The Constitutional Court found No 419 / 2006 Coll.
The Constitutional Court found of 26 April 2006 on the application for annulment of the provisions of Section 133a (2) of Act No. 99 / 1963 Coll., Civil Code, as amended
Valid
The Constitutional Tribunal found
Text versions:
22.08.2006
419
FIND
The Constitutional Court
On behalf of the Czech Republic
On 26 April 2006, the Constitutional Court decided in plenary of the President of the Court of Paul Rychett and Judges Stanislav Balík, František Duchona, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Janů, Vladimir Krórka, Dagmar Lastovecký, Jiří Mucha, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Regional Court in Ústí nad Labem to abolish the provisions of Article 133a (2) of Law No. 99 / 1963 Coll., Civil Code, as amended by the Act,
as follows:
The application for annulment of the provisions of § 133a (2) of Act No. 99 / 1963 Coll., Civil Code, as amended, is rejected.
Reasons
1. The Regional Court in Ústí nad Labem, in proceedings for the protection of personality under the provisions of § 11 of the Civil Code, conducted under sp. zn. 34 C 22 / 2002, shall hear the dispute between the applicants M. B., L. No., D. D. and R. K., all of the apartments Ústí nad Labem, and the defendants J. H. and P. D., operating in Ústí nad Labem, under the action brought by the Regional Court on 13.3.2002.
2. The point of the dispute is that on 26 November 2001 the applicants, citizens of Roma nationality, visited the restaurant of the defendants in Ústí nad Labem at around 11.15 pm. According to the applicants, none of the operators had noticed them for a long time and therefore the other applicant asked the passing waitress whether they would be served. It replied that they would not, because the restaurant is a private club and it is necessary to submit a club card, which is only for regular guests and costs 300 CZK. After the plaintiffs expressed an interest in buying the card, they were told to have one beer and leave. However, the plaintiffs said that they wanted to eat, to which they were told that there was no cooking in the restaurant. Immediately thereafter, three non-Roma persons entered the premises, who were served without any queries or requests to present the club card. The described approach of serving staff is perceived by the applicants as racial discrimination reducing their dignity. The actions before the Regional Court in Ústí nad Labem therefore sought the protection of personality and the imposition of an obligation on the defendant to send them an apology letter and pay compensation for the non-property damage of CZK 80 000, i.e. CZK 20 000 each, and to pay the costs of the proceedings.
3. The Regional Court of Ústí nad Labem, by order of 3 July 2004 No 34 C 22 / 2002-63, suspended the proceedings on the grounds that the provisions of § 133a (2) of the Civil Code (hereinafter referred to as "o.s.") to be applied in the resolution of the case are contrary to the constitutional order [Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"), § 64 (3) of Law 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court of First Instance")], and the Constitutional Court made a motion for its annulment.
4. In the application, the Regional Court stated that it had so far heard the plaintiff in the proceedings (with the exception of excusing L. N.), both the defendant, their employee E. M. and the witness of the defendant J. L. The plaintiff maintained their claim that they had been discriminated against as Roma. Both the defendants and their employees denied that they would put anyone, at any time and for any reason, at a disadvantage over other customers; However, they have consistently stated that they cannot prove this claim because they do not document the operation of individual restaurant guests in any way. Witness L. stated that although Rom did not feel discriminated against in the same time and place as the plaintiffs. The Regional Court further stated that, despite the assertions rather inconclusive to the opposing party, the applicants insisted on their action and demanded that a decision be taken in their favour in application of the provisions of Paragraph 133a (2) CS, since their belief that they had been racially discriminated against in the provision of services was not refuted in the proceedings and is therefore to be taken as proven.
5. The Regional Court in Ústí nad Labem, in its very concise constitutional argument, expressed the belief that the provisions of Paragraph 133a (2) of the Civil Code infringe the constitutional principle of procedural equality between the parties to the proceedings and, therefore, it is contrary to Article 96 (1) of the Constitution, under which "All parties have equal rights before the courts'. By moving the burden of proof - as opposed to the standard order - from the plaintiffs to the defendant, the plaintiff has an unfair advantage, since he does not have to prove what should have happened and why the defendant is being sued, while the defendant is unfairly disadvantaged, as he should have shown what did not happen, although he could not have anticipated the need for such evidence in advance. It follows from the logic of the case that, while the first evidence is relatively easy, the second evidence is difficult, possibly - as in the present case - completely impossible.
6. Any argument that even a standard order burdensome by the burden of proof does not guarantee full equality of parties, according to the appellant's conviction, because that standard order reflects the different procedural situation of the two obnoxious parties: the plaintiff is the "master of the process' and can always, after considering any evidence of impotence, simply achieve it; On the other hand, the defendant does not have that option. It is therefore fair that this procedural weakness of the defendant should be offset by the loss of the burden of proof.
7. For these reasons, the Regional Court is convinced that the contested provision of Paragraph 133a (2) CS infringes the right of defendants to a fair trial, which is immanently contained not only in the Czech constitutional order but also in the legal order of the European Union, for example in Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ').
8. In conclusion, the Regional Court in Ústí nad Labem proposed that the Constitutional Court should abolish the provisions of Paragraph 133a (2) of the Civil Code by finding a provision.
9. On 23.8.2004, an application was served on the Constitutional Court by M. B., L. Č. and D. D., the applicants in proceedings before the Regional Court in Ústí nad Labem under sp. zn. 34 C 22 / 2002, in which the Constitutional Court asked to consider whether, in proceedings concerning the application of the Regional Court in Ústí nad Labem to abolish the provisions of § 133a o. s., they could be considered to be interveners, or whether such a position could be granted by order pursuant to § 28 (3) of the Law on the Constitutional Court.
10. The Chamber of Deputies of the Parliament of the Czech Republic, represented by its President, PhDr. Lubomír Zaorálk, in its observations of 27 August 2004, stated that Paragraph 133a was inserted into the Civil Code primarily in response to the commitment of the Czech Republic under Council Directive 97 / 80 / EC of 15 December 1997 on the burden of proof in cases of discrimination on grounds of sex. Subsequently, Section 133a was extended by Act No 151 / 2002 Coll., which reflected the requirements of two other European directives, i.e. Council Directive 2000 / 43 / EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000 / 78 / EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
11. Pursuant to Directive 2000 / 43 / EC, Member States of the European Union were required in their legal systems to ensure that, in cases where persons deemed to be damaged, because they considered that their direct or indirect discrimination had occurred on the grounds that they had not been treated in accordance with the principles of equal treatment, the burden of proof was borne by the defendant. The intention of this Directive is to require the defendant to demonstrate that the principle of equal treatment has not been infringed.
12. The Chamber of Deputies did not agree with the appellant's view that the presentation of the obligation under Directive 2000 / 43 / EC of the Czech Republic to the Civil Code had infringed Article 96 (1) of the Constitution, which regulates the equality of parties in the proceedings before the court. In each civil procedure, one party shall have an obligation of proof and that obligation shall not constitute a breach of the equal status of the parties before the courts. The contested provision in determining the obligation of proof is based primarily on the protection of participants who consider that they have been harmed by their rights on grounds of unequal treatment. Equality between the parties is given, inter alia, by the independence of the court. The parties to proceedings against which the court plays its role must be unsubordinate, i.e. they must have an equal position in the proceedings. This equality is not undermined by the obligation of burden of proof.
13. The contested provision shall not deprive the defendant of the right to a fair trial. In the context of the principles of fair court proceedings, even in this case (i.e. by means of the procedure laid down in Paragraph 133a (2) (a) above), the parties are entitled to apply to an independent and impartial court the procedure laid down in their law. In the context of this procedure, each party shall have personal access to the court, be able to take part in the hearing and to discuss the case in its presence and to comment on the evidence made. By repealing the provisions of Paragraph 133a (2) (c), the Czech Republic's obligations arising from membership of the European Union and its subsequent obligations under EU directives would be clearly violated.
14. Act No. 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Rules of the Court of Justice, was approved after a properly implemented norm-making process, signed by the relevant constitutional officials and declared in the Collection of Laws.
15. In conclusion, the Chamber of Deputies expressed the view that, at the time of the adoption of Act No. 151 / 2002 Coll., the legislature acted in the belief that the adopted law was in accordance with the Constitution, the constitutional order, the legal order of the Czech Republic and the relevant European directives by which the Czech Republic is bound. It is for the Constitutional Court, in the context of the application for annulment of the provisions of Section 133a (2) of Act No 151 / 2002 Coll., which amends certain laws in connection with the adoption of the Administrative Rules of Procedure, to examine the constitutionality of that Act and to take the relevant decision.
16. The Senate of the Parliament of the Czech Republic represented by its then President, Dr Petr Pithart, in its observations of 2 September 2004, stated that the contested provision of Paragraph 133a (2) CS was included in the "accompanying" Act (Act No. 151 / 2002 Coll.), in the course of the legislative process in the Chamber of Deputies, as a material with administrative justice not related, but most necessary for the accession of the Czech Republic to the European Union.
17. On the substance of the case, the Senate stated that the right of everyone to equality before the law or the law (and protection against discrimination) is a general fundamental right recognised by both the European Union and at the level of individual Member States (including the Czech Republic).
18. The equality category enshrined in Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter") belongs to those fundamental human rights which, by their nature, are social values establishing the company's values [the Constitutional Court's finding published under No 168 / 1995 Coll. (Note: the sp. zn. As such, it is developed in other provisions for each area and situation. In a constitutional level, for example, the case at issue is relevant to the equality of rights in court proceedings (Article 37 (3) of the Charter in conjunction with Article 96 (1) of the Constitution); in the context of the subconstitutional provision, for example, the provision of § 18 o. s.
19. In the light of the above, the provisions of Paragraph 133a CS are intended to help those who feel discriminated against effectively enforce the right to equal treatment in such a way that the facts of their alleged discrimination on the basis of racial or ethnic origin are to be regarded by the court as being proven if the action has not been brought to the contrary. The second paragraph of Paragraph 133a (s) of the second section affects the provision of health and social care, access to education and training, access to public contracts, membership of employees' or employers' organisations and membership of professional and interest associations, and the sale of goods in trade or the provision of services. In addition, the scope of the matters covered by paragraph 2, together with a derogation for discriminatory reasons, is an aspect which distinguishes it from paragraph 1 of the same provision (paragraph 1 provides not only for discrimination based on racial or ethnic origin, but also on sex, religion, belief, world opinion, disability, age or sexual orientation). However, the legal protection instrument is identical in both cases.
20. The historical interpretation of the provision of § 133a (2) o. s., it can be established that the legislator was primarily guided when it was approved by the intention to harmonise Czech law with Community law. The "European legislator 'is based on the fact that the creation of the same starting conditions cannot be sufficiently achieved at national level in certain cases and situations, the Member States have undertaken to take the necessary measures to demonstrate that the principle of equal treatment has not been infringed (the relevant standard bears the heading" burden of proof').
21. Although it is evident from the above circumstances that the choice of legislative means was very restrictive, the legislator concluded that the wording of the contested provision based on the presumption of the truthfulness of the alleged facts, unless it was shown otherwise in the proceedings, is a legal structure which does not in any way undermine the principles of evidence on which civil procedural law is based. The legal presumption in this case does not in any way restrict the parties to the dispute in the submission of a claim or in the production of evidence, but only allows the court to rule in the case of "evidence weakness' of the defendant, or in the state of evidence emergency.
22. In addition to the dominant, formally legislative aspect of the reason for the adoption of the provisions of Paragraph 133a (2) CS, an opinion on the material, social aspect of the matter can be added. The Senate did not question the validity of the reasons which led the European legislators to define the substantive scope of the standard in question and therefore did not have more serious problems with the national standard affecting the range of cases consistent with the relevant European directives.
23. It can be concluded that, in the above-mentioned dimensions, the provisions of Paragraph 133a (2) CS are consistent with the constitutional principle of equality of rights of the parties before the courts, as they do not undermine the principles of "fair trial 'by giving one of the parties more advantages. Rather, it can be argued that the provision helps to enforce the principle of" material' equality where otherwise, for reasons of objective impotence to prove its claims, the equality of "formal 'would be unduly suppressed.
24. In the case of alleged discrimination, a standard assessment of the facts takes place. None of the procedural parties is limited in the submissions or in the submissions of evidence. Paragraph 133a (2) (a) of the EC Treaty only provides for a conditionality of (i.e., if the proceedings do not prove otherwise) the truthfulness of the claim by the applicant for unequal treatment, thereby removing the burden of proof. However, this fact does not deny the defendant the possibility of proving the illegality of such a claim by means of evidence suggesting equal treatment. The defendant thus demonstrates his conduct and not the delay in the inadmissible conduct. This is not even possible by the nature of the case. At this point, it cannot therefore be testified to the appellant that the defendant should prove "something that did not happen '.
25. The contested provision, located in the "evidence evaluation" section, is a standard for judges who do not in any way encourage them to refer, within the meaning of the provisions of Paragraph 133a (2) CS, to the cases concerned on a flat-rate basis as discriminatory and to resign from the assessment of each case in both individual and all context. On the contrary, it envisages an "added" assessment criterion, thereby imposing increased claims on judges when assessing the case of unequal treatment. This provision must be interpreted as meaning that, in order for the case to be subsummed at all under the provisions of Section 133a (2) (c), the judge must first conclude that the facts of discrimination are indeed indicative (see Chapter II (8) (1) of Council Directive 2000 / 43 / EC; and, accordingly, Council Directive 2000 / 78 / EC and Council Directive 97 / 80 / EC). If this were not the case, the provisions of § 133a (2) o. s. s.
26. The Senate does not consider that the "transfer of the burden of proof 'described by the appellant would create a contradiction with the constitutional principle of a fair trial, but considers that by imposing greater liability on the defendant for the determination of the facts (in the cases defined both in Section 133a (2) and, moreover, in Section 133a (1) (a)), the maximum fair treatment required by Article 6 (1) of the Convention is more consistent.
27. It is clear from the proposal that the appellant sees the unconstitutionality primarily due to the "transfer of the burden of proof," not within the scope of the matters to which the standard falls. The Senate adds that, should the Constitutional Court find the arguments of the appellant justified for the annulment of the provisions of Paragraph 133a (2) (a), the deficit referred to in paragraph 1 of the same paragraph also suffers.
28. In addition to the statement on the provisions of Paragraph 133a (2) CS, it can be concluded, for the sake of completeness, that, as regards the burden of proof, the newly proposed anti-discrimination legislation does not provide for changes to the current situation.
29. Other European Union States (e.g. France, Ireland, Sweden, Portugal, Poland, Hungary), whose legislation and case-law are conventional to the established trend (see e.g. Equity and non-discrimination, Annual Report 2004, European Commission, p. 20), take the same approach on the subject under assessment.
30. Finally, the President of the Senate stated that he sent his observations, stating that it was entirely up to the Constitutional Court to assess the constitutionality of the application for annulment of the contested provisions.
31. The Regional Court in Ústí nad Labem did not comment on the observations of the Chamber of Deputies and the Senate sent to it by the Constitutional Court by letter dated 20 September 2004.
32. The Ministry of Justice, in its opinion on the application for annulment of the provisions of Article 133a (2), repeated the appellant's argument and stated the reasons for incorporation of the provision in question into the Czech legal order of the Czech Republic, consisting of the necessity of transposition into national law of Article 8 (1) and (2) of Council Directive 2000 / 43 / EC of 29 June 2000 establishing the principle of equal treatment of persons irrespective of their race or ethnic origin. The obvious aim of this legislation is to provide protection to the weaker party of the dispute, which the person against whom racial or ethnic discrimination should have been made is undoubtedly the one. In accordance with the provision of Article 8 (2) of the Directive cited, which provides for the possibility for States to adjust the conditions for the transfer of the burden of proof to the defendant, the legislature then agreed to implement a more benevolence, and the defendant allowed only "to state the facts' in a discriminatory dispute, not" to submit facts suggesting direct or indirect discrimination 'as provided for in Article 8 (1) of the Directive. It must be borne in mind that the breach of the principle of the burden of proof by the applicant is, in this case, taken as a result of the transposition of the directive, namely the legislation adopted by the European Community in accordance with the Treaty establishing the European Community. The Directive pursuant to Article 249 (3) of the EC Treaty is a legal act binding on each State to which it is addressed as regards the result to be achieved. The choice of forms and means of fulfilling the objective set out in the Directive shall be left to the national authorities. In this case, the law - the Civil Code - was evaluated as an appropriate means of implementing the directive.
33. The appellant's view that the choice of that solution has suppressed the rights of the parties to their equal rights before the courts, as he contends with the reference to Article 96 (1) of the Constitution, and the denial of the principle of equality of the parties to the proceedings, as enshrined in Article 37 (3) of the Charter. The determination of the obligation of proof shall be based primarily on the protection of participants who consider that they have been harmed by their rights because of unequal treatment.
34. Although the aforementioned directive was already issued in 2000, the Czech Republic complies with Article 2 Act of Accession bound with effect from 1 May 2004, when it became a Member State of the European Union. If the Czech Republic did not respect the directive cited, thus did not take the necessary measures to guarantee its transposition into national law, it would be liable under the Treaty establishing the European Community for this error, which could result in the application by the Commission to the European Court of Justice and the subsequent imposition of a fine or periodic penalty payment.
35. According to the Ministry, it is not possible to agree with the appellant's assertion that the provisions of Paragraph 133a (2) CS are contrary to Article 96 (1) of the Constitution, under which "All parties to the proceedings have equal rights before the courts'. At the same time, this principle of equality of participants is explicitly expressed in the Charter in Article 37 (3) (" All participants are equal in the proceedings'). The principle of equality of participants is also highlighted in the provision of § 18 o. s. s., which lays down a level playing field in civil proceedings. Equality before the law and the court is the subject of one concept. It means the equal position of both parties in applying both material and procedural rules before any court against any natural or legal person. The principle of equality of the parties is reflected in the creation of the same procedural conditions and procedural status of the bodies whose rights and obligations the court decides. It excludes a group of participants or individuals from being granted an exceptional status linked to the grant of special rights or obligations. The mere fact that it is generally up to the plaintiff to prove his claims in the action does not mean that the plaintiff does not have equal rights as a counterparty which does not have such an obligation. Similarly, it cannot be regarded as a breach of the equal position of the parties to the proceedings if, in certain justifiable cases, "contrary to standard order ', as stated by the appellant, the burden of proof is transferred. Such a procedure is not exceptional, and many countries use it not only in the cases referred to in the abovementioned directive (see, for example, actions against property from dishonest sources applied in Anglo-Saxon law). The consistent application of the principle of equality between the parties is also ensured by the independence of the judges, by the rules on the exclusion of biased judicial persons, but also by the existence of a single judicial system, ensuring that every citizen and legal person is publicly consulted by a competent court, organised and active on the basis of general constitutional principles.
36. The Ministry further stated that it was also not possible to agree with the view that the contested legislation deprives the defendant of the right to a fair trial. Paragraph 133a (2) CS (mutatis mutandis, § 133a (1) CS) does not affect the primary principle of free assessment of the evidence explicitly expressed in § 132 CS), according to which the court assesses the evidence on its own account, each individually and all evidence in their context. The Court of First Instance, when assessing the facts of the case in the taking of evidence, is not bound by the Court of First Instance in assessing the degree of assurance and, respectively, the evidence of the individual evidence; and therefore, even in the case of the presummed "evidence 'of the alleged facts under the provisions of Section 133a (2) (a) (mutatis mutandis, the provision of Section 133a (1) (a) (b)) is entirely at the discretion of the Court of First Instance as to what evidence it admits in relation to and in comparison to the other evidence submitted. At the same time, the proceedings may prove otherwise, including, where appropriate, in accordance with the provisions of § 120 (3) EC, i.e. by a procedure whereby a court may carry out other than the parties to the proceedings.
37. In conclusion, the Ministry of Justice stated that, in the light of the above, it considered that neither the above-mentioned Directive nor the provisions of Article 133a (2) (a) CS are contrary to the rights of the participants given by the constitutional order of the Czech Republic, but stress the fundamental right of discriminated (weaker) entities to a fair trial, as guaranteed by both the Charter (Article 36 (1) and Article 6 (1) of the Convention and are therefore constitutionally conformal. It is up to the Constitutional Court to examine the constitutionality of those provisions and to take a decision in connection with the application for annulment of the provisions of Paragraph 133a (2).
38. The European Roma Rights Center - the European Roma Rights Centre, based in Budapest (hereinafter the European Centre), informed the Constitutional Court on 16 December 2004 that it had been informed of the pending proceedings before the plenary of the Constitutional Court on the application for annulment of the provisions of Paragraph 133a (2) (c) of the Constitution. In this context, it submitted its opinion to the Constitutional Court (amicus brief), in which it emphasised, inter alia, that the condition for the transfer of the burden of proof to the defendant is to demonstrate prima facie discrimination. only then follows the obligation of the defendant to prove that he has not infringed the principle of equal treatment (see also paragraph 21 of the Preamble to Council Directive 2000 / 43 / EC). Experience suggests that effective and genuine compliance with property law provisions guaranteeing non-discrimination will be ensured when the burden of proof is shared by the defendant, who must prove that his conduct was objectively justified. It referred to the decision of the United Nations Committee on Human Rights in Mukong v. Cameroon, Communicé No 458 / 1991 (1994), according to which the burden of proof cannot only be borne by the plaintiff, particularly if we consider situations where the parties do not always have equal access to evidence and where only the defendant often has access to the relevant information.
39. The transfer of the burden of proof from the applicant to the defendant after the case has been classified as prima facie discrimination makes it easier for the applicant to make a complaint.
40. Where a case can be classified as prima facie discrimination depends on the circumstances of each case; However, it is evident that, in applying such a principle of proof, it is sufficient for the applicant to provide arguments, namely "facts suggesting that there has been direct or indirect discrimination '. At the same time, the required" no reasonable doubt "proof standard applies more in criminal proceedings.
41. The European Centre referred to the decision of the European Court of Human Rights (hereinafter referred to as the European Court of Justice) in the Nachov case and against Bulgaria (2004), in which the European Court of Justice stated that the burden of proof must be transferred to the defendant in cases of discrimination under Article 14 of the Convention, and noted that this approach is consistent with developments in Europe.
42. After the transfer of the burden of proof, it is for the defendant to produce evidence to refute the claim of prima facie discrimination. According to the European Court of Justice, the defendant must prove that the differences in conduct "corresponded to the actual need for action 'and were" appropriate and necessary to achieve the interests pursued' (Ingrid Rinner- Kühn v FWW Spezial- Gebäudreinigung GmbH & Co. KG. / 1989 / ECR 2743). The question of the transfer of the burden of proof in matters of discrimination on grounds of sex is also addressed in the judgment of the Appellate Labour Tribunal of the United Kingdom of 3 April 2003 in Case Barton v Investec Henderson Crosthwaite Securities Ltd, which highlighted the increased importance of the defendant in the cases of discrimination to defend his actions.
43. The European Centre referred to further decisions of the European Court of Justice on questions referred for a preliminary ruling (Case 170 / 84 Bilka-Kaufhaus GmbH / 1986 / ECR 1607, Case 109 / 88 Danfoss / 1989 /, ECR 3220), from which it can be concluded that the applicant is primarily obliged to prove a prima facie case of differential treatment on the basis of a prohibited ground; Otherwise he lost the case. If the applicant can prove this, it is for the defendant to provide objective reasons for such different treatment (e.g. reaching a legitimate interest or introducing adequate measures to achieve such an interest).
44. In conclusion, the European Centre stated that the principle of the transfer of the burden of proof is the result of more than 20 years of development and liberalisation that has evolved since the first EU directives on gender issues adopted in the mid-1970s. Its aim is to create a balance that will enable the courts to collect all relevant evidence from all parties before deciding whether discrimination has occurred. The transfer of the burden of proof helps the claimant to ensure that the defendant is obliged to defend his actions. As a result, both parties are obliged to base their defence on the most convincing claims.
45. The provisions of Paragraph 133a (a), which include the cancellation of paragraph 2, read as follows:
(1) The facts alleged that the participant was directly or indirectly discriminated against on the basis of his or her sex, racial or ethnic origin, religion, belief, world view, disability, age or sexual orientation, the Court of First Instance considers that it has been proven that the case in respect of employment has not been brought to the contrary.
(2) The facts alleged that the participant has been discriminated directly or indirectly on the basis of its racial or ethnic origin, the Court has, in matters relating to the provision of health and social care, access to education and training, access to public contracts, membership of employees' or employers' organisations and membership of professional and interest associations, and the sale of goods in trade or the provision of services for proven purposes, unless otherwise indicated in the proceedings. "
46. In the context of the examination of the conditions of the procedure, the Constitutional Court found that the application of the contested provision of Paragraph 133a (2) (c) of the Rules of Procedure is necessary when deciding on the case by the Regional Court. It is therefore a provision to be used in the resolution of the case within the meaning of Article 95 (2) of the Constitution and therefore the condition laid down in Article 95 (2) of the Constitution is fulfilled.
47. The Constitutional Court states that, in the proceedings concerning the annulment of laws and other legislation, the Law on the Constitutional Court, to which the Constitutional Court is bound pursuant to Article 88 of the Constitution, except in cases arising as a result of the procedure laid down in Article 35 (2) of the Act, does not know the intervening.
48. Paragraph 133a (2) was inserted into the Civil Code by Act of 21 March 2002 No 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Code. The Act entered into force on 1 January 2003 and was published in the amount of 61 / 2002 of the Collection of Laws, which was circulated on 17 April 2002.
49. From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic, the Constitutional Court found that the bill was submitted to the Chamber of Deputies as a government proposal on 1 October 2001 and distributed to Members as a print 1081 / 0. The proposal was adopted at the 46th session of the Chamber of Deputies on 15 February 2002 by Resolution 2106, when 149 of the 159 Members present voted in favour of the proposal in May 80.
50. From the electronic library of the Senate of the Parliament of the Czech Republic, the Constitutional Court found that the bill was distributed to Senators as Senate Press No. 224. At the 15th meeting of the Senate, the third term of office, on 21 March 2002, the Senate adopted Resolution 327 which expressed the will not to deal with the bill. Of the 43 senators and senators present, 38 against 1, on May 22.
51. On 26.3.2002, the law was delivered to the President of the Republic for signature. The President of the Republic signed the Act on 28.3.2002.
52. The Constitutional Court therefore, within the meaning of Article 68 (2) of the Law on the Constitutional Court, found that Act No. 151 / 2002 Coll., amending certain laws in connection with the adoption of the Administrative Rules of Procedure, was adopted and issued within the limits of the Constitution of the Czech Republic laid down by the legislative competence of the Parliament of the Czech Republic and in a constitutionally prescribed manner.
53. The Constitutional Court has concluded that the merits of the application for annulment of the provisions of Paragraph 133a (2) CS is not given and therefore rejected the application for the following reasons.
54. In proceedings for the annulment of laws or their individual provisions pursuant to Article 87 (1) (a) of the Constitution, the Constitutional Court assesses the content of the law in terms of its compliance with the constitutional order. In this context, the Constitutional Court recalls that, as the last national institution for constitutional qualifications, it is not considered to be bound by the qualifications attaching to the case by the appellant in the reasoning of his application. In accordance with the iura principle to amend curia, the proposal can also be addressed from the point of view of provisions not invoked by the appellant or parties. The proposal or complaint is characterised by acts which it criticises, or by its object, which it claims to be unconstitutional, and not by mere legal justification. However, it cannot be concluded from this that detailed constitutional arguments are not to be part of the proposal on a regular basis. In the present case, the Constitutional Court considers that the regional court's proposal does not contain such a detailed argument.
55. The substance of the proposal is that the provision of Paragraph 133a (2) CS is unconstitutional by shifting the burden of proof to the defendant in the matters listed there, thereby discriminating against it. It is alleged that it infringes the constitutional fundamental rights, in particular the right to a fair trial pursuant to Article 6 (1) of the Convention and the corresponding rights enshrined in the title of the Fifth Charter, the principle of equality between the parties to legal proceedings under Article 37 (3) of the Charter, Article 96 (1) of the Constitution and Article 14 (1) of the International Covenant on Civil and Political Rights No 120 / 1976 Coll. ("the Pact ') and the prohibition of discrimination pursuant to Article 14 of the Convention.
56. In the present case, therefore, the application of the procedural principle of equality and non-discrimination to decisions of general courts in civil matters. International legal protection is enshrined primarily in the Pact, which provides, inter alia, in Article 14 (1) that "All persons are equal before the courts."
57. The right to a fair trial is guaranteed in particular by Article 6 of the Convention, which is, moreover, written in Protocol 11 to the revised text of the Convention and whose relevant provision for the so-called 'civil branch' is:
Right to a fair trial
1. Everyone has the right to have his or her affairs dealt with fairly, publicly and within a reasonable period of time by an independent and impartial court established by law, which shall decide on his or her civil rights or obligations... '.
58. As regards the actual content of this fundamental right, it is clear from its wording that it is a structured right, involving several separate subjective fundamental rights, formulated both specifically (for example, the public and the speed of proceedings or an independent and impartial court), as well as in general (in particular "the right to a fair hearing ').
59. The right to a fair hearing, as part of the right to a fair trial, is therefore a concept of indefinite, open and precise. Its content includes not only all the other guarantees expressly provided for in Article 6 (1) of the Convention, but also those which are not explicitly mentioned therein, but which, above all, the European Court of Justice, in its long-term decision-making activities, has drawn and gradually defined from the general requirement of fairness of the process. Thus, principles have been defined in the (not only) relation to the taking of evidence, which, although not explicitly mentioned in the Convention, form an integral part of the concept of a fair process. These are above all principles of equality of arms and complementarity.
60. The right to a fair hearing cannot be separated from the general requirement of equality and non-discrimination. In this context, however, it is about the importance of equality, which concerns the equality of parties to proceedings before the courts, located in different, opposing, procedural positions, usually referred to as' equality of arms'. In the constitutional order of the Czech Republic, this principle is contained in Article 96 (1) of the Constitution, according to which "All parties to the proceedings have equal rights before the courts. 'and Article 37 (3) of the Charter, according to which" All parties are equal in the proceedings'. Such equality is not expressly expressed in the Convention, but the case-law of the European Court could not exclude it from the requirement of justice. The process is a dispute which takes place through a contradictory discussion in which the parties to the dispute must have "equal weapons," i.e. the same ability to speak and defend "their" truth. In practical life it is usually not absolute, mathematical equality; the concept is relative, in particular in the sense that it cannot completely wipe out the difference in the procedural and, in particular, the factual position of the parties resulting from their different possibilities. This unequal position may to some extent be offset by additional guarantees for the weaker party, the so-called favor defensionis, which is manifested, for example, by an adjustment of the burden of proof (e.g. B. Repík, European Convention on Human Rights and Criminal Law, Orac, 2002, p. 144 et seq., also by B. Repík, Guyudan law in the Súdnom konani, MANZ Bratislava, 1999, p. 155 et seq.). In the De Haes and Gijsels judgment against Belgium (1997), (recital 55), the European Court reaffirmed that the principle of equality of arms - an element of a broader concept of a fair process - requires each party to be given a reasonable opportunity to defend its case under conditions which do not significantly disadvantage it in relation to its opponent. It also delivered a similar opinion in the Ankerl case against Switzerland (1996) (recital 38 of the judgment).
61. The Constitutional Court also dealt with the equality of parties in a number of its decisions. For example, in the case sp. zn. IV ÚS 13 / 98 (Collection of finds and orders of the Constitutional Court, Volume 12, Found No 98), he stated that "The principle of equality of parties is a fundamental principle of fair process. It is enshrined in Article 37 (3) of the Charter and Article 96 (1) of the Constitution of the Czech Republic and is also reflected in a number of provisions of the procedural rules. The Civil Code expressly provides for the equality of the parties to the proceedings in Paragraph 18, which obliges the courts to ensure the same, i.e. equivalent, possibilities for the exercise of their rights. 'According to the finding in sp. zn." The constitutional principles constituting one of the components of the fundamental right to a fair trial include the principle of "equality of arms', or the principle of equality of opportunity (i.e. the principle of equality of all parties to proceedings), in accordance with Article 37 (3) of the Charter, Article 96 (1) of the Constitution and Article 6 (1) of the Convention..... The principle of" equality of arms "(Article 6 (1) of the Convention) has been strongly reflected in the existing case law of the European Court of Human Rights. It can be characterised in this context in particular by the fact that, in the view of the Court, the idea of equality is the basis thereof, which makes it comparable to the principle of non-discrimination under Article 14 of the Convention. '
62. Contrary to the principle of equality of parties in court proceedings, the constitutional question of who is to bear the burden of proof in the civil process is not expressly regulated. The European Court of Justice stated on this issue, for example, in the case of Blücher against the Czech Republic (2005) and, mutatis mutandis, in the case of Tiemann against France and Germany (2000), that "Article 6 (1) of the Convention does not provide for any rules on the admissibility or evidentiary value of evidence or burden of proof, which are essentially subject to national law '.
63. The Convention and the Charter therefore guarantee a fair trial, but do not regulate the taking of evidence as such, although this is a substantial part of the proceedings, if not most important. However, this does not mean that the evidence is somehow "beyond" the constitutional legal level and its regulation is a completely exclusive matter of the law. The fundamental principles of fairness of management, in particular those of equality of arms and complementarity, which control the whole procedure, necessarily apply to the taking of evidence. For example, in the case sp. zn. IV ÚS 167 / 96 (Collection of finds and orders of the Constitutional Court, Volume 6, Found No 93) The Constitutional Court stated that "it is aware of the importance of the Institute of Evidence as it allows the Court to rule even if the facts are not fully clarified. However, this institute is also subject to a procedural framework, as defined in particular by the principles of an impartial and fair process resulting from Article 90 of the Constitution and Article 36 (1) of the Charter. This means, among other things, that a court cannot impose a burden of proof on one of the procedural parties without further and unilaterally, but only in the context of all the relevant circumstances of the case. '
64. In the context of constitutional law, the principle of equality of arms in civil proceedings, in general, also includes equality of burdens imposed on the parties (and which must not be disproportionate) and that otherwise the procedure as a whole cannot be considered as fair. This general principle of equality of participants must then also be reflected in the rules of proof in the level of the law.
65. The legal regulation of the contested civil procedure is governed by the principle of procedure, according to which to state the facts and to propose evidence for them, is essentially a matter for the parties. The burden of proof lies in the party's procedural liability for proving the facts alleged by it in the proceedings. In the ordinary civil dispute proceedings, therefore, each party bears the burden of proof in relation to the facts which it claims. The general presentation of the evidence in the provisions of § 120 o. s. CS, according to which paragraph 1 of the first "Participants are required to indicate the evidence to prove their claims', clearly states that the initiative to collect the evidence lies essentially with the participants. The participant therefore has an obligation (burden) of claim and an obligation (burden) of proof. The burden of proof is an institution of procedural law which prosecutes the participant in whose interests it is for a particular fact, decisive under substantive law and alleged by the party concerned, to be established in the proceedings in order to be found to be true by the court (cf. Bures, Drápal, Střemář, Mazanec, Civil Code - Comments, 6th edition, p. 450 et seq.).
66. The argument of the Regional Court that the difference in treatment of the defendant's party in the proceedings pursuant to the provisions of § 133a (2) CS, compared to the standard procedural position of the defendant under the general provisions of the Civil Code on the burden of proof, is discriminatory to the defendant, the Constitutional Court does not share, in particular, the following aspects.
67. The Constitutional Court takes the view that the specific legal rules governing the taking of evidence in proceedings under the provisions of Section 133a EC, in which the plaintiff claims to have been directly or indirectly discriminated against (generally in the present case the infringement of the rights enshrined in the Civil Code or the Labour Code and the application of liability resulting therefrom) is an exception to the above general principles of evidence. It is, by its nature, a rebuttable legal presumption specifying that proof to the contrary is the duty of the defendant's party. It clearly differs from the general standards of evidence in the provisions of § 120 o. s., by favouring to some extent the defendant's party at the expense of the defendant's party, which is not making any effort before the general courts, but is nevertheless to prove something which it did not claim. From this point of view, it can be argued from a formal point of view that the defendant's party is at a disadvantage in the proceedings where the provisions of Paragraph 133a (2) EC apply, compared to the defendant's party to a certain extent. However, the transfer of the burden of proof to the defendant's party is neither complete nor automatic. The person claiming to be a victim of discrimination must first submit to the court the facts sufficient to justify the existence of possible discrimination, even if the wording of Paragraph 133a (2) CS does not make it sufficiently clear. This conclusion is consistent with the legal opinion of the European Court of Justice expressed in the judgment of the Court of First Instance of 16.3.2004 in the case of Afari v European Central Bank (T-11 / 03).
68. It is clear that the defendant's party is treated in the proceedings listed in the contested provision of Paragraph 133a (2) (a) (and in the labour proceedings) in relation to the taking of evidence other than in other civil proceedings, which is an advantage for the defendant's party and thus manifestly a disadvantage for the defendant's party. Whether this disadvantage can be considered an unconstitutional discrimination must be considered
(a) from the point of view of objective and reasonable justification, that is to say, if that disadvantage pursues a legitimate objective; and
(b) in terms of a reasonable ratio (proportionality) between the legitimate objective and the means by which that objective is achieved.
69. In relation to the relationship of discrimination and public interest, the Constitutional Court stated, for example, in the decision of page Pl. ÚS 9 / 95 (Collection of finds and resolutions of the Constitutional Court, Volume 5, Found No 16, p. 107; Declared under No 107 / 1996 Coll.), in which it stated that "It is for the State to determine the conditions under which it favours a group of persons, provided that it does so in the public interest and for the public good, while it is undoubtedly in the public interest to enforce the principles of democracy and human rights'.
70. As stated above, the difference in treatment is discriminatory within the meaning of Article 14 of the Convention if it lacks objective and reasonable justification, i.e. (a) does not pursue a legitimate objective and (b) there is no reasonable relationship between the resources used and the objective pursued.
71. As regards the legitimacy of the objectives pursued by the provisions of Article 133a (2) (a) (and also the uncontested provision of Article 133a (1) (a) (1) (a) (1) (b)), it is clear (and rightly stated by the Chamber of Deputies and the Senate) that the provision referred to has become part of the Civil Code in connection with the obligation of the Czech Republic as a Member State of the European Union to reflect into its legal order the obligations arising from the relevant European directives. The constitutional dimension of this obligation is framed by Article 1 (2) of the Constitution, according to which "the Czech Republic complies with the obligations under international law for it." The very reasons for adopting so-called anti-discrimination directives are similarly expressed in their preamble. It is primarily about the effective enforcement of the principle of equal treatment, which means the absence of any direct or indirect discrimination based on sex, race, ethnic origin and others in the Directives for specified reasons. It is, in fact, the result of several years of development in the European Union, which, as Article 6 of the Treaty on European Union states, is based on the principles of freedom, democracy, respect for human rights and fundamental freedoms, as well as the principles of the rule of law, principles common to the Member States; The European Union recognises fundamental rights as general Community legal principles as guaranteed by the Convention and as they result from constitutional traditions common to the Member States. Those anti-discrimination directives have a common basis whereby persons who have been subject to discrimination should have effective means of legal protection. The national legislation is therefore intended to ensure, inter alia, specific rules on the burden of proof. This is to be based on the principle that, if a person who feels wronged by failure to respect the principle of equal treatment, the facts suggesting that there has been direct or indirect discrimination pass the burden of proof on the defendant to whom it is incumbent to prove that there has been no breach of the principle of equal treatment (see, for example, Article 8 (1) of Council Directive 2000 / 43 / EC). The Constitutional Court accepts that, if the Convention is to be a system for the protection of human rights first and foremost, it is necessary to take into account the changing conditions in the Contracting States and to respond to any emerging consent with regard to the standards to be achieved, which are in particular expressed in the preamble and normative provisions of the individual anti-discrimination directives. For this reason, the Constitutional Court respects, in the directives cited, the expression of the will of the Member States of the European Union, and notes that the contested provision of Paragraph 133a (2) of the EC Treaty follows a legitimate objective.
72. It remains to be decided whether the second condition is also met, i.e. whether there is a reasonable relationship between the funds used and the objective pursued. Although it is not the primary task of the Constitutional Court to independently assess to what extent, or in what legislative-technical quality, the legislator has succeeded in projecting the obligations under Council Directive 2000 / 43 / EC into the Civil Code, or whether the legitimate objective of the directive has been to express clear language of the law, it must be stated that, at first sight, it is clear that the condition contained in Article 8 (1) of the Directive cited is not, according to which the non-official revised version of the ISAP (Information System for Aequalisation of the Law), "the Member States shall take the necessary measures, in accordance with their legal systems, in order that, when a person feels wronged by the principle of equal treatment and submits to the court of non-discrimination... the facts of direct or indirect discrimination. For comparison reference can be made to the legislation of the Slovak Republic, where, pursuant to the provisions of Section 11 (2) of Act No. 365 / 2004 Coll., on equal treatment in certain areas and on protection against discrimination and on the amendment and addition of certain laws (anti-discrimination law)," the defendant is obliged to prove that he has not infringed the principle of equal treatment if the applicant submits evidence to the court that it is reasonable to conclude that the principle of equal treatment has been infringed '. In spite of the above, the Constitutional Court considers that the constitutional interpretation of the contested provision of Paragraph 133a (2) CS cannot be drawn to any other conclusion than that resulting from the above Directive and the observations of the Senate and the European Centre for the Rights of the Roma, namely that the provisions of Paragraph 133a (2) CS do not constitute an irrefutable presumption of the liability of the defendant. Therefore, its application requires that the plaintiff's party itself demonstrate prima facie intervention; It is therefore not sufficient to make a mere allegation of alleged discrimination.
73. Thus, the interpretation of the provisions of Paragraph 133a (2) (c) of the EC Treaty does not, in the view of the Constitutional Court, imply that a person who, when purchasing services, felt to be racially discriminated against should simply claim that there had been discriminatory conduct. This person in the legal proceedings must not only claim but also prove that he has not been treated in a normal, therefore non-discriminatory way. If they do not prove this, they cannot succeed in the proceedings. They must also argue that the disadvantage treatment was motivated by discrimination based on racial or ethnic origin. However, this incentive does not need to be demonstrated, which is assumed in case of evidence of different treatment, but is refutable if it proves otherwise (by proving). Moreover, the requirement that the defendant's party must prove that it has been discriminated against precisely and exclusively for its racial (ethnic) origin and not for other reasons is manifestly impossible, since it is excluded from the nature of the case that the defendant's motivation (motive) is justified.
74. Such a conclusion is in line with the European Court of Justice's line of reasoning on the interpretation of the earlier Community Non-Discrimination Directive, according to which, if someone "claims that the principle of equal treatment has been infringed in its adversity, and demonstrates the fact that there has been direct or indirect discrimination, Community law must be interpreted as meaning that it is for the defendant to prove that there has not been an infringement of that principle '(cf. Case C-196 / 02 Nicoloudi v OTE [2005] ECR).
75. In the view of the Constitutional Court, therefore, the appellant's view will not stand up to the fact that in the proceedings referred to in the contested provision of the Civil Code "the defendant's party is favoured because it does not have to prove what should have happened and why it is being sued, while the defendant's party is disadvantaged because it should have demonstrated what did not happen '. In fact, the burden of proof does not lie solely with the defendant. The plaintiff also bears his burden of claim and the burden of proof. If this burden is borne by the defendant, which must be assessed by the court in an individual case, then it is for the defendant's party to prove its claim that discrimination for racial (ethnic) reasons has not occurred. For the reasons set out above, the Constitutional Court has concluded that the provisions of Paragraph 133a (2) CS are a means of achieving the objective pursued, or that, if applied in a constitutional manner, a fair balance will be maintained between the requirements of the public interest of society and those of the protection of individual fundamental rights.
76. The present opinion of the Constitutional Court is opposed to that of the Ministry of Justice. It follows from the content of this opinion that the Ministry of Justice essentially takes the same view as the appellant: that the defendant and only the defendant are subject to a "total 'burden of proof (though allegedly set by the legislature by a lighter conditions for transferring the burden of proof to the defendant). The Ministry only considers this condition to be constitutionally conformal, unlike the appellant. This is not the case; The Constitutional Court notes that the Ministry of Justice may have overlooked that the transposition of those directives must be within the constitutional limits of a fair process; The interpretation laid down by both the Ministry of Justice and the appellant cannot be accepted as it would have exceeded those limits.
77. For the reasons set out above, the Constitutional Court has concluded that the existing legislation can still be interpreted in such a way that it can be regarded as compatible with the fundamental right to a fair trial enshrined in Article 6 (1) of the Convention and does not constitute discrimination within the meaning of Article 14 of the Convention. Therefore, the Constitutional Court found no grounds for the annulment of the provision in question and rejected the proposal under Paragraph 70 (2) of the Constitutional Court Act.
78. However, the Constitutional Court considers that the wording of the contested provision of the Civil Code requires, in particular, from the point of view of the proportionality test, an interpretation which is almost borderline in which it is still possible to conclude that, as a result of that interpretation, the contested provision can be regarded as constitutionally conformal. It would therefore be extremely desirable for the legislator to consider whether the transposition of the cited EC directives cannot be carried out in a somewhat more clear manner for the addressees of the relevant procedural standards.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no. 419 / 2006 Coll., on the application for annulment of the provisions of § 133a (2) of Act No. 99 / 1963 Coll., Civil Code, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 22.08.2006 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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