which the proceedings on the substance have not yet ended. However, in the light of the above, such a procedure is only considered in the present two conditions (e.g. Resolution of 3.3.2016 sp. zn. IV. ÚS 3520 / 15, Resolution of 25.7.2012 sp. zn. I. ÚS 1894 / 12, Resolution of 6.3.2012 sp. zn. II. ÚS 382 / 12 or Resolution of 5.4.2016 sp. zn. I. ÚS 843 / 16).
12. On the one hand, such a decision must be capable of intervening immediately and clearly in the constitutionally guaranteed fundamental rights or freedoms of the complainant. However, this condition reflects the substance of the proceedings on a constitutional complaint, which is to protect fundamental rights and freedoms against decisions, interventions and measures by public authorities.
13. The second condition for the admissibility of a constitutional complaint against such a partial procedural decision is that an objection to a breach of the constitutional fundamental rights or freedoms guaranteed may not be effectively exercised in the context of further proceedings (e.g. in the application of appeals against a substantive decision, including a constitutional complaint). The purpose of this condition lies precisely in the consistent implementation of the principle of subsidiarity of the constitutional complaint or the role of the Constitutional Court as the last "emergency brakes' within the judicial system.
14. In applying these criteria to decisions made pursuant to the provisions of § 95 (2) CS, the Constitutional Court concluded that the first condition of admissibility in this case was fulfilled. In fact, the resolution not to allow a change to the action is (generally) capable of intervening in fundamental rights and freedoms, at least in the right to a fair trial. The findings cited above, for example, saw interference in this right in the lack of justification for the decision. Moreover, under specific conditions, it may also be considered that a decision not to allow a change of action may be affected by the right of access to the court.
15. The second condition is not fulfilled. Although the Constitutional Court does not consider strict sense to be an effective remedy within the meaning of this condition for the possibility of initiating a new action in so far as the amendment of the original action has not been accepted, objections to the decision not to allow the change of action may be raised in the context of an appeal against the substance of the case, unless the original action has been upheld.
16. In fact, an appeal is not admissible [§ 202 (1) (d)]. However, the Constitutional Court states above all that it is necessary to insist that it takes place without delay when deciding pursuant to the provisions of Paragraph 95 (2) CS. Only such a procedure corresponds to the "established procedures of the Court 'within the meaning of Article 36 (1) of the Charter of Fundamental Rights and Freedoms.
17. In view of the fact that this decision is capable of intervening in the rights of an individual, the Constitutional Court considers that only such an interpretation of the Civil Code is constitutionally consistent, according to which the Court of Appeal, in the context of the appeal proceedings against the judgment in the matter itself, is not bound by a resolution pursuant to § 95 (2) (a) (though not formally repealed) and is entitled, in the event of the application of the relevant objection [§ 205 (2) (c), (g) (s) (d)], to review the decision not to allow the change of the action in its entirety. Moreover, a party to the proceedings has the possibility to proceed in the terms of the provisions of § 95 o. s. According to the settled case-law of the Supreme Court (see, for example, Case C-2502 / 2000 [2001] ECR 21), "the action may be amended by the applicant under the conditions laid down in Paragraph 95 (c) of the Court of First Instance under appeal (cf. § 211 (s)), unless he exercises a new claim, i.e. a claim which does not have any factual connection with the claim previously (originally) applied (see judgment of the Supreme Court of 8 January 1998 (cf. 2 Cdon 753 / 97, published under No 56 in the ECR 1998). The court of appeal must always decide to amend the application; until it has done so, it cannot act and rule on the amended action. '
18. It follows from this that a party to the proceedings may, on the one hand, defend itself against the failure to accept an amendment to the application pursuant to the provisions of Paragraph 95 (2) of the EC Treaty, under the circumstances of a particular case, on the other hand, by filing a new application (application), on the other hand, on the other hand, on the other hand, it may challenge the non-acceptance of an appeal in the substance of the case and, finally, not even the third submission of an amendment to the appeal directly to the Court of Appeal.
19. At the same time, the protection of rights granted to individuals in this way in the context of the appeal procedure has the potential to be significantly more effective than the protection that the Constitutional Court itself could provide in the proceedings on a constitutional complaint. While the Court of Appeal can fully examine the correctness of the procedure of the Court of First Instance, the Constitutional Court can only consider whether a fundamental right or freedom has been infringed by the contested decision. In this context, it is also possible, for example, to refer to the findings of the Constitutional Court cited above, which were not addressed at the root of the problem, but only to the question whether the contested order was properly justified. It is already clear from this that the substantive discussion of the constitutional complaint against the decision not to allow a change of action is not only contrary to the principle of subsidiarity of the constitutional complaint, but is, in essence, not very effective, and the protection that the Constitutional Court ultimately provides is far more virtual than actually real.
20. It is, of course, not possible to link proceedings in so-called "bagging 'cases in which an appeal against a decision on the substance is not admissible. However, even in relation to them, it is not appropriate to discuss a constitutional complaint directly against a resolution not to accept a change of action, as objections against it may be raised in the context of a constitutional complaint against a final decision of a meritative nature. The effectiveness of the protection provided by the Constitutional Court will be comparable to a situation in which the Constitutional Court would already accept a complaint against the decision itself under the provisions of § 95 (2) o. s.
21. For the reasons set out above, the Constitutional Court has concluded that a constitutional complaint against a resolution which does not allow a change of action under the provisions of Paragraph 95 (2) CS is inadmissible within the meaning of Section 75 (1) of the Constitutional Court Act. This resolution can be opposed by effective means of protection of rights under the general justice system. Therefore, the Constitutional Court decided as stated in the operative part and the Opinion under the provisions of § 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, exceeded the legal opinion contained in the decision sp. zn. IV. ÚS 157 / 02 of 4.12.2002 (N 149 / 28 of the SbNU 347) and in other above mentioned findings.
22. In the light of the fact that the legal opinion contained in this Opinion constitutes a so-called case-law departure which could be negative for those constitutional complaints which had already been lodged and which were seldom based on the legal opinion contained in the above-mentioned case-law, and the complainants therefore legitimately expected that the Constitutional Court would deal with them in substance, it will only apply to constitutional complaints lodged at the Constitutional Court on the day following the publication of the Opinion in the Collection of Laws.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges Pavel Rychetský and David Halič on the opinion of the plenary.
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Regulation Information
| Citation | Notice of the Constitutional Court No 394 / 2016 Coll., on the adoption of the Opinion of the plenary of the Constitutional Court of 15 November 2016 sp. zn. |
|---|---|
| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.12.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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